#### Worth *v.*Butler.

Tuesday, *November*26.

Words charging a woman who was never married with having had a child and buried it in the garden, amount to a charge of fornication, and are therefore actionable by statute.

In an action of slander brought in this state for such words, it will be presumed, until the contrary be proved, that the words were spoken in this state.

When the words charged are *prima facie*actionable, no averment of extrinsic facts is necessary.

ERROR to the *Allen*Circuit Court.

Blackford, J.

— This was an action of slander brought -by *Fanny Butler*against *Andrew Worth.*The declaration states that the plaintiff is' and always has been an unmarried woman; that she had never been-suspected of being.guilty of fornication; that the defendant, on, &c., at said county, contriving, &c., in a certain discourse, &c., falsely and maliciously spoke and published of and concerning the plaintiff, who is and always has been an unmarried woman, the false, malicious, and defamatory words following, viz.: u I (the defendant meaning) have heard that Miss *Fanny Butler*(the plaintiff meaning) has had a child, and buried it in the garden four or five years ago.” “I (the defendant meaning) have *252heai’d that Miss *Fanny Butler*(the plaintiff meaning) has had a little one, and .buried it at the back of the garden four or five years ago (meaning and intending that the plaintiff had been delivered of a bastard child, and had been guilty of fornication.) By means whereof, &c. Plea, the general issue. There are also two special pleas, one of which was demurred to, but a particular notice of them is unnecessary. Verdict and judgment for the plaintiff; motion for a new trial overruled ; and judgment on the verdict.

*H.*Cooper, for the plaintiff.

*W. H. Coombs*and *R.*Brackenridge, for the defendant.

The defendant asked the Court to instruct the jury, that the plaintiff must prove that the words were spoken in this state, or of and concerning the plaintiff then resident in this state, or she cannot recover. This instruction -was rightly refused. The defendant’s argument is, that the words,' if actionable at all, are only actionable here by statute ; and that, therefore, unless they were spoken in this state, or of a person resident here, they are not actionable. The answer to this is, that the words must be presumed to have been spoken in this state where the suit was brought, until the contrary be proved. The ease of *Stout*v. Wood, 1 Blackf. 71, relied on by the defendant, does not apply. In that case, the words charging the plaintiff with fornication, were proved to have been spoken in the state of *Ohio.*The defendant asked another instruction to the jury which was irrelevant, and was correctly refused. .

It is contended that the declaration, without averring some extrinsic facts to which the slander applied, is insufficient; but we are not of that opinion. If the words are *prima facie*actionable, no averment of extrinsic facts was necessary. Wé consider the words in this case to amount to a charge against the plaintiff of fornication ; and if that is their meaning, they are actionable by statute. R. S. 1838, p. 452.

The verdict is objected to on the ground that the averment of the plaintiff’s being unmarried was not proved. In this, however, the defendant is mistaken. The record shows the objection to be untenable.

*Per Curiam.*

— The judgment is affirmed with 3 *per cent.*■ damages and costs.

*255*H.*Cooper, for the complainants.

*D. PL. Colerick*and *W. PL.*Coombs, for the defendants.