Wilkes County NcArchives Court.....M'Craw, Shipp V. 1819
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 February 2, 2009, 7:53 pm

Source: Nc Reports
Written: 1819

Shipp v. M'Craw

From Wilkes

November Term 1819

A. charged B. with having stolen a note from him "in the county of Halifax, in 
Virginia." These words are actionable.

It was proved on the trial, that the stealing of a note was a larceny by the 
laws of Virginia, at the time to which the charge referred. It would seem, 
that the Plaintiff can recover without proof of this fact: for

Although the crime may have locality, the effect of the imputation will follow 
a man wherever he goes; and therefore the law gives a remedy for imputations, 
which if believed, and even proved, cannot subject the accused to any future 
prosecution. As where a pardon is granted after the commission of the offence, 
but before the speaking of the words.

The gravamen in an action of slander, is social degradation, and not the risk 
of punishment; and the rule to test the question, whether the words be 
actionable or not, to-wit, Does the charge impute an infamous crime? is 
resorted to, to ascertain the fact, whether it be a social degradation, and 
not whether the risk of punishment was incurred. And this rule is the test of 
that: for those who are punished for infamous crimes are degraded from their 
rank as citizen, they lose their privileges as freemen, their liberam legem 
and are no longer boni et legales homines.

This was an action of slander, and the slanderous words charged in the 
declaration were, "That Shipp had stolen a note from the Defendant, in the 
county of Halifax, in Virginia, and presented the note to J. Unthank, and 
tried to draw the money. That if Shipp did not make a fair settlement with 
him, the Defendant, he would put Shipp in the Penitentiary: that he could, and 
would: that he had spoken to a Lawyer and was advised he could do so." It was 
given in evidence upon the trial, that the stealing of a note, as charged in 
the declaration, was a larceny by the laws of Virginia, at the time to which 
the charge referred. There was a verdict for the Plaintiff, and the presiding 
Judge sent the case to this Court for the opinion of the Judges, whether 
Plaintiff was entitled to judgment.

Taylor, Chief-Justice: The case states it was given in evidence upon the 
trial, that stealing a note is larceny in Virginia; and we know that it is so 
in this State. Although it be true, that for such a larceny committed in 
Virginia, a man could not be liable to punishment here, yet to impute that 
crime to a man, tends not less to his degradation and loss of cast in society, 
than if it exposed him to a prosecution. A person cannot escape from the odium 
and disgrace fixed upon his character by the charge, because he is no longer 
in the state where he is punishable: for although the crime may have locality, 
the effect of the imputation will follow a man wherever he goes. It would seem 
to be a great defect in the law, if words which are so calculated to injure a 
man's character, should cease to be actionable, because the slanderer added 
something to them which shewed that the Plaintiff was not liable to 
prosecution in the State where the words were spoken. Such a principle would 
tend most effectually to withdraw from character the protection which the law 
now justly affords it; and would operate most injuriously in the United 
States, where the people are frequently seeking new settlements, with a view 
of improving their fortunes, when a fair character is not unfrequently the 
most cherished portion of the capital they bear with them. Fortunately the law 
does not sanction such a doctrine: for the books furnish many cases of 
unquestionable authority, in which a remedy has been given on account of 
imputations, which, if believed, and even proved, could not subject the 
Plaintiffs to any future prosecutions.

In CGaddington v. Wilkins, Hob. 81, a pardon was granted after the commission 
of the offense, but before the speaking of the words; and the Plaintiff: was 
held entitled to his action.

In Carpenter v. Tenant, Rep. Temp. Hard., 339, the Defendant said, ""Robert 
Carpenter was in Winchester jail, and tried for his life, and would have been 
hanged had it not been for Liggett, for breaking open the granary of Parmer A. 
and stealing his bacon."

In Gainsford v. Tuke, Cro. Jac. 536, the words were, "Thou wast in Lancaster 
jail for coining," The Plaintiff replied, "If I was there, I answered it well 
enough." "Yea," said the Defendant, "you were burnt in the hand for it."

In Boston v. Tatham, Cro. Jac, 622, the action was brought for saying, the 
Plaintiff was a thief and had stolen the Defendant's gold. It was contended in 
arrest of judgment, that the words not being certain as to time, they might be 
taken to refer to the time of Queen Elizabeth, since which there had been 
divers general pardons, in which case no loss could happen from the scandal. 
But the Court said, it is a great scandal to be once a thief; and that 
although a pardon may discharge the punishment, yet the scandal of the offence 
remains.

In neither of the preceding cases, could the Plaintiff have been liable to a 
future prosecution: for in one he had been pardoned, in another acquitted, and 
in another punished. And in Boston v. Tatham, the Court expressed an opinion, 
that even allowing that the words fixed the offense to a period, since which 
the liability to the punishment must have been discharged by a general pardon, 
yet that the words were actionable, as the scandal of the offense remained. 
The same doctrine has been affirmed in the Supreme Court of New York, where it 
was held that an action of slander would be for charging the Plaintiff with a 
crime committed in another State, although the Plaintiff would not be amenable 
to justify in the State where the words were spoken. 14 Johns, 234.

I am very clearly of opinion that the words laid in this declaration, 
accompanied with the proof made in the case, that they imputed a crime 
amounting to larceny in Virginia, are actionable; and consequently that the 
Plaintiff is entitled to judgment.

Henderson, Judge: I concur in the opinion delivered by the Chief Justice. The 
gravaman in an action of slander is social degradation. The risk of 
punishment, and the rule to test the question whether the words be or be not 
actionable, to-wit: does the charge impute an infamous crime, is resorted to, 
to ascertain the fact, whether it be a social degradation, and not whether the 
risk of punishment be incurred. And this rule is the test of that; for those 
who are punished for infamous crimes are degraded from their rank as citizens, 
they lose their privileges as freemen, their liberam legem, and are no longer 
boni et legales homines. No other degradation will give an action, for no 
other degradation is a social loss; and it matters not where the offense be 
charged to be committed, or what may be the laws of a foreign country, where 
the act is charged to have been done. The words were spoken here of a man 
under the protection of our law. The gravaman is the loss of character here 
and the transaction shall be judged of by our law, the lex loci.

The cases (which are numerous in our books) where the words impute a crime, 
and at the same time state a pardon or acquittal, fully prove that the 
degradation, and not the danger of punishment, is the basis of actions of 
slander. This ground is also fortified by the precedents. The complaint there, 
is always for loss of character, and not the danger of punishment; nor is it 
ever charged that the Defendant alleged the criminal act to be committed in 
this or any other particular government; only that the words were spoken at 
some place within the jurisdiction of the Court, merely to give a venue for 
their trial, it denied. And it is a maxim, founded on common sense, that you 
need not prove more than you ought to state; but you must prove every thing 
which you ought to state: for the pleadings are nothing but the alleged legal 
facts. As it is not required to be stated that the Defendant imputed the 
commission of a crime within the government, it is not required to be proven. 
It is, therefore quite an immaterial circumstance. I am of opinion that 
judgment should be given for the Plaintiff.

Hall, Judge, contra: No special damage is charged to have been the consequence 
of speaking the words charged in the declaration: they must therefore, be 
words actionable in themselves, or the Plaintiff is not entitled to judgment, 
although the evidence on the trial established facts, which, had they been 
inserted in the declaration, would have clearly made out his case.

Words, in themselves actionable, are such as would, if true, bring a man into 
danger of legal punishment. At Common Law, to charge a man with stealing 
bonds, bills, notes, &c. which concern choses in action, was not actionable, 
because they were such goods that larceny could not be committed of them. In 
this State, the Common Law continued unaltered in that respect until the act 
of 1811, ch. 11, was passed, which act declares the stealing of bonds, bill, 
notes, &c. to be a felony. Since the passage of that act, it is as actionable 
to charge a person with stealing that species of property as any other.

In England, formerly, to charge a person with being guilty of an act of 
witchcraft, was to charge him with a capital crime: but since it has been 
declared by statute to be no offense, to make that charge against an 
individual is not actionable.

In the present case, the Plaintiff is charged with having stolen the note in 
the State of Virginia; but whether or not the stealing of a note in that State 
was an offense or not, the declaration does not set forth. If the Legislature 
of that State have passed no law making it an offense to steal a note, to 
charge a person with stealing one is not actionable. If there be such a law, 
it ought to have been stated in the declaration. The Court ex officio cannot 
take notice of it. 1 Chitty's Pleadings, 221, and the cases there cited. 

It matters not that that fact was proved on the trial: Whether the Plaintiff 
has a good cause of action or not, must appear from a view of his declaration.


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