Edwards v. . Howell , 32 N.C. 211 ( 1849 )

The plaintiff was a constable in the year 1843. In 1846 he was again appointed and acted as constable. The defendant, in 1846, speaking of the plaintiff, while acting as constable in 1843, said he had made a false return in returning an execution in the defendant's favor against one Roland, "no goods." To charge a constable with making a false return does not subject him to indictment for an offense of which the punishment is infamous; and the words are therefore not actionable, without proof of special damage, unless it falls under the third class of cases laid down in the books, as words which affect him in his office, profession or business, from which the law implies that some damage must necessarily be sustained, for it does not amount to perjury, although the return was false; the oath of an officer, although he is sworn, not being embraced within what the law terms a judicial oath, and not tending to defeat the administration of justice, which is necessary to constitute the crime of perjury, unless otherwise provided for by law. Starkie on Slander, 12. The only question, then, is whether the words spoken do amount to an imputation which affects him in his office, profession or business; and we think they do not, for the office which he held in 1843 had determined at the time the words were spoken, and the charge made in 1846, of what he had done in 1843, did not, as a natural consequence, affect him in the new office. In Herle v.Osgood, 1 Vent., the words were, "he was a debauched man and not fit to be a justice," and judgment was for the defendant, because the words were spoken of a time past, and Twysden,Judge, said it would have been otherwise if the words had been, "he is a debauched man." So, in this case, the words (213) do not impute misconduct in the office which he was then filling, but referred to a distant and different office, which he had filled in 1843. If any special damage had resulted to the plaintiff from the speaking of the words, as that, in consequence thereof, certain persons would not put papers in his hands for collection, he might upon such proof have sustained his action, if special damage had been laid. But the law will not imply damage, as a matter of course, unless the words charge an indictable offense, for which the punishment is infamous, or unless the words impute an infections disorder which he then had, or are such as affect him in the office, profession or business in which he is then engaged. The office in reference to which these words were spoken is not the same which the plaintiff was filling at the time of the speaking of the words, and as no special damage was proven we are not disposed to extend the law further than decided cases, for if every constable could sue in slander and recover damages, as a matter of course, whenever a charge was made that he had been negligent in his office, and made a return, "No goods," unless it could be proven that by proper diligence he could have found some cattle, hogs and sheep to levy upon, there would be no end to litigation.

PER CURIAM. Judgment affirmed.

Cited: McKee v. Wilson, 87 N.C. 302; Gattis v. Kilgo, 128 N.C. 424.

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