McCuen adsm. Ludlum. mere political reasons, to annex an infamous punishment to an act, in itself innocent or indifferent, I do not think that charging a man with the commission of that act, would be actionable, unless special damages ensued. Nor on the other hand, if the words import an act, malum in se, are they always actionable on that account. An assault and battery is malum in se, and may subject a man to fine and imprisonment, and yet it was never supposed that an action would lie for charging a man with having committed an assault and battery. The rule perhaps is as well laid down by Spencer, Chief Justice, in Vanness v. Hamilton, 19 Johns. 367, as in any case to be found. He says, "the words must either have produced a temporal loss to the plaintiff, by reason of special damage sustained by their having been spoken, or they must convey a charge of some act, criminal in itself, and indictable as such, and subjecting the party to an infamous punishment: or, they must impute some indictable offence, involving moral turpitude." I think there should be judgment for defendant on demurrer. DAYTON, J. It is a matter of some surprise, that at this day, there should remain so much uncertainty in the books, as to what class of words are, and what are not, in themselves slanderous. Some of the old cases hold that to charge a person with an indictable offence, is slanderous; but this clearly cannot be the true test. It is no slander to say of a man that he has committed an assault and battery. And so we may charge the commission of many other offences indictable as well at common law as by statute, and yet incur no legal liability. There is perhaps no rule more just and reasonable than that laid down in Brooker v. Coffin, 5 John. R. 188, and I am inclined to adopt it, though its application may make the same words (a charge of fornication) slanderous under our statute, which were not in that case, so considered, under the New York act.) The court in that case, say in substance, that the decisions are so loose and contradictory, as to afford no distinct rule; and that they therefore, upon the fullest consideration, adopt this rule as the safest, and one warranted as they think, by the cases. "In case the charge if true, will subject the party charged, to any indictment for a crime involving moral turpitude, or subject him to an infamous punVOL. II. B McCuen adsm. Ludlum. ishment, then the words will be in themselves, actionable." This is a limitation of the rule as laid down in some of the cases, but I fully concur in a remark of Justice Gibson, who says, (3 Serjt. & R. 255,) the distinction laid down in this case, in New York, appears to be a sound one, and to be founded in reason and good sense. I am aware that there are modern cases, which lay down the rule in broader terms: as in Miller v. Parish, 8 Pick. Mass. R. 384, where it is held that words are actionable, if they charge an offence, which if proved, may subject the party to a punishment, though not ignominious, but which brings disgrace upon the party falsely accused. This is the opinion of a very enlightened court, but whatever may have been its justice, as applied to the words then under consideration (a charge of fornication) I cannot help thinking that as a general rule, it lacks limit and precision. The words ignominious or infamous punishment, have a known and definite meaning in the law. Mutilation, whipping, branding, pillory, hard labor in the House of correction, or otherwise, and the stocks, are of this character; 1 Chitty C. L. 600: 4 Black. 377: but what species of offence or punishment, brings "disgrace" with it, may vary according to the judgments of those who pass upon the question. Cudgel-play, fisticuff, and duelling, are disgraceful in the eyes of some, though honorable in the eyes of others. So a punishment for one of these offences, by imprisonment merely, may and in most cases does in the eye of the world, bring disgrace" with it, though it is not legally "infamous." The rule adopted in New York, is expressed with precision. The offence charged must be a crime, involving moral turpitude, or subject to infamous punishment. 66 By the 16th section of the act of Congress, entitled "An act to establish the Post Office and Post Roads within the United States," 3 Vol. U. States L. 50, it is enacted, "That if any person employed in any of the Departments of the general Post Office, shall unlawfully detain, delay or open any letter, &c., with which he shall be entrusted, or which shall have come to his possession and which are entitled to be conveyed by post, &c., Every such offender. being thereof duly convicted, shall for every such offence, be fined not exceeding three hundred dollars, or imprisoned not exceeding six months, or both, according to the McCuen adsm, Ludlum. circumstances and aggravations of the offence." This act makes it criminal in a Postmaster to delay, detain or open a letter unlawfully, &c. Admitting for the sake of the argument merely, that a false and malicious charge that the plaintiff opened the defendants' letters, is tantamount to a charge that he opened them unlawfully, was there necessarily any moral turpitude in the act? I think not. The charge does not necessarily imply that it was done with an immoral intent, with a design to commit a fraud or criminal wrong to the party. It may have been from an impertinent curiosity, or some other unworthy, though not criminal motive; and if so, there was no moral turpitude in the act. It was the essence of meanness, but its perpetrator like an eaves-dropper, and such like contemptible offenders, violated not a moral duty, but one of the proprieties of conventional life. But it is said that these words were used by the defendant, in reference to the plaintiff, in his office of Postmaster, a place of profit and emolument, and are therefore slanderous. It is true that many words which are not slanderous when applied to private persons, become so, when applied to them in their official character; but then the words must impute a defect of understanding, ability or integrity, to make them so; 1 Salk. 695; B. N. P. 4; Holt on L. 208; 3 Black. 123; N, 14. As to say of a person in a judicial office, "he is but a half-eared justice, he will hear but one side," Cro. Car. 223; or of a person in an office of trust, "he is a corrupt man," Cro. Jac. 65; of a church warden, "he is a knave and hath cheated the parish of twenty pounds," Carter 1. Had the defendant charged that the plaintiff had broken open. his letters, with some fraudulent intent, or corrupt design, it would have imputed a want of integrity, and been actionable: but the naked charge that the plaintiff, being Post Master, &c., had broken open his letters, does not, ex vi termini, impute any thing of the kind. A seal, to every man of proper feelings, is little less than a sacred thing; but it derives its character not from force of public honesty, but public honor; which has always protected it in every age and country. It is no more a breach of integrity, to open a letter and inspect its contents from an impertinent curiosity, than it would be to open the door of a The State v. Bidleman. house, and from the same motive, conceal one's self within earshot of a private conversation. Both acts would be excessively mean, but neither, could properly be called dishonest. The first count is bad and judgment must be rendered for the defendant on demurrer. FORD, J. and NEVIUS, J. concurred. Judgment for defendant, on demurrer. CITED in Johnson v. Shields, 1 Dutcher THE STATE v. BIDLEMAN. Certiorari to Hunterdon Quarter Sessions. An appeal from an order of filiation, is in the nature of a new trial, and the onus probandi rests upon the respondents, and not on the appellant. An order of filiation made upon the complaint of overseers of the poor, of a different county and township from that in which the child was born, is void. Mr. Saxton, for the defendant. Mr. Wurts, for the State. The opinion of the Court, was delivered by HORNBLOWER, CH. J. On the twenty-fourth of January, 1837, two Justices of the Peace of the county of Hunterdon, made an order of filiation, &c. on Bidleman for the support of a female bastard child of Sarah Ann Cady. On the 26th of April following, the defendant entered into recognizance with security, before a Justice of the Peace, with condition that the defendant should perform said order, or appear before the next Sessions, The State v. Bidleman. &c. In the Term of August, 1837, of the Hunterdon Sessions, the counsel for the defendant moved that the hearing of the appeal from said Order, should come on, whereupon the counsel for the overseers of the poor, produced and read to the Court, the following documents, viz: 1. The order of filiation and maintenance aforesaid. 2. A warrant issued by a Justice of the peace, for the apprehension of Bidleman. 3. The affidavit of Jonathan Parker. 4. A warrant against Bidleman, issued by two Justices of the Peace, for not complying with the Order aforesaid; and 5th. A recognizance entered into by the defendant and his surety, to perform the order or personally to appear at the Sessions, &c. Having read these several documents, the counsel for the Township rested, and called upon the defendant to proceed by evidence to shew that the order ought not to have been made, &c: This the defendant declined doing; and moved the Court to quash the order for the want of evidence to support it; but after argument, the Court being of opinion that the onus probandi, lay upon the appellant, and that the order, must prevail until it was overturned by evidence, or by cause shewn on his part, refused his motion, and affirmed the order in all things., Subsequently, and before this Certiorari was allowed, the counsel in behalf of the township, in pursuance of an order of Sessions for that purpose, proceeded by writ of scire facias in the name of the Attorney General, against the defendant and his surety, on the recognizance so as aforesaid entered into by them, but no judgment was entered upon the scire facias, before the allowance of this writ; and all further proceedings thereon, were afterwards stayed by an order of this Court. By this Certiorari, as well the order of filiation, the recognizance and the order of Sessions, as the proceedings on scire facias are brought before this Court, and various reasons have been assigned for quashing the orders and setting aside all the proceedings. The Sessions undoubtedly committed an error, in affirming the order of filiation without proof. An appeal from such an order, is in the nature of a new trial; but it would be of little use to the appellant, to have such new trial, if it was only to afford him an opportunity of giving negative evidence that he was |