Penniman v. Fiske — 1 Cal. Dist. Ct. 5

Majority

p. 5

PENNIMAN vs. FISKE.

Twelfth Judicial District Court,

April, 1857.

Headnote

Slander.

The words, “he would steal,” are not, per se, actionable.

Demurrer to second count of the complaint.

Q-. F. $ W H. ¡Sharp, for plaintiff.

Crockett $ Page, for defendant.

The second count of the complaint averred that defendant had said of the plaintiff that, “ he would steal,” and alleged the inuendo' that plaintiff had been guilty of larceny.

Judge Norton held that the above words were not, per se, actionable inasmuch as they did not fix the crime of larceny, but merely intimated that the plaintiff was not too good to steal, or would steal if he had a chance.

It differs materially from the case wherein the actionable words were : “ The plaintiff will steal, and I can prove it.” These words, "I can prove it,” inferred a commission of such larceny, inasmuch as there was proof to the act; hut, in the present case, the allegation inferred a mere conjecture, and, as such, was not actionable.

Demurrer sustained with leave to amend.