been a partaker in the crime. We are of the opinion that the words were actionable per se."

In Holton v. Muzzy (Vt.) supra, it was said: "The third count we deem sufficient both in matter and form. . . . The words themselves, as properly explained by the innuendos, are actionable beyond all question. They clearly impute the crime of adultery."

In Page v. Merwin (Conn.) supra, it was held that as adultery was an offense involving moral turpitude, without regard to the punishment it carried with it, oral words imputing that offense were actionable per se. It was held in McDonald v. Nugent (Iowa) supra, that words constituting a charge of adultery against a man were actionable per se, as charging him with an indictable offense.

But in Wagaman v. Byers (1861) 17 Md. 183, it was held that where the offense of adultery is punishable merely by a pecuniary fine, words charging an adulterous act are not actionable per se.

Oral words charging adultery are actionable per se as when affecting or touching one in his occupation or calling. Lovejoy v. Whitcomb (1899) 174 Mass. 586, 55 N. E. 322. See also Ayre v. Craven (1834) 4 Nev. & M. K. B. (Eng.) 220; Lumby v. Allday (1831) 1 Cromp. & J. 301, 148 Eng. Reprint, 1434; Jones v. Jones [1916] 2 A. C. (Eng.) 481, 10 B. R. C. 511, Ann. Cas. 1917A, 1032-H. L.

In Ayre v. Craven (1834) 4 Nev. & M. K. B. (Eng.) 220, supra, words charging a physician with adultery were held not to be actionable in themselves, since they did not appear to affect him in his profession.

In Lumby v. Allday (1831) 1 Cromp. & J. 301, 148 Eng. Reprint, 1434, words charging a clerk of a gas company with unfitness for his position, by reason of his "conduct with whores," were held not to affect the plaintiff in his occupation so as to make them actionable per se.

And in Jones v. Jones (Eng.) supra, it was held that the imputation of adultery to a schoolmaster was not slanderous per se, as having been 55 A.L.R.-12.

spoken of him in the way of his call

ing.

In certain jurisdictions it has been held, under statutory provisions, that words which impute want of chastity to a man by charging either acts of adultery or fornication are slanderous per se. Nidever v. Hall (1885) 67 Cal. 79, 7 Pac. 136; Morris v. Barkley (1822) 1 Litt. (Ky.) 64; Philips v. Wiley (1822) 2 Litt. (Ky.) 153; Birch v. Benton (1858) 26 Mo. 153; Haynes v. Robertson (1915) 190 Mo. App. 156, 175 S. W. 290; Martinson v. Freeberg (1919) 44 N. D. 363, 175 N. W. 618. See also Hackett v. Brown (1871) 2 Heisk. (Tenn.) 264.

In Martinson v. Freeberg (1919) 44 N. D. 363, 175 N. W. 618, it was held that under a statute enlarging the common law, a slanderous imputation that a man had committed adultery was actionable per se.

A joint action of slander against two persons alleged to have uttered words imputing adultery or fornication will not lie. Glass v. Stewart (1823) 10 Serg. & R. (Pa.) 222.

Imputation of rape.

An oral charge of sexual immorality by a man, amounting to a charge of the crime of rape, has been held to be actionable per se. Dudley v. Nowill (1896) 11 App. Div. 203, 42 N. Y. Supp. 681; Williams v. McKee (1897) 98 Tenn. 139, 38 S. W. 730.

In Dudley v. Nowill (N. Y.) supra, it appeared that the defendant, in the presence of several persons, said: "Have you not heard the scandal about Dudley? He is the father of a child by a young girl not yet fifteen years old." It was held that the defamatory words constituted slander per se, as charging the crime of rape under the statutes. The court said: "The question presented, therefore, is whether the words alleged to have been used by the defendant were ac

tionable per se. For that purpose it was essential that they impute to the defendant the commission of crime. It is not necessary for the purposes of the action to state by way of innuendo the facts constituting the alleged crime with the precision requisite for

an indictment. It is sufficient that the crime is imputed to the plaintiff in the language which may ordinarily be employed in conversation to indicate its commission, so that those who hear the words used may clearly understand that the plaintiff is charged with the commission of crime.

The act of sexual intercourse constitutes the crime. The words as alleged have no doubtful or uncertain import.

It is not important for the purposes of the question that the punishment for the crime of rape in the second degree was not correctly understood or stated by the defendant. The act referred to was treated as a crime by him in the language used, and was reasonably so understood by those to whom it was addressed. . . For the purposes of the pleading, it must be assumed that the defendant intended to impute to the plaintiff the crime which the language used imports, and no allegation that he did so intend, or that the defamatory words spoken by him were so understood, is necessary to support of the averment of a cause of action. If what was said by the defendant on the occasion referred to was intended as a joke, and so understood by the hearers, that is a fact to be made to appear at the trial. No such inference arises, or can arise, upon the complaint for the purpose of determining its sufficiency as a pleading."

It has been held that a statement that a man "had torn every rag of clothes off of one of the nicest women in Wilson county" was a charge that he had been guilty of rape, and was actionable per se. Williams v. McKee (Tenn.) supra.

Imputation of bastardy.

To charge a man with having begotten a bastard child, or with having been arrested in bastardy proceedings, is not actionable per se, since bastardy is not a crime either at common law or by statute. Lumpkins v. Justice (1849) 1 Ind. 557; Erwin v. Dezell (1892) 64 Hun, 391, 19 N. Y. Supp. 784; Payne v. Thomas (1918) 176 N. C. 401, 97 S. E. 212.

Compare Holton v. Muzzy (1858) 30 Vt. 365, wherein words charging a married man with having begotten a bastard child were held to be actionable, on the ground that they imputed the crime of adultery.

In Payne v. Thomas (N. C.) supra, it was held that a charge that a man had a bastard child was not actionable per se, since bastardy was not an indictable offense, and did not carry with it infamous punishment.

In Erwin v. Dezell (1892) 64 Hun, 391, 19 N. Y. Supp. 784, it was said: "The words alleged to have been spoken accuse the plaintiff of having been arrested for bastardy, and of having paid $100 to settle it. Inferentially it may be supposed, although the complaint does not charge it, that the offense committed by the plaintiff was being the father of a bastard child. The words are not actionable per se. It is no crime under the laws of the state of New York. It is within the reach of those laws for the protection of the public, so that the child will not become a burden upon the public, or have to be supported at the public expense. For that purpose the process of arrest is allowed against the reputed father, and imprisonment may come, but only in the event that he fails to comply with the order of the court in regard to protecting the public."

But it was held in Demarest v. Haring (1826) 6 Cow. (N. Y.) 76, that a charge that a clergyman had become the father of a bastard child was actionable per se. The court said: "The words convey a direct charge of incontinency. It is familiar to all that words not actionable in themselves become so by being spoken of persons engaged in a particular calling or profession. I am decidedly in favor of holding words importing a charge of incontinency against a clergyman actionable."

Imputation of sodomy or bestiality.

Words imputing to a man the commission of an act of bestiality or sodomy have generally been regarded as actionable per se, for the reason that a charge of an offense of that charac

England. Poturite V. Barrel (1664) 1 Sid. 220, 82 Eng. Reprint, 1068; Collier v. Burrel (1668) 1 Sid. 373, 82 Eng. Reprint, 1165; Snell v. Webling (1675) 2 Lev. 150, 83 Eng. Reprint, 493; Woolnoth v. Meadows (1804) 5 East, 463, 102 Eng. Reprint, 1148; Coleman v. Goodwin (1782) 2 Barn. & C. 285, 107 Eng. Reprint, 389. Canada. Anonymous (1869) 29 U. C. Q. B. 456.

In Coleman v. Goodwin (Eng.) supra, wherein it appeared that the plaintiff had been charged with "sodomitical practices" with another man, the court held the words to be actionable on the ground that they imputed to the plaintiff the crime of "assault with intent to commit sodomy."

Where, however, bestiality or sodomy has not been declared a crime, and words imputing that offense have not been made actionable by state, to charge acts of that character is not actionable per se. Coburn v. Harwood (1822) 1 Minor (Ala.) 93, 12 Am. Dec. 37; Estes v. Carter (1860) 10 Iowa, 400; McKean v. Folden (1859) 2 Ohio Dec. Reprint, 248; Davis v. Brown (1875) 27 Ohio St. 326; Melvin v. Weiant (1880) 36 Ohio St. 184, 38 Am. Rep. 572.

Thus, in the case last cited, it was said: "The act . . . [sodomy] has never been declared a crime in Ohio. Nor has it ever been enacted that an imputation that a person is guilty of such act, however untrue and mali

cious, shall lay the foundation for an action of slander. It may be, and quite likely is, true that this want of statutory regulation upon the subject has resulted, in the one case, from a reluctance to believe that a human being could be found sufficiently depraved to perpetrate so foul an act; and, in the other, so reckless of another's rights as to charge the existence of such act, without the most undoubted proof of its truth. However this may be, the fact remains that no statutory regulation upon the subject exists, and from this it follows that the words set out in the petition are not in themselves actionable, and consequently, unaided as they are by matter showing special damage, lay no foundation for recovery."

Imputation of incest.

Incest has been held not to be an offense of which common-law courts will take cognizance, and therefore words imputing incestuous acts are actionable per se only when that offense is made a crime by statute. Eure v. Odom (1822) 9 N. C. (2 Hawks) 52; Palmer v. Solmes (1880) 30 U. C. C. P. 481; Palmer v. Solmes (1880) 45 U. C. Q. B. 15. See also Lumpkins v. Justice (1849) 1 Ind. 557; Guth v. Lubach (1881) 73 Wis. 131, 40 N. W. 681.

In Kentucky a charge of incest, falsely uttered, is made actionable per se by statute. See Morris v. Barkley (1822) 1 Litt. (Ky.) 64.

Knowledge of the consanguinity of the parties being an essential element of the crime of incest, it has been held that a declaration is defective which alleges that the defendant uttered words imputing an incestuous act, but fails to show an intention on the part of the defendant to impute knowledge of the relationship to the person with regard to whom the words were spoken. Lumpkins v. Justice (1849) 1 Ind. 557; Griggs v. Vickroy (1859) 12 Ind. 549; Rea v. Harrington (1886) 58 Vt. 181, 56 Am. Rep. 561, 2 Atl. 475. R. E. La G.

Plaintiffs recovered judgment against defendant in the sum of $400 for breach of contract for the sale of an automobile. Defendant sold to plaintiff May 8, 1924, an automobile for the sum of $1,685, upon which plaintiffs paid the sum of $585, and promised and agreed to pay defendant the balance as follows: $550 in thirty days and $550 in sixty days from that date, with interest on the deferred payments at the rate of 8 per cent per annum. Said sale was evidenced by a written contract in which plaintiffs unconditionally promised to pay said amount and by the terms of which defendant retained title to the car until the full purchase price should be paid. Plaintiffs failed to pay the

deferred installments and on the 16th day of July, 1924, defendant, "without any notice to plaintiffs, demanded the payment of the whole sum or return of said automobile to it and took possession of said abovedescribed automobile." The plaintiffs then state their grievance as follows: "That without any notice to plaintiffs, or without any proceedings in court or otherwise to foreclose the said contract, or the rights of plaintiffs in and to said automobile, and after defendant for a valuable consideration had agreed with the plaintiffs that, if plaintiffs paid to defendant the amount due it under said contract by the 10th day of September, 1924, the defendant would return said automobile to plaintiffs, the defendant, on or