We think that, for the reasons given by the Judge below, the rule for a new trial should be discharged.
Judgment aeeirmed..
Brady v. Wilson, 11 N.C. 93, 4 Hawks 93 (1825)
Dec. 1825
·
Supreme Court of North Carolina
11 N.C. 93, 4 Hawks 93
Brady v. Wilson.
From Moore.
It is not actionable to charge a man with burning an out-house not parcel of the dwelling-house.
This was an action of slander, tried below before Eup-pin, Judge. The declaration contained two counts; in the first, the words laid were, “ that Carrol Brady burned his, the defendant’s, dwelling-house;” in the second, the words were, “ that Carrol Brady burned his, the defendant’s, house.”
*94Upon the trial, there was no evidence given of defendant’s having spoken the words laid in the first count; but several witnesses testified, that they had heard defendant say “that Brady had burned three houses belonging to him (the defendant) in the night time.” The houses alluded to and described by the defendant, in the conversations with the witnesses, were erected on a piece of land belonging to the defendant, and situated about four miles from his residence; they were log-houses, on a small plantation, and had been occasionally occupied as a dwelling-house and kitchen by tenants, to whom the defendant; let the land from year to year; they were burned down in the night time, but had not in any manner been used during that year; the plantation was untenanted, and fences thrown down. In all the conversations, the defendant described the houses burned as is herein stated, or the witness (as defendant knew) was acquainted with the situation. To one of the witnesses, defendant said, that he believed Brady’s reason for burning the houses was, to get one Chavers as his tenant the next year, and prevent his living on defendant’s land.
On this evidence, defendant moved for a nonsuit; the Judge, however, submitted the case to the jury, with leave to the defendant, in case plaintiff had a verdict, to move to set it aside and enter a nonsuit, if the words w’ere not actionable. The jury found the defendant not guilty on the first count, but guilty on the second, and assessed damages to g5. Defendant moved for a nonsuit, and the Court ordered a nonsuit, on the ground that, although the acts charged upon the plaintiff might flow from a wicked and depraved heart, and involve great guilt in foro eoiiscientise, yet inasmuch as the words did not impute to him any felony or other crime, the temporal penalty of which would be legally infamous, the action at common law could not be supported. Thereupon, the plaintiff appealed to this Court.