Hemming v. Elliott

Alvey, C. J., delivered the opinion of the Court. This was a joint action brought by husband and wife for slander of the wife by the defendant. The several slanders complained of are alleged to have been spoken of the wife since her marriage, hut impute to her the want of chastity before marriage, and while she was a feme sole. The declaration contains five counts, charging slanders, of different dates.

The first count is for words charging the female plaintiff with having had a child just before she was married to her husband, and while she was a feme sole; and the other four counts proceed for words-that impute to the wife (in two of the counts, by explicit terms, and in two other counts by innuendoes,) the having had a negro child, or a child by a negro man, before she was married, and while a feme sole. The case was tried upon the general issue plea of not guilty, and after verdict for the plaintiffs, the defendant moved in arrest of judgment, 1st, for misjoinder of parties, and, 2nd, for misjoindeiof counts; and the Court below arrested the judgment, entered judgment for the defendant, and it is from that ruling that this appeal is taken. At the common law, it has been a long established doctrine, that no mere words of mouth, no matter how gross, imputing the want of chastity to a female, whether married or unmarried, will support an action for slander, without allegation and proof that such defamation has actually produced some special temporal damage to the object of the slander. This principle was founded in the fact that such imputation did not involve the charge of the commission of any crime punishable in the temporal Courts, hut only an offense cognizable in the spiritual Courts.

And this rule, though having its origin in a harsh and unrefined state of the law, has been recognized and acted upon by this Court upon more than one occasion, ¹⁹⁹ as it has been by other Courts of the highest authority. Stansfield vs. Boyer, 6 H. & J., 248 ; Wagamon vs. Byers, 17 Md., 183 ; Griffin vs. Moore, 43 Md., 246 ; Brooker vs. Coffin, 5 Johns., 188 ; Welby vs. Ebston, 8 C. B., 142; Lynch vs. Knight, 9 Ho. L. Cas., 577, 593. The injustice of this severe rule of the common law being felt, the Legislature of this State, in 1838, for the purpose of changing the rule to a certain extent, passed the Act, entitled “ An Act to protect the reputation of unmarried women,” and which has been embodied in the Code, as Article 89.

By the first section of this Article of the Code, it is provided that all words spoken maliciously touching the character or reputation for chastity of a feme sole, and tending to the injury thereof, shall he deemed slander in the Courts of this State. The . second section declares, that any such feme sole, whose character or reputation as a woman of chastity may he traduced or defamed by any person, may sustain an action of slander against such person ; and by the third section, if such feme sole be under the age of twenty-one years, she may maintain the action by her prochein ami. . But by the fourth section it is provided, that “ The husband of any female may prosecute and sustain an action of slander against any person for words maliciously spoken subsequent to the marriage of such female, touching the character or reputation for chastity of said female, previous to her marriage.” These are all the provisions of the statute that have been embodied in the Code, and they do not seem to provide for the case of a joint action by husband and wife for words spoken after the marriage, in respect to the want of chastity of the wife before marriage. The first three sections of the statute, having reference to slander uttered to the injury of unmarried women alone, do not apply to this case.

The words laid in each count of the declaration are laid as having been uttered ²⁰⁰ after the marriage of the plaintiffs, hut refer to or