Van Epps v. Jones

McCay, Judge.

1. Without doubt a Notary is liable for any damage caused by his failure properly to perform the duty- he undertakes, and this action would not be demurrable if it alleged that any damage flowed from the failure of the Notary to present the draft. The damage alleged, the cost of protest, the plaintiff was not bound to pay. There is no allegation that the draft was protestable paper, payable at bank, and if not protestable paper, the plaintiff paid it when he was not liable to do so : 30 Georgia, 271; 29 Ibid., 259. But this does not pretend to be an action for neglect of the Notary to present the draft, it claims damages because the draft was protested — because the defendant falsely stated in the protest that he had presented it to the plaintiff, and that payment was refused. It is essentially an action for injury to reputation, by slander or libel. It does not set forth words imputing a crime punishable by law, or with having a contagious disorder, or of be *241 ing guilty of some debasing act which may exclude from society. Any such charge, under our Code, is actionable per se : Revised Code, section 2926. The only other charge actionable per se, under the Code, is “ a charge made in reference to one’s trade, office or profession, calculated to injure him therein.” It is upon this that the declaration is claimed to be sustainable. The defect in the declaration is, that it does not charge that the words were used in reference to the plaintiff’s profession. The statute is positive, that they must be so spoken or made. Nor is there anything in the declaration from which it can be fairly inferred tlfat the charge was made in reference to plaintiff’s profession. It is not enough that defendant knew he was a lawyer. Can it be contended that it is actionable to say of a lawyer that he will not pay his debts, much less a particular debt ? I am not sure that it would be actionable to say of a lawyer, falsely, that he would not pay some particular money collected by him as a lawyer, or that it would be actionable to say of a blacksmith, untruly, that he had burned a certain horse in shoeing him. The authorities indicate that the charge must be of something that affects his character generally in his trade. A particular act may or may not do this, and the matter would depend on the colloqimi. But the authorities are uniform that the words must be charged to have been used in reference to one’s' trade or profession. The speaker must have had the trade or profession of the plaintiff in view, and utter the words in reference to it, as if he should say of a grocery merchant, he keeps false weights, or of a lawyer, that he won’t pay his clients the money he collects for them : Starkie on Slander, 109, 126. It would be entirely a new ground of action to hold that it was actionable to utter of a lawyer that he refused to pay a particular debt, there being nothing in the words or in the colloqium to indicate that the speaker was alluding to him as a lawyer. Such a rule would put lawyers on a vantage ground that the law has not put them on : See Starkie on Slander, 109, 126.

2. "We affirm the judgment, because it is not charged that *242 the words were used with reference to the plaintiff’s profession ; and on the further ground, that as this allegation is not made, and the case must stand as though plaintiff were not a lawyer; there is no allegation of any special damage flowing naturally from defendant’s words.

Judgment affirmed.