tiff fails to show that the words alleged In the state of New York, however, impute any criminal offence to plaintiff words imputing unchastity to a female for which she can be indited and pun-are now actionable per se. (See laws of ished. 1871, ch. 219.)

66

Still the plaintiff contends that even Still the plaintiff suggests that the if the words alleged do not impute any averment that she has been damcriminal offence to her, they are never-aged and injured in her name and theless actionable, per se, because the fame" is sufficient, in connection with misconduct they do impute is deroga- the words charged, to entitle her tory to her character and highly injurious to her social standing.

to recover as in an action of slander for defamatory words with averment of special damage.

Unwritten words are held by all the modern authorities not actionable in Special damage is a term which dethemselves, even if they impute immoral notes a claim for the natural and prox conduct to the party, unless the mis-imate consequences of a wrongful act, conduct imputed amounts to a criminal and it is undoubtedly true that the offence for which the party may be indicted and punished.

plaintiff in such a case may recover for defain itory words spoken of him or her by the defendant, even though the words are not in themselves actionable, if the declaration sets forth such a claim in due form and the allegation is sus tained by sufficient evidence; but the claim must be specifically set forth in order that the defendant may be duly

Judge Spencer, in Van Ness v. Hamilton, 19 Johns. 367, says that in respect to words spoken, the words must either have produced a temporal loss to the plaintiff by reason of special damage sustained from their being spoken, or they must convey a charge of some act criminal in itself, and indictable as such, notified of its nature, and that the and subjecting the party to an infa- court may have the means to determine mous punishment, or they must impute whether the alleged special damage is some indictable offence involving moral the natural and proximate consequence turpitude. of the alleged defamatory words. Defamatory words, to be actionable, The special damage must be alleged per se, must impute a crime involving in the declaration and proved, and it is moral turpitude. It is not enough that not sufficient to allege that the plaintiff they impute immorality or moral dere-" has been damaged and injured in her liction merely, but the offence charged name and fame." must be also i dictable.

Verbal reflections upon the chastity of an unmarried female are not actionable, unless they have prevented her from marrying, or have been accompanied by special damage. (2 Bl. Com. 125 n. 6 ; Janson v. Stuart, 1 Term, 784.)

It is clear that the proposition of the plaintiff that the words alleged are in themselves actionable, cannot be sustained.

It is clear that the decision of the court below, that the declaration is bad in substance, is correct. Judgment affirmed.

|respts.

Decided April, 1876. Accommodation endorsers are not esstopped from interposing defence of usury, although the maker has executed a writing which estops him. Referee's findings on questions of fact are conclusive.

Appeal from a judgment in favor of two defendants.

Decided January, 1876.

Where a party is in actual possession of property which he holds under a deed of trust it is necessary to show fraud or mistake to impeach his title.

This action was brought to recover the possession of two bonds of $500 each.

In March, 1871, one R. was the ownner of the two bonds in suit, and sold and delivered them to plaintiff in consideration of which plaintiff undertook to pay, take up, and deliver to R. his, (R's) note which had been given by him to one F.

This action was on a promissory note. Two of the defendants were accommodation endorsers; one, C., was the maker. C. had transferred note to plaintiff and at a greater discount than seven per cent., and had by a writing estopped himself from interposing defense of The said note was afterwards taken usury. The two endorsers interposed up and delivered by plaintiff to R. the defence of usury, and the referee Plaintiff at this time was agent for F. on all the facts gave judgment for the and indebted to him. two endorsers, on the ground of usury. James R. Cox, for applt. Wood & Rathbone, for respts: Held, That the endorsers are in no way affected by the agreement which estops the maker of the note from interposing the defence of usury, and their defence is the same as if they had been sued alone.

That where the evidence is sufficient to warrant a verdict when standing alone, the appellate court is not at liberty to overturn the verdict, for the reason that there was counter testimony, even if it be apparently equal in point of weight. The rule in relation to the decision of a referee is the same as the verdict of a jury, and in case of conflicting evidence is conclusive as to a question of fact.

Judgment affirmed.

After plaintiff got the bonds he put them in a drawer in a safe where he kept his private papers, and in May, 1871, went to Europe, leaving them there.

The defendant claims title under an instrument in writing from F. in the nature of a deed of trust, dated in October, 1868.

On his return from Europe plaintiff endeavored to get possession of these bonds but could not find them.

When the bonds were delivered to plaintiff he claims they were endorsed in blank. On the trial these blanks were filled in with the name of F.

F., at the time of the trial, was dead. The court ordered a verdict for the defendant.

Brown & Hadden for defendant. Geo. B. Bradley for plaintiff. Held, Upon the bonds in controversy in this action the title thereto was in Joseph Fellows, and passed by the deed in trust from him to the defendant.

The bonds are payable to the order of the Treasurer of the Utica Horse

The case was not so clearly with the R. Company pay to the order of Joseph plaintiff, we think, as to render it propFellows the within bond and the cou-er to direct a verdict in his favor. pons attached, as they severally become

fendant, after the execution to him of N. Y. SUPREME COURT. GENERAL TERM.

Besides, Fellows was a man of large wealth, and might purchase, and own Plaintiff (then defendant) was such bonds, and the notes were given strained by injunction from selling his for property sold by him; while Hill ug store, and, to relieve him from

Held, That it was the clear intent of the agreement between the parties when the portion of the $5,000 was re tained, that the balance should be held mand is made therefor, the policy of inas security for liabi.ity on bond for al-surance shall be null and void until the assessment is paid. imony, and that some of the bonds deposited by defendant under an order of the court having been sold, exceeding in amount the note of defendant, the defendant may interpose such sale of his bonds as an offset to the note in

for plaintiff's benefit and as payment of $73, and remained unpaid until January, 1872, when defendant in error gave days to the agents of the company, and his note for that amount payable in 15 received from them the receipts for said assessments.

but he told the agent that one G., who owed him money, would take up the note. The agent said he would see G. and defendant in error hearing nothing more of the matter, supposed the note had been paid by G.

This note was not paid when due, leged, that he gave due notice thereof to the company, that his assessments had been paid either by cash or notes, that his proposition to surrender the policy had not been accepted by the company and the same cancelled; that then he was entitled to recover the sum of $1,000 with interest from a date three months after proof of loss.

Subsequently he sent his policy to the agent requesting that it be cancelled, but received no reply until June 1, 1872, when he received notice of another assessment. This assessment was not paid.

He refused to charge that the plaintiff below must prove payment of the note.

He refused to charge that plaintiff below having failed to pay his note, did not pay the assessments for which it was given, unless the jury found that the company did not accept the note in payment of the assessments. He also refused

to charge that

The premises insured were destroyed by fire June 15, 1872. At this time the agents had in their possession the promissory note given in January, and the company had possession of the premium note and the policy, which had been marked cancelled upon its receipt. by them. Defendant in error inform-after surrender of the policy it was Idead until revived by payment of the ed the agents of the loss on the following day, and ɔn July 8, mailed a writ-unpaid note, unless the jury found from all the evidence that the company ten notice of loss to the Secretary, and forwarded proofs of loss on the 12th of accepted the proposition of plaintiff be low to surrender his policy. July.

Upon the trial below the Court, (Handley, J.) charged the jury as fol

lows:

1. That there was sufficient dence to go to the jury upon the tion of notice of the fire.

He also refu ed to charge that the plaintiff below did not give notice fort!with of the fire, but 23 days after, evi-and that twenty-three days are too late; but said that there was evidence that the notice of loss was given within the meaning of the law.

ques

2. That plaintiff's policy was in force until his proposition to give up his premium note and bank note and papers, and cancel the same, were accept ed by the company, and notice thereof given to him.

3. That the negotiable note given for assessments was payment of the same, if so intended and treated by the parties at the time, and that the jury might find from the evidence if said. note was received as a payment.

4. That if the jury found that the premises were burned at the time al

The jury gave a verdict for plaintiff for the full amount claimed, and judg ment was rendered thereon, to which defendant below took this writ of error, assigning for error the above mentioned charge and refusals to charge.

Held, There was evidence before the jury on all these points, which was submitted with proper instructions.

Judgment affirmed.
Per curiam opinion.