The payee of a negotiable note wrote and signed his name to the following

words upon the back thereof : M. Adams the within note." indorser.

A

I this day sold and delivered to Catherine
Held, that he was liable as an ordinary

SSUMPSIT against the defendant, Blethen, as indorser of a negotiable promissory note payable to his order and by him transferred to the plaintiff, as stated in the opinion. At the trial the presiding judge ruled as matter of law that under the indorsement upon the face of the paper the defendant was not liable as an indorser, and excluded evidence offered by the plaintiff that the agreement between the parties was that the defendant should be liable.

After the evidence was out, the action was withdrawn from the jury and submitted to the law court. If the action was maintainable, it was to stand for trial; if not, the plaintiff to be nonsuited.

J. C. Madigan & J. P. Donworth, with whom were W. M. Robinson & J. B. Hutchinson, for plaintiff.

L. Powers, for defendant.

Wing v. Wing.

PETERS, J. The defendant, payee of a negotiable note, signed his name on the back of it under these words: "I this day sold and delivered to Catharine M. Adams (plaintiff) the within note." We think that the defendant thereby assumed all the liabilities of an ordinary indorsement of the note. No word in the writing indorsed upon the note negatives or qualifies such an idea. The liabilities implied by indorsing a note can be qualified or restricted only by express terms. Here the only restriction is, that the indorsement is made special to Catharine M. Adams. The defendant declares that he sold and delivered the note. Every indorser of a bill or note impliedly says the same thing by his indorsement. The defendant did sell and deliver the note, and by making that declaration over his name on the back of it he also agreed to pay the note to the plaintiff according to its tenor, upon seasonable notice, if the maker did not pay it. His contract is in part expressed and in part implied. Any indorser of a note may be properly styled a seller of the note by him indorsed.

The counsel for the defendant contends that, inasmuch as a complete contract of mere sale is set out in express terms, no more than a sale can be implied. But implied undertakings are annexed to many written contracts, and especially to those declared in short and imperfect terms. The warranty of title to a thing sold is rarely expressed, but usually implied, in a written contract of sale. Many illustrations of the principle could be given.

There is evidently some error in the report or the testimony, about the date of the demand and notice claimed to be proved by the plaintiff, which can be corrected upon a new hearing.

The action to stand for trial.

WING V. WING.

(66 Me. 62.)

Slander-words imputing trespass on real estate.

The words "A stole windows from B's house" are not in their ordinary sense actionable as imputing either larceny or an act of malicious trespass upon real estate.

Wing v. Wing.

A

CTION on the case for slander in uttering the words set forth in the opinions. The defendant demurred to the declaration and the demurrer being sustained, the plaintiff excepted.

I. W. Davis, for plaintiff.

L. Barker & L. A. Barker, for defendant.

PETERS, J. The words alleged to be actionable are: "Almon Wing stole windows from Benjamin Jordan's house." There being no special averments, it is to be presumed that the words were used in their ordinary and popular sense. The plaintiff impliedly so avers, there being no express averment to the contrary. That is one rule of construction. Another rule is that all the words spoken, so far as necessary to ascertain the meaning of the person who utters them, must be considered together. The sense of actionable words may be so far qualified by subsequent words spoken in the same connection, that the words taken together are not actionable. Therefore, if a person is charged with stealing, under such circumstances as show that a felony was not capable of being committed, the words are not to be regarded as actionable. Among the illustrations of this rule is the familiar one found in the books, and stated in Bac. Abr. (Title Slander) in this way: "If J. S. say to J. N., 'thou art a thief, and hast stolen my trees,' no action lies, it appearing from the latter words, that the whole words only import a charge of a trespass." Allen v. Hillman, 12 Pick. 101; Dunnell v. Fiske, 11 Metc. 551; Edgerley v. Swain, 32 N. H. 478. See, also, numerous cases cited in note to the case of Brooker v. Coffin, 1 Am. Lead. Cases, 76.

Tested by these rules, our opinion is, that the words uttered by the defendant do not impute the crime of larceny, but amount to an accusation of only a trespass upon real estate. The meaning conveyed by the words is at least doubtful. They may be susceptible of different constructions, perhaps. But words cannot be regarded, upon demurrer to the declaration, as actionable, unless they can be interpreted as such, with at least a reasonable certainty. In case of uncertainty as to the meaning of expressions of which a plaintiff complains, the rule requires him to make the meaning certain by means of certain colloquium and averment. It is always within his power to do so. Robinson v. Keyser, 22 N. H. 323; Emery v. Prescott, 54 Me. 389.

Wing v. Wing.

"Windows" are, strictly, a part of a house, and ordinarily affixed permanently thereto. If the defendant had intended to charge a theft of windows which were not a part of a house, the form of expression would more naturally have been, that the plaintiff "stole Benjamin Jordan's windows;" or, "windows from Benjamin Jordan." The fact that they were stolen at his house would seem to be rather an immaterial fact, to be so emphatically stated. If any other word implying violence or force is substituted for the word "stole," the words complained of could not be tortured into an interpretation such as the plaintiff contends should be ascribed to them. Haynes v. Haynes, 23 Me. 247.

But the plaintiff maintains that, if the words do not impute the crime of larceny, they do impute at least the charge of a criminal act of trespass upon real estate, such as is described in the malicious mischief act, found in R. S., ch. 127, § 15; and that, in that view, the words are actionable. Whether it would be actionable in this State, to accuse a person of malicious trespass, we do not now decide. That might raise the question as to what offenses involve moral turpitude, social ostracism and disgrace. Upon that point the authorities disagree. There is a wilderness of cases upon the subject through which no beaten or well-defined track can be traced. In Indiana, such a charge is actionable. Wilcox v. Edwards, 5 Blackf, 183. In Pennsylvania, under a similar statute, it is not actionable. Stitzell v. Reynolds, 67 Penn. St. 54. (See in this connection, the contradictory cases of Buck v. Hersey, 31 Me. 558, and Brown v. Nickerson, 5 Gray, 1.) As to what words are actionable and what are not actionable, no marked rule has as yet been laid down, perhaps, in this State; and we do not feel called upon to pursue the discussion in the present case, because the words used here are not, in our judgment, appropriate, in their natural and popular sense, to convey the idea, that the plaintiff has "maliciously and willfully" injured anybody's real estate. It is difficult for us who know nothing of the subject-matter more than is indicated by the words themselves, to understand what they do mean. It would rather seem that they were used in an exaggerated and rhetorical sense than in any other way, to express a forcible act done under some controverted claim of possession or ownership in the property alluded to. To constitute a "malicious and willful" injury to a building it is not

Meader v. White.

enough that the injury was willful and intentional; but, in order to create the criminal offense, it must have been done out of cruelty, hostility or revenge. 4 Bl. Com. 244; Commonwealth v Walden, 3 Cush. 558; Commonwealth v. Williams, 110 Mass. 401; State v. Hussey, 60 Me. 410. Here nothing more is clearly implied than that a forcible trespass was committed. The word "stole" would rather imply that the windows were carried away for purposes of value and gain, and not that they were severed from the house, in order revengefully to inflict an injury upon the owner. Commonwealth v. Gibney, 2 Allen, 150.

Exceptions overruled.

MEADER V. WHITE.

(66 Me. 90.)

Sunday-action for money loaned on.

An action cannot be maintained to recover money loaned on the Lord's day.

A

SSUMPSIT for money loaned by the plaintiff to the defendant on a Sunday. By agreement of the parties the case was submitted to the law court.

V. A. Sprague & M. Sprague, for plaintiff.

J. Crosby, for defendant.

APPLETON, C. J. The defendant borrowed of the plaintiff nine dollars on the Lord's day. Had he given his note for this sum, its collection could not have been enforced because of the statute forbidding secular business on that day. Whether the. omise to repay is evidenced by a written memorandum or by a verbal promise, or rests upon an implied one, the same result must follow. The contract was illegal because made on a day when the making of contracts is forbidden, and the plaintiff cannot claim through an act prohibited by the statute. Finn v. Donahue, 35 Conn. 216; Plaisted v. Palmer, 63 Me. 576.

The moral obligation to repay money loaned is the same, whether the loan be made on one day or on another. It is an unfortunate