Penniman v. Fiske

Cal. District Court

Penniman v. Fiske

1 Cal. Dist. Ct. 5

DecidedApril 15, 1857

StatusPublished

This text of 1 Cal. Dist. Ct. 5 (Penniman v. Fiske) is published on Counsel Stack Legal Research, covering California District Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Penniman v. Fiske, 1 Cal. Dist. Ct. 5 (Cal. Super. Ct. 1857).

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Opinion

The second count of the complaint averred that defendant had said of the plaintiff that, “ he would steal,” and alleged the inuendo' that plaintiff had been guilty of larceny.

Judge Norton held that the above words were not, per se, actionable inasmuch as they did not fix the crime of larceny, but merely intimated that the plaintiff was not too good to steal, or would steal if he had a chance.

It differs materially from the case wherein the actionable words were : “ The plaintiff will steal, and I can prove it.” These words, "I can prove it,” inferred a commission of such larceny, inasmuch as there was proof to the act; hut, in the present case, the allegation inferred a mere conjecture, and, as such, was not actionable.

Demurrer sustained with leave to amend.

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The second count of the complaint averred that defendant had said of the plaintiff that, “ he would steal,” and alleged the inuendo' that plaintiff had been guilty of larceny.

Judge Norton held that the above words were not, per se, actionable inasmuch as they did not fix the crime of larceny, but merely intimated that the plaintiff was not too good to steal, or would steal if he had a chance.

It differs materially from the case wherein the actionable words were : “ The plaintiff will steal, and I can prove it.” These words, "I can prove it,” inferred a commission of such larceny, inasmuch as there was proof to the act; hut, in the present case, the allegation inferred a mere conjecture, and, as such, was not actionable.

Demurrer sustained with leave to amend.

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Bluebook (online)

1 Cal. Dist. Ct. 5, Counsel Stack Legal Research, https://law.counselstack.com/opinion/penniman-v-fiske-caldistct-1857.