Commons v. Walters

1 Port. 377

Opinion

Ey Mr. Chief Justice Saffodd :

The present plaintiff brought an action of slander against; the defendant, in the Circuit Court. The declaration contains seven counts — two of which only, arc necessary to be particularly noticed. The first,, charges a colloquium by the defendant, of and concerning a proceeding which had been instituted by the plaintiff against this defendant, for the. purpose of having the latter recognized to keep the peace ; which complaint it is alleged liad been made before, and the proceedings had by, and in virtue of the authority of Thomas I,owe, a justice of the peace. The substance of the allegation in this count is, that the defendant, speaking in reference to the proceedings aforesaid, and in reference to the affidavit made therein, and of and to the plaintiff skid, “ you have sworn a lie.” '

The.fourth count, containing no colloquium, alleges that the. defendant said; of, and to the plaintiff, “ you are perjured.”

At the trial, the plaintiff took a bill of exceptions, which, with other matters, remaining to be noticed, presents the question whether the absence of the written proceedings before the justice, was sufficiently account ed for, to authorise the plaintiff to introduce evidence of their contents, so as to connect the charge of false swearing, with those proceedings. In as much, however, as we think this case can be properly determined on a different principle, I decline an examination of this feature of it.

The bill of exceptions shows that the plaintiff produced on the trial a witness who swore that he heard the defendant say to the plaintiff, “ are you not afraid, as you have perjured yourself?” that, this was at esquire Lowe\s, on the day Wal-. tors was bound to the peace ; that lie beard no allusion made to the proceedings had before the justice. But the defendant introduced witnesses who deposed that they heard all that was said on that occasion, and all had allusion to the judicial proceedings had before the justice.

It also appears that in charging the jury, the Judge instructed them to exclude every thing uttered by the defendant against the plaintiff, if said in reference to the proceedings had before the justice ; that to make such imputations evidence, the proceedings should have been introduced, or secondary evidence given of their contents, after a proper foundation laid for such, which had not been done.

This charge is one of the causes assigned for error.

It is considered unnecessary to examine the other counts in the declaration, or the question respecting the admissibility of the secondary evidence offered, as the principle of our decision oil the first and fourth counts, and the charge to the jury, will dispose of the case for the present, and perhaps be a sufficient indication of our opinion for the future progress of the suit.

In reference to the fourth 'count, it may be remarked, tirat-as it charged the defendant with having imputed to the plaintiff the crime of “perjury” in its technical acceptation, it is clearly actionable in itself,.with or without a colloquium — in other words, whether the reference to a judicial oath was expressed or implied ; in neither event was any production or proof of the proceedings alluded to, necessary to sustain the action. On this point it is considered sufficient to refer alone to two cases heretofore decided by this court, with the references therein contained.

In Lea and wife vs. Robinson,

Footnotes

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a it was ruled, that “ words making a general charge of perjury, are in themselves actionable, without proof that an oath had been taken by the plaintiff.” Also, in Harris vs. Purdy,b the allegation was — “ lie has perjured himself on the trial,” stating a colloquium con- corning a particular trial: wc said there could be no doubt that ^IC words were actionable in 'themselves.

But it is contended that the words proved in the count, are variant from those alleged. The words charged are, “ you are perjured those in proof* “ are you not afraid, as you have perjured yourself ?” I think the latter fully embrace the former ; and though it is not sufficient that they bo tantcu-mount, it is that they be in substance the same, and such is my construction of these.a

In reference t0 the first count, (as well as all others of the same import,) and the evidence adduced in support of them, it'may be sufficient to say — if under the averment, “ you swore a lie,” with a colloquium referring the imputation to an oath taken before justice Lowe, in a proceeding instituted before him by the plaintiff, for the purpose of having the defendant bound to the peace, the words were proved substantially as charged, and also the reference to the judicial proceedings, this alone was sufficient to sustain the action. The law recognises the authority of a justice of the peace, on complaint duly made, to bind the suspected person to keep the peace, and a charge of false swearing, in a case of (his kind, implies perjury no less than in any other judicial investigation. If part ofthis proof was made by the defendant, the effect was the same as if all had been introduced by the plaintiff. This principle was recognised in Harris vs. Purdy, so far as respects the subject of the colloquium. It was there held, that the words, “ He swore a lie,” colloquium of plain- • tiff’s testimony on a trial before a justice, were actionable ; and that it was not necessary to allege or prove that the justice had jurisdiction of the case, dr that the plaintiff was duly sworn, or that the false swearing was on a material point. In such case, all these are conceived to be sufficiently implied. If, however, the words are applied to a particular point, or matter sworn to, and from the nature of the subject the oath appear to be extrajudicial; or if the proof show it to be such; or if the contrary be not sufficiently implied from the subject, and manner of the imputation, then the action is not sustained, as was held in Ward vs. Clark.a

In the first count in this case, and in some of the others, the words having been laid with reference “ to the proceedings” already described, and in reference “ to the affidavit made therein,” they must allude to both or to either; and the law presumes perjury from false swearing in or concerning them. If the evidence of either party disclosed the contrary, the defendant was entitled to the benefit of such proof by way of instructions from the court to the jury. In this case such evidence does not appear to have been introduced; on the contrary, it was proved that the words were used in allusion to the proceedings had before the justice.

It may however be remarked, that so far as the plaintiff, in any count, has alleged the making by himself a particular affidavit, and the holding a particular court, or judicial investigation, and has made this a substantial part of the allegations of the count, this circumstance created the necessity of his proving the same by competent evidence, before he was entitled to recover for the words, which required a colloquium. But this principle, in its greatest latitude, cannot apply to the fourth count, which charges words clearly actionable in themselves. In as much then, as the instructions of the court below, required of the jury to exclude the evidence on this count also, we think there was error, for which, at least, the judg snout must be reversed, and the cause remanded.

1 Stew. 138.

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1 Stew. 231.

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Starkie on Slander, 270 to 275.

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2 John. R. 10