Peairs v. Harrah

1 Tapp. Rep. 297

• Court: Belmont County Court of Common Pleas
• Decided: November 15, 1818
• Status: Published

Opinion

President.

The jury having returned a verdict for the plaintiff, have fixed upon the defendant the guilt of having uttered and published the defamatory words laid in the declaration, in manner and form as they are charged to have been spoken. The motion in arrest of judgment brings in question whether the words spoken by the defendant of the plaintiff are in contemplation of law slanderous; nothing is considered as substantiated by a verdict, but such facts and circumstances as must of necessity have been proven to have induced such verdict; it is not perceived that in this case more was necessary to be proven than is charged, to warrant the finding of the jury; the case is not therefore rendered stronger for the plaintiff by the verdict; the question then must be considered and decided on this motion, as it must have been considered and decided had there been a general demurrer to the declaration.

It is the duty of the court to declare what the law is, and when that is settled, by an uniform course of decisions, not unreasonable in themselves and in no way incompatible with onr political institutions, it would be departing from the duty of a court to become speculative jurists and substitute their own perhaps visionary theories for its settled principles. The action of slander has undergone several revolutions from the time when the plea of not guilty put the plaintiff’s whole declaration in issue, and enabled the defendant as well to prove the truth as to controvert the speaking of the words charged, to the case of Underwood and Parks, in which it was decided |by the judges, that the truth of the words should no longer be given in evidence to mitigate the damages; so that, it must be confessed, that if we were disposed to legislate on the subject before us, precedents of judicial legislation would not be wanting to support us. But the action of slander is not one which, for reasons of a moral or political nature, requires the indulgent aid of our courts for its encouragement and extension. It is generally brought to gratify the most malignant passions, or to shield, by legal penalties, a doubtful character from scrutiny; so that it may be reasonably questioned, whether the policy of the Atheneans, (the most polished people of ancient times) in not allowing an action for private defamation, was not more wise and salutary than our own.

This action is attempted to be supported, on the principle that the words spoken by the defendant charge the plaintiff with the crime of forgery. The defendant, in conversation concerning a certain proceeding before that time had before the session of the Eev. Mr. Taggart’s congregation, wherein complaint was made to the said session by the plaintiff, against the defendant, and concerning a certain paper produced by the plaintiff before said session,being a certificate made by Andrew Thompson concerning the conduct of the dft. said: “I told the session that I thought that Jeremiah Peairs forged Andrew Thompson’s name to the paper that he gave the session; ” and we are asked to say that this certificate of Mr. Thompson, so produced to the sesión, was such an authentic matter oí a public nature, as that forgery committed therein, would subject a person to indictment and punishment under the provisions of our statute. What was the session of the Eev. Mr. Taggart’s congregation ? Where was such session held ? What were its powers, legal or conventional ? What authority ^ad ^ey to ^ear a complaint against the defendant ? and w[ia£ authority had Thompson to make an authentic certificate of a public nature, concerning any man’s cou- or character? are questions to which the record furnishes no answer. We are not to presume a jurisdiction where none is claimed. We know not that Mr. Taggart’s congregation is an ecclesiastical tribunal, or that the parties to this action were in any way connected with it. To have held cognizance of the plaintiff’s complaint, either the law or the act of the parties must have given the session jurisdiction. They do not appear to have derived it from either source. But were it to be admitted, that the session was an ecclesiastical court, competent to hear and determine the subject matter of the plaintiff’s complaint (whatever it may have been) or a board of arbitrators, met by the agreement of the parties to decide some controversy between them, it will yet be necessary that it should appear that Thompson’s certificate of the defendant’s conduct was a proper exhibit, on such trial, before it can be considered as an authentic matter of a public nature. It seems to have been a certificate or statement of some fact relating to the defendant, made by an individual not on oath, and purely voluntarily: is such a certificate competent evidence before any tribunal ? Certainly not. It is of no more legal authenticity, than a blank paper; and unless we were to say that, to write the name of another person, is, in itself, a forgery, indictable and punishable, we cannot hold that the writing of Thompson’s name to such a paper can be so considered. It is not conceded that forgery can be committed in any case which does not prejudice another’s right; and as to Thompson’s rights, the forging of such certificate, purporting to be his, could no other way prejudice them, than by exposing him to ridicule; and I am not altogether clear, but what it ought to be considered as a charitable supposition, as it respects him, that his name was affixed to an uncalled for and officious certificate, concerning the conduct of his neighbors, without his knowledge. The constitution of the state cannot be considered as having changed the law of slander — so far indeed as established principles have been innovated upon by the Supreme Court, and no farther, are we disposed to depart from those principles. The judgment must, therefore, be arrested. [8w appendix A.]