Kinsey C. J.
delivered this term the opinion of the court. After having stated the case at length,' — Six reasons have been assigned for setting aside the award of the arbitrators, of which all except the third and fourth appear to have been abandoned by the counsel on the argument. Those which have been maintained allege, that the words laid in the declaration to have been spoken by the defendant, are really not actionable.
When the argument was had in the Supreme court at the last term, it was not from any doubts as to this particular case that induced the court to postpone their decision, but as an important question arose upon the construction of the act [21]*21'■\L December 1794 whether simple fornication is an indictable offence, upon which different ideas have been entertained, we thought it advisable to defer delivering judgment, in order that a solemn and deliberate opinion might be given upon that part of the argument, that the construction of it might be fully settled.
With respect to the present case, the declaration must now be taken to be true in all its parts; from whence it results that the words therein mentioned were spoken of the plaintiff by the defendant falsely and maliciously.
The point principally insisted on by the defendant’s counsel, and upon which we took time to deliberate was, that the report finds the defendant guilty of the allegations in the declaration, and that die words set forth in the first and second counts are not actionable. The objection is, they do not charge, that plaintiff was delivered of a child, nor that the child was chargeable or likely to become chargeable to the township; and that if the words as laid in the declaration are not actionable, the Referees have been mistaken in point of law, and the report should be set aside.
A number of authorities have been cited to establish the first point, namely — that a charge of fornication is not actionable. It certainly appears, that in England by the common law no such action could be sustained, unless loss of marriage, or other special damage be laid and proved. The act of assembly has also been cited to prove, that simple fornication not followed by the birth of spurious offspring, is not punishable by any of its provisions. This interpretation of the act being denied by the counsel for the plaintiff', it becomes necessary for this court to declare its opinion, not only as it relates to this case, but as a solemn settlement of the question for the future.
The strong objection urged to the argument for the defendant is, that it is absurd to suppose the consequence attendant upon this crime to be indictable, and not the crime itself; and that this consequence depends not upon the will of the parties concerned, neither can it in reason, nor ought it in law to constitute the offence. It was also contended, that from the preamble and title of the act, it appears evidently to be level-led at the immorality of the deed, which is in no degree af[22]*22fected by the subsequent birth of a bastard child. These objections are weighty and entitled to much consideration, yet I am fully satisfied from the whole tenor of the section, which is very inaccurately worded, that no fornication, unless that consequence does, follow, is indictable under this act, and that such was the intention with which it was made — . Because' — >
1 st It is a penal act, and by the rules of construction cannot be extended to cases which do not come within its express words.
%d The whole section must be taken together, as containing a description of the crime intended to be- provided against.
3d The word “ such” repeated three times in this section, and always referring to the crime of fornication first mentioned, evidently shows that the legislature intended to create no crime but that for which a possitive punishment was prescribed.
4th When the act proceeds to point out the punishment to be inflicted upon the man, it cannot be construed to extend to any other fornication than such as is followed by issue.
3th In other words — the act describes the crime, as consisting in fornication attended with issue; the whole section is connected, and never was intended by the legislature to be considered separately.
6th This construction is consonant not only to what the law is, but to what it ought to be. Because — ■
Where the fornication is productive, the crime maybe proved in some measure by this circumstance, and by other facts which would not render the trial indecent. On the other hand, if when unproductive it still remains an indictable offence, by what proof can the fact be established. It would lead to inquiries too indecent to be brought before the public; it would subject behaviour perhaps at worst merely imprudent, to critical investigation; and leave the actions and behaviour of innocent persons exposed to idle conjecture; to unwarrantable constructions, and impertinent éuriosity; and the indecency of the inquiries would produce more harm than prosecutions would do good.
[23]*23indecency is in some cases a legal reason for not sustaining a suit,
But we think this action nevertheless sustainable — “because—
1 st The woman is charged with the crime so far as fairly to intend her an object of punishment. In February 1788 she is declared to be single and with child; — -in January 1789, she is alive, and damages are awarded to her. We have a right to infer her therefore neither dead nor married, and such intendments may fairly and legally be made to support a righteous award. In trespass “ quare pisces suos cepit scperali piscaría,” after verdict, it was moved in arrest of judgment that the fish could not be called “ suosn unless in a trunk or pond, and that a party had no more property in fish in a separate fishery than in a free fishery. The court said they would make any intendments to support the verdict, and. that they would intend them in a pond, (b)
The ancient and unreasonable rule, that words spoken are always to be understood “ in mitiori sensun has been long since properly exploded, (c) Then the charge implies something more than simple fornication. We are at this period entitled to intend, that it was meant to be asserted so far productive, as to subject plaintiff to the consequences if true, and with these intendments the action unquestionably will lie.
[24]*24%d Admitting this to be otherwise, yet an action will lie for spiritual defamation in N.
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Kinsey C. J.
delivered this term the opinion of the court. After having stated the case at length,' — Six reasons have been assigned for setting aside the award of the arbitrators, of which all except the third and fourth appear to have been abandoned by the counsel on the argument. Those which have been maintained allege, that the words laid in the declaration to have been spoken by the defendant, are really not actionable.
When the argument was had in the Supreme court at the last term, it was not from any doubts as to this particular case that induced the court to postpone their decision, but as an important question arose upon the construction of the act [21]*21'■\L December 1794 whether simple fornication is an indictable offence, upon which different ideas have been entertained, we thought it advisable to defer delivering judgment, in order that a solemn and deliberate opinion might be given upon that part of the argument, that the construction of it might be fully settled.
With respect to the present case, the declaration must now be taken to be true in all its parts; from whence it results that the words therein mentioned were spoken of the plaintiff by the defendant falsely and maliciously.
The point principally insisted on by the defendant’s counsel, and upon which we took time to deliberate was, that the report finds the defendant guilty of the allegations in the declaration, and that die words set forth in the first and second counts are not actionable. The objection is, they do not charge, that plaintiff was delivered of a child, nor that the child was chargeable or likely to become chargeable to the township; and that if the words as laid in the declaration are not actionable, the Referees have been mistaken in point of law, and the report should be set aside.
A number of authorities have been cited to establish the first point, namely — that a charge of fornication is not actionable. It certainly appears, that in England by the common law no such action could be sustained, unless loss of marriage, or other special damage be laid and proved. The act of assembly has also been cited to prove, that simple fornication not followed by the birth of spurious offspring, is not punishable by any of its provisions. This interpretation of the act being denied by the counsel for the plaintiff', it becomes necessary for this court to declare its opinion, not only as it relates to this case, but as a solemn settlement of the question for the future.
The strong objection urged to the argument for the defendant is, that it is absurd to suppose the consequence attendant upon this crime to be indictable, and not the crime itself; and that this consequence depends not upon the will of the parties concerned, neither can it in reason, nor ought it in law to constitute the offence. It was also contended, that from the preamble and title of the act, it appears evidently to be level-led at the immorality of the deed, which is in no degree af[22]*22fected by the subsequent birth of a bastard child. These objections are weighty and entitled to much consideration, yet I am fully satisfied from the whole tenor of the section, which is very inaccurately worded, that no fornication, unless that consequence does, follow, is indictable under this act, and that such was the intention with which it was made — . Because' — >
1 st It is a penal act, and by the rules of construction cannot be extended to cases which do not come within its express words.
%d The whole section must be taken together, as containing a description of the crime intended to be- provided against.
3d The word “ such” repeated three times in this section, and always referring to the crime of fornication first mentioned, evidently shows that the legislature intended to create no crime but that for which a possitive punishment was prescribed.
4th When the act proceeds to point out the punishment to be inflicted upon the man, it cannot be construed to extend to any other fornication than such as is followed by issue.
3th In other words — the act describes the crime, as consisting in fornication attended with issue; the whole section is connected, and never was intended by the legislature to be considered separately.
6th This construction is consonant not only to what the law is, but to what it ought to be. Because — ■
Where the fornication is productive, the crime maybe proved in some measure by this circumstance, and by other facts which would not render the trial indecent. On the other hand, if when unproductive it still remains an indictable offence, by what proof can the fact be established. It would lead to inquiries too indecent to be brought before the public; it would subject behaviour perhaps at worst merely imprudent, to critical investigation; and leave the actions and behaviour of innocent persons exposed to idle conjecture; to unwarrantable constructions, and impertinent éuriosity; and the indecency of the inquiries would produce more harm than prosecutions would do good.
[23]*23indecency is in some cases a legal reason for not sustaining a suit,
But we think this action nevertheless sustainable — “because—
1 st The woman is charged with the crime so far as fairly to intend her an object of punishment. In February 1788 she is declared to be single and with child; — -in January 1789, she is alive, and damages are awarded to her. We have a right to infer her therefore neither dead nor married, and such intendments may fairly and legally be made to support a righteous award. In trespass “ quare pisces suos cepit scperali piscaría,” after verdict, it was moved in arrest of judgment that the fish could not be called “ suosn unless in a trunk or pond, and that a party had no more property in fish in a separate fishery than in a free fishery. The court said they would make any intendments to support the verdict, and. that they would intend them in a pond, (b)
The ancient and unreasonable rule, that words spoken are always to be understood “ in mitiori sensun has been long since properly exploded, (c) Then the charge implies something more than simple fornication. We are at this period entitled to intend, that it was meant to be asserted so far productive, as to subject plaintiff to the consequences if true, and with these intendments the action unquestionably will lie.
[24]*24%d Admitting this to be otherwise, yet an action will lie for spiritual defamation in N. Jersey, because we have no ecclesiastical courts to punish the offence. The common law of England is indeed stable in its principles, but so flexible, as in its application readily to meet every new case that may arise, and to provide a redress for every injury that may be inflicted. The reason of the English cases is inapplicable here, and the decisions themselves should not therefore be regarded with the same technical precision, and applied with the same unbending exactness. Legacies are equally matters of spiritual cognizance, and actions for them are not sustainable in the courts of common law; (a) still it appears, that during the usurpation of Cromwell, when the ecclesiastical courts were abolished, that actions for legacies were held to lie in the common law courts (b) in order to prevent a failure of justice, and that when the former were re-established at the restoration, these causes again returned to their original tribunal. This we conceive to be a decided answer to this part of the defendant’s case.
Again — putting all this out of the question, we are clearly of opinion that it is not competent for a party who submits to a reference, and agrees that judgment shall be entered, and execution issue, to come forward at this stage and take exception to the declaration. The defendant’s counsel were called upon to show a case where, after an award made upon a reference by consent, the court ever looked into the declaration to see if the action was sustainable. The opinion of Lord Chancellor Hardwicke in the case of Medcalf v. Ives, (c) seems decidedly the other way. No such precedent has been, or we believe can be found, and this court under the circumstances of this case feel no inclination to [25]*25make one. (a) The consent of parties that judgment shall be entered, is in the nature of a release of errors, and the plaintiff here is acting manifestly contrary to his agreement of record: the court will not listen to such an allegation.
It is somewhat remarkable also, that on this motion to set aside the award of referees of the parties own choosing, none of the reasons go to the face of the azvard (1 Vent. 243.) or to misbehaviour in the arbitrators; (b) the objections go altogether to the declaration, and ought to have been made on demurer. The defendant in fact has argued in arrest of judg» ment on a motion to set aside an award: — this is irregular, and the court would have been justified in refusing to hear an argument in this manner.
Upon the whole, calumny in general is of a nature so odious and detestable, and in the present instance so likely in its consequences to prove injurious not only to the plaintiff personally, but to strike at the very peace of society, that the court have much pleasure in declaring the action maintainable, and further that for charging an offence for which the laws of England provide a spiritual punishment only, an action will lie here. I confess I felt upon this argument no small uneasiness to hear it so strenuously contended, that for so atrocious an injury, the laws of New- Jersey provided no redress, because we were without a court which the genius of the country has not, nor ever will admit among us.
Rule discharged and azvard confirmed.
Note. — See the case of Da Costa v. Jones, Cowp. 729. which was probably alluded to.