Vaughan v. Havens

8 Johns. 109

Opinion

Spencer, J.

delivered the opinion of the court. It has been frequently decided in this court, that to charge a person with having sworn false is not actionable, unless there be a colloquium, (and there is none in this case,) concerning a proceeding in a court of competent jurisdiction, and the words are alleged to have been spoken in reference to that proceeding,

(a) It has also been repeatedly decided that an innuendo, enlarging the natural meaning and import of the words, is inadmissible and naught.

It is also well settled, that when the verdict and judgment are general, and there are some bad counts, the judgment must be reversed; because it is impossible to say whether the damages have not been given on the bad counts, as well as on those which are good.

The principal reliance for the affirmance of the judgment, is on the case of Drake v. Corderoy,(Cro. Car. 288.) in which it was held, that “ where the declaration is uncertain, but the defendant, by a special plea on which issue is taken, confesses that he spoke the words, by reason of the plaintiff’s oath taken at the sessions, and justifies the plea, that clears the question whereof he intended to speak.” The case cited would apply and warrant an affirmance of the judgment, if the notice annexed to the plea could be considered in the light of a special plea; but it cannot. The notice is intended for the ease and benefit of the defendant. He may, or he may not, rely upon it. It has been uniformly held, that it is not an admission of the matters charged in the declaration. The plaintiff is bound, notwithstanding the notice, to prove the facts set forth in the declaration. The notice forms no part of the record, and cannot, therefore, be considered as a special plea, which admits and avoids the cause of action set forth by the plaintiff.

The judgment must be reversed,

See 1 Johns. Rep. 505, 506. 2 Johns. Rep. 10. 1 Caines. 347.