Waggstaff v. Ashton

1 Del. 503

• Court: Superior Court of Delaware
• Decided: July 5, 1835
• Status: Published

Opinion

By the Court: Chief Justice Clayton:

The general question has been considered as settled in the courts of this state, but it is made, in this case, to assume a somewhat different form on account of the disclaimer and notice which deft, has placed on the record. The practice in that respect is new. We understand that he proposes to prove, under this notice, that, though the charge made by him against the plff. is false, he had probable cause to believe that Waggstaff was perjured in' swearing that he was not indebted to Clegg because he had admitted his indebtedness after the attachment was laid in his hands as Clegg’s garnishee. The general principle is that stated in-2 Stark. Ev. 878, as the resolution of all the judges in Underwood and Parks, 2 Strange, 1200, that evidence of the truth of the words is not admissible either in bar of the action or in mitigation of damages, unless specially pleaded. If the deft, will insist on the truth of the charge he is bound to give the plff notice by the pleadings. And if the truth cannot be proved under the general issue, it would seem to follow that evidence tending to prove it must be rejected. And the admission of facts having this tendency must necessarily admit facts in refutation of these; thus not only calling on the plff. without notice to defend his whole life, but forming in the cause numberless collateral issues. And if the proof of one fact be admitted tending to show the actual guilt of the plff other facts cannot, on principle, be rejected; and the deft, may thus indirectly prove the slander true against the implied admission of the pleadings, or even the more direct admission of such a disclaimer as this. (Starkie on Slander, 410.) We cannot say that we are .prepared to sanction the practice adopted in this case; but if we would regard this paper as a part of the pleadings it should contain the same certainty as a declaration or plea. Ashton alledges that he had probable cause to believe the plff. was perjured, because he acknowledged his indebtedness to Clegg after attachment laid, &c. To whom was this acknowledgment made? If to a third person it could not possibly be proved by the witness now called; if to him, as is most likely, and he communicated it to deft, who repeated it, it is the common case of the repetition of a hearsay slander without at the time giving the author. Suppose I am informed by A, a respectable man, that B has admitted himself to be a thief, can I defend myself under the plea of not guilty in an action for calling B a thief, that I had probable ground to believe so arising from this information? and shall I call A to establish my defence? And if I do so is not the charge proved?

J. Ji. Bayard, for plaintiff. R. H. Bayard, for defendant.

The case of Gilman vs. Lowell does not, as the deft.’s counsel supposes, establish that on the disclaimer of any intention to prove the truth of the words the deft, may nevertheless prove facts having this tendency. The decision in that case was that circumstances which disprove malice, but do not tend to establish the truth of the charge may be given in evidence in mitigation of damages; and it was expressly on the ground that “the facts offered to be shown would disprove malice, and would not tend to prove the truth of the charge of false swearing. The case shows that this was so. The charge was in substance that the plff. had perjured himself by swearing that a certain deed was on the record; the proof offered was that deft, was induced to believe him perjured because from an omission to index the record of this deed he had been unable to find it after diligent search, but that the record had since been found. The proof so far from tending to show the guilt of the plff. beyond all doubt, established his innocence, and at the same time disproved the malice of the deft. In the ease before us there has been no new disclosure of circumstances since the slander was uttered to remove the imputation. If he had probable ground to make the charge then he has such still. And what was this ground? That after the attachment was laid in plff. ’s hands as a garnishee of Clegg at the suit of deft, he ■told some one he was indebted to Clegg. If this was true he could not afterwards remove his indebtedness. If this was true his subsequent oath “that he was not at the time of the attachment served or at any time since indebted to Clegg in any sum whatever,” was false. And on an indictment for perjury would not this declaration form an important link in the chain of proof to convict him? Does it not tend to prove the truth of the slanderous words?

We are of opinion that the evidence is not admissible either under the general issue or on the disclaimer and notice filed in this cause. (a)

The plaintiff had a verdict for $>300.

(a) The declaration set forth the charge of perjury without any colloquium that it was in the course of a judicial proceeding; but it was held good. 1 Chitty Pl. 383. n. “To say that the plff. has sworn false or taken a false oath is not actionable without a colloquium of its being in a cause pending in a court of competent jurisdiction and on a point material to the issue. ” Where the slander is prima facie actionable, as for calling a person directly a thief or stating that he was guilty of perjury, &c. a declaration stating the deft.’s malicious intent and the slander concerning the plff. is sufficient without any prefatory inducement. 1 New-York Term Rep. 347. Action is not sustainable for saying one is forsworn; aliter, that he is perjured. 8 Wendall 573, Gilman vs. Lowell. Slander lies for saying of another “he has sworn falsely and I will attend the grand jury respecting it,” without a colloquium showing the speaking of the words to refer to proceedings in which perjury could nave been committed