
    [Pittsburg,
    September, 18, 1827.]
    HOOK against HACKNEY.
    in error.
    After the plaintiff has had a commission executed, the defendant may send a new commission, to examine the same witnesses on matter not inquired of by the plaintiff'’s interrogatories.
    It seems objections to such commission, should be made before trial.
    Words spoken of plaintiff, in the character of the judge, are actionable without colloquium or innuendo.
    Writ of error to the Court of Common Pleas of Warren county, in an action of slander brought by Joseph Hackney, the defendant in error and plaintiff- below, against Jacob Hook.
    
    The first count of the declaration stated that whereas the said Joseph Hackney, was at the time of the committing of the said several grievances, by the said Jacob Hook, hereinafter mentioned, and for a long time hath been one of the associate judges of the county of Warren aforesaid, and as such associate judge hath conducted and behaved himself faithfully, honestly and impartially, &e. And, whereas also before the committing of the several grievances by the said Jacob Hook, as aforesaid, as is hereinafter mentioned, a certain prosecution had been depending in the Court of Quarter Sessions, of the county aforesaid, before the honourable Judge Moore, and the said Joseph Hackney, and the honourable Isaac Connaly, his associates at Warren in the county aforesaid, against one Emanuel Crull and one John Mead, for larceny, wherein the said Jacob Hook was prosecutor, and the said Emanuel Crull, had applied to the said court to be tried separate, and apart from the said John Mead, which had been granted by the said court, &e., and the said Jacob Hook contriving, &c., to cause it to be suspected and believed by those neighbours and citizens, that he the said Joseph Hackney had been and was guilty of perjury, felony, cheating, and fraud, and of the offences and misconduct hereinafter mentioned, to have been charged upon and imputed to the said Joseph Hackney, or of some other such offences or misconduct, and to subject him to the pains and penalties by the laws of this commonwealth, made and provided against, and inflicted upon persons guilty of such of-fences, and thereby to injure the said Joseph Hackney in his said office, and to vex, harass, oppress, impoverish, and wholly ruin him the said Joseph Hackney, heretofore, to wit, on the 30th day of JLugust, in the year of our Lord 1823, to wit, at the county aforesaid, in a certain discourse which he the said Jacob Hook, then and there had, in the presence and hearing of divers good and worthy citizens of this commonwealth, he the said Jacob Hook, then and there in the presence and hearing of the said last mentioned citizens, falsely and maliciously spoke, and published of and concerning the said Joseph Hackney, and of and concerning his office in substance these false, scandalous, malicious, and defamatory words, that is to say, Colonel Hackney (the said Joseph Hackney, meaning) has done that for which God will not forgive him; he (the said Joseph Hackney meaning) has violated his oath; he (the said Joseph Hackney meaning) has influenced Judge Moore to decide causes against me unjustly, (meaning that the said Joseph Hackney was corrupt, partial, and influenced by improper motives in the discharge of his official duties, and exercised an undue influence on the honourable Judge Moore, president of the several courts of Warren county, whereby injustice had been done to the said Jacob Hook) He (the said Joseph Hackney meaning) was the cause of my losing the suit with Crull, (meaning that the said Emanuel Crull, when prosecuted by the said Jacob Hook, as aforesaid, would not have been acquitted, had it not been for the improper and partial conduct and interference of the said Joseph Hackney.) He (the said Joseph Hackney meaning) is a damned old rascal, and has done that tohich will remove him from his seat, and I (the said Jacob Hook meaning) will have him removed, (meaning that the-said Joseph Hackney, had behaved so corruptly, partially, and improperly in the discharge of his official duties, that he was liable to be impeached and removed from his said office, for misconduct, and that the said Jacob Hook would procure his removal.) He (the said Joseph Hackney meaning) robbed Mr. Granger, of his property, (meaning that the said Joseph Hackney, had cheated and defrauded one Eli Granger.) /(the said Jacob Hook, meaning) can prove by the first characters in Pittsburg, that he (the said Joseph Hackney meaning) is one of the damndest rascals that ever came into this county. It is generally reported, that if he (the said Joseph Hackney meaning) had had his deserts, he would have been in the state’s prison long ago, (meaning that the said Joseph Hackney was guilty of felony, or some other crime, the ¡punishment due to which is by the laws of this commonwealth imprisonment in the penitentiary.
    And afterwards, to wit, on the day and year aforesaid, at the place aforesaid, in a certain other discourse, which the said Jacob Hook then and there had in the presence and hearing of divers other good and worthy citizens of this commonwealth, he the said Jacob Hook further contriving and intending as aforesaid, then and there in the presence of the said last mentioned citizens, falsely and maliciously.spoke and published of and concerning the said Joseph Hackney, in substance, these other false, scandalous, malicious and defamatory words following, that is to say, he (meaning the said Joseph Hackney,) has violated his oath, and if he had had his deserts he would'have been in the state’s prison long ago, (meaning that the said Joseph Hackney has committed perjury, and incurred the penalty due to that offence.) By means of the committing of which, &c.
    On the trial, the plaintiff having given evidence of the speaking of the words by the defendant, offered to prove the circumstances of the defendant; to the admission of this evidence the defendant objected, but the court admitted the evidence. To this decision the defendant excepted, and the court sealed a bill of exceptions.
    The plaintiff having given in evidence the testimony of Royal Keys, and Abraham Staples, taken on a commission, executed and filed, the defendant offered in evidence the cross-examination of the said Royal Keys and Abraham Staples, on another commission subsequently issued on his motion. There being no objection on the score of copy, and notice of the said commission and interrogatories. To this evidence the plaintiff objected, and the court sustained the objection, and overruled the evidence; to which decision the defendant excepted, and the court sealed another bill.
    The defendant offered in evidence the testimony of Henry Dunn, that what the defendant said during a conversation relative to the plaintiff, was true, to wit, that the plaintiff had bought a lot of Eli Granger, and had sold it at an advanced price: to the admission of which evidence the plaintiff objected, and the court sustained the objection, and overruled the evidence, and sealed a third bill of exceptions.
    The court were requested to charge the jury. 1. That none of the words either laid in the declaration, or proved in evidence, were actionable, unless charged on the plaintiff in the execution of his office as a judge; and this is not to be presumed, it must be proved to the satisfaction of the jury.
    
      2. The words, “ that the plaintiff was reported to be the d — dest rascal in Warren, and, that if he had his deserts, he would have been in the state’s prison long ago,” are not in themselves actionable, and can only be made so by relation to the plaintiff in the execution of his office, at the time the words were spoken.
    3. The words, “he has done that which God will not forgive,” are not actionable.
    4. The court are requested to charge the jury, that if the defendant did not intend at the time of speaking the words, to charge the plaintiff with any particular crime or misdemeanor, but that the expressions wrere merely words of general abuse, the plaintiff is not entitled to recover.
    
      KLnswer of the court to the first, second, and fourth points.— The declaration charges the words to have been spoken of the plaintiff as a judge. And the witnesses speak of the words used by Hook, in relation in part to his official station — particularly Keys, who says that Hook used the words, “old judge Hackney.” Thereupon the court do not answer as requested.
    
      Third point. — Is so, if spoken alone without other words.
    
      Galbraith and Selden, for the plaintiff in error.
    1. There could be no objection to the commission to cross-examine, and the evidence being proper in its nature, it ought to have been received.
    
      2. The words proved were not actionable, unless laid and proved in relation to the official .character of the plaintiff.
    
      Pearson and Banks, contra.
    
    There is no such thing as a commission to cross-examine. The party may take a new commission, or he might have filed cross-interrogatories.
   The opinion of the court was delivered by

Duncan, J.

The plaintiff in error, who was defendant below, withdrew his motion in arrest of judgment; and in the specification of error, has not assigned for error, that one of the counts in the declaration does not contain actionable words, and the verdict and judgment being general, it would be error. The court is not called upon to decide that point; but it will be well for the defendant in error to consider this before he goes to a new trial.

The first count in the declaration is, for words spoken of the plaintiff in his character, and of him as an associate judge of the Court of Common Pleas. The words laid in the declaration, are, Colonel Hackney has done that for which God will not forgive him — he has violated his oath — he has influenced judge Moore to decide causes against me very unjustly. lie was the cause of my losing the suit with Crull. He is a damned old rascal, and hast done that wliich will remove him from his seat. ” The charge is, that he has used undue influence — has violated his oath ■ — for which he ought to be removed from his office — his seat — - certainly his seat on the bench — his judicial seat. 1'hese words substantially were proved; the verdict finds the defendant spoke the words as laid: if so, they could not be spoken of the plaintiff in any other character than that of judge. The defendant has no reason to complain of the charge of the court. His question was not very distinctly put. The answer of the court, fairly construed with relation to the whole subject, and the evidence is, if the- words as laid in the declaration, were uttered by the defendant, then this was spoken of him in the character of judge; and to be sure if they were uttered, the court would have been right in saying, that ex vi termini, they did import impure official conduct, which the defendant said would be sufficient to remove him from his seat. The words required no colloquium, no innuendo to make them actionable. I am, therefore, of opinion there is no error in this.

But in the rejection of the evidence taken on the second commission, I think there was error. The commission was granted on motion in court, notice was givén of it, and copy of interrogatories duly served on the plaintiff. The commission is returned, and it is not until the defendant offered it in evidence, it is objected to. If there lay this objection to the commission, it should have been made at an earlier period in the cause, or an opportunity given to the defendant to have, a new commission; but the objection I think, is rather hypercritical; that it was not a commission to examine the witness de novo, but merely a cross-examination. This might have been informal: but look at the state in which the de’fendant stood? The plaintiffhad executed a commission on interrogatories. The answer of the witnesses (cross-examined on the defendant’s commission,) was an answer to the interrogatories calling on the witnesses to answer, whether the defendant had uttered any words derogatory to the plaintiff’s character as a citizen and neighbour, not as a judge, or in his official character. Therefore, the defendant could not put cross interrogatories of a matter which the witness was not interrogated on by the plaintiff whose witness he %vas: he had no opportunity to cross-examine him on a matter not •inquired of on the first commission. Substantially this was a second commission to examine the witnesses; and if this matter had been so stated to . the court, the second commission would have been properly rejected; but terming it a commission to cross examine, would not vitiate it, and could not be taken advantage of on the trial of the cause.

I am, therefore, of opinion that the evidence was improperly rejected, and that the judgment should be reversed for that reason.

Judgment reversed, and a venire facias de novo awarded.  