
    Daniel Pelton against Elijah Ward.
    NEW-YORK,
    May, 1805
    If a man say another, "You swore to "a lie, for "which you "now stand in-"dicted," it is actionable If the count, in an action for words, be insufficient, and the declaration do not contain any introductory matter or colloquium by reference to which they can be rendered so the inadequacy of the count cannot be made good by a justification and confession of the words, in the bar.
    
      THIS was an action for words spoken of the plaintiff, and came beiore the court on a motion m arrest or judgment.
    The declaration consisted of nine counts. The first, second and third, charged the defendant with saying you mere false« The fourth, fifth and sixth, with saying, you swore lo a damned lie and -you knew it. The seventh, eighth and ninth, with saying, you swore to a damned lie and you knew it, for which you now stand indicted, innuendo that the plaintiff had committed wilful perjury. The defendant pleaded to all the counts, first not guilty, and secondly in bar a justification, that at a court of oyer and ter-miner, held at White-Plains in the county of West-Chester, the pjain tiff was s worn and examined as a witness in a cause concerning the building a store, on a highroad; and did then and there fajse]y anc[ corruptly swear, that a part of the store remained on J . the ground where it had formerly stood and had not been remove(j when in fact no part of the store at the time of the plain- • tiff’s so swearing remained there, for which an indictment was f°un<^ and presented against him. Replication, de injuria sua pro-pria absque tali causa, and issues thereon, with verdicts for the p]a¡ntjff on au the pleas, which, however, were entered only on the three last counts (the first six being confessedly bad) and entjj.e damages assessed, °
    
      Caines for the defendant.
    The action is not maintainable. The counts ajwe an indictment for that which is not indictable. For ” simple false swearing, an indictment will not lie. There is not therefore, any offence charged, for which the plaintiff could be punished. The ground of the present suit is, that there is such an of-fence imputed. The addition of “ for which you now stand indicted,” does not make the act more criminal, for a man may be indicted and yet be innocent. “ Thou ait a false knave, and thou wast arraigned for two bullocks,” Bayly v. Churrington, Cro. Eliz, 279, held not actionable ; for, continues the authority, “ he saith ⅜( not,"he was arraigned for stealing two bullocks, and if the words “ had been so, yet the words had not been actionable, for a man “ may be arraigned for felony, and yet no felon.” So by Yelver-ton, J. 1 Bulat. 40. “ Thou wert arraigned for stealing a horse, “ when the plaintiff had been acquitted,” and ruled that no action would lie. To sustain a suit for words, such as the one now before the court, it is requisite not only that there should be a crime stated, but an affirmation that it was committed* In Steward v. Bishop., Hob. 177, the expressions were, “ James Steward is in “ gaol for stealing a mare, and other beasts.” It was determined they were not actionable, because being in gaol “for” doing a thing, does not say it was done. So here '■'■for which he stands “ indicted,” does not imply he was guilty. There is then no word used which states a crime, nor any allegation that it was actually committed. If so, it is not helped by the innuendo, “ meaning " that the said Daniel had committed wilful and corrupt perjury.’’ The office of an innuendo is not to supply but designate. It is synonimous with a " prædictum" James v. Rutlech, 4 Rep. 17, therefore in Gurneth v. Derry, 1 Lev. 166, thou wast a forsworn man, to and didst take a false oath against me, before justice Scawen, “ innuendo John Scawen, a justice of the peace,” it was determined the innuendo did not aid, and that the declaration was insufficient. The same principle is recognised in Holt v. Scolefield, 6 D. & E. 691, where it is said it ought to be shewn either by introductory matter, or averment, that the forswearing was in some judicial proceeding. Where it appears in the introductory part, it is good, Brumring v. Hanger, Hard. 151. So, if it be the result of necessary implication. 6 D. & E. 691. If it be said, that it arises here, fromthe word indicted, then it ought to have been averred. The rule is this. When the latter words are relied on to explain the first and give them their criminality, if they be connected with the former by the word for, they must be followed by an averment; when by the word and, they need not. Painter v. Warne, 2 Bulst. 142. Therefore in the present case, the plaintiff should have averred, that he had not been indicted. The case of Gilbertin v. Rowe, 1 Roll. Abr. 40, pl. 8, may be cited against us. But taken with the above distinction it is in our favor. The words there used were “ Thou art a forsworn knave, and wast " indicted by twelve men and hast compounded for it.” The declaration therefore is bad, for these reasons, 1st, The words do not state any crime. 2d, If they do, it is not charged to have been committed. 3d, The want of so doing is not aided by the innuendo. 4thly, Nor does it arise by necessary implication, and 5th, if it does it should have been followed by an averment. But it may be sáid that the defect, if any, is cured by pleading over. This however is a defect in substance, and “ if the count be defective in substance, " the bar cannot make it good.” 8 Rep. 120. b. Doctor Bonham’s case. The point however is decided. “ In an action for words, " though the defendant justify and acknowledge the words, this " does not aid the declaration.” Badcock v. Atkins, Cro. Eliz. 416. Nor is it helped by the verdict, Rushton v. Aspinall, Doug. 679. In the next place, intire damages are assessed upon separate issues, and several verdicts. “ Every count is to be considered as a dis" tinct declaration.” Hill v.Lewis, 1 Salk. 133. You may as WelL assess intire damages on separate actions, as on separate issues. " If several issues are joined on several points and found for the “ plaintiff, and damages assessed intire, the judgment is reversa“ ble, for being several issues the jury might have assessed the “ damages severally, viz. for each issue, several damages.” Bedel & Moore's case, 1 Leon. 171. The entries in all the books of precedents are in conformity to this. Lill. Ent. 428.
    Kent, C. J. The last point is settled by a case in S Bur-tows. It was formerly the practice to enter separate damages on each issue, but this Was found inconvenient, ahd in this court they have been Uniformly entered as in the present case. As to the words Used, they must be taken in the same sense as in common parlance they would be received. The doctrine of mitiori sensii has long been exploded. No man but would interpret the expressions in the declaration as conveying a charge of perjury.
    Emott, contra.
    The defendant has added enough to shew the Words were so intended. In Gilbert v. Rod, 3 Bulst. 304, the allegation of being forsworn was followed by the same expressions as in the present case, and held to be actionable. But if it Were otherwise, the pleading and verdict would make it good' The defendant by his bar has confessed the words, and shewn that they were uttered with an intention to impute perjury. He sets forth the court in which the forswearing took place, and thus gives certainty to the declaration. In a similar action this was held to cure the uncertainty of the count.
    In Drake v. Corderoy, Sir W. Jones 307. Cro. Car. 288, the defendant justified by setting forth a forswearing in a court of quarter sessions, and it was ruled to make good the uncertainty of the declaration. Tuke & Candies case, cited in Osborne v. Brooke,
      
       Alleyn 7, is to the same point.
    Caines, in reply.
    Thu authority from 3 Bnlstrod<t is the same as that from Rolle, and must be received with the explanation already taken. On the other points the decision must turn according to the weight of the cases cited.
    
      
       The business of an innuendo is, by a reference to proceeding matter, to fix more precisely the meaning of it. Pr lord Mansfield, in the King v. Ayltet, 1 D.&E. 70. See Rex v. Alderton, Sayer, 280. Lex v. Mathews, 9 Sta. Tri. 682. Rex v. Horne, Cowp. 672.
      
    
    
      
       The reason is the word "and" is held to be cumulative. See Whitcare v. Hillidel Alleyn 11. Yearworth v Pierce ibid. 31 and Wainewright v. Whitley, Sty. 115. where the same distinction is taken, and the case of Clerk v. Gilbert, Hob. 331 contra denied to be law.
    
    
      
       In the case the plaintiff, by introductory matter in his own declaration, shewed that the words were spoken of a forswearing at the sessions where he took an oath, and after stating the charge of having forsworn himself, omitted she innuendo (meaning the said path taken by him) the defendant in this bar confessed the words and that they were said of the oath there taken, & this was held to make good the uncertainty occasioned by the want of the innuendo. Observe how ever that in this case, it appeared introductory matter in the declaration, that the for swearing was in a judicial proceeding. The authority therefore is perfectly within the rule as laid down in Holt v. Scbolefield, 6 D.&E. 691. and Brumrig Hanger, Hard. 151.
    
    
      
       A contra desision is also stated.
    
    
      
       The words were " Captain “ Osborne is " forsworn, " and his oath “ appears upon " record " This the court held to beequal to saying he is forsworn upon record. See ante 75, the note upon the word “ and" being cumulative.
    
   Per curiam, delivered by

Spencer, J.

The first inquiry will naturally relate to the charge in the three last counts. The office of an innuendo is to contain and design the person who was named in certain before. “ It cannot alter the matter or sense of “ the words themselves.’’ It cannot extehd the Words, by an imagination of an intent not apparent by any precedent words, to which the innuendo should.refer, " in effect it stands in lieu df ⅜ " pretdictum." This doctrine is laid down in the case of James v. Rutlech, 4 Rep. 17, and has been the received law ever since. In the case of Oldham v. Peake, 2 Black. Rep. 961, it is decided „ that an innuendo cannot introduce new matter, but may ascertain the meaning of the old. In that case the declaration stated a ^colloquium concerning the death of Daniel Dolly } the words were, you are a bad man and I am thoroughly convinced you are guilty (meaning of the murder of the said-Dolly) and rather than " you should want a hangman, I would be your executioner.” The court held that the word “ death," must be understood to mean “ murder," because it was such a death as the plaintiff might be liable to be hanged for. This authority bears strong analogy to the present case. The words charge the plaintiff with swearing knowingly to a “ damned lie, for which he stood in--dieted.” The words in this instance can mean nothing less than perjury, for it was an allegation that the plaintiff had knowingly sworn to such a lie as rendered him obnoxious to an indictment, which could only be for perjury. If the innuendo was not true, it was competent to the jury to say so ; but they have affirmed it, on grounds which strike me as substantial.

The plaintiff's counsel has called in to his aid, the plea of jusfication, as rendering the intent to charge perjury clear and certain; and there are authorities which seem to sanction a reference to a plea with that view. But I cannot accede to the doctrine. The case of Badcock v. Atkins, Cro. Eliz. 416, appears to me to be most consistent with principle. The court there held that the declaration which was insufficient in substance could not be helped by the plea. The question in-that case was, as to the certainty of the person slandered, the plea justified the words, and still the declaration was holden bad. The plaintiff to sustain an action must have a complete right to bring it at its commence-merit. But, on the former ground, my opinion is, that the defendant take nothing by his motion. I think the pleadings in this case highly censurable. Instead of one plea of justification to all the counts, there are the same pleas to each count. There 1 are also nine counts for substantially the same words, and a special replication to each of the pleas. The attornies on both sides , , . are m fault, and in the taxation of costs the plaintiff ought to be allowed for only two of his counts, and one replication; and the defendant’s attorney, as against his client, to be allowed &ui for one of his special pleas.

Kent, C. J.

I concur in the opinion delivered.

Livingston, J.

I am unfortunate enough to differ from the court.

If the words used, be not in themselves actionable, the judgment must, in my opinion, be arrested, notwithstanding the plea of justification, on which the plaintiff so much relies, as evidence of the defendant’s intention or meaning to charge him with perjury. It is the import of the words themselves, and not the defendant’s intention, which is the criterion of their being actionable or not. This meaning cannot be assigned to them merely by an innuendo., or depend on a secret intention, but must be collected either from the criminal sense in which the expressions are usually understood ; or, from the colloquium which led to them, it must appear they could have no other meaning. Let a man’s intention be ever so mischievous or malicious, if his reproaches, however strong, impute no crime, nor bring the party of whom they are uttered into danger of legal punishment, he can be no more responsible than one who intends, but does not perpetrate a crime. Nor will any subsequent explanation by him, confer a right of action for words not actionable at the time they were spoken, or in the manner in which they were used. This explanation itself may be the ground of a suit, as being a new slander, but it can never make that actionable which was not so before. Were one to declare against another for calling him a fool, would the plaintiff be permitted to shew that the defendant intended to call him a thief? Nay, would the defendant’s own confession in open court to that effect support a declaration of this kind ? The action is brought for the injury which the words are calculated and supposed to have produced ; not for the intention from which they proceed. This is precisely the case here. The defendant had «charged the plaintiff with swearing to a lie. These words, it is admitted, are not actionable, when not applied to swearing in a judicial proceeding, but are laid generally, without any colloquium from which it can appear that they were used with reference to some proceeding, wherein the plaintiff had been examined as a witness. It must be seen, by apt words in the declaration, that the defendant referred to such proceeding, or, whatever his intention may have been, those who heard them could only consider the plaintiff as a liar, which, however discreditable or disgraceful, would not have given a right of action, notwithstanding the case in 1 Buls. 40. Reasonable as the rule there laid down may be that words, “ tending to the infamy, discredit, or disgrace of the H party,” are actionable ; the law is certainly otherwise. They must contain an allegation of “ some crime liable to punishment, some capital offence or other infamous crime, misdemeanor,” &c. As those then, who were present when this supposed slander was propagated, must have formed their opinion from what fell from the defendant; they could not suppose he meant to charge the plaintiff with perjury, unless he had made use of other expressions, than those which are set forth. If then there were no injury, or cause of action at the time of filing the declaration, how is it possible that the plea, which perhaps will never be seen or heard of by those to whom the words were addressed, can confer one, and that too, by relating so far back. I am apprized however that the plaintiff is not altogether without authority on this point. It Is that of Drake v. Corderoy. The defendant had there said of the plaintiff that he was forsworn, without mentioning in what court or on what occasion. In his plea of justification, he stated in what court he took the oath, and that it was false. The court there say that the uncertainty of the declaration is cleared up by the de? “ fendant’s expressing in hjs plea, that he intended to speak of the is oath he had taken in that particular court.”

This case proceeds on a supposition that the intention with which words are spoken is material. It may be so as it respects the measure of damages, but not as' it regards the right to recover. No malice or evil intention can render actionable, words in themselves innocent. I have examined every case cited in the margin of this one, in support of the decision, (and they are numerous,) but not one of them is in any respect like it. They are cases on contracts where one party or the other, in the course of pleading, has admitted some fact, which was material, and which the court would not afterward permit him to contest or deny ; but here, the fact admitted by the justification is immaterial, because slander can never consist in what a man intends to publish, but in what he does actually declare ; and so it was determined in Badcock v. Atkins, which is a very strong decision in favor of the defendant, and at open war with the one just examined. It was doubtful from the declaration, whether the words spoken applied to the plaintiff. This fact however was admitted by the plea, but the court say “ the declaration was not " good, and although the defendant by his plea confesses that he intended them of the plaintiff, yet that shall not help the " declaration which is insufficient.” This case it is true is many years older than Drake v. Corderoy. It is not however on this account that I give it a preference) especially as it may be con-. s*dered as overruled by the latter judgment, but because it appears to me more reasonable, and more agreeable to common sense than the other, for the more we reflect on the subject, the less will we be able to conceive how any one can be af. fected or injured in his reputation, by slander which consists in mere intention, without any overt expressions to carry such intent into effect. In the case of Oldham, v. Peake, there was a colloquium concerning the death of one Dolly, and the manner of the defendant’s charging the plaintiff with it, was equivalent to a charge of murder.

But if the plea of justification, be not a sufficient cause for not arresting the judgment, it is said the words are actionable, inasmuch as the defendant alleged that the plaintiff stood indicted for what he then charged him with. Here we must again recur to the words, and if they do not contain an imputation of a crime or offence, the allegation of an existing indictment will not alter the case. It is very possible, that a person, from ignorance in a grand jury or other cause, may be indicted for a matter not crimina], but unless what is charged, be so, it is no slander. Were one to say to another, are you a mahometan or a jacobin, for which you stand indicted, would these words, on account of such addition, be actionable ? Certainly not. Now as no man can legally be indicted or punished for being a liar, his being called so, and being charged with being indicted, as such, can give him no right of action any more than his being charged with being indicted for any other immorality not punishable by law. I am not for extending the action for words,but for confining it as much as possible within its present limits. Abusive expressions which expose a man to no punishment are beneath the dignity of the law, and unworthy of legal cognizance. A man of character cannot be affected by them, and he who has none, should not have his angry passions gratified by an appeal to courts of justice, whose time may be much more Usefully employed in attending to other matters. The judgment in my opinion must be arrested. I concur however in the opinion of Mr. Justice Spencer, as to the pleading.

Thompson, J. Gave no opinion, not having heard the argument.

Tompkins, J. Had been concerned.  