
    CONSTITUTIONAL COURT,
    COLUMBIA,
    APRIL, 1802.
    Nelson v. Emerson.
    Where a declaration 'contains several counts, a general verdict may be referred to such of them as will sustain the. action; and if one or more' of the counts be good, judgment will not be arrested, although the' declaration contains one which is bad. [vide 2'Bay, 439, S. C. Neat" v. Lewis,' 2 Bay, 20'4, S. P. See also, 2Bailey, 72.]
    This was a motion in arrest of judgment. An action of slander had been tried in the district of Kershaw, and the jury found a verdiet for the plaintiff. The declaration contained three counts: 1. For calling the plaintiff a hog-thief,- and saying that he was foiv sworn. 2. For calling him a damned hog-thief. 3. For saying to" him these words, “ Aou are a damned forsworn rascal,” with an innuendo, that the plaintiff had been guilty of wilful and corrupt perjury.
    The verdict was generally for the pThintiff, on' all the counts, and one hundred and fifty dollars assessed as entire damages.
    The ground of the motion in arrest of judgment, was, that the words m the last count of the declaration were po.t actionable of themselves ; and not being set forth as proceeding from a colloquium, stated in the introductory part of the declaration, no inference could be drawn to give to the words the meaning, imputed to them by the innuendo, as having reference to a judicial proceeding : and the jury having found a general verdict, and joint and entire damages for the plaintiff on the whole declaration, the court ought not to give judgment; and it was impossible to decide how much the jury intended to allow on each count, and to sepa. rate the entire damages, so as to deduct what was assessed on the bad count.
    The motion was brought up by Brevard, of counsel for the defendant; but he having been elected judge before the motion was heard; it was finally argued by Branding, at this court.
    For the defendant, it was argued, that if the present question Were to be adjudged by the law which obtains in England, and by an English court of judicature, no doubt could be entertained but the decision of it would be in our favor. The points of law submitted by the motion, have been fully considered and clearly settled by the highest judicial authority of that country. Nevertheless, as our courts of justice are not bound by the decisions of the English courts farther than they may comport with the general principles of law, and the genius and policy of our government, it becomes necessary, not only to enquire, what have been the decisions of the English courts in relation to the subject.in question, but to investigate the principles and reasons upon which those decisions have been founded, in order to ascertain whether it would be proper and expedient to recognize, or adopt the same rules of law, in that regard, in our courts, which prevail in the courts óf that country. It is not desirable that every maxim and rule of the English law should be adopted and made part of our jurisprudence; but, generally, and so far as the law of England affords rules for the protec. tion of life, liberty, and property, in the application of law, and the distribution of justice between one private member of the community and another, it certainly deserves the encomiums and approbation it has so universally obtained. The judges of. that country, too, have, generally speaking,'at all times, been men of the first abilities, of great experience, profound knowledge, and tried wisdom. In their adjudications they have always had the advantage of having every point of difficulty discussed and illustrated by a learned and enlightened bar; and they have constantly aimed to establish such rules of decision as are best calculated to advance the ends of justice. Under these circumstances, it seems fair to conclude, that the determination of a full bench of English judged in a question like the present, a question involving no considerations of local or public policy of a nature to produce different principles of decision in different countries, according to .the different natures of their respective governments, and their different organization, a determination, too, after the fullest consideration, and a thorough examination of former decisions relative .to the question, must be wise and judicious, and fit to guide the.judgment of this court in similar cases. It can be no disparagement to the honorable members of this court, to say, that the well settled decision of an English court of justice, of the highest authority, in a case parallel to the present, deliberately made, after diligent investigation, and mature consideration, ought to have a prevailing influence in the decision of this case : for it must be difficult to conceive why learned and upright magistrates, in this country, should differ on this question, from learned and upright magistrates in England ; both drawing their arguments and conclusions from the same sacred fountains of reason and natural justice.
    Having premised these observations, we shall proceed to shew, that the points of law now submitted to the court, have been adjudged, and absolutely settled, by the highest judicial authority in England.,
    It has been fully established by a current of adjudged cases in the English courts, that to call a man forsworn, generally, is not actionable. 2 Salk. 690. Cro. Eliz. 572,609,720, 788. Sayer’s Rep. 280, 282,
    The court will please to observe, that we lay’ particular emphasis on the word “ generally,” because a due attention to the distinction which we shall hereafter point out and explain, will serve to reconcile every apparent contradiction that may occur in the books of reports in relation to this point. Let us advert to the origin and reason of this rule, in order to see, whether or not, it be well founded.
    It is the rule of law, that verba sunt accipiendi in mitiori sensu. The constructions given to this rule, have, of late, it must be acknowledged, departed from that rigid interpretation of the rule which influenced the determination of former times ; but the maxim still obtains, although the meaning given to it is not so strict as formerly. It is now interpreted more liberally and equitably. It is now settled, that words which are charged as defamatory, are to be understood by courts of justice in that sense in which they are understood by the people of the country, in general, where they are spoken or published. But it may sometimes happen, that the meaning of words may be doubtful, even when tested by this rule, and may be understood, indifferently, in one sense or'another; and whenever this happens to be the case, the maxim of law, which requires that the words should be construed in the milder or better sense, applies. Let us apply this doctrine to the present cáse. Words, to bear an action, ought to contain an express imputation of some crime liable to punishment. But a man may forswear himself extra judicially, in which case he is not liable to legal punishment. If he forswear himself in a judicial proceeding, he may be punished ; for, in such case, he is guilty of perjury. Now, if one man speaking of another, in a conversation which has no relation to any judicial proceeding, says he is forsworn, generally, the words ought not to be understood as intended to impute the crime of perjury, because they may as well be understood in another sense, as intended only to impute a false oath taken extra judicially. 1 Str. 618. The words, in general, convey as well the one meaning as the other, and, therefore, ought to be taken in mitiori sensu.. No inconvenience, or injustice, can possibly result from an adherence to this equitable rule ; for whenever the words are spoken with reference to a judicial proceeding, and impute the crime of perjury, in which case only they will bear an action, the plaintiff may, by stating in the introductory part of his declaration, a colloquium, relative to a judicial proceeding, shew that the words were spoken with reference to such proceeding : and this must be done, in order to enable the court to judge, whether the words bear the meaning imputed to them by the innuendo.
    
    This has always been the practice in cases of this sort; and it is a practice founded in reason .and good sense. The object to be obtained by it is certainty ; a point of infinite consequence in the law, and the principal end of good pleading. If fne declaration in this case had been drawn conformably to this practice, the words might be understood in the sense which has been imputed to them. Cowp. 684. At all events, the court could easily determine from a perusal of the introductory matter, whether they ought to be so understood or not. But without this, how • can the court undertake to decide that they have any such application and offensive meaning? The words spoken may be true, and yet the party not guilty of perjury. 1 Hawk. P. C. ch. 27, sec. 4.
    The distinr :ion now contended for, has been fully established by modern deter, inations in England, and particularly in the case of Holt v. Scholi field, 6 T. K. 691.
    
      ^ may> however, be suggested, that although the declaration in this,case does not contain such a colloquium as we have insisted on, yet that it contains what is equal to it an innuendo, charging and aveiT*n£> that the words, in question, have the offensive meaning given to them. In answer to this, we can easily satisfy the court, that the meaning of words cannot be asserted in this way, or extended by the mere operation of an innuendo. The following authorities go fully to this point: Cro. Eliz. 609,834, 889, 890, 905, 794. Sayer’s Rep. 280, 282. Cowp. 684. 2 Salk. 513, 662. To have warranted such an innuendo a colloquium, should have been stated, to shew that such innuendo was a fair inference from the premises, which otherwise cannot appear. Cro. Eliz. 794. Esp. Dig. 514. 1 Str. 696. 2 Str. 934.
    Upon these authorities and principles we rely in contending, that the matter contained in the last count of the declaration, as stated therein, is not sufficient to support an action. We might further contend, that the words, “ forsworn rascal,” is an adjective expression, and, therefore, not actionable, any more than to’ call one a thievish rogue. Bac. Abr. Slander, M. But there is no necessity to labor on this point.
    The next position to be established is, that the verdict being taken generally on the whole declaration, which contains three several counts, and joint and entire damages awarded ; and one of these counts being bad, and insufficient to maintain an action ; the judgment ought to be arrested in toto, inasmuch as it is impossible for the court to distinguish and apportion the damages allowed to each respective count.
    The case of Onslow v. Horne, 3 Wils. 177, 2 Bl. Rep. 750, is expressly in point, to support this position. And the- case of Holt v. Scholefield, 6 T. R. 691, has settled the point beyond all controversy. Judgment was arrested on the same principle in the case of Maddox v. Taylor, 8 Mod. 370, and 14 Vin. Abr. 590. See, also, Hopkins v. Beedle, 1 Caines’ Rep. 347.
    But it will, perhaps, be contended, that the- verdict may be amended by the judge’s notes, and entered upon the counts that are good, according to the doctrine laid down in 2 Str. 1197. 2 Burr. 890. 1 Wils. 33. 4 Burr. 1235. 2 Dali. 229-. Doug. 377, 722. 1 Bos. and Pul. 329. Doug. 376, 730. And see Cowp. 276. 4 Burr. 1235. 3 Dali. 211, 462. Barnes, 478,480.
    None of thesé authorities, however, upon due examination, will be found to apply to the present case. It is true, that where there is a general verdict for the plaintiff on several counts in a declaration, the plaintiff will be allowed to enter up judgment on one count only, or one or more particular counts, and not upon the •other counts, in cases where it appears the action could be maintained on such count or counts only : but this can only be done in those cases where the evidence given, applies to the good and consistent counts only $ for if any evidence is given which applies to the bad counts, the verdict cannot be amended, or the judgment entered up on the good counts only. Doug. 337. 2 Dallas, 212, 229. This distinction has been clearly established by the case of Spencer v. Goter, 1 H. Bl. 78. In that case, there were several counts in a declaration in slander, one of which was bad. The court instructed the jury to find for the plaintiff on the good counts ; but they found a general verdict. On a rule to shew cause why the verdict should not be entered for the plaintiff on the good counts, agreeably to the direction of the court, and the judge’s notes, it Was held that it could not. be done. If it had clearly appeared, on the face of the verdict, that such alteration would be agreeable to the intention of the jury, the court might have made the alteration ■according to the judge’s notes. But this did not appear; and, -therefore,-the court could not know how much the jury gave or assessed on the bad count.
    2 Bay, 204.
    Falconer, contra,
    was stopped by the court.
   The opinions, given by the judges, were as follows :

Tkezevant, J.

In this action, it appears that the plaintiff has ■declared in one count upon words that are actionable, and in the other count, upon words that are not actionable ; and the jury have given a general verdict for the plaintiff upon both counts,¶ or, at least, without specifying on which count the verdict was- given. It also appears that no special damage was laid in, nor proved, to maintain the count that contained the words which are not actiona, bla. Whatever may he the law, according to the English, cases, in such a case as this, I conceive myself bound by the decision-made by a full bench in Charleston, in 1798, in the case of Neal v. Lewis. In that case the words charged in one count, were not actionable, and the jury gave a general verdict for the plaintiff; the defendant’s counsel moved in arrest of judgment, because it could not be known upon which count, the verdict was given, and if given upon that which charged the defendant with words that were not actionable, the judgment ought to be arrested, because no special damage was charged in the declaration to have arisen from those words, nor was there any proof, at the trial, of ahy damage sustained in consequence of speaking those words : but the court the motion. I am, therefore, of opinion, ■ in this case, that the motion in arrest of judgment should be overruled.

Branding, for motion. Falconer, contra.

Bay, J.

I agree with my brother Trezevant, in his opinion.

Johnson, J.

In this case, I feel myself precluded from a general view of the subject, by the decision in the case of Neal v. Lewis, in Charleston ; in which it was expressly decided, that on a general verdict in slander, the plaintiff shall have judgment, although one count was avowedly bad : and the case of Onslow and Horne, declared not to be law.

Grimke, J.

There are two or three counts in the declaration, some of which are actionable, and some not: the verdict of the jury is a general one, without discriminating on which count they found. The case of Neal v. Lewis, argued some time ago in Charleston, has settled this point. The court there refused to arrest the judgment on the grounds here stated. ‘ I, therefore, consi-' der myself bound by that decision.

Brevard, J.,

having been of counsel for the defendant, expressed! no opinion.

Motion refused.

Note. In the case of Eddowes and another v. Iiopldns and another, Doug. 376, this distinction was laid down By Boller, J. If there is only evidence at the trial, upon such of the counts as are good and consistent, a general verdict may be altered from the notes of the judge, and entered only on those counts: but if there is any evidence that applies to the bad or inconsistent counts, then the postea cannot be amended. Lord Mansfield, in a subsequent case, said that he exceedingly lamented, that ever so inconvenient and ill founded a rule should have been established, as that where there are several counts and entire damages, and One count is bad, and the others not, this should be fatal; upon the fictitious reasoning, that the jury have assessed damages on all, although they, in truth, never thought of the different counts. Grant v. Astle, Doug. 722. What makes the rule more absurd, is, that it does not hold in the case of criminal prosecutions. Seel Salk. 384.  