
    
      Kirtley v. Deck.
    Monday, March 30, 1809.
    Action for Slander — Plea of Justification* — General Replication — When Repleader Awarded. — In case for slander, if the defendant plead the word “Justification” only, and tile plaintiff reply generally, a verdict for the defendant should be set aside, and a repleader awarded: but a verdict for the plaintiff ought not to be set aside, il being a rule, that “a repleader is not gran table in favour of the person who made the first fault in pleading.”
    Same — Same—Proof.—The declaration charging the defendant with having said that the plaintiff, as a witness before a Court of Record, was guilty of periury, “for which he would have his ears,” the defendant on the plea of Justification, cannot give parol evidence of what the plaintiff swore to, without producing a copy of the record of that trial, to shew that the testimony given by the plaintiff was material to the matter in question.
    This cause came before the Court by appeal from a judgment of the District Court of Staunton, rendered in favour of the plaintiff, the present appellee.
    Michael Deck instituted an action for slander against St. Clair Kirtley, and after stating a colloquium, charged the words spoken in different forms, thus: “Michael Deck has sworn to a He and I can prove' it.” — “Michael Deck is perjured, and I can prove it.” — “Michael Deck has taken a false oath in Rockingham Court, in a suit betwixt the Commonwealth and me, and I will have his ears for it.” Plea. “Justification” generally: to which the plaintiff replied generally.
    
      At the trial, the defendant tendered a bill of exceptions, which was sealed by the Judges, and stated; that “the defendant to support the issue joined on his part, produced a witness to prove what the plaintiff had sworn to, in the trial of the cause'in Rockingham Court, referred to in the declaration ; to the admission of which evidence the plaintiff objected, alleging, that the record of that trial ought to be produced, to shew the materiality of the matter of evidence, which was given by the said plaintiff; which objection was sustained, and the evidence withheld from the Jury by the Court.” Verdict and judgment for the plaintiff; from which the defendant appealed to this Court.
    Wirt, for the appellant.
    There was no issue joined in the cause; and the whole was a mis-trial. In Kerr v. Dixon,  it. is expressly decided, that if the defendant plead “justification,” only, and the plaintiff reply generally, no issue is joined.
    [Here Mr. Wirt was stopped by the Court, who requested the opposite counsel to state the difference between this case and that of Kerr v. Dixon.]
    *Wickham. The important difference is this: In Kerr v. Dixon, the judgment was given in favour of the party who pleaded 1 ‘justification ;’ ’ here it is given against him.
    Wirt. The error is a vital one; for the cause was tried without any issue, and a repleader ought to be awarded. The circumstance that Kerr v. Dixon was trespass, makes no difference. The rules of pleading are the same in both actions. A justification must be specially pleaded. In slander there are various justifications; as, that the words were true; or spoken in confidence; or in giving evidence on a trial, &c.
    But if there be a fault in the pleadings, the plaintiff is equally guilty," because he assented to the plea, instead of demurring. The consequence was, that the defendant was deprived of evidence which he might have given.
    Suppose there had been an issue; then the evidence of the defendant was improperly excluded. The Court proceeded on the ground, that to constitute perjury there must be proof of the materiality of the fact to which the party deposed; and that it was incumbent on the accuser to prove it. Perjury exists at the common law; and also under the statute of Elizabeth; and the en-action of the statute did not alter the common law.
    Thus a person may be indicted on the statute, and found guilty at common law.  In 1 Hawk. 318, 323, 324,  the distinction of perjury of both kinds, is given; and it will be seen, that the materiality of the evidence, in prosecutions for perjury, at common law, constitutes no part of the offence. It is necessary to set forth and produce the record, in a trial for perjury, under the statute only,  In the present case, the plaintiff declared for a charge of perjury generally. The defendant was prepared to prove the truth as to perjury at common law; but the Court held him to such proof alone as is required for prosecutions under the statute.
    There were several sets of words charged in the declaration; some of which did not amount to perjury; and surely *it would be competent to the defendant to exhibit proof as to them, without producing the record; on the same principle that in England, where there are several sets of words charged, some of which are not actionable, and entire damages are given, the judgment will be arrested,  But the plaintiff, in his own declaration, refers to the proceedings in Rockingham Court, which rendered it unnecessary for the defendant to produce them.
    Wickham, for the appellee. The defendant in the Court below tendered an immaterial issue; and now contends that he may avail himself of his own wrong. Nothing can be more contrary to law, or unsupported by principle. The distinction between the case of Kerr v. Dixon and this, is, that there the issue was found in favour of the defendant, who put in this general plea of “justification;” here it is found against him. Kerr v. Dixon is admitted to be law : but had the verdict been otherwise in that case, the decision of this Court would have been different. In Baird & Co. v. Mattox,  all the leading cases are collected by Mr. Call, in his argument, and fully support the position for which I contend. And in Webster v. Bannister,  it is said by Buller, J., that he could find no case of an exception to the rule, “never to grant a repleader, w;hen the issue is found, against the party tendering it.” What is said by Judge Fleming, in Kerr v. Dixon, as to there being no issue joined, must be understood to mean no material issue. How often do we find “covenants performed,” “payment,’.’ &c. tendered as a plea; and in many cases the words, “to which plea the plaintiff replied generally,” held to make up an issue,  But I hold it to be a settled point, that where judgment is given against a party tendering an immaterial issue, no repleader shall be awarded. This case is not influenced by the decision in Taylors v. Huston,  because that case turned entirely on the act of Assembly requiring special pleadings in a writ of right.
    The bill of exceptions contained, first, the reasoning of counsel; and secondly, the judgment of the Court. It is *only the objection of counsel, that the -record ought to have been produced to shew the materiality of the evidence. But suppose the word materiality was the language of the Court; still the authorities will not bear Mr. Wirt out. In the definition of perjury at common law,  it is said, that the matter sworn to must be “of some consequence.” This is surely a convertible term with materiality.
    
      But it is said that the plaintiff in his own declaration referred to the proceedings in the County Court; and therefore it was unnecessary for the defendant to produce the record. It should, however, be recollected that the defendant held the affirmative of the issue, and that his plea of justification gave him as wide a range as the human mind can conceive. He was therefore bound to produce evidence to support his plea; and the best evidence the nature of the case will admit of, must always be had. The particular words spoken by the plaintiff in the Court of Rocking-ham, out of which the defendant said the perjury grew, are not stated in the declaration. The defendant comes forward to prove certain words spoken by the plaintiff, and certainly he must shew from the record whether they were material to the matter in issue. The declaration contains one charge of perjury throughout; there are not different sets of words; but even if there had been, still, under our act of Assembly, if any one count had been good, judgment could not be arrested,  Had there been a plea of not guilty, the affirmative, in issue, would have lain upon the plaintiff, and he must have produced the record.
    Wednesday, March 29. The Judges delivered their opinions.
    
      
      Slander — Plea of Justification — issue.—On this question the principal case is cited in foot-note to Kerr v. Dixon, 3 Gall 379. In Rice v. White, 4 Leigh 481, the plea of the statute of limitations was expressly assailed as being defective, and was likened to the plea of “justification” which Is admitted not to be good, relying on Kirtley v. Deck, 3 Hen. <fc M. 388. And the court said: “But the objection did not prevail; the distinction, indeed, being evident, between the plea of ‘the statute of limitations,’ which offers a distinct and specific ground of defence, without any thing more, and the plea of ‘justification,’ which unless carried out. Is utterly nugatory. The first gives the plaintiff fair and full notice of the defence set up; whereas the second subserves no purpose of pleading, as it does not give notice of the character of the ‘justification,’ on which the defendant will rely. Kerr v. Dixon, 2 Gall 379.”
      See monographic note on “Libel and Slander” appended to Bourland v. Eidson, 8 Gratt. 37.
    
    
      
      Pleading — Repieader—When Awarded. — A replea-der will not be given him who commits the first fault in pleading. Davis v. Brown, 46 W. Va. 716, 34 S. E. Rep. 843, citing Kirtley r. Deck, 3 lien. M. 388. To the same effect, the principal case is cited in Pate v. Baker, 8 Leigh 86.
      Appeals — Beneficial Error — Effect.—A party will not be allowed to object to errors which are beneficial to him. For this proposition the principal case is cited in foot-notes to Smith v. Harmanson, 1 Wash. 6: Hammittv. Bullett, 1 Call 567. See mono-graphic note on “Appeal and Error” appended to. Hill v. Salem, etc., Turnpike Co., 1 Rob. 263.
    
    
      
       2 Gall, 379.
    
    
      
       1 Hawk. (Leach’s ed.) 321, citing 1 Sid. 274, The King v. Drue.
    
    
      
       Leach’s edit.
    
    
      
       1 Hawk. 331.
    
    
      
       Barnes’s Notes, 478, Anger v. Wilkins; Ibid. 489, Smith v. Haward.
    
    
      
       1 Gall, 257.
    
    
      
       Doug. 395.
    
    
      
      Oi) 2 Wash. 1, Walden’s Executor v. Payne; Ibid. 71, Turberville v. Self.
    
    
      
       2 Hen. & Munf. 161.
    
    
      
       1 Hawk. c. 69, s. 1.
    
    
      
       Rev. Corte, v. 1, c. 76, p. 112, s. 38.
    
   JUDGE TUCKER.

This case, so far as the plea extends, is so precisely like the case of Kerr v. Dixon, that no distinction occurs to me, except that the one was an action of trespass, the other an action of slander. As a man might have several distinct grounds of justification in trespass, so may he in slander: as, that the words spoken *were true; that they were not spoken maliciously; but in the course of a judicial trial, examination, &c. The plaintiff ought to be apprised by the plea, which of these justifications the defendant means to rely on; otherwise he might be surprised at the trial, in this action, as well as in an action of trespass. The plea is therefore bad.

I should therefore be of opinion that the verdict ought to be set aside, and a re-pleader awarded, if the verdict had been for the defendant.

But here the verdict was for the plaintiff: the defendant ought not now to have advantage of his own ill pleading; it being a rule that a repleader is not grantable in favour of the person who makes the first fault in pleading,

But I doubt whether upon this record any issue can be said to be joined: for the plea, if it had been formally and substantially pleaded, must have concluded with a verification, I presume; in which case the replication might have tendered in issue; but that would not have made up an issue without the defendant had replied and joined. On this point, therefore, I give no opinion.

On the point reserved by the bill of exceptions, I concur in the opinion formed by the other judges.

JUDGE ROANE.

In this case the plea of the appellant was illegal and exceptionable in not stating the particular kind of justification he relied on; and consequently injurious to the appellee, as it covered too much ground, and did not apprise him of any particular point to which the appellant meant to apply his evidence: yet the ap-pellee closed therewith, and has obtained a verdict, and the appellant now comes to object to the judgment founded thereon. His complaint, when analyzed, is, that whereas he ought to have selected one particular point on which to meet his adversary, he has been permitted to take a wider range, and to pursue a course more beneficial to himself, and more injurious to his opponent than the law allows.

*It is contrary to the uniform decisions in this Court to permit a party to object that for error which is for his own benefit, and has arisen from his own act.

The general rule on this subject is to grant a repleader wherever the issue is so immaterial as that the Court cannot know for whom to give judgment, whether for plaintiff or defendant: but in this case no such uncertainty exists. So far from it, the plaintiff has, by supererogation, put in issue and shewn that no possible ground of justification exists, on which the defendant can bar him of his action.

With respect to the other point; the charge is of a perjury, or taking a false oath which goes to the “loss of ears.” Now, as the loss of ears is no part of the punishment of perjury at the common law, and is a part cf the punishment under the stat. of 5 Eliz. the charge is of a statutory perjury, and not of perjury merely at the common law. No difference can arise on this point, from the omission in our act of 1789, to continue to annex that punishment to this crime at the present day: the defendant was perhaps not aware of this change in the act; but certainly did not mean the offence as at common law, as is manifest from his speaking of the loss of ears.

This charge, thus made by the plaintiff, and undertaken to be justified on the part of the defendant, cuts up by the roots a distinction taken by the appellant’s counsel, that the materiality of the perjury in question was not necessary to be shewn, inasmuch as a man may be guilty of perjury at the common law in swearing to what is not material; and it was admitted by the same counsel that, in relation to a statutory perjury, the swearing must be shewn to be material. That cannot be shewn, unless after proving what the words sworn on that trial were, it be shewn by the best evidence (the record) how they applied to the matter in question. It would be dangerous to admit parol proof of the contents of an indictment, or declaration; and there is certainly no necessity for it. The Court therefore was correct in refusing leave to the Jury to hear a witness to prove what was sworn upon the trial in question, unless the party producing him had also *'exhibited, or offered to exhibit, a copy of the record containing the charge to which that evidence applied.

My opinion is that the judgment be affirmed.

JUDGE FLEMING.

The general plea of “justification” is certainly ill, and could not have been sustained on demurrer. But there being a general replication to that plea, there was an issue, though an informal one; and it is too late to take advantage of such informality, after verdict, especially by the party who committed the first fault in pleading. On the point mentioned in the bill of exceptions, all the Judges agree.

By the whole Court, judgment affirmed. 
      
       2 Saunrt, 319. b. Bennet v. Holbech, note (6): Tidd’s Frac. K. IS. (Riley’s edit.) 829, 830.
     
      
       See the cases of Hammitt v. Bullitt’s Executors, 1 Call, 667, and Smith v. Harmanson, 1 Wash. 6, and others.
     
      
      
        i Bl. Com. 138.
     