22 N.H. 40 | Superior Court of New Hampshire | 1850
The third count of the declaration has no statement of facts or circumstances, in reference to which the words are alleged to have been spoken, that can extend or explain their meaning. The general inducement of the plaintiff’s good character, and the averment that the defendant maliciously intended to subject her to the penalties of forgery, are not traversable allegations, and were not in issue before the jury. Holt v. Scholefield, 6 Term Rep. 691; Hawkes v. Hawkey, 8 East, 427.
The same may be said of the concluding allegation that the plaintiff had been rendered liable to be indicted for forgery. It is not a sufficient allegation of special damages, and is not traversable.
Where the words laid in a declaration for slander do not in themselves import the charge of a crime, but are alleged to have been spoken in reference to some fact or transaction, that would give them an actionable meaning; the jury are to find whether the words were spoken in reference to such fact or transaction, and in the sense charged in the declaration, and after verdict for the plaintiff- it will be intended that the jury found them to have been spoken in that sense.
But on this count of the declaration, the only questions for the jury were, whether the defendant spoke the words laid, and spoke them of the plaintiff and of the note described. This is all that the plaintiff charged, and all that she was bound to prove to entitle her to a verdict. The verdict therefore finds no
Do the words set out in the declaration, spoken of the note as it is described, imply with sufficient certainty and clearness a charge of forgery ?
The words are alleged to have been spoken in a certain discourse about a certain note for about twenty-five hundred dollars, signed by said plaintiff, one George Dennet, and one Henry Y. Hayes, payable to said Scammon or his order.
The plaintiff was one of the makers of the note ; there is no averment to show in whose hands the note was; whether it was paid or unpaid ; if unpaid, who had the legal interest in it; who was designed to be defrauded by setting the defendant’s name on it; nor that there was any frandulent or unfair design in putting his name there. The plaintiff was one of the makers. If she had the note in her possession, it is most natural to suppose that she had paid and taken it up, and then she might very innocently put the defendant’s name on the back of it. Indeed, the difficulty is to conjecture, on the facts alleged in this count, how the plaintiff could have committed a forgery by putting the payee’s name on the back of the note.
It is possible to suppose that after paying the note to Scammon she may have indorsed his name on it in order to have a suit on it in the name of a third person against the other makers. But it is not enough that we are able to imagine how the words may possibly have been spoken in an actionable sense. As they are not aided in this case by any other averment, they must in themselves imply a distinct charge of forgery. Applying them to the note as described in the declaration, without resorting to any forced construction in mitiori sensu, they may well have been used in a meaning quite consistent with the plaintiff’s innocence of the crime of forgery.
This count of the declaration is therefore bad after verdict; and, by a well settled and familiar rule of pleading, the verdict for the plaintiff being general, and one count bad, the judgment must be arrested.
