Crone v. Angell

14 Mich. 340 | Mich. | 1866

Lead Opinion

Cooley J.

We are of opinion that the Circuit Court erred in sustaining the demurrer to the second count of the plaintiff’s declaration. The slander alleged consisted in the defendant saying of the plaintiff, he “ has sworn to a damned lie, and I will put him through for it, if it costs me all I am worth.” The only question is, whether these words fairly, to the common understanding, impute the crime of perjury. To say that a man has sworn to a lie, is not actionable, because the statement has no reference to a judicial proceeding and conveys no other meaning to the hearer than that the party somewhere, on some occasion, has affirmed a falsehood. But whenever these or any similar words are coupled with others calculated to convey to the mind of the hearer the idea that this assertion of falsehood was in the course of judicial proceedings, and while the party was giving evidence, so that the falsehood was of the grade which the law punishes as a crime, it is well settled, and on sound reason, that the words are actionable in themselves. The words in the present case contain a direct charge of falsehood, with a threat to put the plaintiff through for it. The phrase to put one through is expressive and forcible, as commonly used, but without any very definite meaning. In one case it may be understood in a sense implying legal prosecution, and in another, that the party threatening proposes himself to inflict some j>unishment. But to threaten to put one through for false swearing can hardly be understood in any other sense than that the party forsworn has done that for which he is liable to be “ put through” at the law. This is the sense, we think, in which the by-standers must have understood the words; and in this sense, therefore, they must be understood by the Court, unless by some accompanying words or explanation a different sense was conveyed at the time they were used. The additional words contained in the count tend strongly to show that this was the defendant’s meaning. He would put the plaintiff through if it cost him all he was worth. The proceeding was to be or might be attended with expense, but he would still resort to it. We think the whole threat, taken together, was well calculated to convey the idea of intended legal prosecution.

We also think that the Court erred in excluding the evidence offered under the first count. The defendant was charged with having accused the plaintiff of swearing falsely in the giving of testimony in a cause pending in the Circuit Court in Chancery. The reason alleged for the exclusion was, that the facts alleged in the declaration did not show that the officer administering the oath had authority for that purpose. It is argued for the plaintiff in error that it was wholly immaterial whether he had authority or not, and. there is plausibility in this argument. The wrong, when perjury is charged, consists not in the fact that the circumstances were such as to have afforded an opportunity for the crime, but in the wrongful impression conveyed by the words imputing the offense. If the words are designed and calculated to lead the by-standers to believe that the party has been guilty of this heinous offense, the injury is committed, and it does not detract in the least from the injurious consequences, that in point of fact the proceeding which the defendant had in mind was one in which perjury could not have been committed. — Stone v. Ciarle, 21 Píele. 51. Otherwise the most atrocious slanders would go unpunished; and if there was nothing whatever to base the charge upon, the exemption from legal responsibility would only be the more complete and certain.

But in this case the colloquium is averred of evidence given - before an officer acting under an authority which is fully set out; and we must understand the by-standers to have been apprised what this authority was, and that it was insufficient in law, if such was the fact. And we are therefore to see whether the authority set out was sufficient.

It appears by the declaration that the pai'ties to a suit in Chancery had stipulated that the evidence therein might be taken before a notary public named, and had entered a common order based upon this stipulation, that such notary public act as special commissioner for the purpose. The statute (Com. L. § 4338,) empowers any Court of Record to appoint special commissioners before whom depositions may be taken; but it is very questionable whether a common order, entered by consent of parties, and Avithout the intervention or knowledge of the court, can be regarded as such an appointment. The statute (Comp. L. §§ 3995-7,) also provides that a. notary public, being also an attorney of the Supreme Court, may perform the duties of Circuit Court Commissioner when that officer is disqualified, but the declaration does not aver facts bringing the case 'within these provisions. A notary public, however, has general authority to administer oaths, and to take affidavits in any cause pending in any court of the state, (Comp. L. § 460,) and we think this authority extends to all oaths which may properly be taken out of court to be made use of in court. We do not know of anything to which it can be more properly applied than the verification of the statements of witnesses which the parties have stipulated may be sworn to before the notary; for the purpose of being used as evidence. They are evidence in the case, not by virtue of any authority in the notary to act as commissioner, but by force of the stipulation; and the authority to administer the oath in verification is within the words, and we think within the spirit of the general statute prescribing his powers. They stand on the same footing as affidavits which the parties have agreed may be used in evidence, and it can certainly make no difference with the validity of the oath, that the statements of the witness are written down by the officer in the form of question and answer, instead of the more usual form in which affidavits appear. In either case the statement is signed by the witness and its truth affirmed by him; and the whole proceeding, being for a proper and lawful purpose, to be made use of in a pending cause, we think the notary may lawfully take and certify the oath.

The judgment of the Circuit Court should be reversed, with costs, and a new trial ordered.

Christiancy J. and Martin Ch. J. concurred.

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Concurrence Opinion

Campbell J.

I concur in holding the second count sufficient, because, while I think the language charged capable of two constructions, it was made certain by a proper averment. I concur fully upon the other points.