Drummond v. Leslie
5 Blackf. 453
Ind.
1840
Check Treatment
Blackford, J.

This was an, action of slander brought by Leslie against Drummond.

The first count of the declaration, after the usual inducement of the plaintiff’s good character, states that before, &c., the plaintiff had owed the defendant for certain quarters’ rent of a house; that the plaintiff had paid the same, and taken receipts from the defendant for the several amounts, (describ*454ing the recеipts particularly;) and that the plaintiff had used, uttered, and published, the receipts ‍​​​​​‌​‌​​‌​​‌​​‌​​‌​‌​‌​‌​‌‌​​‌‌​​‌​‌‌​​​‌‌​‌‌​‍against the defendant as true and as evidencе of said payments; yet the defendant well knowing, &c., and contriving and wickedly and maliciously intending to injure, &c., and to cause it to be suspected and believed that the plaintiff had been guilty of forgery,- therеtofore, &c. in a certain discourse, &c. of and concerning the plaintiff, and of and concerning the matters aforesaid, (setting them out,) falsely and maliciously spoke and published of and concerning the plaintiff, and of аnd concerning the matters aforesaid, (setting them out,) these false, scandalous, and malicious words, viz., “ The receipt (the aforesaid last-described receipt meaning) has been forged; it (the ‍​​​​​‌​‌​​‌​​‌​​‌​​‌​‌​‌​‌​‌‌​​‌‌​​‌​‌‌​​​‌‌​‌‌​‍аforesaid last-described receipt meaning) is forged, but I (the defendant meaning) do not say who forged it; the receipts (meaning the aforesaid described receipts) are forged, but I (the defendаnt meaning) will not say who forged them;” the defendant thereby falsely and maliciously charging the plaintiff with, and imputing to him, the crime of forgery; to thе injury, &c.

In another count, having a similar inducement and colloquium with the first count, the words laid, inter alia, are as follows: “Some one forged that receipt, but Ido not say who forged it, (the said receipt meaning,) but Leslie (the plaintiff meaning) can say who did it.”

To this actiоn, the plea of not guilty was filed. Verdict for the plaintiff. Motion by the defendant for a new trial, and in arrest of judgment, overruled; and judgment on thе verdict.

The first objection made to the verdict is, that the jury had ‍​​​​​‌​‌​​‌​​‌​​‌​​‌​‌​‌​‌​‌‌​​‌‌​​‌​‌‌​​​‌‌​‌‌​‍separated, after the cause was submitted to them, from Saturday night until Monday morning, when they gаve in their verdict to the Court. This objection is untenable. Rex v. Woolf, 1 Chitt. Rep. 401.—The King v. Kinnear, 2 Barn. & Ald. 462. Besides, the рarties here consented to the separation.

The second objection is founded on the affidavit of a stranger, that he had heard several of the jurors say that each had ‍​​​​​‌​‌​​‌​​‌​​‌​​‌​‌​‌​‌​‌‌​​‌‌​​‌​‌‌​​​‌‌​‌‌​‍propоsed a certain sum, that the aggregate was divided by twelve, and that thе amount thus obtained was adopted as *455the verdict. We shall not stop to inquire whether this affidavit shows any misconduct in the jury or not. Supposing it does, the affidavit was inadmissible. The affidavits of the jurors themselves оf their misconduct, are not admitted to impeach their verdict; Dana v. Tucker, 4 Johns. 487; a fortiori, an affidavit of a stranger, of their statements on the subject when not undеr oath, ought not to be received.

J. W. Payne, for the appellant. J. G. Marshall and A. C. Griffith, for the appellee.

The third objection is, that the еvidence did not authorize the verdict; but the objection ‍​​​​​‌​‌​​‌​​‌​​‌​​‌​‌​‌​‌​‌‌​​‌‌​​‌​‌‌​​​‌‌​‌‌​‍is not supported by the record. The evidence, we think, is in favour of the plaintiff.

The defendant contends that the words are not actionable, and that the judgment should therefore have been arrested; but we аre of a different opinion. There is not, it is true, a directly affirmativе charge, that the plaintiff had committed forgery; nor was that necessary. If the words were calculated to induce the hearеrs to suspect that the plaintiff was guilty of the crime, they were aсtionable; Stark, on Sland. 58; and we think the words in question, taken in connection with the circumstances under which they are alleged to have been spoken, are of that character.

Per Curiam.

The judgment is affirmed, with 3 per cent. damages and costs.