Emery v. Miller

1 Denio 208 | Court for the Trial of Impeachments and Correction of Errors | 1845

By the Court, Beardsley, J.

The first two counts in the declaration state that a court of oyer and terminer was held in and for the county of Erie, before certain judges whose names are given; that a grand jury was duly empanneled and sworn at said court; that a certain complaint was pending before said jury, in respect to which the plaintiff was sworn and examined as a witness, and that the defendant, subsequently, charged the plaintiff with having sworn • falsely in the evidence so given by him.

The slanderous words are thus laid as spoken in reference to a particular occasion, and they must be proved substantially as laid. To admit proof of a general charge, when the plaintiff sets up that he was aggrieved by a particular one, might mislead the defendant, and would be against well settled principles. The defendant must meet the charge made against him in the declaration. If that is particular and he would justify hy proving its truth, the justification must meet the specific charge and need not go beyond it. As the plaintiff thus limits the defence to a particular subject and occasion, it would be palpably unjust to allow evidence of a different charge to be given. Parties must state the cause of action upon which they rely, with reasonable certainty and precision, and a substantial departure, on the trial, from the case made by the pleadings, is not to be allowed. (Aldrich v. Brown, 11 Wend. 596.) ■

What was said by the late Mr. Justice Cowen, in Jacobs v. Fyler, (3 Hill, 574,) should not be understood as conflicting with these views. “ It is not even necessary,” he there says, “ to prove that a suit was pending, or to show that the colloquium referred to any suit in particular, where the words in themselves amount to a charge.of perjury.” This remark was not made on a question of variance, but to show that certain words are actionable per se, as amounting to a direct imputation of perjury; and thus understood, the remark is correct. But- it must not be taken to affirm that general words, importing a charge of perjury, can be proved to support a declaration which alleges that the charge was specific and particular. ,

The first two counts are of the latter description, and the matters alleged, which point the slanderous imputation to the evidence given by the plaintiff on a particular occasion, should have been proved. The judge erred in holding this to be unnecessary. (Bullock v. Koon, 9 Cowen, 30; 4 Wend. 531, S. C. ; Power v. Price, 16 Wend. 467; 2 Stark. on Sland. 12, 50; 1 id. 406.)

' The evidence of a report that a Spaniard’s money had beer, stolen, was improperly admitted.. It was wholly irrelevant to any question before the jury, and should have been rejected.

Various other points are made in the bill of exceptions, hut, they are not, in all respects, stated with as much particularity and distinctness as they should he, and as the cause must go down for a new trial, they are not examined.

New trial ordered.