1 Stew. 231 | Ala. | 1827
delivered the opinion of the Court.
This action was brought by Purdy against Harris for slander. The declaration states that a suit, Harris against Purdy and others, had been tried before JohnB. Moore, a justice of the peace of Jefferson county, in which Purdy had given testimony on oath, and contains a colloquium, concerning the suit and his evidence, in which Harris said of Purdy “ He swore a lie,” meaning thereby that he had committed perjury in giving his evidence. The declaration has seven counts, but in all but the fourth, the statement of the cause of action is substantially the same.
On the general issue, verdict and judgement were rendered against Harris for g2500, and he now prosecutes this writ of error.
The case has been elaborately argued, but it will be sufficient to comment on a few of the many authorities cited on both sides.
The first assignment is, that the declaration does not fiver that Moore, the justice of the peace, had jurisdiction of the matter tried before him, or was authorized to administer oaths, or that Purdy was legally sworn.
By the Constitution and Laws of the State, justices of the peace are recognized as judical officers, authorized to try causes of certain descriptions, and to administer paths. In all the counts in which the words stated would
In Ward against Clark,
Second assignment. The 3d, 4th, 5th and 6th counts are insufficient, and the verdict is general.
In support of this assignment it is urged, that it does not appear that the defendant charged the plaintiff with having sworn falsely, on a matter material to the issue, and the case M‘Glaughery against Wetmore, is relied on.
In that case, the words “ that is false,” spoken by the defendant, while the plaintiff was giving evidence on the trial of a cause; referred directly to what the plaintiff had said but the moment before. It was practicable and convenient to shew, that the particular statement, to which the imputaion referred, was material to .the issue. The Court laid stress on the averment, that the evidence thus charged to have been false, was material; but did not say how the case would have stood without such averment. If the defendant, referring to the whole, instead of a particular part of the plaintiff’s evidence in the cause, had charged him with false swearing, would it -have been possible to prove that the allusion was to a
It has long appeared to me, that this rule as to good and bad counts, was adverse to substantial justice. If there is a bad count in the declaration, a demurrer, or an application by the defendant for instructions to the jury, will afford to the defendant a convenient and effectual means of preventing a judgement against him for matter which is not a legal cause of action. But our statute of 1824,
The third assignment is on the matters stated in the bill of exceptions, viz: The Circuit Court rejected evidence offered by the defendant, to shew that the plaintiff was incompetent, and ought nqt to have been examined as a witness in the suit to which the slanderous words referred; and refused to charge the jury, that if several suits between the same parties, were tried by the same magistrate, on the same day, the words were not actionable, unless it was proved to which of the suits they referred; and also, refused to instruct the jury, that without proof of malice, or of injury to the plaintiff’s character, he could recover only nominal damages.
The competency of the plaintiff was a question for the magistrate before whom he gave evidence. Whether he was competent or not, the defendant was responsible for having imputed perjury to him; and, in this action, an inquiry into his competency was wholly irrelevant. It is not shewn, or to be presumed, that in malting the imputation, the defendant explained to which of the suits he alluded. To which ever his allusion might be, the wrong to the plaintiff was the same. If the defendant had a justification, or any other matter of defence, which would have been good by referring the words to any certain one of the suits, there could have been no difficulty in so framing his plea as to give him the benefit of all proper testimony.
As to the other points in the bill of exceptions, the words as spoken, were in themselves actionable. It was, therefore, not necessary to prove special damage. The Circuit Court appears to have charged the jury, that no other evidence of malice was required than that the defendant spoke the words under the influence of unfriendly feelings. In this there was no error. Let the judgement be affirmed.
2 Mm’s R. io.
6 John's R. 82.
b Acts of im, pase 17