1 Cai. Cas. 347 | N.Y. Sup. Ct. | 1803
This is a motion in arrest of judgment. The verdict was general. It is urged on the part of the defendant, that the words in the first and second counts are not actionable,
We are of opinion, that the objection to the first and
With respect to the third count, we are of opinion, that it is sufficient to sustain an action; but as the verdict is general, the judgment must be arrested; the plaintiff, however, on application, might have been entitled to a venire de nova, on payment of costs.
Judgment arrested.
Actions of slander are of two kinds; first, where the words are actionable in themselves; secondly, where they become so in consequence of some special damage which they have induced. On a review of the English authorities, it would seem that all those words fall within the first division, which impute to the plaintiff treason, (Charter v. Peter, Cro. Eliz. 602; How v. Prim, 2. Salk. 696,) felony, (Cooper v. Smith, 1 Roll. Abr. 77; Jones v. Herne, 2 Wils. 87, overruling 3 Leon. 231,) or a liability to personal or other punishment (1 Roll. Abr. 37,) for any offence of moral turpitude, whether by indictment or otherwise, by the common law, statute law, or custom, Mayne
It is necessary that the words by which the actionable charge is made should be plain and unequivocal; (Harrison v. Stratton, 4 Esp. Rep. 218;) they should allege, not merely an intention, but a fact perpetrated, though the imputation need not be in direct terms; it is sufficient if, in common acceptation, the words amount to a charge; as “I have reason to believe,” (Miller v. T. Miller, 8 Johns. Rep. 77,) the plaintiff “is under a charge for peijury, and the attorney-general has given directions to have him prosecuted for perjury.” Roberts v. Cambden, 9 East, 93. So to say to a witness whilst giving his evidence in court, “ that is false," (M’Laughry v. Wetmore, 6 Johns, Rep. 82,) or of any one that “he has sworn to a lie for which he stands indicted." Pelton v. Ward, 3 Caines’ Rep. 73. But words actionable in them selves cease to be so if spoken in confidence, or in answer to inquiries made for security; (King v. Waring et Ux., 5 Esp. Rep. 14; Weatherston v. Hawkins, 1 D. & E. 110; M’Dougall v. Claridge, 1 Campb. 267;) or if between members of the same church in their course of religious 'discipline; (Jarvis v. Hatheway, 3 Johns, Rep. 180;) or in preferring a complaint before a m*
It has been ruled that an action for words conveying a charge of murder cannot be maintained without averring the person alleged to have been killed to he actually dead; (Philips v. Kingston, 1 Vent. 117 ;) but the contrary has been since determined, (Talbot v. Case, Cro. Eliz. 823; Waterman v. Say, cited 1 And. 121; Rivers v. Lite, 2 Str. 1130,) for unless the contrary appear in the declaration, it will be intended; and as falsity and malice are the gist of the suit, the old oases on this point do not seem to be supportable according to the principles of the action; which, though the plaintiff has been acquitted of the murder, permit the defendant, under a plea of justification, to go into the truth of the charge. England v. Bourke, 3 Esp. Rep. 80.
Where the words are not actionable in themselves, special damage must be alleged; therefore, charging another with adultery affords no cause of action without showing some immediately consequential injury sustained through, or by, the assertion; (Buys and Wife v. Gillespie, 2 Johns. Rep. 115;) which injury must be the legal result of the words; that is, the effect of something lawfully done in consequence of them, and not any tortious act; (Vicars v. Wilcox, 8 East, 1;) because, for such acts, the law gives specific redress. In slander of title the special damage sustained must be set forth; not merely that the plaintiff has lost the sale of his land. Lowe v. Harewood, W. Jones, 196. The evidence, in an action for words, need not be of the very words spoken; it is sufficient to prove their substance. Miller v. M. Miller, 8 Johns. Rep. 74. But if they be spoken of the plaintiff in his office as a magistrate, they must be so alleged; (Dole v. Van Rensselaer, 1 Johns. Cases, 330;) for it is not enough barely to state that the plaintiff was a magistrate. Where there are some good counts and some bad, upon which a general verdict is given, if the judge before whom the cause was tried, certify that the evidence applied only to the good counts, the plaintiff may, upon payment of costs, enter his judgment on them. Stafford v. Green, 1 Johns. Rep. 505 ; see Com. Dig., tit. Action on the case for Defamation; Bac. Abr., tit Slander; Gilbert v. Field, 3 Caines’ Rep. 329, and notes there.
See also Fox v. Vanderberk, 5 Cow.. 513; Gilman v. Lowell, 8 Wand. 573; Niven v. Munn, 13 J. R. 48; Chapman v. Smith, 13 Id. 80.
Anger v. Wilkins, Barnes, 478; Smith v. Haward, lb. 480, S. P. Sa per Buller, J., in Eddowes v. Hopkins, Doug. 377; see also Grant v. Astler, Doug. 722. See also, ante, p. 107, note [1].