4 N.H. 110 | Superior Court of New Hampshire | 1827
We have examined the second count in the declaration and there does not seem to us to be. any legal cause for arresting the judgment. It is averred that the plaintiff had a brother by the name of Jesse, and that in a discourse of and concerning the plaintiff and of and concerning her intercourse with the said Jesse the -words were spoken. Now that the words, if, as it is averred, the brother of the plaintiff was meant by Jesse, contain an imputation of incest, no man who reads them can doubt. Enough is averred to make the words amount to an imputation of incest and the inuendoes seem to us very naturally to explain the words in that sense. 1 Saund. 243, note 4; 11 Johns. 54, Gidney v. Blake; 4 Coke, 17; 2 Binney, 34, Brown v. Lamberton; 7 Johns. 359, Lindsey v. Smith. In 1 Chitty’s Pl. 383, it is said that “ an inuéndo is only explanatory of some matter already expressed. It serves to apply the slander to the precedent matter.” And this is the only use made of any
The defendant has also moved us to grant a new trial on the ground that the jury were misdirected, and we have carefully considered this motion.
It is a general rule that, when words slanderous in themselves have been falsely uttered, the presumption is, that the intention was malicious. Such presumption may however be rebutted by showing that the words were not uttered in the malicious sense imputed by the declaration, or that they were spoken on an occasion which warranted the uttering of them.
But we think it very clear that such presumption cannot be repelled by the circumstance that the words were only once uttered and to a single person. The most malicious purposes of the slanderer may be fully accomplished by a single uttering of the words to one individual. And although a frequent repetition of the slander is stronger evidence of malice than a single uttering ; still the circumstance that the words were spoken only on one occasion has no tendency in itself to shew that they were not malicious. We are therefore of opinion that the jury were not in this respect misdirected.
It seems to us to be equally clear that it was not competent to the jury to presume that the intent of the defendant was not malicious from the circumstance that he stated the words as common report and showed that there had been such reports. 8 Johns. 455, Brooks v. Bemiss; 12 Coke, 132; 7 D. & E. 17.
There are cases, where common report may be admitted to mitigate the damages. 1 Maule & Selwyn, 284; 1 Holt, 533, Mills v. Spencer. But where is the case in which it has been decided that a jury may infer that an individual had no malice in propagating a slander merely from the circumstance that others had reported the same slander? We believe no such case is to be found. If it were once decided that such an inference was admissible, the
There is in this case a particular reason why it ought it. not to have been submitted to the jury to infer there was > malice from the reports proved to have been in circula-i; tion. For the most vile imputation that the plaintiff'had ;}been caught with her brother behind the barn seemed to i have been entirely of the defendant’s own fabrication. 1 No report of any such circumstances was shown. And *| it would he singular indeed if it might be legally submitted to a jury to infer that his intent was not malicious ; because some part of wrhat he had said against the plain-i tiff had been commonly reported. And we deem it only |⅜ justice to say that we think the evidence adduced by the | plaintiff in the trial very satisfactorily showed that the ⅜; defendant was the fabricator of all the reports which had í, been in circulation against her reputation.
Judgment on the verdict.
