47 Ky. 16 | Ky. Ct. App. | 1847
delivered the opinion of the Court.-
Tins was an action for slander in charging the plaintiff with having stolen a hog. Besides the general issue, the defendant filed a special plea stating in substance, ■“that a third person, a neighbor., had sent for and informed him that plaintiff had stolen her hog and had it in his pen; that at her request he went with her to get the hog, and attempted to satisfy the plaintiff, by witnesses, that the said hog, then in his pen, belonged to said neighbor, áre., but he then refused to surrender it, but after-wards turned it .put of the pen; and that afterwards, at the time of speaking the words mentioned in the declaration, a quarrel arose between plaintiff and defendant, 'in which abusive language was used on both sides, and •defendant, in said quarrel and in allusion to said hog, and to the manner in which plaintiff had held and kept said hog and refused to give it up, did say that he, the plaintiff, was a hog thief, for he had stolen J. M’s. hog, for he had it in his pen and refused to give it up, but afterwards
The plea does not show that after-making the charge of theft, the defendant stated such facts as made it clear either that -there was no theft in fact, or that there could be none in the case stated, or that he did not intend to charge a theft.
Under the most liberal doctrine applicable to the utterance of slanderous words, the defence, if intended to be made on the first ground assumed in support of the plea, must rest upon one of the three facts just mentioned: Trabue vs Mays, (3 Dana, 138;) Smith vs Hawn and wife, (4 B. Monroe, 385;) (1 Chitty’s Pleadings, 528-9.)
The fact that such a defence may be given in evidence under the general issue, does not prove that it may not be specially pleaded. On the contrary, although in actions on the case except for slander, almost every defence, wJhether by way <of discharge, excuse or justification, may be given in evidence under the general issue,
- it is yet a universal rule -that every defence which does not contradict the declaration but admitting the facts therein alledged, relies upon new facts which show that the action does not lie, may be specially pleaded.
And in all actions on the case and other actions for •torts, where the defence admits the right of the plaintiff
Under these principles we are of opinion that the defendant might, by special plea, have introduced new matter to show that the words were uttered under such circumstances, or with such explanations, as taken altogether, relieved the plaintiff from the imputation of crime, which they import. But a plea of that character must state the explanations or other circumstances relied on, so that it may be determined on the face of the plea, whether they are entitled to have the effect claimed for them. Upon the plea before us, it is not certain whether the defendant did not and does not still intend to charge the plaintiff with having stolen the hog. The fact that the plaintiff, after claim and proof of-ownership was made by another, turned the hog out of his pen, does not prove that he did not put him there feloniously, and the statement of that fact by the defendant, as alledged in the plea, might have been intended and understood as a confirmation instead of a withdrawal of the charge. The other circumstances referred to but not stated in the plea, may have been of a similar character; and the plea clearly makes out no defence in the first aspect in which it is presented.
Upon the second'ground: we think it equally clear that the mere incidental statement in the plea, that a third person named therein, had informed the defendant that the plaintiff had stolen that person’s hog, is in itself no justification or excuse for a reiteration of the charge by the defendant, and especially without reference to the' name of his informant. The fact that the defendant had heard from another the charge which he himself after-wards circulates and gives credit to, does not repel the implication of malice arising from the falsehood, and un
In every view of the plea, we are of opinion that it is insufficient, and that the Court erred in overruling the demurrer to it.
Wherefore, the judgment is reversed and the cause remanded, with directions to sustain the demurrer to the defendant’s special plea, and for further proceedings.