3 Cai. Cas. 73 | N.Y. Sup. Ct. | 1805
Lead Opinion
Per curiam, delivered by
The first inquiry will naturally relate to the charge in the three last counts. The office of an innuendo is to contain and design the person who was named in certain before. “ It cannot alter the matter or sense of “ the words themselves.’’ It cannot extehd the Words, by an imagination of an intent not apparent by any precedent words, to which the innuendo should.refer, " in effect it stands in lieu df ⅜
The plaintiff's counsel has called in to his aid, the plea of jusfication, as rendering the intent to charge perjury clear and certain; and there are authorities which seem to sanction a reference to a plea with that view. But I cannot accede to the doctrine. The case of Badcock v. Atkins, Cro. Eliz. 416, appears to me to be most consistent with principle. The court there held that the declaration which was insufficient in substance could not be helped by the plea. The question in-that case was, as to the certainty of the person slandered, the plea justified the words, and still the declaration was holden bad. The plaintiff to sustain an action must have a complete right to bring it at its commence-merit. But, on the former ground, my opinion is, that the defendant take nothing by his motion. I think the pleadings in this case highly censurable. Instead of one plea of justification to all the counts, there are the same pleas to each count. There 1 are also nine counts for substantially the same words, and a special replication to each of the pleas. The attornies on both sides , , . are m fault, and in the taxation of costs the plaintiff ought to be allowed for only two of his counts, and one replication; and the defendant’s attorney, as against his client, to be allowed &ui for one of his special pleas.
Concurrence Opinion
I concur in the opinion delivered.
I am unfortunate enough to differ from the court.
If the words used, be not in themselves actionable, the judgment must, in my opinion, be arrested, notwithstanding the plea of justification, on which the plaintiff so much relies, as evidence of the defendant’s intention or meaning to charge him with perjury. It is the import of the words themselves, and not the defendant’s intention, which is the criterion of their being actionable or not. This meaning cannot be assigned to them merely by an innuendo., or depend on a secret intention, but must be collected either from the criminal sense in which the expressions are usually understood ; or, from the colloquium which led to them, it must appear they could have no other meaning. Let a man’s intention be ever so mischievous or malicious, if his reproaches, however strong, impute no crime, nor bring the party of whom they are uttered into danger of legal punishment, he can be no more responsible than one who intends, but does not perpetrate a crime. Nor will any subsequent explanation by him, confer a right of action for words not actionable at the time they were spoken, or in the manner in which they were used. This explanation itself may be the ground of a suit, as being a new slander, but it can never make that actionable which was not so before. Were one to declare against another for calling him a fool, would the plaintiff be permitted to shew that the defendant intended to call him a thief? Nay, would the defendant’s own confession in open court to that effect support a declaration of this kind ? The action is brought for the injury which the words are calculated and supposed to have produced ; not for the intention from which they proceed. This is precisely the case here. The defendant had «charged the plaintiff with swearing to a lie. These words, it is admitted, are not actionable, when not applied to swearing in a judicial proceeding, but are laid generally, without any colloquium from which it can appear that they were used with reference to some proceeding, wherein the plaintiff had been examined as a witness. It must be seen, by apt words in the declaration, that the defendant referred to such proceeding, or, whatever his intention may have been, those who heard them could only consider the plaintiff as a liar, which, however discreditable or disgraceful, would not have given a right of action, notwithstanding the case in 1 Buls. 40. Reasonable as the rule there laid down may be
This case proceeds on a supposition that the intention with which words are spoken is material. It may be so as it respects the measure of damages, but not as' it regards the right to recover. No malice or evil intention can render actionable, words in themselves innocent. I have examined every case cited in the margin of this one, in support of the decision, (and they are numerous,) but not one of them is in any respect like it. They are cases on contracts where one party or the other, in the course of pleading, has admitted some fact, which was material, and which the court would not afterward permit him to contest or deny ; but here, the fact admitted by the justification is immaterial, because slander can never consist in what a man intends to publish, but in what he does actually declare ; and so it was determined in Badcock v. Atkins, which is a very strong decision in favor of the defendant, and at open war with the one just examined. It was doubtful from the declaration, whether the words spoken applied to the plaintiff. This fact however was admitted by the plea, but the court say “ the declaration was not " good, and although the defendant by his plea confesses that he intended them of the plaintiff, yet that shall not help the "
But if the plea of justification, be not a sufficient cause for not arresting the judgment, it is said the words are actionable, inasmuch as the defendant alleged that the plaintiff stood indicted for what he then charged him with. Here we must again recur to the words, and if they do not contain an imputation of a crime or offence, the allegation of an existing indictment will not alter the case. It is very possible, that a person, from ignorance in a grand jury or other cause, may be indicted for a matter not crimina], but unless what is charged, be so, it is no slander. Were one to say to another, are you a mahometan or a jacobin, for which you stand indicted, would these words, on account of such addition, be actionable ? Certainly not. Now as no man can legally be indicted or punished for being a liar, his being called so, and being charged with being indicted, as such, can give him no right of action any more than his being charged with being indicted for any other immorality not punishable by law. I am not for extending the action for words,but for confining it as much as possible within its present limits. Abusive expressions which expose a man to no punishment are beneath the dignity of the law, and unworthy of legal cognizance. A man of character cannot be affected by them, and he who has none, should not have his angry passions gratified by an appeal to courts of justice, whose time may be much more Usefully employed in attending to other matters. The judgment in my opinion must be arrested. I concur however in the opinion of Mr. Justice Spencer, as to the pleading.