Royce v. Maloney

58 Vt. 437 | Vt. | 1886

The opinion of the court was delivered by

Rowell, J.

The first objection to the first count is, that it does not allege that The Central Vermont Railroad Company had any cause or causes in which it was a party and in which the plaintiff sat as judge or chancellor or rendered any decision. It is true that there is no sufficient allegation that said company was a party of record to any of the suits alleged to have been pending; but such an allegation is not necessary. It is enough that said company was a party in interest to said' suits, and that is virtually alleged. It is somewhat doubtful whether there is an allegation that plaintiff ever acted in a judicial capacity in any of said suits, which, perhaps, is necessary in order to warrant a portion of the innuendo at least. In the construction of pleadings, the rule that everything is to be taken most strongly against the pleader, must be applied with reference to the rules relating to the degree of certainty and precision required in pleading, one of which is, that a pleading is not objectionable as ambiguous or obscure if it be clear enough according to reasonable intendment and construction, though not worded with absolute precision. Again, the meaning of words and phrases very frequently depends upon the context, of which Spyer v. Thelwell, 2 C. M. & R. 692, and Deriemer v. Fenna, 7 M. & W. 441, are illustrations. And in Rex v. Stevens, 5 East, 244, 257, Lord Ellenborough said, that when matter is capable of different meanings, it does not appear to clash with any rule of construction, applied even to criminal proceedings, to construe it in the sense in which the pleader must be understood to have used it, supposing him to have intended his pleading to be consistent with itself.

Applying these rules, we think there is an allegation of judicial action by the plaintiff in the suits named. The count alleges the successive elections of the plaintiff as judge since 1870, and that he has presided at all the sessions of the County Court and the Court of Chancery in the counties of Franklin and Grand Isle, and sat many times in the Supreme Court and participated in the proceedings thereof. It then goes on to allege the existence of The Central Vermont Railroad Company, its location and business, and then proceeds as follows: And said Central Vermont Railroad Company has had large interests involved in litigation in various suits pending in the said courts, in which this plaintiff has presided as judge as aforesaid in Franklin County aforesaid, and participated- as judge of said Supreme Courts as aforesaid.” We think the preposition “in” before the word “which,” links that relative to the word “suits” rather than to the word “ courts,” thus making the allegation mean as though it read, “ in which suits,” or, “ in the tried of which suits, this plaintiff has presided,” etc., “ and participated,” etc. This construction has reference to the context, and gives force and congruity to all the language quoted; while if we treat “in” as linking “which” to “courts,” what follows adds nothing, but is mere tautology, as the entire sense would be clearly expressed in the words, “ said courts.” And besides, we should have incongruity of language, being then compelled to read, “in which courts [meaning all the courts above mentioned] this plaintiff * * * has participated as judge of said Supreme Courts as aforesaid.”

The second objection to said count is, that no time is alleged when said company had interests involved in litigation, etc. The want of such an allegation is probably but matter of form, helped by the statute unless assigned as special cause of demurrer. Higgins v. Highfield, 13 East, 407; Steph. Pl. 265. But in the preceding part of the sentence of which the allegation quoted is the last member, it is alleged that “ during the greater part or all of the time from the year 1870 to the time of the committing of the said several grievances by the said defendants,” etc., there existed a corporation called The Central Vermont Railroad Company, located at, etc., and operating an extensive line of railroad, etc., and then comes the allegation quoted, which is connected with the preceding part of the sentence by the conjunction “and,” thus making the time previously alleged apply to the facts stated in the latter part of the sentence, according to the rule, that when several facts are stated in one continuous sentence or in several sentences connected by the conjunction and, time, though alleged but once, applies to every fact. Taylor v. Welsted, Cro. Jac. 443; 1 Chit. Pl. 258.

The next objection to said count is, that it contains no averment that at the time of the publication complained of the plaintiff was an attorney-at-law, admitted to practice in the courts of this State. Such an averment is of course unnecessary to sustain the innuendo of bribery, and is equally so to sustain that of judicial action by the plaintiff in the company’s causes in which he had been retained, for such action in such causes would be gross misconduct on plaintiff’s part, and just as much prohibited by statute as though he was a lawyer admitted to practice. Although the statute did not formerly as now in terms prohibit a justice from acting as such in cases in which he had acted as counsel, yet in Freelove v. Smith, 9 Vt. 180, a consideration of the consequences that might follow from countenancing such a proceeding, impelled the court to hold as within the spirit of the statute that a grand juror, not shown by the case to have been a lawyer, who acted both as grand juror and counsel in prosecuting an offense before a justice, was incompetent to try a civil action brought to obtain redress for the supposed criminal act.

The only other objection to said count is, that the language of the publication imports at most only a mere suspicion of a retainer, and so is not libelous, and Tozer v. Mashford, 6 Exch. 539, is the main authority relied upon. But that was not a question of pleading, but of the correctness of the direction to the jury. The words were, “ I have a suspicion that you and Bone have robbed my house, and therefore I take you into custody.” The declaration alleged an intent to make an absolute charge of felony, and the court left it to the jury to say whether that was the intent or whether the imputation was of a mere suspicion of felony, and the jury found the latter. The direction was held right, and a motion for a rule nisi to set aside the verdict was refused. It is obvious that the question there made could not have been raised by demurrer, for the innuendo explained the meaning of the word “ suspicion” to involve a positive charge of felony, and as it was legally susceptible of that meaning, it was for the jury'to say in what sense it was in fact used. So here, the count alleges an intent to make a positive charge against the plaintiff, and the language being susceptible of involving such a charge, it is for the jury to say what was meant in this behalf.

It is objected to the second count that the publication declared upon Has no tendency to bring the plaintiff into contempt or ridicule, and so is not libelous per se, and is not made libelous by the prefatory averments. But we think the publication, in the light of the prefatory averments, amounts to a charge of misconduct in office, and so is libelous if not true.

The only other objection to this count is, that it does not allege that plaintiff was a lawyer, admitted and qualified to practice in the courts of this State. Such an allegation is 'not necessary. The false charge of such a partnership as the count alleges was meant, would be sufficiently virulent to make it libelous if the plaintiff was not a lawyer.

Judgment affirmed and cause remanded, with leave to defendants to replead on the usual terms.