1 N.J.L. 16 | N.J. | 1790
delivered this term the opinion of the court. After having stated the case at length,' — Six reasons have been assigned for setting aside the award of the arbitrators, of which all except the third and fourth appear to have been abandoned by the counsel on the argument. Those which have been maintained allege, that the words laid in the declaration to have been spoken by the defendant, are really not actionable.
When the argument was had in the Supreme court at the last term, it was not from any doubts as to this particular case that induced the court to postpone their decision, but as an important question arose upon the construction of the act
With respect to the present case, the declaration must now be taken to be true in all its parts; from whence it results that the words therein mentioned were spoken of the plaintiff by the defendant falsely and maliciously.
The point principally insisted on by the defendant’s counsel, and upon which we took time to deliberate was, that the report finds the defendant guilty of the allegations in the declaration, and that die words set forth in the first and second counts are not actionable. The objection is, they do not charge, that plaintiff was delivered of a child, nor that the child was chargeable or likely to become chargeable to the township; and that if the words as laid in the declaration are not actionable, the Referees have been mistaken in point of law, and the report should be set aside.
A number of authorities have been cited to establish the first point, namely — that a charge of fornication is not actionable. It certainly appears, that in England by the common law no such action could be sustained, unless loss of marriage, or other special damage be laid and proved. The act of assembly has also been cited to prove, that simple fornication not followed by the birth of spurious offspring, is not punishable by any of its provisions. This interpretation of the act being denied by the counsel for the plaintiff', it becomes necessary for this court to declare its opinion, not only as it relates to this case, but as a solemn settlement of the question for the future.
The strong objection urged to the argument for the defendant is, that it is absurd to suppose the consequence attendant upon this crime to be indictable, and not the crime itself; and that this consequence depends not upon the will of the parties concerned, neither can it in reason, nor ought it in law to constitute the offence. It was also contended, that from the preamble and title of the act, it appears evidently to be level-led at the immorality of the deed, which is in no degree af
1 st It is a penal act, and by the rules of construction cannot be extended to cases which do not come within its express words.
%d The whole section must be taken together, as containing a description of the crime intended to be- provided against.
3d The word “ such” repeated three times in this section, and always referring to the crime of fornication first mentioned, evidently shows that the legislature intended to create no crime but that for which a possitive punishment was prescribed.
4th When the act proceeds to point out the punishment to be inflicted upon the man, it cannot be construed to extend to any other fornication than such as is followed by issue.
3th In other words — the act describes the crime, as consisting in fornication attended with issue; the whole section is connected, and never was intended by the legislature to be considered separately.
6th This construction is consonant not only to what the law is, but to what it ought to be. Because — ■
Where the fornication is productive, the crime maybe proved in some measure by this circumstance, and by other facts which would not render the trial indecent. On the other hand, if when unproductive it still remains an indictable offence, by what proof can the fact be established. It would lead to inquiries too indecent to be brought before the public; it would subject behaviour perhaps at worst merely imprudent, to critical investigation; and leave the actions and behaviour of innocent persons exposed to idle conjecture; to unwarrantable constructions, and impertinent éuriosity; and the indecency of the inquiries would produce more harm than prosecutions would do good.
But we think this action nevertheless sustainable — “because—
1 st The woman is charged with the crime so far as fairly to intend her an object of punishment. In February 1788 she is declared to be single and with child; — -in January 1789, she is alive, and damages are awarded to her. We have a right to infer her therefore neither dead nor married, and such intendments may fairly and legally be made to support a righteous award. In trespass “ quare pisces suos cepit scperali piscaría,” after verdict, it was moved in arrest of judgment that the fish could not be called “ suosn unless in a trunk or pond, and that a party had no more property in fish in a separate fishery than in a free fishery. The court said they would make any intendments to support the verdict, and. that they would intend them in a pond,
The ancient and unreasonable rule, that words spoken are always to be understood “ in mitiori sensun has been long since properly exploded,
Again — putting all this out of the question, we are clearly of opinion that it is not competent for a party who submits to a reference, and agrees that judgment shall be entered, and execution issue, to come forward at this stage and take exception to the declaration. The defendant’s counsel were called upon to show a case where, after an award made upon a reference by consent, the court ever looked into the declaration to see if the action was sustainable. The opinion of Lord Chancellor Hardwicke in the case of Medcalf v. Ives,
It is somewhat remarkable also, that on this motion to set aside the award of referees of the parties own choosing, none of the reasons go to the face of the azvard (1 Vent. 243.) or to misbehaviour in the arbitrators;
Upon the whole, calumny in general is of a nature so odious and detestable, and in the present instance so likely in its consequences to prove injurious not only to the plaintiff personally, but to strike at the very peace of society, that the court have much pleasure in declaring the action maintainable, and further that for charging an offence for which the laws of England provide a spiritual punishment only, an action will lie here. I confess I felt upon this argument no small uneasiness to hear it so strenuously contended, that for so atrocious an injury, the laws of New- Jersey provided no redress, because we were without a court which the genius of the country has not, nor ever will admit among us.
Rule discharged and azvard confirmed.
Note. — See the case of Da Costa v. Jones, Cowp. 729. which was probably alluded to.
1 Ventris 122
Beaver v. Hides, 2 Wils, 300.
Note. — Vide 4 Bac: Abr. 446. for the law on this point.
1 Sid. 45. The C. J. might have mentioned that with regard to fornication and adultery the law was the same, and that these crimes were during that period made cognizable by the civil magistrates. Hardres 107.
1 Atkyns 63
а) Note. — This principle has been recognized to its full extent in the case of Forseth v. Shaw, 10 Mass. Rep. 2J3. where it was held by the court that the submission of an action by a rule of the court to referees mutually chosen by the parties, operates as a waiver of all exceptions to the forms of process, or may be considered as a release of errors, or an estoppel to the assignment o‘ errors in the proceedings anterior to such submission.
1 Salk. 73. pi. 11