Wood v. Cott

13 Vt. 42 | Vt. | 1841

The opinion of the court was delivered by

Redfield, J.

It is now too well settled to be again brought in question, that, where one of the counts in a declaration is defective, and the verdict general, judgment will be arrested. Haselton v. Weare, 8 Vt R. 480.

Lord Mansfield expressed regret, that such a rule had been established, Peake v. Oldham, 1 Cowper, 275. Grant v. Astle, Doug. 722; and in Connecticut and South Carolina, the courts have departed from the rule. Wolcott v. Coleman, 2 Conn. 324. Neal v. Lewis, 2 Bay, 204. In Virginia the legislature have interfered to abolish the rule. If the mere form of judicial proceedure is ever to be changed by the legislature, this might be deemed a just occasion.

There are, in the present case, proper introductory aver-ments of a court, cause pending, issue joined, and that plaintiff gave testimony, and a colloquium of the testimony so given by plaintiff, or that the words were spoken of and concerning the plaintiff and his testimony so given. This is true of all the counts, except the last, which is a direct charge of the crime of perjury, and requires no colloquium or innuendo. Hopkins v. Beedle, 1 Caines’ Rep. 347. 2 Ib. 91.

We consider the fifth count good. The words are, you, (meaning Nichols, and Wood the plaintiff,) both swore false, and they (meaning the same persons) knew it. These words, taken with reference to the introductory averments and the colloquium, do necessarily imply a charge of perjury. The court cannot, without a forced construction, suppose the testimony was given upon an immaterial point, which seerns to be almost the only' mode of escaping the inference, that perjury had been committed by the plaintiff. This point has been, in effect, repeatly decided. Holt vs. Scholefield, 6 Term R. 691. Pelton v. Ward, 3 Caines’ R. 73.

But the third count seems to us to be more defective. The words are, after the proper averments and colloquium, “ he, (meaning the plaintiff) has swore false.” There is no innuendo connecting the words with the precedent averments and defining in what sense the defendant used them, how he was in fact understood by others, or how he intended to be understood. The words themselves, in connexion with all the an-tece(jen). avermentS} fairly imply nothing more than, that in a regular judicial proceeding on a material point, the plaintiff had sworn to what was not true. Now this might be perjury or it might not. The words are, at most, equivocal. It is the proper office of the innuendo to determine in what sense the words were connected with the antecedent matter. Whether the words were meant to convey one or the other of two significations, for either of which they are equally adapted. All the precedents, which I have consulted, have the innuendo or averment, “ thereby meaning that the plaintiff had committed wilful and corrupt perjury.” I take it this is the proper office of an inuendo; It is true the innuendo will avail nothing without the antecedent aver-ments. There must be first the averments of the cause, the court, the trial, the testimony given, then the colloquium of and concerning that testimony so given by the plaintiff, and then, unless the words, in themselves, and in connexion with the precedent matter in the declaration, necessarily imply the charge of perjury, there must be the averment or innuendo, that the defendant used them in that sense. 1 Chitty’s Pl. 483.

In the case of Hawkes v. Hawkey, 8 East, 427, the declaration did contain the introductory averments, except that the words were spoken of and concerning the testimony so given by plaintiff, and the judgment was arrested for that defect, notwithstanding the proper innuendo. Since the time of Bhffiam’s case, 4 Coke’s Rep. 20, it has uniformly been held, that the innuendo, without the antecedent aver-ments and the colloquium, will not avail to extend the natural import of the terms.' There are some of the cases, and especially those decided while the courts adhered to the interpretation of the words, in mitiori sensu, which seem in effect to deny all use to an innuendo. James’ case, 4 Coke’s R. 17, is of this character. But since it has been settled, that in actions of slander, courts of law are to understand words as the rest of mankind do, and that a man cannot “ slander in one sense, and defend himself in another sense of the same words,” the proper office of an innuendo is to determine in what sense the words arc used, and this usually, perhaps always, with reference to some antecedent allegations in the declaration. This point is expressly ruled in the case of Oldham v. Peake, 2 Wm. Black. R. 959. It was there held that an innuendo might determine that the word “ death ” was used in the sense of “ murder.” The word death being equivocal, the innuendo became necessary to show in what sense it was used by defendant, and the jury must determine whether the defendant did in fact use it in that sense. In the same case, on error in the King’s Bench, 1 Cowper, 275, Lord Mansfield expresses himself to the same effect. The truth of the averments and innuendos are material. On demurrer they are conceded to be true, and on -trial are to be found by the jury. King v. Horne, 2 Cowper, 672. Van Vechten v. Hopkins, 5 Johns. R. 211. But, unless these averments be placed upon the record, the jury could never be required to inquire into their truth. Ch. J. De Grey, in King v. Horne. Roberts v. Camden, 9 East, 93. We think, therefore, that it was necessary to aver in what sense the defendant used the words, which not being done, the jury were not required to inquire, under the general issue, in what sense they were spoken, and from their finding on that issue, it cannot now be determined in what sense the defendant did speak them.

This subject might be further illustrated by the cases where slander has been alleged to have been communicated in a foreign language. It must there be averred that the persons to whom it was addressed understood the language, and also what is the import of the words used, all which aver-ments are to be proved to the jury under the general issue-The same is true where slander is alleged to have been conveyed in cant or flash language, as it is termed among the initiated. This is a kind of dialect invented by desperadoes and idlers in order to communicate with each other in secrecy. To say of one, that he had a “ boodle,” which he intended to distribute, might be slander, or not, as the word boodle was used to signify a bundle of counterfeit money, or a bundle of idle gossip, or any other false and simulated matter. If this verdict had passed upon the general issue alone, judgment must have been arrested.

But, when a case comes here on exceptions, the entire record is before this court, and it is our duty to look into that record. We there find that the defendant pleaded in bar the' truth of the words spoken, and therein defined the sense in which he used them. He there says that the plaintiff, ’in his testimony on the occasion set forth in the declaration, “ had knowingly and wilfully sworn false, thereby committing wilful and corrupt perjury, and therefore he spoke the words, as well he might.” This is an unequivocal admission by the defendant of the sense in which he spoke the words, by him placed upon the record, and has been often held sufficient to cure the defect of the want of a colloquium, much more of the want of an innuendo. Vaughn v. Havens, 8 Johns. R. 84. Drake v. Corderoy, Cro. Chas. 288. The result is, therefore, that the judgment of the county court, upon the whole record, was correct, and that judgment is affirmed.