Thirman v. Matthews , 1 Stew. 384 ( 1828 )

JUDGE CRENSHAW

delivered the opinion of the Court.

The errors insisted on maybe reduced to three. 1st. That the words laid in the counts of the declaration are not actionable. 2nd. That some of the counts are bad, and the verdict is general; and 3rd. That there is neither time nor venue laid in the second and third counts.

Words to be actionable in themselves must convey a clear and direct imputation of crime ; they must charge an indictable offence which either involves moral turpitude, or which if true, would subject a party to infamous punishment. A colloquium is necessary where the words are ambiguous, or where the subject matter to which, or the person to whom they allude, are uncertain. If the words are unequivocal, and convey a direct imputation of crime, and point out with certainty the person to whom they are intended to apply, a colloquium would be. unnecessary.

It has been said that the word counterfeiter has various significations. The dictionary has been referred to, and the treasures of Shakspeare have been called into requisition to prove that the word has an innocent as well as a criminal meaning. Fallstaff said to die was to counterfeit, for he was a counterfeit who had not the life of a man; and when Sir Walter Blunt had assumed the dress and costume of the king, Douglass is made to say to him “ who are those that counterfeit the person of a king ?” In Walker’s dictionary “a counterfeit or counterfeiter, is said to be one who personates another, an impostor, a forger.” In common parlance, a counterfeit is a likeness or resemblance, intended , to deceive, and to be taken for that which is original and genuine; and when applied to persons, is seldom used in an innocent sense.

In legal parlance, a counterfeiter is one who unlawfully makes basé coin in imitation of the true metal, or forges false currency, or any instrument of writing, bearing a likeness and similitude to that which is lawful and genuine, with an intention of deceiving and imposing upon mankind. It is a species of the crimen, falsi, is indicia* He either by common or statute, law, involves moral turpitude, and is punished infamously.

But it has been contended that words are tó' be taken in mitiori sensu, and that so long as the words may be innocently construed, a slanderous meaning ought not to be attached to them. This was the old rule, but the rule now is, that words shall be taken in that sense in which they are generally understood, the sense in which they are usually received by the community at large. The expression that Robert Matthews is the counterfeiter of Morgan county, would, I apprehend, convey to the generality of mankind, in this country at least, the idea of crime, the imputation that he was guilty in a legal sense of counterfeiting the coin or other currency of the country, and that he was liable to be prosecuted and punished.

But it was objected that some particular species of counterfeiting should have been expressed, otherwise the words are too general and indefinite, and a colloquium becomes necessary. If a colloquium had been alleged in the declaration, it would be equally necessary to prove it on the trial. Hence, if this objection were to prevail, it would establish a dangerous rule. ' If there was no colloquium in fact, and the words charged no particular species of counterfeiting,' but imported counterfeiting generally, by this rule, the action of slander could not be maintained, though the injury might be equally great. He who destroyed character in general terms' would escape justice, while the more specific slanderer would.be punished.

I am peisuaded that words importing a general imputation of murder, robbery, counterfeiting, or other crime, are slanderous and actionable of themselves, though the person murdered or robbed, or the particular species of counterfeiting be not named in the words ; and that if the charge be positive and the person certain, a colloquium is unnecessary.

The result is, that I think all the counts of the decía-ratipn are good except the first, which conveys no positive charge of crime, and is too uncertain without the aid of a colloquium. And this brings me to the second assignment of error, viz : ought the judgement to be reversed where there is one bad count, and the verdict is general in all the counts? An error of this kind has been held fatal. But this objection is now cured by our statute of jeofails; which provides, that if a sufficient cause of action be set out in the declaration, and a material issue has been tried, the judgement shall not'be reversed.

Note. See Minor’s Ala. Itep. 138, 259.

As to the third assignment, which was not strenuously urged, I think the time and place is laid with such certainty at least, to be good after veidict. It is the opinion of the Court thát the judgement be affirmed.

Judge White not sitting.