Canterbury v. Hill , 4 Stew. & P. 224 ( 1833 )

Taylor, J.

Before investigating the main point in this case, it is necessary to dispose of the question which has been made, as to the necessity of inserting the special inducement, that a suit had been tried, and the plaintiff examined as a witness, in each count. It would seem to be reasonable, that the inducement should apply to the whole declaration: because, no matter how different the words may be, which are charged in the different counts, to have been spoken, they all may be referred to one trial. Accordingly we find in Chitty’s forms,^a this special inducement laid previous to the general statement of the defendant’s malicious intent, and each succeeding count beginning with charging the words alleged to have been spoken, and referring to the inducement thus, “ did publish a certain other false, scandalous, malicious and defamatory libel, of and concerning the said A. B., and of and concerning the said action which had been depending as aforesaid,” &c.

In the inducement in the declaration, in this case, it is alleged, that “ a certain controversy under the attachment law, had been depending before' Nathan Tabor, Esquire, a justice of the peace in and for the county of Bibb, and State of Alabama, between Riley Kellum and Daniel Canterbury, the trial on ivhich had been then lately had before the said justice, in and for the county of Bibb, and on such trial the said Daniel Canterbury had been and was examined on oath, and had given his evidence, as a witness,” &c.

In each of the counts it is alleged, that the defendant had charged the plaintiff with having sworn falsely, in different words, upon the trial between Kellum and Canterbury, before esquire Tabor, “ meaning Nathan Tabor, esquire, aforesaid.” It is contended, by the counsel for the defendant, that here is no sufficient averment, that Nathan Tabor was a justice of the peace. It is believed, however,' to be fully sufficient: the words “ aforesaid” referring necessarily to the inducement, which alleges, that Nathan Tabor, before whom the trial was had, is a justice of the peace for Bibb county, and the words, “Nathan Tabor, esquire, aforesaid,” must have been intended to mean, Nathan Tabor, a justice of the peace, as aforesaid ; and can be understood in no other way. Every substantial allegation is contained in each of the counts, and formal defects, if they existed, could not be noticed here.

The main enquiry is, were the words which were proposed to be proved, and which are charged in the fourth count, but which the Court would not permit to be given in evidence to the jury, without the production of the original papers, actionable per se, or with the addition of proof, that Nathan Tabor was a justice of the peace, which, it is admitted by the bill of exceptions, was made.

The words are, “he (the plaintiff) has sworn a lie, on a trial between him and Riley Kellum, before esquire Tabor;' I can lay his oath aside, and will do it.”

It is laid down in Siarkie, on slander, page 78, that to say of another, that he is foresworn before a justice of the peace, is actionable; or before such a person, naming him, provided it can be shown, with certainty, that he is a justice of the peace.

It is presumable, that there was something in the cases going to show, that the words were spoken relative to an oath administered by the justice, in the discharge of his official duties. In this case such is alleged to have been the direct charge of the defendant against .the plaintiff. The words are, that he had sworn a lie, on a trial between him and Kellum, before esquire Tabor. This esquire Tabor was proved to be a justice of the peace, therefore it would be a most strained construction to presume, that the defendant alluded to something else, than the trial of a suit before the justice, of which he had jurisdiction. We can make no such presumption, but must receive the words in their ordinary acceptation.

The words which the plaintiff offered to prove, with the additional evidence, that Tabor was a justice of the peace, were actionable within themselves.

It is unnecessary to consider the correctness of the decision requiring the production of the original papers as the best evidence that a suit had been pending before the justice.

The judgment is reversed, and the cause remanded.

a 2 Chitty’s p.296.