Beswick v. Chappel , 47 Ky. 486 ( 1848 )

Chief Justice Marshall

delivered Uie opinion-of the Court.

Conceding that the first count in the declaration sufficiently shows that the words spoken by the defendant should be understood as importing the charge that the plaintiff had sworn to a lie in the oath which he took as a viewer of a proposed alteration of a public highway, under the appointment of the County Court, we are of opinion that this imputation is not a charge of perjury, nor equivalent to it. The mere breach of the duty pei-taining to the office of a viewer, and which by the oath the party undertakes to perform with fidelity and to the best of his skill, is not the crime of perjury, which in common as well as legal understanding, applies to the statement of a fact in the course of some judicial •or quasi judicial proceeding, and not to the statement <of a promise, nor to an oath of office. And if perjury ■could be committed in taking such an oath with the preconceived determination to violate it in a certain particular, which was'afterwards actually done, all the circumstances necessary to demonstrate the crime should '■be stated in the declaration, so that it might appear that the'words of the defendant did in fact, when applied to the subject, import a charge of perjury.

“Ifl had sworn to what you did 1 would have sworn a lie,” do notofthemselves import a charge of perjury. ‘You moved the corner tree,’adding, ‘the defendant thereby referring to and speaking of a corner tree between said plaintiff and the survey of said Chappel,’ not actionable without a distinct averment showing that the words were used in reference to some corner tree of a particular survey.

The first count is insufficient, because the words therein stated, viz-: “ If I had sworn to what you did, I would have sworn to a lie,” -do not of themselves Import'a charge of perjury, and the colloquium or explanatory statement of the facts to which those words refer, does not show that the words, as applied to those facts, should be understood as importing such a charge. The introduction of this statement of facts, after-, instead of before the statement of the words themselves, is a violation of the rule which requires the facts to be stated in their natural order-, and as it detracts from the clearness and intelligibility of the statement, it is a serious fault in the pleading. But -if all the necessary facts be stated in such a manner as that they may have their proper bearing, the objection that they are stated in one part of the declaration instead of another, is not deemed fatal.

The second-count alledges these words to have been spoken by the defendant, “you removed the corner tree,” and adds: “ The defendant thereby referring to and speaking of a corner between the survey of said plaintiff and the survey of said Chappel,” &c. The wilful and fraudulent removal “of any-corner tree to any survey in this Commonwealth,” is made a penitentiary offence by the act of 1809, (Stat. Law, 1286.) And words falsely charging this offence, are undoubtedly actionable. But the words “you removed the corner tree,” do not of themselves import this charge, unless used in reference to the corner tree of a survey, &c. and that xhey were so used, must be shown by a distinct averment that the defendant was speaking of some particular survey, and of a corner thereof, which averment is called the colloquium. There is no such averment in this count. The words “ the defendant thereby referring to, and speaking of a survey,” &c., amount to nothing more than an inuendo, expressing the meaning of the words which the defendant is alledged to have spoken. And as the words themselves do not, without the aid of extraneous matter, import this meaning, that extraneous matter should have been averred, and then the words, if stated to have been spoken of and concerning it, might have borne the meaning which the plaintiff desires to give to them.

W. R. Thompson for plaintiff; Hardin and Riley for defendant. No deduction from words spoken, not justified by their natural import, is warranted without a colloquium, which gives the meaning pointed out by the inuendo.— The inuendo cannot extend the meaning beyond the previous statement.

But, instead of making this statement of the extraneous matter, and of the colloquium, the declaration attempts to deduce, both from the words themselves, and thus to extend their meaning, which is inadmissible. This count is therefore wholly insufficient.

The third count is subject to the further objection, that the removal of “a stake,” even if it was the corner of a survey, is not a penal offence, the denunciation of the statute being confined to the removal of a earner tree.

Wherefore, the declaration being altogether defective and insufficient, the judgment for the defendant is affirmed.