Rundell v. Butler , 7 Barb. 260 ( 1849 )

By the Court, Parker, J.

There were no such words laid in the declaration as those proved by James Palmer and Obadiah Caldwell. They were no part of any conversation previously proved, nor were they necessary to explain any other evidence. It is now well settled that actionable words, not counted on, can not be given in evidence. (Keenholts v. Becker, 3 Denio, 346. Root v. Lowndes, 6 Hill, 518.) It is necessary then, to ascertain whether these words were actionable, or whether they could have been made so when supported by-proper averments and proof. It is not necessary that a charge, to be actionable, should be made in direct terms. It may be made in ambiguous language, or by insinuation. (Gibson v. Williams, 4 Wend. 320. Andrews v. Woodmansee, 15 Id. 232.) It is only requisite, in such case, to aver that the defendant, by means of the words, insinuated and meant to be understood by the hearers as charging the plaintiff with the crime imputed. And whether such was the intention of the defendant, is a question of fact to be determined by the jury. In Dorland v. Patterson, (23 Wend. 422,) the words were, “ James Borland gave me the note to give to you, and is it not all one man’s hand-writing 1 I will bet ten dollars that that is a forged note.” And when accompanied by the proper averments, on demurrer they were held actionable. “ He has sworn falsely, and I will attend to the grand jury respecting it,” without a colloquium showing that the speaking of the words related to proceedings in which perjury could have been committed, were held actionable in Gilman v. Lowell, (8 Wend. 573;) because the plaintiff could not have been indicted for false swearing unless perjury had been committed. In Coons v. Robinson, (3 Barb. Sup. Court Rep. 625,) “ he has sworn to a lie and done it meaningly to cut my throat,” was held actionable per se, as conveying to the minds of the hearers an imputation of perjury. “ I am not a thief,” when emphasized with a view to defame, may inflict as serious an injury upon the reputation of the person to whom the words are addressed, as if they had been “ you are a thief.”

In the case under consideration the witnesses knew the defendant, and had heard of the suit between the plaintiff and McKeon. They knew also that the defendant had been down to Catskill to get the plaintiff indicted. On his return the defendant said “he went to the grand jury and asked them if they wanted any more witnesses, and that they said they had witnesses enough to satisfy them.” Was not this in effect saying that there was proof enough to indict the plaintiff? A criminal charge may be as successfully made in such language as by a more direct accusation. If there was any question as to the nature of the offense for which the complaint was made before the grand jury, the doubt could be removed by an averment, and by proof that the defendant was speaking of the oath taken before the justice of the peace. I think the words were actionable, and that this suit would have been no bar to a suit brought for damages for uttering them. To receive them, therefore, as evidence in this suit, might subject the defendant to the payment of damages twice for the same injury. Besides, it was unjust to the defendant to admit the proof of words not laid in the declaration. If they had been counted on, the defendant might have come prepared with rebutting evidence, or to prove some explanation, made at the time of uttering them, that would render them harmless.

There was formerly a very wide latitude permitted, at the circuit, in praying slanderous words for the purpose of showing malice. A plaintiff xyas even allowed to prove charges made after the commencement of the suit. The case of Root v. Lowndes goes far towards establishing a safer and more reasonable practice. I see no reason xvhy a plaintiff should ever be permitted to prove a slanderous charge not set forth in his declaration.

The viexv I have taken of this point renders it unnecessary to examine the other questions raised on the argument. I think there should be a new trial. Costs to abide the event.

New trial granted.