Smith v. Johnson ( 1896 )

Taft, J.

The question before us is as to the sufficiency of a plea to the declaration. It is alleged in the declaration that the defendant maliciously spoke of the plaintiff that he, the defendant, had paid the plaintiff five dollars, and what liquor the plaintiff wanted from a pint to a quart a month while Curley Parker was inhis saloon; thathe, the defendant, had enclosed a ten dollar bill in a letter, mailed to the plaintiff, that he took a five dollar bill out of his pocketbook and put it into a new pair of gloves which Curley Parker had and gave to the plaintiff, and that he did these things for his protection.

The defendant alleges in his plea that he spoke the words with no malice whatever, and that he had good reason to and did believe that said words were true. The defendant knew whether the words of the libel were true or false. He had knowledge thereof because they related to acts which he states that he did; whether he did the acts or not were facts within his knowledge, — and belief in respect to it is not predicable of knowledge.

The plea is defective in not alleging the truth of the words. If these matters related to acts done by third parties, the plea in its present form might be sufficient under the ruling in Posnett v. Marble, 62 Vt. 488, but upon the facts stated in the declaration, the plea is defective. The defendant can only stand upon the truth of the words alleged. He must therefore plead their truth. The demurrer should have been sustained and plea adjudged insufficient.

The pro forma judgment reversed and cause remanded.