Garing v. Fraser

Virgin, J.

The plaintiff alleges in substance that the defendants maliciously conspired to falsely accuse, and, by means of false testimony, to procure him to be indicted and convicted of the crime of maintaining a nuisance ; that by false and perjured testimony the defendants did accuse him of said crime before the grand jury who found an indictment therefor against him; that he was tried on said indictment, and, by means of false and perjured testimony given by them at the trial, the jury found him guilty of the charge ; that the court set aside the verdict because of said false and perjured testimony; and that thereupon the county attorney entered upon the records of the court a nolle prosequi to said indictment with allegations of damages.

The gist of the action is not the conspiracy alleged, but the tort committed by the defendants and the damage resulting therefrom. To charge all the defendants, joint action must be proved, and the allegation of a conspiracy may be a proper mode of alleging it; but for any other purpose it is wholly immaterial, as it does not change the nature of the action, or add anything to its legal force or effect. Dunlap v. Glidden, 31 Maine, 438; Parker v. Huntington, 2 Gray, 124 and cases there cited; Jones v. Baker, 7 Cow. 445; Wellington v. Small, 3 Cush. 145; Hayward v. Draper, 3 Allen, 551; Rice v. Coolidge, 121 Mass. 394; Randall v. Hazelton, 12 Allen, 414; Barber v. Lesiter, 7 C. B. (N. S.) 184.

The acts of the defendants are alleged to be false and perjured testimony. But at common law an action will not lie against one for perjury. Dunlap v. Glidden, 31 Maine, 435, 439; Severance v. Judkins, 73 Maine, 379 ; Damport v. Sympson, Cro. Eliz. 520; Eyres v. Sedgwicke, Cro. Jac. 601; Phelps v. Stearns, 4 Gray, 106; Rice v. Coolidge, 121 Mass. 395, and cases cited.

But it is said that the English Sts. of 5 and 28 Eliz. provide that a party grieved by a judgment obtained by the perjury of witnesses might, after the reversal of the judgment, "recover his damages against every such person as did procure such judgment against him, by action on the case.” Assuming, however, that these statutes are in force here, neither of them can be seriously contended to be applicable to this case. To be sure, it is a general rule of the common law and it has been substantially engrafted into Art. 1, § 19 of our constitution, that aman shall have a remedy for every injury. 3 Black. Com. 123 ; Ashby v. White, 1 Salk. 21. But the law has more than, one idea. And this principle however sound must be understood with such qualifications and limitations as other principles of law equally sound and important impose upon it. Morton, J., 11 Pick. 532. Thus notwithstanding the rule first above mentioned, words spoken in the course of judicial proceedings, though they impute crime to another, and therefore, if spoken elsewhere, would import malice and be actionable in themselves, are not actionable if applicable and pertinent to the subject of inquiry. Barnes v. McCrate, 32 Maine, 442 ; Hoar v. Wood, 3 Met. 193. So in the case at bar, while the law declares that every person shall have a remedy for every wrong, public policy requires that witnesses shall not be restrained by the fear of being vexed by actions at the instance of those who are dissatisfied with their testimony; but if they perjure themselves they may be indicted and punished therefor. Barber v. Lesiter, 7 C. B. (N. S.) (Erle, J.) 186.

The counsel argue this case as if it were an action for malicious prosecution. But assuming this to be correct, then the demurrer must be sustained, for there is no allegation that the prosecution has been determined in favor of the plaintiff or has been finally abandoned. The allegation is that the "county attorney entered on the records of the court a nolle prosequi to said indictment.” There is a long series of decisions that such a disposition is not of itself sufficient. Parker v. Huntington, 2 Gray, 128 ; Brown v. Lakeman, 12 Cush. 482 and cases there cited; Parker v. Farley, 10 Cush. 279. And even if we adopt the suggestions as to the inflexibility of the rule of Ch. Jus. Shaw in the last cited case, still there is no allegation that the plaintiff objected to the nol. pros.

Exceptions overruled.

Peters, C. J., Walton, Libbey and Symonds, JJ., concurred.