Citation Numbers: 2 Hill & Den. 282
Judges: Brojxson
Filed Date: 1/15/1842
Status: Precedential
Modified Date: 1/12/2023
By the Court,
Although the declaration is but a clumsy performance in the way of special pleading, I am inclined to think it sufficient after verdict. The objections to it are, 1. The want of an averment that the words were spoken of and concerning the plaintiff; 2. The absence, of proper inducement, or an introductory statement of matters to which the words may be applied for the purpose of showing them actionable ; and 3. The want of apt innuendos for the purpose of pointing the application of the words to the plaintiff, and to the introductory averments.
In actions for verbal slander, the usual course is, to allege a colloquium of and concerning the plaintiff, and then to follow it by an averment that the words were spoken of and concerning the plaintiff. The pleader in this case has, in all the counts, stated a discourse of and concerning the plaintiff, but he- has not followed it by an averment that the words were spoken of the plaintiff. It was thought at an early day that the laying of a colloquium of the plain
The pleader in this case has laid a colloquium, but he has omitted the more important averment that the words were spoken of and concerning the plaintiff. These words, says Mr. Chitty, are very material. (2 Chit. Pl. 312, n. (g), ed. of ’19.) But in a subsequent edition he says, “ the declaration must show by a colloquium, or otherwise, that the words were spoken, or the libel was composed and published, of and concerning the plaintiff.” (1 Chit. Pl. 432, ed, of ’37. 2 id. 623, notes (d) and (l); and p. 635, note (w).) And upon principle, it would seem to be sufficient, especially after verdict, that it appears in any way that the slanderous words were spoken of the' plaintiff. This has undoubtedly been regarded as an indispensable averment. {Com. Dig. Defam. G. 7.) But Serjeant Williams, who is good authority, thinks it enough, after verdict, that a colloquium concerning the plaintiff is laid, without any more direct averment that the words were spoken of the plaintiff. Indeed, he thinks- the defect should be pointed out by special demurrer. (1 Saund. 242, note (3). And see Stark, on Stand. 284, 5.)
Some of the innuendos are badly framed, and taken in connection with other defects in the declaration, they go very far towards overturning the action. In the first count, after alleging a discourse concerning the plaintiff, and concerning a particular note or due bill, the pleader proceeds to set out the slanderous words; and when he arrives at words relating to the note, instead of an innuendo pointing1 to the note already mentioned, the innuendo speaks of a note which may or may not be the same one that is mentioned in the inducement. What is further said in the innuendo about a note presented to the defendant for payment, is of no importance. It cannot aid the plaintiff, because there is nothing in the introductory statement to which this part of the innuendo can relate: and it can do no harm, because the matter is not rendered more uncertain than it was before in consequence of mentioning a note, instead of the note mentioned in the inducement. Notwithstanding this uncertainty, the innuendo is not repugnant to the matter set forth in the introductory averment. The note presented to the defendant for payment may be the same note which is mentioned in the inducement : and after verdict, it should, I think, be intended that the notes were identical. If it had not been proved on the trial that the words spoken related to the particular note mentioned in the introductory averment, we must presume that the court below would not have permitted the plaintiff to recover.
Looking at the whole count in the favorable light in Avhich it should be examined after verdict, I think it shows with sufficient certainty that the plaintiff Avas charged Avith the crime of forgery. There was a discourse concerning the plaintiff, and concerning a note purporting to be made by the defendant, and payable to the plaintiff, in which the defendant said—“ I Avill swear that I never signed the note: it is forged. You may send for Van Slyck, (the plaintiff,) and we will have him punished for forging the noteP The pleader certainly had materials enough; and although he has used them very unskilfully, I think the verdict has helped him out of the difficulty.
As the second and third counts are less objectionable than the first, they call for no particular remark.
The bill of exceptions shows no error. It was not necessary for the plaintiff to prove all the Avords laid in either of the counts, provided the words proved Avere slanderous. ' In two of the counts, the Avords, among others,
No question has been made upon the charge to the jury.
Judgment affirmed.
а) See Titus & Titus v. Toilet, (post, p. 318.)
Had there been no colloquium laid, in the principal case, quere whether the judgment could have been sustained. (See Sayre v. Jewett, 12 Wend. 135.)