Slander - Special Inducement, &c. 15. Skeleton of a Form for Slanderous Words not directly accusing the Plaintiff of an Offence, and requiring the aid of a Special Inducement, &c. 66 For that, whereas, the plaintiff, before and at the time of the committing by the defendant of the several grievances hereinafter mentioned, was a person of good name, credit, and reputation, and deservedly enjoyed the esteem and good opinion of divers persons. And whereas, [here state the special or extrinsic matter in reference to which the words were spoken, and which require the assistance of such statement to render them actionable, or to apply their meaning to a particular point; see ante, 552, note, and subsequent forms.]— Yet the defendant, [&c., proceed as in preceding form, taking care to charge not only that the discourse was had and the words were spoken, “ of and concerning the plaintiff,” but also, “and of and concerning the said [&c., referring briefly to the preceding introductory matter as in form, post, No. 16, or say "of and concerning the several matters and premises aforesaid," see ante 553, n. (a), and form 3, and post, Form 16, and then add innuendoes giving the particular meaning as in that form. If the words are spoken interrogatively or ironically, after setting out the words add this general averment (b); with this, that the plaintiff will verify that the defendant thereby, then and there meant to insinuate and have it understood, by the said divers persons in whose presence and hearing the said words were spoken by the plaintiff as aforesaid, that the plaintiff had been suspected to have been and had been guilty of [here state what the defendant meant by the words,] and so the said divers persons in whose presence and hearing the said words were spoken by the plaintiff as aforesaid, then and there understood the said words, to wit, at the county aforesaid.] By means [&c., as in Form 1, ante, 556.] 16. For accusing the Plaintiff of having Swore Falsely [&c.], and containing a Special Inducement, &c. (c) Commencement as ante, Form 3, to the asterisk.] And whereas, also, before the speaking of the several false, scandalous, malicious and defamatory words by the said defendant, of and concerning the plaintiff, in this count mentioned, a certain action was pending before S. B. a justice of the peace, in and (b) It is sometimes safest to insert this general averment at the conclusion of each set of words when the words themselves are not actionable, and are equivocal; 15 Wend. 232; 5 East, 463; 4 Wend. 320; and this general averment seems necessary in all that class of cases in which the words have a covert meaning, or were used iron ically, or interrogatively; 15 Wend. 232; 29 Eng. C. L. Rep. 371. As to the proof under the averment see 5 Johns. 211; 5 Dana, 315; 4 Blackf. 315; 4 Wend. 320; 2 Stark, Ev. 7 Am. ed. 628. (c) This declaration was, (with the exception of some additional averments in the colloquium and innuendoes,) framed by Messrs. Swayne and Bates. Slander-Special Inducement. for the township of in said county of ——, wherein D. P. was plaintiff, and D. R. was defendant, and in which suit, before the speaking and publishing of the words hereinafter mentioned, to wit, on [&c.], at the township and county aforesaid, the said plaintiff was duly sworn, and did take his corporal oath before the said S. B., justice of the peace as aforesaid: he the said S. B. then and there having sufficient and competent power and authority to administer an oath to the said plaintiff in that behalf; and the said plaintiff being so sworn, and having so taken his corporal oath, was then and there examined and did give his evidence as a witness, on the trial of said action, pending as aforesaid, before said justice, [(d) and when so examined as a witness as aforesaid, on (d) Quere, whether the allegation in brackets is necessary to maintain an action for the words set forth in the form. The rule is well established, that where words spoken are not actionable in themselves, but become so by the circumstances under which they were spoken, those circumstances must be averred in the declaration and proved on the trial. In the application, however, of this rule to slander imputing perjury, courts have sometimes been guilty of very absurd determinations. There have been a series of decisions in which defendants have been permitted to qualify, by proof of extrinsic facts, the imputation of crime which the natural and plain meaning of the scandal was intended to fasten on the plaintiff. Thus, the defendant, in speaking of the testimony of the plaintiff as a witness upon a trial, charges him with swearing falsely, thus: "he swore to a lie as to the distance of the ground." Now, it is undoubtedly necessary, in declaring upon this slander, to allege that there was a trial, and that the plaintiff was examined as a witness, and the jury who try the action of slander must be satisfied that the defendant meant to be understood by these words that the plaintiff committed perjury. The extrinsic question whether the "distance of the ground" was or was not material to the issue in the action in which the plaintiff was examined as a witness, the defendant does not state when he publishes the scandal; he leaves those to whom he publishes the scandal, and to whom the immateriali ty of the testimony cannot, of course, be known, to make the just legal intendment, recognised in all courts, that what a witness has sworn on a trial is presumed to be material; the words are not, therefore, when spoken, so qualified as to come short of imputing the indictable offence of perjury, if they impute anything. It would seem, then, no BAR to an action of slander, in such a case, that "the distance of the ground" was immaterial to the issue of the cause in which the plaintiff was a witness. For, if immaterial, the question for the jury to determine, still remains, whether the defendant did not mean that those who heard him publish the scandal should understand that the plaintiff had committed perjury. see 12 Mass. 498. If, in construing words of scandal, it were a rule, that what a party using them considered their meaning, by any secret reservation in his own mind, should be held to be their meaning, then the circumstance that the "distance of the ground" was immaterial and the defendant knew it, would become a leading question in giving construction to his words. But the rule is, that the words of a scandal shall not only be construed by a jury according to their popular and natural meaning, and not by any technical legal rule; 17 Wend. 426; 9 Johns. 214; 12 Mass. 498; 5 East, 463; 25 Eng. C. L. Rep. 412; 3 Steph. N. P. 2552; 3 Doug. 91; but whatever the party meant to make other people believe, so shall his words be understood. 25 Eng. C. L. Rep. 412. Indeed, one who makes such a charge as this, would be surprised to learn that he did not mean to have it understood that the witness committed perjury; that the popular and natural meaning of the words were that the witness did not commit perjury, but only manifested a great disregard to the truth upon an immaterial matter which had no bearing on the case. The fact that the substantive part of the charge, viz: "he swore to a lie," does not explicitly charge perjury cannot affect this question. For, whether "the distance of the ground" was or was not material to the issue of the cause in which the plaintiff was a witness, still the circumstance that the defendant, when he published the scandal, was conversing about the testimony of the plaintiff upon a trial, and the words, "he swore to a lie," remain the substantive facts and words upon which alone perjury can be imputed; and the imputation of perjury, as to the distance of the ground, is as explicitly and unqualifiedly made, and un the trial of said action, the said plaintiff did state that he the said plaintiff, did not know that one J. C. M. had run away, the fact whether the said M. had run away or not, being material in said action, to wit, at the county aforesaid,] and the said plaintiff further saith that the said defendant, not ignorant of the premises, and contriving and intending, maliciously and wickedly to injure and destroy his character, to bring him into disgrace among his neighbors, and to cause it to be suspected and believed by them and others, that the plaintiff had been and was guilty of perjury, and to expose the plaintiff to the penalties of the law for perjury, heretofore, to wit, on [&c.], at the county aforesaid, in a derstood by those who hear it, as if the extrinsic fact did not exist that the distance of the ground was immaterial to the issue. To permit, then, a defendant to escape from the consequences of such a scandal because “the distance of the ground" was immaterial to the issue, is to suffer him to take advantage of an extrinsic fact, unknown to those who hear the scandal, for the purpose of qualifying the meaning of his words; in fact, to permit him to explain away on the trial what he meant to make others believe when he published the scandal. And yet it has been held in New York, in an action founded upon the words, "he swore to a lie," as to "the distance of the ground," that "the distance of the ground," or other specified subject of the scandal, must be alleged and proved by the plaintiff to have been material to the issue; in other words, that if a witness is examined in a cause, and his testimony bappens to relate wholly to matters immaterial to the issue, every man may charge him, unqualifiedly, with having sworn falsely in that particular action, and he must rest content under the slander, because if he did indeed commit perjury, as is alleged against him, he could not be indicted for it. See 20 Johns. 349; 12 Wend. 500; 5 Johns. 188; 1 Wend. 477; 13 Johns. 81; 11 Wend. 38. The authority of this and kindred decisions could not be overcome by any reasoning of mine; but shaken as they are by other decisions, 3 Hill, N. Y. 572; 16 Wend. 450, 455, per WALWORTH, Ch.; 21 Pick. 53; 25 Eng. C. L. Rep. 412, I doubt whether they will be followed in this State. The better rule upon this subject seems to be this: If the defendant charged the plaintiff with having sworn falsely, and, at the same time, qualified the charge, by stating that the false swearing or "perjury" was in a part of the testimony that was immaterial to the issue, the plaintiff cannot maintain an action for the scandal. This rule precludes a party from maintaining an action in many cases where his character is really as much injured as it would be by a direct charge of wilful and corrupt perjury. The rule is adopted not because it metes out justice, but because it is the dividing line between what is and is not slanderous; that is, it preserves intact the rule that the words in this class of cases must impute perjury. So, if, at the time the words were spoken, the defendant stated that the false swearing was in extra judicial proceedings, or under such circumstances that the criminal offence of perjury could not have been committed, and, consequently, could not have been in fact imputed by the words, an action for slander cannot be maintained. But the defendant shall not escape from the action, unless it appear that the slanderous words themselves were so QUALIFIED WHEN SPOKEN as to come short of imputing the indictable offence of perjury. 16 Pick. 1; 21 Pick. 51; 3 Hill, N. Y. 572; 16 Wend. 454. See Wright, 173; 25 Eng. C. L. Rep. 412. If, therefore, the defendant charged the plaintiff with swearing falsely, and, at the same time, pointed out the testimony wherein the falsehood consisted, but did not state that it was immaterial, and it be proved that the testimony alluded to by the defendant in the scandal was immaterial, the question whether the defendant did not mean to be understood, by the words spoken, to impute perjury should be still open for the jury to determine. There is another class of cases which may illustrate the above remarks. The words, "he is a thief, he stole my apples," are actionable; and, not the less so, if the plaintiff did in fact pick apples from the trees of the defendant, and which would be only a trespass, But the words, "He is a thief, for he has stolen apples from my trees," are not actionable; for the latter words qualify the former, and impute a trespass, and not a felony. The principle is founded upon this obvious and simple rule, that a man may, at the time of speaking words, which, in their ordinary signification, would be slanderous, by imputing a crime, so qualify them by other words as to show that he uses them in a different sense. certain discourse which the said defendant then and there had in the presence and hearing of sundry persons, of and concerning the plaintiff, and of and concerning the matters and premises aforesaid, the said defendant in the presence and hearing of said persons, falsely and maliciously spoke and published, of and concerning the said plaintiff, and of and concerning the said trial of the said action, and of and concerning the said evidence so given by the said plaintiff, as aforesaid, and of and concerning the testimony of said plaintiff as a witness, [in relation to said M.] as aforesaid, the false, scandalous, malicious and defamatory words following, that is to say, B. (meaning the said plaintiff A. B.) swore to a lie at Baldwin's, (meaning the said S. B., the justice of the peace, as aforesaid,) in the suit between P. and R. (meaning the aforesaid action between D. P. and D. R.;) you (again meaning the said plaintiff,) said (meaning that the plaintiff stated under oath as aforesaid) you did not know that Miller (meaning the said J. C. M.) run away, and it (meaning said statement) was a lie, for you (meaning said plaintiff) did know it, (meaning that the said plaintiff did know at the time he gave said testimony, that Miller had run away.) You (meaning the said plaintiff) swore to a lie-you (meaning the said plaintiff) knew it was a lie when you stated (meaning when the plaintiff testified as aforesaid) that you (meaning the plaintiff) did not know that Miller (meaning said J. C. M.) run away, (meaning that the statement made by the said plaintiff, as a witness on the aforesaid trial, in relation to the said Miller was false, and that he, the said plaintiff knew it to be false, and thereby, then and there was guilty of wilful and corrupt perjury.) I, (meaning the said defendant) never swore to a lie, but you (meaning the said plaintiff) did. You (again meaning the said plaintiff) swore that you (again meaning the said plaintiff) did not know that Miller (meaning the said J. C. M.) run away, and you (meaning the said plaintiff) did know it; (meaning thereby, that on the trial of the aforesaid action, between said P. and R. before said Baldwin, said plaintiff had committed wilful and corrupt perjury ;) you (meaning the said plaintiff) swore to a lie, (meaning thereby that the said plaintiff on the trial of the action, aforesaid, had as a witness, as aforesaid, sworn falsely, and committed wilful and corrupt perjury.) He (meaning the said plaintiff) swore to a lie, (meaning that said plaintiff, on the trial aforesaid, had as a witness, sworn to a lie, and committed wilful and corrupt perjury.) Second Count: For Words directly Charging Perjury. And also, for that, whereas, afterwards, to wit, on the day and year last aforesaid, at the county aforesaid, in a certain other discourse which the said defendant, then and there had, of and concerning the plaintiff, in the presence and hearing of divers persons, the said defendant, in the presence and hearing of said persons, falsely and maliciously spoke and published of and concerning said plaintiff, the false, scandalous, malicious and defamatory words following, that is to say, He (meaning the said plaintiff) perjured himself; you (meaning the said plaintiff) perjured yourself; he (meaning the said plaintiff) committed per Slander-Special Inducement, &c. jury. By means of publishing which false and scandalous words, the said plaintiff is greatly injured in his good name and reputation, and has been rendered liable to prosecution for perjury. To the damage of said plaintiff of dollars, and thereupon he brings suit, &c. 17. By the Keeper of Bathing Rooms, for Words imputing a Propensity to Commit an Unnatural Crime, spoken in Answer to a Question put to the Defendant by a third Person. After the usual averment of the plaintiff's innocence and good character, and the credit he had obtained thereby, as ante, 557, proceed as follows:]— And whereas, also, the said plaintiff, before and at the time of the said defendant's committing the said grievances hereinafter next mentioned was, and from thence hitherto hath been, and still is, lawfully possessed of certain rooms, with the appurtenances, at [&c.], and during all that time kept the same for the purpose of persons bathing therein, for certain reward to him, the plaintiff, in that behalf, to wit, at [&c.], whereby the plaintiff had acquired, and was then daily and honestly acquiring sundry great gains and profits to the comfortable support of himself, and to the great increase of his riches, to wit, at [&c.], aforesaid; and whereas, also, before and at the time of the committing of the grievances hereinafter mentioned, one E. F., had been and was, and still is, suspected by divers persons to have been guilty of sodomitical practices. Yet the said defendant well knowing the premises, but contriving, and wickedly and maliciously intending to injure the said plaintiff in his aforesaid good name, fame and credit, and to bring him into public scandal, infamy and disgrace, with and amongst all his neighbors, and other good citizens, to whom he was in any wise known, and to cause it to be suspected and believed by those neighbors and citizens, that the said plaintiff had been, and was, guilty of sodomy and sodomitical practices, heretofore, to wit, on [&c.], at [&c.], in a certain discourse which he the said defendant then and there had in the presence and hearing of one J. S., in answer to a certain question then and there put to him by the said J. S., why he, the said defendant, had not returned to sleep at the said plaintiff's house, falsely and maliciously spoke and published of and concerning the plaintiff, the false, scandalous, malicious, and defamatory words following, that is to say, [&c. here set out the slander, with the innuendoes,] with this, that the said plaintiff will verify that the said defendant, thereby then and there meant to insinuate, and have it understood by the said J. S., that the plaintiff had been suspected to have been, and had been, guilty of sodomitical practices, and so the said J. S. then and there understood the said words, to wit, at [&c.], aforesaid. |