Deford v. Miller , 3 Pen. & W. 103 ( 1831 )

The opinion of the court was delivered by

Gibson, C. J.

Though no satisfactory reason is any where given, why words rnay be. actionable when written, which are not so when spoken, it seems to be established, that wherever the public may punish by indictment, the individual may have redress by action. If, however, the words here impute an actual perjury, the1 exception to the manner ip which they are laid, as not affording an independent ground of action for written slander, is superseded* Giving them, then, the effect of words spoken, and no more, the substantial part of the publication is .an assertion that the plaintiff had made an affidavit in a particular cause, to which the defendant alleges, “there stands opposed the oaths of two respectable men;” and a remark that if the defendant had not determined to pay no further attention to the plaintiff, he would publish his affidavit, “and' then ask the people to name the offence of which he is guilty. In law,” he subjoins, “it would be called perjury.” Is not that apo1sitive accusation? He is guilty of an offence, says the defendant, and in law it would be called perjury. A charge thus made seems to be more affirmatively conveyed than by the words held actionable in Edie v. Brooks, Whart. Dig. 704, pl. 32, where the defendant said to the plaintiff, in reference to a supposed taking of his meal by the latter: “If I had served you so, you would have called it stealing. ” Divested of all other circumstances, then, the words here would be actionable in themselves; and did any thing accompany them .in the publication, which could have the effect of restraining the generality of the charge in the conclusion? The words are laid as having been published in reference to an affidavit sworn to in vacation before the prothonotary, in a matter not determinable by him; and let it be taken for granted, that the oath thus taken was extra-judicial; it will still be difficult to see what effect that could have had on the import of the accusation in the apprehension of those who heard or read it. In principle, the case seems to be precisely that of Eckart v. Wilson, 10 Serg. & Rawle, 44, in which aright of action for the words, “You have killed Bob Waters — you have poisoned him, and I can prove it,” was ineffectually attempted to be repelled, by the extrinsic fact that Bob Waters was still alive. In that case, the plaintiff had been charged with the murder of a living man; in this, he has been charged with perjury in an extra-judicial oath: in the one, the commission of the crime charged was rendered impossible by matter of fact; and ill the other, it is made so by matter of law; and if there is any further difference between them, I am unable to perceive it. That the difference, if any, is to be disregarded, appears from Charnel’s Case, Cro. Eliz. 279, in which to an action for saying: “My turtles are stolen, and Charnel hath stolen them;” it was objected, that as the speaker of the words was a feme covert, and without capacity to be the owner of the things said to have been stolen, it was impossible in law that the charge could be true; but the court refused to sustain the objection, “because,” as it wás said,- “she had charged him with stealing; and if one which hath no-horse,” it was added, “saith: ‘I. S. hath stolen my horse/ this is as great discredit as if he had one, for every' one knoweth not whether he Had a horse or not. ” In like manner, they who read the publication in the case before us, may-not have knoyvn- whether the oath in which the perjury is alleged to have been corstfmitted, were extra-judicial or not; nor Could they be expected to incur the trouble and expense of an inquiry into the fact, granting them competent to determine it on a view of the record. The reason given' for the decision in Charnel’s Case, is founded, not merely in good-sense, blit.the technical principles of the action'. Words which impute a Crime are actionable, not more because they expose the party Charged to the danger of being Convicted, than of being, prosecuted,Which e'ven to .the innocent; is a grievance; and in every instance' where the meaning of What wOuld otherwise have been an Unambiguous accusation, has been Controlled -by circumstances which showed it to be groundless, and thus rendered it harmless: the controlling circumstances wore so mingled with the accusation by the accuser himself, as to make the poison carry its-antidote along-with it. The decisions by which the doctrine of repugnancy was formerly carried to an extravagant length, have ceased to be precedents; and the ride now seems to be, that if the charge' b'e' not palpably Unfounded on the face of it, the risk of a prosecution which it induces, shall be compensated in damages'. Here the' charge might hdve been well founded, for aught that appeared in the publication by which it was promulgated; and the plaintiff inay have his action for the danger to which it exposed him. Hut it has been said, that whatever may be the right of action irt the abstract, yet it appeal’s by the plaintiff’s own showing in the pleadings, .that the oath to which the publication had reference, was n’flt- the subject of perjury. Were it indeed laid that the defendant himself had so discribed it in the offensive publication, the plaintiff would have shown himself to be without a cause of action. He has, however, set out the publication exactly as it was made, having stated as matter of inducement the nature of the affidavit to which it relates; but this matter of inducement may be struck out of the declaration, without prejudice to' the cause of action which is fully stated without it. A word Which does-not necessarily import criminality, .is, in pleading, rendered actionable only by reference to extrinsic facts, which show it to have been Used in an obnoxious sense: thus the word ‘forsworn’ becomes actionable when shown to have been predicated of one who had given testimony under the sanction of a judicial oath; and hence the necessity of a colloquium about the time, place, and circumstances. But when the charge is conveyed by a generic term, which unequivocally denotes the presence of every fact necessary to constitute the offence, a reference to extrinsic matters, in order to fix its meaning, is unnecessary. Here the plaintiff was accused, not of false swearing, but of perjury — a word which expresses with technical precision, every thing comprised in the offence — and consequently a reference to the particular oath, in order to show it to have been taken in a judicial proceeding, is surplusage. But giving it all the effect of which it is susceptible, it is but an admission that the plaintiff was not in actual danger of being convicted, which is entirely consistent with his having been exposed to the danger of a prosecution. Beside, I know not how words which are actionable in themselves, can be made otherwise by being laid according to the truth of the whole case. The words, of the publication, then, being actionable, there is nothing in the manner of laying them, or in the direction in respect to the proof" of them or their legal effect, which requires us to disturb the judgment.

Judgment affirmed.