Shaffer v. Kintzer , 1 Binn. 537 ( 1809 )

Tilghman C. J.

This cause comes before us on a writ of error to Berks county. It is an action of slander brought by Kintzer the defendant in error, against Shaffer the plaintiff in error. The declaration contains four counts. The jury found a general verdict for the plaintiff, and assessed entire damages; and judgment was entered on that verdict. The error assigned is, that the matters set forth in the third and fourth counts, constitute no legal cause of action; and that is the point for our decision.

In the third count it is declared that whereas the plaintiff did, on the application of the defendant, make and declare an oath,, of him the said plaintiff, duly taken and sworn before B. Ludxuig esq. one of the commonwealth’s justices of the peace &c., then and there having authority to administer said oath, that the said plaintiff had not given up and relinquished a certain wager which he had made with a certain Christian Zerbe, (which said oath was true,) nevertheless the defendant, maliciously intending to injure him &c., in a discourse concerning the said oath See., spoke the following false, scandalous and defamatory words: “ He” (the said plaintiff meaning) “ has sworn false,” (meaning that the plaintiff had committed perjury before the said B. Ludwig esq., in swearing that he had not given up the said wager.) The fourth count is the same as the third, except that the words are laid to have been spoken of the plaintiff in the second person, “ you have sworn false.”

The objection to these counts is, that it is not alleged that any cause was depending before the justice, in the course of which the oath was administered. On the contrary it would seem that no cause was depending; but that the plaintiff took the oath voluntarily at the request of the defendant. * *

In order to constitute perjury, there must be a “ lawful oath “ administered in some judicial proceeding.” False swearing, in a voluntary affidavit made before a justice of the peace, before whom no cause is depending, is not perjury; nor can it be punished by indictment, although it is a very immoral and disgraceful action. With regard to words which will support an action of slander, I take the rule to be as laid down by C. J. De Grey in the case of Onslow v. Horne in the year 1771; which is an authority in this court. They must contain an express imputation of “ some crime liable to punishment, “ some capital offence, or other infamous crime, or misde- “ meanor.” This rule is recognised and approved by the court of king’s bench in Holt v. Scholefield, (1796) in which it was held that it was not actionable to say that a man had “ forsworn “ himself,” (meaning that he had commited perjury). But it has been urged, by the counsel for the defendant in error, that the defect in the words is cured by the innuendo of perjury, which the jury have found to be true. It is the office of an innuendo to elucidate the words, by connecting them with the subject to which they refer, and averring a meaning not inconsistent with, or contradictory to, them; but it cannot alter the nature of the words. If A say of B that he cut down and carried away one of his trees, innuendo that B committed felony, this will not make the words actionable; because they do notin their nature import a felony. The case of Rue v. Mitchell, 2 Dall. 38. was cited and relied on by the counsel for the defendant in error. In that case the words were “ you have taken “ a false oath before squire Rush,” (meaning that the plaintiff' had committed perjury in an oath taken by him before William Rush, one of the justices &c., in a cause before him depending). The court were of opinion that the action might be supported, and laid considerable stress on the innuendo, which the j ury had found to be true. There is this remarkable difference between that case and the one before us, that there theinnuendo expressly asserted that the oath was taken in a cause depending before the justice; but in this case the innuendo contains no such averment. Besides, the third andfourth counts of the declaration, in the present case, describe the proceeding before the justice, in such a manner as to make it appear, that no cause was depending; and if the innuendo contradict it, it is of no avail. I think the case of Rue v. Mitchell extended the efficacy of an innuendo far' enough; rather farther than any former case had done; and I am not for going beyond it. If innuendos can alter the meaning of words, they may be employed to very mischievous purposes. A man may be made responsible not for what he said, but for what other persons may suppose he intended to say.

I am of opinion, on the whole, that the judgment in this case must be reversed, because the words charged in the third and fourth counts are not actionable.

Ye ates J. concurred.

Brackenridge J.

In the case of Rue v. Mitchell, 2 Dall. 58. “ it appeared, on the trial of the cause, that the oath in question “ was voluntarily taken by the plaintiff in order to satisfy the ct defendant upon a controverted fact involved in the suit;” The voluntariness, spoken of here, is not of a nature with that which is properly called a voluntary oath; for there was a suit depending before the justice, and of which he had jurisdiction.

The jurisdiction of the justice in civil matters not being of common law origin, but taken from the civil law, where the judge determines the fact as well as the law, it has not been the understanding, under the acts establishing his jurisdiction, that he is bound by every rule of common law evidence; but that he may exercise, and it has been the usage to exercise, a chancery power, in purging the conscience, by admitting an oath on the part of the plaintiff in support of his demand, or an answer upon oath on the part of the defendant. And even in the courts of justice, and before a jury, if a party plaintiff or defendant waives the strict rule in regard to testimony, and offers to leave a matter to the oath of his adversary, I do not know that the court could reject it; the party called upon being willing to make the oath. For it is a renunciation by the party of a right which the law has introduced for his sake. Yet such could not be called a voluntary oath; for though the court or justice, before whom it is taken, could not impose it, yet it is imposed by the allegation which the oath is admitted to repel. Such was the occasion of the oath in the case of Rue v. Mitchell; and it was legally administered. Perjury was both imputable and punishable in such a case. Law wager still exists in our law; and under certain forms of action, the defendant, at this day in ‘courts of justice, would have his privilege to repel on his own oath and that of others, the allegation of the plaintiff. These oaths, though in a certain sense voluntary, would not be extra-j udicial.

An oath administered by a justice where he has no jurisdiction, cannot be distinguished from an oath administered by one not a justice; for the proceeding of any tribunal, of a civil nature, must be founded on the plaint of a party; and where the tribunal proceeds without plaint, or entertains a plaint over which it has no cognisance, there is, in contemplation of law, no.proceeding before it; and an oath taken in such a case is extrajudicial. A justice has no jurisdiction even on plaint made, where the jurisdiction is not given by positive statute, or where it is excluded by those principles which exclude the jurisdiction of every judicial forum; as where cognisance of the plaint is against public policy, or general convenience. Where a matter actually exists in dispute, and, superseding all necessity of process, it is agreed to be referred to the oath of a party on a certain particular, the oath will not be extrajudicial, provided the matter in dispute be of such a nature as is within the cognisance of the justice; for it is an agreement of the parties to terminate the controversy in this way. I will not say, that, even if the justice had not cognisance of the matter on the ground of cause of action, from the subject of the controversy, or from the quantum of the demand, an oath on such an agreement might not be administered to the parties, .or to a witness offered by them, and agreed upon to be admitted; and that in that case it might not be judicial. But no agreement would warrant the administering an oath in a matter, the taking cognisance of which would be contrary to good policy; as in the case of a ■wager respecting an election, or the defect or infirmity of a third person. N.o prosecution would lie on an allegation of perjury in such a case; nor would an action of slander lie for an imputation of perjury in such a case. The law throws it entirely out of its protection, and can take no notice of it unless as a misdemeanor in the officer who administers. The law takes no notice, says Blackstone in his Commentaries, of any perjury but such as is committed in some court of justice having power to administer an oath; or before some magistrate, or proper officer invested with a similar authority, in some proceedings relative to a civil suit, or a criminal prosecution. For it esteems all other oaths unnecessary at least, and therefore will not punish the breach of them. For which reason it is much to be questioned how far any magistrate is justifiable in taking a voluntary affidavit in any extrajudicial matter, as is now too frequent upon every petty occasion; since it is more than possible that by such idle oaths a man may frequently, in foro conscientiw, incur the guilt, and at the same time evade the temporal penalties, of perjury. 4 Bl. Comm. 137. And Coke in his Institutes lays it down as has been quoted, that where the court has no authority to hold plea of the cause, it is coram non judice. 3 Inst. 166, cites Bract, lib. 4. fo. 180.

To apply these principles to the case before the court. The words laid to be spoken are '■'•that he swore falsely. ” These words do not, of themselves, necessarily import a charge of perjury, or any indictable offence. “ Perjury is a crime com- " mitted, when a lawful oath is ministered by any that hath “ authority, to any person in any judicial proceeding, who swear- “ eth absolutely and falsely in a matter material to the issue, or “ cause in question, by their own act, or by the subornation “of others.” 3 Inst. 164. “ If a man calleth another a perjured man, he may have his action upon the case, because it “ must be intended contrary to his oath in a judicial proceed- “ ing; but for calling him a forsworn man, no action doth lie, “ because the forswearing may be extrajudicial.” 3 Inst. 166. And to say generally that a man hath forsworn himself, is not actionable; because he may be forsworn in common conversation, or it may be an expression of mere passion and anger, 4 Co. 15. b; nor shall it be intended to be referred to a case where perjury may be committed.

It may be said, that after a verdict, it shall be taken to have been in evidence, that the oath, which was spoken of by the defendant, and said to have been sworn falsely, had been taken in the course of a judicial proceeding, and legally administered; but the introductory averment, as well as the colloquium, shews that the supposed defamatory words were applied to a mere voluntary oath, extrajudicially and illegally taken. So that it appears to me, the errors assigned in this cause are supported, and warrant a reversal of the judgment.

Judgment reversed.

Frazer then moved the court to award a venire de novo, two counts being clearly good; and he cited the case of Grant v. Astell, Doug. 731, where Buller J. lays down the doctrine, which is adopted by the court, that where entire damages have been assessed upon several counts, some good, and others bad, and judgment for that reason is reversed, a court of, error may award a venire de novo.

Tilghman C. J.

I believe there is a late case in which a venire de novo was refused in slander; but I see r.o reason for the distinction. The case in Douglas is good law and good sense; and I am willing to abide by it.

Per Curiam, Venire de novo awarded.