Goslin v. Cannon , 1 Del. 1 ( 1832 )

Per C. J. Clayton

—That remark of Lord Ellenborough is not always true. Vide Nicholls vs. Dowding, 1 Stark. N. P. C. 81.

Frame asked leave to reply to the authorities cited.

The objection is not to a defective deposition as of heresay matters, nor to a commission defectively executed or returned, as where it is addressed to one person and returned by another; but the objection is to the interrogatory alone, and seeks to exclude a competent deposition properly taken and returned, on the ground of an irregular interrogatory. Now this interrogatory was filed, and notice of it given to the other side a year ago. Even in Chancery, if you omit to object to interrogatories in due time, you are precluded at the trial. Every good interrogatory must direct the mind of the witness to the subject matter of inquiry, and it is difficult to say precisely, what is a leading question. 1 Stark. 124. Equity Draftsman.

Bayard.

—You may direct a witness’ mind to the point, but not ask particulars, or suggest to him an answer. This is undoubtedly a leading interrogatory. I had no knowledge of the deposition until this morning. It would be a good practice to require exceptions to be filed to interrogatories before commission issued, but there is no such practice. In our practice, a party frames his interrogatory at his peril just as he puts a question to a witness at the trial.

By the Court.

—We are of opinion that this deposition ought not to be suppressed. We incline to think the interrogatory is a leading one, but it is a very different question whether the deposition should now be suppressed on this account.

This deposition has been returned for twelve months. The party has submitted to it, taken no exceptions, but permits the jury to be drawn. If this course prevail, there is an end of reading depositions before a jury. The party might protest against an interrogatory and then the'other side would take it at his peril. The question must be objected to at the time; therefore, if in taking the deposition of a witness a leading question be put and answered, it cannot afterwards be excepted to at the trial. Sheeler vs. Speer, 3 Binn. 130. Where depositions have been taken in an ancient suit to perpetuate testimony, it cannot be objected that the answers were given to leading interrogatories, since the party to the proceedings might have objected to them, and have had them expunged, instead of which he allowed publication to pass, and the evidence to be exemplified. 1 Stark. Ev. 270.

The deposition was admitted.

■ In the course of the examination of witnesses; the plff. called Dr. John Gibbons, a justice of the peace, to prove certain declarations made to him by the deft, on the occasion of swearing articles of the peace against the plff It was objected that this testimony if at all admissible, was only evidence to show express malice, and could not be the foundation of an action it being a privileged communication. The direction of the Court was asked on this point. 1 Vin. Ab. 390; 4 Co. R. 14; 3 Esp. R. 33; 5 Esp. R. 109; 4 Yeates, 507; 5 Johns, 509.

The case was very fully argued by Layton and Frame for the plff, and Cullen, Rogers and Bayard, for the deft, and

The Court, by the Ch. Jus., charged the jury as follows:

Clayton, C. J.—

“The words declared upon in this case impute a crime to the plff, and are in themselves actionable. The law in such case presumes malice, and it is not necessary to prove express malice to entitle the plff. to a verdict, for the law implies that he has received some damage.

As the law is now settled, it may be laid down as a general rule, that wherever words are calculated to impress upon the minds of the hearers a suspicion of the plff’s. having committed a criminal act, ■such an inference may and ought to be drawn whatever form of expression may have been adopted, whether the words spoken impute such criminal act directly or indirectly. And it is not necessary to prove the precise words alledged in the declaration; but it is sufficient to prove the substance of them. The substance of the slander imputed here is, that the plff. burned down the house and barn in question, or caused it to be done. The words must be spoken in the same manner; for instance, interrogative words proved, will not support words alledged affirmatively; or words alledged to have been spoken to the plff. are not supported by words proved to have been spoken to a third person of the plff It is objected to the evidence of Mr. Wright, that it does not certainly appear that the conversation detailed by him, took place before the commencement of the action. In order to prove the slander, it ought to appear that the words were spoken before the action brought. This is a matter of which you are to judge from the testimony of this witness. We may be allowed to say, if the words spoken to Mr. Wright were spoken before the action brought, they in substance do support the allegation in some of the counts of the declaration. If they were not spoken before the action brought, then they can be only used in proof of express malice, and to aggravate the damages on the ground, that every repetition of a slander is evidence of malice, and may be used to aggravate damages.

Words spoken in the course of a judicial trial, or in a legal proceeding before a justice of the peace, either in a civil or criminal case, are not in themselves actionable; and, therefore, the only use that can be made of the testimony of Dr. Gibbons, will be to increase the damages, in case you should be of opinion that the slander has been proved by any other witness. Even if the deft, instituted this proceeding before the justice from the most malicious • motives, it would not itself be the foundation of an action of slander; but, if the slander is proved by other testimony, then what he said to Dr. Gibbons, if you believe he was actuated by malice or a design to injure the plff. may be used in this action to show the design and intention of the words spoken to other witnesses.

You alone are to judge of the credit to be attached to the witnesses. If you give credit to Jacob Wright or William Tobin, the slanderous words imputed to the deft, or those in some of the counts in the declaration have been proved; and, consequently, the plff.-is entitled to your verdict for damages. What those damages ought to be it is not for us to say. The law has made you exclusively the judges; and you, exercising a sound discretion, are to say what redress the plff. ought to receive for the wrong which has been done him. We have already told you that the words imputed to the deft, are in themselves actionable; that wherever one man uses towards his neighbour such words as these, the law implies malice, and it presumes that the party thus slandered is injured, and is entitled to damages. If, in addition to the speaking of the words, the deft, be actuated by express malice, then you may give exemplary or vindictive damages. If Cannon uttered these words designedly to prejudice or injure the plff, that is what the law calls express malice. You will therefore in considering all the testimony in this case, ascertain whether the deft, did design in uttering the words to injure the plff.; and, if he did, you will be warranted in giving vindictive damages. What shall be the amount of the damages you are to judge from all the evidence. ”

The jury gave a verdict for the plff. Damages $2,000.