Adams v. Mills , 3 How. Pr. 219 ( 1848 )

Parker, Justice.

It is stated in the notice of this motion served on the Plaintiff’s attorney, that the motion would be made “on the grounds that the affidavits upon which the order to hold to bail was allowed, are insufficient to make out a prima facie cause of action, and are insufficient to show that Defendant was about to leave the state, and also that they are irregular, being sworn to before the attorney for Plaintiff, as justice of the peace.” The Defendant has thus restricted himself so as to preclude his reading other affidavits, and no additional affidavits can, of course, be read on the part of the Plaintiff. I must, therefore, reject the new affidavits read on both' sides on the argument of this motion, and confine myself to an examination of the affidavits on which the order to hold to bail was made.

The objection, that these affidavits were verified before the attorney for Plaintiff, as justice of the peace, is not tenable. When they were sworn to, no suit had been commenced. The affidavits were not therefore entitled. In such case, the general rule that precludes the taking an affidavit before the attorney in the suit, does not apply. (Taylor v. Hatch, 12 John. 340, and notes ; Tidd’s Pr. 155 ; 6 Cowen, 587 ; 15 John. 531; 17 John. 2.)

The remaining question is as to the sufficiency of the affidavits on which the order was made. To authorize an order to hold to bail, the affidavits must show a good cause of action, and that the Defendant is a transient person, or is about to depart beyond the jurisdiction of the court, and this must not rest merely upon information and belief, but facts and circumstances must be set forth, from which such an inference may properly be drawn. The declarations of the Defendant as to his intentions are, of course, among the most satisfactory kinds of evidence to show that he is about to go beyond the jurisdiction of the court. (1 Howard’s Pr. Rep. 251; 2 do. 27,110, 230, 272 ; 7 Hill, 153.) Perhaps there was enough shown in the affidavit as to the transient character, and the intentions of the Defendant to justify the making of the order.

But, however that may be, there is another defect in the affidavits, less doubtful in its character. They do not show a cause of action. They prove the speaking of the words complained of, but do not aver that the charge made was false. This was a material and necessary allegation. And everything necessary to show a cause of action, must be set forth in the affidavit. (2 Howard’s Pr. Rep. 232.)

In Pearson v. Picket, 1 McCord, 472, the same question was presented, and the court set aside an order made to hold to bail in an action for slander, on the sole ground that the affidavit omitted to state that the words spoken were false.

The counsel for Plaintiff argues that there was a prima facie cause of action without an allegation of the falsity of the charge, and refers to 2 Ch. PI. 1 ed. of 1833, 620, note to, to show that the inducement, averring generally that the Plaintiff is innocent of the crime imputed, may be omitted in the declaration. This general inducement may, no doubt, be omitted, but the specific allegation that the charge was made “falsely and maliciously,” must be retained. These words are found in all the precedents, and the authorities hold that such words, or equivalent words, are necessary. The declaration may be either that the Defendant “ falsely spoke ” the words, or that he spoke “ the false words.” (1 Keble, 273.)

The declaration must show a malicious intent in the Defendant, but it is not necessary to use the word maliciously, for the word falsely or wrongfully, is generally considered sufficient. 1 Saund. 242, a, note 2; 1 Bast. 563 ; 1T. R. 545 ; Com. Dig. action for defamation, G. S.; 2 Ch. PI. 455, by Greening; though, in Saxon v. Castle, 6 Adol & Ellis, 652, it was decided that “ wrongfully and injuriously” would not answer, and judgment was arrested because the word “maliciously” was not used: vide also Chitty’s PL 421, where it is said that the word maliciously, or an equivalent expression, as wrongfully and falsely, must be used. It is held, that the word maliciously imports that the words were falsely uttered. (Sutton v. Johnstone, 1 T. R. 493 ; 1 Starkie on Slander, 2d ed. 436 ; 1 Chitty’s PL by Greening, 421.)

An allegation therefore that the words were spoken falsely, or that they were spoken maliciously, was necessary to make out a prima facie cause of action. The mere speaking of the words, without malice, would not be actionable, and it always rests upon the Plaintiff to show that the words were spoken under such circumstances, as warrant the legal inference of malice. The Defendant would defend against such a charge under the plea of not guilty.

In Van Vechten v. Hopkins, 3 John. 293, this point was not taken, nor does it fully appear from the report, what was set forth in the affidavit on which the order to hold to bail was made. ¡Neither that case nor Satterlee v. Lynch, 6 Hill, 228, goes farther than to hold that the affidavit must make out aprima facie cause of action against the Defendant.

I find no case, except that of Pearson v. Picket, above referred to, in which the point now under consideration has been expressly adjudged, but I think, upon principle, the decision in that case was correct.

The motion must therefore be granted, but without costs.