Hamilton v. Dent, 2 N.C. 135, 1 Hayw. 135 (1794)

Sept. 1794 · North Carolina Superior Court

2 N.C. 135, 1 Hayw. 135

Hamilton v. Dent.

Words in an action of slander bear that signification, which the y have in common parlance ; therefore to say one lias sworn false in Court, implies malice, and, also in this country, must mean such a Court as has power to administer an oath ; and it is therefore actionable.

Action for words, in which-the declaration stated that the Defendant maliciously spoke of. the Plaintiff these words, “You swore false in .two, particulars in one oath in Court;” then it went on, and that afterwards, fo-vjit, the same day and year, he spoke these other words, “He swore false in two particulars in one oath in Court,” meaning the County Court of Guilford, which is a Court of record. Upon the general issue pleaded, the jury found generally for the Plaintiff, and assessed his damage to sixty pounds: and thereupon Moore, for the' Defendant, moved in arrest of judgment, and assigned these as his principal reasons, to wit, that tiie words in the first count are not actionable, and that those in the second are not laid to be spoken maliciously or with any ill motive. There were other reasons asssigned,. but lie seemed to rely upon these only, and these reasons come on now to be argued. -

Moore for the Defendant

Every declaration ought to he plain, that the Court and the jury may understand it; brief, that the records of the Court may not be entangled with unnecessary matter; and certain, that the Defendant may know precisely what to defend himself against. and that he may plead if ,in' bar to subsequent suit fop the same, cause; and it ought to be certain matter, which in law will support the action — to charge a man with false swearing, does not necessarily imply that he was perjured, & for that reason has been held always not actionable; as to say of a man that, he is foresworn, which may be in common conversation, or not in a Court of record, in which case the false swearing cannbt amount to perjury — -the same thing is it to say he is foresworn in Court, meaning a Court which had no jurisdiction to administer, an oath. He cited 4 Bac. Jib. 483, 484. 4 Rep. 15. Cro. El. 429, 788. 905. Fdvertm S., C. Banver’s Jib. “Your brother took a false oath,” held not actionable. As to the second count, if that be bad, though the first be a good count, as damages are assessed generally, and flic Court cannot know whether they were assessed upon the good or the bad count, the whole is vitiated and no judgment can be given j and this second count states no such matter.asís sufficient to support an action; if states words spoken without saying they were spoken maliciously, without which circumstance they are not actionable. 3 Bl. Com. 124, 125. 4 Bac. Jib. 515. 4 Rep. IT. Cro.' Car. 44S. Cro. El. 834. Cro. Jac. 126. Cro¿ El. 496, 497. 10 Rep. 139. 2 Bl. Rep. 750. The words laid in the second count may be.true, and yet not amount to a charge of peijury. 4 Bl. Com. 136. 1 Ilawk. P. a i72.

E contra,

it was argued, that the rule as to actions for slander is considerably changed at this day from what it was formerly. In anfient times there were two rules which principally governed these actions, namely, that words were to be taken in meliori sensu ; and secondly, that they must be-such as if true the Plaintiff was liable to be punished criminally. As tp the first of these rules, it is now exploded ; and ;v: to toe second, if die words are such as according to common acceptation, are exp res-sive of a charge that would render a man liable to punishment, the action will now lie: and even where the words are defamatory, though not containing a criminal charge, an action hath been held to lie. It was antieutly the policy of the low' to discourage actions for slander, ad obviendum malitice hominum. as the old books expressed it; hut iri modern limes, the action has been encouraged to prevent breaches of the peace. But even according to the ancient authorities, this action would lie for such as words are stated in the declaration, much more will it lie by the modern authorities. According to the old cases, to say a man was forsworn in a Court, implying such a Court as had a right to administer an oath in a judicial proceeding, was actionable, lie cited Cro. EL 185, 135, 297,609, 394. Cro. Car. 288, 322, 387, 378, 509. Luler. 538. The rule at this day is, that words intended to defame, and calculated to effect that purpose, arc actionable, contrary to the rule Said down in 4 Rep. 15, b. and he cited L. Kay. 960. Cow. 278. ■Salk. 695. Moreover 'the declaration states that by means of speaking the words, the Plaintiff could not be elected a representative in the House of Commons for the county of Guilford, as he had been before for several years j and the jury have found this allegation as well as every other part of the declaration to be true. As to this, the rule is, that though the words spoken be not of ihemsehes actionable, yet if they are followed by special damage, the action will lie. The loss of his election, which would have been honorable to the Plaintiff, is a special damage. He cited Cro. Jac. 323. 4 Sep. 17. &ro. El. 346. Salk. 693. Bull. 6 and 7. What is called the second count in this declaration, is not so j it is only a laying the words another way in the same count, and the whole declaration is but one count; and if in the same count, some words be actionable, and some not, and (la-mages be entirely assessed, after the verdict they shall be intended to have been assessed for the ac tionable words. He cited Bull. 8. Cro. EL 237. 10 Rep. 130 to Osborne’s case 131. Cro. Jac. 630. Cro. EL 329, 788. Cro. Car. 328. I Sulk. 119. 2 Cro. 598. But granting that this is a second count, as the Defendant’s counsel insists it is, yet the word maliciously, is not of necessity to be inserted. 1 Term. Rep. 11, or Ihirnford and East 11. The rule is, where the words themselves are such as imply malice, there it need not be stated thrv were maliciously spoken ; but where they are such as may reasonably be supposed to have been spoken without malice, as if spoken on a necessary occasion, or in a confidentiai way intended for the benefit of the hearer only, there they must be laid to be spoken maliciously. As if a man enquire of the character of a servant of his former master, and he gives him a bad character ; here the bad character may be reasonably supposed to be given with only to inform the enquirer truly of the Plaintiff’s character, to answer Ills request, and without any malicious motive towards the Plaintiff; and in such case it is the speaking the words with malice, that only will make him liable to the action, and it ought to be laid that he spoke them maliciously. So of every other case where it may reasonably be supposed from the occasion, they were spoken with no ill intent to the Plaintiff, the malice of the speaker is the only circumstance that can turn (he scale against him, and it must be.expressly stated in the declaration and found by the jury. But if is equally true, ihat this circumstance need not bn alledged in any rase where the words themselves manifestly shew the evil design of the speaker. But suppose that word necessary, yet now since the jury have found a verdict against the Defendant, it must be presumed they were spoken maliciously, as otherwise under the direction of the Court they could not have found for the Plaintiff; and the defect in lite declaration, supposing it to be one, is remedied by the verdict. Bull. Nisi Print 821, 220. Salk- 9. L. Ray. 109, 811, 1214. 4 Burr. 2020. 2. Mad. 213. S Mod. 162, 258. He concluded with praying judgment for the Plaintiff.

Mr. Moore in reply

The Judges have not the power to declare any thing to be law, but that which is so declared by the Legislature, or established as the common law as found in the hooks of reports — to say they are not bound down by former decisions establishing, or rather ascertaining what is the common law, is (o place the property of all the citizens in the arbitrary and capricious dispositions of the Judges. These old cases were undoubtedly considered to be the common law, and the Judges in England had no power to alter it by their modern decisions — some of which say there is no rule to be observed in such cases, but the understanding of the Judges — establishing a doctrine dangerous to liberty in the extreme. According to this principle, no man knows nor can know until he [tears the sentence of the Judge, what words lie may speak with safely — one set of Judges may entertain one opinion, another set of them a quite different opinion. There should be some certain rule in this as well a* in all other cases, from which the Court; should not depart; and this is found in the books of reports ascertaining what the common law was before our revolution, and which is declared by our Legislature to be in force here. The common law, as-modified and changed by decisions made to suit the circumstances of the people of England since that period; or perhaps from other motives less commendable, and which are handed to us iu the modern books, are not the law that is referred to by our acts of Assembly ; they have adopted the common law as it was at the time of making the acts, and as it had been received here formerly. This is the law by which our Courts are bound, and they must ascertain it by the cases adjudged before these English innovations took place. Curia advisare milt. And’now on the last day of the term they gave judgment for the Plaintiff.

Judge A she — According to the old authorities words are to be taken in meiiori sensu, to discourage actions for slander ; but now the rule is changed, and they are to be taken to have that signification which they beat* iu common parlance; and taking them in that sense, in the present case, they clearly impart a charge of perjury.

Judge WiiiiAMs — The old authorities say, that the words spoken must bo such as impute a Prime punishable, yet there are many of tiiese old cases where actions of slander have been maintained without the assistance of this rule — as to say of a young lady, you went to such a place to drop your stink ; and besides, the old authorities cited on the part of the Defendant go to this, that if the words were foresworn in such a Court, mentioning it, and that appears to be such a Court as could administer an oath, it sufficiently implied a charge of perjury to support the action — but if they only charged him with being foresworn in Court, they would not support the action. The reason of this difference is, that in England there are many Courts which have no power to administer an oath, and if an oath should be administered, and the party swear falsely, it was not perjury according to the authorities cited from 4 lit. Com. 130. 1 Haw. P. C. 172, and the Court would not intend the speaker of the words meant such a Court as could lawfully administer an oath, when he had not expressly named such an one; because another rule was, that Words were to be taken in meiiori sensu. But these reasons will not apply here — there are no Courts in this country, of course none in the County of Guilford, but; such as by law may legally administer an oath ; the Orphan Court has been singled out as one that cannot ad* minister an oath j but I think the Orphan Court may jeg.ai|y administer in regard to such matters as are within their jurisdiction. It will follow therefore, that to say a man swore false in Court, in this country, is the same thing as to say, he swore falsely in a Court having power lawfully to administer an oath to. him, and by the old authorities themselves such words would support air action amounting to a charge of perjury.

Et

per curiam.

Let the Plaintiff have judgment, and it Was entered accordingly.

Note. — Vide Browne v. Dula, 3 Murph. 574. Holt v. Scholefieid, 6 Term Rep. 691.