Thompson v. Lusk

The opinion of the Court was delivered by Gibson, G. J. Where the accusation has not been made bluntly, but has been insinuated, as it sometimes is, in a way to make it actionable, it is frequently a nice thing to determine whether the attendant circumstances are sufficiently stated to indicate, with legal precision, the sense in which the words are supposed to have been spoken and understood. The latter must in general be coupled, by means of a colloquium, with facts which give a particular hue to the meaning, and which, by the help of inuendoes, to designate the things and persons alluded to, disclose a charge of guilt, resulting [21] from the whole, and in a way to be intelligible to a hearer of ordinary capacity. It is impossible to explain distinctly what is meant by this, without recourse to instances of its application; the best of which, it seems to me, is found in Oldham v. Peake, 2 Black. Rep. 952, in which the words “ you are guilty of the death of A.” averred to have been uttered in a colloquium of the death of one supposed to have- been slain, were held to sustain an inuendo of felonious homicide, because guilt could be contracted from no other species of it. Perhaps the colloquium was unnecessary; the matter which determined the meaning of the word “ guilty” being contained in the words which accompanied it. In Rue v. Mitchel, 2 Dall. 58, the court went further, by sustaining the assignment of a particular meaning in the inuendo, though the explanatory matter was neither set forth in a colloquium nor contained in the words themselves. As the law then stood, the decision must be admitted to have been a questionable one. “ You have taken a false oath before squire Rush,” are words which may undoubtedly have been spoken by one who knew the circumstances, in the sense attributed to them in the inuendo, to wit that the plaintiff had committed perjury in an oath taken by him before a justice of the peace in an action before him depending; but were they alleged to have been spoken in reference to circumstances known to the by-st.anders, which showed that they were understood in that sense by the hearers? These are not presumed to have known that the violation of a judicial oath was intended, unless they also knew that the plaintiff had testified in a judicial proceeding. The court proceeded on the same principle in Bornman v. Bayer, 3 Binn. 515, where the meaning was held to be well alleged by an inuendo, without a colloquium; on the ground, that where words admit of a double meaning, the plaintiff has a right to aver the one with which he conceives they were spoken. But without having set forth circumstances to give colour to the averment, has he a right to assume a particular meaning by adopting an arbitrary interpretation? It is said that an inuendo can not add to the effect of the words, nor aver a meaning inconsistent with them; and it is for this reason that a colloquium is necessary to show that the additional or particular meaning imputed by the inuendo, is legitimately indicated by concomitant circumstances. Though a jury may judge of the meaning by extrinsic evidence of such circumstances, the court can judge of it on a motion in arrest of judgment only by the record; and consequently only according to the natural import of the words, stripped of every thing that is not there set out. By this I would not have it inferred that I disapprove of these decisions. On the contrary, I would prefer to relax still further the strictness of averment formerly required, rather than to shake their authority. Had the courts received, under the sanction of a verdict, the meaning imputed by the inuendo as the true one, without attempting to discover from the record whether the premises were sufficient to warrant the conclusion of the jury, [22] they would have saved a vast deal of subtlety, which has not only occasioned useless disputation, but served to render the attainment of justice more difficult; for facts and circumstances which collectively fix the meaning of an ambiguous phrase with perfect certainty before a jury, are frequently so numerous, complicated, minute and evanescent, as to be incapable of being represented on the record. Their nature and effect may be explained to a jury, by the simple narrative of their impression on the mind of the witnesses; while they may be incapable of being described to the court by the ablest special pleader. In Bornman v. Bayer, there may have been no actual colloquium; and yet the imputation of theft may have been so clearly indicated by the tone and manner of the speaker, as to leave no doubt on the mind of the hearer, as to the meaning of the words “ Bornman must have taken it.” But the sufferer would have been remediless, could the words have been shown to be actionable in no other way than by a successful attempt to set forth the tone and manner in the declaration; for if the plaintiff had laid a colloquium, he would have been bound to prove it.. However this may be; I am certainly not disposed to question the authority of the two decisions alluded to, which come up to, if they do not go beyond, the exigences of the present case. The colloquium relates to testimony given by the plaintiff in a cause depending; in reference to which the defendant is alleged to have said, “ I have made the charge against him, and I will go on with it.” A charge imports an accusation of criminality; and when made against a party in relation to “ his oath and evidence in the trial of a cause,” imports an accusation of the only species of criminality which could have been incurred by him in the character of a witness. Why should the defendant express a determination to “ go on with it,” if it were any thing else than the subject of a prosecution? It is in vain to say, that nothing more may have been imputed than a repugnance to tell the truth, or any other species of delinquency which happens to fall short of actual perjury. Such an interpretation' could be adopted only by a recurrence to the doctrine of miliori sensu, which has been long exploded. No bystander could doubt for an instant what was meant; and as certainty to a common intent is all that is required in pleading, it is clear, even on the principle of Oldham v. Peake, that the words are actionable as they are laid. Judgment affirmed.