Gay v. Homer

Wilde J. delivered the opinion of the Court. The defendant moves for a new trial, í nd also in arrest of judgment. The first objection is to the allowance of several amendments in the declaration. In the Court of Common Pleas the plaintiff filed three new counts, which it is contended by the defendant’s counsel, were for new causes of action. Perhaps it would be a sufficient answer to this objection, that no opposition was made to the allowance of these amendments, and that the defendant agreed that the plaintiff might make further amendments in this Court. But on looking at these new [542] counts we think that they are for the same causes of action set forth in the original declaration. It contained two counts for defamatory words charging the plaintiff with forgery, and with fraud and conspiracy, and the same charges are set forth in the three new counts, though in different forms. The amendments in this Court were mere matters of form, and were clearly admissible. It has been argued, that for want of a proper venue the Court here had no jurisdiction. This point was settled in the case of Briggs v. Nantucket Bank, 5 Mass. R. 94. The want of a venue can be only ¡.alten advantage of on special demurrer, and indeed in this Commonwealth, where it never designates the county from which the jury is to come, it seems to be wholly useless. This is a transitory action, and the court here have jurisdiction, wherever the venue may be laid. In support of the motion in arrest of judgment, several objections have been made to the declaration, which, however, we think cannot be sustained. The first count is substantially good. It alleges that the plaintiff was agent for the Boston and Providence Citizens Coach Company, and one Brown was the sub-agent; that suggestions had been made that Brown had not accounted for moneys received by him in that capacity ; and that the defendant did thereupon charge the plaintiff with having altered the way bills and books kept by him the said Brown, to make them correspond, for the purpose of screening said Brown ; meaning thereby that the plaintiff, for the purpose of aiding said Brown in concealing his frauds on the said company, had been guilty of the crime of forgery. This innuendo is the legal import and meaning of the words set forth, and they are actionable without the help of the innuendo. The fraudulent alteration of a writing to the prejudice of another man’s right, is forgery at common law. The words alleged to have been spoken, clearly import a fraudulent intent and fully sustain the innuendo. The objections to the second count might be valid on demurrer as to any charge of fraud actually completed, but the words spoken, we think, import a charge of conspiracy. The words are “ Gay (meaning the plaintiff,) and Brown are [543] together in cheating the company,” &c If a proper colloquium had been laid with suitable averments, there could be no doubt that these words would import a charge of conspiracy and of fraudulent practices done in pursuance of the conspiracy. Whether without a colloquium this count can be held good or not, is immaterial, as the charges of conspiracy and fraud are well set forth in the fourth and fifth counts, and as these two counts are for the same causes of action informally set out in the second count, it seems to be immaterial whether that count is good or not. We think, however, that after verdict it is good, so far as it relates to the charge of conspiracy. Judgment according to verdict.