Henderson v. Hale

CHILTON, J. This was an action on the case brought by the plaintiff in error, against the defendant in the Circuit Court of Cherokee. The declaration contained seven counts. The defendant demurred to the fourth count, which demurrer ivas sustained, and he pleaded to the first, second, third and fifth, not guilty, and justification. To these pleas the plaintiff demurred, and the defendant asked that the demurrer should be visited upon the counts to which the pleas related, and the court considering said counts insufficient visited the demurrer .upon them, and held them bad; thereupon, the plaintiff entered a nolle prosequi as to the other counts, and judgment was entered upon the demurrer for the defendant. [158] It is unnecessary for us to decide, whether the demurrer to a plea, can be visited upon any count in the declaration, to which the plea did not purport to be an answer. This is not the point bo-before us. The question here is, whether, where there are several counts, and the pica is pleaded to only a portion of them, a demurrer to such plea may be visited upon the counts to which the plea relates; and this question is too clear and well settled to admit of any doubt. A demurrer to the plea opens the previous pleadings, and reaches back, to the first fault of the party demurring upon the motion of the opposite party, and we see no reason why this rule should not apply in cases where there are several counts. A .demurrer to the plea goes back to the count; so a demurrer to a replication- goes back to the plea, and this, although a demurrer has been overruled previously to the plea.—Cummings v. Gray, 4 Stew. & Por. 397; Donnell v. Jones, 13 Ala. 390; ib. 500; Sykes v. Lewis, 17 Ala. 265. We think if any one of the counts to which these pleas related, was defective and insufficient, it was the duty of the court, upon the motion of the defendant, to visit the plaintiff’s demurrer upon them. The question then comes up, were any of tíre ’counts to which a demurrer was sustained sufficient. Properly to determine this question, it will be necessary to ascertain particularly the legal effect of the averments contained in them. The first count alleges that the plaintiff for a long time before, and at the time of filing the declaration, was the treasurer of Cherokee county, and after stating his good character, &c., by way of inducement, avers that the defendant wickedly intending to bring him into disgrace, &c., as county treasurer, &c., falsely, wickedly and maliciously composed and published of and concerning the said plaintiff, and of and concerning his demeanor in his office of county treasurer as aforesaid, the false, scandalous, malicious and defamatory libel following; that is to say: “ To the public: R. S. T. Henderson, Esq., and others in his interest, are circulating a report that he (Henderson) as county treasurer, proposed on last week to have his office examined by the gentlemen appointed by the judge of the County Court for that purpose, and that I objected, and said it should not be done until after the election. The following certificate shows which were for, and which were opposed to the examination. Certificate, No. 1. — We the undersigned, do certify, that we [159] were present in Centre, when the following certificate of the town commissioners were made, and that Martin Hale informed Mr. Henderson that the committee appointed by the judge of the County Court were in town, and willing to examine his books as treasurer. Henderson refused to have it done, and said he had no time until after the election,” signed by S. P. Wharton and Wm. Hickman. “ On the day the commissioners gave Henderson the certificate, he has produced and circulated, I warned Henderson to have his books and office examined by the proper persons, instead of a few papers he showed to the said commissioners. He refused, and said commissioners gave the following certificate. “ Certificate, No. 2. — We the undersigned do certify, that we paid in the county treasury of Cherokee county, notes of the sale of the town of Centre, to the amount of $1949 941-4, and after taking a slight look over Henderson’s, said county treasurer’s, papers, find there receipts of William L. Cain amounting in all to $626 04 ; only two notes over fifty dollars, which two notes were against Moses Scott and William Hickman, for $119 55 each. Said Henderson accounts for receiving $216 55, and has vouchers for money paid out $219 85, and found cash mi hand, $35. Given under my hand, this 21st July, 1847. (Signed) James WhautoN, AaeoN CLIFTON, Asa R. Buinley. “From the foregoing certificate, Henderson only reported $276 55, as collected by him. I say there has been $510 45 collected from the claims placed in his hands by said commissioners, and annex the names of persons of whom collected. I know not how many more have paid, or where the notes are.” Signed Martin Hale; and then follows a list of names with the amounts paid by them, making in the aggregate $510 45. The said defendant meaning, and intending by said false, scandalous and defamatory libel, to charge the said plaintiff with fraud, corruption and misconduct in his said office of county treasurer of Cherokee count}''. The second count only avers the last paragraph of the publication as libellous, with the innuendo; “ meaning thereby to charge the plaintiff with the crime of embezzlement.” The third and fifth counts are not essentially variant from [160] these above mentioned; the innuendo to the third, that the defendant thereby intended “ to charge the plaintiff with being guilty of a'fraudulent concealment of the condition of the business of his said office of county treasurer, and to charge him with gross misconduct in said office.” The innuendo to the fifth count is, that the defendant meant to charge the plaintiff with the crime of embezzlement. It is the office of an innuendo to explain some matter already expressed, or serve to point out where there is precedent matter. It may apply what is already, expressed, but cannot add to, enlarge or change the sense of the previous words. If it introduce a meaning broader than that which the words naturally bear, it is bad, unless connected with proper introductory averments.— See this doctrine fully exemplified in notes to 1 Saund. R. 243; also, Golstein v. Foss, 6 B. & C. 154, (S. C. 13 Eng. C. L. R. 128); S. C. on Error in Exch. Cham., 4 Bing. 489, (15 Eng. C. L. R. 53.) And it is for the court to determine whether the meaning charged by the innuendo may legally be attributed to the publication, and for the jury to decide whether the intent charged be true in fact. Now, waiving the consideration of the objection that this declaration does not charge the plaintiff to have been at the time of the publication of the alleged libel, the-treasurer, we do not think that a fair and reasonable interpretation of it can be considered as imputing to the plaintiff the crime of embezzlement, or of any corruption or malfeasance in the discharge of his official duties. The ’ substance of the publication is, that the commissioners for the town of Centre had deposited or paid over to Henderson, as county treasurer of Cherokee county, notes to the amount of $1949 94|; that Hale notified Henderson that the commissioners appointed by the Judge of the County Court to examine his office were in town and willing to proceed with the investigation, but the latter said he had not time for the investigation before the election, and refused; that Henderson and his friends had circulated the report that he, Henderson, made the proposal to go into the examination, and that Hale refused; that the commissioners made a slight examination of Henderson’s papers and found among them receipts of W. L. Cain, amounting to $626 04; that Henderson accounted for the receipt of $276 55, and had vouchers for cash paid out, $219 85, and cash on hand, $35; [161] that Hale warned Henderson to have his books and office examined, instead of a few papers which he exhibited, but he refused; that Henderson only reported to the commissioners $216 55 as collected by him, as appears from their certificate. The.defendant then avers, that there has been $510 45 collected from the claims placed in said Henderson’s hands, and annexes the names of the persons from whom collected. Now what is there in all this, imputing gross negligence, dishonesty, or other impropriety in the discharge of Henderson’s official duties'? The defendant does not state that Henderson has collected more money than he has accounted for; lie1 only says there -was more collected from the notes placed in his hands, but the publication shows that a portion of these notes were placed in the hands of a third person, whose receipts they found on file, who may have received the amounts collected; and we are led to infer this from the guarded manner in which it is stated in the publicatiom: !<From the foregoing certificate, Henderson only reported $276 55 as collected by him. I say there has been $510 45 collected” — (he does not say by him, but) — “from the claims placed in his hands by said commissioners,” fyc. This writing must receive the interpretation which an ordinary reader would put upon it, (Cooke’s Law of Defam. 4,) and thus construed, we do not regard it as libellous. A libel affecting the character of individuals is defined to be any writing, picture or other sign tending, without lawful excuse, to injure the character of an individual, by subjecting him to ridicule, contempt or disgrace.—1 Star, on Slan. 169; Cooke on Def. 2; Weir v. Hoss & Wife, 6 Ala. 881. We do not think that such is the tendency of this,publication. There is no averment in the declaration that it was the duty of Henderson to have his books and office examined at the timé Hale desired him, or in the language of the writing, “ warned” him to do so. So that his refusal cannot legitimately be construed into a breach of official duty. There is no averment that it was his duty to have collected the notes placed in his hands by the town commissioners, but if the statute would supply the want #f such averment, still he had the right to place them in the hands of an attorney or a justice of the peace for collection by suit. There is no averment that he had converted any of the notes or the proceeds of the same to his own use, or that he concealed anything from the commissioners, or that they demanded an ex162 animation into the affairs of his office, as the statute requires. The most that can be said of the publication,- as exhibited in the several counts to which demurrers were sustained, is, that Henderson refused upon, it may be, the officious application of Hale, to have his office and books examined before the election, and that certain persons upon a slight examination of some papers exhibited, gave a certificate which does not show what disposition has been made of all the notes placed in Henderson’s hands. We have seen that the innuendoes which enlarge the meaning of the writing are not justified. The court properly sustained the demurrers. Let the judgment be affirmed.