Nichols v. Hayes

Waite, J. The plaintiff having obtained a verdict upon the first count in his declaration, the defendant moved in arrest of judgment upon the ground of the insufficiency of that count. The words alleged to have been spoken are — “ He has been guilty of forgery” — “ He has forged a receipt” — “ He has altered a receipt.” Here is manifestly a charge of forgery. A crime is imputed to the plaintiff. The words — “ He has been guilty of forgery” — “ He has forged a receipt” — are clearly actionable. The effect of those words is not at all impaired or weakened, by the subsequent words — “ He has alter163 There is no necessary connexion between them. J ed a receipt.” The former words may have been proved, without any evidence of the speaking of the latter; and enough would have been proved to enable the plaintiff to sustain his action. It is a settled rule, that in the action of slander, the plaintiff need not prove all the words set forth in the declaration, provided he proves enough to sustain his cause of action, and the words proved do not differ in sense from those alleged. Maitland & al. v. Goldney & al. 2 East 425. The motion in arrest, therefore, cannot prevail. The defendant also claims a new trial, 1. Because the subscribing witness was not examined to prove the execution of the receipt. He was produced in court, and the plaintiff’s counsel stated, that he was not a competent witness, but they would examine him, if the defendant’s counsel would consent, and not object to him on the ground of incompetency. To this no reply was made, by the defendant’s counsel. Other witnesses were called to prove the signatures of the defendant and subscribing witness. After the testimony had been closed, and the witnesses dismissed, the defendant claimed, that the receipt and the evidence to prove the execution should be excluded from the consideration of the jury. This claim certainly came too late. No reason was assigned for not making the objection at the proper time. It is not claimed, that the statement made by the plaintiff’s counsel was not true, or that there was any surprise on the part of the defendant, such been the case, the court, in the exercise of its discr ry power, would have taken care that no injustice wa¡ From the silence of the defendant, when it was stated ti witness was incompetent to testify, it may fairly be inferred that be acquiesced in the correctness of the statement! omission to object to the testimony, when it was offered, until all the witnesses were dismissed, amounts to a waiver of the objection, unless that omission is satisfactorily explained. 2. Because the testimony of James U. Hawley was not excluded, upon the ground of a variance between it and the declaration. He testified, that the defendant, speaking of the plaintiff and Hawley B. Nichols, said, that the “ Nicholses had forged.” This clearly imports a charge that each of them had been guilty of forgery. The charge that A has committed forgery, is supported by proof that A and B committed it. [164] 3. It is further claimed, that the testimony of several other witnesses ought to have been excluded upon the ground of variance. No objection was made to the admissibility of the testimony, at the time it was offered. It was received and permitted to go to the jury, without objection, by the defendant, until the argument. It was not then the duty of the court to decide upon the effect of each particular piece of testimony, but only to lay down general principles. This has been done. The jury were instructed, that the plaintiff must prove the words set forth in the declaration substantially as alleged ; and that it was not sufficient to prove equivalent words of slander. The judge pursued the proper course in the charge. Had the defendant wished the opinion of the court as to the admissibility of testimony, it was his duty to make the objection, when it was received. It is not unusual, in our practice, for a party to say, at the time testimony is offered, that there is an objection to it, but he will take the objection in the argument. This clearly implies, that he would not have the right, unless by consent. 4. It is also claimed, that the testimony of Sheldon Nichols and Charles Curtis was not admissible, on the ground that the words were spoken by the defendant, as a witness in a court of justice, and were material to the issue then on trial; and that the court erred in not so instructing the jury. This claim of the defendant was also made too late. He had no right, in that stage of the trial, to call for the exclusion of that testimony. It had been received without objection on his part; and all he was entitled to, was, to claim of the court instructions as to the law applicable to such testimony. A question has been made as to the costs to which the parties are entitled : and we think, that the plaintiff has a right to recover only such costs as were incurred in the trial of the issue joined upon the first count; and that the defendant is entitled to his costs upon that issue, where_the cause of action is distinct from that in the first count, although they were incurred in part for testimony applicable as well to the first issue as to the other. Our advice to the superior court, is, that the first count in the declaration is sufficient; and that no new trial be granted. [165] In this opinion the other Judges concurred, except Sherman, J., who gave no opinion, having been of counsel in the cause. Declaration sufficient; New trial not to be granted.