Holton v. Muzzy

The opinion of the court was delivered by Barrett, J. Without making any minute criticism of the first two counts, for obvious reasons, we think they cannot be sustained. The words charged, are not, in themselves, actionable. If they are to be made so, it must be in virtue of the special damage, alleged to have accrued therefrom. We think these counts are seriously defective in this respect. The declaration does not aver what special damage has accrued from the speaking of those words. The five counts in the declaration cover three distinct and different causes of action. The first and second counts cover the words charging the selling of liquor; the third count covers the charging of adultery in begetting the bastard; the fifth and sixth counts cover the charging of the going into the woods, etc. The general, as well as the special damage is averred as resulting from all the premises, without any designation as to what particular damage resulted from the words charged in any particular count. It is a familiar rule that the special damages claimed must be averred as resulting from the particular wrongful act, from which they are claimed to flow. The case stands on different ground from what it would have stood if the several counts had covered only a single cause of action. [375] To the claim, that under a general demurrer the court may select and assign to the first two counts, such of the special damage averred, as is appropriate thereto, it is a sufficient answer that the special damage of being prosecuted for a violation of the liquor law of 1852, docs not seem to bo that “mere natural and immediate consequence of the wrongful act ” of the defendant, that the rule of law upon this subject contemplates and requires. See Starkie on Slander 120, ed. of 1832. But were these counts to be held sufficient, we think the defendant’s third plea is a sufficient justification. It seems to cover the precise offence which the counts allege, that the defendant charged upon the plaintiff. This, we understand, answers in full the rule of pleading applicable to the subject. The second plea is insufficient in not alleging the several acts of sale and furnishing to have been contrary to the laws of the state. The fifth and sixth counts are obviously defective. It is conceded in argument that they need the aid, by way of reference, of material portions of the former counts. We are not prepared to say, that, if the former counts were for the same cause of action as the fifth and sixth, the latter counts might not receive such aid. These two counts, considered by themselves, seem to be defective in the matter of the colloquium. In order to render the speaking of the words actionable, the colloquium must perform an important office outside and beyond the province of the innuendo. Now, it is quite obvious, that the colloquium in the third count cannot be incorporated by reference into the fifth and sixth counts for the very plain reason that the subject matter of it, as well as the persons with whom, and the time when it occurred, are entirely different from what are indicated in these respects in the fifth and sixth counts. Then, again, the reference to former counts is general, and in no way indicates to which of them it is made. It leaves the court to look into the pleading, and assort the particular parts of the several foregoing counts, and appropriate such parts as may be applicable and necessary, in order to perfect the needy counts. We think this would be rather extra judicial labor, and altogether more within the appropriate business of the pleader to anticipate and render unnecessary than it is within the duty of the court to assume. [376] The third count we deem sufficient both in matter and form. The colloquium properly developes the subject and occasion of and concerning which the words charged were spoken, and the intent with which they were spoken. The words themselves, as properly explained by the innuendos, are actionable beyond all question They clearly impute the crime of adultery. In order to hold otherwise, we must close our minds against the clearest natural import of the words themselves, and disregard the most common and obvious rules of law bearing on the subject. But to this count a plea of justification is interposed to which there is a general demurrer. We are unable to take any view of this plea that would justify us in holding it to be sufficient. It lacks an indispensable feature, viz: an answer to the charge imputed by the slanderous words. That charge is specific, viz: the having begotten the bastard child, and thereby committed the crime of adultery! That is the charge to be justified. The plea is, that before the speaking of the words, to wit, on the 1 Oth dag of March, A. JD., 1853, the plaintiff did conduct himself in a lewd and lascivious manner towards and with the said Esther Johnson, an unmarried woman, and did then and there have carnal connection and illicit intercourse with the said Esther. An issue of fact taken on that plea, would not confine the defendant to proving an act of intercourse by which the bastard was begotten. The very idea of a justification, in virtue of the truth of the words, implies that the party, by his plea, shall put in issue the very fact which his words charge. This is according to, and required by, the first principles of pleading, and at the same time it but answers the obvious ends of justice. It would be a strange anomaly if a plea of justification should be diluted into a kind of common count, permitting a range of proof bounded, in point of time, only by the statute of limitations, and covering any act of illicit intercourse within that time, whether a bastard was thereby begotten or not. It is needless to cite the books on this point, for no one could be opened which treats of the subject, that would not show the impropriety and insufficiency of of this plea. The rule, as stated by Judge Redfield, in Torrey v. Field, 10 [377] Vt. 408, is the true one, and is conclusive against this plea. The judgment of the county court, holding this plea to be sufficient, is therefore reversed, and the judgment is, that said plea is insufficient. The general issue being pleaded, the cause is remanded to the county court for trial.