Fowler v. Colton

Miller, J. This was an action for slander in the district court for Bacine county, in which Colton was plaintiff and Fowler defendant. The defendant pleaded the general issue, and notice of special matter to be given in evidence on the trial in justification, as follows: “The defendant will give in evidence, under the general issue, — 335 — on the trial of this cause, that the plaintiff, before the speaking and publishing of the said several words by the said defendant, of and concerning the said plaintiff, as in the said several counts in the said declaration mentioned, to wit: on or before the 25th day of November, 1840, to wit: at Racine county aforesaid, did feloniously steal, take, and carry away, certain goods and chattels, to wit: one hive of bees and the honey, of one Daniel Lucas, and also one bag of flour, of him, the said defendant, as spoken by the said defendant, and charged by the said plaintiff in his said declaration, to wit: of the value of $50, all of which was contrary to the form of the statute in such case made and provided; wherefore the said defendant, if he spoke the said slanderous words, in the said declaration mentioned, was justified and had a right, afterward, to wit: on the 25th day of November, 1840, to wit: at Racine county, aforesaid, to speak and publish the said words of and concerning the said plaintiff, for the cause aforesaid.” After the plaintiff had closed his evidence on the trial, the defendant offered evidence in justification, which was objected to, on the ground of the insufficiency and immateriality of the notice, which objection was sustained by the court, and the testimony rejected. This is the first error assigned. The notice is allowed to be filed with the general issue. He may or he may not rely upon it, and the plaintiff is bound, notwithstanding the notice, to prove the facts set forth in the declaration. Vaughan v. Havens, 8 Johns 109. Generally, a notice must contain in substance, all the substantial matter of a special plea, but is not required to be in form. In actions upon contract, a notice is sufficient if it contain such a statement of special matter to be given in evidence at the trial as may prevent the plaintiff from b eing taken by surprise. The statute has prescribed no form, and each case must in some degree, depend upon its peculiar circumstances, and upon the application of a sound discretion in the court at the trial. Cham — 336 — berlin v. Gorham, 20 Johns. 749. But the general rule undoubtedly is, that the notice should contain all the facts necessary to sustain a plea against a general demurrer, .or at least a motion for a judgment non obstante ver edicto. Bishop v. Earl, 17 Wend. 316. Although the notice is not required to be in the strict technical form of a plea, it must contain all the facts necessary to be stated in a special plea. Sheppard v. Merrill, 14 Johns. 475. And it must state truly, the facts intended to be given in evidence. Kane v. Sawyer, 14 Johns. 89. It must also be so particular as to enable the plaintiff to come prepared to meet the facts stated therein. Chamberlin v. Gorham, 20 Johns. 744. In slander, a notice of justification must be as precise and certain as a special plea of justification. Mitchell v. Borden, 8 Wend. 570. In a special plea, the felony must be charged with certainty, and the party must aver the speaking of the words, and expressly and distinctly confess the speaking. The plea or notice of the truth in justification, admits the malice, and puts the naked truth in issue. Root v. King, 7 Cow. 613; Matson v. Beech, 5 id. 499. And notice of special matter in slander should be drawn and proven with great particularity. Woodbeck v. Keller, 6 Cow. 118. Por charging the plaintiff with having sworn false, if the defendant intends to justify under a notice subjoined to his plea, he must give notice that he will prove, not only that the plaintiff swore false, but that he swore willfully and corruptly false. Mitchell v. Borden, 8 Wend. 570; M'Kinley v. Rob, 20 Johns. 351. Prom this array of authority, it must be apparent that the notice filed in this case was not sufficient. It is certain that it could not be sustained against a general demurrer, which is made the test by the supreme court of New York. It is confused, uncertain, and argumentative. The plaintiff could not be expected to be prepared to meet evidence in justification on this notice ; and if the defendant’s offer had not been overruled, the plaintiff must have been taken by surprise. — 337 — As a notice of special matter is not technically, a part of the record, it is not proper to dispose of it by demurrer, although it should contain all the facts necessary to sustain it if a plea, against a general demurrer. It is the practice to exclude evidence for insufficiency of the notice. It is the business of counsel to draw it correctly, at the risk of a rejection of the evidence. After the testimony offered by defendant had been rejected, the defendant moved for leave to amend his notice, which was not granted by the court, and this is the subject of the second error assigned. The notice then on file had been allowed to be amended, according to the rules of the court, before the trial. Even if the refusal of this second amendment were the subject of error, we could not say that the court committed any error in this particular, for every indulgence was extended to the defendant that could reasonably be desired. The act concerning amendments provides, that “the court in which any action shall be pending shall have power to amend any process, pleading or proceeding.” This is not obligatory upon the court, but merely discretionary for the furtherance of justice. Now it is well settled, that the allowance or disallowance of amendments, when it is a matter of discretion, is not the subject of error. Mandeville v. Wilson, 5 Cranch, 15; Marine Ins Co. v. Hodgson, 6 id. 206; Chirac v. Reinicker, 11 Wheat. 280; Sheely v. Mandeville, 6 Cranch, 253; Walden v. Craig, 9 Wheat. 576; Ordroneaux v. Prady, 6 Serg. & R. 510; Clymer v. Thomas, 7 id. 180. The court, in the charge to the jury, remarked, “that in considering the character of the plaintiff, you will also consider the character of the witnesses for and against, and give their testimony such weight as it may deserve. Such a witness as Isaac Goodpasture, when called upon this subject, will not be entitled to much weight.” In this, error is alleged, but there is none apparent. This was an opinion of the court, not in the least binding on the jury. An opinion of a fact, not given as binding on — 338 — the jury, is not error. Porter v. M'Ilroy, 4 Serg. & R. 488. And it must clearly appear that the jury were excluded from finding for themselves. Riddle v. Murphy, 7 Serg. & R. 230. A court may give an opinion to a jury of the weight of evidence. Dunlap v. Patterson, 5 Cow. 243; Ex parte Bailey, 2 id. 479. And an opinion of the judge concerning facts is not the subject of error. Burd v. Donsdale, 2 Binney, 80; Long v. Ramsay, 1 Serg. & R. 72. The court has a right, and it is its duty, to explain to the jury that they are the judges of the facts in a case, and it is their province to give to the testimony of the witnesses its proper and legitimate weight and importance. The court in this case did not go further than the supreme court of Pennsylvania in the case of Burr v. Sim, 4 Whart. 156, where it was decided that it was not error in a judge to tell a jury that a witness was a “very willing witness,” and that “very little confidence was to be placed in her testimony ; ” nor to remark upon the strength or absence of evidence, or to suggest presumptions arising out of the relationship or conduct of one of the parties. The defendant moved for a new trial on the alleged ground of misconduct of the jury in agreeing upon their verdict; and at the argument of this motion, he offered to prove “that the jury in ascertaining the amount of damages, marked the sums which they would allow, and then added the sums so marked together, and divided the whole by twelve and took the quotient as their verdict, which they returned into court; that the sums so marked varied from $50 to $1,000; and the defendant offered the affidavit of H. N. Wells to prove the fact, or, if the affidavit was not admissible, a witness was offered to prove them on the stand.” It appears that this offer was presented at the argument of the motion for a new trial, when the court made this entry: “The motion for a new trial being taken up for consideration, this offer is overruled.” The affidavit referred to did not appear to have been taken on notice. — 339 — It is the practice in the third district to adhere to the rule requiring all depositions offered to be read on the argument and consideration of all motions, to be taken on notice to the opposite party ; and such being the rule, we will not say it was wrong to reject the offer. The court is not bound to hear a witness on the stand at the argument of a motion, particularly as it is not the practice. But even if the testimony had been perfect, and the witness competent to prove the facts contained in the offer, yet the court would have been right in overruling it. If the jury had made up their verdict in the manner stated, there was no error. There is no allegation of corruption on the part of the jury. There is no averment that the jury previously bound themselves to adhere to the result; but it is stated merely, that they did put down the amount each would allow, and did ascertain the quotient, which they agreed upon as their verdict. After the members of the jury argue the question, and agree to find for the plaintiff, in torts and other cases where there is no ascertained demand, it can seldom happen that they can or will agree at once upon a precise sum to be given in damages. There will necessarily arise a variety of opinions, and mutual concessions must be expected. A middle sum may in many cases be a good rule; and though it is impossible but this mode may be sometimes abused by a designing juryman fixing upon an extravagantly high or a very low sum, yet unless such abuse appears, the fraudulent design will not be presumed. It is immaterial whether they come to the result upon paper, or in the course of conversation, so that they agree, after the result is ascertained, to make that result their verdict. Cowperthwaite v. Jones, 2 Dallas, 55; Shobe v. Bell, 1 Randolph, 39; Grinnell v. Phelps, 1 Mass. 541; Dana v. Tucker, 4 Johns. 487. The supreme court of the United States will not take cognizance of questions of law, which may arise in the circuit or district courts upon motions for a new trial, as it is a motion addressed to their discretion (Wood v. — 340 — Young, 4 Cranch, 237; Henderson v. Moore, 5 id. 11; Barr v. Gratz, 4 Wheat. 213); but under our statute it is a legitimate subject of inquiry in this court. It will appear that we have not hesitated to express an opinion upon the reasons alleged for a new trial in this case, although they were not presented to the district court in such a manner that they might have been considered and passed upon there, as required by the practice (Houghton v. Stone, 4 Wend. 175); yet, to settle the practice in regard to the conduct of jurors in this particular, we have consented to consider the subject as properly presented. Judgment affirmed, with costs.