Folsom v. Brawn

Eastman, J. We have had some hesitancy in regard to tbe effect which should be given to the brief statement which was filed in this case, but the result of our consultation is that it must be held defective. A brief statement is a substitute for a special plea, and where it purports to give notice of matter which is a full answer to the plaintiff’s declaration, it should contain all the substantial elements of a [121] special plea. Precision and exactness are not necessary, but substance is essential. When a defendant in an action of slander, justifies by his plea the speaking of the words charged, he must do it with distinctness and point, and not in an argumentative and evasive manner, nor in general and uncertain terms. Had the substance of this brief statement been embraced in a special plea, it would manifestly have been bad on demurrer. The speaking of the words is not fully and distinctly admitted and justified, as should be the case when a defendant places himself upon the broad ground of truth in the charge which he has made. If a brief statement is defective and insufficient, the proper practice is to move the court to reject it. The party will then be obliged to put his statements into a substantial and definite form, or the brief statement will be stricken out. Or a party may object to evidence as it is offered, which would be admissible under a sufficient brief statement, as inadmissible under a defective one. The former practice, of moving to reject the brief statement, is preferable, however, as the parties will then go to trial without any uncertainty as to their position. Holding this brief statement to be insufficient, had the plaintiff moved to reject it, or had he excepted to the defendant’s evidence, as it was offered, as being inadmissible under the brief statement, he would have prevailed. But it appears that it was not till after the evidence in the cause was closed, that the plaintiff requested the court to rule in regard to it. It appears also that it was left to the jury to find whether Folsom perjured himself at the trial at Ossipee or not. The cause then must have been tried as though the brief statement were full and definite; and we do not see that the plaintiff has sustained any injury by the deficiency in the brief statement or the neglect to move to reject it. . The jury by their verdict have negatived the charge of perjury, and the court distinctly instructed them that the evi122 deuce introduced by the defendant was not to be regarded by them in mitigation of damages, but as a defence to the plaintiff’s right of recovery. At all events it was too late to raise the question after the evidence in the cause was all in, and a trial had, as upon a sufficient brief statement. The decision of the court in refusing to instruct the jury that the testimony of two witnesses was necessary to sustain the defendant’s brief statement, was correct. We are aware, however, that there are conflicting authorities upon this point, and that it has been held by tribunals whose decisions are entitled to the utmost respect, that a special plea of justification, where the charge imputes crime, must be sustained by the same evidence as would be necessary to convict the plaintiff upon an indictment for the crime imputed to him. But such, we believe, has never been the doctrine or practice in this State, and the rule of evidence in such cases is too well established with us to be disturbed. If a party brings a suit for an injury sustained by a charge against his character, and the adverse party relies upon its truth for a justification, the latter ought to have that fact tried in the same way that other facts are tried in civil cases. Such is the opinion of Parker, C. J., in Matthews v. Huntley, 9 N. H. Rep. 150, where cases in which the charge was that of perjury, are cited and considered. We think the rule in this State must remain as it has been. The testimony of the witness, Margaret J. Watson, was properly admitted to contradict the former witness, Robinson, who denied that he had attempted to tamper with the witness. The temper and feelings of a witness towards a party are proper subjects of inquiry, and if he denies any hostility, he may be contradicted by other witnesses. Atwood v. Welton, 7 Conn. Rep. 66; 1 Greenl. Ev. § 450; The State v. Carr, 1 Foster’s Rep. 173; Yewin’s Case, 2 Camp. 637. But there is still another ground relied, upon for setting aside this verdict, which is, that it was rendered under a [123] misapprehension by the jury as to its effect upon the costs. It does not appear that the court gave the jury any instructions as to the law upon the matter of costs; nor is it the usual practice that they should. By our statute, however, “ no more costs than, damages shall be recovered in. any action commenced in the court of common pleas for slander, assault and battery, imprisonment or malicious prosecution, unless the damages recovered shall exceed thirteen dollars and thirty-three cents.” Rev. Stat. chap. 191 § 4. And upon a judgment on this verdict the plaintiff’s costs must be limited to one dollar. There is no doubt that some of the jurors were under a misapprehension as to the effect of the verdict upon the costs, and probably would not have agreed to the verdict had they known the law upon the subject; but from a perusal of all of the affidavits It is quite as apparent that the plaintiff could not have received from the hands of that jury a verdict for a larger amount, whatever might have been their understanding as to the costs. But however this might have been, the affidavits of the jurors cannot be considered for the purposes for which they were laid before us. Affidavits of jurors are not admissible to show their impressions as to the effect of their finding, or that they Intended something different from what they found by their verdict. To allow affidavits of jurors for such purposes, or to show the consultations that took place in the jury room, and the motives, inducements or principles upon which the jury founded or joined in a verdict, would lead to great mischief. And this view of the matter is well sustained by authority. 2 Tidd’s Prac. 817; 5 Burrows 2667; 2 Black. Rep. 804; Schenck v. Stevenson, 1 Penn. Rep. 387; People v. Columbia, C. P. 1 Wendell’s Rep. 297; Jackson v. Williamson, 2 Term Rep. 281; Bridge v. Eggleston, 14 Mass. Rep. 248 ; Robbins v. Windover, 2 Tyler’s Rep. 11; Handy v. Prov. Mut. Fire Ins. Co., 1 Rhode Island Rep. 400; Saunders v. Fuller, 4 Humphrey’s Rep. 516; Morris v. The [124] State, 3 Humphrey 333; Hannum v. Belchertown, 19 Pick. Rep. 311; Meade y. Smith, 13 Conn. Rep. 346; Brownell v. McEwen, 5 Denio’s Rep. 367. In Tyler v. Stevens, 4 N. H. Rep. 116, the court held that the affidavits of jurors tending to show that they misapprehended the instructions given them by the court in a cause they have tried, cannot be received in support of a motion for a new trial. The exceptions and motion must be overruled, and there must be Judgment on the verdict.