Jacob Sanderson v. Orren Hubbard, 14 Vt. 462

The opinion of the court was delivered by Royce, J. It is well settled by the decisions in actions for slander, that the words set forth in either count in the present declaration do not, of themselves, amount to an accusation of perjury. They do not import with sufficient certainty that the false oath was taken under any^ judicial, or other legal sanction. And, hence, to render these words actionable, it should appear that they were spoken with reference to some proceeding in which an oath might lawfully be administered, and in which a false statement, under oath, might amount to legal perjury.

It should also appear that the party speaking the words designed to accuse the other of that crime. It is, therefore, required, in declaring upon such words as are here given, to accompany them with an introductory statement or colloquium, alleging the occasion on which they were spoken, and the proceeding to which they related; as also with an innuendo, showing the injurious sense in which they were uttered.

The declaration before us contains a sufficient colloquium, and, to the words set forth in the second and third counts, is added an innuendo, in which the meaning of the words is given as intended by the defendant. But the first count is still left without an innuendo to indicate any intended charge of perjury, and an alleged defect, also, remains which is applicable to all the counts, namely, the want of any averment that the plaintiff was legally sworn to give testimony before the arbitrators.

The averment merely is, that he ‘ was examined on oath and gave evidence.’ But conceding that the declaration was demurrable for one or both of these defects, we observe that the defendant, instead of demurring, pleaded in bar. In that plea he expressly admits, or rather alleges, that the plaintiff, c was examined on oath, and gave his evidence as a witness’ before the arbitrators. He further alleges that the plaintiff ‘ in giving his said evidence did, on his said oath, knowingly, falsely and corruptly swear and affirm, of and concerning a certain exhibit against the defendant,’ &c.

And he proceeds to say, that, inasmuch as the plaintiff £ had so know‘ingly sworn falsely and corruptly to the facts aforesaid, ‘which were then and there deemed material on said trial,’ he, the defendant, spoke the words complained of. We are satisfied that by thus pleading over, and making these allegations, the defendant has obviated all valid objections to the declaration. Wood v. Scott, 13 Vt. R. 42.

It is a rule coeval with the science of pleading, not only that facts admitted by the pleadings need not be proved, but that a party shall not be allowed to allege or insist against his previous admission or allegation in pleading. According to this rule, it was no longer necessary for the plaintiff to prove either the speaking of the words declared on, or that he was examined on oath and gave his evidence as a witness before the arbitrators ; for all this is not merely admitted, but expressly alleged in the plea.

There is also, a rule, that each part of the pleadings shall be construed most strongly against the party pleading it. And it is upon that ground, if any, that the declaration could have been regarded as defective, in not showing more directly and expressly that the plaintiff was duly sworn as a witness. But the same rule applied to to the plea must operate to supply any defect of the declaration in this particular. The averments in the plea are to be taken in as strong a sense against the defendant, as the ordinary use .of such language will justify.

The allegation, that the plaintiff was examined on oath as a witness, should therefore, be understood to mean, that he was examined in a legal manner, and under the usual responsibilities of a witness ; having been first duly sworn before a magistrate. And this being so, it follows that the want of an innuendo in the first count of the declaration is equally supplied by the plea. For since the plaintiff is charged in the plea with every fact which goes to make up a full definition of perjury, the defendant is no longer at liberty to insist that he did not intend to impute that crime by the words complained of.

Judgment affirmed.