Commons v. Walters

Although it is not sufficient, in an action of slander, that the words proved he tantamount to the words charged, it is sufficient that they be substantially the same. The words, “ are you not afraid as you have perjured yourself?” arc held to be substantially the same with these : “ you are perjured?” And these words are clearly actionable in themselves, with or without a colloquium. If it be alleged, iu a count in the declaration, that a particular affidavit was made, or a particular trial had before a justice of the peace, as a substantial part of the count, then the same must be proved by competent testimony, to sustain the count; but if the count merely charge that the defendant said of the plaintiff, il he swore alie,” in reference to a certain affidavit made before a justice of the peace, for the purpose of having the defendant bound to the peace ; the words are actionable, and if they, with the reference to such affidavit, bo proved, the count will be thereby sustained, without further proof of the proceedings before the justice of the peace.

Error from Perry Circuit Court¡ The plaintiff below, who is also the plaintiff’ in error, brought an action of slander against the defendant. The declaration contained several counts. Some of them set forth a certain proceeding before one Lowe, a justice of the peace, in which the plaintiff had made an affidavit, to bind the defendant to keep the peace ; and charged the defendant with having said, in reference to the oath that the plaintiff took, in making the affidavit, that the plaintiff swore a lie. One ' count charged the defendant with having said to the plaintiff,. “ you arc perjured,.” It appears by the bill of exceptions, that the plaintiff offered to introduce secondary evidence of the proceedings before the magistrate, Lowe. A witness was introduced, a deputy-clerk, who said he had seen such "papers in the clerk’s office, and that they had been handed to the solicitor. The court refused to permit secondary evidence to be given of the contents of the papers ; to which refusal the plaintiff excepted. The plaintiff introduced a witness who proved that he heard the defendant say to the plaintiff, “Are you not afraid, as you have perjured yourself?” On cross examination, the witness stated, that he heard this at Lowe’s on the day that Commons bound Walters to keep the peace. Another witness was introduced, who said that he was in a situation to hear all that was said on the same occasion, and all that he heard the defendant charge the plaintiff with was in reference to the proceedings before Lowe. On this statement the court instructed the j ury that this evidence must be excluded; that to make any evidence good, setting forth statements made in allusion to the proceedings before Lowe, those proceedings must be produced. The plaintiff excepted to this opinion of the court, and he now contends that, in giving these opinions, the court erred. The court below erred, in refusing to permit secondary evidence to be given of the proceedings before the justice of the peace ; and in requiring that the papers themselves should be produced. Now the principle is well settled, that secondary evidence may be given of the contents - of lost papers, where a bona fide search has been made for them, and they have not been found. — 1 Starkie’s Evidence, 349. These papers were to have been sent to the Circuit Court; whether we have reference to the statute on the subject, or to the cus- ' tom of the country : and it was proved that these papers had been there ; and that they were not then to be found there. The secondary evidence, therefore, ought to have been admitted. The other point arises from the charge of the Judge, that where words, actionable in themselves, were proved to be spoken, in reference to a proceeding before a justice of the peace, proof of the words is not admissible, without the production of the proceedings before the justice of the peace.— Now, to show that this was error, see Starhie on Slander, 281, and 12 Mass, R. 498. In the case before the court, as respects these actionable words, ‘ that the party was perjured,’ we make no allusion to any particular case before a justice of'the peace. As the words were actionable in themselves, implying in themselves false swearing, respecting a material point, in a judicial proceeding, they needed not to be referred to any particular trial. We prove these actionable words upon the‘plaintiff: the very words which we charge him to have ,used. But the defendant, below, introduces proof going to show that these words referred to a certain tidal before a justice of the peace, by the name of Lowe ; and the court decides that these proceedings must be produced In/ us, or our proof is not admissible ! Such a decision as this is an unheard of departure from legal rules. To authorise secondary evidence of the contents of papers of any kind, the existence of those papers must be shown by proof. Now, it does not sufficiently appear that these papers, said to have been lost, ever in fact existed. Besides, 1 do, not admit, and it has not been shown, that these papers were such as the justice was bound to return to the Circuit Court. Search should therefore have been made in the justice’s office. But there is an attempt here to prove that these papers had been in the circuit court, and had been handed over to the solicitor. If this had been established, then the party proved too much for his purpose, unless he had proved still more.. Search should have1 been made in the solicitor’s office ; but no such search is shown. As to the second point, it does not appear by the bill of exceptions that the testimony excluded for want of the intro- ' duction of the papers before the justice, .xas testimony given under the counts which contained actionable words. The words proved were, “ Áre you not afraid, as you have perjured yourself ?” These words could not apply to the counts stating words actionable in themselves, on account of the variance. The declaration charges words like these : “ You are perjured.” The words proved would not sustain such a charge: the variance would be fatal; — •Stqrlcie on Slander, 275. Whatever may be the-opinion of the court as to the law requiring a recognizance, (taken before a justice of the peace, upon an examination for breach of the peace,) to be sent up to the Circuit- Court by the justice, there can be no doubt, it seems to me, that the warrant and the affidavit — and these are the papers material in the slander cause — are not required to be sent up to the Circuit Court. The office of the Circuit Court was, therefore, not the proper place to search for them. ' Proper search had not been made for them in the office of the justice of the peace. The court, therefore, did not err in refusing tq perafit secondary evidence to be given of their contents. In regard to the second point, the counsel seems to me to' make a '"charge for the Judge, which the bill of exceptions does not show to have been given. The first effort was made by the plaintiff below to establish these proceedings before the justice of the peace. In that lie failed. He then wishes to prove statements made by the defendant, in reference to these proceedings ; and the court, very properly as I think, instruct the jury, that this cannot be allowed; that words spoken in reference to these proceedings must be excluded unless the proceedings themselves should be produced, their absence not being properly accounted for. There seems therefore to be no error in the instructions given by the court. It is not the recognizance alone which should be sent up to the Circuit Court, after such an examination before a justice of the peace as is here referred to. The basis of the proceeding, the affidavit and warrant, should go with them. But it is said that we should have gone to the solicitor’s office. Where is that ? — may it please the court. The solicitor may not live in the county; or if he should, is his office a recognised, legal place of deposite for judicial papers ?— Certainly not. As to what has been said in reference to the other point in the cause : If our evidence was applicable to any count in the declaration, the Judge was wrong to exclude it without a sufficient reason. No such reason was shown. In the three last counts we had introduced no colloquium in regard to any proceedings before a magistrate. No such colloquium was necessary, because the words were actionable in themselves.— Bat if it turned out in proof that these words were spoken in reference to some judicial proceedings, th'e court is surely wrong in saying, by way of instruction tQ the jury, that we are bound to produce these proceedings. It is said by counsel that the words proved were not admissible as evidence under the counts for actionable words, because of the variance. The variance is not material. The case quoted from Starkie on Slander, does not apply. There, the charge included several material words; and the court adjudge that you must prove the whole set. But in this case, all that is material in the words proved, is the same substantially with the words charged. — See Starkie mi Slander, 270, 271. But I hold that the defendant, below, has made this proof good under any of the counts : for although wó were not permitted to prove any thing of the trial before the magistrate, without introducing the record, yet in regard to this proof of ours, as to the charge of perjury, the defendant asked the witness if it was not said in reference to a judicial proceeding before the j «slice of tbe peace, ■ Lowe ; and tbe answer is,, {.hat it was — or, at least that it was on that day, and it was. ' understood to. refer to that proceeding. Here, the defendant below sets up the trial, and acknowleges the judicial proceeding ; which is all that was wanted in the first instance.