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Walrath v. Nellis

17 How. Pr. 72 Court SUPREME COURT. English

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p. 72
SUPREME COURT.
Charles Walrath agt. Abraham Nellis.

Headnote

The words spoken and complained of in the action of ^slander in this case, were: “ I would not swear to what Charles Walrath has, for the town of Palatine or county of Montgomery,—Peter J. Wagner is honestly mistaken, but Charles Walrath is wilful.” Setd, that no innuendo was necessary.
No one could fail to be impressed with the distinction intended to be made between the two men. One was honestly mistaken in swearing, while the other had sworn wilfully, and that the whole town of Palatine, or the whole county of Montgomery, would be no consideration for such swearing. The words im-. port perjury.
Schenectady General Term,
January, 1859.
Present, C. L. Allen, James, Rosekrans and Potter, Justices.
The complaint avers the uttering of these words with reference to the plaintiff’s testimony, in a suit pending before a justice of the peace, viz : “ P. J. W. is honestly mistalcen, hut you are wilful,” with similar expressions, varying the reference to the plaintiff from the second to the third person.
It was distinctly alleged that “ P. J. Wagner,” the first individual referred to, had been a witness in the same cause, and
p. 73
that by this charge the defendant meant that the plaintiff was “ wilful in his testimony,” so rendered; and that he designed to have it understood that the plaintiff had committed perjury. The same count contains this alleged remark, made by the defendant : “ I would not swear to what Charles Walrath has, for the town of Palatine, or county of Montgomery.”
The defendant interposed a general demurrer to this count of the complaint.
H. Sacia, for plaintiff.
Geo. Yost and A. Bocees, ./or defendant.

If the words charged in the first count of the complaintareactionableyer se, the omission in the innuendo, that the words were understood by those who heard them, in a sense to make them actionable, is entirely immaterial.

This allegation is only necessary where the words are either ambiguous, ironical or insinuated. Words in the latter sense, are equally actionable as if made in direct terms; but in pleading in such cases, it is' necessary to aver that the defendant, by means of the words so insinuated or so ironically or ambiguously spoken, meant to be understood by the hearers, and was understood, as charging the plaintiff with the crime imputed. (Gibson agt. Williams, 4 Wend. 320 ; Andrews agt. Woodmansa, 15 Wend. 232 ; 5 East, 463.)

In the words charged in this case, there is nothing ironical, nothing insinuated, and I can see nothing ambiguous in them, if we take them all together; and they are all charged as being spoken at the same time. The court will always hold upon demurrer in actions of slander, that words are to be understood according to their natural import and according to the ideas that they are calculated to convey to the ordinary mind. Whenever words which would otherwise be regarded as ambiguous, are accompanied with a key or explanation of the intent of the utterer, that conveys to the mind of the hearer the imputation of crime, no innuendo is necessary. As for in

p. 74
stance, to charge that the plaintiff “ has sworn to a lie,” would not be actionable; but adding the key to it, “ he has sworn to a lie, and done it meaningly to cut my throat,” was held actionable, per se. (Coon agt. Robinson, 3 Barb. 625 .) “He has sworn false,” would not be actionable, but “ he has sworn false to my injury six or seven hundred dollars,” it was held, per Coweh, J., imputed perjury, per se. (Jacobs agt. Tyler, 3 Hill, 572 . ) “ He has sworn false, and I will attend the grand jury respecting it,” is slander per se. (Gilman agt. Lowell, 8 Wend. 573 . )

No innuendo in this case was necessary. The words are: “ I would not swear to what Charles Walrath has, for the town of Palatine, or county of Montgomery. Peter J. Wagner is honestly mistaken, but Charles Walrath is wilful.” Is there-any ordinary mind that would fail to be impressed with the distinction intended to be made between the two men ? One was honestly mistaken in swearing, while the other had sworn wilfully, and that the whole town of Palatine or the whole county of Montgomery, would be no consideration for such swearing.

As it strikes my mind, these words import perjury, and the complaint is, therefore, good.

The order of the special term should be affirmed. Order affirmed.

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