Lindsey v. Smith — 7 Johns. 359

Majority

p. 359

Lindsey against Smith.

Headnote

In an action of s,andc:1’ the duration stM«wS tllat the tiff was a just of the pe$v^ and that the c,?.* fendant, me». ing to inv, him and expose to prosecution corruption, See. in a certain discourse, &c said m' ■ y plaintiff in his office of ajustice, “ Lindsey (meaning the plaintiff) had been feed by Jl (meaning Ji. IV. who lately had a cause pending and determined before the plaintiff,janri • :,vt lie (the defendant) could do nothing when the magistrate was in that way against him,’ defendant.) 0» a motion in arrest of judgment, this declaration was held sufficient. ‘ Though an innuendo cannot supply the place of a colloquium, yet if there be a coUqcrlr:^ sufficient to point the application of the words to tiic plaintiff, if spoken maliciously, !Vf have judgment,

THIS was an action of slander. The declaration contained several counts. The first count, which was 7 the only one objected to, stated, that the plaintiff is a . L justice of the peace, &c« and that the defendant, to in- , . <* i . . . jure him and expose him, as ajustice, to prosecution for

p. 360

corruption, &c. in a certain discourse which the defendant had with divers persons concerning the plaintiff, as a justice, said of the plaintiff in his office of a justice, “ Lindsey (meaning the plaintiff) had been feed by Abner Wood, (meaning Abner Wood who then lately had a cause pending and determined before the plaintiff,) and that he (meaning the defendant) could do nothing when the magistrate (meaning the plaintiff) was in that way against him,” (meaning the defendant.)

The defendant pleaded the general issue; and there was a general verdict for the plaintiff for 179 dollars.

J. Duer, for the defendant, moved an arrest of judgment :

1. Because, the colloquium does not state that the words were spoken by the defendant “ of and concerning the said cause, and of and concerning the conduct of the plaintiff as a justice, in relation to the said cause.

2. Because the innuendo introduced new matter material to be proved.

3. Because it contains no explanation of the precedent words, and is inconsistent and insensible.

He cited Van Vechten v. Hopkins, S Johns. Rep. 211. 1 Com. Dig. 268. Sayre, 280. 6 Term Rep. 691. 8 East, 427. 9 East, 95.

, Fisk, contra.

The slanderous intent and application . of the words charged, must be considered as established by the verdict. Here was a colloquium laid, which was sufficient to give application to the slander. It is averred that the defendant was discoursing concerning the plaintiff, as a justice, and that the words were spoken of him in relation to his office as a justice, and it was a question of evidence, whether the words so spoken of the plaintiff had an innocent or a slanderous and malí

p. 361

cious meaning. The innuendo cannot supply the place of a colic qu~urn, but here there was the competent colicquluni to give point and application to the words, if spoken, as the juiy nnist have found them to have been spoken, with a scandalous and malicious intent~

Ihe motion is, therefore, denied.