PELTON V. WARD.

[3 CAINES, 73.]

WORDS ACTIONABLE IN SLANDER.-Saying to another: "You swore to a lie, for which you now stand indicted," is actionable.

PLEADING IN ACTION OF SLANDER.-If, in an action for slander, a count be insufficient, and the declaration do not contain any introductory matter or colloquium by reference to which the charge can be made certain, the defect in the count cannot be overcome by a justification and confession of the words in bar.

ACTION for slanderous words spoken of the plaintiff, which came before the court on a motion in arrest of judgment.

The declaration consisted of nine counts. The first, second and third charged the defendant with saying: "You swore false." The fourth, fifth and sixth with saying: "You swore to a damned lie, and you knew it." The seventh, eighth and ninth with saying: "You swore to a damned lie, and you knew it, for which you now stand indicted," with an innuendo that the plaintiff had committed willful perjury.

The defendant pleaded, to all the counts, not guilty, and in bar a justification that before a court of oyer and terminer the plaintiff falsely swore that a part of a store remained on the ground where it had formerly stood, and had not been removed, when, in fact, no part of the store, at the time of the plaintiff's swearing, remained there, for which an indictment was found against him. Replication, de injuria sua propria, absque tali causa, and issues joined thereon. Verdict was found for the plaintiff on all the pleas, which, however, was entered only on the last three counts, the others being confessedly bad, and entire damages assessed.

Caines, for the defendant, contended that the action was not maintainable. False swearing in itself is not indictable, and the addition, "for which you now stand indicted," does not make the act more criminal, as a man may be indicted and yet be innocent: Bayly v. Churrington, Cro. Eliz. 279; Steward v. Bishop, Hob. 177. There is no allegation which imputes a crime, and the innuendo will not supply the deficiency, its office being merely to designate: James v. Rutlech, 4 Rep. 17; Gurneth v. Derry, 3 Lev. 166; Holt v. Scholefield, 6 T. R. 691; Brumrig v. Hanger, Hard. 151. This then is defect in substance which is not helped by pleading over: Doctor Bonham's case, 8 Rep. 120 b; Badcock v. Atkins, Cro. Eliz. 416; nor is it

helped by the verdict: Rushton v. Aspinall, Doug. 679. Entire damages have been assessed on several issues, which is bad: Hill v. Lewis, 1 Salk. 133; Bedel and Moore's case, 1 Leon 171; Lill. Ent. 428.

KENT, C. J. The last point is settled by a case in 5 Burrows. It was formerly the practice to enter separate damages on each issue, but this was found inconvenient, and in this court they have been uniformly entered as in the present case. As to the words used, they must be taken in the same sense as in common parlance they would be received. The doctrine of mitiori sensu has long been exploded. No man but would interpret the expression in the declaration as conveying a charge of perjury.

Emott, for the plaintiff, urged that the allegation of being forsworn followed by the same expression as in this case was held actionable in Gilbert v. Rod, 3 Bulst. 304; that if it were otherwise, the pleading and verdict would make it good: Drake v. Corderoy, Sir W. Jones, 307; Cro. Car. 288; Tuke and Condies Case, cited in Osborne v. Brooke, Alleyn, 7.

By Court, SPENCER, J. The first inquiry will naturally relate to the charge in the three last counts. The office of an innuendo is to contain and design the person who was named in certain (allegations) before. "It cannot alter the matter or sense of the words themselves." It cannot extend the words by an imagination of an intent not apparent by any precedent words to which the innuendo should refer; "in effect it stands in lieu of a praedictum." This doctrine is laid down in the case of James v. Rutlech, 4 Rep. 17, and has been the received law ever since. In the case of Oldham v. Peake, 2 W. Bl. 961, it is decided that an innuendo cannot introduce new matter, but may ascertain the meaning of the old. In that case the declaration stated a colloquium concerning the death of Daniel Dolly; the words were, “You are a bad man, and I am thoroughly convinced you are guilty (meaning of the murder of the said Dolly), and rather than you should want a hangman, I would be your executioner." The court held that the word "death" must be understood to mean murder," because it was such a death as the plaintiff might be liable to be hanged for. This authority bears strong analogy to the present case. The words charge the plaintiff with swearing knowingly to a "damned lie, for which he stood indicted." The words in this instance can mean nothing less than perjury; for it was an allegation that the plaintiff ha

knowingly sworn to such a lie as rendered him obnoxious to an indictment, which could only be for perjury. If the innuendo was not true, it was competent to the jury to say so; but they have affirmed it on grounds which strike me as substantial.

The plaintiff's counsel has called in to his aid the plea of justification, as rendering the intent to charge perjury clear and certain; and there are authorities which seem to sanction a reference to a plea with that view; but I cannot accede to the doctrine. The case of Babcock v. Atkins, Cro. Eliz. 416, appears to me to be most consistent with principle. The court here held that the declaration, which was insufficient in substance, could not be helped by the plea. The question in that case was, as to the certainty of the person slandered, and the plea justified the words, and still the declaration was held bad. The plaintiff, to sustain an action, must have a complete right to bring it at its commencement. But, on the former ground, my opinion is, that the defendant take nothing by his motion. I think the pleadings in this case highly censurable. Instead of one plea of justification to all the counts, there are the same pleas to each count. There are also nine counts for substantially the same words, and a special replication to each of the pleas. The attorneys on both sides are in fault, and in the taxation of costs the plaintiff ought to be allowed for only two of his counts, and one replication; and the defendant's attorney, as against his client, to be allowed but for one of his special pleas.

KENT, C. J. I concur in the opinion delivered.

LIVINGSTON, J., was of opinion that judgment should be ar rested.

THOMPSON, J., not having heard the argument, gave no opinion. TOMPKINS, J., had been concerned.

Motion denied.

See the case of Hopkins v. Beedle (ante, 191).

STAATS V. TEN EYCK'S EXECUTORS.

[3 CAINES, 111.]

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DAMAGES FOR BREACH OF COVENANTS IN DEED. In an action for a breach of covenants of seisin and quiet enjoyment, the measure of damages, in case of eviction, is the value of the land at the time of sale, represented by the consideration paid, with interest thereon, from the time the plaintiff loses the mesne profits.

RECOVERY OF COSTS. The damages will include the costs which the plaintiff sustained in the action of eviction, but not the costs of the action for mesne profits.

ACTION upon the covenants in a deed. The facts were: On the seventh of January, 1793, the testator, Barent Ten Eyck, by indenture of release, in consideration of seven hundred pounds, granted, bargained, and sold to the plaintiff, and one Dudley Walsh, in fee, two lots of ground in the city of Albany, covenanting, "That he, the grantor, was the true and lawful owner; that he was lawfully and rightfully seised, in his own right, of a good and indefeasible estate of inheritance in the premises; that he had full power to sell in fee-simple, and that the grantees should forever peaceably hold and enjoy the prem ises without the interruption of eviction or any person what ever, lawfully claiming the same." In May following, Walsh, for a valuable consideration, conveyed his moiety of these lots to Staats, who, on the thirtieth October, 1802, after due possession, by lease and release, granted one of them to Margaret Chim in fee, and covenanted to warrant and defend her in the peaceable possession thereof. In August, 1803, ejectment was brought against Margaret Chim, in which a judgment was obtained for a moiety of the lot sold to her, execution sued out, and this followed by a recovery in an action for the mesne profits. The value of the lot, from the moiety of which Margaret Chim was thus evicted, was, at the time of the sale by Ten Eyck, three hundred pounds, which was the consideration paid for it. Margaret Chim then brought her action against the plaintiff, and recovered for the moiety she had lost.

Upon these facts, which were submitted without argument, the following questions were raised for the determination of court: 1. Whether the plaintiff was entitled, under the covenants in Ten Eyck's release, to recover any more than a moiety of the consideration money paid for the lot from which Margaret Chim was evicted; 2. Whether the interest of that consideration, and the increased value of the premises from the

date of the deed to Margaret Chim, ought to be added; 3. Whether the plaintiff was entitled to any reimbursement for the costs and damages he had sustained by the eviction and recoveries before mentioned.

KENT, C. J. This case resolves itself into these two points for inquiry: 1. Whether, upon the covenants, the plaintiff be entitled to recover the value of the moiety of one lot at the time of eviction, or only at the time of the purchase, and to be ascertained by the consideration given; 2. If the latter be the rule of damages, then whether the plaintiff be also entitled to recover interest upon the purchase money, and the costs of the eviction.

1. There are two covenants contained in the deed; the one, that the testator was seised in fee, and had good right to convey; the other, that the grantee should hold the land free from any lawful disturbance or eviction. The present case does not state distinctly whether the eviction was founded upon an absolute title to a moiety of one lot, or upon some temporary incumbrance. But I conclude from the manner of stating the questions, and so I shall assume the fact to be, that the testator was not seised of the moiety so recovered when he made the conveyance, and had no right to convey it. The last covenant cannot then, in this case, have any greater operation than the first, and I shall consider the question as if it depended upon the first covenant merely.

At common law, upon a writ of warrantia chartae, the demandant recovered in compensation only the value for the land at the time of the warranty made; and although the land had become of increased value afterward, by the discovery of a mine, or by buildings, or otherwise, yet the warrantor was not to render in value according to the then state of things, but as the land was when the warranty was made: Bro. Abr. tit. Voucher, pl. 69; Id. tit. Recouver in Value, pl. 59; 22 Vin. 144-6; Tb. pl. 1, 2, 9; Up. pl. 1, 2, 3; 1 Reeves' Eng. Law, 448. This recompense in value, on excambium, as it was anciently termed, consisted of lands of the warrantor, or which his heir inherited from him, of equal value with the land from which the feoffee was evicted: Glanville, 1, 3c, 4; Bracton, 384 a, b. That this was the ancient and uniform rule of the English law is a point, as I apprehend, not to be questioned; yet, in the early ages of the feudal law on the continent, as it appears, Feudorum, lib. 2, tit. 25, the lord was bound to recompense bis vassal on eviction, with other lands equal to the value of