Beneway v. Thorp

• Citation: 43 N.W. 863,77 Mich. 181
• Court: Michigan Supreme Court
• Decision Date: 25 October 1889
• Parties: BENEWAY v. THORP.

43 N.W. 863

77 Mich. 181

BENEWAY v. THORP.

Supreme Court of Michigan

October 25, 1889

Error to circuit court, Lenawee county; VICTOR H. LANE, Judge.

How. St. Mich. � 7631, provides that "the court in which any action shall be pending shall have power to amend any process, pleading, or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be just, at any time before judgment rendered therein."

LONG J.

This is an action of slander, and comes to this court by writ of error brought by defendant. The declaration alleges substantially that on the 1st day of February, 1888, at Tecumseh, in the county of Lenawee, in a certain discourse which the defendant then and there had with one Jennie McGowan, he did speak, publish, and declare of and concerning the said plaintiff these false, scandalous, malicious, and defamatory words, to-wit: "He [meaning the said plaintiff] has forged his mother's name to a note, and I can prove it." The declaration also alleges that in a certain other discourse which the defendant had in the presence and hearing of one Thomas White, of and concerning the plaintiff, he did falsely and maliciously speak, publish and declare, in the presence and hearing of said Thomas White, these other false, scandalous, malicious, and defamatory words of and concerning the plaintiff, to-wit "I [meaning said defendant] told Miss McGowan [meaning the said Jennie McGowan] that Charlie [meaning the plaintiff] had forged his mother's name to a note,"-the said Jennie McGowan being a daughter and the book-keeper of William McGowan, in whose employ the said plaintiff then was. On the trial in the court below the plaintiff had verdict and judgment for $500. After the jury had been impaneled in the court below, and while the said Jennie McGowan was on the witness stand, being examined by counsel for the plaintiff, defendant's counsel made objection to the introduction of any evidence in the case under the declaration, for the reason that the declaration did not set out cause of action.

It is claimed on the argument here that the words complained of do not necessarily impute to plaintiff a crime which would make him liable to a criminal prosecution, the language being so uncertain as to be capable of two or more constructions, and therefore not actionable per se; that the words do not necessarily refer to a note which is susceptible of forgery. It is a general rule that courts, in construing language set out in a declaration for the purpose of determining...