Opinion
June Term, 1842.
Houston, (with whom was Ridgely,) for plaintiff.
J. A. Bayard, for defendant.
QUESTION reserved by the Superior Court in Sussex county, for hearing before all the judges.
This was an action of slander for imputing to the plaintiff the crime of burning the Pennsylvania hall. (See ante p. 398.) The declaration set out that whereas, before the committing of the several grievances by the defendant "to wit, on the 17th of May, 1838, a certain building known as and called the Pennsylvania hall, being the house of a certain Daniel Neall, situate in the city of Philadelphia, in the commonwealth of Pennsylvania, to wit, at Sussex county aforesaid, and which said building was a house then and there adjoining to a dwelling-house of a certain man called and known by the name of M'Calla, was maliciously and voluntarily set on fire and burned, to wit, at Sussex county aforesaid: And whereas also, by a certain law or act of the legislature of the State of Pennsylvania, it is provided, among other things, that every person duly convicted of the crime of maliciously and voluntarily burning the dwelling-house or any other house adjoining thereto, belonging to any other person or persons, or as being accessary thereto, shall be sentenced to undergo solitary confinement at labor for a period of not less than one or more than ten years for the first offence, agreeably to the provisions of said act;" yet the said John Hosea, well knowing the premises but envying, c, and contriving to injure the said Jeremiah P. Kinney, c., and to cause him to be suspected to be guilty of the offences and misconduct hereinafter mentioned, c, "and to subject him to the pains and penalties and corporal punishments by the laws of this State, and by the laws of the commonwealth of Pennsylvania aforesaid, made and provided against and inflicted upon persons guilty thereof," in a certain discourse, c., "falsely and maliciously spoke and published to and of and concerning the matters aforesaid, these false, scandalous, malicious and defamatory words;" that is to say — You put fire to the Pennsylvania hall or had a hand in it, thereby meaning, c c.
Upon the trial below the plaintiff offered in evidence a duly authenticated copy of the law of Pennsylvania, which was objected to on the ground, that there was no averment in the declaration of the existence of this law at the time the house was alledged to have been burnt; and the court admitted the evidence, reserving the question of law — "Whether the averments in the narr. were sufficient to entitle the plaintiff to give the said act in evidence on the trial of the issue of not guilty in this cause."
The case was argued by Houston, for plaintiff, and Bayard, for defendant.
Judge Miliigan delivered the unanimous opinion of the court.
This case comes up on questions of law reserved, from the Superior Court sitting in Sussex county.
The case stood before the Superior Court, and is now before this court, on a question as to the admissibility of the law of Pennsylvania in evidence, under any averment in the narr., and it did not necessarily involve the question of the sufficiency of such averment to support the cause of action, which was not at that time before the court.
The question then was, not whether the averment supported the plaintiff's action, but whether the evidence offered, supported or tended to support the averment. The matter of the sufficiency of the averment to sustain the action, was not to be considered in this form, but only its sufficiency to admit this evidence.
The action was for a slander, in imputing to the plaintiff the crime of burning the Pennsylvania hall in the State of Pennsylvania. It was necessary to aver and prove the burning of the hall; and, as such act was a crime only by reference to the law of another State, it was also necessary, in order to sustain the action, to aver the existence of a law of that State making it a crime. But though an averment of such law might be insufficient for the purposes of the action, it does not therefore follow that on a mere question of evidence, such averment might not be sufficient for the purpose of admitting evidence. To effect this object, it was only necessary that the law offered shall sustain the averment, and the question as to the sufficiency of the averment was not properly brought up on objecting to the admissibility of the law.
The cases referred to by the counsel on the part of the defendant, illustrate this distinction.
In the case of the Bank of Wilmington and Brandywine vs. Cooper's adm'r., (1 Harr. Rep. 10,) which was an action on a promissory note, payable by O. Horsey, at the bank, the declaration averred a presentment for payment to the said O. Horsey, personally. Proof of this was admitted; but Mr. Bayard;, who acted as counsel for the defendant, afterwards moved a nonsuit, on the ground that there was no averment of presentment at the place of payment, and the court accordingly nonsuited the plaintiff; not because the proof was inadmissible, but because the averment was insufficient. So in the other case referred to, which was an action under the act regulating-fences, to recover double damages for not repairing a division fence under the orders of a justice of the peace; and there was no averment that the fence had been adjudged insufficient by the fence viewers as the law requires. The court nonsuited the plaintiff, and they would undoubtedly have ruled out any evidence of such adjudication, because there was no averment in the narr. under which such evidence would have been admissible.
But in this case, there is an averment that "whereas, also by a certain Jaw or act of the legislature of the State of Pennsylvania, it is provided among other things, that every person duly convicted of the crime of maliciously and voluntarily burning the dwelling house, or any other house adjoining thereto, belonging to any other person or persons, or as being accessory thereto, shall be sentenced to undergo solitary confinement at labor, for a period of not less than one or more than two years for the first offence, agreeably to the provisions of said act."
The evidence offered to support this averment proved it; and was. only objected to because the averment itself did not go far enough back, and alledge the existence of the law at the time of the burning of the hall. If this were granted, it would not operate to exclude the evidence, but might defeat the plaintiff, if taken in another form. The only question then before the court was, whether the averment was sufficient to authorize the proof offered. In the opinion of this court it was sufficient, and therefore, the evidence was properly admitted by the court below.