Hotchkiss v. Olmstead. supposed he was getting a valid and genuine instrument, when, instead, he got a forged and worthless piece of paper. Suppose, instead of having paid money for the forged paper, he had given up a note or bill which he held, would there be any consideration for that act? Would he be bound to lose his right of action any more than he would be bound to lose the money which he had paid for the forged paper? Surely not. We are satisfied that there is no error in the record in this case. Judgment affirmed, with costs. N. B. Taylor, E. Taylor, and W. Wallace, for appellant. HOTCHKISS v. OLMSTEAD. SLANDER.-Charge of Forgery.-Attempt to Obtain Money by False Pretences. The plaintiff, having executed a note to the defendant, November 30th, 1864, and paid one year's interest, after a year had passed executed a mortgage to secure the payment of the note, and some four years later, on discharging the note and mortgage, which were surrendered to the plaintiff, the interest from the date of the note was, by mistake, included, and no credit given for the one year's interest paid. The plaintiff called the attention of the defendant to the mistake afterward, and pointed out the words in the mortgage referring to the note, "Interest paid to Nov. 30th, 1865." The plaintiff filed a complaint, which, after reciting these facts, and averring that the purpose of defendant was to cause it to be believed, and that the hearers so understood, that the plaintiff had been and was guilty of forgery, and of making use of false pretence, to obtain money, charged, with proper innuendo, that defendant had uttered and published of him the following false and slanderous words: "You forged it, inserted it, put it in. You wrote that clause in it. I would swear that that line in the mortgage was not in the mortgage when I gave it to you yesterday, and you put it in. You altered the mortgage, changed the mortgage, put that line in the mortgage, inserted that line, put the credit in, and you are a forger and committed forgery ;" and also: "He committed forgery, is a forger, is guilty of forgery. There is something here that I don't understand; this line has been put here; or at least if I was called on to swear, I would swear that I read the whole of the mortgage over very Hotchkiss v. Olmstead. carefully, and I did not read that. I let Hotchkiss" (the plaintiff) "have the mortgage once, and I never noticed that until after he brought it back. It is his handwriting. I told him so. I suppose he says he is going to sue me for it, but it is my belief. He can't hurt a person for his belief. Hotchkiss is so slippery I have had to watch him. He cheated me out of some money, which he positively agreed to pay, and I am not going to let him cheat me any more. I am positive this was not here when I gave him the mortgage. He put it there; it is his handwriting; I told him so; he can't hurt me for that. He can't hurt a man for his opinion, unless he says he can prove it. I have never said I could prove it. He must have put that line in the mortgage. I am certain it was not there when I gave him the mortgage." Held, that the entry charged, on the mortgage, had the force and effect of a receipt for so much money, and, although surrendered, was a valid instrument as such receipt, and capable of being forged, and the paragraph showed a charge by defendant against plaintiff of forgery. It did not state a charge of obtaining money by false pretences. The attempt charged was not a crime. SAME.-A second paragraph charged a conversation in respect to the same transaction, but it alleged the alteration was made before execution and delivery of the mortgage, and, therefore, no forgery could have been then committed. APPEAL from the Switzerland Circuit Court. BUSKIRK, J.-The only question which is presented by the record in this cause arises upon the action of the court in sustaining a demurrer to the first and second paragraphs of the complaint. This was an action of slander, brought by the appellant against the appellee. The complaint was in two paragraphs. The appellee demurred separately to each paragraph. The demurrer was sustained, and the appellant refusing to amend, judgment was rendered on the demurrer for the appellee. The appellant excepted, and brings the case here to obtain a reversal of the judgment of the court below in sustaining the demurrer to the complaint. To make the ruling of the court below and the decision of this court intelligible, it will be necessary to reproduce each paragraph of the complaint. The complaint was in these words: 1. The plaintiff complains of the defendant, and says that on the 30th day of November, 1864, the plaintiff executed to the defendant the promissory note, a copy of which is filed herewith, and having paid thereon the interest for one year, he did, on the 15th day of December, 1865, execute to said defendant a mortgage, a Hotchkiss v. Olmstead. copy of which is also filed herewith, to secure the payment of said note; and afterward, on the day of, 1869, the said plaintiff being about to pay off said note and mortgage, by mistake the interest thereon was computed without deducting the said one year's interest previously paid by the said plaintiff to the defendant on said note; and the said note and mortgage were then delivered up to the plaintiff, and plaintiff paid to said defendant the full amount of said note and mortgage, without deducting or being allowed for said one year's interest so theretofore paid by him to said defendant, all of which was well known to the said defendant; and afterward plaintiff discovered the said mistake, and pointed out to said defendant that part of said mortgage which, in reciting the said note, etc., says, "interest paid to November 30th, 1865;" wherefore, the said defendant then, and afterward, to cause it to be believed that the plaintiff had been, and was, guilty of forgery, and of making use of false pretences to obtain from said defendant the said amount so overpaid to him in satisfaction of said note and mortgage, in speaking of and concerning said note and mortgage, and of and concerning the above recited clause thereof, and of and concerning the said plaintiff, and in order to cause it to be believed that said plaintiff had been, and was, guilty of forgery and of false pretence as aforesaid, in the presence and hearing of divers persons spoke and published the following false and slanderous words, to wit: "You" (meaning the plaintiff) "forged it, inserted it, put it in; you" (meaning the plaintiff) "wrote that clause in it. I" (meaning the defendant) "would swear that that line in the mortgage was not in the mortgage when I gave it to you yesterday, and you put in; you" (meaning the plaintiff) "altered the mortgage, changed the mortgage, put that line in the mortgage, inserted that line, put the credit in; and you are a forger and committed forgery. He" (the plaintiff meaning) "committed forgery; is a forger; is guilty of forgery. There is something here that I don't understand; this line has been put here, or, at least, if I was called on to swear, I would swear that I read the Hotchkiss v. Olmstead. whole of the mortgage over very carefully, and I did not read that. I let Hotchkiss" (meaning plaintiff) "have the mortgage once, and I never noticed that until after he brought it back. It is his handwriting; I told him so. I suppose he says he is going to sue me for it, but it is my belief; he can't hurt a person for his belief. Hotchkiss" (plaintiff meaning) "is so slippery I have had to watch him; he cheated me out of some money, which he positively agreed to pay, and I am not going to let him cheat me any more. I am positive this" (meaning the said sentence in said mortgage) "was not here when I gave him the mortgage; he put it there; it is his handwriting; I told him so; he can't hurt me for that; he can't hurt a man for his opinion, unless he says he can prove it; I have never said I could prove it. He" (meaning the plaintiff) "must have put that line in the mortgage" (meaning the line relating to said credit); “I am certain it was not there when I gave him the mortgage." Thereby meaning and intending to charge that the plaintiff had committed forgery, and had been guilty 'of attempting to obtain money by false pretence, and so said words were understood by the hearers. By which the plaintiff has sustained damages to the amount of ten thousand dollars, for which he brings suit. The plaintiff, for second paragraph of his complaint, says, that on the 30th day of November, 1864, the plaintiff executed to the defendant the promissory note, a copy of which is filed herewith, and afterward he paid thereon the interest for one year, and afterward, on the 15th day of December, 1865, the parties to said note agreed that if the plaintiff would execute a mortgage to said defendant for the payment of said note, the said defendant would extend the time of payment thereof, and accordingly the said plaintiff, with his wife, signed the mortgage, a copy of which is filed herewith, and there executed the same to the defendant, who approved the same, and expressed himself satisfied therewith, and the plaintiff then took the same to one John Kerr, Esq., a justice of the peace, that plaintiff and his wife might Hotchkiss v. Olmstead. acknowledge the same, which they accordingly did, and when the acknowledgement thereof had been certified by said justice of the peace, the said mortgage was delivered by plaintiff to said defendant; and afterward, on the - day of 1869, the plaintiff paid off said note and mortgage in full, without deducting the said one year's interest theretofore paid thereon; and the said note and mortgage were then, or afterward, surrendered up to the plaintiff; and afterward the plaintiff discovered the said mistake and demanded the correction thereof from defendant, and pointed out to the said defendant that part of said mortgage which recites the payment of said interest, to wit, "interest paid to November 30th, 1865." The said defendant, in order to cause it to be believed that said plaintiff was guilty of forgery, and of publishing a forged instrument as genuine, and of making use of false pretences to induce the said defendant to accept said mortgage and surrender up the previous mortgage mentioned in said mortgage, a copy of which is filed herewith, and to induce said defendant to extend the time of payment of said note, in speaking of and concerning said note and mortgage, and of and concerning said extension of payment, and of and concerning the said clause in said mortgage above recited, and of and concerning said plaintiff, spoke and published to divers persons the following false and slanderous words, to wit: "If I" (meaning defendant) "was called on to swear, I would swear that I read the whole of the mortgage over very carefully, and I did not read that. I" (meaning the defendant) "let Hotchkiss" (meaning the plaintiff) "have the mortgage once, and I never noticed that until after he brought it back. It is his handwriting; I told him so. I suppose he says that he is going to sue me for it, but it is my belief; he can't hurt a man for his belief. Hotchkiss" (plaintiff meaning) "is so slippery I have had to watch him; he cheated me out of some money once, which he positively agreed to pay, and I am not going to let him cheat me any more. I am positive this" (meaning the sentence above recited) "was not there when I gave him the mortgage; he |
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