Hotchkiss v. Olmstead.

put it there; it is his handwriting. 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 altered. the mortgage; he inserted that sentence; he defrauded me by changing the mortgage while he had it, and by inducing me to accept it, supposing that it remained as it was when I first saw it, and before he took it away to acknowledge it." By which said slanderous charges, the said defendant meant and intended to charge said plaintiff with forgery, with uttering as genuine a false and forged instrument, and with obtaining the release of said other mortgage, and the extension of the day of payment of said debt by false and fraudulent pretences, and so said words were understood by those who heard them; wherefore plaintiff demands judgment for ten thousand dollars, as in the orginal complaint.

The only point in the case is as to the sufficiency of the complaint.

By the first paragraph it is alleged that in speaking of the plaintiff, and of and concerning a note and mortgage given to the defendant by the plaintiff, the defendant, after the note and mortgage had been paid off and surrendered up, said the plaintiff had inserted a clause of payment of interest for one year in the mortgage; that plaintiff had forged it; that plaintiff was a forger, and was guilty of forgery.

The second paragraph is similar, except that it fixes the time of the alteration in the mortgage before it was signed and acknowledged by plaintiff, and by him delivered to defendant, and that the plaintiff had been guilty of obtaining money by false pretences, by uttering as true and genuine the said instrument by him so altered and forged. By the innuendo in each paragraph it is alleged that the defendant meant to charge the plaintiff with the crimes of forgery and obtaining money by false pretences.

Section 30, 2 G. & H. 446, defines forgery thus: "Every person who shall falsely make or assist to make, deface, destroy, alter, forge, or counterfeit, or cause to be falsely

Hotchkiss v. Olmstead.

made, defaced, destroyed, altered, forged or counterfeited," then follows a description of the instruments that may be forged, "or any person who shall utter, or publish as true any such instrument, knowing the same to be false, defaced, altered, forged, or counterfeited with intent to defraud any person, body politic or corporate, shall be deemed guilty of forgery."

Are the facts stated in the first paragraph of the complaint sufficient to constitute a good cause of action for slander? The solution of this question depends upon whether the words spoken by the defendant of and concerning the plaintiff, as they are set out in the said paragraph, amounted to a valid charge of a felony against the plaintiff. The innuendo charges that the defendant then and thereby intended to charge the plaintiff with having been guilty of the crimes of forgery and obtaining money by false pretences. We will first inquire whether the crime of forgery was charged, within the meaning of our statute creating and defining that crime, as above quoted. To say of a person that he is a forger, or that he had committed forgery, or that he had forged an instrument that was the subject of forgery, or that he had uttered and published as true any such instrument, knowing the same to be false, defaced, altered, forged, or counterfeited, with intent to defraud any person, body politic or corporate, standing alone without explanation or qualification, is per se actionable, for it is charging the person with the crime of forgery, and, if true, it would subject the person charged to the pains and penalties inflicted upon persons guilty of such crime. But where words, in themselves actionable, are spoken of a subject-matter which, in itself, is not a crime, or where there are circumstances given by the speaker, or known to the hearers, which show that no crime had been in fact committed, no action can be maintained for the speaking of the words. Abrams v. Smith, 8 Blackf. 95; Carmichael v. Shiel, 21 Ind. 66; Van Rensselaer v. Dole, I Johns. Cas. 239; Thompson v. Bernard, 1 Campb. 48; Dexter v. Taber, 12 Johns. 239; Townsh. Slander, 142, sec. 144.

Hotchkiss v. Olmstead.

It makes no difference what may be stated in the innuendo as to the intent of the defendant, or the language used; the meaning and intent must be determined from the language used, in connection with the extrinsic facts alleged; and if, taken altogether, a felony is not charged thereby, then the words are not per se actionable, no matter what the words are. To say of a man, he is a murderer, he killed A. in selfdefence, would not import a charge of murder; though the direct charge is made, yet the accompanying explanation shows that such direct charge could neither be intended nor understood to import the crime of murder.

In the case under consideration, the complaint alleges that plaintiff had made a mortgage to defendant to secure the payment of a note; that he had paid off the note and mortgage, and that they had been surrendered up as satisfied; that by mistake the plaintiff had paid one year's interest, which had been paid before the mortgage was given; that the plaintiff had applied to the defendant to refund that interest; that in speaking of the transaction, the defendant had said of the plaintiff that he had inserted that clause in the mortgage after it had been paid off and surrendered up as satisfied, and had thereby committed forgery.

The question is squarely raised, whether a forgery can be committed by changing and altering a note or mortgage that has been paid off and surrendered up as satisfied.

The law is thus stated by Bishop: "And though a promissory note or bill of exchange, after being paid, is functus officio, and no note or bill, yet, if this does not appear on its face, a forgery may be committed by altering it. Likewise, it is no defence to a charge of forging bank bills, that the bank never issued bills of the particular denomination forged." 2 Bishop Cr. Law, sec. 508.

The same author, in section 511, says: "Therefore the gencral doctrine is, that the invalidity of an instrument must appear on its face, if the defendant would avail himself of this defect on a charge of forgery. In still other words, the forged VOL. XXXVII.-6

Hotchkiss v. Olmstead.

instrument, to be the foundation for an indictment, must appear on its face to be good and valid for the purpose for which it was created."

The case of Drummond v. Leslie, 5 Blackf. 453, is very much in point. That was an action for slander. The material facts were these: The plaintiff had been indebted to defendant for rent of a house; that plaintiff had paid the same and taken the receipt of defendant therefor; that the plaintiff had used and uttered the said receipt against the defendant as true and as evidence of such payment; that the defendant had, in speaking of the plaintiff, and of and concerning the said receipt, charged that the receipt had been forged, but he, the defendant, did not say who forged it.

This court say: "The defendant contends that the words are not actionable, and that the judgment should, therefore, have been arrested; but we are of a different opinion. There is not, it is true, a, directly affirmative charge that the plaintiff had committed forgery; nor was that necessary. If the words were calculated to induce the hearers to suspect that the plaintiff was guilty of the crime, they were actionable."

The entry made on the mortgage of the payment of interest had the force and effect of a receipt for that much money as paid by plaintiff to the defendant. The plaintiff uttered the same as true and as evidence of such payment. The mortgage, although paid and surrendered up, was a valid instrument as evidence of such payment, and to that extent was capable of being forged.

We are next to inquire whether the facts stated constituted a valid charge of obtaining money by false pretences. That crime is thus defined by our statute: "If any person, with intent to defraud another, shall designedly, by color of any false token or writing, or any false pretence, obtain the signature of any person to any written instrument, or obtain from any person any money, transfer, note, bond or receipt, or thing of value; such person shall, upon conviction thereof, be imprisoned in the state's prison not less than two nor

Hotchkiss v. Olmstead.

more than seven years, and fined not exceeding double the value of the property so obtained." 2 G. & H. 445, sec. 27. To constitute the above crime, it is essential that the person charged should have actually obtained the signature of some person to a written instrument, or obtained money or some thing of value by the means and in the manner described in the above section. The statute does not make the attempt to obtain a signature, or money, or some article of value a crime. The complaint does not allege that the plaintiff obtained any money from the defendant, but all the facts show that he demanded the repayment of the one year's interest, but that the defendant refused to pay the money, and that nothing was received. We are of the opinion that the facts stated in the first paragraph of the complaint constituted a valid charge of forgery, but did not amount to a valid charge of obtaining money by false pretences, and there being one valid charge, the court erred in sustaining the demurrer.

The second paragraph alleges a conversation in respect to the same transaction as that described and set forth in the first, but it differs radically from the first, in this, that it alleges that the alteration was made before the mortgage was signed and acknowledged by the plaintiff and delivered to the defendant.

It was not the mortgage or deed of the plaintiff until he had signed and delivered it, and no alteration he could make on it before signing and delivering it could amount to a forgery. The paper, until signed and delivered, was his own, and under his own control, and he could make any alteration. before its execution that he saw proper. The mortgagee was not bound to accept it if it had been altered, but if he did accept of it, it was not a forged and altered instrument, for it was the identical instrument, the same identical mortgage that had been signed and delivered, and in the precise condition that it was when it became a mortgage by the signing and delivery on the part of the mortgagor, and the acceptance by the mortgagee.