Opinion
July Term, 1827.
From Burke.
A count charging the defendant with speaking slanderous words is not supported by proof that he maliciously procured another to speak them.
CASE for slanderous words. The plaintiff declared that she being a person of good fame and reputation and so esteemed by all persons, and never having been guilty of any of the infamous acts imputed to her by the defendant, etc., nevertheless, the defendant, being an evil-minded person and intending to slander her in her good name, fame, and character, on, etc., at, etc., "did falsely and maliciously publish of her the plaintiff, the (211) following scandalous words, to wit: "She the said Mary is big [meaning big with child] to his negro Ben," "that all Watts' girls [meaning the plaintiff as one of said girls] are with child to negro Ben," "She [meaning the plaintiff] is incontinent," he knowing at the time the said malicious and slanderous words to be untrue and false, etc., to the damage of her the said Mary $5,000, and therefore, etc."
Nash and Badger for the appellant.
The issue, joined on the plea of "Not guilty," came on to be tried before Strange, J., when the speaking of the words by the defendant was sworn to by several witnesses, and their credit being drawn in question, the plaintiff further proved by other witnesses that on several occasions the defendant asked of an old man named Martin, who lived with him, what was the story about Watts' daughters and negro Ben, and Martin in answer to the inquiry stated that all Watts' daughters were big with child by negro Ben. The judge instructed the jury that though they should disbelieve the witness who testified to the defendant's having spoken the words, yet if they believed that he procured the words to be spoken by Martin, in reference to the plaintiff, and in his presence, with a design to impress the bystanders with the opinion that she was guilty of the scandalous conduct implied by the words of Martin, the defendant was as guilty as if he himself had uttered them. The jury found for the plaintiff, and a motion for a new trial and in arrest of judgment having been overruled, the defendant appealed.
In this case it is clear that there is error both in the judge's charge to the jury and in rendering judgment on the record, properly so called. We will examine the first point only, for should there be a defect in the pleadings, we very plainly perceive that there is sufficient substance in the declaration to support an action, and the judge below has it amply in his power to permit amendments to be made to meet the justice of the case upon such terms as he may think proper. Farrar v. Alston, ante, 69. We shall therefore confine ourselves to that part of the charge wherein the judge says that if the jury should not believe the witnesses who had deposed to the defendant himself having used the slanderous words, yet if they believed that he procured the words to be uttered by Martin, in his presence, and with the design of having it believed by the bystanders that the plaintiff was guilty of the scandalous conduct which the words of Martin implied, he was as guilty as if he had uttered them himself. I understand the charge as amounting to this, that such evidence would support a count that the defendant himself uttered the words. There is no doubt that the defendant is responsible for this slander thus uttered by Martin. But the charge in the declaration must correspond with the proof, and although a declaration may be framed upon the words spoken by Martin, at the instigation of Greenlee, yet such proof cannot be received in support of a count charging Greenlee with speaking them, without violating the rules requiring precision in pleading. Starkie Ev., 266, 270; 8 Term, 150.
PER CURIAM. Judgment reversed and new trial awarded.
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