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Nos. 7, 8. — Zenobio v. Axtell ; Cook v. Cox. — Notes.

v. Moran, 4 Metcalfe (Kentucky), 127; Walsh v. State, 2 McCord (So. Car.), 248; Commonwealth v. Wright, 1 Cushing (Mass.), 46.

In Pennsylvania it is sufficient to set out the purport of the words. Lukehart v. Byerly, 53 Penn. St. 418. And so in Massachusetts, as to a crime, as stealing. Pond v. Hartwell, 17 Pickering, 269.

The first principal case is cited by Newell on Defamation, p. 277, and its doctrine is supported by Warmouth v. Cramer, 3 Wendell (New York), 394, Pelzer v. Bemish, 67 Wisconsin, 291; Simonson v. Herald Co., 61 ibid. 626 ; Kerschlaugher v. Slusser, 12 Indiana, 453.

It is not enough to charge that the words were in substance, or to the purport and effect, or in manner, or in manner and form, or of the tenor, import, and effect as follows. Bagley v. Johnson, 4 Richardson Law (So. Car.), 22; Watson v. Music, 2 Mississippi, 229; Zeig v. Cot, 3 Chandler (Wisconsin), 26; Bassett v. Spofford, 11 New Hampshire, 127; Churchill v. Kimball, 3 Hammond (Ohio), 409; Forsyth v. Edmiston, 5 (New York Superior Ct.), 653. Nor are mere quotation marks sufficient. Com. v. Wright, 1 Cushing (Mass.), 46.

The matter is regulated by statute in some States, but under the Codes generally, requiring a statement of the “ facts,” the precise words must be averred, and not simply their purport or substance.

A count is bad that merely alleges that the defendant charged the plaintiff with the crime of forgery, or of perjury, or of theft, Yundt v. Yundt, 12 Sergeant & Rawle (Penn.), 427; Ward v. Clark, 2 Johnson (New York), 10; Parsons v. Bellew, 6 New Hampshire, 289 (even after verdict); but contra, Hill v. Miles, 9 ibid. 9; and an allegation of the speaking of certain words set forth, “or words of the same import,” was held good after verdict in Bill v. Bugg, 4 Munford (Virginia), 260.

As to proof: some Courts hold it sufficient to prove the words substantially as laid ; others hold that all need not be proved, yet equivalents will not

Posnett v. Marble, 62 Vermont, 481; 22 Am. St. Rep. 126 ; Bundy v. Hart, 46 Missouri, 480; 2 Am. Rep. 525; Baker v. Young, 44 Illinois, 42; 92 Am. Dec. 149; Hersh v. Ringwalt, 3 Yeates (Penn.), 508; 2 Am. Dec. 392; Hume v. Arrasmith, 1 Bibb (Kentucky), 165; 4 Am. Dec. 626; Treat v. Browning, 4 Connecticut, 488; 10 Am. Dec. 156; Wheeler v. Robb, 1 Blackford (Indiana), 330; 12 Am. Dec. 245; Estes v. Antrobus, 1 Missouri, 197; 13 Am. Dec. 496; Purple r. Horton, 13 Wendell (New York), 9; 27 Am. Dec. 167; Commons v. Walters, 1 Porter (Alabama), 377; 27 Am. Dec. 635; Slocumb v. Kuykendall, 1 Scammon (Illinois), 187; 27 Am. Dec. 761; Snick v. Kelley, 25 Indiana, 278; 87 Am. Dec. 362 ; McConnell v. McCoy, 7 Sergeant & Rawle (Penn.), 223 (proof of words spoken in the second person will not sustain a charge of speaking in the third person).

In Bundy v. Hart, supra, the charge was, “He had to leave Indiana for burning;” the proof was, “I think my character is about as good as Bundy's; I had n’t to leave Indiana for burning a barn.” Held, a fatal variance. In Posnet v. Marble, supra; the charge was of keeping “a common open house;" the proof was, " a stinking place;" held, a fatal variance. On the other hand, the charge “ the plaintiff had a bastard child” was held sup


Nos. 7, 8. — Zenobio v. Axtell; Cook v. Cox. — Notes.

ported by proof of “ If I have not been misinformed, the plaintiff had a bastard child.” Treat v. Browning, supra.

In a note, 12 Am. Dec. 246, Mr. Freeman comes to the conclusion that in Indiana, Missouri, Illinois, Vermont, Kentucky, and Tennessee, equivalent words will not support a charge of slanderous words; but that “proof of words of the same sense and import” will suffice in Connecticut, Massachusetts, Ohio, New Hampshire, lowa, Kentucky, and under the Code in New York and North Carolina. Citing many cases. Mr. Newell gives many illustrative cases. (Defamation, p. 808.)

So “ A. has had a baby,” is sustained by “We hear bad reports about some of your girls. A. has had a baby,” fc. Robbins v. Fletcher, 101 Massachusetts, 115. “He stole two hundred dollars from me when I was drunk,” is sustained by proof omitting the last four words, but not by “ Morrissey stole two hundred dollars,” or “is a thief.” Crotty v. Morrissey, 40 Illinois, 477. “He has perjured himself; he swore lies before the Court at Madison," is sustained by proof adding “ according to the churchbook.” Brown v. Hanson, 53 Georgia, 632. “ Public whore” is sustained by “ whorish bitch.” Zimmerman v. McMakin, 22 South Carolina, 372; 53 Am. Rep. 720. Charge of burning his own mill“ because he was poor and wanted the money,” is sustained by proof of “ to get his insurance." Chace v. Sherman, 119 Massachusetts, 387.

Mr. Townshend says (Slander and Libel, sect. 365): “ The plaintiff need not prove all the words laid, but he must prove enough of them to sustain the action. It is sufficient if the gravamen of the charge as laid is proved, and unless the additional words qualify the meaning of those proved so as to render the words proved not actionable, the proof is sufficient. It is necessary for the plaintiff to prove some of the words precisely as charged, but not all of them, if those proved are in themselves slanderous; but he will not be permitted to prove the substance of them in lieu of the precise words.” Mr. Townshend treats this topic extensively, giving very interesting parallel tables of allegation and proof in illustration. Sect. 365–371. It is difficult to reconcile some of these holdings. Thus, allegation, “ Mr. K.'s wife is a whore,” is sustained by proof, “She (Mr. K.'s wife) is a whorish bitch ;' Scott v. McKinnish, 15 Alabama, 662. On the other hand : allegation, “whore,” is not sustained by proof, “strumpet;” Williams v. Bryant, 4 Alabama, 44. So allegation," he stole hogs," is custained by proof, “he stole a hog;Barr v. Gaines, 3 Dana (Kentucky), 258. On the other hand: allegation, “ You swore false,” is not sustained by proof, “ You have sworn false;" Sanford v. Gaddis, 15 Illinois, 228. So, allegation, " riot,” is sustained by proof, “ riot and assault;" Hamilton v. Langley, 1 McMullan (So. Car.), 498. On the other hand: allegation, “ thief,” is not sustained by proof, “plaintiff had been robbing him ;” Stern v. Lowenthal, California Sup. Ct., to appear.

The doctrine of variance has lost much of its importance in this country, owing to the large power of amendment and conforming pleadings to proof, under the Code practice.

VOL. IX. -7

No. 9. — J'Anson v. Stuart, 1 T. R. 748. — Rule.

SECTION V. - Defence and Justification.


(K. B. 1787.)


(c. A. 1893.)


A JUSTIFICATION in an action for defamation, which consists of a general charge of dishonesty, must state the particular instances by which the defendant intends to support it. Under the modern system of pleading the plaintiff is entitled to full particulars embodying those matters which formerly must have been contained in the plea to save it from objection on demurrer.

J'Anson V. Stuart.

1 T. R. 748–754 (s. c. 1 R. R. 392).

Defamation. Libel. Justification. Pleading. [748] To print of any person that he is a swindler is a libel and actionable.

A justification of such a charge must state the particular instances of fraud by which the defendant means to support it.

This action was brought in the Common Pleas for a libel printed in the Morning Post, which was stated in the declaration with innuendoes, as follows:

“The public cannot be too frequently cautioned against notorious swindlers and common informers. A nest of these hornets” (meaning the notorious swindlers and common informers), “who live by sucking the honey produced by industrious bees, have lately been discovered dividing the spoil at their nest in the corner of the King's Road” (meaning the dwelling-house of the plaintiff), “ from whence” (meaning the said dwelling-house of the plaintiff) “they” (meaning the said notorious swindlers and common informers) “have heretofore” (meaning before the said time of printing and publishing the said libel) “issued to sting the un

No. 9. — J'Anson v. Stuart, 1 T. R. 748, 749.

suspecting” (meaning to insinuate and be understood thereby that the said plaintiff was illegally, fraudulently, and dishonestly concerned and connected with divers swindlers and common informers, and shared with them the spoil and plunder by them from other persons unlawfully, fraudulently, dishonestly, and by swindling, gotten and obtained). “ The head of the gang” (meaning the plaintiff, and * also meaning thereby that the plain- [* 749] tiff was the principal and head of the gang of the said swindlers and common informers) “possesses in a strong degree the attribute of a gentleman, called the Devil, who first seduces, then stimulates, and at last deceives, and leaves his dupes to punishment” (meaning thereby and intending to be thereby understood that the plaintiff was guilty of deceiving and defrauding divers persons, with whom he had dealings and transactions, and that he the plaintiff was not to be trusted). “This diabolical character” (meaning the plaintiff), “like Polyphemus the man-eater, has but one eye, and is well known to all persons acquainted with the name of a certain noble circumnavigator” (meaning by the said lastmentioned words to allude to the name of the plaintiff J'Anson, and meaning thereby and intending that it should be thereby understood that the said false, scandalous, malicious, and libellous words were applicable to, and published of and concerning, the said W. J'Anson).

The defendant pleaded that the plaintiff had been illegally, fraudulently, and dishonestly concerned and connected with, and was one of, a gang of swindlers and common informers, and had also been guilty of deceiving and defrauding divers persons, with whom he had had dealings and transactions, wherefore he printed and published, &c.

To this plea there was a special demurrer, and the following causes were shown ; that the defendant hath not set forth or shown in or by his plea in what manner the plaintiff was illegally, fraudulently, and dishonestly concerned and connected with, and was one of, a gang of swindlers and common informers; and also that the defendant hath not thereby shown or disclosed any particular person or persons with whom the plaintiff was so illegally, fraudulently, and dishonestly concerned and connected; and also that the defendant had not shown or disclosed any particular person or persons with whom the plaintiff hath been guilty of deceiving or defrauding, or in what manner, or in what particular

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dealings and transactions, he hath so deceived and defrauded any such person or persons; and also that the defendant hath not in or by his plea set forth any day or time when the said several facts alleged by him in that plea against the plaintiff or any of them happened; and also that the defendant has set forth the charges in that plea contained in so general and uncertain a manner, that the plaintiff cannot know what particular facts the defendant

will attempt to establish by evidence on the trial of this [* 750] cause in order to support those charges, and therefore

cannot be prepared to disprove or answer the same. After argument on this demurrer, the Court of Common Pleas, H. 27 G. III. C. B., gave judgment for the defendant. The record was then removed into this Court by a writ of error; and the errors assigned were similar to the causes of demurrer.

Wood, for the plaintiff, insisted that the plea of justification was too general and uncertain, because it did not sufficiently apprise the plaintiff of the defence which was intended to be set up. The defendant ought to have alleged some particular crime, with the time, the place, and the persons with whom the plaintiff was supposed to be connected. A similar justification was attempted to be pleaded in the case of Newman v. Bailey, H. 16 G. III. B. R. (2 Chitty, 665). That was an action by a justice of the peace against the defendant, who charged him with “pocketing all the fines and penalties forfeited by delinquents whom he convicted, without distributing them to the poor, or in any other manner accounting for a sum of £50 then in hand.” The defendant pleaded that “the plaintiff was a justice of the peace, and that, during the time he acted as such, he convicted divers and sundry persons respectively in divers and sundry fines and sums of money, for and on pretence of their having respectively committed divers respective offences, against the form and effect of divers statutes of this realm ; which said respective fines and sums of money, amounting in the whole to £50, he received of the respective delinquents so by him convicted, and had not paid the same to the several persons to whom the same ought to have been paid by virtue of the respective statutes, but had kept and detained the same, contrary, &c.” To this there was a special demurrer; and the Court were clearly of opinion that the justification was bad, because it did not specify any one fine or penalty which had been unjustly levied.

Conste for the defendant. The plea may be as general as the

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