Zeig v. Ort

Jackson, J. Two questions arise in this cause. 1st Was there a material variance between the plaintiff’s declaration and his proofs ? 2d. Was the declaration itself substantially defective ? Both of these points must be settled by the weight of authority; first, as to the question of variance. On this point there can be no question, that since the leading case of Zendbio v. Axtel, 6 Term, 162, the uniform current of authority has been that where the slanderous words were spoken in a foreign language, they should be set out in the declaration in the original language, with an English translation, showing their application to the plaintiff. 1 Starkie on Slander, 324; 2 Phillips’ Ev., 236; Wormouth v. Oramer, 3 Wend., 394. The case of the Queen v. Dr. Drake, in which a contrary doctrine was impliedly held by Holt, C. J., has been overruled. 1 Starkie on Slander, 323. In the case at bar, the slanderous words alleged to have been spoken were set forth ’ in the declaration in the English language. It was proven by all the witnesses on the trial, at the circuit, that the words were spoken in the. Hermán language. Here, according to the authorities which we have cited, was a fatal variance between- the declaration and the proofs. The case of Wormouth v. Cramer, 3 Wend., 394, is an authority directly in point. In that case the words were set forth in the declaration in' the English, and they were proved to have been spoken in the German language. A nonsuit was granted by the judge who tried the cause, on motion of the defendant’s counsel, on the ground of variance. This ruling was affirmed by the supreme court of New York, and is in conformity both with the English and American decisions. 2d. Is the declaration defective in not averring that those [33] who heard the slanderous words understood them? We have no doubt that such an averment is necessary where the words are spoken in a foreign language. Mr. Starkie, in his treatise on the law of slander, (vol. 1, p. 322), upon the subject, holds this language: “If the words be spoken in a foreign language, an averment is necessary to show that the hearers understood them ; and even where Welsh words were averred to have been spoken in Monmouthshire, which was once part of Wales, judgment was arrested after verdict for the plaintiff, because it was not averred that they were spoken before Welshmen, or those who understood the Welsh tongue.” The rule as laid down by Mr. Starkie is now well settled. Wormouth v. Cramer, 3 Wend., 394; 2 Greenl. Ev., 397. Another point has been raised in Ihis cause of great importance, involving, in cases of oral slander, both the manner of pleading and the mode of proof. It is, first, whether the declaration should set out the precise words themselves, or whether it will be sufficient to set out the substance of them ; and second, if the words themselves -be set out, whether it will be sufficient upon the trial to prove the substance of them only? Both of these questions have given rise to conflicting-decisions. It was held by Lord Hakdwicke in the case of Nelson v. Dinie, which is cited with approbation by Parker, Justice, in Nye v. Otis, 8 Mass., 126, that “in an action for words, you may either lay the particular words spoken, or set out the substance of them; and if the substance, as that the defendant charged the plaintiff with such or such a crime, it is sufficient to prove the substance of the words; but whére the 'very words are laid, they must be proved as laid.” In the case of Fox v. Vanderdeck, 5 Cowen, 513, it is held, in accordance with the doctrine laid down in Cooke v. Cox, 3 M. and S., 110, that the words in which the slander was conveyed must be stated in the' .declaration and substantially proved. In Cooke v. Cox, the court, in referring to the language attributed to Lord Hardwicke in Nelson v. Dinie, observe, [34] that what was supposed to have been said by Lord Hard-wicke, was founded in a mistake. In Miller v. Miller, 8 Johns., 59, the court recognize the doctrine laid down in Butler’s Nisi Prius, that it is sufficient to prove the substance of the words and the sense, as well as manner of speaking them. This doctrine must, however, be received with some qualification, if not regarded as virtually overruled. 2 Phillips’ Ev., 236, note 4. Mr. Starkie (Starkie on Slander, vol. 2, p. 327,) says, “ in case of words spoken as well as written, it has been held to be necessary to set out the words themselves.” And that, in oral slander, although all the words need not be, yet the material words must be proved as laid. It is not sufficient to prove equivalent words of slander. The same rule is recognized by Mr. Phillips (Phillips’ Ev., 236); where, however, all the words, as laid, constitute but one charge, the whole must be proved. 2 Starkie on Slander, 234; 2 Phillips’ Ev., 236; 2 Greenl. Ev., 393. The true rule then, in cases of oral as well as of written slander, both upon the weight of authority and upon sound principles of reasoning, we hold to be this: That the declaration should set out the words themselves in which the slander was conveyed, and that the material words must be proved as laid. Cooke v. Cox, 3 M. & S., 110; Fox v. Vanderdeck, 5 Cow., 513; Nestle v. Van Slyck, 2 Hill, 287; 12 Serg. & R., 427; 2 Phillips’ Ev., 236, note 4. Judgment reversed.