Wilborn v. Odell

Walker, J. There seems to be no rule better settled, than that to authorize a recovery in slander, the plaintiff must prove the words alleged, or such of them as will establish the slander charged. Other words, of like import and meaning, will not suffice. Nor is it sufficient that equivalent words or expressions are proved. But the rule does not require that all the words shall be proved, so that the slander is established by such as are laid. Nor will it be material that more words are proved than those laid in the declaration, if the additional words do not change the meaning, or do away with the charge. Sandford v. Geddis, 15 Ill. 228; Norton v. Gordon, 16 Ill. 38. In the former of these cases it was held, that a difference in the tense of the verb laid, and that proved, constituted such a variance as to defeat a recovery. That case is conclusive of this, as the same variance exists in this as did in that case. In the declaration it is alleged that the defendant “ has been stealing my corn,” whilst the evidence was, that he said defendant “ had been been stealing my corn.” This is clearly within the rule, and was not sufficient to sustain the charge as laid. Notwithstanding we may doubt the propriety of the adoption of the rule, and whilst we might, if the question was open, be inclined to establish a different one, yet the law has been too long and uniformly settled, to be now disturbed. Its adoption was no doubt introduced, because the action of slander has not been regarded with any great favor by the courts. And whilst it renders a recovery exceedingly difficult in many instances, and no doubt prevents a recovery in many meritorious cases, yet owing to the fact that the rule is unquestioned law, we are unable to alter or modify it, but must apply it as it is found. It is urged, that the court erred in excluding the evidence from the consideration of the jury. It is of every day’s practice, to reject improper evidence, and to exclude such evidence when it has been improperly admitted. It is proper where irrelevant evidence has gone to the jury, that the court should, upon the application of the opposite party, exclude it from their consideration. Evidence not pertinent to the issue should, at any stage of the trial, upon request, be excluded. It is altogether different where the evidence is pertinent, and tends, however slightly, to prove the issue. Then it is for-the consideration of the jury, and the court is powerless to. interfere. It is urged as a ground of error, that the court refused, after excluding the evidence, to permit the plaintiff to introduce' further proof. After the party has closed his evidence, it i's-altogether a matter of discretion, whether the court will permit him to give further testimony. We have no power to. review the exercise of such a discretion. There is no force in this objection. It is lastly urged, that there was error in receiving an oral verdict from the jury. Such a practice is expressly authorized by the 24th section of the chapter entitled, Civil Procedure. (Seates’ Comp. 260.) There is no force in this objection. The judgment of the court below must be affirmed. Judgment affirmed.