Edgerley v. Swain

Eowler, J. If any of the words set forth in the declaration are actionable of themselves, in the absence of any colloquium or averment of the sense in which they were spoken, it must be those first laid. We do not understand that the plaintiff was bound to prove all the words laid; it was enough for him to prove some material part of them. But those which were proved should have been proved substantially as stated, and to have been used in the sense in which they were alleged to have been spoken. 2 Phillips’ Ev. 97 ; Maitland v. Goldney, 2 East [481] 434, 438 ; Rex v. Berry, 4 Term 218 ; Barnes v. Holloway, 8 Term 150 ; Cook v. Cox, 3 M. & S. 110 ; Miller v. Miller, 8 Johns. 75 ; Fox v. Vandebeck, 5 Cowen 515 ; Olmstead v. Miller, 1 Wendell 510. If words must have been spoken in a peculiar sense, or with reference to some particular subject, to render them actionable, there must be a colloquium or averment of the subject matter of the conversation, or the peculiar use of the words employed, or the action cannot be sustained, even after verdict, upon a motion in arrest. Bloss v. Tobey, 2 Pick. 324; Carter v. Andrews, 16 Pick. 1; Ryan v. Madden, 12 Vt. 51, and authorities; Atkinson v. Scammon, 2 Foster 42, and authorities. The reason why such colloquium or averment is required, is because the fact that the words were spoken in a peculiar sense, or with reference to some particular subject, is traversable, and the defendant is entitled to an opportunity to deny its truth, and show that the words were not used in the sense, or spoken with reference to the subject alleged, which he cannot have if there be no such averment to traverse. Same authorities. If there be no colloquium, the plaintiff must be held to allege that the words spoken were used in their natural and ordinary sense, and this natural and ordinary sense must import a charge of crime, or some punishable offence, to make the speaking of the words actionable of itself. If the words proved shall appear to have been employed in a peculiar sense, which rebuts the idea of their containing a charge of crime ; or if they shall appear to have been so used as that a charge of crime can only be drawn from them by showing that they were used in a peculiar sense, or in reference to some particular subject, there is a variance, and the action must fail, although the exact words laid may be proved to have been spoken. Although the plaintiff need not set out all the words spoken, he must set forth enough to show the sense and connection in which they were used. If he does not, although he prove the precise words laid, yet, if they appear to have been so spoken in connection with other words, or in reference to some particu [482] lar topic of discussion, as to have been used in an essentially different sense from that imputed to them in the declaration, and which is indispensable to the mainténance of the action, there will be a fatal variance. If a plaintiff bring his action, charging a defendant with defamation in saying of him, “ You are a thief,” alleging that thereby the defendant intended to charge him with the crime of larceny, and to cause him to be suspected and prosecuted therefor, it is clear that these words are actionable of themselves, and the declaration would be good without any colloquium of the occasion, purpose, or intent with which they were spoken, if proved to have been spoken without any qualification, the natural import of the language used implying a charge of larceny. Robinson v. Keyser, 2 Foster 323. But if the plaintiff should prove that the conversation occurred in a controversy between the defendant and himself, in regard to the title of a farm which the defendant had claimed, and which he believed the plaintiff had in some way unjustly acquired the possession of, and that the words actually spoken were, “ You are a thief, for you have stolen my farm,” here would be a fatal variance between the words proved and those laid, although the. precise words laid were proved to have been spoken. So, if the words laid were, “ You are a murderer;” these might justly be held actionable without a colloquium, as importing in their natural and ordinary acceptation, a charge of homicide. But if the words proved were, “ You are a murderer, for you killed my dog,” it would hardly be contended that there would not be such a variance in the evidence as would defeat the action, notwithstanding the exact words declared on were proved to have been spoken. In the case before us, if the words set forth in the declaration are actionable of themselves, as containing in their natural and ordinary acceptation a charge of crime, it would seem to be on the ground that they import a charge of fornication ; or, if the plaintiff, of whom they were spoken, were then a married woman, which does not appear, of adultery. The subsequent words [483] laid would seem to strengthen the idea of something lascivious or lewd, if, as apparently intended to be set forth, they were used in connection with and as giving character to those which precede them. The whole idea of the words contained in the declaration is, that here was a vile, unprovoked, unjustifiable attack upon the plaintiff, charging her with a foul crime in the grossest language. If they are actionable of themselves, it is because they substantially charge the plaintiff with having had old John Tilton in adulterous intercourse with her once, like an unnaturally excited beast; and it is difficult to conceive of any thing more slanderous than such a charge thus made against a woman. But the words proved, admitting, what is not perhaps entirely clear, that they are essentially the same as those charged, present an entirely different aspect. Aside from the vulgarity of the terms employed, they contain, first, a remonstrance, in an interrogative form, against the plaintiff’s harboring an unworthy woman, by an inquiry why she did it; then an allegation that she must be unnaturally excited or partially insane so to do; and, lastly, an attempt to convince her of the folly of her*course, by suggesting to her that the consequences of what she had already done had been to get the maintenance of John Tilton, whom she had before harbored, charged upon her, and assuring her that if she chose to persist in her infatuation, by harboring Olive as she had John, she might incur the responsibility of Olive’s maintenance also. There does not seem to us, in the words proved, to be any charge of fornication or adultery necessarily or naturally implied. On the contrary, the only phrase employed from which such a charge could possibly be inferred, is so used to indicate the relations of the plaintiff to each of the two persons, of opposite sexes, mentioned, that any presumption of such a charge having been intended by it, would seem to be entirely rebutted. As we are of opinion there was a substantial variance between the words proved and those laid in the declaration, the verdict must be set aside, and a New trial granted.