
    Gordon v. Spencer.
    If the contimtanco of a causo be applied for, on the ground that a witness who had been subpoenaed does not attend, the return of the sheriff must be produced.
    An affidavit for a continuance, on account of the absence of witnesses, must clearly show their materiality.
    A plaintiff in slander, having first proved that the defendant had spoken to third persons the words laid in the declaration, may prove, in support of the declaration, that the-defendant had spoken the same words in answer to the plaintiff’s interrogatories.
    Saturday, November 7.
    APPEAL from the Franklin Circuit Court.
   Hodman, J.

Alma Spencer obtained a verdict and judgment against James Gordon in an action of slander. During the progress of the cause the-defendant, now the appellant, took two bills of exceptions, and has appealed to this Court for a reversal of the judgment.

The first bill of exceptions states, that the defendant applied to the Circuit Court for a continuance of the cause, on account of the absence of four witnesses; stating in an affidavit that one-of them, who resided in this state, had been subpoenaed in his behalf, as he was informed by the sheriff; that the other three lived in the state of Ohio, Butler county; that he expected to be able to procure their testimony by the- next term of that Court, either by deposition or otherwise, and support the matters alleged in his plea of defence, and prove the bad character of the said Alma Spencer, if this cause should be continued; and that he knew of no other persons by whom he could prove the same facts. To counteract the effect of this affidavit, the-plaintiff introduced the affidavit of a third person, which was received and read by the Circuit Court. The Circuit Court, on hearing these affidavits, refused to continue the cause. We deem it unnecessary to notice the counter affidavit introduced by the plaintiff, inasmuch as we are of opinion that the defendant’s affidavit does not show, conclusively, that the Circuit Court transcended the bounds of a legal discretion in refusing a continuance of the cause. Without minutely criticising this affidavit, we see two points of uncertainty in it. The first is as to the summoning of the resident witness. The sheriff’s information was not the best evidence in this matter to which the defendant might have referred. The sheriff’s official return to the subpoena was preferable. The second is, that the defendant does ¿rot state conclusively, that he expects to prove any thing by any of these witnesses; but that, if the cause should be continued, he expected to procure their testimony either by deposition or otherwise, and support the matters alleged in his plea, and prove the bad character of the plaintiff. Passing the vagueness of what he expected to prove, he does not say, positively, that he expected to prove this, by these witnesses or any of them; nor will the statement that he knew of no other persons by whom he could prove the same facts, entirely remove this uncertainty. When an application is made to this Court to reverse a judgment, on account of an abuse of legal discretion by the Circuit Court, a case must be made out that shows, unequivocally, that the Circuit Court has abused its discretionapowers. So that we cannot say that the Circuit Court erred in refusing-a continuance .

The second bill of exceptions is as follows: “The plaintiff offered in evidence to the jury words spoken by the defendant on interrogatories (of the plaintiff,) to support the words laid in the declaration, (the words as set out in the declaration being' proved by other witnesses;) to the admission of which, as evidence to the jury to support the words laid in the declaration, the defendant by his counsel objects, and moves the Court to charge the jury, that words spoken by the defendant of the plaintiff, on interrogatories, could not be received as evidence to support the words laid in the declaration; which said objection and motion of the defendant were, by the Court, overruled, and the evidence aforesaid was permitted to go to the jury, in support of the words charged in the declaration; to which decision and judgment of the Court, the defendant by his counsel excepts.” The appellant by his counsel contends with much earnestness, that the Circuit Court erred in the admission of this testimony. He relieá, in support of this position, principally, on the cases of King v. Waring, 5 Esp. R. 13, and Smith v. Wood, 3 Campb. 323. In King v. Waring, Lord Alvanley decided, that “though a letter giving a false character of a servant might be the ground of an action, yet if written as an answer to a letter sent, not with a view of obtaining a character, but with an intention to procure an answer, upon which to ground an action for a libel, such evidence ought not to be admitted.” In Smith v. Wood, which was an action for a libel upon the plaintiff in the shape of a caricature print, entitled “The inside of a parish work-house with all abuses reformed,” a witness stated that, having heard the defendant had a copy of this print, he went to his house and requested liberty to see it; and that the defendant thereupon produced it, and pointed out the figure of the plaintiff and the other persons it ridiculed. Lord Ellen-borough ruled, that this was not sufficient evidence of publication to support the action. Starkie, in his treatise on evidence, annexes a quasre to this case; because it does not appear that the witness had been sent by the plaintiff. 2 Stark. Ev. 877. These cases, together with some insinuations in the case of Rogers v. Clifton, 3 Bos. & Pull. 587, though less strong than the foregoing, may be considered as supporting the doctrine laid down in Starkie on Slander, 169, and 2 Stark. Ev. 876, vizA where the plaintiff, knowing the defendant’s sentiments,! procures the publication for the purposes of the action, he can-1 not afterwards be heard to complain of that as an injury, which) he has voluntarily occasioned. /

'''■—Taking this to be the law upon this subject, still we are'of opinion that the bill of exceptions does not show, that the Circuit Court erred in the admission of this testimony, or in the refusal of these instructions. If the plaintiff, hearing that the defendant had uttered the slander to others, should inquire of the defendant as to the truth of the report, and the defendant should repeat the slander, the fact that he spoke the slanderous words in answer to the plaintiff’s interrogatories in the last instance, would not destroy the plaintiff’s right of action. And after the plaintiff had proved the first speaking of the words, we know of no rule that would prevent him from proving, that the same words were afterwards repeated in answer to hils^nterrogatories. In this case, the words laid in the declaration were first proved, (says the bill of exceptions,) by other witnesses, before the evidence relative to the words spoken in answer to interrogatories was introduced; and there is not enough in the bill of exceptions to show, that the evidence objected to was inadmissible. To make this a case, in which we could determine,as to the admissibility of the words spoken in answer to interrogatories, it should appear what the interrogatories were, what induced them, what the words thus spoken were, and how far they varied the case from what it would otherwise have been. The refusal of the Circuit Court to give the instructions required, amounts to no more than the admission of the testimony, and its correctness can only be tested by the precise state of the case. We have seen neither principle nor precedent, that would authorise us to say, in general terms, that words spoken by a defendant in answer to interrogatories of a plaintiff can in no case be given in evidence to support the words laid in the declaration, where the words laid in the declaration, have been previously proved by other witnesses.

Wick, Morris, Sfcmx and Caswell, for the appellant.

M1Kinney and isnmh, for the appellee.

Per Curiam.

The judgment is affirmed, with 1 per cent, damages and costs. 
      
       The principal facts, expected to be proved by the absent witness, must be stated in the affidavit, in order that the Court may judge of the materiality of the witness. Stat. 1833, p. 115.
     