
    MITREAUD VS. DELASSIZE.
    APPEAL PROM THE PARISH COURT, FOR THE PARISH- AND CITY OF NEW-ORLEANS.
    In an action for damages for slanderous words uttered publicly by the defendant, concerning the plaintiff, the latter may amend his petition by adding allegations of the falsity of the charges, and malice on the part of the defendant in making them; but he must pay all costs up to the time of the amendment.
    This is an action of slander, in which the plaintiff alleges that the defendant, on a certain day and in several places, publicly uttered against him many slanderous words and epithets, which he sets forth in the petition, as injurious to his reputation, and to his damage five thousand dollars. He prays that the defendant be cited and condemned to pay said damages, together with costs, etc.
    The defendant excepted to the petition, as setting forth no legal cause of action, and prayed to Jre dispensed from answering, and that the suit be dismissed.
    The plaintiff filed a supplemental petition, in which he alleges that the slanderous words spoken by the defendant, of and concerning him, the plaintiff, as set forth in the original petition, were and are false, scandalous, defamatory and malicious, and were intended by the defendant to injure, defame and disparage his good name, honest reputation and character, which he has hitherto sustained and enjoyed, etc. He concludes with alleging the injury he has sustained, and renews his prayer for the damages demanded in his original petition. The defendant’s counsel excepted to receiving the amended petition, because the original one set forth no legal cause of action, and was excepted to on this ground, which the plaintiff is not permitted to defeat by an amendment, when his original petition is so defective that no judgment in his favor could be, rendered on it. He prays that the supplemental petition be rejected, and the suit dismissed with costs.
    This exception was sustained by the court, and the plaintiff’s suit dismissed, and he appealed.
    
      
      Mace, for the plaintiff and appellant.
    This suit should not have been dismissed, because the petition virtually charged the defendant with malice. 2d Starkie on Evidence, 861; marginal note, evidence of malice; and same page, note (y.)
    
      2. This is a civil action for damages, which requires no peculiar form in the petition. Code of Practice, articles 160-1.
    3. The plaintiff’s supplemental petition is in the nature of an amendment to the original petition, without altering the substance of his demand ; he was, therefore, entitled to the amendment. Code of Practice, 419.
    
      Roselius, contra.
    
   Eustis, J.,

delivered the opinion of the court.

The plaintiff applied to the court below for leave to amend his original petjlion, by filing a supplemental petition ; the judge refused to allow the amendment, and the plaintiff’s petition having been dismissed, the correctness of this decision is brought before us for our decision, on an appeal.

This is an action for damages for slanderous words uttered publicly by the defendant, concerning the plaintiff. The amended petition contained allegations of the falsity of the charges of which the plaintiff complained, and of malice on the part of the defendant in making them, which allegations were omitted in the original petition.

The article 419 of the Code of Practice, allows amendments, under the leave of the court, even after issue joined, “ provided the amendment does not alter the substance of the demand, by making it different from the one originally brought.”

The amendment sought to be made in this case, certainly did not alter the substance of the demand; the allegations of falsity and malice, are necessarily implied in the claim for damages.

We think the judge ought to have allowed the amendment to be made, but that the plaintiff ought to be amerced in the ’costs incurred up to the time of making it.

It is, therefore, ordered, that the judgment of the Parish Court be reversed, and that the cause be remanded for further proceedings, with directions (o the judge to allow the supplemental petition of the plaintiff to be filed on his paying the costs incurred in this case, up to the time of the presentment of the supplemental petition, and that the defendant and appellee, pay the costs of the appeal.  