
    M‘Connell against M‘Coy.
    In Error.
    Thursday, September 13.
    ERROR to the Court of Common Pleas of Allegheny , •* Bounty. -
    in slander, a declaration stating the words to have been spoken in the third Supported by6 in the second
    of Court authorises a rule for taking f0ep°Sg„“ered of course, stisonabKo-*" tioB> ‘i1®®0,?struction of the rule most aplet'slh^ne“tying thePe" number of days notice in the rule, depend on the usageand practice of the Court
    
      Elizabeth Mi Coy, the plaintiff below, brought this action of slander against William Mi Connell. The first count of the declarations alleged, that the defendant spoke of and concerning the plaintiff the following words, “ she is a thief and I can prove it.” The second count charged him with ing of her, “ she is a thief and a whore, and I can prove • 4
    On the trial, the plaintiff offered in evidence the deposition of William M'-Coy, taken under a rule to take the depositions of ancient, infirm, and going witnesses, on reasonable notice. The rule stipulated no particular period of notice. The no- . 1 1 * tice given was nine days: and it was, that the deposition would be taken at the house of Rachael M'-Coy, in Green township, Beaver county. This deposition was objected to by the defendant, because the period of notice ought to have been ten days : and because it did not specify with sufficient certainty the place of taking it. The Court overruled both objections, and admitted the depositions, and the defendant excepted.
    The evidence given by the plaintiff as to the speaking of the words was, that they were spoken by the defendant in the second person, to the plaintiff.
    The Court charged the jury, that the variance between the declaration and the evidence, was immaterial, and that the testimony supported the charges in the declaration. This charge was also excepted to by the defendant. The jury found a verdict for the plaintiff below, and judgment was entered thereon.
    
      Wilkins and Baldwin, for the plaintiff in error, now contended,
    l,i That the deposition of W. M'-Coy ought not to have been admitted in evidence, because sufficient notice was not given. The rule of Court ought to have stipulated the notice. The house also was uncertainly described : its locality ought t© have been fixed by a further description.
    2. The words proved did not support the words charged. It is well settled that the words proved to have been spoken in the third person, support words laid in the second, yet the reverse is not the rule. The variance is material, because words spoken in the third person are an evidence of deliberation and malice. They- cited in support of these positions, Cro. Eliz. 857. 8 Johns. 74, 75. Bac. Ab. tit. slander. Johnson v. Tate, 6 Binn. 121, Bull. N. P. 5.
    
    Forward, contra.
    1. The practice of the bar is to enter the rule as was done in this case, and it is the most convenient practice. The Court below however, is the best judge of its own practice, and of the reasonableness of the notice. As to the place, of taking the deposition, the notice is in that respect sufficiently certain. The country is not thickly settled, and the house if not known could easily have been discovered.
    
      2. In reality there is no difference between words spoken-in the second and third person : the distinction set up in some cases between them is artificial and unreasonable. Courts now look at the substance of the charge, and hold that it is enough to prove the words substantially. Our Courts have gone beyond the English Courts in this respect. But even there we are not without authority. Lord Hardwicke, in Nelson v. Dixey, Cas. Temp. Hard. 305, lays it down, that when words are laid to be spoken in one person, proof of words spoken in another, will support the declaration. He also cited, Bac. Ab. tit. slander.
   The opinion of the Court was delivered by

Duncan j.

Two questions are presented for the consideration of the Court.

1st. Was the deposition of William M'-Coy properly read in evidence.

2d. Did the words proved maintain the allegation in the declaration.

The just construction of the rule of Court, that a party applying for a rule to take depositions of witnesses, may enter the rule of course in the Prothonotary’s office, stipulating a reasonable notice to his adversary is, that the rule itself should stipulate, that is, fix and ascertain the number of days notice ; but in the construction of these rules, usage, when it is not repugnant to the principles of natural justice, ought to be greatly respected. The practice of every Court is considered as the law of the Court. The course of the office and variety of precedents, though they passed sub silentio, and no question had been made of them, or judicial decisions, are strong evidence of the usage.

It is merely a. matter of practice, to establish which we can have recourse to no other source of information, than the records of the Court, and the officers of the Court, and the gentlemen of the bar practising in the district.

The enquiry is not, whether this practice originally was right, but whether such practice has prevailed. The records of the Court, the officers of the Court, and many of the gentlemen of the bar, prove that a practice had prevailed for some time before the trial of this cause, to enter the ride in this foriji, and not to stipulate the reasonable notice in the rule itself, but to fix and ascertain it in the notice given t@ the party ; and however some respectable members of the bar may have privately murmured, yet no application had been made to the Court to change the practice ; and here this judgment gives us the opinion of the Court of Common Pleas, that such had been the usage under the rule. The opinion of the Court, giving,their own construction.of their, own rule, the usage, (where no injustice is done to the suitor, and whether the rule itself stipulated the notice, or the notice itself gave the time, the result would be the same, and the Court in each case exercise the like power of judging, whether the notice was a reasonable one,) ought to govern in reviewing a judgment on a question of practice.

The slanderous words are alleged in the declaration, to have been spoken of the pláintiff, the evidence was that they were spoken to her. The Court were of opinion that this supported the issue, that there was no substantial difference between words spoken to or of a man.

The law is now well settled, that the plaintiff is not obliged to prove the words precisely as laid, it is sufficient to prove their substance ; but the sense and manner of speaking must be the same. Words spoken to a mans face in passion are more excusable, than if spoken deliberately behind his back; the latter is the course in which malignant slander is usually propagated. Slander to a mans face cannot be justified, but it seldom has the strong mark of deliberate malignancy that distinguishes back-biting. The case of Nelson v. Dixey, Cas. Temp. Hard. 305, contains a dictum, attributed to Lord Hardwicice, that words in the second person, are supported by proof of words uttered in the third person ; this was not the case in judgment, and of many sayings attributed to J edges, as obiter dicta, it might well be pronounced nunquam dicta, but whether respect is justly due to all that comes to us, in the name of that distinguished Judge, all that he has said to have said, cannot be ranked as judicial decisions, nor controul the judgment in the very point presented for decision.

In Avarillo v. Rogers, Bull. 5, Lord Mansfield recognised at Guildhall, the substantial distinction, and decided that th,e variance wás fatal; this is the opinion of but one Judge, but a very illustrious one, who was not disposed to antangle justice in nets of law, whose well spent life was employed in separating substances from the unmeaning forms with which they had been mingled, and in breaking down senseless distinctions and technical subtilities ; but it rests not on his opinion, for it has been recognised as the law in many instances, and many plaintiffs have been non suited for this variance. In New York, this is received as the acknowledged doctrine of the law, 1 Johns. 74. Miller v. Miller. It is true that in Tracey v. Harkins, 1 Binn. 395, the Court of Common Pleas for the city and-county of Philadelphia, decided differently; the reasons given for that decision by no means satisfy this Court, that there is no substantial difference between words spoken to or of a man, and they are of opinion, this was not the old law, nor the law at any time ; for they find that whenever the direct question has directly been presented, the substantial difference has been acknowledged and established. But there is another reason, than the different malignancy of the two sets of- words, which weighs with me. The object of all declarations, is to give notice to the party of the charge, that he may come to the trial prepared to defend himself. But wdteh a defendant finds that he is not charged with speaking sk|¿3erous words to the plaintiff, he may be conscious, that hl^never held any conversation on the subject, but with himself and to his face, aod may securely repose in confidence that it is impossible for the plaintiff to make out his allegation, and would be surprised by a different charge, of which, had he been apprised by the declaration, recollecting the conversation and the persons present, he might come prepared to shew, the mistake and misrepresentations of the plaintiff’s witnesses, might explain the occasion and manher of speaking the words, and by the antecedent and subsequent parts of the same sentence prove the sense was innocent or the occasion justified, and might mitigate the damages by such evidence. I am therefore of opinion, -that the variance was fatal, the manner being different from the allegation, the slander more malignant, the defendant not apprised by the declaration of the charge, for which he was called on the trial to answer, so that he anight defend, justify, or explain it.

Judgment reversed.  