
    Sophia Clark vs. Willard Munsell.
    Where the plaintiff, in an action of slander, counts generally, alleging that the defendant has charged him with a certain offence, the court has authority to order him to file a specification or bill of particulars of the ground of his action.
    Where a count alleges that the defendant charged the plaintiff with the crime of fornication, a specification, stating that the defendant declared that the plaintiff was a strumpet, is allowable, as it includes the charge of fornication 3 and proof of the charge in the specification is proof of the charge m the declaration.
    
      S bill of particulars was filed by a plaintiff in an action of slander, m which the declaration contained three counts, alleging that the defendant, on three differer days, charged the plaintiff with a certain offence: The defendant gave notice trat he should hold the plaintiff to rely, as the substantive ground of action, upon the three first conversations of the defendant which might be proved, and which might impute to the plaintiff the offeree alleged in the counts to have been charged upon the plaintiff : The first witness : ailed by the plaintiff stated a conversation with the defendant in which he imputed to the plaintiff such offence: The plaintiff's counsel imme diately stated that they did not rely upon that conversation to prove either oí the counts, but that they relied upon a subsequent conversation of the defendant, in the hearing of the witness. Held, that the plaintiff might waive the testimony which t.ie witness had given, and was entitled to his testimony as to a subsequent conversation of the defendant.
    A. specification or bill of particulars, in an action of slander in which the plaintiif files only the general counts, is not to be treated, in all respects, like a special declaration 5 and slight variances between the proof and the allegations in the specification will not defeat the action. The action is maintained, if actionable words, which necessarily import the charge alleged in the specification, are proved, though other words, therein alleged, are not proved.
    Where a witness testifies, in ah action of slander, that the defendant charged the plaintiff with a certain offence, the defendant cannot be permitted to prove by the witness, that he (the witness) had before told the defendant that the plaintiff was guilty of that offence.
    This was an action of slander. The declaration contained three counts, in each of which it was alleged that the defendant, in the presence and hearing of divers citizens of this Commonwealth, falsely and maliciously charged the plaintiff with the crime of fornication. In the first count, the charge was alleged to have been made on the 1st of November 1840 ; in the second, on the 3d, and in the third on the 6th of said November.
    Upon motion of the defendant, the court of common pleas, in which the action was commenced, ordered the plaintiff to file a specification or bill of particulars. The plaintiff- thereupon filed the following: “ The plaintiff charges the defendant with saying, substantially, that he meant to clear her out from captain Brewer’s house; she had too much company there, and horses were kept on the barn floor in the night; she was a strumpet or a whore ; or he thought she was a strumpet or whore. At another time, he spoke of her as being a whore, or that her house or place of residence was not a fit place for a young man to visit. At another time, he alleged that a man had been with her, and had had sexual intercourse with her; and that she kept as bad a house as was ever kept on Boston Hill.” The defendant objected that the specification did not support the declaration; but the objection was overruled.
    The defendant gave notice to the plaintiff, that he should hold her to rely upon the three first conversations of the defendant pwved, which should impute unchastity to the plaintiff, as the substantive ground of her action.
    At the trial in the court of common pleas, before Cummins, J., the first witness, called by the plaintiff, was Moses Wood, who. upon being questioned as to having heard the defendant speak of the plaintiff’s character, proceeded to state a conversation between himself and the defendant, in which the defendant spoke of the plaintiff as a whore. The plaintiff’s counsel then stated that they did not rely upon that conversation to prove either of the counts ; but that they relied upon the testimony of the witness to another conversation of the defendant, at a different time, with the wife of the witness, and they imme diately called the attention of the witness to the latter conver sation, by a proper question. The defendant objected, that as the witness had already testified to a conversation which tended to support one of the counts, the plaintiff could not thus waive the first conversation, and rely upon the second. This objection was overruled; and the witness testified as follows: “ Munsell came again to my house. My wife asked him, what kind of a woman have you down there keeping house? He answered, I can tell you, she is a whore, and keeps a whore-house ; and if captain Brewer is a mind to keep such a house as that, I wish he would come and take care of it.”
    While this witness was under examination by the defendant’s counsel, the defendant offered to prove by him, that a short time before the above conversation between the defendant and the wife of the witness, the witness had told the defendant, that the plaintiff was a whore, or a bad character. The judge refused to allow such proof to be given.
    Jeremiah Miller testified that the defendant, in speaking of the plaintiff, said he meant to clear her out from captain Brewer’s house ; he would not have her there, for she had too much company; there were horses kept there nights, on the barn floor, and he would not have it; and he believed she was as big a strumpet as there was about.
    Sylvester Miller testified, that at the time spoken of by J. Miller, the last witness, he heard the defendant talk about the plaintiff. He said there were horses kept there nights, in the barn, and he intended to clear them out. He said she was a strumpet, and he thought it was a bad house; there were young people about there nights.
    
      Lyman Frost testified thus: “ I heard Munsell say Miss Clark was a whore. What began it was, he wanted to know if I had been there lately. I told him I had not. He said he thought it would be a good plan for me not to go. He called her a whore, and said she kept a very bad house.”
    The plaintiff relied upon the testimony of Moses Wood to sustain the first count; the testimony of Jeremiah Miller and Sylvester Miller to sustain the second; and the testimony of Lyman Frost to sustain the third. And she offered much testimony as to the relation of the parties, the circumstances under which the words were spoken, and as to the declarations of the defendant, both in aggravation of damages, and to show that by the use of the words, testified to, the defendant intended to impute the crime of fornication.
    The defendant objected, that in point of law, the proof did not support the declaration and specification. But the court held the evidence to be competent, and left it to the jury to decide, upon all the evidence in the case, whether, by the use of the words, the defendant intended to impute the crime of fornication. The jury returned a verdict for the plaintiff, and the defendant alleged exceptions to the aforesaid rulings.
    
      H. Morris, for the defendant.
    1. The specification filed by the plaintiff does not support her declaration. To do this, the words specified must import substantially the charge laid in the counts. Olmsted v. Miller, 1 Wend. 506. Fox v. Vanderbeck, 5 Cow. 513. Each count in the plaintiff’s declaration alleges that the defendant charged her with the crime of fornication All the specifications, except the third, which was not sustained by the proof, allege that the defendant called the plaintiff a strumpet or a whore. This is a much broader charge than that which is laid in the declaration. It implies repeated acts of illicit intercourse, while the charge in the declaration implies only a single act. In Smith v. Wyman, 4 Shepley, 16, the court say, it is not every act of illicit intercourse on the part of a female, whicn will authorize individuals to call her a whore. The latter term imports prostitution for hire. And the testimony of a female witness may be impeached by proof that she is a strumpet; Commonwealth v. Murphy, 14 Mass. 387 ; but not by proof of an act of fornication. Commonwealth v. Moore, 3 Pick 194. The plaintiff should not be permitted to enlarge the charge in the declaration, by means of a specification. A defendant might justify a charge of fornication, by proving it, and yet be unable to prove the plaintiff to be a strumpet. After a plaintiff has filed a specification, by order of court, on the defendant’s motion, can he disregard it, and justify the charge in the declaration ?
    2. The plaintiff should have been held to the three first conversations of the defendant, which he introduced, imputing unchastity to the plaintiff. It was not competent for her to prove any number of such conversations, and then select those which she might judge to be best adapted to support her action, and apply the others in proof of express malice, or in aggravation of damages. 2 Stark. Ev. 870, note (1.) Thompson v. Bernard, 2 Campb. 48, & note. Otherwise, a defendant would be left in doubt what words were relied upon as the substantive grounds of action, and what in proof of malice or in aggravation. Thus he would be precluded from showing, in defence, the truth of the words relied upon in proof of malice. But this he has a right to do. Bul. N. P. 10. Warne v. Chadwell, 2 Stark. R. 457. 2 Saund. PI. and Ev. 808. 2 Stark. Ev. 870. See also Stante v. Pricket, 1 Campb. 473. Hume v. Oldacre, 1 Stark. R. 351. Pierce v. Pickens, 16 Mass. 470.
    3. The testimony of Moses Wood, that he had told the defendant, a short time before the declaration made by the defendant, that the plaintiff was a strumpet, should not have been excluded. This was not the common case of an.offer to prove that the slander had been previously communicated to the defendant by a third person. In the present case, the author of the slander was the .person in whose presence the defendant repeated it, and by whom the plaintiff proved it. The reason of the rule therefore fails, which has induced courts to exc.ude evidence that a defendant, who utters slander, was not the originator of it; especially, as the defendant did not volunteer the charge, but made it in answer to a question from Wood’s wife; so that the testimony ought to have been received, at least in answer to the case of express malice set up by the plaintiff. Jackson v. Stetson, 15 Mass. 50. In Wilson v. Apple, 3 Ham. 270, the court say that, for the purpose of showing malice, the plaintiff may prove the speaking of words not charged, if they be not actionable ; and, with a view of extenuating malice, the defendant may prove, under the general issue, any circumstances, connected with the transaction, tending to show that he had probable ground for believing the truth of the words. Again ; if the defendant, in answer to Mrs. Wood’s question, had said that the plaintiff “ is a strumpet; so your husband has just told me; ” he could have justified on the ground that he named his informant at the time. And why should not the presence of Wood, at the time, be equivalent to his being named ? It might have been shown, perhaps, if the court had permitted the inquiry to proceed, that Mrs. Wood was present when her husband communicated the slander to the defendant, and that the defendant did nothing more than repeat to Wood and his wife what Wood had just stated to him.
    4. The proof did not support the specification, which must be taken as stating the very words uttered, or at least the material words. Otherwise, it is no specification at all. A bill of particulars must give as much information as a special declaration Babcock v. Thompson, 3 Pick. 446. A special declaration in slander must give the material words. The plaintiff, then, was bound to prove the material and actionable words contained in her specification. Proof of equivalent words was not sufficient. Whiting v. Smith, 13 Pick. 371. Olmsted v. Miller, 1 Wend. 506. The matter stated in the latter part of the specification was not contained in the testimony of either of the witnesses. The count, therefore, to which that specification applies, is wholly unsupported.
    
      11. A. Chapman & Ashman, for the plaintiff.
    There is no variance between the specification and the declaration. The bill of particulars became a part of the declaration; Howe’s Pract. 415; and is as if the plaintiff had declared specially, that the defendant said the plaintiff was a strumpet, meaning that she had been guilty of fornication. The defendant’s counsel admits that the words used in the specification imply repeated acts of fornication. It follows, then, that in using those words, the de fendant intended to charge the plaintiff with that crime. It may be that he meant to charge her with habitual commission of this offence for hire. But if the less is included in the greater, he at least accused her of the less. Stark, on Slander, (1st Amer. ed.) 50. If no specification had been ordered, proof of the words which were specified would have supported the declaration. How, then, can it be a variance to specify words that might thus have been proved? The cases cited from 1 Wend, and 5 Cow. relate to a variance between words laid in a specia. declaration, and words proved, and do not apply to the point here raised by the exception. The jury have found that the defendant meant, by the words used, to charge the plaintiff with fornication ; and it is said, in Stark, on Slander, ubi sup., that “ there are several cases wherein it has been adjudged that where words may be taken in a double sense, the court, after a verdict, will construe them in that sense which will support the verdict.”
    2. In regard to the exception, that Moses Wood was permitted to give the testimony which he was called to give, after he had stated another conversation of the defendant; the court will perceive by the exceptions, that the conversation, to which he first testified, was not that which he was called upon to prove, or was expected to state. As soon as the unexpected testimony was given, the court and the witness were informed that this was not what was relied upon, and his attention was called to the fact designed to be proved. It was not the fault of the plaintiff’s counsel, that the improper statement was made by the witness. To have shut out his testimony, because he had first said something not intended to be proved, would have been inconsistent with fairness and equity. This was a matter within the discretion of the judge, and is not a subject of exception. The notice given by the defendant, that he should hold the plaintiff to rely upon the first conversations proved, could not affect the rights of the plaintiff, nor limit the discretion of the judge. And admitting that in slander, or assault and battery. the plaintiff, after attempting to support his declaration by proof of one transaction, cannot abandon it, and prove a different transaction; yet that is not the case at bar, and the authorities cited by the defendant are not applicable.
    3. The defendant was rightly refused permission to prove what Moses Wood had previously told him concerning the plaintiff. The proof, if admitted, would not have shown that the plaintiff was guilty of the offence imputed to her; nor that the words used by the defendant were private and confidential; nor would it have rebutted the presumption of malice. Bod well v. Swan, 3 Pick. 376.
    4. The specification did not profess to set out the words of the defendant, nor the substance of them, but merely the import of the defendant’s conversations. One of the advantages of a general count in slander is, that a plaintiff avoids the risk of misstating words. And when the specification was called for and ordered, in this case, the plaintiff’s counsel supposed its object would be obtained by stating substantially, though not formally, the import of what the defendant had said concerning the plaintiff. If it was insufficient, it should have been objected to on the ground of insufficiency, and the court should have been asked to require a statement of the defendant’s words, or the substance of them.
    It is now objected, that the words proved do not support the third specification. But the rule laid down in Stark, on Slander, 43, is, that “ if it appear from the words themselves, or from circumstances, that they are capable of conveying the particular meaning attributed to them by the plaintiff, it will, after verdict for the plaintiff, be taken for granted that the words were in fact used to convey such meaning; for that is a matter which the jury alone can decide.”
    But it is not important to the plaintiff to show that the whole of the third specification was proved. She was not bound, in order to obtain or to hold her verdict, to prove every particular specified. There was unquestionable proof of enough of the matter specified to support the action.
    
      Wells, in reply.
    1. The plaintiff’s counsel have stated the proper test by which the validity of the first exception is to be tried; viz. would proof of the words of the specification support the counts in the declaration, if no specification had been filed ? We say it would not; because the declaration contains no sufficient notice that such words would be relied on in support of the several charges in the declaration. The object of a declaration is to apprize the defendant, with as much distinctness as can reasonably be required, of the precise nature of the charge to which he is called to answer; and he is bound to prepare himself to meet this charge, and nothing else. Suppose the charge in the declaration had been, that the defendant charged the plaintiff with having committed an assault and battery. Could the plaintiff support such a declaration by proving that the defendant had said that he had committed a rape or murder ? Yet rape and murder imply and include an assault and battery.
    A bill of particulars, it is said, becomes a part of the declaration. This is true. But it does not become such as an addition to the original counts, but as a substitution for the more general allegations in those counts. The very question, under this first exception, is, whether the specification is a more precise statement of the same charge.
    2. It is a settled rule, which is binding on the court, and not a matter of judicial discretion, that in all actions where the plaintiff has begun to prove his case, by giving evidence as to one transaction, he shall not, upon finding that his evidence falls short, abandon that transaction, and prove, under the same count, a distinct cause of action.
    3. The case of Bodwell v. Swan, 3 Pick. 376, is strongly in favor of the plaintiff on this third exception. It is submitted, however, that a distinction may be made between that case and this. In the case at bar, the defendant’s conversa-tior with Mrs. Wood might almost be justifiable on the ground of its being private and confidential. And it would seem that it cannot be the policy of the law, that for every inquiry made or opinion expressed, at the domestic fireside, parties are to be sued for slander.
    4 Under this exception, the question is, whether the testi mony supported the specification. The defendant objected, that it did not. The court overruled the objection, and left to the jury simply the question, whether the defendant, by the words used, meant to impute to the plaintiff the crime of fornication. The question, whether the words used by the several wit-. nesses imported the several specifications, was not left to the jury.
    If the specification is to be taken as a part of the declaration, and the question, on this fourth exception, is to be treated as if this were a special declaration, then it will not bear an argument. According to the strict rules by which a plaintiff, in an action of slander, is required to prove the words as laid, it cannot be pretended that the testimony given will stand the test.
    How far the case is varied by putting the statement of the charge into a specification, rather than into the declaration, is a question of comparative novelty. The general rule, however, seems to have been settled in Babcock v. Thompson, 3 Pick. 446. Unless the plaintiff, in an action of slander, is required to state a conversation of the defendant with such particularity as to distinguish it from every other conversation, and is confined, in his proof, to the conversation stated, the defendant will never be enabled to know what he is called to meet, nor how to prepare himself with all the evidence of denial, justification or explanation, which he might be able to produce.
   Dewet, J.

This case comes before us upon exceptions taken to the ruling of the court of common pleas, upon various points raised in the trial before that court.

1. It was contended that the specification or bill of particulars, filed by the plaintiff, did not sustain the case stated in the declaration. The declaration alleges that the defendant falsely and maliciously charged the plaintiff with the crime of fornication. This charge is set forth in three distinct general counts, charging the same words to have been spoken on three different occasions. The defendant asked for a bill of particulars, which was granted. It is within the power of the court to order such bill of particulars, or specification of the grounds of the plaintiff’s action, in an action of slander; and to some purposes, and on some occasions, such bill of particulars may be proper and useful in such an action; but it must be quite obvious, that in cases like the present, bills of particulars are less easily given, and less capable of being reduced to the nature of precise information, than in actions of assumpsit on contracts. No objection, however, is urged against the authority of the court to order such bill of particulars; and the only inquiry is, whether the order was substantially complied with.

Three specifications are filed by the plaintiff, corresponding, in their number, with the counts in the declaration. The first two specifications allege that the plaintiff complains of the defendant for falsely and maliciously declaring that she was a whore; and the objection taken is, that the charge in the specification is much broader than that embraced in the declaration; the latter setting forth only that the defendant charged the plaintiff with the crime of fornication. Be it so. Still, if the words alleged in the specification included the charge of fornication, when the defendant is shown, by the evidence, to have spoken the words contained in the specification, he is also shown to have made the charge set forth in the declaration. The fact, that the defendant used words importing a higher grade of offence, constitutes no sufficient objection, on the ground of variance, if the words used do in fact necessarily impute to the plaintiff the offence charged in the declaration; unless the case be one where, from the nature of the declaration, the precise and not equivalent words must be proved. Such strictness in excluding, as incompetent, all evidence that may tend to show a greater offence than the one charged, is not allowed, even in criminal proceedings, where much less latitude is usually allowed, in the admission of evidence, than in civil cases. Under a charge of larceny, for instance, clearly it would be no objection to the competency of the evidence, that it proved that the defendant had committed a burglary as well as a larceny. In criminal cases, too, the evidence is competent, if it fails to prove the aggravated charge contained in the indictment, but does prove a substantive offence, which is embraced in the greater offence set forth in the indictment. The true question, as it seems to us, is not whether the charge in the declaration corresponds in all respects with the ^charge contained in the specification, but whether the charge contained in the specification necessarily includes that stated in the declaration, so that if the former be proved, the fact charged in the declaration must also be proved. If it be so, then there is no ground for the objection of a discrepancy between the specification and the declaration; and if the former has been sustained upon competent evidence, and under proper instructions to the jury, the declaration is also well sustained, and judgment should be entered upon the verdict, if there be no sufficient grounds for sustaining the other exceptions taken in the case

2. The next objection arises upon the ruling of the court upon the effect to be given to the testimony of Moses Wood, narrating certain declarations of the defendant, having a bearing, more or less direct, upon the matter set forth in the declaration, but which was, at the suggestion of the plaintiff’s counsel, set aside as unadvisedly stated by the witness, and undesignedly introduced into the case, so far as the plaintiff had any agency therein, and therefore not to be treated as evidence offered to support either count in the declaration. The defendant objects to this, and insists .that this testimony shall be applied to some one of the counts. He relies upon the rule, that the plaintiff having introduced evidence of some particular act, to support the charge set forth in one of her counts, and having thus designated her cause of action, and pointed to the acts of the defendant upon which she founded her action, by calling witnesses thereto, she shall not be allowed subsequently to introduce evidence of another and distinct transaction, to sustain the same count, upon discovering that the ground first assumed by her has failed, either in the sufficiency of the proof offered by her, or by the controlling evidence of the defendant. Of the existence of such a rule as is suggested, there can be no doubt; but it is one to be cautiously applied, and not to be used to defeat the just rights of a party, arising from a mere mistake or inadvertence in permitting testimony to be given, of the existence of which the party might have been ignorant, or, if conusant of wmch, he might have intended should not be introduced into the case, he having other evidence of a more decided character, and more directly applicable to his case. Under such circumstances, all that can be required is reasonable diligence, on the part of the counsel, to prevent such testimony from being introduced, or, if it is introduced without their assent, at once to disavow it as evidence upon which they rely to sustain their action. We think the facts here stated do not show a proper case for the application of such a rule as has been stated; and that it was open to the plaintiff to proceed to prove a distinct conversation by the witness, as the ground upon which she would rest this part of her case, without being restricted to the time or words first mentioned by the witness in giving that part of his testimony which the counsel for the plaintiff disclaimed. Nor do we perceive that the previous notice given by the defendant, that he should insist upon this rule, varies the case, otherwise than it might require greater consideration, on the part of the plaintiff’s counsel, in the introduction of his testimony. It seems to us, therefore, that the exception taken on this point cannot be sustained.

3. It was further contended by the defendant, that no sufficient evidence was introduced to support the several specifications, or, (to use the precise language of the bill of exceptions, instead of the proposition of the counsel for the defendant,) that, in point of law, the proof did not support the declaration and the specification.” It is conceded that, under the view that was taken by the court of common pleas on the question of the competency of the specification, and which is now sanctioned by this court, the proof offered was fully sufficient to support the declaration ; but it is insisted that the specifications are so connected with the declaration, that they are to be proved with all the minuteness and accuracy which would be requisite in proving a special declaration setting forth the same matter. Is it true that the bill of particulars, in an action of slander, is to be treated in all respects like a special declaration, and is liable to be defeated by such slight variances between the allegata et probata as would avail in a special declaration? If so, the benefits which have been supposed to be secured by a general count, in an action of slander, and which are so strongly and fully set forth in the opinion of the court, in the case of Whiting v. Smith, 13 Pick. 364, would seem, after all, to be of little moment, as the defendant could, as a matter of course, avail himself of the right to demand a bill of particulars, and thereupon confine the plaintiff to the same strict proof of the precise words set forth in such bill, as would be required in proving a declaration specially setting forth the exact words alleged to have been spoken. As an argument in favor of our practice of admitting the plaintiff to declare generally in an action of slander, it was said by the court, in the case just cited, that the plaintiff might not know beforehand exactly what words he might be able to prove. Hence he may be under the necessity of declaring in a great many counts, and introducing many different sets of words, all substantially to meet his proof, and thus occasion great prolixity in the record, great inconvenience in the trial, and perhaps at last, with a just cause and plenary proof, be defeated by some verbal variance. This court having fully sanctioned the general count stating only the substance of the charge made by the defendant, and not the precise words, to avoid the inconveniences just stated, it can hardly be supposed that we should defeat the very object of this mode of declaring, by requiring a bill of particulars as minute as a special count upon the words, and to be held equally liable to all objections on account of minute variances between the same and the evidence produced to support it. Nor is it true that a variance between the case stated in the bill of particulars, and that shown by the evidence, is in all cases fatal to the plaintiff. Thus in the case of Green v. Clark, 2 Dowl. P. C. 18, it was held that, though the particulars of a demand vary from the evidence which the plaintiff produces, yet if the defendant appears and pleads, and is not misled by them, the variance is no ground of nonsuit. So in an action of debt for rent, in which the declaration did not set forth where the lands were situated, and the bill of particulars described them as situate in a wrong parish, yet it was held that the plaintiff might recover, unless the defendant could show not only that he might have been, but that he was, actually surprised. Davies v Edwards, 3 M. & S. 380.

In Harrison v. Wood, 8 Bing. 371, it was held that a particular is not to be construed so rigidly as to nonsuit a plaintiff for inaccuracies which could not mislead. This broad distinction seems to be taken, that variances in bills of particulars are not fatal unless the other party has been misled; while the defendant may take advantage of variances in proof offered to support special declarations, without showing that he has been misled in fact.

Without pursuing this point further, or attempting to prescribe any precise rule applicable to variances occurring in the proof offered to sustain a bill of particulars filed, where there is a general count in an action of slander, I will proceed to consider the state of the present case, upon the facts stated in the bill of exceptions and the accompanying report of the evidence. Treating these specifications as special counts, it would not be required of the plaintiff that he should prove the entire words set forth in the specifications. Only the material words must be proved as set forth. But as to unimportant or descriptive words, more latitude is allowed, and a failure to prove them is not fatal to the action. Whiting v. Smith, 13 Pick. 372. In Fox v. Vanderbeck, 5 Cow. 513, it was held that the plaintiff need not prove all the words stated on the record, but only so much of them as is sufficient to sustain his action. And in Purple v. Horton, 13 Wend. 9, it is said that in an action of slander, it is no cause of nonsuit that all the actionable words laid in the declaration are not proved; it is enough that some actionable words be proved.

The material charge of the first specification, in the present case, is the allegation that the defendant said of the plaintiff that “ she was a strumpet, or a whore.” The evidence of Sylvester Miller was to that point, and is obviously quite sufficient to authorize it to be submitted to a jury, as tending to.prove the first specification. The second specification was of like import, and was directly proved by the testimony of Moses Wood. The third specification, upon which this objection is particularly urged, charges the defendant with saying “ that a man had been with the plaintiff, and had had sexual intercourse with her, and that she kept as bad a house as was ever kept on Boston Hill.” The plaintiff relies on the testimony of Lyman Frost to sustain this specification. His testimony was thus: “ I heard the defendant say the plaintiff was a whore. What began it was, he wanted to know if I had been there lately. I told him I had not. He said he thought it would be a good plan for me not to go. He called her a whore, and said she kept a very bad house.”

Now it is very obvious that this evidence does not sustain the entire recital contained in the specification; but, as already stated, if they are unimportant or mere descriptive words, and a substantial cause of action is shown without them, the omission to prove all the words stated is not material. The main charge, the substantial allegation, is, that the plaintiff had had sexual intercourse with a man. The plaintiff contends that the evidence of Frost would well warrant the jury in finding that the defendant charged the plaintiff with having had sexual intercourse with the witness. Without particularly considering the force of this argument, and whether it be sound or not, it seems to us that the allegation that the defendant charged the plaintiff with having had sexual intercourse with a man, is directly supported by that part of the testimony of Frost, wherein he says that the defendant said “ that the plaintiff was a whore.” This charge, though broader than the specification, yet includes the charge contained in the specification, and is sufficient to establish the fact charged in the specification, upon the principles already stated.

4. The question presented by the remaining exception is, whether the presiding judge properly refused to allow the defendant to prove by Moses Wood, a witness introduced by the plaintiff, and who testified to a conversation between the defendant and said Wood’s wife, in which the defendant charged the plaintiff with being a whore, that a short time before this conversation testified to by the witness, he the said Wood had told the defendant that “ the plaintiff was a whore.” The defendant insists that he may introduce this evidence, for the purpose of showing the circumstances under which the slanderous words were uttered, or that he was not actuated by malice, but spoke the words under an honest misapprehension, and supposing them to be well founded. No authorities were cited by the defendant’s counsel, to sustain this position. Indeed, they seem to admit that the adjudicated cases in Massachusetts are against the introduction of the proposed evidence of Moses Wood in this matter. The rejection of this evidence, it may be remarked in the outset, does not seem to present a case where the party was prevented from showing the circumstances immediately connected with the speaking of the words; much less from showing that they were spoken in confidence, as in giving the character of a servant, or cases of like character. It is the naked proposition, that the defendant may prove that he had been told a similar story in relation to the plaintiff by one of the persons who were present when the defendant uttered the alleged slanderous words. It seems to us to be nothing beyond the naked case of one offering to show that, before uttering the slanderous words, he had been informed by an individual, that “ the plaintiff was a whore.” The defendant did not name his authority, at the time of the speaking of the words. Even had he done so, it is questionable how far that would constitute a defence. Earl of Northampton’s case, 12 Co. 153, has been often questioned; as in Dole v. Lyon, 10 Johns. 44, and Lewis v. Walter, 4 Barn. & Ald. 605. The doctrine of the latter case is, that it could only be done by showing such repetition to have been without malice, and upon a fair and justifiable occasion.

It has been sometimes supposed, that it was competent to show, in mitigation of damages, that before the speaking of the words complained of there was a report current in the neigh borhood, that the plaintiff had been guilty of the offence charged upon him by the defendant; and the cases of the Earl of Leicester v. Walter, 2 Campb. 251, and - v. Moor, 1 M. & S 284, have been relied upon to sustain that point. But this court has repeatedly refused to allow the introduction of such evidence. The cases last cited have been sometimes considered rather as having sanctioned this species of evidence as proper evidence of general reputation, and competent, by way of negativing the general good character of the plaintiff. Their language apparently goes somewhat further ; but however that may be, it was directly decided in the case of Alderman v. French, 1 Pick. 1, that evidence of a general report that the plaintiff was guilty of the crime imputed to him cannot be received in mitigation of damages. The same question again came before this court, in Bodwell v. Swan, 3 Pick. 376, where it was proposed to show that there were reports in circulation in the neighborhood, of a nature calculated to raise a belief in the mind of the defendant that what he had said was true; but this testimony was excluded; the court saying “ that character could not be protected, if the third or fourth circulator should be able to defend himself, or reduce the damages, because he only gave more publicity, and added the weight of his character, to calumny which had been originated by others.”

This subject is certainly not free from difficulty. Cases may occur, where hardship, and even injustice, may seem to result from the exclusion of such testimony. On the other hand, great abuses may be practised, and great evils may result from the adoption of a principle which, to some extent, would furnish facilities for escaping from the proper responsibility which every man assumes, who imputes a criminal offence to his neighbor. The decisions upon the competency of evidence of this nature are, to some extent, conflicting; but this court early indicated their inclination to exclude such evidence. In Wolcott v. Hall, 6 Mass. 514, evidence of this character was rejected, upon full consideration, and for much the same reasons as are stated in the latter cases of Alderman v. French, and Bodwell v. Swan. The question, however, in the case of Wolcott v. Hall, arose under a plea alleging, the truth of the words in justification; and the decision has been sometimes supposed to have been re< stricted to an issue tried upon pleadings of that nature; but the later cases, just referred to; were tried upon the general issue. The same doctrine seems to have been sanctioned by other highly respectable tribunals. In Matson v. Buck, 5 Cow. 499, it was held, that evidence of general reports that the plaintiff was guilty of the crime charged in the alleged slanderous words, was inadmissible. In Mapes v. Weeks, 4 Wend. 659, it was ruled, that evidence that the defendant had been told by a third person, that the plaintiff was guilty of the crime imputed to him, was inadmissible; Chief Justice Savage citing with approbation the case of Bodwell v. Swan, 3 Pick. 376, and adopting the views and the reasoning of the court in that case. The decision in Mapes v. Weeks was confirmed by the same court, in Gilman v. Lowell, 8 Wend. 581. The case of Inman v. Foster, 8 Wend. 602, presented the precise question which arises in the present case; the defendant there offering to prove that, previously to the speaking of the words, a third person had told him the story as he repeated it. This was rejected as incompetent evidence. In the State of Connecticut, where, upon the authority of the English cases already referred to, and found in 2 Campb. 251, and 1 M. & S. 284, the court have permitted evidence of general reports of the plaintiff being guilty of the imputed offence, under the questionable hypothesis, that it is admissible as evidence of the general character of the plaintiff; it is held that the defendant cannot, under the general issue, give in evidence, in mitigation of damages, that he was not the author of the story he propagated, but first heard the same from another person. Treat v. Browning, 4 Connect. 408.

We are satisfied that the ruling of the court of common pleas, upon this point, was correct; and the result is, that all the exceptions are overruled.

Judgment on the verdict  