
    Seth F. Nye versus William Otis.
    A general count in an action for defamation, as charging the plaintiff with stealing, is good.
    Where one said he would venture any thing the plaintiff had stolen the hook, the words, being proved to be spoken maliciously, were held to support a verdict for damages.
    Case for slanderous words, falsely and maliciously spoken of the plaintiff by the defendant on the first day of October, 1809, and at .divers other days and times. The words charged in the declaration were, “ He has stolen my powder-horn,” “ He has stolen my arithmetic,” and “ He has been unfaithful, and has, I believe, talcen money from my desk ” There was also a count for charging the plaintiff with the crime of stealing.
    
    Trial was had at the sittings after the last October term in this county, upon the general issue pleaded, before Sewall, J., when a general verdict was rendered for the plaintiff for eighty dollars damage.
    The deposition of one Crocker, admitted at the trial, was ob jected to by the defendant’s counsel, as irrelevant and incompetent to prove either of the sets of words, as alleged in either count of the plaintiff’s declaration. The objection more particularly made was for a supposed variance from the second set of words, as alleged in the declaration, #and as stated in the deposition ; Crocker testifying that, at a time when inquiry was making for the defendant’s book of arithmetic, he said, “ he would venture any thing Nye had stolen the hook.” — The rest of the evidence at the trial, although sufficient to prove evil speaking and malicious insinuations at other times, did not comport with either of the sets of words, as alleged. — One Fish, who was sworn as a witness for the plaintiff, testified that, 15 or 16 months before, he was present in the defendant’s office, when he, the defendant, wanted his book of arithmetic, and Crocker, the other witness, endeavored to find it, but could not; upon which the defendant said, “ he would venture upon it, that Nye had carried it away ; ” but the witness did not hear the defendant say that Nye had stolen the book. — The whole evidence was left to the jury, with a direction to find a verdict for the plaintiff, if they believed that the defendant had maliciously charged the plaintiff with the crime of stealing.
    The defendant moved for a new trial, for the misdirection of the judge; and, the action being continued nisi from this term, the motion was argued the following week at Plymouth.
    
    
      The solicitor-general,
    
    in support of the motion, contended, that though the words laid in the first count, with the innuendoes, were sufficient to support an action, yet the words proved were different as well in the manner as the sense. The words charged are direct and positive; while those proved import nothing more than a guess, a suspicion, or at most a presumption ; not importing malice in the speaker, which ought to be necessarily implied in the words or in the manner of speaking them. The sense as well as the manner of speaking are yet to be strictly in proof, notwithstanding the liberality in modern times applied to actions for words spoken. 
    
    There are three sets of words in the first count, part of which are capable of an innocent construction; and of those that might be thought otherwise, there was no evidence at * the trial as to part, yet a general verdict was given for the whole.
    
      The second count is clearly insufficient to support a judgment; yet the verdict, by the direction of the judge, was rendered on this count also.
    
      Thomas and Sproat for the plaintiff.
    All the modem authorities are, that if the words proved agree substantially with those laid, it is sufficient. In the case of Webb vs. Poor, 
       “ I make no doubt to prove,” &c., was held to be tantamount to a direct charge of the crime, and to be actionable. The words proved in the present case are equally direct and strong.
    The second count, which was added ex majori cautela, lest the evidence should not precisely comport with the words as laid in the first count, though in fact they did, is supported by many modern precedents, and the mode of declaring is sanctioned by Lord Hard-wick. 
      
    
    
      
      
        Esp Dig. 521
    
    
      
      
        Cro. Eliz. 569.
    
    
      
      
        Cases Temp. Hard. 305, Nelson vs. Dixie
      
    
   The action stood further continued nisi; and afterwards, at Taun •.ton, the opinion of the Court was pronounced as follows, by

Parker, J.

In the declaration there are two counts — one charging the defendant with having spoken certain defamatory words, specially set forth; the other charging him generally with having maliciously accused the plaintiff of the crime of stealing.

It is doubtful whether some of the words charged in the first count are actionable, viz., “ He has been unfaithful, and, I believe, has taken money from my desk-” Others are, without doubt, actionable, as, “ He has stolen my powder-horn,” “ He has stolen my arithmetic.” The latter, at least, are actionable, with the innuendo to explain them, which is found in the declaration.

The evidence, upon which the jury founded their verdict, applied to the second set of words charged in the first count; and there was no evidence to support either of the other charges in that count. The words, as proved, were, “ he would venture any thing Nye had stolen the book.” Another witness, present at the same conversation, testified *to different words, viz., that the defendant said, he would venture Nye had carried away his book.” These words would not be actionable without some colloquium, showing that by carrying aivay was clearly intended stealing. But it must be presumed that the jury believed the first witness; and they had good reason, as his testimony was given recently after the conversation, and that of the latter more than a year subsequent to it.

General damages were assessed by the jury; and a new trial is moved for, because the words proved were different from the words laid in the count; and according to the rule, that where the words are particularly set forth, they must be proved as laid, this evidence was not sufficient to support the declaration, and a new trial ought to be granted.

But it is contended, that, the words proved being actionable, and the second count having alleged in substance that the defendant charged the plaintiff with the crime of stealing, a new trial ought not to be granted, but judgment entered, because both the counts are good, and the evidence sufficiently maintains the second. This position is true, provided the second count be sufficient, in law, of itself to support an action of slander.

There seems to be no reason why such a count should not be good, if a plaintiff chooses to rely on such a general statement of his case. It certainly is not prejudicial to the defendant; for if he should attempt to justify, instead of being held to.prove that the plaintiff has committed the particular theft, with which he may by the words have charged him, he will sufficiently establish his defence by pleading and proving any larceny, committed at any time by the pkintiff.

And the practice seems to have been conformable to this principle ; for ' the books furnish many precedents of declarations in slander of a general nature, or where the substance of the words, and not the words themselves, is laid in the count.

In a very good book of practice, called Morgan’s Vade Mecam, it is said to be customary, where there is the least * doubt as to proving the identical words, to add a gen-oral count, as that the defendant charged the plaintiff with the crime of, &c. Now, if such count were bad, no judgment could have been rendered on any counts joined with it, where the damages were general. It must therefore be presumed that such a form would long since have been rejected from the precedents, if any legal objections lay to it.

In the action of Nelson vs. Dixie, which was cited at the bar, Lord Hardwick said, in an action for words, you may either lay the particular words spoken, or may set out the substance of them ; and if the substance, — as that the defendant charged the plaintiff with such or such a crime, — it is sufficient to prove the substance of the words ; and he says there are precedents of the sort in Rastell’s entries, and the substance is laid in Latin ; but where the very words are laid, they must be proved as laid. We think this, though a case at nisi prius only ; yet, as it was decided by a very eminent judge, and seems to be acquiesced in, and is introduced into Comyn’s Digest and other respectable compendiums, to be sufficient authority for us to support the second count, especially as there can be no inconvenience in this general form of declaring.

It is further objected that the words, as proved, did not amount to a direct and positive charge of crime, and therefore would not support any count; the words being I will venture he has stolen, &c.

There are many cases where words spoken hypothetically are held to be actionable; and if they were not, it would be easy for the defamer, by cunningly adopting this form of expression, to ruin reputations with impunity. This must be always a subject for the consideration of the jury; if they believe the words to have been maliciously spoken, and with intent to convey a charge of crime, they are bound to give damages, however artful the contrivance may have been to spread scandal, without exposing the author to punishment. Judgment must be entered on the verdict. 
      
       [In Jackson vs. Stetson, (15 Mass. Rep. 52,) it is said of Morgan, that u a proposition, in any degree questionable in its nature, ought, certainly, to be supported by some more respectable authority.” Morgan quotes jYelson vs. Dixie, as his authority which contains a dictum at nisi prius of no weight. — Ed.]
     
      
       [According to the best authorities, this general form of pleading is bad. In Cook vs. Cox, (3 M. & S. 116,) Lord Ellenborovgh said, “ The words supposed to be used by Lord Hardioicke, in Nelson vs. Dixie, (Cas. Temp. Hardw. 305,) were merely thrown out at nisi prius, and not material to the point ruled by him in that cause ; and they are evidently founded on a mistake, as there are no such precedents in Rastell as he supposed ; ” and it is now well settled, that the libel, or slander, must be set forth in hac verba. Lord Ellenborough said, in the case before referred to, “ Unless the very words are set out, by which the charge is conveyed, it is almost entirely impossible to plead a recovery in one action, in bar of a subsequent action, for the same cause. Identity may be predicated with certainty of words, but not of the effect of them, as produced upon the mind of a hearer.” And in Gustole vs. Mathers, (1 M. & W. 495,) Lord Abinger said, “ If it were sufficient to state merely the effect of the words, any person would be at liberty to swear as to the effect of the words, without stating any precise words; and even if the witness did state precise words, the jury would have to judge of their legal effect; whereas that is generally to be decided by the court. It is not expedient to blend questions of law and fact together; it ought, therefore, to appear on the face of the declaration, by the words or signs themselves, that they were sufficient to support such innuendoes or averments, as may be necessary to apply to the subject, that they may bear the interpretation put upon them, and present the injury which is charged to have resulted from them.” And see Wrights vs. Clements, 3 B. & A. 503. — Wood vs. Brown, 6 Taunt. 169. — Flint vs. Pike, 4 B. & Cr. 473. — Newton vs. Stubbs, 3 Mad. 71. — Rex vs. Bear, 3 Salk. 417. — Stark, Sland. 362—368. — Sed vide Pond. vs. Hartwell, 17 Pick. 269. — Allen vs. Perkins, 17 Pick. 369. — Whiting vs. Smith, 13 Pick. 364. — Ed.]
     