
    Wilson vs. Mitchell.
    Appeal from Baltimore County Court. This was an action of slander, brought by Alexander Mitchell, the appellee. The declaration contained four counts. After stating that the appellee had been, and continued to be, a merchant, and commission merchant, and a faithful buyer and seller of merchandize, &c. the first count of the declaration charged David W'ilspn, the appellant, with speaking the following false and scandalous words of the appellee, “that he sold goods and merchandizes on commission for a higher sum than he returned an account of sales for; and that he cheated his employer, by putting part of the money for which the goods sold, in his (the appellee’s) pocket.” The second count, after slating that the appellee had in bis business aforesaid sold at Curacoa a certain number of boxes of soap, it being part of the outward bound cargo of the sloop Delight, for and on account of a certain Marcus MiCausland, and the said Alexander, for the sum of five dollars and an half for each ■box, and’had returned a true and faithful account of the sale to the said MiCausland, yet the appellant David, well knowing, &c. falsely spoke these words; “He (meaning the said Alexander,) sold the soap, (meaning the aforesaid boxes of soap,) at six dollars per box, but has returned an account of sales to Marcus 3D Causland, (meaning the said Marcus MiCausland,) on'ly for five dollars and an half.” The third count charged that the said David, oh the 10.th of April 1801, voluntarily made a certain written paper, purporting to be an affidavit, and purporting to be sworn to before a certain G G P, and caused certain false statements of and concerning the said Alexander, in his business aforesaid, to be written, &c. in the following English words, viz. “"‘Arid this deponent, (meaning thereby the said David,) further deposes and declares, that in the outward bound cargo of the sloop Delight, there was a certain quantity of American soap, which to his, (meaning the said David’s,) certain knowledge, was sold at Curacoa by the said Alexander Mitchell, (meaning the aforesaid Alexander,) at six dollars current money of the U. S. of America; any thing in the account of sales, (meaning the aforesaid account of sales returned to the said Marcus MiCausland,) rendered by the said Alexander Mitchell, (meaningsfiJi (he said Alexander.) to the contrary notwithstanding.” The fourth count charged, that the said David, out of his further malice and envy against the said Alexander before bad and conceived, speaking of the said Alexander in his business aforesaid, &c. charged him with the infamous and hurtful crime of fraud and deceit, and with selling the goods, &c, intrusted to his care, for more money than he returned i;n his account of sales, and with fraudulently and dishonestly keeping out of the monies for which the goods, ■ &c. were sold, more than be was entitled to for his commission, &c. The general issue was pleaded.
    
      Where, in thft return, of a com® mission issued to a foreign country to take testimony, the commissioner* oath, appear* 1» have bren takunf and is certified by the commissioner* to have been duly taken, it is suffi* eient, * without other proof, that the poisons adjnmisUTing the oath had authority for that purpose
    In slander, onq ofthe counts in the declaration charged the defendant with having; made a voluntary afílda* lit, and caused certain fake and malicious lies to be written therein, and among' others, that “there was a eertain quantity of American soap» which, to his certain knowledge was .sold at C’uracoá by the said A M,” ((he plaintiff,) “at six dollars current money,” and the affidavit, as offered ip evidence by the plaintiff, stated the same word*., except that the words “per box” were added after the words ‘’six dollars.”-^JÍcíd to be a fatal variance
    The plaintiff cannot under the act of IHCS, ch lá3, take a judgment on a count in his declaration) tipoz\ which he had given ao tmetonee although there í¿ a general yerdies -u feia iarouj
    
      1. The Plaintiff at the trial offered to read in evidence the testimony taken under a commission, issued at his in-Stance out of the county court, anddirected to Joseph Foulke- .and Henry Basden, of the Island of Curacoa. At the foot of the form of the oath, written on the commission, to be taken by the commissioners, were written the names of the commissioners, with their seals, and also these words— 34Swora before us the 28th of May 18Q6„
    
      Joseph Ingram
    
    
      P. I. Brian.»
    
    Then followed the interrogatories and answers of witnesses, and the whole authenticated by this certificate — ■ *•' We, the undersigned commissioners, do hereby certify to the honourable the judges of Baltimore county court, that after we had severally taken the oath directed in said commission, and administered the oath to Clement Davis, whom we appointed asour clerk in said commission directed, that we proceeded to examine the witnesses produced; and we do certify, that the annexed answers were made to the annexed interrogatories. As witness our hands and seals this 28th day of May 1806,
    
      Joseph Foulke, (L. S.)
    
    
      Henry Baselen, (L. 8.)»
    
    The defendants counsel objected to the admissibility of the testimony taken under this commission, on the ground that the commission did not appear to have been duly executed. But the court, \_Hieholson, Ch.J. and Mailings-worth, A. J.-1, overruled the objection, and permitted the commission and depositions to he read in evidence to the jury. The defendant excepted,
    2. The plaintiff, in support of the issue joined on the third count of his declaration, offered to read in evidence an affidavit, dated the 10th of April 1801, and proved to have been made before G. G. Presbury, o.ne of the justices of the peace for Baltimore county, by the defendant, (Wilson,) and to have been signed by Wilson. The only part necessary to be stated is this, viz. “And this deponent deposes and declares, that in the outward bound cargo of the sloop Delight, there was a certain quantity of American soap, which to his certain knowledge was sold at Curmou by the said Alexander Mitchell, at six dollars per box, current money of the U. S. of America, any tiling in the account of sales rendered by the said Alexander Mitchell to the contrary notwithstanding.” The defendant objected to the reading of this paper to the jury. But the court, f Nicholson, Ch. J, and Hdlingsworíh A. J.j overruled the objection. The defendant excepte;}; and the verdict and judgment being against [iim, lie appealed to this court,
    The cause was argued before Chase, Ch. J. Buchanan, Gantt, and Earrs, J. .
    
      Harper, for tbe Appellant.
    L The question under the first bill ot exceptions, arises on the ground that it does not appear that the commissioners, named in the commission, took the oath required, before some person legally authorised to administer it. The court will not presume that the persons, before whom the oath appears to have been taken, had proper authority. This is not similar to Bryden vs. Taylor, 2 Harr. & Johns. 396, nor De Sobry vs. Terrier, Ibid 191. In the former case, the court presumed tbgt the person, \yho acted as a justice, was such, because they were bound tq know who were the justices of the peace, records thereof being- in the court; but this court are not bound to know, nor have they the means of knowing, the officers of - a foreign country; they can only know legally, by having it certified tq them qnder the seal of such country. The court are bound to notice a pyblig seal, as in De Sobry vs. Terrier, such seals being evidence of themselves.
    2. The second bill of exceptions rests upon a variance between the third count in the declaration, and the affidavit offerpd to support it. In thaf count it is stated that the soap was sold at six dollars for the tvholq quantity j awl the affidavit stated it ta have been sold at six dollars per box. This is a substantial variance. But even if it was not, it would still b.e fatal; for where a written instrument is professed to be set out, it inpst be done word fur word.
    Hinder, for the Appellee.
    I. The objection to, the execution of the commission offered in evidence in the first bill of exceptions, has no force! If this commission is , defectively executed, there never was one legally executed. Here the coqnty court delegated'an authority to certain persons, who certify that they have performed \vhat the court directed. If this, fa not evidence, then the court are not to believe that the commissioners examined the witnesses; and they must have other proof that the depositions of the witnesses were properly taken. In the cases of Bryden vs. Taylor, and De Sobry vs. Terrier, the objections did not arise under commissions issued from the court.
    2. There must be a clerical mistake in the third count, in the omission of the words per box. The objection in the court below was not on this ground, but because the affidavit was not set out at'length. The great strictness'in setting out the wiiole instrument has been greatly relaxed j and where the substantial words are proved, it is now held to be sufficient. This is the case of a libel. Mere the reference is to the affidavit, and the defendant has notice ©f the words charged and relied on. It is so ín a libel, where the publication is referred to, and it may be known,
    3. There being a general verdict in this case, and there being other counts in the declaration, which are good, the action can be sustained, and the judgment may be entered on any one of the good counts, under the act of 1809, eh. 153.
   Chase, Ch. J.

The court could never permit the plaintiff to take a judgment on a count upon which he had given no evidence.

The court concur with the court below, in the opinion expressed in the first bill of exceptions, but dissent from, that in the second bill of exceptions.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED»  