
    Kerschbaugher v. Slusser.
    Where slanderous words are uttered in a foreign language, the complaint should set out the words in that language, with a translation.
    If slanderous words are charged to have been spoken in the English language, there will be a variance if the proof show that they were spoken in another language. The code has not changed the rule.
    After the jury are sworn, and have heal'd a part of the evidence, a new issue should not be tendered without cause shown; and if the issues are permitted to be changed, the jury must be re-sworn.
    
      Monday, June 13.
    APPEAL from the Huntington Circuit Court.
   Hanna, J.

This was an action for slander. Three sets of words were laid in the complaint, as having been spoken by the defendant. One set laid in the German language, with an English translation. Two sets in the English language. General denial. After the plaintiff had closed his evidence to the jury, the defendant asked and obtained leave, over the objection of the plaintiff, to file an answer, setting up the statute of limitations.

The Court refused to give the following instruction asked by the plaintiff:

“ That under the present practice, no language can be recognized in the pleadings but the English; hence, it is unnecessary for the plaintiff in the case to allege the slanderous words to have been spoken in any other language than the English, although they might have been spoken in a different language.”

The jury found generally for the defendant, and also as follows, upon special points, to-wit:

“ Question 1. Did the defendant speak, of and concerning the plaintiff, the' following words in the German language, and if so when:—‘ Conrad could have stayed in my house longer, if he had not stolen corn out of my crib, but by his stealing corn he must leave ? ’

“ Answer. ‘ Yesin April, 1854.

“ Question 2. Did he speak the following words, and when:—‘ Conrad stole corn out of my crib, now he must leave my house?’

“ Answer—‘ Yes;’ time not proven.

“ Question 3. Did he speak the following words, and when:—‘ Plis fingers are too long, so long that they reached into my corn crib, and took my corn out of it?’

“Answer. ‘Yes;’time not proven.”

The speaking, in the answer to the first question alluded to, was, it will be observed, barred by the statute, if that was properly pleaded. And as to the sets of words in the other two special questions mentioned, there is nothing in the complaint showing, by averment or otherwise, that they were spoken in any language other than the English. It is, therefore, insisted that, as the publication of the slanderous words is found by the jury to have taken place, as in said sets of words charged, the general verdict would have been for the plaintiff, but for the refusal of the Court to give the instruction asked. The ruling of the Court was right. Where the words were uttered in a foreign language, the averment should be in accordance with the fact, setting forth the words in that language, together with a translation thereof. If they are alleged as having been spoken in the English language, it will be a variance if the proof is that they were spoken in a foreign language. 3 Phil. Ev. (10th ed.) p. 551. We do not think, as is insisted by the appellant, that our new system of procedure has changed the rule in that respect.

J. R. Slack, for the appellant.

L. P. Milligcm, for the appellee.

As to the next point, it is provided by our statute (2 R. S. p. 48, § 99), that “the Court may, at any time in its discretion, &c., direct, &c., any material allegation to • be inserted, &c., to conform the pleadings to the facts proved, when the amendment does not substantially change the claim or defense.”

It is insisted that, under the statute above referred to, the ruling of the Court in permitting the defendant to file the additional answer was proper. We have decided a very similar question heretofore, in the case of Kerstetter v. Raymond, 10 Ind. R. 199, in which it was held that after the jury was sworn, and had heard a part of the evidence, a new issue should not be tendered without cause shown, and then it would involve the necessity of re-swearing the jury to permit such change of the issues, for it would be, to some extent, a change of the questions to be tried.

Por Curiam.

The judgment is reversed with costs. Cause remanded, See.  