
    Wills against Church.
    
      Saturday, May 29.
    In slander the declaration was entitled Dauphin county, to wit, and stated, that the defendant on the 5 th July, 1814, at the county of Cumberland, to wit, in the county of Dauphin,in certain discourse which he then and there had of and concerning the certain Isaac Wills, who before that time, was killed and murdered, he, the said defendant, then and there ut tered, &c. Held, good after verdict.
    In slander, the defendant cannot give evidence to prove, that he had been in the habit of relating the circumstances in a manner different, in some essential respects, from that charged in the declaration, though he has first proved, that such relation of the circumstances was true.
    In ERROR.
    ERROR to the Court of Common Pleas of Dauphin county, in an action brought by Robert Church the plaintiff below, against Alexander Wills. 7 °
    The declaration was as follows :—
    “ Dauphin county, ss.
    
    
      Alexander Wills, late of the county aforesaid, esquire, was 7 J 7 attached to answer Robert Church, of a plea of trespass on the case, &c.; and wheréupon, the said Robert, by George Disher, his attorney, complains, that whereas the said Robert is of good name, &c., nevertheless the said Alexander, not being ignorant, &c., but intending, &c., the 5th day of July, 1814, at Cumberland county, to wit, at the county of Dauphin ajoresatd, m a certain discourse which he, the said Alexan^er' an(l there had and held with divers other worthy of this Commonwealth} of and concerning the said Robert, and of and concerning the murder of a certain Isaac wills, the brother of the said Alexander, (who before that 7 7 v time, at Harrisburg, in the said county of Dauphin, Was killed and murdered,) he, the said Alexander, theti and there wickedly, falsely, and maliciously said, rehearsed, proclaimed, openly and loudly published, these false, feigned, scandalous, and opprobrious English words following, of the said Robert, in the presence and hearing of divers of the citizens of this Commonwealth, to wit, (he, the said Alexander, then and there being asked, by one of the aforesaid citizens, what suspicion he had to Mr. Church, the said Robert Church then and there meaning, and also meaning what grounds for suspicion, he, the said Alexander had, that he, the said Robert, had killed and murdered a certain Isaac Wills, aforesaid, the brother of the said Alexander,) he, the said Alexander, then and there replied, shaking his head, very strong indeed, (thereby meaning, that he, the said Alexander, believed, and had strong grounds for believing, that the said ..Robert Church was the murderer of his brother, the said Isaac Wills meaning,) for 1, (the said Alexander meaning,) found the very dirk in his trunk that done the fact, (meaning thereby, that he, the said Alexander, found in the trunk of the said Robert, the dirk with which he, the said Robert, had killed and murdered the said Isaac Wills, and again meaning, that he, the said Alexander, found in the trunk of the said Robert, the dirk with which he, the said Isaac Wills, was killed and murdered,) and a bloody shirt in the bottom of .his trunk, (meaning the trunk of him, the said Robert; and further meaning, that the said Alexander had found in the bottom of the trunk of the said Robert a bloody shirt, stained with the blood of said Isaac, at the time the said Isaac was .killed and murdered, and thereby meaning, that he, the said Robert, was the murderer of the said Isaac,) by means of speaking, publishing, and declaring, of which said false, feigned, scandalous, opprobrious, and wicked words afore.said, he, the said Robert, is much hurt, injured, vilified, degraded, and damnified, &c.”
    This suit was brought on the 6th July, 1814, and on the trial, the plaintiff gave in evidence, that the defendant, between the 27th and 31st May, 1814, when requested to state the reasons he had for suspecting the plaintiff of having been concerned in the murder of Isaac Wills, on the 26th 
      April, 1814, stated, that the dirk that done the fact, and a bloody shirt, were found at the bottom of his trunk.
    The defendant gave in evidence, the deposition of John Foster, hereto annexed ; and offered to prove, that in reply to the same question put to the defendant by several persons at different times, between the 14th May, and the 31st May, IS 14, he said, (not in the hearing of the witnesses who testified as above stated,) that a dirk had been found in the trunk of the plaintiff, and that a bloody shirt had been found a few miles north of Harrisburg. To this evidence, the plaintiff objected; and the Court having rejected it, sealed a bill of exceptions.
    The deposition of John Foster was, that on Friday, the 13th May, 1814, he found concealed amongst briers near to a fence, on Mrs. Wilson’s farm, the two sleeves, collar, and part of the tail of a linen shirt, each piece of which was more or less bloody, especially the lower part of the shirt;— that the said shirt was very much mutilated and cut, apparently with a knife, as if,done for the purpose of preventing the same from being recognised or known ; — that the blood on the tail of said shirt, appeared as if it had been sprinkled on it, or had gushed against itthat parts of the shirt were not there; — and that it had lain out on the ground ever since, during the whole of the rainy weather ; — and that several other persons saw said pieces of the shirt, before the blood was washed out by the rain.
    
      Ellmaker and Irvine, for the plaintiff in error, contended,
    1. That the declaration was defective, neither the time nor place of uttering the words charged, being laid with certainty. Two places, and two times are mentioned. The words, then and there, refer to the murder of Isaac Wills.
    
    2. The evidence offered, went in some measure to contradict that given by the plaintiff’s witnesses. It likewise went in mitigation of damages, as it shewed that the words spoken, were not uttered maliciously; and that the plaintiff’s witnesses were mistaken as to them. The words offered to be proved, were spoken before suit brought, and about the same time as those proved by the plaintiff’s witnesses. 9 Johns. 45. 53.
    
      
      Fisher and Hopkins, contra.
    1. The declaration mentions both time and place: viz. the 5th July, 1814, at Cumberland, to wit, at the county of Dauphin. Even had there been an omission of them, as they are not material in this case, advantage could be taken of it only on demurrer: the defect is cured by verdict. Stat. 4 Anne, c. 16. 18 Eliz. c. 14. 16, and 17th Car. 2. c. 8. 4 Yeates, 423. 426.
    2. The plaintiff having proved the words laid in the declaration, the defendant offered to prove, that he had spoken differently, at a different time j which was making evidence for himself. Evidence may be given in mitigation of damages, of what has been told the party by other persons ; but not of what was said by the defendant himself.
   The opinion of the Court was delivered by

Gibson J.

The declaration charges, that the defendant below, on the 5th July, 1814, at the county of Cumberland, to wit, in the county of Dauphin, m a certain discourse which he then and there had, of, and concerning the plaintiff, and of, and concerning the murder of a certain Isaac Wills, who before that time, was killed and murdered, he, the said defendant, then atid there, uttered the words for which the suit was brought; and it is assigned for error, that neither the time nor place is laid with sufficient certainty. This is a principal objection. There is but one time certain stated ; and the words, “ then and there,” refer to it with convenient certainty, which is all that is requisite. It would be a strained construction, to say the speaking of the words should, by reference, be taken to have been at the time of the murder, which is indefinite, and was itself stated, relatively, as having happened before the colloquium in which the actionable words were uttered. We will not read a declaration so as to make it nonsense, when the arrangement and natural import of the words render it intelligible. This also applies to the alleged want of certainty in laying the place. The proper county is stated in the margin, and if it were necessary, we would intend the words “ then and there f referred to the margin. But although the words are stated to have been uttered in Cumberland county, it is laid with a scilicit, “■ to wit, at the county of Dauphin, ” and we will intend that Cumberland county is a place within the county of Dauphin. It was unnecessary to introduce another county into the declaration, to enable the plaintiff to give evidence of words spoken there,; but as the words are at the same time expressly laid as having been spoken in the proper county, it is well enough.

At the trial, the defendant offered to prove he had been in the habit of repeating the story in a manner, different in some essential respects, from the expressions charged in the declaration, first having proved, that the circumstances, related by him on those occasions, were true. It is impossible to doubt the propriety of the rejection of this evidence. It neither met, nor extenuated the charge. If he accused the plaintiff falsely, it could be of no moment that on other occasions he adhered to the truth. Nothing the defendant said at a different time, can be evidence in his own favour. The case of Coleman v. Southwick, is easily distinguished from the present. There it was held, a defendant might, in mitigation of damages, shew he believed, at the time of publishing, that the libellous matter was true ; that he made enquiries to ascertain the fact; and obtained information that led him into error. It is evident this could be admitted only on the ground of the fact of enquiry having been made, and not on account of any thing the defendant had said ; for his questions would be evidence only ta explain the answers, when taken in connection with them. There is a material difference between a party’s declaraions andhisacts. Here, we have nothing to distinguish the evidence from the naked declarations of a party offered in his own favour. There was nothing in them tending to impeach the accuracy of those who proved the words as laid ; for it does not necessarily follow, that a person who is in the habit of telling a story one way, may not sometimes repeat it in another. Nor is the circumstance of having at other times related the story truly, together with the circumstances on which the suspicions of the defendant rested, any evidence of want of malice, but the contrary; for it tends to shew the defendant knew the accusation, and the facts alleged in support of it, to be without foundation.

Judgment affirmed.  