Rice v. Cottrel , 5 R.I. 340 ( 1858 )

Had the declaration assigned a period of time as that, during which, by continuation, "on divers days and times," the slanderous words were uttered, as the first exception of the plaintiff seems to suppose that it does, it would, nevertheless, have been competent for the plaintiff, waiving his right to recover on a single count for repetitions of the slander, to prove one speaking of the words anterior to the first day laid, Gould on Pleading, ch. 3, §§ 94, 96; 1 Chitty on Pleading, 393, 394, and cases cited. If it be a case in which the laying with acontinuando is improper, and the defendant, instead of demurring specially for that cause, pleads to the action, the plaintiff may prove the uttering of the words on any one day prior to the date of his writ, as if he had not inserted the useless and improper words. Ib. In the case at bar, however, the uttering of the words is not laid with a continuando, nor are its repetitions assigned to a particular period of time between a day certain and the purchase or date of the plaintiff's writ; the declaration merely averring that the defendant uttered the slander "on the first day of November, A.D. 1856, and on divers other days andtimes before the purchase of the plaintiff's writ." This amounts to nothing more than the laying of a day certain for the slander, as a proper formal allegation of time, and days uncertain for therepetitions of the slanders; which, however informal, cannot hinder the plaintiff from proving, under the general issue, the speaking of the words by the defendant at any one time before the date of the writ. This exception must therefore be overruled.

The other exceptions are equally untenable. The currency of the slanderous report, following the utterance of it by the defendant, as well as the special injury done by it to the plaintiff in his profession, were, under the declaration, proper subjects of proof to the jury, to enable them to estimate the plaintiff's damages; and the connection, if any, between the words of the plaintiff and the currency of the injurious report, was a matter for the jury, and not for the court, to pass upon. So, too, the defendant might have proved, that he heard the slander from another person, and at the time named that person; which would not indeed justify the speaking, but would tend to mitigate damages, by repelling the notion of the defendant's being the malicious author of the report, and enabling the plaintiff to follow up and expose the falsehood, and punish the originator of it. Such partial defence must however be proved, as well as alleged, by the party who makes it; and it would be a dangerous novelty, to hold, that if a slanderer, in uttering his slander, named his author, it was to be taken for granted in his favor that what he said in this respect was true, unless indeed, as the last exception imports, the plaintiff was enabled, and by the testimony of the person named too, to prove the contrary. SeeBennett v. Bennett, 6 C. P. 588.

Exceptions overruled, and judgment ordered upon theverdict.