Keenholts v. Becker.

of his wife to attend to the domestic concerns of his household, is a pecuniary damage for which an action like this may be sustained, still it is by no means clear, upon the evidence in this case, that such a right of action was shown.

It cannot be pretended upon the evidence that any of the words spoken by the defendant were spoken in the hearing of Christopher Keenholts, or of the plaintiff's wife. The first, therefore, did not withhold his bounty in consequence of any thing he had personally heard the defendant say, nor was the wife of the plaintiff made sick or enfeebled by what the defendant had said to her or in her presence. She had heard stories, and Christopher Keenholts had heard of slanders by the defendant; but whether these stories and slanders were the English words proved to have been spoken by the defendant before suit brought, or were founded on these words, was by no means clearly shown by the evidence. The plaintiff was certainly bound to show the connection-as cause and effect--between these words and the consequential injuries alleged; and this should have been shown by such evidence as to justify the jury in finding the truth of the matters so averred in the declaration. The evidence as stated in the bill of exceptions, is in these respects exceedingly vague; but the objection may not have been distinctly taken on the trial, and therefore the evidence may not be fully stated. I advert to it as a material point in the case, and therefore one to be met and disposed of on another trial.

We need not now say how far, if at all, the case of Ward v. Weeks, (7 Bing. 211,) should be followed. That was an action of slander, and was finally disposed of on the ground of a variance between the special damages stated in the declaration and those offered to be proved on the trial. The declaration alleged that in consequence of the slanderous words spoken by the defendant, one John Bryer refused to trust the plaintiff. On the trial, the plaintiff offered to prove that the defendant spoke the words as alleged, although they were not so spoken in the presence or hearing of Bryer, but had been communicated to him "as the statement of the defendant," by one Bryce, who heard them uttered by the defendant, and that Bryer thereupon refused to

Keenholts v. Becker.

trust the plaintiff. This evidence was rejected by the judge, and the plaintiff was nonsuited. On a motion for a new trial, Chief Justice Tindal, after stating the case said; "the question, therefore is, whether the special damage, which is the gist of the action, has been proved as it is alleged, or whether there is a variance between the allegation and the proof." And the court held that as the words were not spoken to, or in the presence of Bryer, nor communicated to him by the direction of the defendant, but by the voluntary, unauthorized act of Bryce, who was present when the defendant spoke the words, the allegation of damage, as stated in the declaration, would not be sustained by the proof offered. "No effect whatever," it was observed, "followed from the first speaking of the words to Bryce: if hẹ had kept them to himself, Bryer would still have trusted the plaintiff. It was the repetition of them by Bryce to Bryer, which was the voluntary act of a free agent, over whom the defendant had no control, and for whose acts he is not answerable, that was the immediate cause of the plaintiff's damage."

Although this case was decided mainly on the ground of variance, it must be conceded that it gives countenance to the position, that under no circumstances, whatever form of pleading may be adopted, is the defendant liable for consequential damage arising from words spoken by himself, unless the person, by or through whose act or agency the damage arose, was present and heard the words as originally spoken by the defendant, or unless the words were communicated to such person, at the request or by the authority of the defendant himself. I must admit that I am not prepared to go to this extent. Where slanderous words are repeated innocently and without an intent to defame, as under some circumstances they may be, I do not see why the author of the slander should not be held liable for injuries resulting from it as thus repeated, as he would be if these injuries had arisen directly from the words as spoken by himself. A different rule should perhaps govern, where the repetition was itself slanderous, and the injurious consequences arose, in part at least, from the second slander. But this distinction is not material in the case now before the court, for it

Postley v. Mott.

does not appear how the slanderous words proved to have been spoken by the defendant before suit brought, were communicated to Christopher Keenholts or the plaintiff's wife, if indeed they were in any manner informed that such words had been uttered by the defendant. When these material facts are established, as they may be on another trial, it will be in time to pass upon the case of Ward v. Weeks, as an authority to be followed; but as the case in judgment is now circumstanced, no opinion in regard to that case is intended to be expressed.

New trial granted.

POSTLEY vs. MOTT.

It is not necessary, to warrant the amending of a postea so as to refer the verdict to the good counts of a declaration containing good and bad counts, that the evidence should be applicable exclusively to the good counts. It will be so amended, if the evidence was applicable as well to the good as to the bad counts. Where the judge certified a portion of the evidence, by which it appeared that testimony had been received which was only admissible under a bad count, the amendment was refused, though the judge had given a certificate that all the evidence was applicable to all the counts.

Where there was a general verdict upon a declaration having a bad count with others which were good, the court arrested the judgment, but allowed a venire de novo, upon the plaintiff's paying the costs of the trial and of the motion.

MOTION in arrest of judgment. The declaration contained six counts for verbal slander. Not guilty was pleaded, and the plaintiff had a verdict. The plaintiff's counsel, in opposing this motion, produced the certificate of the circuit judge, from which it appeared that no evidence was given upon the third and fifth counts of the declaration, and that the evidence applicable to the fourth count was withdrawn before the cause was submitted to the jury. He also certified that all the evidence given on behalf of the plaintiff would apply as well to the first and sixth counts as to the second. The judge also furnished a copy, certified by him, of the minutes of the testimony of one VOL. III.*

45

Postley v. Mott.

of the plaintiff's witnesses, who swore that he heard the defendant speak the alleged slanderous words set forth in the second count, which were essentially different from those laid in the other counts. The court, by the application of familiar princi ples, came to the conclusion that the second count was bad in substance; and so much only of the case is considered material to be reported as relates to the further questions arising upon the motion.

A. C. Bradley, for the defendant, insisted that the testimony certified was not applicable to the good counts.

N. Hill Jr., for the plaintiff, asked, in case the judgment should be arrested, that a venire de novo might be awarded, and cited Hopkins v. Beedle, (1 Caines, 347, 349 ;) Barnes' Notes, 478; Eddowes v. Hopkins, (Doug. 376;) Grant v. Astle, (id. 730.)

By the Court, JEWETT, J. The general rule is, that when one of several counts is bad, and a general verdict is rendered, the judgment will be arrested. (Gibbs v. Dewey, 5 Cowen, 503.) But if the record can be amended by the notes of the judge, so as to apply the verdict to the good counts, or if the defect be the result of a clerical mistake, or the like, in which case the court will amend it, the motion will be denied. (Stafford v. Green, 1 John. 505; Highland Turnpike Co. v. McKean, 11 id. 99; Cooper v. Bissell, 15 id. 318; Norris v. Durham, 9 Cowen, 151; Sayer v. Jewett, 12 Wend. 135; 2 R. S. 425, 7; The Union Turnpike Co. v. Jenkins, 1 Caines, 392; Hopkins v. Beedle, id. 347.)

The rule which prevails in the court of king's bench, in England, in regard to amending a verdict by the notes of the judge, differs from that by which this court is governed. There, if there was any evidence which applied to the bad counts, the verdict cannot be amended. Here, if the evidence applies to the good counts solely, or will properly apply to such counts, as well as to the others, or if the evidence did not particularly ap ply to the bad count, the verdict may be amended. In Eddowes

Postley v. Mott.

v. Hopkins, (Doug. 376,) Buller, J. said there was this distinction, that if there was only evidence at the trial upon such of the counts as were good and consistent, a general verdict might be altered from the notes of the judge, and entered only on those counts; but that, if there was any evidence which applied to the other bad or inconsistent counts, then the postea could not be amended, because it would be impossible for the judge to say on which of the counts the jury had found the damages, or how they apportioned them; that in such a case the only remedy was by awarding a venire de novo. In that case a new venire was awarded on payment of costs, including those of the motion in arrest of judgment. The rule which has been invariably acted upon in this court, will be found exemplified in the cases which have been referred to. In the case under consideration, if the plaintiff's evidence would properly apply as well to the first and sixth counts of the declaration, as to the second, as the general certificate states, it would be clear that the plaintiff would be entitled to leave to amend the verdict on payment of costs. But the circuit judge has, in another certificate, given a copy of the evidence of Solomon C. Riley, by which it appears that that evidence could only apply to the second count, which is bad. I do not see, in this state of the question, that the verdict can be amended, as it is impossible to say on which of the counts the jury have found the damages, or how they apportioned them. The judgment must therefore be arrested, unless the plaintiff will pay the costs of the circuit and of the motion in arrest. On the payment of those costs a venire de novo must issue.

Ordered accordingly.