Bradshaw v. Perdue

12 Ga. 510 | Ga. | 1853

By the Court.

Warner, J.

delivering the opinion.'

pL.] This was an action of slander, charging the defendant with having uttered and published certain slanderous words of and concerning the plaintiff. The suit was instituted on the 13th February, 1849. The original declaration contained two counts, in one of which the slanderous words are alleged to have been spoken on the 5th day of September, 1848, in a conversation with Richard Sharber, in the presence and hearing of divers good citizens of this State.

In the other count, the words are alleged to have been spoken and published on the same day, in the presence and bearing of John Monk, and divers other good citizens of this State. On the 4th day of September, 1850, the plaintiff amended his declaration, by alleging, that the defendant spoke and published substantially the same words as charged in the original counts, and on the same day as therein, charged, in the presence •and hearing of good and respectable citizens of said County, without naming any particular individual.

The defendant demurred to each of the counts in the plaintiff’s declaration, for want of cerlainty which demurrer was overruled by the Court: whereupon, the defendant excepted, and now assigns the same for error.

The objection to both counts in the original declaration is, that the words are alleged to have been spoken and published in the presence of Sharber and Monk, and divers other good citizens of this State, without stating their names. Words spoken, may be proved by any person who heard them, though they are alleged to have been spoken in the hearing of A. B. and others. 2 Greenleaf's Ev. §414. Butter's N. P. 6. 2 Saunders' Pleading and Ev. 795. The demurrer to the two counts contained in the original declaration was properly overruled. Conceding the demurrer was well taken to the amended count, for want of sufficient certainty, the cause was properly submitted to the Jury on the two oiiginal counts. Although the words are alleged to have been spoken in the presence and hearing of Sharber and Monk, yet, it was competent, as we have shown, to prove the speaking of the slanderous words by any other person who heard them, within the time prescribed by the Statute of Limitations. One of the plaintiff’s witnesses, (Everingham) proves the speaking and publishing of the words substantially as alleged in the declaration by the defendant, on three several occasions. Once in the spring of 1848, and again about the 15th August of the same year, or a week later than the 15th of August, and once atter the suit was commenced. There was no objection made at the time the witness testified, as appears from the record, to the last conversation with the defendant after the commencement of the suit.. Independent of the amended count, there were two good counts in the declaration, and the slanderous words alleged therein, were proved to have been spoken by the defendant, within the period of six months from the time of the commencement of the action.

[2.] There being two good counts in the declaration, and the speaking the slanderous words as alleged therein, by the defendant, having been substantially proved by a witness who heard them, within the time prescribed by the Statute of Limitations, the intendment of the law is, that the Jury found their verdict on the good counts, and not on the defective amended count. The motion for a new trial was therefore properly overruled.

Let the judgment of the Court below be affirmed.