5 Cow. 513 | N.Y. Sup. Ct. | 1826
The words proved are actionable. They are calculated to convey to the mind of an ordinary hearer, the imputation upon the plaintiff of the crime of perjury. In Roberts v. Camden, (9 East, 93,) the words were, “he is under a charge of prosecution for perjury. G. Williams had the attorney general’s directions to prosecute for perjury.” Upon a motion in arrest of judgment, these words were held to amount to a charge of perjury ; that being the plain and popular sense in which the hearers would naturally understand them. All the cases are there considered. (And vid. Goodrich v. Wolcott, 3 Cowen, 231, and the cases there cited; and Miller v. Miller, 8 John. 74.)
But the words, as proved, do not support the declaration. They must be proved substantially as stated. All the words need not be proved ; but it is.enough to prove some material part of them. The rule is correctly stated in 2 Phil. Bv. 97: “ The words which are proved, must be proved as laid ; and it will not be sufficient to prove equivalent words of slander. Words to the same effect are not the same words. The plaintiff need not prove all the words on the record; yet he must prove so much of them as will be sufficient to sustain his cause of action.” (2 East, 434, 438. Bull. N. P. 5. 4 T. R. 218. 8 T. R. 150. The words in which the slander was conveyed, must be stated in the declaration; and it must be substantially proved. (Cook v. Cox, 3 M. & S. 110.) In Miller v. Miller, (8 John. 75,) the court say, it is now sufficient to prove the substance of the word: and the sense as well as man
The other points made by the defendant’s counsel do not properly arise in this case. This is a hill of exceptions, simply presenting the question, whether the judge erred in refusing to nonsuit the plaintiff; and in his charge to the jury. I am of opinion, that, he did err in these respects ; and that a new trial should be granted.
New trial granted.
