17 N.H. 540 | Superior Court of New Hampshire | 1845
An objection is taken to the verdict that the words proved are different from those alleged in the declaration. The elements of the law on this subject were laid down by Holt, C. J., in Queen v. Brake, 3 Salk. 224. There is a difference between words spoken and written. Of the former, there could not be a tenor, for want of an original to compare them with; and therefore, where one declares for words spoken, variance in the omission or addition of a word is not material, if so many of the words be proved and found as are of themselves actionable; so that, although in an action for words it is in general necessary that the evidence conform to the declaration, there is a limit to the strictness required.'
The words charged, were, “ What will Merrill do next ? Kimball has had his barn burned, and Hoit will have his burnt within a fortnight. We have persons about here bad enough to do this.” The words proved appear to be so nearly the same, that it is impossible to attach to them any other meaning than that which is conveyed by those alleged. “ What do you suppose Merrill will do next? I suppose you have heard that Kimball has had his barn burnt. Iioit will have his burnt in a fortnight.” Then, in reply to Elanders’ remark, that he was sorry that we had any body about bad enough to burn buildings, the defendant said that there was no doubt but that we had.
In the second count the words charged were the same as proved, except that the words, “set fire to,” are the words charged, and “burnt” is the word proved. We are not aware of any rule of law or any reason that should hold a party to greater strictness in his proof in such cases. In the words of Lord Bolt, in the case referred, to “ words are transient, and vanish in the air as
As to the other exception, the rule is stated in Chesley v. Chesley, 10 N. H. Rep. 330, to be, that evidence of actionable words, not stated in the declaration, may be admitted to show the malice of the defendant, in uttering the words upon which the action is founded. This is in conformity with the doctrine of Rastell v. Macquister, 1 Camp. N. P. 49, note, in which Lord Mlenborough said, “You may give in evidence any words as well as any act of the defendant to show, quo animo, he spoke the words which are the subject of the action.” Cases are there cited to the same effect.
Undoubtedly, damages could not in strictness have been given for these words; but as the malice was a material part of the plaintiff’s ease, it would be absurd to say that the quantum of damages should not be affected by such evidence, introduced to prove it.
The exceptions must, therefore, be overruled, and there must he
Judgment on the verdict.