Buscher v. Scully

5 N.E. 738, 107 Ind. 246, 1886 Ind. LEXIS 329

• Court: Indiana Supreme Court
• Decided: March 24, 1886
• Docket: No. 12,434
• Status: Published

Opinions

Elliott, J.

The appellee’s complaint contains two sets of slanderous words, and is unquestionably sufficient to repcd the demurrer addressed to the entire pleading, even though it should be conceded that one set was not actionable.

Eulings of the trial court in excluding evidence or in refusing to chock the misconduct of counsel in argument can not be brought into the record by the affidavit of one of the parties. The proper mode of getting such rulings into the record is by setting them forth in the bill of exceptions as the action of the court. Indianapolis, etc., G. R. Co. v. Christian, 93 Ind. 360.

Our statute makes it slander to faísely charge a woman with fornication or adultery, and this is but a declaration of the American common law. Odgers Libel and Slander, 84, American editor’s note. It is not essential that the charge .should be made in direct terms; it is sufficient if the words used are such as impute to her fornication or adultery, and were so understood by those who heard them. Proctor v. Owens, 18 Ind. 21; Wilson v. Barnett, 45 Ind. 163; Waugh v. Waugh, 47 Ind. 580; Branstetter v. Dorrough, 81 Ind. 527, and authorities cited; Seller v. Jenkins, 97 Ind. 430.

The complaint charges that the words imputing a want of chastity were used in the past tense; while the evidence shows that they were spoken of a matter in the present tense. This is not such a variance as precludes a recovery. Townshend Slander and Libel (3d ed.), section 367.

Judgment affirmed.