Chapin v. White

102 Mass. 139

• Court: Massachusetts Supreme Judicial Court
• Decided: September 15, 1869
• Status: Published

Opinion

Colt, J.

The first count in the plaintiff’s declaration charges • the defendant with having accused the plaintiff of the crime of perjury, in the presence and hearing of divers citizens of the Commonwealth. The answer denies the charge as set forth in this count.

The only proof of publication offered was, that the accusation was made in the presence of the plaintiff and a citizen of Connecticut. It was objected that this was not competent to prove the publication alleged. The court are of opinion that, under the pleadings, the objection is well taken.

The fact of the publication of the words by the defendant must be alleged and substantially proved. If alleged generally, the fact may be proved by any person who heard them. But if the pleader adds any allegation which narrows and limits that which is essential, it becomes descriptive, and must be proved as allegéd. It identifies the slander. 1 Greenl. Ev. § 56. The plaintiff failed to prove the publication of the slander as alleged in his first count, and it is unnecessary to consider the instructions given, so far as they have reference to it.

In the second count, the alleged publication is not so limited. The defendant justifies the slander charged in it. And under the instructions given, to which no valid objection can be made, so far as they relate to this count, the jury have found for the defendant. Exceptions overruled.