On a declaration in slander, consisting of a single count, in which the slanderous words were alleged to have been uttered by the defendant "on the 1st day of November, 1856, and on divers other days and times before the purchase of the plaintiff's writ," held, that the plaintiff might, in support of his action, prove a single uttering of the slander by the defendant on any day prior to the date of the writ. In slander of a physician in his profession, the currency of the slanderous report in the place of his practice, following the utterance of the same by the defendant, may be given in evidence, as well as the effect of such report upon the professional gains of the plaintiff, in aggravation or proof of damages, without strict proof connecting the current report with the slander of the defendant; the fact of such connection being for the jury, and not for the court, to pass upon. If the defendant in such an action would avail himself in mitigation of damages of the fact, that at the time be told the injurious story, he mentioned the name of his author, it must not only appear that he did so mention his author, but the onus is upon him to show, by proof, that he did so receive the story.
AMES, C.J.
Had the declaration assigned a period of time as that, during which, by continuation, "on divers days and times," the slanderous words were uttered, as the first exception of the plaintiff seems to suppose that it does, it would, nevertheless, have been competent for the plaintiff, waiving his right to recover on a single count for repetitions of the slander, to prove one speaking of the words anterior to the first day laid, Gould on Pleading, ch. 3, §§ 94, 96; 1 Chitty on Pleading, 393, 394, and cases cited. If it be a case in which the laying with a continuando is improper, and the defendant, instead of demurring specially for that cause, pleads to the action, the plaintiff may prove the uttering of the words on any one day prior to the date of his writ, as if he had not inserted the useless and improper words. Ib. In the case at bar, however, the uttering of the words is not laid with a continuando, nor are its repetitions assigned to a particular period of time between a day certain and the purchase or date of the plaintiff's writ; the declaration merely averring that the defendant uttered the slander "on the first day of November, A.D. 1856, and on divers other days and times before the purchase of the plaintiff's writ." This amounts to nothing more than the laying of a day certain for the slander, as a proper formal allegation of time, and days uncertain for the repetitions of the slanders; which, however informal, cannot hinder the plaintiff from proving, under the general issue, the speaking of the words by the defendant at any one time before the date of the writ. This exception must therefore be overruled.
The other exceptions are equally untenable. The currency of the slanderous report, following the utterance of it by the defendant, as well as the special injury done by it to the plaintiff in his profession, were, under the declaration, proper subjects of proof to the jury, to enable them to estimate the plaintiff's damages; and the connection, if any, between the words of the plaintiff and the currency of the injurious report, was a matter for the jury, and not for the court, to pass upon. So, too, the defendant might have proved, that he heard the slander from another person, and at the time named that person; which would not indeed justify the speaking, but would tend to mitigate damages, by repelling the notion of the defendant's being the malicious author of the report, and enabling the plaintiff to follow up and expose the falsehood, and punish the originator of it. Such partial defence must however be proved, as well as alleged, by the party who makes it; and it would be a dangerous novelty, to hold, that if a slanderer, in uttering his slander, named his author, it was to be taken for granted in his favor that what he said in this respect was true, unless indeed, as the last exception imports, the plaintiff was enabled, and by the testimony of the person named too, to prove the contrary. See Bennett v. Bennett, 6 C. P. 588.
Exceptions overruled, and judgment ordered upon the verdict.