#### JANE WILSON v. RUNYON.

Slander — actionable words — inducement—evidence—character and reputation — general report — mitigation.

Where the plaintiff describes herself ns a school mistress, in a declaration for slander, without an averment of special damage, proof of special damage is inadmissible.

Depositions taken by either party and tiled, though notread by the party taking them may be read by the other party, if they contain evidence competent for him to introduce.

The bad character of a witness impeaches him, not merely his *reputation.*

The practice of examining a witness to impeach another witness for his bad character.

Proof is admissible under the general issue in slander, of the general currency of the charge imputed by the slander, in mitigation of damages.

Words charging a woman with being a nasty, dirty slut, are not actionable of themselves, but would be actiouable if spoken of a school mistress; words imputing a want of chastity to a female are actionable themselves.

Words not actionable exceptas affecting the calling of the plaintiff must be introduced by an averment or inducement of that calling.

The plaintiff, describing herself as a school mistress, and employed-as such»..denl-U't'rl defendant for saying of her, *1*slxe_is. *652■ a nasty, dirty, lying, slut — Samuel Harper said he knew her as well as he did his own wife — she rode through Sewall’s dark woods with Elijah Harper and no decent girl would do so, and Polly Huston would swear Jane told her she had slept with Elijah Harper.’ Plea not guilty.

It was proven that the plaintiff was a school teacher, employed , as such, and that the defendant speaking of her and her patronage, said she had lied on him two years ago, and was a nasty, dirty, lying, slut — that she had slept with Elijah Harper — and at another time he had started to 'go to' Plunter’s and she was in *the*sugar camp waiting for him, and they rode through Sewall’s dark woods together. On being asked if they had sexual intercourse ? he replied she was willing, if he was not — Samuel tlarper said he knew her better than any other girl and as well as his own wife — that he could prove ail by Elijah Harper and wife, Thomas Plarper’s wife, Polly Huston and Samuel liarper.

The plaintiff then offered to prove the injury to the school.

*Hamilton*and *Mason,*

objected, that there was no averment of special damage-.

*D. S. Bell,*for the plaintiff, objected.

Wright, J.

There is no averment in the declaration to admit this proof or give notice to the defendant, and it must be rejected.

The plaintiff having rested, the defendant offered to read some depositions taken by the plaintiff and put on file.

Wright, J.

Depositions taken and *filed*by either party, are evidence for the adverse party though not read by the party taking them, if they contain matter competent for him to introduce, in the same way they would have be.en evidence if taken by himself.

Witnesses were then called to testify to the *character*of the witness for the plaintiff, and various questions were asked.

Wright, J.

It has been repeatedly decided by this Court, that the proper questions to ask on such examinations, are,

1. Have you the means of knowing the general character of (the witness) for truth?

If the answer be in the negative, you can ask no further; but if the answer be affirmative, you may ask one or the other of the following questions :

2. Ffspi your knowledge of his character would you believe him under oath? or, !

Is his character for truth as good as that bfmen in general?

On cross-examination, you may inquire into the witnesses’ means of knowing the character.

*653
      *Mason*

objected.

*M. Corwin*and *D. S. Bell,*for the plaintiff,

and

*Hamilton*and *Mason,*for the defendant.

It is the *character,*the *conduct*and *habits,*of the witness which it is sought to learn, not his *reputation*alone, or what the world *says of him.*His *character*may be well known to the witness as infamous, such as to render him unworthy of belief, and yet the knowledge of it may not have gone abroad so as to affect his reputation. Suppose I have raised a child — and know him to be a *thief*and a *liar,*unworthy of belief on oath, but the knowledge of his character has not gone abroad? it is obvious, that it is my knowledge which discredits the witness and which should go to the jury. A good *reputation*may be offered to sustain the *character,*as one means of refuting the impeaching evidence, for without a good character, it must be supposed difficult to acquire a reputation for one.

The defendant then offered evidence to show that these charges were in general circulation before the defendant spoke them, and that they were true.

Wright, J.

You may prove in mitigation of damages, if you can, that the plaintiff was generally suspected of the matters charged before the defendant spoke of them. You cannot prove the truth of the words under this issue. The case in (3 *O. R.*270) does *not go the*length supposed. In that case the party was allowed to prove circumstances of suspicion not amounting to proof of the truth of the facts charged; circumstances which induced the party to believe the charge true, though false, to mitigate the damages. And that is the law and the reason of the thing; for that man who speaks of a transaction believing it true, is not influenced by the same malice, with him who, without excuse, invents and circulates slander with the sole purpose of doing harm. That case is not very well reported and is made the subject of frequent criticism at the bar. Properly understood, we think the principle decided good law.

The case was argued to the jury by

Wri&ht, J.

charged the jury, amongst other things, upon the following matters to which his attention was called by counsel.

It is objected that the plaintiff cannot recover, because there is no averment or proof that she was keeping school at the time the words were spoken, and because the words are not proven precisely as laid in the declaration. Words which are not actionable of themselves, must be introduced upon the record by what is called an inducement or averment, which must be proven; words which are *654actionable of themselves need no such inducement. This declaration contains two classes of words. Those which affect the plaintiff as a school mistress only; as that she is a nasty, dity *slut*— and those which accuse her of want of chastity. The first are not actionable without an inducement, and if you find a verdict on those words alone, you must have evidence that the plaintiff was a school teacher, and made that her business at the time of the slander, because the right to recover depends upon the tendency of the charge to injure her in her business. The second class are, in this state, held actionable of themselves, as imputing to a *woman*want of chastity. If words of that kind are proven, they will warrant a verdict without proof of the plaintiff being a school mistress. As to such words you may regard the allegation about the business of the plaintiff as a nullity — they will not affect the rights of the parties.

*Hamilton*

moved in arrest of judgment.

As to requiring proof of the words precisely as laid — that is not necessary. The plaintiff must prove to you the uttering of words substantially like those declared upon conveying the same charge— nothing more is required.

\If the words are proven, the attempt to impeach the character of the plaintiff, if it has failed, aggravates the offence, and entitles the plaintiff to exemplary damages.

The judge explained the nature of damages, etc.

Verdict for the plaintiff, damages $¡130•

Wright, J.

The only question is, do the words laid, impute lewdness or want of chastity to the plaintiff? we think they do. Judgment for plaintiff.