#### Joseph H. Allen *versus*Henry I. Perkins.

In an action for slander, a count setting forth generally, that the defendant charged the plaintiff with a crime, (naming it,) is good.

Under such a count, the plaintiff may prove, that the words spoken, although not ac tionable in themselves, were rendered so, by reason of the existence of certain extrinsic facts, a reference to those facts, and the mode in which the words were used, notwithstanding there was no averment that they were spoken with reference to any fact whatever.

If it be proved that the justice of the peace by whom a foreign deposition was taken, was at the time exercising the office of a justice of the peace, this is good *primé facie*evidence of his appointment and qualification as such magistrate, so as to authorize him to take the deposition.

It is sufficient if the notice of the time and place of taking a foreign deposition be such as to allow' the party an opportunity to cross-examine the witness. Thus, where notice was given to the party in the forenoon, to attend the taking of the deposition at twenty minutes before two o’clock in the afternoon, and at twenty minutes after two o’clock the officer gave him verbal notice to attend the taking at four o’clock on the same afternoon, the place of taking being between two and three mites distant, it was held, that the notice was sufficient.

This was an action on the case for slander. The two first counts charged the defendant with having spoken certain slanderous words, which were set forth *in hac verba,*tending to impute to the plaintiff the crime of larceny. The third count, after the usual introductory allegations, averred, tha* the de *370fendant publicly charged the plaintiff with the crime of stealing.

The trial was before *Shaio*C. J.

In support of *the*third count, although *no*actionable words were either laid or proved, the plaintiff proposed to prove, that the words were spoken with reference to certain extrinsic facts, which gave them an actionable quality ; but inasmuch as no such facts were -alleged and there was no averment or colloquium, that the words were spoken or the charge made with reference to any fact whatever, except that the charge was made of and concerning the plaintiff, the defendant objected to the admission of such evidence. But it was ruled, that as a necessary consequence of allowing this general mode of declaring, all such facts and circumstances might be given in evidence, the existence and a reference to which would tend to show, that the words were used in the slanderous sense imputed and did charge the plaintiff with larceny, although not set forth in the declaration ; that in admitting a general declaration in an action of slander, the rule of evidence was not varied ; that to maintain such a count, it was necessary to prove all the facts, which under a more special form of declaring must be set out ; and that the evidence must prove words either actionable in themselves or rendered so by reason of *the*existence of other facts, the reference to those facts, and the mode in which they were used.

To the admission in evidence of such facts the defendant excepted, and the question was reserved for the consideration of the whole Court.

The plaintiff also offered in evidence the deposition of Ma- ■ ry Aldrich, which purported to have been taken on April 8, 1834, before Nathaniel Searle, a justice of the peace in Provdence, Rhode Island. The defendant objected to its admission unless the fact that Searle was at the time a justice of the peace, should be proved by the record of his appointment and qualification. But it was ruled, that it might be proved by evidence, that he was at the time acting in the capacity and in tact exercising the office of a justice of *the*peace. ,

It was further objected to the admission of this deposition, that the defendant had not reasonable and sufficient notice of *371the limn and place of taking it. It appeared from the testimony of J. H. Gould, who was an officer, that on the forenoon of Saturday, Aprils, 1834, he served on the defendant a written notice of the time and place of taking Aldrich’s deposition ; that by mistake the notice stated the time to be on the 7th ; that the witness informed the defendant, that the true time was on the 8th, at twenty minutes before two o’clock, which was the hour mentioned in the summons ; and that at twenty minutes after two o’clock on the same day, the witness gave the defendant verbal notice, to attend the taking of the deposition at four o’clock on the same afternoon, at Searle’s office, which was at the distance of between two and three miles.

It was ruled, that under the circumstances of the case, the proof of notice was sufficient, and the deposition was admitted.

The jury returned a verdict for the plaintiff.

If the Court should be of opinion that the deposition of Aldrich was inadmissible, or that the evidence above stated ought not to have been received in support of the general count, the verdict was to be set aside and a new trial granted.

*H. Mann, Jl. Bassett*and S. Williams, for the defendant,

to the point that the evidence introduced to-prove that Searle was qualified to take depositions, was erroneously admitted, cited *Regulae*Generales, 16 Mass. R. 374 ; St. 1797, c. 35 ; Statutes of Rhode Island, (edit. 1798,) 260 ; *Raynham*v. *Canton,*3 Pick. 293 ; *Lincoln*v. *Battelle,*6 Wendell, 475 ; and to the point, that the notice given of the time of taking the deposition of Aldrich was insufficient, Statutes of Rhode Island, (edit. 1798,) 260.

*Warren*and *Pratt,*for the plaintiff,

to the point, that the ruling as to the evidence of the appointment and qualification of Searle was correct, cited *Damon’s case,*6 Greenl. 148 ; *Savage*v. *Balch,*8 Greenl. 27.

Wilde J.

delivered the opinion of the Court. The defendant is charged in the third count in the declaration, with openly and publicly slandering the plaintiff by charging him with the crime of larceny ; and whatever doubts may have heretofore existed as to the correctness of such a general mode of declaring, they are removed by the decision in the case of *372
      *Whiting*v. *Smith,*13 Pick. 364. There is therefore no oh jection to the form of the declaration, and the law was correctly laid down by the Chief Justice at the trial, as to the evidence necessary to support such a general declaration The jury were instructed that, to maintain the action on the third count, it was necessary for the plaintiff to prove all the facts, which under a more special form of declaration must be set out, in order to maintain the action ; that the rule of evidence was not varied by the form of the declaration ; and that consequently the plaintiff must prove words actionable in themselves, or rendered so by reason of the existence of other facts, the reference to these facts, and the mode in which they were used. These instructions were clearly correct, and we cannot imagine how the law could be laid down with more precision.

We think also that the judge decided rightly in admitting the deposition, notwithstanding the defendant’s objections.

Foreign depositions may be admitted as evidence, or rejected, at the discretion of the court. Here it was proved to the satisfaction of the court, that the justice taking the deposition was an acting justice of the peace in the State of Rhode Island. This kind of proof has always been held good *prima facie*evidence of the appointment and qualification of a magistrate, so as to authorize him to take depositions. When the court have a discretion, presumptive proof, if satisfactory, is sufficient, although it may not be the best evidence that might be produced. As to the notice to the opposite party, of the time and place of taking the deposition, all that is required by the rule of court is, that the notice shall be sufficient to allow the party an opportunity to cross-examine the witness ; and the verbal notice correcting the mistake in the written notice, appears to the Court to be sufficient for that purpose.

*Judgment according to verdict.*