#### Mary Watts *v*. John M. Greenlee.

From Burke.

*A*count charging the Defendant with speaking slanderous words, is not supported by proof that he maliciously procured another to speak them.

Case for slanderous words. The Plaintiff declared that she being a person of good fame and reputation and so esteemed by all persons, and never having been guilty of any of the infamous acts imputed to her by the Defendant, &c. nevertheless the Defendant being an evil minded person and intending to slander her in her good name, fame and character, on &c. at &c.'“ did falsely and maliciously publish of her the Plaintiff, the'following scan-*211daloiis words, to-wit “she the said *Mary*is big” (meaning big with child) to his negro *Ben,”*“that all *Watts’*girls” (meaning the Plaintiff as one of said girls) “ are wjth child to negro *Ben,”*“she (meaning the Plaintiff) is incontinents,” he knowing at the time, the said malicious and slanderous words to be untrue and false, &c. to the damage of her the said *Mary*85000, and therefore, &c” *Í*

The issue joined on the plea of “not guilty,” came on to be tried before Strange, Judge, when the speaking of the words by the Defendant was sworn to by several witnesses, and their credit being drawn in question, the Plaintiff further proved by other witnesses, that on several occasions, the Defendant asked of an old man named *Martin,*who lived with him, what was the story about *Watts’*daughters and negro *Ben,*and *Martin*in answer to the enquiry, stated that all *Watts’*daughters were big with child by negro *Ben.*The Judge instructed the Jury, that though they should disbelieve the witnesses who testified to the Defendant’s having spoken the words, yet if they believed that he procured the words to be spoken by *Martin,*in reference to the Plaintiff, and in his presence, with a design to impress the bystanders with the opinion that she was guilty of the scandalous conduct implied by the words of *Martin,*the Defendant was as guilty as if he had himself uttered them. The Jury found for the Plaintiff, and a motion for a new trial and in arrest of judgment having been overruled, the Defendant appealed.

*Nash <$f Badger,*for the Appellant,

I. There must be a new trial for the variance between the words proved and those laid in the declaration. The averment of a direct affirmation is not supported by proof of an interrogatory sentence, *(Starhie on Slander,*¿71— *Barnes*v. Holloway, 8 *Term R.*150,) still less will such *212averment be supported by proof of a discourse in which the actionable words were spoken by a third person in answer to a question by the Defendant, containing no actionable words. The general proposition is not denied that such a discourse accompanied with a design to defame in the enquirer, will support an action against him; but here the question was, how far the declaration before us was supported by this proof, and on this question, the Judge certainly erred ; for it is never sufficient that the words proved, are equivalent in meaning to those laid — they must be the same words, (8 *Term. It.*150.)

*II.*The Judge should have arrested the judgment.

1. Because it does not appear upon the face of the declaration that the words were spoken in the presence or hearing of any other person than the speaker. This is a fatal defect, fox* no action can he sustained without an injury to the Plaintiff; but abusive words can only produce injury by being heard and understood. Hence'every declaration for slander must show the presence of others, either by express averment or impliedly from the manner of speaking the words, as that they were openly and publicly spoken, and where the words spoken are in a foreign language, it must also be averred that they were understood by those wlio heard them, *(Starkie on*Blander, *265*— Price v. *Jcnkings, Cro. Eli».*805.)

2. The action is founded upon a statute, *{Rev.*c. 748) and the Plaintiff does not count upon it. A recital of the statute, a reference to it or a conclusion upon it, is absolutely necessary in every declaration founded thereon — - whether the statute give a certain penalty or uncertain damages — whether given to a common informer or solely to the party grieved — whether the statute originate a right of action where none .was before, or give a new and cumulative, remedy, or make the old remedy more certain and effectual. *{Gom. Dig. action on penal stat. F. Gt. M.~~**213Xíg v. Clark, 2 *East. 333*— Earl *of Clanricarde v. Stokes 7 East 516-*— Scroter v, *Harrington,*1 Hawks, 192,)

Henderson, Judge.

In this case, it is clear that there is error both in the Judge’s charge to the Jury and in rendering judgment on the record, properly so called.— We will examine the first point only, for should there be a defect in the pleadings, we very plainly perceive, that there is sufficient substance in the declaration to support an action, and the Judge below has it amply in his power to permit amendments to be made to meet the justice of the case, upon such terms as he may think proper, *Farrar*v. *Mston,*decided at the last term, *(ante*69). We shall therefore confine ourselves to that part of the charge, wherein the Judge says, that if the jury should not believe the witnesses who had deposed to the Defendant himself havifig used the slanderous words, yet if they believed that he procured the words to be littered by *Martin,*in his presence, and with the design of having it believed by the byestanders, that the Plaintiff was guilty of the scandalous conduct, which'the words of *Martin*implied, he was as guilty as if he had uttered them himself. I understand the charge as amounting to this, that such evidence would *support a count that the Defendant himself uttered the words.*There is no doubt that the Defendant is responsible for this slander thus uttered by *Martin.*But the charge in the declaration must correspond with the proof, and although a declaration may be framed upon the words spoken by *Martin,*at the instigation of *Greenlee,*yet such proof cannot be received in support of a count charging *Greenlee*with speaking them, without violating the rules requiring precision in pleading, *(Starkie E.*266, 270 — 6 *Term HO.)*

Pee curiam. — Judgment reversed and new trial awarded.