Robinett v. Ruby

Bartol, J., delivered the opinion of this court. The bill of exceptions in this case presents two questions; first, whether there is a material variance between the words charged in the first count of the declaration, and the words proved; and secondly, whether the words spoken by the defendant, were spoken on an occasion and under circumstances in which he was privileged in using them. The slanderous words charged in the first count are: “the girl that hired with us has got it,” and the words proved are: '“■the girl ¿hat lived with us has got it.” It appears by the colloquium set out in the declaration, and by proper inuendos, that these words were spoken of and concerning the plaintiff, and that they imputed to her the crime of larceny. The supposed variance is between the words lived and hired.

In Buller’s N. P., 5, it is said: “It was formerly holden that the plaintiff must prove the words precisely as laid; but that strictness is now laid aside, and it is sufficient for the plaintiff to prove (he substance of them,” and in Cooke’s Law of Defamation, 89, (53 Law Lib.,) it is said: “much of the former strictness as to words spoken, has been relaxed in the more modem decisions, and the rule now appears to be, ¹⁰¹ that it is sufficient if the words containing the substance of the slander be laid in the declaration,” See Maitland vs. Golduey, 2 East., 428. Millar vs. Miller, 8 Johns., 74 . Dancaster vs. Hewson, 17 Eng. C. L. Rep., 297.

It is true, as contended for by the appellee, that the words constituting the charge must be proved substantially as laid, and that proof of equivalent words will not suffice; 2 East., 438; 1 Wend., 506 ; but here the whole substance of the alleged slander is in the words, “the girl, (meaning the plaintiff,) has got it,” and the words, “that hired with us,” or “that lived with us,” serve only as a designation of the person, and do not constitute any substantial part of the defamation. In our opinion therefore, the variance in them is wholly immaterial. We are also of opinion, that the circumstances under which the defendant used the defamatory words, do not constitute them a privileged communication. This question arises upon the first prayer of the