Timothy Gay versus David Homer.
[n case for slander, the first count contains a colloquium, that the plaintiff was, at the time when the words were spoken, an agent for a stage-coach company, and that one B acted as a sub-agent and as such sub-agent received moneys, of which he kept an account in the books of the company, together with way bills of passengers conveyed in the coaches of the company, and that suggestions had been made that B had not accounted for all the moneys 5 it then alleges, that the defendant, in a discourse of and concerning the plaintiff's agency, &c., spoke the words, “ the plaintiff has altered the way bills and books (meaning the way bills under the care of said B and the books kepi by him as aforesaid) to make them correspond, for the purpose of screening B (meaning thereby that the plaintiff, for the purpose of aiding said B in concealing his frauds on the said company, has been guilty of the crime of forgery.)” The second count, referring to the colloquium in the first count, alleges that the defendant uttered the words u the plaintiff and B are together in cheating the company and they will cheat them out of more than the company can make.” It was held, that the words in these counts were actionable.
Held also, that new general counts, alleging respectively that the defendant charged the plaintiff with forgery, fraud, and a conspiracy to cheat, were for the same causes of action as the original counts above mentionec, and were therefore properly allowed to be filed by way of amendment.
In this commonwealth the venue in a transitory action is matter of form, and an amendment changing the venue, made afler the general issue was pleaded, was allowed.
In a count subsequent to the first, in an action of slander, alleging that the words were spoken in a discourse &c., an amendment by inserting the word other before the word discourse, is matter of form and may be allowed after issue joined;
Action on the case for slander. The writ was dated December 20, 1830. It described the plaintiff as of Dedham in the county of Norfolk, and the defendant as of Boston in the county of Suffolk.
The declaration contained originally two counts.
The first count, as it stood originally, stated that long before and at the time when the alleged grievances were committed, the plaintiff had been and was acting as agent for a certain company, called the Boston and Providence Citizens Coach Company, with great emolument to himself &c., and that one Thomas P. Brown acted as a sub-agent, and as such sub-agent received large sums of money for the company, of which he kept an account in their books and rendered the same to the proper officers of the company, together with" the way bills or account of passengers conveyed in the coaches of the company, and that suggestions had been made that Brown had *536not accounted for all the moneys so by him received, whereupon an investigation was made, on examination of the books and way bills had, from which it did not appear that any money remained in the hands of Brown unaccounted foi, all which the defendant well knew ; yet the defendant, contriving and maliciously intending to injure the plaintiff in his'good name &c., and to deprive him of bis said agency and all the emoluments thereof, on June 1, 1830, at said Dedham, in a discourse of and concerning the plaintiff and of and concerning his agency in the said company, and of and concerning the books kept by Brown and the examination of the same, did, in the presence and hearing of divers good citizens of this commonwealth, utter the following words of and concerning the plaintiff, to wit, Mr. Gay (meaning the plaintiff) has altered the way bills and books (meaning the way bills under the care of said Brown and the books kept by him as afore said) to make, them correspond, for the purpose of screening Brown (meaning thereby that the plaintiff, for the purpose of aiding said Brown in concealing his frauds on the said company, has been guilty of the crime of forgery.)
The second count alleges, that on the same day, at &c., the defendant, in a certain other discourse &c. of and concerning the plaintiff and of and concerning his agency and the agency of the said Brown in said company, did, with the malicious intention aforesaid and for the purposes aforesaid, (referring to the first count,) in the hearing of divers other good citizens, utter of and concerning the plaintiff the following words; — “Gay (meaning the plaintiff) and Brown are together in cheating the company (meaning the aforesaid company) and they will cheat them out of more than the company can make — by reason of the speaking &c. of which words (in both counts) the plaintiff has been injured in his good ñamé &c., has lost the good will and esteem of divers good citizens, has fallen under the suspicion of the members of said company, has suffered great pain and anguish of mind, and been greatly injured in his business and pursuits, and been exposed to a public prosecution for forgery and fraud.
The action was entered at January term 1831 of the Court of Common Pleas, and was continued to the following April and *537July terms. At the July term the plaintiff had leave to amend, and in pursuance thereof he filed three additional counts, to which no objection was made until the cause was opened to the jury.
The third (or first additional) count alleges, that the defendant, on June 1, 1830, at &c., in a discourse of and concerning the plaintiff, did, in the presence of divers good citizens of this commonwealth, falsely and maliciously, openly and publicly, charge the plaintiff with the crime of forgery.
The fourth count, after reciting the plaintiff’s capacity of agent, as set forth in the first count, alleges that the defendant, on June 1, 1830, at &c., in the presence of divers good citizens, &c., in a certain other conversation of and concerning the plaintiff and of and concerning his behaviour in his said office and business of agent, accused the plaintiff of fraud and dishonesty in his said office of agent.
The fifth count, after reciting the agency of the plaintiff and of Brown, as set out in the first count, alleges that the defendant, in the presence of divers good citizens, &c., at &c., to wit, on June 1, 1830, in a certain other discourse of and concerning the plaintiff and of and concerning the conduct of the plaintiff in his said office of agent, charged the plaintiff with the crime of conspiring together with Brown to cheat and defraud the said Citizens Coach Company : — By means of which charges in the plaintiff’s counts mentioned the plaintiff is further greatly injured &c. (as before,) and has been exposed to a public prosecution for forgery and fraud.
The defendant pleaded the general issue, in the Court of Common Pleas, and the action was brought up to the Supreme Court, upon a formal demurrer, the plaintiff reserving liberty to amend and the defendant reserving liberty to plead anew.
In all the counts the words had been laid as spoken lc at said Dedham,” without the videlicet, “ to wit, at said Boston.” At the trial in this Court, before Putnam J., upon reading the writ to the jury .it was objected by the defendant, that the words “ to wit, at said Boston,” in all the counts, had been inserted after the plea of the general issue had been filed, on which he intended to rest his defence, and that such *538amendments changed the venue, the cause of action having been originally at Dedham in the county of Norfolk ; and that no amendment ought to have been made without previous notice to the defendant or his counsel. The amendments had been made some days previous to the trial, and before issue joined in this Court. The plaintiff contended that these amendments were merely formal; and further, that as the demurrer in the court below reserved the right to amend, the words were properly inserted, within the rule for amendments.
The judge overruled the objection, and upon the plaintiff’s counsel’s assenting that the trial .should be postponed from that day, which was Saturday, until the following Monday, as the defendant’s counsel had had no notice and might be surprised, the judge directed such postponement, and directed further, that if the defendant wished to plead specially, his pleas should be delivered to the plaintiff’s counsel by 9 o’clock on Monday morning. On that morning the general issue and pleas in justification to the first, second, fourth and fifth counts, were delivered to the plaintiff’s counsel. To all the special pleas the plaintiff replied, that the defendant spoke the words of his own wrong &c ; and issue was joined thereon.
After issue joined the plaintiff again asked leave to amend his declaration, by inserting in the third count the words, “in a certain other” before the word “ discourse,” and in the third, fourth and fifth counts, the word “ other ” before “ good citizens ” ; which amendments were allowed without terms, the defendant’s counsel objecting thereto.
The cause went to trial upon the declaration and pleadings as they now stand ; and a verdict was found for the plaintiff.
In support of the general count alleging that the defendant accused the plaintiff of fraud and dishonesty in his office of agent, the plaintiff, at the trial, called witnesses whose testimony tended to show that the defendant had, at times previous and subsequent to June 1, 1830, imputed to the plaintiff fraud and dishonesty in his office of agent, but all the testimony related to conversations before the date of the writ and within the period fixed by the statute of limitations. The *539defendant’s counsel objected to the admission of any testimony to more than one conversation, and to any conversation before June 1, 1830 ; which objection was overruled.
The defendant moved for a new trial; —
1. Because the judge permitted the plaintiff to go into evidence upon the three new counts, which were for new causes of action.
2. Because the plaintiff was permitted to go into evidence of facts and circumstances, and of words spoken by the defendant, long prior and subsequent to the time when the words alleged in the declaration were said to have been spoken.
3. Because after the filing of the pleas the plaintiff was permitted to amend his writ and declaration, by changing the venue thereof, by inserting in all the counts the words, “ to wit, at said Boston,” against the consent of the defendant, thereby giving jurisdiction to the Court.
4. Because after the pleadings were closed the plaintiff was permitted to amend his declaration again without terms, so as to read t£ in a certain other discourse,” under which amendments he was permitted to go into evidence of distinct and different causes of action.
The defendant moved also in arrest of judgment; -
1. Because the words set forth in the first two counts are not actionable.
2. Because the colloquium and averments in those counts do not make the words actionable, and no special damages are alleged.
3. Because the innuendoes in the first two counts are not supported or authorized by the words alleged to have been spoken of the plaintiff.
4. Because the words set out in the first two counts do not support the charges and averments in the last three counts.
5. Because the Court had no jurisdiction of the cause before the venue was changed by the amendments, nor could the amendments made without the consent of the defendant, give such jurisdiction.
6. - Because the verdict is general, and some one, or more, or all the counts are defective and insufficient to entitle the plaintiff to judgment.
*540S. D. Parker and W. Parker for the defendant.
The new counts are for different causes of action from those alleged in the two original counts. The words set forth in the original counts, aided by the colloquium and averments, do not charge forgery, fraud or conspiracy ; and the accusations in the last three counts are alleged to have been made in other conversa lions and before other citizens than those in the original counts Mason v. Waite, 1 Pick. 452; Willis v. Crooker, 1 Pick 204.
Evidence of words spoken previously to the time when those alleged in the declaration were said to have been spoken, was inadmissible. 1 Chit. Pl. (1st edit.) 384.
The amendment in regard to the venue was not allowable. The venue was material. Words spoken in the county of Norfolk could not be proved as words spoken in the county of Suffolk. But even if the amendment was proper, the change of venue operated as a surprise on the defendant.
The amendments after the pleadings were closed, were inadmissible. ' They exhibited new causes of action, being for conversations had before citizens who had not been previously mentioned. After the declaration had been once amended, it was too late to allow further amendments. Holbrook v. Pratt, 1 Mass. R. 96; Hamilton v. Boiden, 1 Mass. R. 50; Kinder v. Paris, 2 H. Bl. 561.
The original counts will not sustain a judgment. The words set out in the first count are not actionable ; Bloss v. Tobey, 2 Pick. 320 ; Rex v. Griepe, 1 Ld. Raym. 256 ; Thompson v. Bernard, 1 Campb. 48 ; Stevenson v. Hayden, 2 Mass. R. 406 ; Starkie on Slander, 75, 21 ; Savile v. Jardine, 2 H. Bl. 531 ; nor do the colloquium and averments make them so ; and no special damage is alleged. The words do not impute forgery. Colloquiums and innuendoes do not enlarge the sense of the words spoken. An alteration of the books was not in itself unlawful, and the plaintiff ought to have set forth in a colloquium such facts as would make it so. The evidence in the case showed that it was not only lawful, but proper and necessary. One of the innuendoes is, “ meanng thereby that the plaintiff, for the purpose of aiding Brown *541iii concealing his frauds on the said company, has oeen guilty of forgery.” Now this introduces a new fact, for there is no previous imputation of fraud on the part of Brown, but merely an assertion that he had not accounted. There is no colloquium of the books being altered by Brown, but only of their being in his possession, nor is there any colloquium or words showing that the defendant intended to charge the plaintiff with forgery. 1 Chit. Pl. (1st edit.) 383 ; Hawkes v. Hawkey, 8 East, 427 ; Rex v. Horne, Cowp. 672 ; 1 Wms’s Saund. 243, note 4 ; Bac. Abr. Slander, S, 4 ; Onslow v. Horne, 3 Wils. 186; Bornman v. Boyer, 3 Binn. 519 ; M'Clurg v. Ross, 5 Binn. 218 ; Bell v. Thatcher, 1 Ventr. 275 ; Holt v. Scholefield, 6 T. R. 694; Bloss v. Tobey, 2 Pick. 320; Feise v. Linder, 3 Bos. & Pul. 374; Com. Dig. diction on the Case for Defamation, F, 12, 13, 17, 20, 21. Nor does the second count contain actionable words. It is not said that the plaintiff made alterations in the books to cheat or defraud any person. The words denote suspicion merely. Com. Dig. diction on the Case for Defamation, F, 13. The count does not state W'ords charging a conspiracy, and simply to call a man a cheat is not actionable, Stevenson v. Hayden, 2 Mass. R. 408. The words, “ They are together cheating the company,” not naming any natural person nor corporation, would not be sustained in an indictment for a conspiracy.
. All the counts are defective and no one of them will sus tain a judgment. Stevenson v. Hayden, 2 Mass. R. 407 ; 1 Chit. Pl. (1st edit.) 383 ; Holt. v. Scholefield, 6 T. R. 691.
Fletcher and J. B. Davis for the plaintiff.