Chapin v. White

trader a declaration for slander, alleging that the defamatory words were spoken in the presence and hearing of “ divers citizens of the Commonwealth,” proof of a speaking in the presence and hearing of only one third person, not a citizen of the Commonwealth, is a fatal variance.

Tort for slander. The first count of the declaration, the caption of which was, “ Superior Court for the County of Hampshire and Commonwealth of Massachusetts,” alleged that the defendant “ publicly, falsely and maliciously accused the plaintiff of the crime of perjury by words spoken of and to the plaintiff, in the presence and hearing of divers citizens of said Commonwealth, substantially as follows : ” setting forth the words. The second count alleged that “ the defendant publicly, falsely and maliciously accused the plaintiff of the crime of perjury, by words spoken of the plaintiff, substantially as follows : ” setting forth the words. The defendant in his answer denied that he accused the plaintiff of the crime of perjury as set forth in either count, and justified the speaking of the words charged in the second count. At the trial in the superior court, before Rockwell, J., the only evidence of the speaking of the words alleged in either count was of a speaking in the presence of the plaintiff and of only one other person, a citizen of Connecticut. The defendant objected that this evidence was not competent to prove publication under the first count. Both plaintiff and defendant were citizens of the Commonwealth. The instructions of the judge to the jury, so far as they related to the second count, were not objected to by the plaintiff; so far as they related to the first count, bis objections thereto are now immaterial. The jury found for the defendant; and the plaintiff alleged exceptions.