ment of damages, where there is no answer, matter in mitigation may be received. Although matter in mitigation of damages is not a subject of demurrer, yet if set up in the answer, without any allegation that it is set up in mitigation merely, the plaintiff may infer it is set up in bar, and may demur to it.'

362. As in other actions, the defendant may demur to the complaint; but Lord Coke said, it was "an excellent point of learning in actions for slander" not to demur, but to take advantage of the declaration not disclosing a cause of action, either on the trial, or by motion in arrest of judgment. It has been held that, though a count in slander contain some words which are actionable, and others which are not, the defendant cannot plead as to the former, and demur as to the residue, but must either plead or demur to the whole count. But, again, it has been held, that where a libel contains several distinct charges, the defendant may plead or demur to particular parts of it; yet where several statements tend to one conclusion or im

diana, it is optional with defendant whether he will set up mitigating circumstances in his answer or not. (See O'Conner v. O'Conner, 27 Ind. 69.)

1 Newman v. Otto, 4 Sandf. 668; Fry v. Bennett, 5 Id. 54; Matthews v. Beach, Id. 256; Meyer v. Schultz, 4 Id. 664; Stanley v. Webb, Id. 21.

The great changes which, since Lord Coke's day, have taken place in the forms and mode of procedure, have deprived this rule of much of its value. If the words laid in the declaration are not actionable, the defendant must demur, or move in arrest of judgment. (Dorsey v. Whipps, 8 Gill, 457.) He cannot avail himself of the defect at the trial (Blunt v. Guntz, Anthon, 180; Boyd v. Brent, 3 Brevard, 241) to nonsuit the plaintiff. (Lumby v. Allday, 1 Cr. & J. 301; 1 Tyrw. 217.) It seems to be otherwise in New York, where, on the trial, de

fendant may insist that the complaint does not disclose a cause of action. It must be remembered that in New York the demurrer is general only, and that the special demurrer has been superseded by a motion to make definite and certain. In Mississippi and Virginia, no demurrer is allowed.

3 Bronson, J., Root v. Woodruff, 6 Hill, 420, citing as to libel, Sterling v. Sherwood, 20 Johns. 204; Riggs v. Denniston, 3 Johns. Cas. 198; and saying the same rule had been applied in actions for slander, though not reported; and see Taylor v. Carr, 3 Up. Can. Q. B. Rep. 306. It is conceded that the rule is otherwise in England, and Clarkson v. Lawson (6 Bing. 587), is cited. Held that a defendant may demur to a part of the words laid in a count for slander. (Abrams v. Smith, 8 Blackf. 95; Wyant v. Smith, 5 Id. 294.)

putation, it is not permissible to select and deal separately with one, either by plea or demurrer.1 A defendant cannot single out some of the words in a declaration and demur to them. If a count by husband and wife contains words actionable per se, as well as others spoken of the wife, the defendant cannot demur, but may, on the trial, object that the action for the latter words cannot be maintained by both. In an action for libel, the answer contained (1) a denial of the publication, (2) a justification. The plaintiff demurred to the answer, specifying only objections to the matter of justification, and judgment was given for the plaintiff on the demurrer; held that the denial remained on the record, and raised an issue of fact.* Upon demurrer to the complaint, if any of the words be actionable, there must be judgment for the plaintiff.5 A demurrer to the complaint does not admit the intent attributed by the innuendo; but it admits the allegation that the publication was false and malicious."

6

A question has been raised whether where an answer of justification on the ground of truth, is supposed to be defective because it merely alleges that the charge is true instead of stating the facts relied upon to show it to be true, the plaintiff can demur to such answer. We presume that in such a case a motion to make definite and not a demurrer is the proper remedy.

1 Eaton v, Johns, 1 Dowl. Pr. Cas. N. S. 602; and see McGregor v. Gregory, 2 Id. 769; 11 M. & W. 289. "Taylor v. Carr, 3 Up. Can. Q. B. Rep. 306.

3 Beach v. Ranney, 2 Hill, 309. Matthews v. Beach, 8 N. Y. 173; but see Parrett Nav. Co. v. Stower, 8 Dowl Pr. Cas. 405.

Edds v. Waters, 4 Cr. C. C. 170; Butler v. Wood, 10 How. Pr. Rep.

222.

Wheeler v. Hayes, 1 Perr. & D. 55. The head note to Smith v. Tribune Co. (4 Bissell, 477) is not warranted by the text. (Fleischman v.

Bennett, 87 N. Y. 231.) The demurrer admits only the publication and falsity of the charge. (Kennedy v. Press Pub. Co. 3 N. Y. State Rep. 139.) On demurrer the court passes upon the effect of the language. (Donaghue v. Gaffey, 53 Conn. 43; 54 Id. 257; see § 274, ante.)

Dodge v. Colby, 108 N. Y. 445; Cochrane v. Melendy, 59 Wis. 207. Upon demurrer to a complaint "the defendant is prima facie to be considered as a wrong doer." (Ashurst, J., J'Anson v. Stuart, 1 T. R. 748.)

See Van Wyck v. Guthrie, 4 Duer, 474. The right to demur to an

§ 362 a. There cannot be a counter-claim in an action of slander or libel. One libel cannot be set off against another, nor can damages occasioned by a libel form a counter-claim in an action for an assault. In New York, no replication is necessary unless to a counter-claim. In England, a general reply only is required.

answer is limited (N. Y. Code of Civ. Pro. § 494) to a defense consisting of new matter. A defense of truth is not new matter. (Maretzek v. Cauldwell, 19 Abb. Pr. R. 35.) Upon a demurrer to an answer plaintiff may attack the complaint. (The People v. Booth, 32 N. Y. 397.)

'Fellerman v. Dolan, 7 Abb. Pr. R. 395, note; Richardson v. Northup, 56 Barb. 105; Schnaderbeek ข. Worth, 8 Abb. 37; Barhyte v. Hughes, 33 Barb. 320.

Seely v. Cole, Wright (Ohio), 681; Battell v. Wallace, 30 Fed. Rep. 229. In the Scotch Reports are to be found numerous instances of one set of words being set off against another. In England a counter claim is allowed in actions for slander or libel (Flood

on Libel, 324), and “addenda et corrigenda where in slander a counter claim in trespass was allowed. And in Lewsay v. Fletcher, a resident of Java sued in an English Court for commissions, the defendant was allowed to counter claim damages for an alleged libel. (And see Quinn v. Hession, 40 L. T. 70; 4 L. R. [Ir.] 35; Rotherham v. Priest, 28 Week. Rep. 277; Crowe v. Barnicot, 37 Law Times Rep. 68; Odgers on Libel, 494.)

274.

Macdougall v. Maguire, 35 Cal.

N. Y. Code of Civ. Pro. § 514; Stat. 6 & 7 Vict. ch. 96; Chadwick v. Herapath, 4 Dowl. & L. 653; 16 Law Jour. C. P. 104; Helsham v. Blackwood, II C. B. III.

CHAPTER XV.

VARIANCE.-AMENDMENT.

Allegation of pleadings and proof should correspondVariance in New York-General rules as to variance -Immaterial variance-Material variance-Amend

ment.

363. The general rule as to variance is, that the allegations of the pleading and the proof must correspond, otherwise there is a variance, and the plaintiff fails;1 but now, in New York, it is enacted by statute that no variance between the allegation in a pleading and the proof shall be deemed "material unless it has actually misled the adverse party to his prejudice," and where there is a variance, the court may order an amendment. The following decisions upon variance are in cases not within the Code of New York.

§ 364. Ordinarily it is sufficient if the words proved correspond substantially with those alleged." But although any mere variation of the form of expression is not material, the words alleged cannot be proved by showing that the defendant published the same meaning in different words, even if equivalent and of similar im

1 In actions of slander and libel the language charged must be proved as laid. (Birch v. Benton, 26 Mo. [5 Jones], 153: Horton v. Reavis, 2 Murph. 380.) A variance is fatal. (Stanfield v. Boyer, 6 Har. & J. 248; Winter v. Donovan, 8 Gill, 370; Harris v. Lawrence, 1 Tyler, 156.) It is not sufficient to prove the substance of the charge merely. (Rex v. Berry, 4 T. R. 217.) Proof that the language related to others besides the plaintiff is not a variance. (Robinett v. McDonald, 65 Cal. 611.)

2 N. Y. Code of Civ. Pro. § 539. As to amendment of variance in Indiana (Proctor v. Owens, 18 Ind. 21).

3

Coghill v. Chandler, 33 Mo. 115; Smith v. Hollister, 3 Shaw (Vt.), 695; Taylor v. Moran, 4 Metc. (Ky.) 127; Williams v. Miner, 18 Conn. 464; Desmond v. Brown, 29 Iowa, 53; Bundy v. Hart. 46 Mo. 460.

Smith v. Hollister, 3 Shaw (Vt.), 695; Ward v. Dick, 47 Conn. 300. Within six months before suit brought, defendant said concerning the words alleged to be actionable, but which

port. A count for slanderous words spoken affirmatively is not supported by proof that they were spoken by way of interrogation. Proof of words spoken in the second person will not support counts for words spoken in the third person, and vice versa. Proof of words spoken in the past tense will support a charge of words in the present. Proof of a positive assertion is not admitted under an allegation of a hypothetical assertion; an allegation that the words were "he swore to a lie" is not supported by proof that the words were "he swore to a lie if he swore as Jones said he did.":

§ 365. The plaintiff need not prove all the words laid, but he must prove enough of them to sustain the action."

were barred by the statute, "I never denied what I have said, and I will stand up to it." Held, that this was not a repetition of what he had previously said, and that an action could not be sustained thereon. (Fox. v. Wilson, 3 Jones Law [N. Car.], 485.)

1 Wilborn v. Odell, 29 Ill. 456; Taylor v. Moran, 4 Metc. (Ky.) 127; Norton v. Gordon, 16 Ill. 38. It is not sufficient to prove words equivalent to those alleged. (Moore v. Bond, 4 Blackf. 458; Slocumb v. Kuykendall, Scam. 187: Olmsted v. Miller, Wend. 506; Watson v. Musick, 2 Mo. 48; Armitage v. Dunster, 4 Doug. 291; McConnell v. McKenna, io Ir. C. L. R. 511; Campagnon v. Martin, 2 W. Black. 790.) Words to the same effect are not the same words. (Fox v. Vanderbeck, 5 Cow. 513.)

* Barnes v. Holloway, 8 T. R. 150; Sanford v. Gaddis, 15 Ill. 228; King v. Whitley, 7 Jones Law (N. Car.), 529. If in an action of slander the words be proved to be spoken affirmatively as they are laid, the charge is supported, though it appear that they were spoken in answer to a question put by a third person. (Jones v. Chapman, 5 Blackf. 88.)

3 Cock & Weatherby, 5 Smedes & Marsh, 333; Miller v. Miller, 8 Johns. 74; Stannard v. Harper, 5 M. & Ry.

295; M'Connell v. McCoy, 7 S. & R. 223; Culbertson 7. Stanley, 6 Blackf. 67; Williams v. Harrison, 3 Mo. 411; Wolf v. Rodifer, 1 Har. & J. 409; Abarillo v. Rogers, Bull. N. P. 5; Rex v. Berry, 4 T. R. 217; Phillips v. Odell, 5 Up. Can. Q. B. Rep. Ö. S. 483; Sanford v. Gaddis, 15 İll 228; Rutherford v. Moore, I Cr. C. C. 388; Birch v. Simms. Id. 550. Evidence of the words, "You are a broken-down justice," does not support an indictment for speaking of the magistrate the words, "He is a broken-down justice." (4 T. R. 217; but see Cro. Eliz. 503.) Words proved to have been spoken in the second person sustain a count for slander in which the words are in the third person. (Dailey v. Gaines, I Dana, 529; Huffman v. Shumate, 4 Bibb, 515.)

Buscher v. Scully, 107 Ind. 246. Allegation of English words not sustained by proof of German words. (Stichtd v. The State, 8 So. West. Rep. 477.)

Evarts v. Smith, 19 Mich. 55; $369, post.

6 Fox v. Vanderbeck, 5 Cow. 513; Purple v. Horton, 13 Wend. 9; Nestle v. Van Slyck, 2 Hill, 282; Skinner v. Grant, 12 Vt. 456; Scott v. McKinnish, 15 Ala. 662; Hancock V. Stephens, 11 Humph. 507; Iseley v.