JEREMIAH F. KINNEY vs. JOHN HOSEA

JEREMIAH F. KINNEY vs. JOHN HOSEA. If the plaintiff fail to aver matter essential to his cause of action it will be fatal; but the defendant cannot object to the admission of evidence tending to prove that matter, if there be any averment, however informal, to which the evidence offered is applicable. Question reserved by the Superior Court in Sussex county, for hearing before all the judges. This was an action of slander for imputing to the plaintiff the crime of burning the Pennsylvania hall. (See ante p. 398.) The declaration set out that whereas, before the committing of the seve ral grievances by the defendant “to wit, on the 17th of May, 1838. a certain building known as and called the Pennsylvania hall, being the house of a certain Daniel Neall, situate in the city of Philadelphia, in the commonwealth of Pennsylvania, to wit, at Sussex countj aforesaid, and which said building was a house then and there ad joining to a dwelling-house of a certain man called and known bj the name of M'Calla, was maliciously and voluntarily set on fire am burned, to wit, at Sussex county aforesaid: And whereas also, by certain law or act of the legislature of the State of Pennsylvania, i is provided, among other things, that every person duly convicte-of the crime of maliciously and voluntarily burning the dwelling house or any other house adjoining thereto, belonging to any othe person or persons, or as being accessary thereto, shall be sentence-to undergo solitary confinement at labor for a period of not less tha: one or more than ten years for the first offence, agreeably to th provisions of said act;” yet the said John Hosea, well knowing thl premises but envying, &c., and contriving to injure the said Jen miah F. Kinney, (fee., and to cause him to be suspected to be guilt of the offences and misconduct hereinafter mentioned, &c., “and t] subject him to the pains and penalties and corporal punishments b the laws of this State, and by the laws of the commonwealth of Pent sylvania aforesaid, made and provided against and inflicted upo persons guilty thereof,” in a certain discourse, &c., “falsely and ma liciously spoke and'published to and of and concerning the matter aforesaid, these false, scandalous, malicious and defamatory words; that is to say — You put fire to the Pennsylvania hall or had a ham in it, thereby meaning, &c &c. Upon the trial below the plaintiff offered in evidence a duly ai| thenticated copy of the law of Pennsylvania, which was objected on the ground, that there was no averment in the declaration of the existence of this law at the time the house was alledged to have been burnt; and the court admitted the evidence, reserving the question of law — “Whether the averments in the narr. were sufficient to entitle the plaintiff to give the said act in evidence on the trial of the issue of not guilty in this cause.” The case was argued by Houston, for plaintiff, and Bayard, for defendant. [MAJORITY — Milligav, Justice:] Judge Milligan delivered the unanimous opinion of the court. Milligav, Justice: This case comes up on questions of law reserved, from the Superior Court sitting in Sussex county. The case stood before the Superior Court, and is now before this court, on a question as to the admissibility of the law of Pennsylvania in evidence, under any averment in the narr., and it did not necessarily involve the question of the sufficiency of such averment to support the cause of action, which was not at that time before the court. The question then was, not whether the averment supported the plaintiff’s action, but whether the evidence offered, supported or tended to support the averment. The matter of the sufficiency of the averment to sustain the action, was not to be considered in this torm, but only its sufficiency to admit this evidence. I The action was for a slander, in imputing to the plaintiff the crime pf burning the Pennsylvania hall in the State of Pennsylvania. It Ivas necessary to aver and prove the burning of the hall; and, as luch act was a crime only by reference to the law of another State,It was also necessary, in order to sustain the action, to aver the ex-Itence of a law of that State malting it a crime. But though an Iverment of such law might be insufficient for the purposes of the Iction, it does not therefore follow that on a mere question of evi-lence, such averment might not be sufficient for the purpose of admitting evidence. To effect this object, it was only necessary that lie law offered shall sustain the averment, and the question as to the lifficiency of the averment was not properly brought up on object-lig to the admissibility of the law. I The cases referred to by the counsel on the part of the defendant, ■ustrate this distinction. I In the case of the Bank of Wilmington and Brandywine vs. Cooper’s adm’r., (1 Harr. Rep. 10,) which was an action on a promissory Ite, payable by O. Horsey, at the bank, the declaration averred a ■esentment for payment to the said 0. Horsey, personally. Proof of this was admitted; but Mr. Bayard, who acted as counsel for the defendant, afterwards moved a nonsuit, on the ground that there was no averment of presentment at Ike place of payment, and the court accordingly nonsuited the plaintiff; not because the proof was inadmissible, but because the averment was insufficient. So in the other case referred to, which was an action under the act regulating fences, to recover double damages for not repairing a division fence under the orders of a justice of the peace; and there was no averment that the fence had been adjudged insufficient by the fence viewers as the law requires. The court nonsuited the plaintiff, and they would undoubtedly have ruled out any evidence of such adjudication, because there was no averment in the narr. under which such evidence would have been admissible. Houston, (with' whom was Ridgely,) for plaintiff. J A. Bayard, for defendant. But in this case, there is an averment that “whereas, also by a certain law or act of the legislature of the State of Pennsylvania, if is provided among other things, that every person duly convicted o the crime of maliciously and voluntarily burning the dwelling house or any other house adjoining thereto, belonging to any other persor or persons, or as being accessory thereto, shall be sentenced to un dergo solitary confinement at labor,' for a period of not less than on< or more than two years for the first offence, agreeably to the provi sions of said act.” The evidence offered to support this averment proved it; and wa only objected .to because the averment itself did not go far enoug back, and alledge the existence of the law at the time of the burning of the hall. If this were granted, it would not operate to exclud the evidence, but might defeat the plaintiff, if taken in another fornJB The only question then before the court was, whether the avermerH was sufficient to authorize the proof offered. In the opinion of thfl court it was sufficient, and therefore, the evidence was properly acfl mitted by the court below. H