By the Court,
E. DaewIn Smith, J.The words for the speaking of which this action was brought, as stated in the complaint, are as follows: “She (referring to the plaintiff’s wife) has stolen tea, sugar and calico, and carried it away from there, home.” These words, as understood in their ordinary sense, impute a larceny, and are actionable per se. The words proven on the trial, by one witness, were, “she took tea and calico from her, and she found them in her things;” and by another witness, they were, “she had taken tea and calico, and I think she said sugar.” hieither of these sets of words are actionable per se. To steal tea, sugar or calico, is to commit a larceny. • To take either of those articles, is not necessarily to commit a crime. It may mean nothing more than a trespass, and the taking might be entirely innocent. The action therefore clearly was not sustained by the proof of those words. It could only be sustained, upon these words, by proving that they were uttered with intent to impute a felonious taking of the goods, and were so understood by the persons to whom they were addressed, or in whose presence and hearing they were uttered. Before the code, the plaintiff must have been nonsuited for the failure to prove any of the actionable words stated in the complaint. But a more liberal practice now prevails. The judge disregarded the variance in the words, according to *29section 176 of the code, and allowed the case to go to the jury upon the proofs, upon a proper charge submitting the question of the actual meaning and sense of the words used. Disregarding the variance between the words stated in the complaint and the words proved, was equivalent to an amendment of the complaint on the trial, substituting the words proved for those alleged in the complaint. As such an amendment might doubtless have been made on the trial, in the discretion of the judge, and such discretionary order or decision would not be reviewable, we must treat the complaint as amended, or allow it to be now amended nunc pro tune, to sustain the verdict. (Rayner v. Clark, 7 Barb. 581. 19 id. 371. 20 id. 42, 47. 1 Kern. 287.) The case was tried upon the theory that the plaintiff might recover if the jury was satisfied that the words proved were intended to impute a felonious taking of the goods. Upon this theory, the exception to the charge that the jury might consider other words used in the same conversation which were actionable per se, in giving a construction to the sense and meaning of the words used, is not well taken. It was stated by one witness, that the defendant’s wife said of the plaintiff’s wife, in the same conversation in which the alleged slanderous words were uttered, “that the plaintiff’s wife was a thief, and, by Gr—d, she could prove itand also by another witness, it was proved that the defendant’s wife said they could hire Mr. and Mrs. Coleman, but did not want to, because “she was a thief,” &c. This also was said in connection with the slanderous words proved, and in the same conversation. In his charge, the judge advised the jury that they had a right to take into consideration these words, not to give damages for them, but to give character to the words spoken. As the question submitted to the jury was what was the meaning and sense of the words proved, as understood at the time, certainly all the conversation of the party at the time was admissible on that point. The words spoken must be construed in the light of the whole of the remarks of the party, *30and all that was said in the same conversation and connection. It is a mistake, I think, that a subsequent action might be maintained for such other actionable words spoken at the same time. When there is in substance but one charge—and that was in this case the imputation of larceny—it matters not, I think, in how many different forms or phrases of speech the charge is made or repeated in the same conversation; but one action will lie. If a man makes or repeats a slanderous charge, in one conversation, in twenty different forms or phrases of speech, the party slandered could not maintain twenty different actions. He could maintain one action by proof of any of the actionable words, and the residue of the words would be necessarily provable as part of the res gestee, or on the question of malice, but I cannot conceive that more than one action could be maintained in respect to the same slanderous charge. In the case of Campbell v. Butts, (3 Comst. 173,) the words given in evidence to show malice, do not appear to have been uttered in the same ' conversation with the words for which the action was brought, or to have related to the same charge, and must have been uttered at different times; for it is stated that some were spoken before and some after the commencement of the suit. But in this case, I cannot think if the defendant’s wife had accused the plaintiff of larceny, in twenty or more different forms of speech, on the same occasion and in the same conversation, that more than one action could be maintained for such slander. It will of course be otherwise if the slanderous words were uttered at different times, and on different occasions. I think, therefore, it was right to give in evidence all that was said by the defendant’s wife at the time of the slander, to characterize the words and show malice. And as the case appears to have been fairly tried upon its merits, I think we ought not to disturb the verdict.
[Monroe General Term, September 2, 1861.Smith, Johnson and Knox, Justices.]
Hew trial denied.