Caldwell, Hunter & Co. vs. Dawson. which the charcoal was to be made, and bound Dawson to deliver it at the furnace of the appellants. There was evidence that the hauling of it caused it to settle, so that at the latter place it occupied only four-fifths of the space which it filled at the former. Our opinion is that the appellants were entitled to 100,000 bushels, by level measure, at the place of delivery. Upon this point the counsel for the parties agree, but they differ as to the number of such bushels that were delivered. The appellants filed a statement, the correctness of which was conceded, showing the number of wagon loads they had received. The dispute is as to the number of bushels contained in the wagon, and as to the mode of ascertaining the same, the appellants insisting upon gauging the contents of the wagon at the furnace, the appellee insisting upon what the witnesses call "dust-measure." A bushel, according to "dustmeasure," is composed of a half bushel heaped and a half bushel filled to the level, at the pit where the coal is made, coal dust being used because the measurement can be made more accurately with it than with lumps of coal. Several witnesses testified that "dust-measure" at the pit would produce the same result as gauging the contents of the wagon at the place of delivery. One witness, Pittman, testified that he had ascertained the contents of the wagon by "dust-measure" at the pit, and the verdict of the jury appears to have been based upon his estimate. The evidence of Gunter and several other witnesses, who gauged the wagon, con. duced to prove that it contained less than Pittman asserted. It is evident that Pittman inade a mistake in measuring the coal-dust which the wagon contained; or that Gunter and several other witnesses made a mistake in measuring the wagon; or that Whitman and three other witnesses made a mistake in supposing that the two modes of measuring would produce the same result. In our opinion, the appellants were entitled to insist upon the latter mode of measurement, unless they agreed to the former mode, or unless the adoption of that mode was established by usage. There was no evidence of such an agreement. On the Caldwell, Hunter & Co. vs. Dawson. contrary, Whitman testified that, when the first contract was erro There was evidence conducing to prove, that during eight or ten years before the appellants purchased the furnace, its previous owners usually purchased charcoal according to "dust measure." But Whitman proved that the appellants rejected that mode and adopted gauge measure, and there was no contradictory evidence upon that subject, nor was there any proof, except the evidence of the former usage, that the appellants, when they made the first contract with Dawson, had any knowledge of that usage, or any reason to believe that Dawson contracted with reference to it; whilst Whitman proved, that, before the making of the second contract, Dawson was informed that the appellants would insist on gauge measure. The general current of recent decisions shows a strong and increasing disinclination of the courts to allow the general laws of the country to be varied by proof of local usages.Such an usage is binding only on the ground that the > party, sought to be charged, contracted with reference to it. Hence it must appear that he had actual knowledge of it, or the evidence must be such as to clearly authorize the presumption that he had knowledge of it, otherwise it cannot be supposed that he contracted with reference to it. The general doctrine on this subject was thus stated in a recent case: "To make such a custom admissible it must be of such age, such uniformity of observance, such certainty and fixedness of char acter, and of such notoriety, that a jury would feel clear in saying that it was known to the party sought to be affected by it. (Huston, &c vs. Peters, &c., 1 Met. K. R., 562.) The fact that one party had knowledge of the usage, and supposed it would enter into the contract, is not sufficient, nor can it enter into the contract, though both parties had knowledge of it, if it appears that they did not contract with reference to it. The Caldwell, Hunter & Co. vs. Dawson. first instruction for the plaintiff was erroneous: 1st. Because it did not discriminate between the first and second contracts. There was clearly no evidence authorizing the jury to find that the alleged usage entered into the second contract. 2d, Because the jury were told that "the usual mode of measuring coal at the Crooked Creek Furnace, at the time of the contract," was the proper mode. There was, we believe, no evidence as to what was the usual mode of measuring coal at that furnace at the time of the first contract. The plaintiff's evidence as to the usage related to the previous time, during which Baker and Quirey and Tyler owned the furnace. The instruction, in effect, assumed that the former usage continued to exist, and was binding on the appellants, though they may not have contracted with reference to it, and may not have had any knowledge of it, actual or implied. It is argued by appellants' counsel, that the court should not have permitted the jury to consider the evidence of the usage during the proprietorship of Baker and Quirey and Tyler, even with reference to the first contract, because, as is asserted, the appellants during that time were strangers, residing at a distance from the Crooked Creek Furnace, and consequently could not rationally be presumed to have had any knowledge of the usage. We need not express an opinion upon this point, because no motion was made to exclude the evidence, and it was not proved that the appellants, during the time referred to, were strangers, residing at a distance. It seems unnecessary to notice the other questions argued by counsel. The judgment is reversed, and the cause remanded for a new trial and other proceedings, not inconsistent with this opin ion. Taylor vs. Moran. CASE 19-PETITION ORDINARY-JANUARY 23. Taylor vs. Moran. 4me127 119 876 APPEAL FROM THE MASON CIRCUIT COURT. 1. Sections 111 to 114, inclusive, of the Civil Code, which relate to the joinder of actions, refer to causes of action existing at the time of the commencement of the suit, and not to such as arise subsequently. 2. Sections 159 to 162, inclusive, of the Civil Code, relating to amendments, authorize such as relate to the case actually in court, and not such as constitute an ontirely new and distinct case. The facts alleged must be "material to the case," which serve to explain or perfect the cause of action originally stated, and not such subsequently occurring facts as form a separate ground of action, having no connection with the original cause of action, and not necessary to enable the party to reeover on it. 3. Slanderous words, of similar import with those declared on, spoken after the commencement of the action, cannot be relied upon in such action either as a distinct ground of recovery, or to show that the words charged had been spoken, or to enhance the damages to which the plaintiff may be entitled on the original cause of action, but simply and merely to show the intent with which the words charged were spoken, and, when given in evidence, the court should give such cautionary directions to the jury as to restrict their effect upon the verdict within the legitimate purpose of their admission. 4. In an action of slander, words spoken pending the action, and set up in an amended petition, were admitted in evidence without objection or any admonition to the jury as to the weight or effect they were to give to them; the court instructed the jury that the plaintiff had a right to recover, as well for slanderous words spoken after as before the action was brought, and that in determining the amount of damages they were to consider all the facts and circumstances proven in the cause; the case was submitted to the jury and argued by counsel, after which the court said to the jury, in another instruction, that the plaintiff could not recover in this action for words uttered since the filing of the original petition, but that evidence thereof was admissible on the question of malice, and that they could not regard the words as substantive slanders, for which they might give damages in the action. Held, That the error was not cured by this caution. It should have been full and explicit as to the purpose for which alone the evidence was admissible, embracing specifically the idea that such evidence could not be considered by them to increase the damages. 5. The specific words in which the slander is conveyed must be set forth in the petition, and it is not sufficient to state merely the effect of the words uttered, or that the defendant charged the piaintiff with the commission of a particular crime. 6. The rule of evidence in actions of slander formerly was that the plaintiff must prove the precise words. That rule has been no further relaxed than to admit proof of the substance of the words. It is not enough to prove words of the same effect or import, or conveying the same idea. The words must be substantially the same words, and it is not sufficient that they contain substantially the same charge, but in different phraseology; equivalent words of slander will not do. 7. While the proof of speaking the words is for the jury, the correspondence between the words spoken and laid is for the court. Taylor vs. Moran. T. A. MARSHALL, for appellant cited Campbell vs. Thompson, Mss. opin., winter term, 1858; 15 B. Mon., 102. CONWELL & WHITAKER, on same side, cited 1 Starkie on Slander, 253, 329; Starkie's Evidence, 862; Saunders' Pleading and Evidence, 336, 329; Smith's American Leading Cases, 146, 147; 5 Printed Reports, (N. Y.) 171; N. Y. Code Rep., 247; 2 A. K. Mar., 481, 3; 3 Dana, 141; Hardin, 167; 3 Bibb, 374; 4 Bibb, 45, 192; 1 B. Mon., 214. W. H. WADSWORTH, for appellee, cited Civil Code, secs. 159, 162; 1 Met., 665; 1 Bibb, 165; 4 lb., 515; 1 Dana, 529; 5 Mon., 560; 7 Mon., 315; 4 B. Mon., 388; 11 B. Mən., 195; 3 J. J. Mar., 155; 1 B. Mon., 214; Civil Code, sec. 372; 1 Bibb, 142. SIMPSON & SCOTT, on same side, cited Graham and Waterman on New Trials, vol. 2, pages 417, 440-1-2, 45, 461-2, 466-7-8, 470-1, 474-5, 534 to 543, 426-7-8-9, 430, 432-3; Hardin, 317. 586; 1 Bibb, 166, 248; 2 Mon. and Harlan's Digest, 220, secs. 36, 40, 41. 43; 5 U. S. Digest, 440-2-3; 1 Bibb, 165-6; 4 lb., 515; 3 Dana, 258; Civil Code sec. 158, note 1, 156, 157; 1 Dana, 529, 5 Mon., 560; 7 lb., 315; 3 Dana, 141; 5 Dana, 315, 323; 3 Litt., 389; 2 Bibb, 442; 3 lb., 502; 2 J. J. Mar, 37; 2 Mar., 364; Litt., Sel. Cases, 179; 3 Mon., 45, 236; 4 Ib., 538; 1 J. J. Mar., 491; 5 Dana, 263; 2 B. Mon., 277; 2 Mar., 520, 546; 3 J. J. Mar., 61; 4 lb., 399; 4 B. Mon., 389; 6 Ib., 379; 1 Bibb, 304; Starkie on Slander, 68, 78, 83, 413 and note 414, 416; Sedgwick on Measure of Damages, pages 101, 102, 103; 2 Mar., 130; 4 Dana, 122; Printed Decisions, 309; 1 Bibb, 249; 4 lb., 272; 1 Mar., 431; 2 Bibb, 259; 4 Litt., 118; 4 Bibb, 92; 8 Dana, 320; 2 Mar., 365; 1 Mar., 346; 3 J. J. Mar., 61; 1 Litt., 14; 4 Litt., 117; Litt. Sel. Cases, 263; 3 Mon., 60; 1 Mon, 196, 1 Mar., 335; 1 Dana, 529; 1 B. Mon., 214. CHIEF JUSTICE DUVALL DELIVERED THE OPINION OF THE COURT: This was an action for slander in the name of Margaret Moran, by her father and next friend, against Milton Taylor, the original petition alleging that the defendant had charged the plaintiff, in various forms of expression, with being a whore. In an amended petition it was alleged that the defendant had, since the commencement of the action, slandered the plaintiff |