William Miles, plaintiff in error against Sarah Oldfield, 4 Yeates 421

Tilghman, C. J. delivered the opinion of the court. The errors alledged in this case are confined to what appears on the face of the declaration. [ This he stated fully. ] The defendant’s counsel has raised several ingenious objections to the judgment on this declaration, which may be reduced to the following heads. 1st. That to call a person a vagrant, is not actionable. 2d. That if this is to be considered as an action of slander, . the declaration is bad, in not laying the words to be false and malicious. 3d.

That the declaration does in substance contain two counts, one for slander, and the other for a malicious prosecution ; and that the malicious prosecution is badly set forth, because it is not said, that the prosecution is ended, and the plaintiff acquitted. i; The act of 21st February 1767, defines the nature of vagrancy, and authorizes a justice of the peace to commit vagrants to the common goal, there to be kept at hard labour, for any time not exceeding one month. To charge a person with an offence, which subjects him to punishment of this kind, is in the opinion of the court, actionable.

The first objection therefore, is of no validity. 2. Many small faults in pleading are cured by verdict. The court is always strongly inclined to support judgments, after the merits have been tried. The rule of law is, that where the declaration contains a substantial cause of action, it shall be aided, though defective in form. Considering the whole of this declaration, it does sufficiently appear, that the words spoken were false and malicious. It is said, that the plaintiff was not a vagrant, and that the defendant knew this.

It follows inevitably, that when the defendant called him a vagrant, he told a malicious falsehood. 3. To the third objection, the cases of Philips v. Fish and of Carter v. Fish are opposed.

In the latter, wherein judgment was given, the plaintiff set forth, that “the defendant said he “ had stolen a hen, by reason of the speaking of which false and “slanderous words, he was not only injured in his character, but “ by occasion thereof and by the procurement of the defendant “he was taken up and carried before a justice,” &c. *The jury gave damages under 40s. and the only question was, whether the plaintiff should have full costs, it ^ / being an action of slander.

The court were of opinion, that full costs should be given; because the taking up and carrying before the justice, was set forth as a distinct fact. In Philips v. Fish, wherein the. cause of action is stated in the same way, the court inclined to the same opinion. It is true, the court are made to' say, “in the principal case, the action is founded on the “words spoken; and the procuring the plaintiff to be arrested “for felony, is laid in a different count, and the defendant is “found guilty generally,” &c.

By this it must be meant, that there were in substance, two counts, or two causes of action included in one count; for in form, there certainly was but one count: the case is not very accurately reported. But taking the case of Carter v.

Fish to be law, as reported, it seems to be conclusive in favour of the plaintiff below: because there the very same objection might have been urged, which the plaintiff in error insists on here; viz. that the declaration contained a count for a malicious prosecution, in which it was not alledged, that the plaintiff was acquitted : and yet the court gave judgment for the plaintiff. We do not consider this as an action for a malicious prosecution. Vide Term Rep. 225. The decía-ration is rather irregular.

It contains an action for slander; and also asserts, that the defendant by speaking the slanderous words occasioned the plaintiff to be carried before a justice. It seems to be rather a special injury, arising from the slander. Put if according to the case of Carter v. Fish, it is to be considered as a distinct cause of action, we will follow the authority of that case throughout, and support the judgment of the court below. Judgment affirmed.