CHANDLER vs. HOLLOWAY, 4 Port. 17

HOPKINS, J. — The action in this case was slander. The plaintiff in error was the defendant in the action. To the declaration, which contains seven counts, he filed a demurrer; that is, according to the statute law, a general one. The judgment which is before us for review", overruled the demurrer. The cause was afterwards tried upon the general issue, and the verdict and judgment were for the plaintiff in the action. Upon a general demurrer to the whole declaration, which contains one good count, and others that are defective, the plaintiff is entitled to judgment, unless there be a misjoinder of actions.

It is stated in the declaration, that before the” Words complained of, were uttered and published, one James Taylor had died, or been killed, in the county m winch the venue in the declaration was lclícL The first count stated, that in a certain discourse, which the defendant had with the plaintiff, of and concerning the plaintiff and others, the defendant falsely and maliciously spoke and published to and concerning the plaintiff and others, the following scandalous words — “You,” (meaning the plaintiff and others,) “ are a gang of murderers — you killed Taylor, and you know it:” (meaning thereby that the plaintiff and others had murdered the said James Taylor.) The statement in the declaration, shows the death of Taylor, but not the mode of it.

The words laid in this count, charged that some persons, or some one, had killed him ; the legal effect of which was, that whoever did the act, was guilty of a felony. As the words charged a felony, it was not necessary to aver in the declaration that one had been committed foe stafoment of Taylor’s death had been omitted in the declaration, it would not appear from the declaration, that the plaintiff had not been charged with killing a person, who was alive. To make the plaintiff’s cause of action complete, it was necessary to state the death in the declaration; but the manner of it, was immaterial.

The objection which has been made to this count is, that the charge of the defendant was too uncertain and vague, to be applied to any one. In a case in 11 Johnson’s Reports, 59 — it was decided that a count was good, which was upon the following words, uttered in a discourse with a father, of his children — “ your children arc thieves.” One .of the children brought the action, and it was determined that he and the other children were entitled to separate actions for the slander. It has been held, also, that a colloquium can give application to a' charge, that (<one of the servants of J.

S. is a thief.” The first count in this case does not state that the names of the other persons, to whom the defendant-referred in his discourse with the plaintiff, concerning himself and others, were mentioned. He might have referred to others in that conversation, without naming them, and the charge may be too uncertain as to all other persons than the plaintiff, to give any of those intended by the defendant, a right to an action. But if the application of the words to the plaintiff be certain, his right of action cannot be affected, because they cannot be applied definitely to others.

To allow such an effect to the want of ap--plication of the words to the others, would be to deny one person his right, because others who had no proof to show it, might have been intended to be injured by the same slander. The language used by the defendant in his discourse with the plaintiff, ‘of himself and others, without naming the latter, can be as clearly applied by the colloquium to the plaintiff, as if the names of the others had been mentioned in the conversation. If their names had been expressed in the discourse, and stated in the declaration, the sufficiency of the count would not be questioned.

But, as the names are not stated in the count, the legal presumption is, that they were not mentioned by the defendant, and that the defendant in his discourse with the plaintiff of himself and other persons referred to, whoever else he intended by the term “ others.” If a charge clearly made against the plaintiff, by the discourse with him of himself, could be rendered too general for the foundation of an action in his favor, by the addition of such a reference as the defendant made to others, reputation would be without any legal protection, and slander might be uttered with impunity.

Although the words, “ you are a gang of murderers,” cannot be applied to the plaintiff' without the aid of the discourse, which the defendant had with the plaintiff of himself and others, yet the subsequent words, “ you killed Taylor, and you know it,” is a distinct charge, and actionable. This charge is applied to the plaintiff by so much of (he discourse as applied to himself, without the aid of the reference in the discourse to others. The principle is settled, that where all the words, some actionable, and others not, are alleged in a count, ^ sufficient to prove those, which are actionable.

We think this principle applies to a case, in which the application of some of the actionable words is shown, and that of others does not appear. In both aspects, in which we have viewed the first count, we are of opinion it is sufficient. We shall not enquire of the sufficiency of either of the other counts; because it is unnecessary to do so.

The rule of the Common Law, that if there be a general verdict upon a declaration containing several counts, one of which is defective, the judgment may be arrested or reversed, has been changed by a statute, the effect of which is to pfevent the arrest or reversal of a judgment in any case, in which the declaration contains a substantial cause of action, and a material issue has been tried. A material issue has been tried in this .case. As all the counts compose but one declaration, and the first, in this, being sufficient, it follows, that the declaration contains a substantial, cause of action.

The next objection to the declaration, which w'e shall notice, is, that the fifth count is for,a cause .of action, to which the plaintiff and his family are equally entitled; and, therefore, there is a misjoinder of the cause of action in this count, with the causes of action in the others, to which the plaintiff is exclusively entitled.

The statement in this count is, that the defendant said of the plaintiff and his family, “they,” (meaning the plaintiff and his family,) “killed Taylor.” The case in 11 Johnson's Reports, 59, shows, that such a charge embraces the plaintiff and each member of his family, and that each person of his family, who is capable of maintaining an action, is entitled to one for the slander. The next objection was made to the title of the term in the declaration, which is of a term subsequent to that, to which the writ was returnable.

This mistake is amendable, and the case will be considered here as if the amendment that might have been made, had been. It was a defect, of which advantage could be taken by a special demurrer only; and no demurrer has, by the statute law of the State, any other effect than a general demurrer. If the declaration showed that the cause of action arose after the commencement of the suit, the defect would be fatal upon demurrer, and the verdict would not cure it.

But, as no time was stated in the declaration, when the cause of action arose, a reference to the writ shows, that it was for the same cause of action, described in the endorsement on the writ, and, therefore, was the cause of action upon, which the writ was sued out. By the aid of the reference it is amendable, and as a special demurrer is not allowed, no advantage could have been taken of the omission. Upon a writ of error, the court will intend after the verdict, that the cause of action -was proved, upon the trial by the jury, to have arisen before the commencement of the action.

The intendment which cures this omission in the declaration, is founded on the Common Law, and the effect of the doctrine is independent of that of the statutes oí jeofails, in akang defects m pleadings The last objection was made to the verdict, which was upon the issue, whether the defendant was guilty, or not. The issue was found for the plaintiff, an¿ ¿he effect of the verdict is, that the defendant was guilty ; and so this Court determined in the case of Peters vs. Johnson and Connolly.

The doctrine relied upon to show the insufficiency of the verdict, is in 5 Bacon’s Abridgment, 312 — and requires the verdict in an action of trover, to find the defendant guilty. In support of the doctrine, the author of the work, cited 2 Mod. 244, and 10 Rep. 57.

In the first cause it was determined, that although proof of a demand and refusal, is sufficient evidence for a jury to find a defendant guilty of the conversion alleged in a declaration; yet, should a jury not find a defendant guilty of the conversion upon such evidence, but return a. .special verdict, stating the demand of the plaintiff, and the refusal of the defendant, the verdict would be defective in substance, because it would find evidence, the effect of which, should have been determined by the jury. The verdict in the case in 10 Rep. was held to be insufficient on the same principle.

The verdict, in this case, can stand, without denying the authority of those cases. We are all of opinion there is no error in the record. Let the judgment be affirmed. pjCh379/ 379; 89,263; 18 Johns. R.' 59^’¿Mass- slander starWe 50,S6s"der 661 • 6Bin ’ ney 121. Aik. Dig.1 S66;'l Stew art, 384; 1 Hen. & Munf. 365 ^ep_ %!% Term>634' no Johns, Rep‘ Chitty’s P,7i2,714< Aia.Eep.