Gilbert v. Field — 3 Cai. 329

Majority

p. 329

Ezekiel Gilbert against Joseph C. Field.

NEW-YORK,

Nov. 1805.

Headnote

CASE for words spoken of the plaintiff in his character of attorney, and a member of the legislature.

The declaration, after the formal introductory matter of good fame, &c. without alleging any colloquium respecting the profession of the plaintiff stated, with the proper innuendos that the defendant had said “ I have frequently seen “ him as drunk as a coot in the assembly of this state ; in the “ assembly while a member thereof; that he was unfit for a “ member gí the assembly, and if his character were known “ to the electors of the county of Columbia, they would not “ erect him to represent them in the assembly; for during “ the last session of the assembly, and while a member there-?⅞ of, I have seen him a number of times come into the as-

ín an action fov words spoken of an attorney, the declaration must allege a colloquium respecting his profession, or it will be fatal on a motion in arrest of judgment. So if two grava, •mina be stated, one of which affords us cause of action, and entire damages be given, judgment will be arrested. It does not seem to be actionable to say at the time of election of a

p. 330

“ sembly-room and fall asleep therein. That he was unfit “ and unqualified to be a member of the assembly of the state “ in the legislature, for I have frequently seen him drunk, U and unfit for any business.’5

seatin tliíle-3, gislature, that he has been seen drunk and asleep m the assembly room and is unfit to «e a mem er.

Woodworth for a variety of reasons,

but principally for want of a colloquium, and because the words were not in themselves actionable, argued that the judgment must be , arrested. ’ /

jy, jy. YanNess contra,

Per Curiam, delivered bv

In arrest of judgment, several objections are taken to the declaration, two of which, according to decided cases are fatal.

That it should appear either from the words themselves, or from the pleadings, or be clearly intended, that at the time of publishing the words, there was a colloquium concerning the profession of the party of whom the slander is uttered, has been long and repeatedly settled. Nor is this form of declaring, if it comport with the fact, more difficult to pursue, than the one which has been adopted. If from the words here it may be inferred, or intended as we think it may, that there was a discourse concerning the plaintiff’s fitness for the office of member of the legislature, the declaration is entirely silent as to any conversation about his professional character ; and as his injury on this score forms a very essential part of the gravamen, and the damages are entire,a colloquium concerning his profession was absolutely necessary. For this omission judgments have been arrested, or the plaintiff in other stages of a suit defeated of his remedy. The reason assigned for the rule is, that unless the words appear to be spoken concerning one’s profession, office or trade, he cannot lose orbe discredited thereby. If this be thought by some not very satisfactory, it would be too much without shewing its palpable absurdity to shake so many authorities by permitting a looser mode of declaring at this day. Judgment must therefore be arrested.