Gidney v. Blake — 11 Johns. 54

Majority

p. 54

C. Gidney against Blake.

ALBANY,

Jan. 1814.

Headnote

Vlwider stated certain' aLa GUrf ando* ceming the and^oTmd"’ concerning c. one of the children of G. tiffin the suit, children' 7are thieves, and i itailwasTeheid charge*™ - sufficiently sígnate the of*’the achiitcndecfhy b" if one count is good, it is sufficient, on a gewhole decíaWhere a de-

IN ERROR, from the court of common pleas of Orange county. Gidney brought an action of slander against Blake in ^ie court below. The declaration contained several counts; ^ie ^rst count stated that the plaintiff was the infant son and one of the children of Daniel Gidney, by whom he prosecuted, &c. and aíter tiie usual averments, that in a certain discourse which the defendant had with the said Daniel, of and concerning the 0 children of the said Darnel, and of and concerning the said Charles, the plaintiff, &c. the defendant maliciously spolce and Polished, &c. the following words: “ your children” (meaning, &c.) <c are thieves, and I” (meaning the defendant) « can prove it.” There were several other counts, one of which stated the words to be “ his children” (meaning the children of the said Daniel) “ are thieves, and I can prove it.” The other counts, in the innuendoes, stated the words as spoken of the plaintiff among the children of the said Daniel. There was a general demurrer to the declaration and joinder, on which the court below gave judgment for the defendant.

D. Russell, for the plaintiff,

contended that the declaration was sufficient. The want of certainty in the description of the person accused maybe supplied by averment.^[1] Here is an averment that the plaintiff is one of thé children of Charles Gidney, and this applies to all the counts, and there is a colloquium in each count. It is enough, if it be substantially alleged that the words were spoken of the plaintiff.^[2]

Story, contra,

insisted that the words were too general and vague to be the foundation of an action of slander, and that they were not helped by the innuendoes. If this were allowed, the characters of some of the children of D. Gidney, who are not parties to the record, might be involved. In Van Vechten v. Hopkins,^[3] was decided that an innuendo could not be proved, though it was said, that where the person meant to be libelled could not be identified, without the aid of extrinsic facts, by a proper averment and a colloquium, such extrinsic facts might be introduced and proved. Though there is a coi

p. 55

loquium, there are not, in the present case, those proper averments to point the slander, with certainty, to the plaintiff

The charge is not vague or indefinite. The words “ your children,” “ his children,” apply to and embrace all the children of Daniel Gidney, with whom the defendant was conversing. The case of Foxcraft v. Lacy (Hob. 89.) is analogous, as to the effect and application of such expressions. In that case, it appears that a suit was pending against the plaintiff and 16 other persons, and a discourse being had concerning the suit, the defendant said these defendants helped to murder H. F., and it was adjudged that each of the 17 defendants was entitled to his separate action of slander. It might have been urged, as well in that case, as in this, that the words did not necessarily mean the plaintiff. In this case, the first count contains a colloquium concerning the plaintiff in particular, as well as the other children of Daniel Gidney, and the colloquium conclusively points the words, and designates the plaintiff as one of the children intended. A colloquium is sufficient to give application to words still more indefinite, such as one of the servants of I. S. is a thief; (4 Co. 17. b.) and if one count be good, it is sufficient on general demurrer to the whole declaration. ( 3 Caines' Rep. 89 .)

The judgment below must be reversed.

Judgment reversed.

N. B. In the case of Gidney v. Cook, on the same pleadings, there was the same judgment.