count is bad, it vitiates the whole. It has always struck me that the rule would have been much more proper to have said, that if there is any one count to support the verdict, it shall stand good, notwithstanding all the rest are bad. In criminal cases the rule is so; and one cannot, therefore, but lament that the reverse is adopted in civil cases; because it is as it were catching justice in a net of form. However, this consideration will make. the court lean against setting aside a verdict upon such an objection without very good reason, that is, without some apparent manifest defect; more especially in a case like the present, where the words have appeared to the jury to be so scandalous as to induce them to give a verdict with 5007. damages, and where that verdict has received the sanction of the court in which the action was brought, by their refusing to grant a new trial upon an application to them for that purpose.

Let us consider, then, the grounds upon which the declaration in the present case is attempted to be impeached. Two of the counts are objected to, viz., the fourth and last. In the fourth it is said thus: "I am thoroughly convinced that you are guilty (innuendo that you are guilty of the death of the said Daniel Dolly); and, rather than you should go without a hangman, I will hang you." Upon this count it is argued that there are many innocent ways by which one man may occasion the death of another; therefore the words, "guilty of the death," do not in themselves necessarily import a charge of murder; and consequently, as no particular act is charged which in itself amounts to an imputation of a crime, the words are defectively laid. What! when the defendant tells the plaintiff " he is guilty of the death of a person," is not that a charge and imputation of a very foul and heinous kind? Saying that such a one is the cause of another's death, as in the case in 2 Bulstr. 10, 11, is very different; because a physician may be the cause of a man's death, and very innocently so; but the word "guilty" implies a malicious intent, and can be applied only to something which is universally allowed to be a crime. But the defendant does not rest here; on the contrary, in order to explain his meaning, he goes on and says, "and, rather than you should be without a hangman, I will hang you." These words plainly show what species of death the defendant meant, and therefore in themselves manifestly import a charge of murder.

The innuendo to the words of the next count is, that they mean "guilty of the murder of Daniel Dolly;" and the jury by their verdict have found the fact, namely, that such was the meaning of the defendant. But that is not all; for the jury find a special damage sustained by the plaintiff in being obliged, in consequence of the charge so made by the defendant, to have an inquest taken on the body of the deceased.

What! after a verdict, shall the court be guessing and inventing a mode, in which it might be barely possible for these words. to have been spoken by the defendant, without meaning to charge the plaintiff with being guilty of murder? Certainly not. Where it is clear that words are defectively laid, a verdict will not cure them. But where, from their general import, they appear to have been spoken with a view to defame a party, the court ought not to be industrious in putting a construction upon them different from what they bear in the common acceptation and meaning of them.

I am furnished with a case founded in strong sense and reason in support of this opinion; the name of it is Ward v. Reynolds, Pas. 12, Ann. B. R., and it is as follows: The defendant said to the plaintiff, "I know you very well; how did your husband die?" The plaintiff answered, " As you may, if it please God." The defendant replied, "No; he died of a wound you gave him." On not guilty, there was a verdict for the plaintiff; and on a motion in arrest of judgment the court held the words actionable; because, from the whole frame of them, they were spoken by way of imputation. And Lord Chief Justice Parker said: "It is very odd that after a verdict a court of justice should be trying whether there may not be a possible case in which words spoken, by way of scandal, might not be innocently said. Whereas, if that were in truth the case, the defendant might have justified, or the verdict would have been otherwise." So here, if shown to be innocently spoken, the jury might have found a verdict for the defendant; but they have put a contrary construction upon the words as laid, and upon the last count have found that the defendant meant a charge of murder. Therefore I am of opinion that the judgment of C. B. must be affirmed.

ASTON, WILLES, and ASHHURST, JJ., of the same opinion. Judgment affirmed.

BROOKER v. COFFIN.

(5 Johns. 188. Supreme Court, New York, November, 1809.)

Lewdness. Crime. Criterion of Action. To say of a person "she is a common prostitute, and I will prove it;" or, that "she was hired to swear a child on me; she had a child before this when she went to Canada; she would come damned nigh going to the State prison," — is not actionable, without alleging special damage. The rule seems to be, that where the charge, if true, will subject the party charged to an indictment for a crime, involving moral turpitude, or subject him to an infamous punishment, then the words are in themselves actionable.

THIS was an action for slander. The declaration contained two counts. The first charged that on the 1st of February, 1808, at Schagticoke, in the county of Rensselaer, &c., for that whereas the plaintiff being a person of good name, &c., the defendant falsely and maliciously did speak and utter of and concerning the plaintiff the fo lowing false, scandalous, and defamatory words: "She (meaning the plaintiff) is a common prostitute, and I can prove it." The second count charged that the defendant afterwards, to wit, on the day and year aforesaid, at the place aforesaid, in a certain other discourse, &c., did falsely and maliciously speak and utter the following false, scandalous, and defamatory words, to wit, "She (meaning the plaintiff) was hired to swear the child on me (meaning the plaintiff was hired falsely and maliciously to swear a certain child on the defendant). She (meaning the plaintiff) has had a child before this (meaning before this child, or the child which the said defendant had before said the said Nancy had been hired to swear on him), when she went to Canada (meaning a certain time when the plaintiff had been at Canada). She (meaning the plaintiff) would come damned nigh going to the State prison" (meaning that the said plaintiff was guilty of such enormous and wicked crimes as would, if punished according to the laws and statutes in such cases made and provided, condemn her to infamous punishment in the State prison). Whereas, in truth, &c.

There was a general demurrer to the first count, and a special demurrer to the second count and joinder.

Wendell, in support of the demurrer. In England there are

various statutes for the punishment of disorderly persons. 4 Com. Just. B. 76, 83. But the decisions in support of the action have been where the party shows a special damage, as for calling a woman a whore, whereby she lost her marriage. Com. Dig. 262, Action for Defamation, D. 30. Notwithstanding the statutes against disorderly persons, it has never been held that those words were actionable, without alleging a special damage. It is true that, by the act for apprehending and punishing disorderly persons, a common prostitute is declared to be a disorderly person, and therefore liable to punishment; but, by the same act, vagrants, beggars, jugglers, pretenders to physiognomy, palmistry, or such crafty sciences, fortune-tellers, discoverers of lost goods, persons running away from their wives and children, vagabonds and wanderers, and all idle persons not having visible means of livelihood, are also declared to be disorderly persons, and are equally liable to be apprehended and punished under the act. If, then, to call a woman a common prostitute is actionable, without alleging special damage, on the ground of a liability to punishment under this act, then to call a person a juggler, fortune-teller, or physiognomist, would also be actionable, which will hardly be pretended.

The words, that the plaintiff was hired to swear a child," are not actionable (1 Com. 270, F. 12, D. 6), and they are not helped out by the innuendo. The words are ambiguous, and it is not said whose child was referred to, so that the defendant could not come prepared to prove the truth of the words. The words, that "she would come damned nigh going to the State prison," are too vague and general to be the ground of an action. 2 Johns. 12.

Again, in the second count the plaintiff does not aver that she was of good fame, &c., and free from the crime charged against her. 1 Com. Dig. 276, G. I.

Sedgwick, contra. 1. The numerous cases to be found in the books relative to the action of slander, and as to what words are actionable and what are not, are so contradictory and absurd as to afford no satisfactory rule on the subject. 1 Com. Dig. Action on the Case for Defamation, D. 3, D. 9, F. 20; 3 Black. Coin. 124; 4 Bac. Abr. 487. Resort must, therefore, be had to the principle on which the action of slander is founded. Where the words spoken impute to a person an act of moral

turpitude or crime which may subject him to punishment, they are actionable. Here the words, besides imputing great moral turpitude, and tending to render the person odious in the opinion of mankind, may, if true, also subject the party to an infamous and disgraceful punishment. Common prostitutes, by the act which has been cited, are declared disorderly persons, and may be sent to bridewell or the house of correction, and be kept to hard labor for sixty days, or even for six months; and, moreover, may be whipped at the discretion of the general sessions of the peace. The first set of words charged in the declaration is, according to the general principle I have stated on this subject, actionable.

2. As to the second set of words, I admit that the sense of them cannot be enlarged by innuendo. The true rule is, that the words are to be taken in the sense in which they are understood by the generality of mankind. This rule is well laid down and illustrated by Lord Ellenborough, in the case of Woolnoth v. Meadows, 5 East, 463; Cowp. 275, 278; 2 Ld. Raym. 959; 1 Vent. 117. If the words, then, fairly import the charge of a crime, and would be so understood by mankind, the injury is inflicted on the character of the plaintiff, as completely and deeply as if the crime had been imputed in the most direct and positive terms; and the plaintiff is entitled to a remedy. Can there be any doubt in the mind of any man that the defendant meant to say that the plaintiff had been guilty of perjury?

Wendell, in reply, observed that if to say of a person what, if true, might subject him to an indictment, would render the words actionable, without alleging special damages, then to say of a person that he had committed an assault and battery on another, would be actionable.

SPENCER, J., delivered the opinion of the court. The first count is for these words, "she is a common prostitute, and I can prove it;" and the question arises, whether speaking these words gives an action without alleging special damages. By the statute (1 R. L. 124), common prostitutes are adjudged disorderly persons, and are liable to commitment by any justice of the peace, upon conviction, to the bridewell or house of correction, to be kept at hard labor for a period not exceeding sixty days, or until the next general sessions of the peace. It has been supposed that, therefore, to charge a woman with being a common