KING'S BENCH, A. D. 1822. MARTINERE v. MACKAY ET UX.1 Saying of the plaintiff and one P. S., "I dare say they have got some of the silver spoons in their pockets," is not actionable without an innuendo showing that the words import a felonious stealing. Where some counts in a declaration are good and some bad in law, and general damages are given, the court will arrest the judgment in toto. Sed quære, whether a venire de novo may not be awarded on payment of costs. THIS was an action for words of slander, imputing to the plaintiff that she had been guilty of theft. The declaration contained a great many counts. At the trial before HOLROYD, J., at the Westminster sittings after last Trinity term, A. D. 1822, a verdict was found for the plaintiff on the whole declaration, with £50 damages. In Michaelmas term a rule nisi was obtained for arresting the judgment, on the ground that the eleventh count did not allege any actionable words, and the damages found by the jury being on the whole declaration, the judgment could not be entered up. ABBOTT, Ch. J.-I am clearly of opinion that the eleventh count of this declaration is bad, and that the judgment must be arrested. It cannot be said, that because there is a general allegation in the first count, "that the defendant maliciously intending to have it believed that the plaintiff was a thief," that will make words afterwards introduced into other counts actionable, which are not actionable of themselves; or can be prayed in aid of other counts which are clearly defective. The words themselves must reasonably import a charge concerning some matter or thing which will subject the party accused to punishment. I cannot say that these words convey an allegation that the spoons had been stolen by the plaintiff. The allegation is that the defendant, speaking of certain spoons belonging to her, said, “I dare say the plaintiff has some of them in her pocket." Now, she might have them in her pocket consistently with perfect innocence; and it is impossible to say that these words of 1 See ante, note 3, p. 135. themselves are actionable. Then as to the venire de novo, I am not clear that we can grant such an application as a matter of course. If it is granted, it must be on payment of costs, and the plaintiff will consider whether she will take a venire subject to such conditions, and liable to the consequences which may possibly follow upon a writ of error. BAYLEY, J.—I am of opinion that this judgment must be arrested. My difficulty in awarding a venire de novo is, that it may be error on the record, and that would be subjecting the plaintiff to a great deal of unnecessary expense. Besides, I do not see how a new jury are to be restrained in giving damages upon the other counts beyond what the former jury have given, and that would be exposing the defendant to consequences which the justice of the case may not require. The rest of the court concurred in the same opinion. INDEX. [The reference is to the number of the page.] ABANDONING a cause of action or defense on the trial,[501. by death. See DEATH, BANKRUPTCY. of appeal, in what cases, 531. ABOMINATION, charge of committing, 196 n. ABORTION, charge of taking medicines to produce, actionable, 191, 191 n., ABSOLUTE RIGHT, no such thing as, 32. ACCIDENT, liability for, 53 n. ACCORD and satisfaction, defense of, 442. defense of, must be pleaded, 442, 665. ACCOUNT BOOKS, charge of falsifying, when actionable, 234. ACCUSATION, what amounts to an, 154. ACQUITAL, does not prevent a defense of truth, 592. ACT, word is, 2 n. may give character to words, 260 n. public, comment on, 467. See ACTS, PUBLIC ACT. ACTION, how commenced, within what time, and in what court, 480. list of actions, for wrongful resort to legal proceedings, 331 m., 700 n. notice of, when required, 480 n. for words, meaning of, 14 n. lies for words written, which not actionable if only spoken, 12 n., 13 n. on the case, origin of, 36. for words, gist of, 37-50. compared with action for nuisance, 1 n. |