§ 302. Where the language published concerns both husband and wife, the husband may sue alone for the injury to him, and the husband and wife may sue jointly for the injury to the wife. In an action by husband and wife, a plea that the plaintiffs were not man and wife at the time of the commencement of the action is a good plea in bar. But it is not a defense to an action by husband and wife that the plaintiffs were not married at the time of the publication complained of.3 Where the husband and wife are improperly united as plaintiffs, and there is no demurrer, the error is cured by verdict, or by omitting to demur.5

1 Gazynski v. Colburn, II Cush. 10; Bash v. Sommer, 20 Penn. St. R. 159; Emington v. Gardiner, 1 Selw. N. P. 301; Smith v. Hobson, Style, 112; Ebersoll v. Krug, 3 Binney, 555; Hart v. Crow, 7 Blackf. 351, ante, note 1, p. 162. The court will not order such actions to be consolidated. (Anon., Selwyn N. P. 301; Swithin v. Vincent, 2 Wils. 227; Subley v. Mott, Bull. N. P. 5.) In an action by a husband for words concerning his wife, in the past tense, a demurrer was allowed, because it did not appear that the words were published since the plaintiff's marriage. (Ray . Wakefield, I Australian Jurist Rep. 162.) Now, by statute 15 & 16 Vict. ch. 40, in an action by husband and wife for injury to the wife, in respect of which she is necessarily joined as a coplaintiff, the husband may add thereto claims in his own right, and separate actions brought in respect of such claims may be consolidated. In case of the death of either plaintiff, such suit, so far as relates to the causes of action, if any, which do not survive, shall abate.

Chantler v. Lindsey, 16 M. & W. 82; 4 Dowl. & L. 339.

3 Spencer v. McMasters, 16 Ill. 405; and see Benaway v. Congre, 3 Chand. 214. But in an action by husband and wife, for words imputing adultery to the wife, it was held necessary to aver that they were husband and wife at the time of the publication. (Ryan v. Madden, 12 Vt. 51.)

4 Russell v. Corne, I Salk. 119; 2 Ld. Raym. 1031; Todd v. Bedford, 11 Mod. 264; Lewis v. Babcock, 18 Johns. 443.

5 Code of Pro. N. Y. § 145. This defect cannot be insisted upon under a demurrer that the complaint does not state a cause of action. (Eldridge v. Bell, 12 How. Pr. R. 547.) No action can be maintained for the price of libelous pictures. (Fores v. Johnes, 4 Esp. 97.) A printer cannot recover for printing a libel. (Poplett v. Stockdale, Ry. & Moo. 337; Bull v. Chapman, 8 Ex. 104.) If a printer undertakes to print a book, and as the work proceeds finds the matter defamatory, he may decline to continue the work, and can recover for the part of the work which is not defamatory. (Clay v. Yates, 1 Hurl. & N. 73.) Nor could an action be maintained for breach of a contract to furnish manuscript of defamatory matter. (Gale v. Leckie, 2 Stark. R. 107.) Or for pirating a libelous book. (Stockdale v. Onwhyn, 5 B. & C. 173; see Campbell's Lives of the Chancellors, X, 255, reviewing the decisions

§ 303. For language published concerning partners in the way of their trade, all the partners may or should join ;1 but if the language concerns and injuriously affects either partner individually, he may sue alone. The general rule is, that where the injury is several, each person jured must sue separately and alone; as if one say, "A. and B. murdered C.," or "Either A. or B. murdered C.,' A. and B. cannot maintain a joint action.3

in

$304. For a publication by a married woman of defamatory language, before or during coverture, the action must, in the absence of any statute to the contrary, be against her and her husband. A husband and wife may

of Lord Eldon, who refused to protect the copyright of alleged libelous works; see § 183, ante.)

'Cook v. Batchellor, 3 B. & P. 150; 2 East, 426; Le Fanu v. Malcolmson, I Ho. of Lds. Cas. 637; 13 Law Times, 61; Foster v. Lawson, 3 Bing. 452; II Moore, 360; Brownl. Rediv. 81; Haythorn v. Lawson, 3 Car. & P. 196; Pechell v. Watson, 8 M. & W. 691; 2 Wm. Saund. 117, 6th ed.; see note to § 118, and § 185, ante. In defamatory language of coproprietors of a newspaper, held a joint action would lie, without special damage, and jury might give special damages. (Russell v. Webster, 23 Weekly Rep. 59.)

ទ Taylor v. Church, 1 E. D. Smith, 279; Harrison v. Bevington, 8 Car. & P. 708; Robinson v. Marchant, 7 Q. B. 918; Fidler v. Delavan, 20 Wend. 57; Longman v. Pole, I M. & M. 223; Tait v. Culbertson, 57 Barb. 9; Noonan v. Orton, 32 Wis. 106.

3 Smith v. Cooker, Cro. Car. 513; 10 Mod. 198. As to one action against several for one libel, see Harris v. Huntington, 2 Tyler, 147; Watts v. Fraser, 7 C. & P. 369; Miller v. Butler, 6 Cush. 71; Glass v. Stewart, 10 S. & R. 222, ante, note I, P. 546.

4 Head v. Briscoe, 5 Car. & P. 484; and see ante, note I, p. 162; Swithin v. Vincent, 2 Wils. 227; Burcher v. Orchard, Style, 349; 2 Wm. Saund. 117 d, 6th ed.; McQueen v. Fulgham, 27 Texas, 463; Hanson v. Hill, 53 Barb. 238 ; Hawk v. Harman, 5 Binney, 43; Horton v. Payne, 27 How. Pr. R. 574; Baker v. Young, 44 Ill. 42.) In Michigan, the husband is not liable for a tort (defamation) by his wife, but he may be joined as a defendant. (Burt v. McBain, 29 Mich. 260.) And so in Massachusetts (McCarty v. De Best, Sup. Ct. Mass. March, 1876); but the Ohio act of 1861, concerning the rights of married women, has not altered the rule that the husband is liable for the torts of the wife. (Fowler v. Chichester, 26 Ohio St. R. 9.) And in England, by statute 20 & 21 Vict. ch. 85, a woman judicially separated from her husband is considered a feme sole for the purposes of contracts, wrongs, and injuries, and suing and being sued in civil proceedings; and her husband is not liable for her contract or wrongful act or omission.

be jointly sued for a joint publication of written defamatory matter.1

§ 305. In certain cases the plaintiff is entitled to elect de melioribus damnis (§ 119), or as to which of several parties he will sue, but neither in such cases, nor in any other case can there be any contribution between the parties, it being a general rule of law that there is no contribution between wrong-doers."

1 Catterall v. Kenyon, 3 Q. B. 310; Keyworth v. Hill, 3 B. & Ald. 685.

? See Merryweather v. Nixon, 8 T. R. 186, and notes thereto, 2 Smith's Lead. Cas. and in addition, Moscati v. Lawson, 7 C. & P. 32; Andrews v. Murray, 33 Barb. 354; citing Miller v. Fenton, 11 Paige, 18; Coventry v. Barton, 17 Johns. 142; Peck v. Ellis, 2 Johns. Ch. 131; Pearson v. Skelton, 1 M. & W. 504; Hunt v. Lane, 9 Ind. 248; Minnes v. Johnson, 1 Duvall (Ky.) 171; Silvers v. Nerdlinger, 30 Ind. 33. No contract will be implied to indemnify a party against the consequences of an illegal act, e. g., the publication of a libel. (Shackell v. Rosier, 3 Sc. 59; 2 Bing. N. C. 634.) And semble, the proprietor of a newspaper convicted and fined for the publication of a libel in his paper, which libel was inserted without his knowledge or consent by the editor, has no right of action against the editor for the damages sustained through such conviction. (Colburn v. Patmore, I C. M. & R. 83; 4 Tyrw. 677; Moscati v. Lawson, 7 C. & P. 32.) One cannot take security to be indemnified against the consequences of an illegal act to be done. (Domat Civil Law, bk. iii, tit. 4, § 1, div. viii; and the same book and title, § 5, div. i; and see Howe v. Buffalo & Erie R. R. 38 Barb. 124; St. John v. St. John's Church, 15 Barb. 346.) A promise to indemnify one for publishing a libel is void. (Arnold v. Clifford, 2 Sumner, 238; Atkins v. Johnson, 43 Vt. 78.) But an indemnity against the consequences of an illegal act already done is binding. (Griffiths v. Hardenburgh, 41 N. Y. 469, citing Stone v. Hooker, 9 Cow. 154; Doty v. Wilson, 14 Johns. 379; Kneeland v. Rogers, 2 Hall, 579.)

CHAPTER XIII.

PLEADING. THE COMPLAINT.

General requisites of a complaint - Complaint for language concerning a person only --Inducement -Colloquium-Publication-Matter published-Innuendo-Special damage-Several counts-Supplemental complaint.

$306. The complaint corresponds to the declaration in the common-law system of pleading. Its general requisites are that it must state (1) the name of the court in which the action is pending; (2) the names of the parties; (3) the county in which it is desired the issues shall be tried; (4) the facts which constitute the cause of action; (5) a demand of relief. It must be subscribed by the plaintiff or his attorney, and may, at the option of the plaintiff, be verified. Of these several requisites we purpose to consider in detail only the fourth -the statement of the facts which constitute a cause of action.

307. The statement of a cause of action must necessarily differ more or less according to the difference in the state of facts of each particular case. But there are certain allegations essential in every case to the sufficiency of such a statement; we will show what are these allegations, and endeavor to explain the rules by which their sufficiency may be tested. We premise by observing that we address ourselves exclusively to the statement of a cause of action for slander or libel concerning

the person. Such a statement may be conveniently considered under the following heads: (1) The inducement; (2) The colloquium; (3) The act of publication; (4) The statement of the defamatory matter published; (5) The innuendoes; (6) The damages.

§ 308. We attempted, in a previous chapter (ch. vii), to explain (1) that the actionable quality of language was dependent upon its construction, and (2) how the construction may be affected by a variety of extrinsic circumstances. It is the office of the inducement to narrate the extrinsic circumstances which, coupled with the language published, affects its construction and renders it actionable; where standing alone and not thus explained, the language would appear either not to concern the plaintiff, or if concerning him not to affect him injuriously. This being the office of the inducement, it follows that if the language published does not naturally and per se refer to the plaintiff, nor convey the meaning the plaintiff contends for, or if it is ambiguous or equivocal, and requires explanation by some extrinsic matter to show its relation to the plaintiff, and make it actionable, the complaint must allege, by way of inducement, the existence of such extrinsic matter; but that where

1 "Inducement is the statement of the facts out of which the charge arises, or which are necessary or useful to make the charge intelligible." (Tindal, Ch. J., Taverner v. Little, 5 Bing. N. C. 678; ante, § 129.)

* Inducement is necessary where the language does not naturally and per se convey the meaning which the plaintiff would attribute to it, and where a reference to some extrinsic fact is necessary to explain it. (Dorsey v. Whipps, 8 Gill, 457; Fry v. Bennett, 5 Sandf. 54; Hull v. Blandy, 1 Y. & J. 480; Gosling v. Morgan, 32 Penn. St. R. 273; Galloway v. Courtney, 10 Rich. Law [S. Car.] 414; The State v. Neese, 2 Tayl. 270; Cannon v. Phillips, 2 Sneed [Tenn.] 185; Edgerly v. Swain, 32 N. Hamp. 478; Smith v. Gafford, 31 Ala. 35; Lumpkins v. Justice, 1 Smith [Ind.] 322.) Where the language is claimed to be ironical, it must be so alleged in the inducement. (Boydell v. Jones, 4 M. & W. 446; 7 Dowl. Pr. Cas. 210.) In slander the words stated in the declaration were, "Thou set fire to those buildings, and thou wilt never be easy till thou hast told it." There was no introductory averment that the houses had been feloniously burned. A rule for arresting the judgment