Solomon Churchill v. Maria Kimble.
Declaration for slanderous words good where distinct sets of words are laid in the same count.
Qucere: If it be sufficient to charge the substance only of words spoken.
This cause came before the court upon a writ of error, to the court of common pleas of Lawrence county, and was adjourned here for decision. It was an action for defamatory words, in which the defendant in error was plaintiff. The declaration commenced with the usual recitals, and proceeded to state the defamatory words as follow, alleging that the defendant “ spoke and published of and concerning the plaintiff, in substance, the following false, scandalous, and defamatoiy words: that is to say,” — setting out the words spoken — “ and the said Solomon of his .further malice did then and there, in presence of divers good people, falsely and maliciously speak, publish, and declare, of and concerning the plaintiff, in substance, that she was, etc.” — again setting out the-words used. In this manner five different sets of words were enumerated, as for one count. There was a second count, which was withdrawn, or a nolle prosequi entered upon it, before trial. There was then a third count, containing four different specifications of words, in different terms, but charged in the same manner as in the first count. Plea, “ not guilty.” General verdict for the plaintiff;* damages ^eleven hundred ninety-five dollars. Motion fora new trial overruled. Motion in arrest of judgment also overruled. Judgment for plaintiff, and writ of error.
Two errors were assigned and relied on: 1. That it was not sufficient to set forth the substance of the words. 2. That each *385set of words constituted a separate count; and some of the sets, taken, separately, were not actionable.
King and Allen, and -, for the plaintiff in error,
argued that the declaration was bad, because the words were not set out as spoken, but only the substance of them, at least as to two sets, which they treated as separate counts. They cited 1 Chit. Pl. 384; 3 M. & S. 110; 1 M. & S. 287. 2 Chit. Pl. 299; 2 Salk. 417, 660; 2 Mod. 78, 84, 95; 6 Taunt. 169; Cro. Eliz. 857; 6 Bac. Abr. 241; 3 Mod. 71; 2 Johns. 12, 13.
They contended also that the different sets of words, as charged in the declaration, were charged as being spoken without any connection, and so introduced as to constitute separate counts. They cited the case of Cheatham v. Tillotson, 5 Johns., as an authority direct in point, that two substantive and direct charges embodied in the same count, are to be considered separate counts; and upon this ground reversed the judgment.
Brazee and M’Connell, for the defendant in error,
cited in support of the declaration on the first point, 2 Starkie Ev. 844, and many other authorities, to show that it was sufficient to prove the substance of the words as laid; from which they argued that it' was sufficient to charge the substance as spoken. And they cited as direct authorities 1 Rich. Prac. 108; 4 Mun. 260; 2 Johns. 12; 1 Bin. 399. On the second point, they cited Willes, 442; 2 Johns. 287; 2 Rich. Prac. 149; Lilly’s Entries, 79; Anthon Amer. Prec. 285; 2 Swift Dig. 428.
By the Court :
It is not controverted but that in each of what the eounsel for the defendant in error admit to be two counts, there is at least one set of actionable words. If it can be permitted to embody different, distinct, and separate allegations in one count, then it become^ unnecessary to decide upon the *first point made, with respect to the validity of charging in the declaration the substance of the words only. We conceive it is the better opinion that different sets of distinct words may be charged in one count. And we are inclined to adopt this opinion from respect to the precedent in Lilly. No work upon the subject is of higher authority; and the precedent cited fully sustains the declaration in this case. The *386ease of Tillotson and Cheatham is undoubtedly against it; but that ease is not authority here. We can only receive it as the opinion of a respectable judicial tribunal. When we receive it as such, we can not shut our eyes to the fact that the Supreme Court of the state decided differently in the same case, and that the chancellor delivered an argument against the-principle of the decision. It was a case decided between adverse political partisans, by a party tribunal, and, so far as we can see, by a party vote. Under these circumstances we can not allow it to control our own judgment.
Without committing ourselves to any positive opinion, as to the manner of charging the slanderous words, we take the occasion to say, it is safer to set them out as spoken, and not rely that to recite the substance is sufficient. The judgment must be affirmed.