Blessing v. Davis

[101] By the Court, Cowen, J. It is conceded that, had the defendant been charged as the originator of the slanderous words, the declaration would be bad in substance, by reason of its generality. Ward v. Clark, 2 Johns. R. 10, 13. But it is denied that the same particularity is requisite where the imputed slander consists in adopting the words of another. We can perceive no reason for the distinction. In the first ease the object is to see whether the words imputed to the defendant by the declaration are slanderous in their character, and give notice to him so that he may know against what he is to defend himself. The same reasons obviously apply to the latter. It is supposed that the only mode in which the defendant could avail himself of the objection, was by demurring or moving in arrest. And this would generally be so of counts entirely defective. In such case, if the defendant take issue, the action is maintained at the circuit, if the proof come up to it. But it is otherwise where the plaintiff states a sufficient cause of action, in the same count with another cause deficient in substance. [ *102 ] The course then may be to *reject the bad as surplusage, disallowing all proof in relation to it at the trial, and putting the plaintiff to sustain the good part. Douglass v. Satterlee 11 Johns. R. 16. That was done here. New trial denied.