Throgmorton v. Davis

Blackford, J. This was an action of slander brought by Asa Davis and Susanna his wife, against Joseph Throgmorton. The words, for which the action was brought, are charged in the declaration to have been spoken by Throgmorton concerning the wife of Davis. The declaration concludes as follows:— “By means of the committing of the said several grievances by the said Throgmorton, she the said Susanna is greatly injured in her good name, fame, credit, and reputation, amongst her neighbors, and hath sustained damages to the amount of 1,000 dollars, therefore they sue,” &c. The defendant pleaded the general issue and the statute of limitations. Verdict and judgment for the plaintiffs. O. H. Smith, for the plaintiff. G. H. Dunn and J. Test, jun. for the defendants. This judgment cannot be supported. The action is brought by the husband and wife for a personal wrong to the wife; and the declaration should have concluded to their damage, and not to the damage only of the wife. It has been decided, that if, in cases like the present, the declaration conclude .to the damage of the husband, instead of to the damage of the husband and wife, the conclusion is wrong, and the objection may be made in arrest of judgment. Newton et ux. v. Hatter, 2 Ld. Raym. 1208. The reason of this is, that the damages will survive to the; wife, if the husband die before they are received. 1 Selw. N. P. 232. If that be the law, it follows, a fortiori, that where, as in the present case, the action is by the husband and wife for the slander of the wife, and the declaration concludes to the damages of the wife alone, the judgment for the plaintiffs must be erroneous. Davis may, at any time during his life, receive the damages recovered in-this action; and, should he survive his wife and die without receiving them, they could be received by his personal representatives. The declaration should have, alleged the damages to have been sustained by Davis as well as by his wife. That is not done, and the judgment for the plaintiffs must consequently be reversed.' Per Curiam. The judgment is reversed with costs.