Newcomer v. Kean

Robinson, J., delivered the opinion of the Court. This is an action by husband and wife, for slanderous words spoken of the ivife.- The words laid in the declaration are actionable per se, and it was necessary therefore that both should join in the suit. The wife could not sue alone, because of her disability as feme covert, and because the husband is entitled to the judgment. Nor could the husband sue alone, because the foundation of the action is the injury to the wife, and his rights are therefore secondary only and derivative through the marital relation, and should he die before payment of the judgment, the wife would be entitled to it by the right .of survivorship. For the same reasons the claim to damages must be made in behalf of the plaintiffs, the husband and wife. • In 1 Ghitty on Pleading, 88, the author says: “When an injury is committed to the person of the wife during coverture, by battery, slander, &c., the wife cannot sue alone in any case, and the husband and wife must join if the action be brought for the personal suffering or injury to the wife; and in such a case the declaration ought to conclude to their damage and not to that of the husband alone, for the damages will survive to the wife if the husband die before they are recovered.” The text of the author is fully sustained by the decided cases. 'It was upon this ground, that in Newton & Wife vs. Haller, 2 Lord Raymond, 120, where the suit was brought by husband and wife for a battery of the wife, and the declaration concluded to the damage of the husband, instead of damages to both, the judgment was arrested after verdict. And in Throgmorton vs. Davis & Wife, 3 Blackf., 383, where suit was brought by husband [123] and wife for slanderous words spoken of the wife, the judgment was arrested, because the claim to damages in the declaration was made in the name of wife. If then, the claim to damages in this declaration had been made in the name of either the husband or wife alone, it might be contended, that it was fatally defective on motion in arrest of judgment. But such is not the claim made in the declaration now before us. It does not conclude as in Newton and wife, by claiming damages for the husband, nor as in Throgmorton vs. Davis & Wife,, is the claim made in the name of the wife. Where the claim is thus made in behalf of one of the plaintiffs tp the exclusion of the other, the declaration is bad, because each has an interest in the judgment. Here, however, the conclusion is <£to the great damage of the plaintiff, and the plaintiff claims $10,000 damages.” The suit is brought in the name of the husband and wife, and the original declaration as filed contained two counts, and the conclusion was, “And the plaintiffs claim $10,000 damages.” This was the proper conclusion. The defendant joined issue upon the first count, and demurred to the second. Afterwards, the plaintiffs filed nine additional counts, and an amended second count, and the conclusion to the amended declaration is “ to the great damage of the plaintiff, and the plaintiff claims,” &c. Now, looking to the whole record, the original and amended declaration, it is evident, we think, that the word “plaintiff ” instead of “plaintiffs,” is a mere clerical mistake in the pleader, the omission of a letter s. Clerical misprisions are construed to be not only mistakes of the clerk in Court, but such slips in writing, as a clerk of the party might make. The suit was brought by the husband and wife, to recover damages, and both of them had an interest in the judgment. It is plain, the pleader meant to claim damages for both, and the word plaintiff was inadvertently written for plaintiffs. [124] (Decided 1st July, 1881.) The case was tried before a jury on its merits, and every legal intendment ought to be made in support of the verdict. To arrest the judgment in this case, because the word plaintiff was. written by mistake for the word plaintiffs, would be technical indeed, and inconsistent with the broad and liberal spirit, with which Courts now-a-days deal with objections of this kind. • For these reasons, the judgment of the Court below, on the motion in arrest of judgment is reversed, and the cause remanded to the end, that judgment shall be entered for the plaintiffs in accordance with the verdict. Judgment reversed, and cause remanded.