10 Watts 245 | Pa. | 1840
Several of these counts are defective. The one in which no particular words are laid, is- grossly so — and, as the verdict was taken generally, the judgment must be reversed, though it was entered on particular counts, supposed to be good. The verdict rests upon the declaration: the judgment on the verdict, and consequently as it was found. Who can say that a part of the damages was not assessed on the defective counts? It is the business of the jury to dispose of the whole case; and the presumption from a general verdict is, that it has been disposed of in favour of the successful party. The jury then may get round a defective count, but the court can not. To find on the bad counts, and give judgment on the good, would be a juggle by which the defendant might be made answerable for innocent words. In this instance, therefore, the judgment must be reversed; and what remains for us to determine is, whether there is any good count in the declaration to found an order for a venire de novo. As it was originally filed, it contained words which, if coupled with a proper averment, would undoubtedly be actionable. For to call a woman a wanton, and to say she went gadding about with young men to night-meetings; that they were watching by the way for her, is too plain an imputation of sexual indulgence to be misunderstood. What is wanting to fix it with precision, is an averment of the particular meaning, by innuendo or otherwise, and that has been supplied in one of the additional counts. The charge averred to have been made, is indeed not fornication, but adultery — and there is no averment that the plaintiff was married. But is not the fact to be intended, after a verdict which could not have been legitimately found, without proof of it? The cause of action has been defectively stated, but it is nevertheless a cause of action. But it is urged, that the additional counts are no part of the declaration, because it appears by the dates on the minutes that they were filed when the verdict had been recorded. These dates, however, are not strictly part of the record, and they are consequently insufficient to subvert the common law principle, that the term is, in contemplation of law, but a single day: to which the true date of a judgment is made an exception only by the power of a statute. The 29 Car. 2, in England, and the act of 1772 here, and the true time of issuing a writ, is also an exception by force of necessity, as was held in Hargreaves’ Assignees v. Smith, 2 Burr. 950. But though a particular count might stand the test of a writ of error, it will probably be thought prudent to remodel the whole declaration, and it is unnecessary to look further into the matter here.
Judgment reversed, and a venire de novo awarded.