Haldeman v. Martin

Gibson, C. J.

There was distinct evidence of *372 combination between Ilaldeman and Barnitz, to mate the acts and declarations of the one the acts and declarations of the other; and this disposes of the first four bills of exceptions to evidence.

The testimony in the fifth and sixth bills was properly admitted. The law is settled, that particular damage, where it is a separate and independent part of the cause of action, must be specially Maid; but where it is the natural consequence of an injury, actionable without it, it need not be set out; and what is a more natural consequence of successful defamation, than loss of intercourse with friends ? The plaintiff was therefore at liberty to prove, that she had been deserted by her acquaintances, in consequence of-the slander, without having alleged the fact in her declaration.

It is scarce necessary to say that the letters were properly sent out with the jury.,

Nor is it more necessary to say, that it is the practice of the English and American courts, where evidence has not been given on bad counts, to enter the verdict on those which are good, and supported by the proof. It is a matter of legal discretion, of which, where the whole evidence is not embodied in the bill of exceptions, a court of error cannot judge; and we are not certain here, that the whole has been brought up, even in our own irregular way. We cannot say, therefore, that there has been an error in this particular.

The objection to the counts on which the verdict was ultimately entered, is not sustained. A conspiracy to do an illegal thing, is actionable, if injury proceed from it; and where the illegal purpose has been executed, it is false and malicious wherever the motive for the conspiracy to execute it, was false and malicious. JEx vi termini, a conspiracy to accuse, is evidence of its illegality; and as the presumption of innocence holds till it is rebutted, it is also evidence of falsity till the contrary be shown. Falsity of the charge in the first instance, implies malice; and where the uttering of the words in which it is made, is not the gist of the action, they need not be set out. The act to be done may be stated in general terms, provided it be stated with convenient certainty. ' In Hood v. Palm, 8 Barr, 237, a declaration in an action for a conspiracy to charge the plaintiff with fraud, stated the charge made pursuant to the conspiracy, according to the substance, and not the words of it; and this, too, without exception by the defendants’ counsel.

The exceptions to the charge, that the defendants’ first and *373 second prayers for specific directions, were either not answered with such distinctness as would enable the jury to understand the principles of the action and the evidence applicable to it, or that they were not answered at all, are destitute of foundation in fact. They were distinctly, specifically, and accurately answered, though not so fully as they are represented in the argument to have required. They contained no request to charge, that as the plaintiff had relied on the separate declarations of the defendants, she was bound to take them as they were made, without imputing to the defendants a motive different from what had been avowed; and the same thing may perhaps bo affirmed of the other matters contained in the argument, which proceeded at large, without being restrained to the specific points.

As to the prayer for direction, that the overt act of conspiracy should have been substantially set forth, and that the slanderous words should have been laid to have been spoken falsely and maliciously, it difficult to see what the jury had to do with it. A declaration containing the substance of a good cause of action, may doubtless be good after verdict, though it might have been bad on objection made to it at the proper time. But when is the objection to be made, and how? Not at the trial, after the defendant has waived it, by taking issue on the facts as the only matters to be passed upon; and not by referring the sufficiency of the count to the jury, under the direction of the court, but by special demurrer, before he has pleaded in bar. The court was therefore not bound to respond. At all events, the objection was bad on the law of the case, as has been shown in the preceding remarks; and for that reason, too, the court was bound to withhold the instruction requested.

Judgment affirmed.