Dioyt v. Tanner

20 Wend. 190

• Court: New York Supreme Court
• Decided: October 15, 1838
• Status: Published

Opinion

By the Courts Nelson, Ch. J.

It is well settled that words not actionable in themselves may be laid in the same count with words actionable, and may be proved to show the quo animo or in aggravation of damages. It cannot, therefore, be permitted to the defendant to select the words not actionable and demur to them, taking issue upon the others. 6 Wendell, 407, 410. 3 Wilson, 185. 2 East. 438. 2 Saund. 307, n. 1, a. 1 Campb. 49, n. If the defendant insists that the words demurred to are actionable, then he must fail of course, as he should have included them in the plea of the general issue, or set up some other defence ; and this he should have done whether the words laid constituted a distinct cause of action or not.

There is nothing in the suggestion that the count contains a misjoinder of distinct causes of action ; the words relate to the same crime. 2 R. S. 674, § 39.

Judgment for plaintiff.