Labady v. Richard

3 Blume Sup. Ct. Trans. 451

• Court: Michigan Supreme Court
• Decided: October 7, 1823
• Status: Published

Opinion

[OPINION]

It is a rule in law that words, in themselves actionable, may, nevertheless, not bear an action; from the particular circumstances, under which they are used.

AUTHORITIES.

2 Binney 60, Bull. N. P. 8, Caines 346,1 Cowp. N. P. 98, 267, 269, Co. Rep. 146, 4 Co. 14 b, 16a, 16 b, 19, Cro. Eliz. 230, 3 Esp. Rep. 32, 5 Esp. Rep. 13, 109, 2 H. B. 531, Hutt. 2, 2 Hutt. 18, 2 Johns. Rep. 10, 5 Johns. Rep. 188, 1 Johns. Ca. 279, Peake N. P. 4, Salk. 694, Sittings after Trinity 5 G. 3, Sittings after Easter 6 G. 3,1 Term Rep. no, 6 Term 691, Tyng’s Mass. Rep. 406,

The following words, among others, are contained in the first count of the declaration in this case: “Ce FRANCOIS LABADIE est en pecheur scandaleux. II commet adultere. Ayant une femme encore vivante, il 'epousa, la veille, une autre femme; et se fit marier par un magistrat protestant. Ce mariage, qu’il a contráete, n’est ni bon ni valide. Cest un concubinage.” “This FRANCIS LABADIE is a scandalous sinner. He commits adultery. Having a wife yet living, he married, yesterday evening, another woman; and caused himself to be married by a protestant magistrate. The marriage, which he has contracted, is neither good nor valid. It is a concubinage.”

These words, not alledging an adultery cognizable by the law of the land; and the circumstances, under which the preacher is charged to have used them, having evident relation to the discipline and doctrines of his profession; the rule of law alluded to applies, and the count is obviously bad.

Concilii Tridentini, Sessio XXIV, Canon VII, Conche de Trent 303, 1 Johns. Ca. 279, Peake N. P. 4.

It is a question, which need not, now, be decided, whether the second count is not liable to the same objection. The third and fourth counts appear to be free from it.

It is a second rule in law, that if a general verdict be found, on a declaration containing several counts, and entire damages be given, and any one of the counts be bad, the judgment, in that case, MUST be arrested.

Barnes 478, 3 Caines 329, 10 Coke 130, b, Doug. 362, 5 Johns. Rep. 476, 3 Wils. 177.

I am, therefore, of opinion, that, in this case, judgment, must be arrested, from the defects of the first count.

Michigan, Tuesday, Oct. 7. 1823. A. B. Woodward.