— I am satisfied that defendant’s motion should be granted. These words without any allegation of special damage, are not actionable. They are not so at common law, and there being no statute in California, subjecting a party to punishment for being a whore, unless she keep a house of ill-fame, the words are not actionable here. “ Prostitution was not punishable at common law, but by statute applicable to the city of London, alone.” It is true that in the case of Deyo v. Brundage, (13 How, Pr. 221,) to which I have been referred, Harris, J., refused to strike out the words in italic in an allegation setting out the publication of the following words: *156“ Your wife is a damned Irish woman, and has got the palsy; and your son is insane, and you are a damned thief.” In his opinion, although the justice admits that “ the only actionable language imputed to the defendant in the complaint, is that by which he charges, that the defendant is a thief,” and although he says that “ it may not be necessary to allege in the complaint all that was said,” yet he refuses to grant the motion because “ no useful end could be attained by requiring the plaintiff, when preparing his complaint, to select out from the whole conversation those expressions only which involve the slanderous charge.” I must disagree with justice Harris upon the conclusion to which he arrives, from the consideration that, as I understand the spirit of the code, everything which is not necessary is objectionable. There is no necessity for having the words in question in the complaint. It is true, that plaintiff must on the trial, “ prove all that was said at the time,” but I am unable to see that this furnishes any reason for its being alleged. The wrhole conversation must be proved, even though the actionable portion only should be set out on the complaint. The allegation then, of that portion which is not actionable, in no wise affects the case in any of its subsequent stages— it does not alter its position on the trial, nor the proof which can then be introduced. It stands then a simply unnecessary allegation upon the record. Now I do not think that the question is “ if unnecessary and harmless, why should it be stricken out ? ” But rather, starting with the general principle that the spirit of our code contemplates conciseness, brevity and simplicity, “ if unnecessary, why should it be retained ?” There certainly seems to be no satisfactory answer to the question. True, it may be said, that the rights of the defendant may be saved by instructing the jury that the words are not actionable, but I can see no good reason for compelling the defeudant to protect hitnself by an instruction, from a charge which the law does not say is an injury, unless special damages are claimed for it. Defendant’s motion is therefore allowed.