The opinion of the court was delivered by
Royce, J.Three questions regularly arise in the discussion of this case. 1. Whether the last count in the declaration is originally good and sufficient. 2. Whether, if defective, the defects are cured by the verdict. 3. If it is not aided by the verdict, whether the judgment should be wholly arrested.
The mode of declaring in this oount has some resemblance to the ancient declaration — crimen felonies imposuit. That was only applicable, however, to a particular case. It imported that the defendant had preferred a criminal accusation against the plaintiff before a magistrate.1 And hence it was always necessary in such case, to establish that fact in proof. For words merely uttered in discourse such a form of declaring was never recognized. — Blizard vs. Kelley, 2 B. & C. 283, Coleman vs. Goodwin, there cited in note. It is a rule laid down in all the books, that in an action for mere slander, the words constituting the slandrous charge must be set forth. And to avoid inconvenience from the strictness of this rule, some slight relaxation is permitted in the evidence. This need not correspond in every minute particular with the > words as *483laid, provided the identity of the charge is substantially made out. The first question is therefore clearly against the plaintiff.
At first view the next point would appear more doubtful. The general rule is, that a title or cause of action defectively stated, will be aided by a verdict, whilst a defective title will not. Where a matter is alleged without those attendant facts and circumstances which properly belong to it, and which are essential to its validity, a verdict establishing that matter, and giving it effect, implies the finding of such attendant facts and circumstances. It shall be presumed in such a case, that neither the court would have left it to the jury to find, nor that the jury would have found, the alleged fact, without proof of these others. Thus if the issue is whether A infeoffed B, and the jury find the feoffment, it shall be intended that livery was proved. So if a grant is alleged without saying by deed, after a finding the grant, it shall be intended to have been by deed, if a deed was necessary. — 1 Saund. R. 228 in notes, and by Buller, J., 1 T. R. 145. These illustrations of the rule are doubtless as favorable to the plaintiff as any that the books furnish. They do not, however, remove the difficulty. ' In each case here referred to the fact omitted was a well known legal ingredient in the main fact or proposition alleged. And if this latter was true in any legal and operative sense the very fact omitted (and not other uncertain facts) must also have existed. This count alleges the assumed legal result of facts which do not appear. It amounts to no more than this, that the defendant said something to the plaintiff, or of, and concerning him, which he interprets as a charge of perjury. And now, after verdict, it is to be understood that evidence was given, which the court below considered had a tendency to prove, and which the jury deemed sufficient to prove, that such an imputation was in fact made. But in what the imputation consisted, and whether in words legally admitting this injurious construction, is not to be ascertained,from the record. It follows, that in deciding against the motion in arrest, we should give judgment in favor of the plaintiff, without knowing, whether he had a right to recover. Since the actions for oral and written slander are, in most respects, governed by the same rules, the case of Wright vs. Clements (3 B. & A. 503) appears to be in point to the present purpose. The declaration stated that the defendant published a libel, containing false and scandalous matters concerning the plaintiff, “in substance as follows and then set out the libel with innuendoes. This was held bad in arrest of judgment after verdict. And in concluding his opinion, Abbot, Ch. J. says, in reference to the case *484before him — “ It is of great importance to follow the ancient form of precedents; for if we depart from them in one instance, one deviation will naturally lead to another, and, by degrees, we shall lose that certainty which it is the great object of our system of law to preserve.”
On the whole, as all the authorities and precedents require the words to be set out in the declaration, and as no case is produced showing that this defect is aided by verdict, we come to the result, that a failure to set forth the words is a failure to state any cause of action.
The last question is very easily disposed of. Whilst upon demurrer the plaintiff will be entitled to judgment on any good count in his declaration, though defective counts are included; and whilst in criminal cases the like rule is applicable also to motions in arrest, yet in civil cases, if the declaration contains several counts, and a general verdict is returned for the plaintiff, judgement will be .arrested in toto, if any one count is fatally defective. The reason assigned is, that entire damages having been assessed upon the whole declaration, they canno.t be apportioned by the court among the different counts, nor referred to those only which are good.
In Connecticut, it would seem that this rule has not been adopted. — (1 Sw. Dig. 644.) It is, however, the settled rule in England, in most of the other states, and even in this state. As such, it is binding on the court. — 10 Co. 131. — 2 Saund. R. 307. — 3 Wils. 185. — 6 T. R. 694. — Stark, on Slander, 416. — 5 John. 430. — 8 Mass. 122 — 9 do. 198 — 15 do. 374. — Chipman vs. Cook, 2 Tyler, 465. — Bloss vs. Kittridge, 5 Vt. R. 28.
The effect of such a motion may generally be obviated by having damages assessed on each count separately ; and sometimes by correcting the yerdict from the judge’s notes, and having it entered upon those counts only to which .th.e evidence applied. But no such course is now left, as this could only have been done in the county court.
Judgment affrmed.