FORSYTH a. EDMISTON

FORSYTH a. EDMISTON. New York Superior Court; General Term, February, 1856. Slander. — Pleading.—Conspiracy. A statement of the tenor and effect of the words complained of, in an action for slander, is bad pleading. Whether an action for slander will lie against two, for words alleged to have been uttered in pursuance of a conspiracy between them. — Query ? Demurrer to a complaint. This was an action of slander brought by William R. For-syth against John Edmiston and James Edmiston. The complaint stated three causes of action. The third count of the complaint alleged that the defendants, with intent to injure the credit of the plaintiff and to impair his business, &c. — did falsely and maliciously utter in the bearing and presence of sundry merchants and other citizens, “ certain false and defamatory words and statements of the following tenor and import, and to the following effect, that is to say, that his, the plaintiff’s credit, was gone; that he had failed to pay his debts, and that they had obtained a judgment against him for a large amount; and that for the purpose of causing such statements to be believed, they exhibited in connection with the conversation, copies of a record of judgment alleged in the complaint to have been fraudulently or irregularly procured by the defendants against the plaintiff; and meaning by these words and acts that the plaintiff was insol-, vent, and that the defendants had a valid judgment against him, which he could not pay. The count contained a further allegation, that all this was done by the defendants in combination with each other, they being partners and acting in concert in respect thereto. The defendants answered as to the first two causes of action, and demurred as to the third: — on the ground that there was a defect of parties defendant, in that the defendants were sued jointly for an offence which could only be committed by one, and that the count did not state facts sufficient to constitute a cause of action. The demurrer was argued at general term. John Townshend, for the demurrer, Asa Child, opposed. [MAJORITY — SlossoN, J.] SlossoN, J. I think the demurrer well taken in this, that the expressions charged to have been spoken, are not alleged to have been the identical words spoken, or even as in substance the words spoken which, perhaps, would be good, but as words and statements of a certain tenor, import, and effect, which is bad. (Maitland v. Joldney, 2 East., 427; Cook v. Cox, 3 Maule & S., 110; Ward v. Clarke, 2 Johns. R., 10). As a general rule an action of slander will not lie against two, though an action for composing and publishing a libel may. (Chitty's Plead., 74; Bul. N. P. 5; Johns. R. 32). Whether, where the slander is alleged to have been uttered in pursuance of a conspiracy between the defendants, a count to that effect would be good, is unnecessary to decide, since the demurrer is sustained on the other ground ; but I am inclined to the opinion that such a count would be good. There must be judgment for the defendants on the demurrer with costs — with liberty to plaintiff to amend his count within twenty days.