#### *Donaghe v. Rankin.

Argued Thursday, November 25th, 1813.

i. Slander † — Declaration—Recitals — Sufficiency,‡ — A declaration, in slander, containing only a recital of slanderous words, and no. direct charge that those • words spoken by the defendant, is bad ■ alter verdict.

See Hord’s executor v. Dishman, 2 H. & M. 593; Moore’s administrator v. Dawney, 3 H. & M. 127; Lomax v. Hord, Ibid. 271; Syme v. Griffin, 4 H. & M. 377; Cooke v. Simms, 2 Call 39; Winston’s executor v. Francisco, 2 Wash. 187; and Sexton v. Holmes, 3 Munf.

After a verdict for the plaintiff, upon the plea of not guilty, in an action of slander, a motion was made that judgment be arrested, on the ground that no cause of action was laid in the declaration; — there being no charge of any slanderous words spoken by the defendant.

The declaration was in the following words : — “Samuel Rankin complains of Hugh Donaghe, in custody, &c., in a plea of trespass on the case, for that whereas the plaintiff is an honest man and good citizen, and had never been accused or suspected of forgery, perjury, or other crime whatever, before Hugh Donaghe upon the-day of-and year-, at-, in Augusta, within the jurisdiction &c., in the hearing &c.. did utter of concerning the plaintiff the false, malicious, and slanderous words following, to wit, you (the plaintiff meaning) forged a receipt, (meaning a receipt filed in the Chancery District Court in a cause betwixt Samuel & James Rankin and Hugh Donaghe,) and swore falsely respecting said receipt in said cause, you (meaning the plaintiff) are perjured, having sworn false respecting said receipt which you forged; and, of his further malice, iu another conversation, at-, in the county aforesaid,- the said Hugh Donaghe published of and • concerning the plaintiff those other false and malicious words following, to wit, he (meaning the plaintiff) forged a receipt, putting the defendant’s name to it, (meaning a receipt filed in the District Chancery Court holden at Staunton in a cause betwixt Samuel & James Rankin and said Donaghe,) and he (meaning the plaintiff) swore falsely concerning said receipt in said cause, and is perjured, and has been guilty of forgery, for which I (meaning himself the defendant) could have his the plaintiff’s ears, by reason of those false and scandalous reports of the defendant, the plaintiff has lost his good name, and received damage one thousand dollars.”

The superior court of law over-ruled the motion, and entered *judgment for the plaintiff, from which the defendant appealed.

Wirt for the appellant.

Peyton Randolph for the appellee.

Friday, April 1st, 1814,

†

Slander. — See monographic *note*on “Libel and Slander” appended to Bourland v. Eidson, 8 Gratt. 27.

‡

PIeadlng— Declaration — Statements under Quod Cum — Effect.—Upon the question whether it is a fatal defect for a declaration to state under a *<¡uod cum*or after a “whereas” any fact necessary to constitute a cause of action there have been a number of Virginia decisions. The court of appeals of Virginia has decided that both in actions of trespass and of trespass on the case for torts, such a mode of stating such a fact is fatally defective on general demurrer to the declaration, or prior to the amendment of the statute of jeofails, it was equally fatal even after verdict. Burton v. Hansford, 10 W. Va. 476, citing principal case. To the same effect, the principal case is cited in Battrell v. Ohio River R. Co., 34 W. Va. 233, 12 S. E. Rep. 700; Spiker v. Bohrer, 37 W. Va. 264, 16 S. E. Rep. 577. In Battrell v. Ohio River R. Co., 34 W. Va. 233, 12 S. E. Rep. 700, it is said: "The rule of pleading forbidding the statement of facts constituting the cause of action with a *ouod cum,*that is ‘for that whereas,’ which is purely by way of recital, is centuries old, and, though technical, and, in my judgment, a stigma upon the common law, has been persistently insisted upon in early Virginia cases. In Ballard v. Leavell, 5 Call 531, a verdict was overthrown because of such defect. In Hord v. Dishman, 2 Hen. *&*M. 595, the declaration was held bad in substance because of it, on general demurrer. And in Moore v. Dawney, 3 Hen. & M. 127, though there was no demurrer, it was held bad after verdict. The rule applied to actions of trespass or case for torts. Lomax v. Hord, 3 Hen. & M. 271; *Donaghe v. Rankin,*4 *Munf.*261.” The principal case was also cited in Farmers’ Bank v. Clarke, 4 Leigh 610.

thé president pronounced the court’s opinion as follows :

“The declaration, in this case, containing a mere recital of slanderous words, and no direct charge that those words were spoken of the plaintiff by the defendant, the court is of opinion, that it is insufficient to maintain the action. The judgment is therefore reversed with costs.”