Worthington v. Houghton , 109 Mass. 481 ( 1872 )

Morton, J.

Our statutes require that a demurrer shall specifically point out the particular in which the alleged defect consists. Gen. Sts. e. 129, §§ 11,12. Formal errors or defects which are not specifically assigned as causes of demurrer must be deemed to be waived. Clay v. Brigham, 8 Gray, 161. Whittemore v. Ware, 101 Mass. 352. In the case at bar the defendants assign as the only cause of demurrer, that the declaration “ does not set forth anything which is by its natural import libellous or which furnishes legal ground for an action for libel, or is actionable on any ground.” Under this demurrer the objection, argued by the defendants, that the declaration does not contain sufficient averments that the publication declared on related to the plaintiff, is not open to them. If they relied on such formal defect they should have specified it in their demurrer, and if the objection is well founded, it could be obviated by an amendment. The only question before us, therefore, is whether the publication declared on is libellous.

"Reading the portions of tne publication which relate to the plaintiff, in their connection with the other parts of the article, we think the question is free from difficulty. The obvious import and intent of the language used is to charge the plaintiff, by insinuation and implication, if not directly, with an attempt to evade and defraud the revenue laws of the United States by making out fraudulent invoices of books imported by him from Canada. Such a charge is libellous. Its inevitable effect is, if believed, to degrade the character of the plaintiff as a merchant and a man. It holds him up to contempt and reproach as wanting in integrity, and tends to injure his character and diminish his reputation. If false it is actionable. Chenery v. Goodrich, 98 Mass. 224. Miller v. Butler, 6 Cush. 71.

Demurrer overruled; defendants to answer.