Davis v. Farrington , 1 Miss. 304 ( 1827 )

OPINION OR the COURT — By the

Hon. J. CHILD.

The words stated in the declaration are not actionable at common law without a court laying special damages.

The court below therefore erred in overruling the demurrer to the court.

On this ground alone the judgment must he reversed, because the demurrer should have been sustained.

But as the words are clearly actionable by statute and might have been made so (by adding other counts) at common law, this court in proceeding under the statute to render such judgment as the court below ought to have rendered, reverses the judgment, sustains the'demurrer, remands the cause with leave to amend, and awards a venire facias de novo.

Had the same points which have been urged here been raised by the causes of demurrer to the declaration stated in the court below. I am satisfied that the decision would have been different upon the ground, that something had been omitted, so essential to the action, that judgment, according to law and the very right of the case, could not be given without it. Revised code 119; Sec. 64.

In order to sustain the action under the statute, the declaration should describe the wrong as it is described in the statute, viz: insulting and abusive language tending to a breach of the Peace, and should add contra formam státuti, and to sustain it at common law, the declaration should state special damages with a per quod in a separate count.

Black and Winchester Judges concurred.