
    James Scott vs. Alpha Peebles.
    Where an action does not lie at the common law, but is given by statute, it is necessary to show by the averments in the declaration, that it was given by the statute, and comes within its purview.
    Where a statute gave an action for words spoken, which were “ in common acceptation considered as insults, and lead to violence and breach of the peace : ” Held, that the allegation in the declaration, that the defendant spoke the words, “ contrary to the statute, with a view to insult the plaintiff, and to lead him to commit violence and a breach of the peace,” brought the case within the statute.
    A general demurrer to a declaration containing nine counts, properly joined, will be overruled, if only one of the counts be valid,' and the other eight defective.
    To make words actionable, under the statute, (How. & Hutch. 547, sec. 6,) it is not necessary that they be spoken to, or in the presence of the plaintiff.
    Whether it is a good plea to an action of slander by P. against S. that the slanderous words were previously spoken by A. and by B.; and that S., without malice, only repeated what A. and B. had said, and gave them as his authors ? Qucere 9
    
    Where, however, the plea avers that A. and B. are citizens of a different stat.e, and not immediately suable by the slandered person, the plea will be clearly bad.
    In an action of slander, where justification is plead, the plaintiff has a right to introduce witnesses to establish his good character in aggravation of damages, though it be not impeached by the other side.
    Whether or no a different rule would prevail, where the general issue is the only plea filed ? Qucere 9
    
    Bj’ the common law, where there are several counts, and one or more of them is bad, and judgment is entered generally on the declaration, it will be erroneous.
    The rule of the common law is changed in this state by statute, (How. & Hutch. 591,) providing that where there are several counts, one of which is faulty and entire damages are given, the verdict shall be good.
    In error from the Choctaw circuit court.
    The trial in this case was had before the Hon. David 0. Shat-tuck.
    The declaration, in substance, averred that whereas the plaintiff, Alpha Peebles, had always been a man of good name, fame and credit, and had not been guilty of the charges preferred against him, and had therefore enjoyed the good opinion of the community, yet the defendant knowing this, “and contrary to the statute in such case made and provided, to insult and defame the said plaintiff, and to lead the said plaintiff to a breach of the peace, and to commit violence,” and with a wicked desire to make him infamous, &c. had, in the month of January, 1840, in Choctaw county, in conversation with Wilie B. Chap-pell, said that the plaintiff “had negro blood in him.”
    There were eight other counts, varying the charge in each, and adding to it that the plaintiff’s brother had mixed blood in him, and had been whipped for stealing, &c.
    The defendant demurred to the declaration generally. The court overruled the demurrer, and by consent of parties, the defendant had leave to plead; and he accordingly filed two special pleas of justification,'that he had heard one Buckner Lanier and Starlin Lanier, of the county of Guilford, and state of North Carolina, speak the words mentioned in the first, second, third, fourth, fifth, sixth and seventh counts in the declaration, and that when he repeate'd them, he stated his authority and the source from which he derived his knowledge, and that he did so without malice or an intent to cause a breach of the peace.
    
      , He also filed a similar plea to the eighth and ninth counts.
    The plaintiff demurred, and the court sustained the demurrer to these pleas, and awarded a respondeas ouster.
    
    The defendant plead that the causes of action, if any, did not accrue within a year from the commencement of suit, and also pleaded the same special pleas; the plaintiff took issue on the plea of the statute of limitations and demurred, and the demurrer was sustained, to the special pleas.
    The case was submitted to a jury on the issue, who brought in a verdictin favor of the plaintiff for five hundred dollars.
    At the trial, the plaintiff below offered to introduce proof to establish his good character ; the defendant objected, because he had not impeached it; the court overruled the objection, and the evidence was introduced. The defendant excepted, and brought this writ of error.
    Four errors were assigned.
    1. In overruling the demurrer to the declaration.
    
      2. In sustaining the demurrer to the two pleas of justification first pleaded.
    3. In sustaining the demurrer to the plea of justification last pleaded; and
    4. In receiving evidence as to the plaintiff’s character, when it had not been put in issue.
    
      Sheppard, for plaintiff in error.
    The action was brought under the provisions of our statute rendering all words actionable, which from their “ usual construction and common acceptation, are considered as words of insult, and lead to violence and breach of the peace.” How. & Hutch.
    The declaration concluded with contra formam statuti, but contains no charge or averment, that the words charged to have been spoken, were words of that character, which the statute declared should be actionable; and for this cause the demurrer to the declaration should have been sustained by the court below.
    This point was thus settled by our supreme court, in the cases of Warren Sp Wife v. Norman &p Wife, Walker’s Rep. 387, and Davis v. Farrington, Ibid. 304. In these cases, the court held that the declaration must describe the wrong and injury, in the very words of the statute. In 9 Oowen, 30, the court ruled that where words become actionable from extrinsic circumstances, such circumstances must be averred and proved. See also, 1 Chitty Plead. 372.
    2. The slander is charged by way of recital. The declaration commences with quod cum, or whereas, the 4th count again commences in the same manner; also the 7th count. This defect was fatal on the demurrer. SeeDonagh v. Rankin, 4 Mun. Rep. 261, and cases cited.
    3. The words are not actionable at common law, and no special damage is laid.
    4. There was error in the court below, sustaining the demurrer of the plaintiff to the plea of the defendant pleaded to the first, second, and third counts, found on page 14, of record. The matters of justification presented by this plea, comes fully within the rule, as settled in the case of Maitland v. Golding, 2 East’s Rep. See also Davis v. Lewis, 7 Term Rep. 17.
    5. On the issue submitted to the jury, the court below erred in admitting evidence of the fairness of the plaintiff’s general character, when it had not been assailed, and could not, under the issue, have been assailed by the defendant. See bill of exceptions, page 17, of record. This point was thus ruled, in Shipman v. Burroughs, 1 Hall, 399.
    On the defects of the declaration, we conceive that the judgment below should be reversed, and judgment final rendered here for the plaintiff in error, on the demurrer.
    
      Mayes and Clifton, for defendant in error.
    The first ground taken by the plaintiff in error is, that the demurrer should have been sustained, because the declaration contains no averment, that the words spoken, from their usuaL construction and common acceptation, are considered as words of insult, and lead to a violence and breach of the peace.
    To sustain this objection the case of Davis v. Farrington, (Walker’s Rep. 304,) and Warren and Wife v. Norman and Wife, (Walker’s Rep. 387,) are relied on. Those cases, if properly determined, certainly prove that the demurrer should have been sustained, unless the words in the first count, “contriving contrary to the statute in such case made and provided, to insult and offend the plaintiff, and to lead the said plaintiff to comrriit a breach of the peace, and to commit violence,” are equivalent to the allegation, the omission of which is complained of. It is conceived that these words introduced in this declaration, distinguishes this case from those in Walker, and takes it without their influence, even were, those cases correctly decided. But it is respectfully submitted that those cases are not sustainable on principle dr authority. In the case of Davis v. Farrington, we have the bare assertion of the court, without reason assigned or authority referred to.
    In the other case, Warren and Wife v. Norman and Wife, (1 Chitty, 356,) is referred to. The edition referred to, we cannot find, but it is presumed that it is that portion of the work, commencing at the 404th page of the Springfield edition of 1837, which treats of actions on statutes. It will be observed that the whole treatise on the subject relates to the action of debt on penal statutes, and has no kind of reference to a class of cases made actionable by statute. It is there laid down that “ it is material in all cases that the offence or act charged to have been committed or omitted by the defendant, appear to have been within the provision of the statute, and all circumstances necessary to support the action must be alleged, and the conclusion contra formam statuti, will not aid the omission. If, however, the necessary matter be stated in substance and effect, it will suffice, although the precise words of statute are not used, &c.” It will be observed that in all the cases founded on statute, where there is an omission to allege such matter as will sustain the action, that the omission consists in not stating some met or acts of the defendant, which are necessary by the statute, •to bring him within its influence, and subject him to the penalty. That they are omissions of material traversable facts.
    In Archbold’s Civil Pleading, pages 94 and 95, will be found many cases in illustration of the principle, that “in an action founded upon a statute, the plaintiff must state in his declaration, every fact necessary to inform the court that his case is within the statute.” In every instance the omission is a failure to allege a material substantive act or fact traversable by the defendant, and upon the truth or falsehood of which fact or facts the cause pends. I will refer to, without commenting on, the case of the People v. Barton, 6 Cowen, 390, and 2 Brown’s Pennsylvania Reports, 257, as referred to in said case. From all which it will appear, that were 'this a case founded upon a penal statute, sufficient is alleged in the"declaration to maintain the action, and it will also appear that in the cases in Walker’s Reports, the . court proceeded - upon doctrines applicable only to cases founded upon penal statutes. Piad the declaration, after setting forth the words spoken, proceeded to allege in the precise words of the statute, that from their usual construction and common acceptation, they are considered as words of in-suit, &c. this latter allegation would not have been traversable; the words being given whether they are of such quality as to render them actionable, is matter of law for the determination of the court, and not of fact to be decided by the jury. See Hume v. Arrasmith, 1 Bibb, 165. Had the legislature, in the enactment under consideration, instead of the language they have used, adopted the following, “ Be it enacted, that all words hereafter spoken shall be deemed actionable, if by the common law an action might have been maintained therefor if written and published,” the effect in law would have been the same with that produced by the enactment in its present phraseology. For an action of libel is maintainable at the common law for all language of insult, or such as tends to produce a breach of the peace. If the enactment had been in the language supposed, and the words laid in this declaration had been set forth as they are, would this court have held that it was necessary also to aver that, by the common law, the words thus spoken would have been actionable had they been written and published ? Such an allegation would contain- no material traversable fact to be decided by a jury; the question would be strictly a question of law to be decided by the court, and in pleading, it is >never necessary to state matters of law.
    In an action for a libel, where words are only actionable, because they are words of insult or tend to a breach of the peace, the court always decide whether they are such words of insult or tend to a breach of the peace, and no precedent can be found of a case in which there is in an averment that the words written and published, were words of insult or tended to a breach of the peace. If then the quality or tendency of the words is -matter of law where the words are written and published, their quality and tendency cannot become matter of fact, where they are spoken. The quality and tendency depends on the words themselves.
    The action of trespass on the case was given by the statute of Westminster the 2d, which authorized the clerks in chancery to frame new writs in consimüi casu, with writs already known. Under this power, they constructed many writs for different injuries which were considered as in consimili casu with, that is, to bear a certain analogy to a trespass. Stephen on Pleading, Phil, edition 1831, pp. 16, 17. This statute gave rise to many actions for wrongs which before had been without remedy, amongst others to the action of slander; yet we find no averment in any declaration in trespass on the case, that the cause of action therein stated was in consimili casu, &c. Nor is there any reference whatever, made to the statute, in any part of the proceedings. It has never been esteemed necessary to aver matters of law ; though the dispute between the parties should turn upon matter of law, yet they may evidently attain a sufficiently specific issue of that description, without any allegation of law; for ex facto jus oritur, that is every question of law necessarily arises out of some given state of facts, and therefore nothing more is necessary, than for each party to state alternately his case in point of fact. Stephen on Pleading, 393. And it is much to be doubted whether there is a law book in being, Walker’s Reports excepted, which conveys a different idea. In all the cases referred to, the omission to state some essential matter of fact traversable by the defendant, constituted the ground of objection, as has been before stated.
    I contend, in the next place, that after the court had overruled the demurrer to the declaration, the defendant by pleading to the action, waived or withdrew his demurrer, and that if there was error in overruling the demurrer, it cannot now be assigned.
    The second objection taken by the counsel of the plaintiff in error, is that the slander is charged by way of recital. It is sufficient in answer to this, to state that he is mistaken in the fact. The first count sets forth, by way of recital, the matter of inducement, and then proceeds to set forth the cause of action, by way of positive averment, commencing with the words, “ yet the said defendant well knowing, &c.” This is according to the precedents. The declaration consists of many counts, the demurrer is to the whole collectively, and if there be one good count the demurrer should have been overruled. The People v. Benton, 6 Co wen’s R. 290.
    If the objection was well taken in point of fact, it is but an objection in form, and was not assigned as cause of demurrer.
    The third objection I consider it unnecessary to notice.
    The fourth objection is, that the, pourt erred, in sustaining the demurrer' to the defendant’s plea-to the first, second, and third counts. It is even contended, that this plea would not be good to an action of slander, for words actionable at the common law, where the only'object is to compensate the party in damages, for the injury his character has sustained. In such cases, it is true, it is a “ general rule of law, that no action is maintained against a person who repeats the slander of another, announcing, at the same time, the name of his author, and the identical words by which such slander was first communicated, so as to afford the plaintiff a good ground of action. The principle upon which this exémption rests, is not very apparent; one reason for not allowing the action is, that the defendant has given the plaintiff a certain cause of action against a third person, from whom the whole damage sustained may be recovered.” Starkie on Slander, top paging, 158, marginal paging^ 218. Although the plea in this case gives the name of the authors, it shows that they are citizens and residents of another state. The courts of Mississippi will not send its citizens into other sovereignties, to seek redress for their wrongs. Neither do the English authorities, nor those of any state in this union, show a case, in which the author was beyond the jurisdiction of the court in which the plea was pleaded. When the law requires that the' publisher of the words shall give an action against their author, it means an action in virtue of that same law, in the courts of that same sovereignty, and does not mean an action' in the courts of China, or any other sovereignty. He who is beyond the jurisdiction of our state is, for all the purposes of remedy against him, as though he had no existence.
    This, however, is not an action at the common law. The laws of North Carolina, as far as we are informed, could not give an action against the authors. The law of Mississippi cannot act extra territorium, and make words spoken in North Carolina actionable. When it appears, from the plea, that the authors were of North Carolina, it thereby appears that the defendant gave the plaintiff no action. His defence, therefore, is wholly excluded, by reason of the rule, for cessante ratione ces-sat et ipsa lex.
    
    But another reason. The object of the statute, in giving this action, was not merely to redress the parties’ wrong. Its great and leading object was to preserve the public peace. To repeat the slanders of others, may as well produce a breach of the peace, as to originate the slanderous report. In cases of libel, the object being to promote the public peace, it was never a de-fence, that the libeller stated his author. But each one who contributed to the currency of the libel, whether he were the author, or merely published and circulated it, or procured it to be done, the action was maintainable. Even where a bookseller’s apprentice, without the knowledge of the bookseller, circulated a libellous publication, the action may be maintained against the bookseller. Starkie on Slander, 367, 368, 369, 370. The reason of the law of libel, and the reason of our statutory provision are the same — to preserve the public peace; and the maxim, that where the reason is the same, the law is the same, emphatically applies.
    The only remaining ground relied on for a reversal is, that the court permitted the plaintiff below to prove that his general character was good, when the defendant had introduced no proof to impeach it. The only authority relied on by the plaintiff in error, is a case decided by a New York city court, the decisions of which somebody has thought worth publishing. I have examined all the authorities referred to by that court, and cannot perceive that any one of them, in any degree, tends to support the opinion.
    The case of Bamfield v. Massie, 1 Campbell, 460, was an action on the case brought by the father, for the seduction of his daughter, per quod, &c. It was held, that he could not go into evidence of the good character of his daughter, the same not having been impeached.
    
      The case of Fowler v. JEtna Insurance Company, 6 Cowen, 673, was an actioii'of assumpsit, on a policy of insurance. In that case it was held, that the party could not give evidence of his good character, to rebut proof of fraud.
    The case in 3 Conn. R. 325, decides, that proof of the truth of the words spoken cannot be rebutted by proof of good character, which is very different from proof of good character, in aggravation of damages.
    Wherever the question has directly arisen, it has been held, that in the action, proof of good character is admissible, in aggravation. See King v. Warcing and Wife, 5 Esp. 13. Harding v. Brooks, 5 Pick. 244., Williams v. Greenwade, 3 Dana, 433. '
    But let it be supposed that the evidence should not have been admitted; it by no means-follows, that the plaintiff in error can . assign it as ground of reversal. A party can only assign that for error which is to his prejudice.- Gano v. Slaughter, Hardin’s R. 77. -
    The ground upon which it is contended, that evidence of good character should not be admitted, unless the character is attacked by the adverse party, is, that by failing to attack the character of the plaintiff, the defendant admits his character to be good, and that the time of the court should not be occupied, in receiving proof of that which is not controverted. The defendant cannot be prejudiced by proof of a fact which he himself admits ta be true,*and it is not for him to complain in this court, that the court below have hot been duly regardful of economy of time.
   Mr. Chief Justice-ShahKey

delivered the'opinion of the court.

This action was instituted by the. defendant in error tore-cover damages for the speaking and publishing certain slanderous and defamatory words by the plaintiff in error, of and concerning the defendant. The jury gave a verdict for five hundred dollars damages, and the plaintiff brought this writ of error. The several questions raised in argument, are presented by the pleadings, as exceptions were taken only on a single point during the trial. The merits are fully embraced by the assignment of errors, each of which will be considered.

The first error complained of, is said to have occurred in overruling the defendant’s demurrer to the plaintiff’s declaration. The demurrer was to the whole declaration, which contains nine counts; and the causes of demurrer are in substance that the words spoken were not actionable at common law, and that they are not so by the statute, because the declaration does not aver that they were spoken to the plaintiff below, or in his presence. It is now contended that the declaration was defective, -because it does not profess to bring the cause of action within the statute, as it should have done, the words not being actionable at common law, and made so only by the statute. This is an important point in the cause, since it is-manifest the right to recover depends upon the statutory provision. It involves two inquiries: first, whether it is necessary that the declaration should aver that the action was given by statute; and second, if this is necessary, whether it has been done with sufficient certainty in this instance. As to the necessity of such averment, the rule is thus laid down in 2 Saunders on Pleading and Evidence, 830. When the action is given by statute, the,offence charged must appear to have been within the statute, and all circumstances necessary to support the action must be alleged, or in effect appear on the face of the declaration. Archbold lays down the rule thus : “ In an action founded upon a statute, the plaintiff must state in his declaration, every fact necessary to inform the court that his case is within the statute.” Arch-bold’s Civil Pleadings, 94, 145. This seems to us to be a case falling within the influence of this rule. The action is given by the statute, and we see no reason for making this an exception to the rule, which is certainly very general. This rule was held to apply to actions founded on this statute; by the decisions referred to in Walker’s Rep. But whilst we are unwilling to reject this rule of law as inapplicable in the present case, still we think the declaration comes sufficiently within it, to protect it from the operation of a demurrer. The language of the statute is, “ All words, which from their usual construction and common acceptations, ave considered as insults, and lead to violence and breach of the peace, shall hereafter be actionable, and no plea, exception, or demurrer shall be sustained in any court within this state, to preclude a jury from passing thereon, who are hereby declared to be the sole judges of the damages sustained.” H. & H. Dig. 547, sec. 6. The question is, what must be averred to give the plaintiff the benefit of this statute ? An averment that the words, according to the common acceptation, were insulting, and calculated to lead to violence and breach of the peace, would undoubtedly be sufficient. The averment in the first count, was evidently framed with a view to meet the statutory requirement. It is in this language : “Yet, the said defendant, well knowing the premises, but greatly envying the happy state and condition of the plaintiff, and contriving, contrary to the statute in such cases made and provided, to insult and defame the said plaintiff,"and to lead the said plaintiff to commit a breach of the peace, and to commit violence,” &c., and it concludes by charging the speaking of the slanderous words. Does this averment fully inform the court, as the rule requires, that the case is within the statute? Do the circumstances necessary to sustain the action, “ in effect appear upon the face of the declaration?” We think that these questions must be answered affirmatively. The rule of law has been substantially complied with. The defendant is charged with having spoken the words contrary to the statute, with a view to insult the plaintiff, and to lead him to commit violence and a breach of the peace. This is equivalent to an averment that the words were insulting and tended to a breach of the peace. To bring words spoken of another within the meaning of the statute, only two_ things are necessary; they must be insulting, and calculated to lead to a breach of the peace. - That such was their character, we think, in effect at least, is stated. This is a public statute, and it was not therefore necessary to recite the statute or any part of it. All that the law requires is that it should appear on the face of the declaration, that a right of action has accrued under the statute. The other counts, however, contain no such allegation; — no statement of circumstances by which the court could be informed that the action was founded on the statute. It becomes necessary, therefore, to extend the inquiry, and to determine whether the demurrer to the whole declaration was correctly overruled, eight of the counts being faulty, and only one of them good.

It is a well settled rule, perhaps it is without an exception, that on a general demurrer to the whole of a'declaration which contains good and bad counts, when the causes of action counted on may be properly joined, the demurrer must be overruled, and the plaintiff will be entitled to judgment on his good counts, for the court cannot give judgment that such a demurrer is good in part, and bad in part. 6 Bacon’s Abridgment, Title Pleading, 356. I Chitty’s Pleading, 703. Archbold’s Civil Pleading, 309. 1 Henning and Munford, 361. 13 J. Rep. 264, 402. According to this'rule, the demurrer, as it extended to all the counts, was properly overruled, because the first count is good, although the whole of the others may be faulty. But still, it does not follow from this rule, that every judgment on a declá-ration containing good and bad counts, is free from error. The plaintiff, it must be observed, is only entitled to judgment on his good counts. There are cases in which the judgment will be arrested or reversed, although there may be one good count, if the others be bad, and this will lead us to inquire, whether this is a case of that description; for if it be so, the judgment must be reversed, although the demurrer may have been properly overruled. But this is an inquiry which will more properly arise, when we come to consider of the final judgment rendered on the verdict. For the present, we are only to determine whether the demurrer to the declaration was properly overruled, and we think it has been sufficiently shown that it was, for anything contained in the first cause of demurrer.

The second cause of demurfer is, that the words are not actionable under the statute, because it is not averred that they were spoken to the plaintiff, or in his presence. The statute cannot fairly be construed, as giving a right of action only when the words are spoken to, or in presence of the plaintiff. All the evils, both public and private, which the statute intended to guard against, are quU@ as likely to arise, when slanderous words are spoken of a person who is not present, as if addressed to him. So that for neither of the causes, could the demurrer have been properly sustained.

The second error assigned is, that the court improperly sustained the plaintiff’s demurrer to defendant’s two first special pleas. By these pleas, the defendant avers that before speaking the slanderous words complained of, the same words had been spoken of, and concerning the plaintiff, by Buckner La-nier, and Starlin Lanier, of Guilford county, North Carolina, and that he only repeated the words without malice, giving at the same time, the names of the two Laniers as the authors thereof. The defence sought to be interposed by these.pleas, is one which has, in some instances, been sustained as valid. Other courts of high respectability, have doubted it. See Williams v. Greenwade and Wife, 3 Dana’s Rep. 432, and authorities there cited, so that it may be regarded as resting on questionable grounds. It certainly does not altogether command the sanction of reason, but we are not called on, in this instance, to declare a general disapprobation of it. The reason on which it is founded, shows the extent to which it will be allowed. It is said to constitute a valid defence, because it gives the injured party ample redress, by pointing out to him a responsible author of the slander. On this ground only, can it be sustained. If then, it does not point out the individual, against whom this ample redress can be had, the defence must fail. The injured party cannot be turned over to one who cannot be immediately sued, or to one who is unable to make ample reparation. The individuals named in this plea, are citizens of North Carolina, and not within the jurisdiction of the courts of this state. The plaintiff could not sue them, and the place of their residence appears on the face- of the pleas. If the slanderer is to be permitted to shield himself behind the name of a foreigner, the injured party is without remedy. As well might a fictitious name be given. Such a license would remove every safeguard which the law has thrown around the reputation of the innocent. Even then, admitting that such a defence may be valid, under a proper state of facts, still these pleas are fatally defective, and the demurrer to them was properly sustained.

After the demurrer was sustained to these pleas, the defendant, by leave of the court, pleaded the statute of limitations, on which issue was taken, and also another special plea to the first, second, and third counts, which is the same in substance, as the two pleas already noticed, to which the plaintiff again demurred, and the court sustained the demurrer, and this is assigned as error. As this plea is the same in matter as the two preceding ones, it falls within the remarks already made.

It is further assigned as error, that the court improperly received evidence of the plaintiff’s good character, when no evidence had been introduced impeaching it. To the admissibility of this evidence, the defendant’s counsel excepted, this being the only point which is raised by bill of exceptions. This too, is rather a vexed question. In the case of Williams v. Greenwade, above referred to, it was raised, but the court seemed to think it entitled to but little consideration, and decided, without hesitation, that such evidence was properly admissible under the general issue, in aggravation of damages, on the same principle that evidence of bad character is admissible in mitigation of damages. In Harding v. Brooks, 5 Pickering’s Rep. 244, the.court inclined to the same opinion, although the question was not directly decided. In this particular case, to say nothing of the general admissibility of such proof, we cannot doubt but what the evidence was strictly admissible. It is always proper, when justification is attempted. By the special pleas, the defendant admitted the speaking of the words, and attempted to justify ; and allhough the pleas were bad, still they placed the attempt at justification on record. An attempt to justify in which the party fails, aggravates the offence, and then it is proper th'at the plaintiff should be allowed to introduce proof in aggravation of damages. This, then, like the preceding objection, is untenable.

It seems that the parties went to trial on the statute of limitations only, on which the jury found a general verdict, and the court gave a general judgment It is proper that we should review the record, and see whether the judgment on this general verdict can be sustained. . We have before said that there are cases in which the judgment will be reversed, on account of vicious counts in the declaration, although there be also good counts. Does the record present such a case? The rule of law is, “ that where there are several counts, and a verdict is entered generally on all the counts,' and entire damages given, and one count is bad, it is fatal, and judgment shall be arrested in loto” 3 Saunders’s Rep. 171, (note 1). In such cases, although the court will not sustain a demurrer to the whole declaration, yet the plaintiff will not be allowed to take a judgment on his faulty counts. The judgment must be on the good count. In the case of Backus v. Richardson, 5 Johnson’s Rep. 476, the declaration was in slander, and contained four counts, and the plaintiff had judgment on demurrer, and on a writ of inquiry damages were assessed on all of the counts, some of which were bad, and for this reason the judgment was reversed. And in the case of Kingsley v. Bill, 9 Mass. Rep. 189, the judgment was reversed for the same reason. Having said that eight of the counts are bad in the case at bar, but for the mqdification of this rule by statute, these authorities would be decisive. It is provided by statute, that when there are several counts, one of which is faulty, and entire damages are given, the verdict shall be good; but the defendant may apply to the court to instruct the jury to disregard the faulty count. H. & H. Dig. 591. This statute seems to have been designed to change the common law rule, to which we have adverted; and in holding that it does so, we have a precedent directly in point, under the Virginia statute, of which ours is an exact copy. In the case of Roe v. Crutchfield, 1 Henning & Munford, 361, the declaration contained good and bad counts, and the defendant demurred generally; the demurrer was overruled, and entire damages assessed on a writ of inquiry; the judgment was held good. Judge Tucker thought the defect was cured by the gen-eral provision in the statute of jeofails, and perhaps it is so in this case, but we think it clearly so under the particular section above referred to. In no point of view, then, do we perceive any error which is fatal to the validity of the judgment, and it must therefore be affirmed.  