1851.

HARPER

V.

DELF.

the defendant then and there had, in the presence and Nov. Term, hearing of divers other good and worthy citizens of said state, the defendant further contriving and intending as aforesaid, then and there, in the presence and hearing of said citizens, falsely and maliciously spoke and published, of and concerning the plaintiff, the false, slanderous, malicious, and defamatory words following, that is to say, &c. This count here sets out various sets of words, to all of which there is appended the following innuendo, to-wit, "meaning that the plaintiff was then and there guilty of the crime of bestiality." This count contains no introductory averment; nor does it state that the words were spoken in a discourse of and concerning the plaintiff.

The causes of demurrer are, 1. There is no allegation that the words were spoken of and concerning the plaintiff; 2. There is no special inducement or colloquium to support the innuendoes.

We have, for convenience, arranged the sets of words in this third count into classes.

The following are in the first class, namely: He (meaning the plaintiff) was seen a foul of a cow. Rial (meaning, &c.,) saw him (meaning the plaintiff) a foul of a cow. Rial (meaning, &c.,) that morning caught him (meaning the plaintiff) a foul of a brute. Harper (the plaintiff meaning) was caught by my son Rial a foul of a brute. We do not think that any of the sets of words just named are actionable in themselves. The statement that of a cow, does not

the plaintiff had been caught a foul
warrant the innuendo that he was guilty of the crime of
bestiality. The most usual signification of the word foul,
as an adjective, is, unclean, filthy, dirty. The phrase "to
fall foul" is not an uncommon one. The definition of it,
given in Webster's Dictionary, is, to rush on with haste,
rough force, and unreasonable violence; to run against,
as the ship fell foul of her consort. Dr. Johnson gives
the following example-In his sallies, their men might
fall foul of each other. If the defendant had been in
the practice, by the words laid, to impute the crime of
bestiality, or if he had used them, on this occasion, in

1851.

HARPER

Nov. Term, that sense, and they were so understood by the hearers, there should have been a special averment to that effect. Angle v. Alexander, 7 Bingh. 119.-McGregor v. Gregory, 11 Meeson and Welsby, 287.-O'Brien v. Clement, 16 Meeson and Welsby, 159.-Hays v. Mitchell, 7 Blackf. 117.

V.

DELP.

The following sets of words are in the second class: Rial (meaning, &c.,) saw a young man (meaning the plaintiff) ravishing a cow. My son Rial (meaning, &c.,) on his way home to his father's, between Andrew Scott's shop and his father's, saw a man ravishing a cow, (meaning the plaintiff, &c.).

These sets of words in the second class are objectionable, on the ground that none of them show, with sufficient certainty, that the plaintiff was the person whom the defendant intended to slander. The words, "a young man," and, "a man," which are the only words used to designate the person, do not point to the plaintiff more than to any other young man or man whatever. Whether this uncertainty could have been remedied by an averment, we need not stop to inquire.

The following sets of words are in the third class: Rial (meaning, &c.,) saw him (meaning the plaintiff) ravishing a cow. My son Rial (meaning, &c.,) saw him (meaning the plaintiff) ravishing a cow. William Harper (the plaintiff meaning) was caught by my son Rial in the act of ravishing a cow.

We have already, in speaking of the first count, expressed an opinion that words like those here laid are actionable. We must, however, notice the special causes of demurrer. The first, namely, that there is no allegation that the words were spoken of and concerning the plaintiff, is not warranted by the facts. The count does, in express terms, contain such an allegation.

The second cause of demurrer, namely, that there is no special inducement or colloquium to support the innuendoes, cannot be sustained. There is here no ambiguity as to the person of the plaintiff. The first set of words is, Rial (meaning, &c.,) saw him (meaning the plaintiff) ravishing, &c. The second set is substantially the same.

1851. HARPER

V.

DELP.

The word him sufficiently demonstrates the person. There Nov. Term, is an old case on this subject as follows: Action for these words: He (innuendo the plaintiff) is not worthy, &c. Exception was taken that the he might be spoken of any other, and that the innuendo would not help it. But the Court held that the action well lay, for hic and ille make a demonstration what person he intended, and it is alleged that he spoke de querente those words. Taylor v. How, Croke's Eliz. 861. In the third set of words, the plaintiff's name is given. There being then no ambiguity as to the person slandered, and the words being actionable, no special inducement would be necessary. Nor was any colloquium of the plaintiff necessary; that is, the formal colloquium stating that the words were spoken in a conversation of and concerning the plaintiff. The averment, which is, also, frequently called a colloquium, to-wit, that the words were spoken of and concerning the plaintiff, is indispensable; and that, as we have already observed, is contained in this count. The language of Mr. Starkie, on this subject, is as follows: "Formerly it was the practice to aver, that the defendant spoke the words in a certain discourse which he had with others, or with the plaintiff himself in the presence of others, concerning the plaintiff. This was technically called laying a colloquium, and till the case of Smith v. Ward, Croke's James, 673, it seems to have been doubted whether a declaration without a colloquium would be good. In that case, it was alleged that the defendant said of the plaintiff, 'He (innuendo the plaintiff) is a thief;" and the Court, on being informed that it was the common course to declare that he said de præfato querente hæc verba, held it to be sufficient without a colloquium." 1 Starkie on Slander, 383, 384.

Per Curiam.-The judgment is reversed with costs. Cause remanded for further proceedings not inconsistent. with this opinion.

J. A. Wright and E. W. McGaughey, for the appellant. S. F. Maxwell, T. H. Nelson, and J. P. Usher, for the appellee.

VOL. III.-30

Nov. Term,

1851. LARSH

V.

BROWN.

(1) The R. S. 1852 have enacted, that, " In an action for libel or slander, it shall be sufficient to state generally that the defamatory matter was published or spoken of the plaintiff; and if the allegation be denied, the plaintiff must prove, on the trial, the facts showing that the defamatory matter was published or spoken of him." R. S. 1852, vol. 2, p. 45. This statute is similar to that of New York. The statute of New York has been held to dispense with the allegation of extrinsic facts showing the application of the words to the plaintiff, but not to dispense with the necessity of an averment or innuendo, when it becomes essential to show the meaning of the words themselves. Pike v. Van Wormer, 5 Practice R. 171. When the meaning of the words is so ambiguous that extrinsic facts are necessary to be proved to show them to be actionable at all, the necessity of stating these facts by an explicit averment is precisely the same as it has always been. Fry v. Bennett, 1 Code Rep. N. S., 238. Even though it may be uncertain to whom the words were intended to apply, it is no longer necessary to insert in the complaint any averments [of extrinsic facts] showing that they were intended to apply to the plaintiff. But, in other respects, the same averments are requisite, in pleading under the code, as at common law. Pike v. Wormer, 6. Practice R. 99.

Saturday,
December 6

LARSH V. BROWN.

The answer put in to a bill requiring an answer without oath, cannot operate as evidence for the defendant.

ERROR to the Union Circuit Court.

BLACKFORD, J.-This was a bill in chancery filed by Larsh against Brown, in 1849.

The bill states that the parties had been in partnership in the business of milling; that the partnership was dissolved; and that a certain large sum was due from the defendant to the complainant on account of the partnership business. The bill prays that the defendant answer without oath, and make a full answer of all the partnership

accounts.

The

The defendant answered the bill without oath. answer admits that the partnership had existed, and had

1851.

LARSH

V.

been dissolved, as stated in the bill. But the answer de- Nov. Term, nies that the defendant was indebted to the complainant on account of the partnership business. The answer contains accounts of the partnership business, and, according to those accounts, the complainant is largely indebted to the defendant.

Replication in denial of the plea.

The cause was tried by a jury. Verdict for the defendant for 50 dollars and 45 cents; and a final decree rendered against the complainant for that sum.

On the trial, the complainant asked the Court to charge the jury as follows:

1. The answer is no evidence of the partnership dealings, in order to have the same allowed.

2. The defendant's answer and his account stated are no evidence whatever of their truth; and said account and answer require the same proof as any other pleading which is denied, so far as the partnership is concerned. These instructions were refused.

The defendant asked the Court to give the following instruction:

As the complainant has called on the defendant to state an account of the profits, his statement of it is evidence, and should be taken for true, unless it has been impeached and disproved by at least one witness, or circumstantial evidence.

This instruction, asked for by the defendant, was given. The statute says, that where the bill prays that the defendant answer without oath, the answer shall operate only as a denial of the allegations and charges in the bill, and, in such cases, the complainant shall not be required to substantiate the allegations and charges in his bill by more than one witness. Acts of 1847, p. 60.

We think that, under that statute, the instruction asked by the complainant should have been given, and that asked by the defendant should have been refused. The answer put in to a bill requiring an answer without oath, cannot operate as evidence for the defendant.

BROWN.