III. Of the Declaration, and herein of the Nature and Office of the Innuendo.

IN the declaration, after such prefatory averments as the circumstances of the case may render necessary (8), it must be alleged expressly what words were spoken (9), and that they were spoken and published of the plaintiff falsely and maliciously.

If the words were spoken in a foreign language, it must be averred in the declaration, that the hearers understood such language.

Where the charge alleged against the plaintiff relates to his office, profession, or trade, there it ought to appear on the face of the declaration, that plaintiff was in office, or exercising his profession or trade at the time when the words were spoken, and that they were spoken in relation to his office, profession, or trade".

In an action for words spoken of a person who was a candidate to serve in parliament, it is not necessary to set forth the writ in the declaration. It is sufficient for the plaintiff to state that he was a candidate to serve in the (present) parliament, which cannot exist without a writ to call the parliament together.

In that part of the declaration which states the slander, the words ought to be explained in such manner as they

z Johnson v. Aylmer, Cro. Jac. 126. a Price v. Jenkings, Cro. Eliz. 865.

b Yelv. 158.

c Collis v. Malin, Cro Car. 282.,

d Todd v. Hastings, 2 Saund. 307. Savage v. Robery, Salk. 694.

e Harwood v Sir J. Astley, 1 Bos. & Pul. N. R. 47. on error, in Exch. Chr.

(8) By an ancient rule in the court of B. R. M. 1655, it is ordered," that in actions of slander long preambles be forborn; and no more inducement than what is necessary for the maintenance of the action, except where it requires a special inducement or colloquium."

(9) That the defendant spake of the plaintiff, quædam falsa et scandalosa verba, quorum tenor sequitur in hæc verba, &c." was holden insufficient, because it was not an express allegation, that the defendant spake the same identical words. Garford v. Clerk, Cro. Eliz. 857.

may require. Whilst the pleadings were in Latin, this explanation was introduced by the word " innuendo:" e. g. Thou (eundem quer' innuendo) art a thief;" which in a modern declaration would stand thus: "Thou, (meaning the said plaintiff) art a thief." The term innuendo is still retained, whenever this part of the declaration is mentioned. In the foregoing instance, it may be observed, that the innuendo is the same in effect as "that is to say." Its office is merely to explain and designate, that the person intended by the word" thou" is the plaintiff. But that the plaintiff was the person intended, must appear from the manner in which the words were spoken, which must be stated in the declaration, namely, that they were spoken of the plaintiff, or to the plaintiff, or in a conversation with the plaintiff, and not from the innuendo onlyf; for if the person of whom the words were spoken be uncertain, an action will not lie; and a plaintiff cannot merely, by the force of an innuendo, apply the words to himself.

When the innuendo is annexed to the charge preferred against the plaintiff, then its office is to give to the words spoken their proper signification, but not to extend the sense of them beyond their natural import. Therefore, where a declaration stated that defendant said of the plaintiff, "he has forsworn himself, (meaning that the plaintiff had committed wilful and corrupt perjury,)" it was holden that the words not being actionable in themselves, because they did not necessarily imply that the plaintiff had fors worn himself, in a judicial proceeding, their meaning could not be extended by the innuendo. But if the defendant had spoken the words concerning some judicial proceeding that had before taken place, in which the plaintiff had given testimony, and these facts had been averred in the declaration, then such an innuendo would have been good; because the words, coupled with the preceding facts, would have shewn, that the defendant meant to charge the plaintiff with perjury punishable by law.

So where the slander was, "he has burnt my barn," the plaintiff cannot say, by way of innuendo, "my barn full of corn;" because that is not an explanation of the words, but an addition to them. But if, in the introductory part of the declaration, it is averred, that the defendant had a barn full of corn, and also, that in a discourse about that barn, the de

f 4 Rep. 17 b. 3 Bulstr. 227.
Johnson v. Aylmer, Cro. Jac. 126.
Scholefield, 6 T. R. 691. See
also Core v. Morton, Yelv. 27.

Holt v.

i Per de Grey C. J. in R. v. Horne, Cowp. 684.

fendant had spoken the words, an innuendo, that he meant by those words the barn full of corn, would have been good. This distinction was recognised in a very modern case: it was stated in the declaration, that the plaintiff had, in due manner, put in his answer upon oath to a bill filed against him in the Court of Exchequer by the defendant (but it was not averred that the words were spoken in a discourse about that answer,) it was then alleged, that defendant said of the plaintiff that he had forsworn himself (meaning that the plaintiff had perjured himself in his aforesaid answer to the bill so filed against him); it was holden, on motion in arrest of judgment after verdict, that the declaration was bad, for want of an averment of a colloquium respecting the answer in the exchequer, which was not supplied by the innuendo, and farther, that the defect was not cured by verdict.

In all cases, therefore, where the words can be understood in an actionable sense only by reference to certain facts, such facts must be distinctly stated in the body of the declaration for the mere introduction of those facts, under an innuendo, will not be deemed a sufficient averment of them'; that which comes after the innuendo not being issuable"; and farther, it must be averred, that the words were spoken In short, the words in a conversation about those facts.

must be sufficient to maintain the action without the innuendo". And the meaning given by the innuendo must be such, as may fairly be collected, either from the words alone, or from the words coupled with facts, which were the subject of the conversation previously averred in the declaration. It is to be observed, however, that although new matter cannot be introduced by an innuendo, but must be brought upon the record in another way, yet where such new matter is not necessary to support the action, an innuendo, without any colloquium, may be rejected as surplusage.

It is the province of the jury to decide, whether the defendant's meaning was such as is imputed to him by the innuendo.

In an action for calling the plaintiff a thief, it was proved, that the defendant said of the plaintiff, "why don't you come out, you blackguard rascal, scoundrel, Penfold, you

k Hawkes v. Hawkey, 8 East, 427.
11 Rol. Abr. 83. 1. 10.

m Slocomb's case, Cro. Car 443.
n Lovet v. Hawthorn, Cro. Eliz. 834.
o Roberts v. Camden, 9 East, 95.

p Per Gould and Blackstone, Js. 2 Bl.

R 961,2 cited by Ld. Ellenborough,
C. J. in Roberts v. Camden, B. R.
Nov. 25, 1807.

are a thief;" but the witness who proved the words was not asked, whether by the word "thief" he understood, that the defendant meant to charge the plaintiff with felony. Chambre J., in his direction to the jury, said, that it lay on the defendant to shew, that felony was not imputed by the word" thief;" and a verdict was found for the plaintiff. On a motion to set aside the verdict, on the ground, that it appeared from the expressions which accompanied the word "thief," that the defendant did not intend to impute felony, but merely used that word, together with the others, in the heat of passion; that no evidence was given to shew that the word "thief" was understood by those who heard it, to charge the plaintiff with any crime, the court refused the application; Sir J. Mansfield C. J. observing, that the jury ought not to have found a verdict for the plaintiff, unless they understood the defendant to impute theft to the plaintiff. The manner in which the words were pronounced, and various other circumstances, might explain the meaning of the word; and if the jury had thought, that the word was only used by the defendant as a word of general abuse, they ought to have found a verdict for the defendant. Supposing that the general words which accompany the word "thief" might have warranted the jury in finding for the defendant, yet, as they have not done so, the court cannot say, that the word did not impute theft to the plaintiff.

IV. Of the Pleadings-Evidence-Costs.

Of the Pleadings.

THE general issue in this action is, not guilty.

On the general issue, the defendant will not be allowed to give the truth of the fact imputed to the plaintiff in evidence in mitigation of damages; and this rule holds in all cases, whether the words do or do not import a charge of felony', or whether a charge of felony be particular, or general'. If, however, the charge be true, the defendant may plead it in justification.

q Penfold v. Westcote, 2 Bos. & Pul. N. R. 335.

r Underwood v. Parkes, Str. 1200.

s Smith v. Richardson, Willes, 24. Per 8 judges.

t Per 12 judges, S. C.

The defendant may either plead or (what is more usually done under the general issue") give in evidence the manner and occasion of speaking the words, to shew that they were not spoken maliciously.

As if the words were spoken by the defendant as counsel, and were pertinent to the matter in question'.

Or in confidence; as when a master, upon being applied to for the character of a servant, honestly and fairly gives the true character of such servant (10). In these, and similar cases, an action will not lie, because malice (one of the essential grounds in actions for slander) is wanting.

Evidence.

If the nature of the case requires one or more introductory averments in the declaration, such averments must of course be proved".

So if the colloquium alleged be necessary to maintain the action, it must be proved, as where words are laid to be spoken of a person with respect to his office or trade.

The words must be proved as laid in the declaration; that is, such of them as will support the action; for it is not necessary for the plaintiff to prove all the words stated in the declaration.

u Admitted in Smith v. Richardson, a Bull. N. P. 5. cites Savage v. Robery, Willes, 24.

x Brook v Montague, Cro. Jac. 91. y S. C.

z Edmonson v. Stephenson & another, Bull. N. P. 8. Weatherston v. Hawkins, 1 T. R. 110.

Salk. 694.

b Barnes v. Holloway, 8 T. R. 150. Per Lawrence J. in Maitland v. Goldney, 2 East, 438.

(10) "I take the law to be well settled, that where a master is applied to for the character of a servant, the former is not called upon in an action to prove the truth of any aspersions thrown out by him against the latter, but that it lies upon the servant to prove the falsehood of such aspersions. In such case the master is justified, unless the servant prove express malice." Per Chambre J. in Rogers v. Clifton, M. 44 Geo. 3. C. B. 3 Bos. & Pul. 594. The case itself is well worthy of attention on this subject, but the circumstances of it are too special for insertion in this work.-N. A servant cannot bring an action against his master for not giving him a character. Per Kenyon C. J. in Carrol v. Bird, 3 Esp.

N. P. C. 201.