slander invented by another1, unless the republication be accompanied by a disclosure of the author's name, and a precise statement of the author's words, so as to enable the party injured to maintain an action against the author. This disclosure and statement must be made at the time of republishing the slander; for it will not avail the defendant to make it for the first time in pleading to an action brought by the party injured; and according to Holroyd, J. in Lewis v. Walter, 4 B. & A. 914. the republication must be on a fair and justifiable occasion; and, according to Bayley, J. in M'Pherson v. Danielsk, the defendant must shew also, that he believed it to be true. In that case, which was an action for words spoken of the plaintiff in his trade, importing a direct assertion made by defendant, that the plaintiff was insolvent; the defendant pleaded that one T. W. spoke and published to the defendant the same words, and that the defendant, at the time of speaking and publishing them, declared that he had heard and been told the same from and by the said T. W.; it was holden, upon demurrer, that the plea was bad; first, because it did not confess and avoid the charge made in the declaration, the words in the declaration importing an unqualified assertion made by defendant, and the words, in the plea, importing that the defendant mentioned the fact on the authority of T. W. Secondly, because the plea did not give the plaintiff any cause of action against T. W.; inasmuch as it did not allege that T. W. spoke the words falsely and maliciously. Thirdly; because it is no answer to an action for oral slander for a defendant merely to shew that he heard it from another, and named the person at the time, without shewing also that he believed it to be true, and that he spoke the words on a justifiable occasion. From the preceding remarks it appears, that falsehood and malice, either express or implied, are of the essence of the action for slander and special damage, where the words are not actionable in themselves. Where words, falsely and maliciously spoken, are actionable in themselves, the law primá facie presumes a consequent damage, without proof. i Davis v. Lewis, 7 T. R. 17. Mait land v. Goldney, 2 East, 426. These cases were recognized in Woolnoth v. Meadows, 5 East, 463. Semble that this defence is not applicable to written slander. See Lewis v. Walter, 4 B & A. 605. k 10 B. & C. 271. 5 M. & R. 251. See also Ward v. Weeks, 7 Bingh. 211. and Bennett v. Bennett, 6 C. & P. 588. Alderson, B. And the remarks of Best, C. J. in De Crespigny v. Wellesley, 5 Bingh. 401. 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 (9), it must be alleged expressly what words were spoken (10), 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 languagem. 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 tradeP. In an action for slander, imputing adultery to plaintiff, a physician, where no special damage was laid, it was holden not sufficient to state the words to have been spoken of him "in his profession;" but that it ought to have been set forth in the declaration in what manner the scandalous conduct was connected by the speaker with that profession. 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 1 Johnson v. Aylmer, Cro. Jac. 126. m Price v. Jenkings, Cro. Eliz. 865. n Yelv. 158. o Collis v. Malin, Cro. Car. 282. p Todd v. Hastings, 2 Saund, 307. Savage v. Robery, Salk. 694. q Ayre v. Craven, 2 Ad. & Ell. 2. 4 Nev. & M. 220. r Harwood v. Sir J. Astley, 1 Bos. & Pul. N. R. 47. on error, in Exch. Chr. "that in ac (9) By rule of court, B. R. M. 1654, it is ordered, tions 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.' (10) "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. This rule that the words spoken should be set forth precisely is not confined to those cases only in which the action is, properly speaking, for slander, but extends also to cases where special damage is the ground of the action. Gutsole v. Mathers, 1 M. and W. 495. recognizing Cook v. Cox, 3 M. and S. 110, and post p. 1279. 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 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 onlys; 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 himselft. When the innuendo is annexed to the charge preferred against the plaintiff, then its office is to give 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 forsworn 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 s 4 Rep. 17 b. 3 Bulstr. 227. t Johnson v. Aylmer, Cro. Jac. 126. x Per de Grey, C. J. in R. v. Horne, Cowp. 684. 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 defendant 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 later casey; 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 colloquium respecting the answer in the exchequer, which was not supplied by the innuendo, and further, 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 further, it must be averred, that the words were spoken in a conversation about those facts. In short, the words 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 surplusaged. An action will not lie for these words, "I will take him to Bow Street on a charge of forgery," without an innuendo. In a declaration for slander of plaintiff in his trade, a count alleging that the defendant, in a certain discourse in the pre sence and hearing of divers subjects, falsely and maliciously charged and asserted and accused plaintiff of being in insolvent circumstances, and stating special damage, but without setting out the words, is ill; and if it be joined with other counts, which set out the words, and a general verdict given, the court will arrest the judgment. It is the province of the jury to decide, whether the defendant's meaning was such as is imputed to him by the innuendog. In 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 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. A count, charging that defendant had imposed upon the plaintiff the crime of felony is good after verdict. f Cook v. Cox, 3 M. & S. 110. g Per Gould and Blackstone, Js. 2 Bl. h Penfold v. Westcote, 2 Bos. & Pul. N. R. 335. R. 961, 2. cited by Ld. Ellenborough, C. J. in Roberts v. Camden, B. R. Nov. 25, 1807. i Blizard v. Kelly, 2 B. and C. 283. |