case which is intended to be proved against him, and consequently be prepared to meet it.

By the stat. 21 Jac. 1. c. 16. s. 3. "Actions on the case for words must be commenced and sued within two years next after the words spoken." But by s. 7. "Infant, feme covert, non compos mentis, person imprisoned or beyond sea, may sue within two years after the removal of their respective disabilities."

66

Of words not actionable in themselves.-Words not actionable in themselves may become so, by reason of some special damage arising from them, e. g. if a person say to a woman, you are a whore," whereby she loses her marriage, or a substantial benefit arising from the hospitality of friends'. (8). So if a person slander the title of another, whereby he is prevented from selling his estate'; but in these cases, it is incumbent on the party injured, not only to state and prove the speaking of the words, but also the particular injury which he has sustained; because the words not being actionable in themselves, the special damage is considered as the gist of the action'.

It must also appear", that the special damage was the legal and natural consequence of the words spoken; for an illegal consequence, viz. a tortious act, will not be sufficient.

1 Rol. Abr. 35. I. 15.

r Moore v. Meagher, in error, Exch. Ch. 1 Taunton's R. 39.

s Lowe v. Harewood, Sir W. Jones, 196. Cro. Car. 140.

t Browne v. Gibbons, Salk. 206.
u Vicars v. Wilcocks, 8 East, 1.

(8) Calling a married woman or a single one a whore is not actionable, because fornication and adultery are subjects of spiritual not temporal censures. Lord Raym. 1004. except in the city of London, by reason of the custom there to cart whores. 1 Viner, S. 13. But there the words must charge that she was a whore in London; it is not sufficient if the declaration merely allege that she resided in London. Robertson v. Powell, B. R. Sittings at Serjeant's Inn before M. T. 57 Geo. 3. Action for calling plaintiff's wife a whore in London, suggesting the custom of London to cart whores, plaintiff's were nonsuited for want of proving the cusLord Mansfield said, he could not take notice of such custom unless proved. No proof of it could be got from the town clerk's office, and it was then said that no proof of it had been ever given so as to maintain such actions out of the city courts, but that in the city courts they would take notice of their own custom. Stainton & ux. v. Jones. Sittings after Mich, Term, at Guildhall, goram Lord Mansfield, 1782. MS.

tom.

Two persons cannot join in an action for slanderous words spoken of them, for the injury which the one sustains by the slander is not any injury done to the other. But if defamatory words be spoken of partners in trade', whereby they are injured in their trade, a joint action will lie at the suit of the partners, although the words be actionable of themselves.

It is actionable to republish any slander invented by another, 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.

From the preceding remarks it appears, that falsehood and inalice, either express or implied, are of the essence of the action for slander and special damage, where the words are not actionable in themselves.

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.

x Dyer, 19. a. pl. 112.

y Cook and another v. Batchellor, 3 Bos. & Pul. 150.

z Davis v. Lewis, 7 T. R. 17. Mait

a

land v. Goldney, 2 East, 426. These cases were recognised in Woolnoth v. Meadows, 5 East, 463.

a Johuson v. Aylmer, Cro. Jac. 126.

(9) By rule of court, B. R. M. 1654, 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."

(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. 957.

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 traded 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 manuer 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 only; 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 com

b Price v. Jenkings, Cro. Eliz. 865.

c Yelv. 158.

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

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

e Todd v. Hastings, 2 Saund. 307. Sa- g 4 Rep. 17 b. 3 Bulstr. 227.

vage v. Robery, Salk. 694.

h Johnson v. Aylmer, Cro, Jac, 126.

mitted 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 sayk, 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 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 very modern case1: 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 a conversation about those facts. In short, the words must be sufficient to maintain the action without the innu

i Holt v. Scholefield, 6 T. R. 691. See
also Core v. Morton, Yelv. 27.
k Per de Grey, C. J. in R. v. Horne,
Cowp. 684.

1 Hawkes v. Hawkey, 8 East, 427. m1 Roi. Abr. 83. 4. 10.

n Slocomb's case, Cro. Car, 443.

'endo. 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 P.

In a declaration for slander of plaintiff in his trade, a count alleging that the defendant, in a certain discourse in the presence and hearing of divers subjects, faisely 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 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 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,