plaint there is no translation of the one German word set out in the complaint. Without such translation, the Court cannot say that such German word is actionable, or that it supports the allegation that the defendant meant to charge the plaintiff with being a thief and a robber. The order of the Circuit Court is reversed, and the cause is remanded, with directions to sustain the demurrer to the complaint. 162. DAINES v. HARTLEY EXCHEQUER OF PLEAS. 1848 3 Exch. 200 CASE for the slander of plaintiffs in their trade, uttered in the presence of one Briggs and one Scott. The defendant pleaded not guilty; and issue was joined thereon. At the trial, before Pollock, C. B., at the London Sittings after Michaelmas Term, 1847, Scott was called, and deposed to the words spoken by the defendant, "You must look out sharp that those bills are met by them." The counsel for the plaintiff then proposed to put the question to the witness, "What did you understand by that?" The question was objected to, and the Lord Chief Baron was of opinion that it could not be put in that shape, and rejected it. A verdict having been found for the defendant, M. Chambers obtained a rule nisi for a new trial, on the ground that the question was improperly rejected. Against which, in Trinity Term last (June 8), Sir F. Thesiger and T. Jones showed cause. The question proposed to be put to the witness could not properly be put in the shape in which it was offered. It is a question for the jury to decide, whether the words attributed to the defendant convey that meaning which the innuendoes in the declaration ascribe to them. . . . This was an attempt to substitute the witness for the jury. Words are to be understood in their ordinary sense, unless the party who hears them has something in his mind which leads him to put a different meaning upon them. . . . M. Chambers and Bovill, in support of the rule. The evidence was admissible for the purpose of showing in what sense the words were used. The words spoken might have an injurious or an innocent meaning. In all cases where the language is ambiguous or equivocal, it is competent for either party to prove in what sense they were understood by the bystanders. This evidence is admissible for the guidance of the jury. ... POLLOCK, C. B., now said - In this case a motion was made for a new trial, on the ground of the improper rejection of evidence. The case was moved by Mr. Chambers, on the ground that he was not allowed to put the question to a witness who heard part of the conversation "What did you understand by that?" I stated to the learned counsel, at the time that the trial was going on, that I did not reject the question altogether, but that. in my judgment, he could not put the question in that shape; and he declined to put it in any other, but applied to the Court for a rule for a new trial. The Court granted a rule, and the case was fully argued. We are of opinion that the question could not so be put. There can be no doubt that words may be explained by bystanders to import something very different from their obvious meaning. The bystanders may perceive that what is uttered is uttered in an ironical sense, and, therefore, that it may mean directly the reverse of what it professes to mean. Something may have previously passed, which gives a peculiar character and meaning to some expression; and some word which ordinarily or popularly is used in one sense, may, from something.that has gone before, be restricted and confined to a particular sense, or may mean something different from that which it ordinarily and usually does mean. But the proper course for a counsel who proposes so to get rid of the plain and obvious meaning of words. imputed to a defendant, as spoken of the plaintiff, is to ask the witness, not "What did you understand by those words?" but "Was there anything to prevent those words from conveying the meaning which ordinarily they would convey?" because, if there was, evidence of that may be given; and then the question may be put. When you have laid the foundation for it, the question then may be put, "What did you understand by them?" when it appears that something occurred by which the witness understood the words in a sense different from their ordinary meaning. I believe we may say, that generally no question ought to be put in such a form as possibly to lead to an illegal answer. Now, taken by itself, and without more, the understanding of a person who hears an expression is not the legal mode by which it is to be explained. If words are uttered or printed, the ordinary sense of those words is to be taken to be the meaning of the speaker. But no doubt a foundation may be laid, by showing something else which has occurred; some other matter may be introduced, and then, when that has been done, the witness may be asked, with reference to that other matter, what was the sense in which he understood the words. But the mere question, "What did you understand with reference to such an expression?" we think is not the correct mode of putting the question. The rule, therefore, for a new trial, must be discharged. Rule discharged. 163. BARR v. BIRKNER SUPREME COURT OF NEBRASKA. 1895 44 Nebr. 197, 62 N. W. 494 ERROR to District Court, Clay County; Hastings, Judge. Action by E. A. Barr against J. M. Birkner. Judgment for defendant, and plaintiff brings error. Reversed. Thomas H. Matters, for plaintiff in error. L. P. Crouch, for defendant in error. HARRISON, J. The plaintiff commenced an action of slander against the defendant in the District Court of Clay County, in which she filed the following petition: "The plaintiff, representing unto this Honorable Court, sets forth that she is now, and has been for more than two years last past, a resident of Clay County, Nebraska, and that during her residence in Clay County she has been engaged in the business of keeping a hotel in the city of Sutton, in said county. (2) That the defendant is a physician and surgeon, duly qualified under and by virtue of the laws of the State of Nebraska to practise medicine. (3) That during the whole time of her residence in Clay County, Nebraska, up to the 15th day of April, 1892, this plaintiff employed said defendant as her family physician. (6) The plaintiff, further representing unto this Court, shows that said defendant, in the presence and hearing of divers persons, in the month of April, 1892, in a certain discourse which he then had of and concerning the plaintiff, in the presence and hearing of divers persons, did falsely and maliciously speak and publish the following false and defamatory words; that is to say, 'She is an old cat'- meaning that the plaintiff was a prostitute. . . . That each and every one of said statements were made falsely and maliciously and wickedly, for the purpose of injuring the plaintiff in her good name, by means of which said several premises the plaintiff has been greatly injured in her good name, to her damage in the sum of $5,000." To this the defendant filed an answer, in which he admitted the statements made in the first and second paragraphs of the petition. And, "(8) Further answering the petition of plaintiff, in regard to other supposed defamatory words alleged by plaintiff to have been used by defendant of and concerning the said plaintiff, to wit, 'She is an old cat,' says with reference thereto that he has no recollection of using the said words; but, if he did use them, it was not in the sense of nor with the intent to convey the idea that the said plaintiff was a prostitute." In the sixth paragraph of the petition it was alleged that in the month of April, 1892, the defendant, in the presence and hearing of divers persons, did falsely and maliciously speak and publish of and concerning the plaintiff the following false and defamatory words, "that is to say, 'She is an old cat,' - meaning that the plaintiff was a prostitute." The defendant's answer to this is that he has no recollection of using the words, but, if he did use them, it was not in the sense of, nor with the intent to convey the idea that plaintiff was a prostitute. He does not deny that he used the words stated, or that they had the meaning alleged, and conveyed such meaning to the persons hearing them or to whom they were spoken. His answer to this allegation of the petition, aside from the admission it contains, is an allegation that he had an intent and used the words spoken with a meaning different from the one which the petition alleges they had and conveyed at the time and to the parties hearing them, and that he had a secret intent and meaning for the words. This is not a denial that they had the meaning to the bystanders, when spoken, which the petition says they had, and, to be available to the defendant as a defence, it would be necessary that it be shown from the drift of the conversation, or what had been said and done at the time the words were spoken, of the facts and circumstances connected with the conversation or its subject-matter, that they had such bearing upon the import of the words as to limit the meaning conveyed to the hearers to that entertained by the speaker of them. In the absence of such a showing, the fact that he had such intent and meaning at the time of uttering the words is immaterial. Folkard's Starkie, Sland. & L. §§ 591, 592; Moak's Underhill, Torts, pp. 139, 140; Maybee v. Fisk, 42 Barb. 327; Sabin v. Angell, 46 Vt. 740. It being admitted in the answer that the defendant had spoken of the plaintiff the words alleged, and not denied that their meaning was as claimed, this was, in effect, admitting that defendant had circulated the report that plaintiff was a prostitute; and no proof on this branch of the case was necessary on the part of plaintiff to entitle her to a verdict for at least nominal damages, for this was such a charge against her as was actionable in such a sense that when proved, or, as in this case, admitted, to have been made, entitled her to damages; nominal damages, at least, being presumed without any further proof.. Reversed and remanded. 164. SIMONS v. BURNHAM SUPREME COURT OF MICHIGAN. 1894 102 Mich. 189, 60 N. W. 476 ERROR to Circuit Court, Ingham County; Rollin H. Person, Judge. Action by Benjamin F. Simons against David Burnham for libel. There was judgment for plaintiff, and defendant brings error. Affirmed. T. E. Barkworth and Arthur D. Prosser, for appellant. Smith, Lee & Day, for appellee. HOOKER, J. The parties to this action are rival merchants in the city of Lansing. It is alleged by the plaintiff that in October, 1889, the defendant sent to various firms in other cities, with whom the plaintiff had business relations, clippings from a Lansing paper, showing real-estate transfers, including between ink lines, placed there by himself, the following: "Benjamin F. Simons to Adeline A. Simons, lots 1, 2, and 3, block 150, Lansing, $5,000." This clipping was attached to a half-sheet of paper, on which was written the following, viz. (after the above quotation from the clipping, the words), "his wife," and: "The real estate transferred and marked in slip is estimated to be worth at least $10,000; other real estate heavily mortgaged; reported to be heavily indebted to three or four banks, for borrowed money, at a high rate of interest, say 8 or 10 per cent per annum, and payable every 60 days." In one instance it is claimed that to a clipping of the kind mentioned, enclosed by ink lines as aforesaid, the following pencil writing was appended, viz.: "In time of peace, prepare for war." The declaration contained several counts charging that communications similar to that first above described were sent to different persons, and one count upon the last-described writing; each count containing by way of inducement the statement that the plaintiff was a merchant, dependent for his living upon such business; that he had always conducted himself with fairness and punctuality towards his creditors, and until then had never been suspected of bankrupcty, insolvency, or any fraudulent intention, and had always been, and then was, in good circumstances, credit, and esteem; knowing which, the defendant, with the intention of injuring the plaintiff in his good business name and credit, and in his business, and to cause him to be reputed as worthy of no credit, and to injure him and his said credit with the several persons to whom said communications were sent, published the writings counted upon. By way of innuendo, each count alleged the following, in substance, viz.: Thereby the said defendant, by the said clipping and writing, letter partly written and partly printed, as aforesaid, meaning and intending to charge and cause the said (person to whom the same was sent) to understand, believe, and be informed that the said plaintiff was fraudulently conveying his property to his wife, and was insolvent, and in failing circumstances, and unreliable, and unworthy of credit. The counts respectively allege special damage, by stating that the creditors of plaintiff and others, and especially those to whom the communications were sent (naming them), have refused to have further dealings with the plaintiff, or to give him further credit, and that he has, by reason thereof, been prevented from obtaining credit, and from replenishing his stock, and maintaining his trade, which has suffered therefrom, to his loss of profits, and injury. It is contended by the defendant's counsel that the words declared upon are not actionable per se; that they were declared upon without any inducement which would make the innuendo applicable, and that the natural meaning of the words must therefore govern as to the sense in which they were published; but that, even if it were competent for the jury to ascribe a meaning different from the natural meaning of the words, it was unnecessary for a plea of justification to be broader than the charge in the declaration. The words in the several counts, standing alone, are unambiguous, and must therefore be construed in their ordinary sense, in the light of such allegations of the circumstances surrounding the transaction as the declaration sets forth. Most of this language admits of but one meaning when so construed. It is that this plaintiff has conveyed $10,000 to his wife for $5,000; that he |