been good (s). This distinction was recognized in a later 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 held, 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 (t). In all cases, therefore, where the words could be understood in an actionable sense only by reference to certain facts, such facts must have been distinctly stated in the body of the declaration: for the mere introduction of those facts, under an innuendo, would not have been deemed a sufficient averment of them (u): that which comes after the innuendo not being issuable (.x): and further, it must have been averred, that the words were spoken in a conversation about those facts. In short, the words must have been sufficient to maintain the action without the innuendo (y). And the meaning given by the innuendo must have been such as might 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; for an innuendo could not have been used to enlarge the meaning of words without prefatory averments (z). It is to be observed, however, that although new matter could not be introduced by an innuendo (a), but must have been brought upon the record in another way, yet where such new matter was not necessary to support the action, an innuendo, without any colloquium, might be rejected as surplusage (b).

Since the Common Law Procedure Act, 1852, the declaration must set forth words actionable either per se or on account of the particular meaning attributed to them in the declaration (c). And where the words have no ordinary meaning at all, their acquired meaning cannot, in the absence of an innuendo, be gone into, as where the words were "You are a bunter" (d). But the pleader may put any construction upon the words he may

(s) Per de Grey, C. J., in R. v. Horne, Cowp. 684.

(t) Hawkes v. Hawkey, 8 East, 427, recognized by Bayley, J., in Goldstein v. Foss, 6 B. & C. 160, and by Tindal, C. J., delivering judgment in Alexander v. Angle (on error), in Exch. Cham., 1 Cr. & J. 146; and see Hearne v. Stowell, 12 A. & E. 719; 4 P. & D. 696.

(u) 1 Roll. Abr. 83, 1. 10.

(x) Slocomb's case, Cro. Car. 443.

(y) Lovet v. Hawthorn, Cro. Eliz. 834. (z) Per Patteson, J., Gompertz v. Levy, 9 A. & E. 285, citing Goldstein v. Foss.

(a) Day v. Robinson (in error), 1 A. & E. 554; 4 Nev. & M. 884. See Griffith v. Lewis, 8 Q. B. 841; and Wakley v. Healey, 7 C. B. 591.

(b) Roberts v. Camden, 9 East, 95; Barrett v. Long, 3 H. L. Cas. 395. (c) 15 & 16 Vict. c. 76, s. 61. (d) Rawlings v. Norbury, 1 F. & F. 341.

choose, and may leave it to the jury to say whether such construction is borne out by the evidence (e). An action will not lie for these words, "I will take him to Bow Street, on a charge of forgery," without an innuendo (f). 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, 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 (g). It is the province of the jury to decide whether the defendant's meaning was such as is imputed to him by the innuendo (h). 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 (i). Chambre, J., in his direction to the jury, said, that it lay on the defendant to show 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 show, 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 (k). A count, charging that defendant had imposed upon the plaintiff the crime of felony, is good after verdict (). Where the words were, "You have committed a crime for which I can transport

(e) Hemmings v. Gasson, 27 L. J., Q. B. 255, ante, p. 1057.

(f) Harrison v. King (in error), 7 Taunt. 431.

(g) Cook v. Cox, 3 M. & S. 110. See ante, p. 1261.

(h) 15 & 16 Vict. c. 76, s. 61; per

Gould and Blackstone, JJ., 2 Bl. R. 961, 962, cited by Ellenborough, C. J., in Roberts v. Camden, ubi sup.

(i) See ante, p. 1257.

(k) Penfold v. Westcote, 2 N. R. 335. See Rowcliffe v. Edmunds, 7 M. & W. 12. (1) Blizard v. Kelly, 2 B. & C. 283.

you," they were held (on motion in arrest of judgment), to be actionable without any colloquium or innuendo (m).

IV. Of the Pleadings.

Evidence, p. 1268.
Costs, p. 1270.

Of the Pleadings.

Money cannot be paid into court (n). The general issue in this action is, Not Guilty, which operates as a denial only of the breach of duty or wrongful act alleged to have been committed by the defendant, and not of the facts stated in the inducement (o); and no other defence than such denial is admissible under that plea: all other pleas in denial must take issue on some particular matter of fact alleged in the declaration (p). In an action of slander of the plaintiff in his office, profession, or trade, the plea of Not Guilty will operate in denial of speaking the words, of speaking them maliciously, and in the defamatory sense imputed, and with reference to the plaintiff's office, profession, or trade; but it will not operate as a denial of the fact of the plaintiff holding the office or being of the profession or trade alleged (q). On the general issue, the defendant will not be allowed to give the truth of the fact imputed to the plaintiff in evidence even in mitigation of damages and this rule holds in all cases, whether the words do or do not import a charge of felony (r), or whether a charge of felony be particular (s) or general (t). If, however, the charge be true, the defendant may plead it in justification. But if the defendant puts a plea of justification on the record, and offers no evidence in support of it, this conduct may not only enhance the damages against him, but also afford evidence of express malice (u). If the words were spoken by the defendant as counsel, and were pertinent to the matter in issue (x), or in confidence, as by a master, upon being applied to for the character of a servant (y): in these and similar cases an action will not lie, because malice (one of the

eight judges.

(t) Per twelve judges, S. C. See Rumsey v. Webb, Car. & M. 104.

(u) Simpson v. Robinson, 12 Q. B. 511; Wilson v. Robinson, 7 Q. B. 68.

(x) Hodgson v. Scarlett, Holt's N. P. C. 621; 1 B. & A. 232. See 9 M. & W. 358, and 18 C. B. 141.

(y) Edmondson v. Stephenson and another, Bull. N. P. 8; Weatherston v. Hawkins, 1 T. R. 110. See also Hargrave v. Le Breton, 4 Burr. 2425.

essential grounds in an action for slander) is wanting (z); but, “ if without ground, and purely to defame, a false character should be given, it would be proper ground for an action" (a). The defence of privileged communication is admissible under the general issue (b); but if the defendant takes upon himself to plead it specially, the plea must allege that the defendant made the communication on a lawful occasion, believing it to be true and without malice, or at least bonâ fide (c). Where a person intending to hire a servant applies to the former master for a character, the master (except where express malice is proved) shall not be obliged to prove the truth of the character he gives; for in such case the disclosure is not made officiously, but in confidence, and the facts may happen to rest only in the knowledge of master and servant. But where the master voluntarily, and without being applied to, speaks defamatory words of his servant, it will be incumbent on him to plead and prove the truth of the words (d). "I take the law to be well settled, that, where a master is applied to for a 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" (e). Note. A servant cannot bring an action against his master for not giving him a character (ƒ).

The general issue puts in issue the special damage alleged, whether the words are or are not actionable per se; and a plea negativing the special damage in slander for words actionable in themselves has been held bad on demurrer (g). To an action by husband and wife for slander of the wife, a plea that the female plaintiff was not the wife of the other plaintiff is a good plea in bar (h).

The defendant may plead that the words were not spoken within two years before the commencement of the action (¿).

(z) Warr v. Jolly, 6 C. & P. 497; Woodward v. Lander, 6 C. & P. 548.

(a) Per Lord Mansfield, C. J., in Edmondson v. Stephenson, Bull. N. P. 8, cited by Parke, J., in Blackburn v. Blackburn, 4 Bingh. 408. As to privileged communications, see ante, p. 1053.

(b) Lillie v. Price, 5 A. & E. 645; Hoare v. Silverlock, 9 C. B. 20; Lord Lucan v. Smith, 1 H. & N. 481; 26 L. J., Exch. 94.

(c) Smith v. Thomas, 2 B. N. C. 372; 2 Scott, 546.

(d) Said by Lord Mansfield, C. J., to be so settled, and that he had often ruled it so at Nisi Prius. Lawry v. Ackenhead and Ux., B. R. Sittings, M 8 Geo. III., VOL. II.

Chambre, MSS.; Kelly v. Partington, 4 B. & Ad. 700; 2 Nev. & M. 460. See however Pattison v. Jones, 8 B. & C. 578, and ante, p. 1055.

(e) Per Chambre, J., in Rogers v. Clifton, 3 B. & P. 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. See also Simpson v. Robinson, 12 Q. B. 511.

(f) Per Lord Kenyon, C. J., in Carrol v. Bird, 3 Esp. 201.

(g) Smith v. Thomas, ubi sup.; Wilby v. Elston, 8 C. B. 142.

(h) Chandler v. Lindsey, 16 M. & W. 82; 4 D. & L. 339.

(i) 21 Jac. I. c. 16, s. 3.

PP

Evidence.

By 6 & 7 Vict. c. 96, s. 1, in any action for defamation it shall be lawful for the defendant (after notice in writing of his intention so to do, duly given to the plaintiff at the time of filing or delivering the plea in such action) to give in evidence, in mitigation of damages, that he made or offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity of doing so, in case the action shall have been commenced before there was an opportunity of making or offering such apology.

The words must be proved as laid in the declaration (k); 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; only what is material (1). Formerly, indeed, it was held, that the plaintiff must prove all the words precisely as laid; but now it is otherwise (m). The extensive powers of amendment contained in the Common Law Procedure Act, 1852 (n), render it unnecessary to state at large the cases which illustrate the above rule (o). Where the declaration alleged that the plaintiff was of two trades, although the plaintiff failed to prove that he was of both; it was held, that he might recover upon proof that he was of that trade concerning which the defendant was charged to have spoken the words; for the allegation was partible (p). The plaintiff, after proving the words as laid in the declaration, may prove that the defendant spoke other words on the same subject or referring to it, either before or afterwards, although such words may be actionable; for this evidence is admissible, not in aggravation of damages, but for the purpose of proving the malice of the defendant in deliberately speaking the words which are the subject of the action (q).

In an action for words of perjury, the plaintiff offered in evidence a bill of indictment, which had been preferred against him by the defendant, and which the grand jury returned ignoramus. This was held to be admissible evidence to show the malicious intent with which the words were spoken (r). Express malice

(k) Barnes v. Holloway, 8 T. R. 150. Per Lawrence, J., in Maitland v. Goldney, 2 East, 438; Walters v. Mace, 2 B. & A. 756; Hancock v. Winter, 7 Taunt. 205.

(1) Per Bayley, B., Cox v. Thomason, 2 Cr. & J. 364; Compagnon v. Martin, Bl. R. 790.

(m) Bull. N. P. 5, cites 2 Roll. Abr. 718. (n) Sect. 222. See Saunders v. Bate, 1 H. & N. 402, ante, p. 1058. See also the following cases on the former enactments, viz., Prudhomme v. Fraser, 1 Moo. & R. 435; Smith v. Knowelden, 2 M. & G. 561; 2 Scott, N. R. 657; Southee v. Denny, 1 Exch. 196; Camfield v. Bird, 3 C. & K.

56; Pater v. Baker, 3 C. B. 831; Wilkin v. Reed, 15 C. B. 192.

(0) See Stannard v. Harper, 5 M. & R. 295; Avarillo v. Rogers, London Sittings, Trin. 1773, B. R.; R. v. Berry, 4 T. R. 217; Nelson v. Dirie, Ca. Temp. Hardw. 306; Solomons v. Medex, 1 Stark. N. P. C. 191; Barnes v. Holloway, 8 T. R. 150. (p) Figgins v. Cogswell, 3 M. & S. 369. (q) See 2 Phillipps, c. 9, and ante, tit. "Libel," p. 1063; but see Defries v. Davies, 7 C. & P. 112, Tindal, C. J.

(r) Tate v. Humphrey, 2 Campb. 73, n. See also Rustell v. M'Quister, ante.