averred in the declaration; for an innuendo cannot be used to enlarge the meaning of words without prefatory averments (f). It is to be observed, however, that although new (g) 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 (h).

An action will not lie for these words, "I will take him to Bow Street, on a charge of forgery," without an innuendo (i). 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 (k). It is the province of the jury to decide, whether the defendant's meaning was such as is imputed to him by the innuendo (1). 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" (m); 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 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

(f) Per Patteson, J., Gompertz v. Levy, 9 A. & Ε. 285, citing Goldstein v. Foss. (g) Day v. Robinson, in error, 1 A. & E. 554; 4 Nev. & M. 884.

(h) Roberts v. Camden, 9 East, 95.

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

(k) Cook v. Cor, 3 M. & S. 110.

(1) Per Gould and Blackstone, Js., 2 Bl. R. 961, 2, cited by Ellenborough, C. J., in Roberts v. Camden, ubi sup.

(m) Penfold v. Westcote, 2 Bos. & Pul. N. R. 335. See Rowcliffe v. Edmunds, 7 M. & W. 12.

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

IV. Of the Pleadings, p. 1265; Evidence, p. 1266; Costs, p. 1269.

Of the Pleadings.

MONEY cannot be paid into court (p). The general issue in this action is, Not Guilty. But now (q), in actions on the case, the plea of Not Guilty shall operate 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, and no other defence than such denial shall be admissible under that plea: all other pleas in denial shall take issue on some particular matter of fact alleged in the declaration. In an action of slander of the plaintiff in his office, profession, or trade, the plea of Not Guilty will operate to the same extent precisely as at present in denial of speaking the words, of speaking them maliciously, and in the 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 (r). 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 (s), or whether a charge of felony be particular (t), or general (u). If, however, the charge be true, the defendant may plead it in justification. 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 (z), an action will not lie, because malice, (one of the essential grounds

per eight judges.

(u) Per twelve judges, S. C.

(x) S. C.; Hodgson v. Scarlett, Holt's N. P. C. 621; 1 B. & A. 232.

(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.

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

in an action for slander,) is wanting; but, "if without ground (a), and purely to defame, a false character should be given, it would be proper ground for an action." The plea of privileged communication 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 (b). 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 (c). "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" (10). A plea negativing the special damage in slander for words actionable in themselves is bad on demurrer (d).

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

Evidence.

By stat. 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.

(a) Per Lord Mansfield, C. J., in Edmondson v. Stephenson, Bull. N. P. 8, cited by Park, J., in Blackburn v. Blackburn, 4 Bingh. 408.

(b) Smith v. Thomas, 2 Bingh. N. C. 372; 2 Scott, 546.

(c) 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.,
Chambre, MSS.; Kelly v. Partington, 4
B. & Ad. 700; 2 Nev. & Μ. 460.
(d) S. C.

(e) Stat. 21 Jac. I. c. 16, s. 3.

(10) Per Chambre, J., in Rogers v. Clifton, M. 44 Geo. III., С. В., 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. The words must be proved as laid in the declaration (f); 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 (g) material. Formerly, indeed, it was holden, that the plaintiff must prove the words precisely as laid (h); but now it is sufficient to prove the substance of them. However, if the words be laid in the third person, e. g., he is a thief, proof of words spoken in the second person, e. g., you are a thief, will not support the declaration (i); for there is a great difference between words spoken in a passion to a man's face, and words spoken deliberately behind his back (k). Nor will proof of words spoken to a person support an indictment (l) charging that the defendant spoke them of such person. So an averment that slanderous words spoken concerning the (three) plaintiffs in their joint trade, was holden (m) not to be supported by evidence of words addressed by the defendant personally to one only of the partners. In like manner a count for slanderous words spoken affirmatively, cannot be supported by proof that they were spoken by way of interrogatory: as where the declaration stated (n), that the defendant spoke these words "he, the plaintiff, cannot pay his labourers," and the evidence was, that the defendant had asked a witness "if he had heard that plaintiff could not pay his labourers." Where the declaration alleged that the plaintiff was of two trades, although the plaintiff failed to prove that he was of both; it was holden (o), 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. The plaintiff, after proving the words as laid in the declaration, may prove that the defendant spoke other (p) 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.

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

a variety of nonsuits on the same objection; although there was a case in Strange, e contra, and also a dictum of Lord Hardwicke, C. J., in Nelson v. Dixie, C. Temp. Hardw. 306.

(1) R. v. Berry, 4 T. R. 217.

(m) Solomons and two others v. Medex, 1 Stark. N. P. C. 191.

(n) Barnes v. Holloway, 8 T. R. 150. (0) Figgins v. Cogswell, 3 M. & S. 369. (p) See 2 Phillipps, c. 9, and ante, tit. " Libel," p. 1055, n. (8). See also Defries v. Davis, 7 C. & P. 112, Tindal C. J.

2 P

holden to be admissible evidence to show the malicious intent with which the words were spoken (q). If the declaration contain several actionable words, it is sufficient for plaintiff to prove some of them(r). Express malice need not be proved; if the charge be false, malice will be implied. The existence of express malice is only a matter of inquiry (s), where the injurious expressions, which are the subject of complaint, are uttered upon a lawful occasion. In an action for slander of title, it must appear that the words were spoken maliciously: it is not necessary for the defendant to plead specially; but the plaintiff must prove malice, which is the gist of the action (t). Where in the declaration it was alleged, that the plaintiff was a physician, and exercised that profession in England, and on that account was called doctor, meaning doctor of medicine, and that defendant slandered plaintiff in his character of a physician, and denied his right to be called a doctor of medicine; it was holden (u), that the plaintiff must prove that he was entitled to practise as a physician in England: it was not sufficient to show that he had in fact so practised; nor that he had received the degree of doctor of medicine at the University of St. Andrew's in Scotland. It is not competent for the defendant, under the general issue, to offer, in mitigation of damages, evidence that the specific facts in which the slander consists, and for which the action is brought, were communicated to him by a third person (x). In an action for words imputing felony, with a count for maliciously charging the plaintiff with theft before a justice, to which the defendant pleaded the general issue, and also pleas of justification, evidence of general good character (y) is not admissible for the plaintiff. Where words are given in evidence in order to prove malice, which are not stated in the declaration, the defendant may prove (z) the truth of such words; as, not being on the record, the defendant has had no opportunity of justifying them. Where the words are not actionable in themselves, and the only ground of action is the special damage, such special damage must be proved (a) as alleged. Where the words are actionable without the inducement, the insertion of what is not material and not proved, does not occasion a variance (b) of which advantage can be taken. Where one of several counts in a declaration for slander is bad, and some of the defamatory words in it are proved, and the jury find a verdict generally with damages for the plaintiff, the court will award a venire de novo (c).