Andrews vs. Woodmansee, 15 Wend. 232

By the Court, Bronson, J. The words laid in the first six counts of the declaration are not in themselves actionable, and can only be made so by such averments in relation to extrinsic matters, and the application of the words, as will show that the defendant imputed to the plaintiff a criminal offence.

In such cases, the usual mode of declaring is to aver in the first place the existence of those extrinsic facts by reference to which the words become actionable; then, that the words spoken related to those facts, which part of the count is usually termed a colloquium; and lastly, by proper innuendoes, to point the application of the words to the previous averments in the count. In short, the plaintiff must so state his complaint, that it will appear from the declaration, supposing all the allegations to be true, that he has been charged with ,a crime.

Where this is done the count will be sufficient; and whether such a charge was in fact made, will then be a question of evidence on the trial, to be decided by the jury. The plaintiff in this case, after the usual introductory statement that he is a man of good fame, and has never been guilty of the crime of forgery or of procuring any forgery to be committed, avers that he had purchased ahorse of Daniel Fancher, and for the payment of the price he gave his promissory note to Fancher for the sum of seventy dollars, which note the-defendant signed, as his surety, in his own proper hand writing;.

The first count then states a discourse by the defendant, of and concerning the plaintiff, and of and concerning the note, and whether the defendant had executed it as surety ; and that the defendant then and there spoke and published of and concerning the plaintiff, and of and concerning the note,, the following words: “I (meaning, &c.) never signed the note that was given to Fancher, or saw the note in God’s world.” This, .omitting the innuendoes, which can only explain without enlarging the meaning of the words, is the substance of the first count.

Taking the words in connection with the preceding averment, it is evident that the defendant uttered a falsehood, but he did not impute to the plaintiff the crime of forgery. It may be true that he never signed or saw the note, and yet that the plaintiff neither forged it himself or procured it to be done. Indeed it may be that the defendant’s name was subscribed to the note by his express authority. Whether the words can be rendered actionable by further averments or a different mode of framing the count, need not now be considered.

It is sufficient for the present that the count does not show that the plaintiff has been charged with a criminal offence. In the case of The Queen v.Dr. Browne,Sir John Holt’s R. 425, the alleged libel was apparently harmless, but the information laid the matter to have been published ironically. In Woolnoth v.

Meadows, 5East,463,the words were of doubtful import, and the declaration, after the usual introductory matter and setting forth the words, contained an express averment that they were uttered and published by the defendant with intent and meaning to convey, and that the same were understood and believed to convey a charge of the particular crime mentioned in the declaration. Lord Ellenborough, C. J., thought this averment would relieve the case from any doubt . arising from the equivocal import of the words. In Gibson v.

Williams, 4 Wendell, 320, the difficulty was in showing the application of the words to the plaintiff, and the declaration, after stating the words, averred the existence of particular facts to show that the words used must have been spoken of the plaintiff. There was also a further averment that the defendant by speaking the words insinuated and meant to be understood as charging the plaintiff with being a thief and having stolen hams, and that the words were so understood by those who heard them.

The court noticed this averment, and remarked that whether such was the intention of the defendant was a question of fact to be determined by the jury, upon the evidence presented to them on the trial.. The second, third, fourth and fifth counts are as objectionable as the first. The innuendo which follows the words in each of these counts will not help the case. The office of an innuendois to point the application, not to enlarge the sense of the words. It is not the subject of proof, and only ^dds such eXpianatory matter in relation to the words uttered as must have been understood by the hearers at the time.

But it is said that the sixth count can be sustained.

It states that the defendant, in a discourse with Fancher and others, spoke and published of and concerning the plaintiff, and of and concerning the note, and whether the defendant had signed his name thereto in his own proper hand writing, and whether the defendant had given the plaintiff liberty to sign his name to the note, and whether the signature purporting to be in the hand writing of the defendant was a forgery, these words: “ I never put my name to that note, nor gave him (meaning the plaintiff) liberty to do it in God’s world (meaning thereby that the plaintiff had been guilty of forgery, and feloniously signed the defendant’s name to the note without his consent.) This conclusion does not follow from the words.

Supposing them true, the defendant may still have authorized some third person to subscribe his name to the note, or if it be a forgery, the plaintiff may have passed it to Fancher without any knowledge of that fact. If the words can be rendered actionable, it cannot be done without some further averment, either about the occasion or manner of speaking them, or the intent with which they were uttered. Judgment for the defendant.