Mix against Woodward, 12 Conn. 262

Bissell, J. Upon the motion in arrest of judgment filed in this case, and on the motion for a new trial, two general questions are presented for our decision. 1. Is the declaration sufficient ? And 2., if a good cause of action is there disclosed, has it been sustained, by evidence properly admitted ? The last enquiry, it will be seen, involves a consideration of several interlocutory decisions, made by the judge on the circuit.

The first and principal objection to the declaration, is, that it does not sufficiently appear, either from the supposed libel itself, or from that in connexion with the extrinsic facts brought upon the record, that the plaintiff was the person designated in the publication. As this objection comes after verdict, the enquiry now is, whether the plaintiff has stated such a case in his declaration, as that the conclusion that he was the person meant, could properly be drawn by the jury: and whether this question be considered, either on the ground of principle or authority, it is by no means free from difficulty.

We have not come to a result, without much hesitation. Were the earlier cases alone to be consulted, and to govern, we probably should have come to a different conclusion upon this point. But it is undoubtedly true, that much of the ancient strictness, and many of the technical niceties, by which actions of this description were formerly embarrassed, have been discarded : and we think, that upon the authority of the more modem decisions, this declaration may be held good after verdict. Is the supposed libel before us, so vague and uncertain, that it cannot be intended to apply to any person ?

If such be its character, it is very clear, that it cannot be made actionable by any averment. But this position has not been taken, by the defendant’s counsel. Such is not the character of this libel. It was doubtless intended to apply to some one. It is readily admitted, that in the libel itself, the plaintiff is not so identified, as to dispense with the necessity of bringing upon the record extrinsic facts, connecting him with the publication.

And the question is, whether such facts are stated, and whether the plaintiff is so far identified as to warrant the judge in submitting any thing to the consideration of the jury. On this subject we recognise and adopt the rule laid down, by Van Ness, J. in giving the opinion of the court in the case of Van Vechten v. Hopkins, 5 Johns.

Rep. 211. 223. “Where the words in themselves amount to a libellous charge upon some particular person, but where that person is so ambiguously described, as without the aid of extrinsic facts, his identity cannot be ascertained, but where, by the introduction of proper aver-ments, and a colloquium, the words may, notwithstanding, be rendered sufficiently certain to maintain an action in such case, “ the certainty is arrived at, by taking into consideration both the extrinsic facts stated in the averments and colloquium, and the whole of the libel; all of which must be submitted to the jury, under the direction and charge of the judge, as in oth-cases.” Now, let us examine, briefly, the averments in the declaration, in connexion with the libel, and see whether, upon the whole, there rests such an utter uncertainty, in regard to the identity of the plaintiff, as that he can maintain no action.

It is said, the only designation in the libel is, to “ the writer in the Register, who was deprived of a two penny justice-ship,” &c.; and that there is no averment that the plaintiff, either was, or was reputed to be, the writer in the Register. It has not been contended, that it is necessary for a plaintiff to satisfy every description given in the libel; and such a rule cannot be gravely urged ; for it would obviously enable a man to libel with impunity, by adding to a description, which every body would understand, one that did not appertain to the person slandered.

The authorities upon this point will be hereafter adduced.

But the libel points not only to the writer in the Register, but to the man “ who ivas deprived of a justice-shipAnd in regard to this, the averments in the declaration are, that for two years previous to the publication of the the libel, the plaintiff was a justice of the peace, in and for the county of New-Haven, duly qualified and acting as such ; that he was not re-appointed, by the General Assembly, at their session in May, 1834, a justice for said county ; and that the libel was published of and concerning the plaintiff, and of and concerning him in relation to the fact that he had held said office, and had not been re-appointed ; and of and concerning the conduct and behaviour of the plaintiff in the execution of his said office.

Now, the question is, whether there be sufficient in these averments, in connection with the libel and the innu-endoes, to sustain the finding of the jury. It is said, there is no allegation that the plaintiff was the only justice, who was not re-appointed: that there might have been, and probably were, others, to whom the description would have applied, as well as to him.

We do not think it necessary for the pleader, in stating extrinsic facts, going to shew that the plaintiff was the person pointed to in the libel, to exclude all others; or to show, negatively, that no other person could have been meant; although it is not denied, that the argument derives some support from the more ancient authorities. Thus, in the case of Harvey v. Chamberlain, Cro. Jac. 635., where the words were, ‘‘ Thy son hath murdered my child,” it was held, that a colloquium must be shown, averring, that the plaintiff was the only son of his father. The same doctrine was laid down in the case of Brown v.

Low, Cro. Jac. 443. But in Wiseman v. Wiseman, Cro. Jac. 107. it was decided, that an action lies for saying “ My brother is perjured,” averting, that the plaintiff was his brother, and that the words toere spoken of him; although it was not shown, that he was the only brother of the defendant. <S'tarkie, after bringing together the early cases upon this subject, remarks: “ At this day, after so many of the technical niceties, with which actions of this description were formerly encumbered, have been defeated ; it may well be doubted, whether much attention would be paid to these cases.

The real end and object of such averments, is, to show with certainty, that the plaintiff is the person aimed at, by the defendant ; and though upon the face of the words themselves, their application may be ambiguous, as where the defendant says, ‘thy son, thy brother yet there appears no want of certainty on the record, when it is alleged, that the icords were spoken of the plaintiff; and whether they were so applied or not, is a matter of evidence, to be proved, by showing that he did stand in the relation specified, and without due proof of which, the jury could not possibly find the truth of the averment, that the words were spoken concerning him.” Stark.

Slatid. 287. It may here be remarked, that the cases relied on, and which have been cited from Cro. Jac. were overruled in the case of Gidney v. Blake, 11 Johns. Rep. 54. The rule in regard to the necessity of prefatory averments, their office and effect, is laid down, with great clearness, by Lord Ellenborough, in the case of Hawkes v. Hawkey, 8 East, 427.; by Van Ness, J. in the case of Van Vechten v. Hopkins, already cited, (and which we think decisive of the present;) and by Lord Ch. J. De Grey, in Rex v. Horne, Cowp. 672. ; and the case of Rex v.

Matthews, there cited, (p. 686.) is strictly applicable to, if not decisive of, the point now before us. The words of the libel were these : “ From the solemnity of the chevalier’s birth, and if hereditary right be any recommendation, he has that to plead in his favour.” It was there asked, what chevalier? Who is he? What recommendation? And to what thing?

In the introductory part, the information charged the libel to have been written “ of and concerning the Pretender,” and “ of and concerning his right to the crown of Great-Britainand it was held, that the innuendoes in the body of the libel, explaining the words chevalier, &c. to mean the Pretender and his hereditary right to the crown of Great-Britain, when connected with the aver-ments in the introductory part, of its being written “ of and concerning the Pretender and his right to the crown of Great-.Britain," were a sufficient explanation to make good the charge.

Now, in the case before us, when it is averred, that the plaintiff filled a particular office, that he was removed from it, and that the libel was published of and concerning him, and of and concerning him in reference to that fact; and the jury have found these allegations to be true; is judgment to be arrested, on the ground, that there may have been others, for aught that appears on the declaration, to whom the charge may have applied ? We know of no modern authority that will bear out such a decision. It may be proper, very briefly, to advert to some, that have been relied on, by the defendant’s counsel.

The case of Goldstein v. Foss & al. 6 Barn. & Gres. 154. has been cited. The judgment in that case was arrested, on the ground that the introductory matter, stated in the declaration, was immaterial, not being connected with the libel; that the innuendo was not warranted by it; and that the words of the libel, unexplained by introductory matter, were not actionable.

In giving his opinion in the case, Bayley, J. says : “ Jf the libel, as stated, had been connected with the introductory matter, the declaration might have been good; for then there might have been sufficient to warrant the introduction of the innuendo." In Wood v. Brown, 6 Taun. 169. the declaration was adjudged insufficient, because the libel was not set out; — it being stated that the defendant published a libel purporting that the plaintiff’s beer was bad, &c. And so again, in the case of Stockley v.

Clement, 4 Bing. 162., the declaration did not contain even an innuendo, alleging that the charge in the publication applied to the plaintiff; and there was nothing in the charge, which threw the least imputation upon him, or which showed that he had any con-nexion with it. In Clement v. Fisher, 7 Barn. & Cres. 459., the question arose upon the second count in the declaration. The libel was set out in that count; but there was no allegation that it was of and concerning the plaintiff; nor did it appear, on the face of it, to relate to him ; and there was no innuendo to connect it with the plaintiff.

The count was holden to be bad. But Lord Tenderden there says, such an allegation would have been unnecessary, if there had been, in the libel set out, any_ thing which clearly applied to the plaintiff, or any distinct innuendo so applying the libellous matter. The cases of The Commonwealth v. Child, 13 Pick. 201. and Bullock v. Koon, 9 Cowen, 30. merely recognise the general and well settled principle, that where words are not in themselves actionable, but become so, by extrinsic circumstances, these must be averred and proved.

A very slight examination of these, and the other authorities relied on by the defendant, will show, that they fall very far short of deciding the point now under discussion. We have already adverted to the objection, that the declaration contains no averment, that the plaintiff either was, or was reputed to be, the writer in the Register: and we have remarked, that it is not necessary for the declaration to satisfy every description given in the libel. This position is fully sustained, by the authorities.

Thus, where the libel was stated to have been published of a man in two trades ; it was held, that the allegation might be divided. Figgins v. Coggswell, 3 Man. & Selw. 369. See also Lord Churchill v. Hunt, 2 Barn. & Aid. 685. Chambers v. Shackell & al. 6 Car. & Payne, 475. May v. Brown, 3 Barn. & Cres. 113. Rutherford v. Évans, 4 Car. & Payne, 74. Teesdale v. Clement, 1 Chit. Rep. 603. Another objection taken to the declaration, is, that the in-nuendoes, in the several counts, are not warranted by the libel.

In all the counts, the meaning is alleged to be “ that the plaintiff had packed a jury, and had been guilty of malpractice in packing a jury.” Thus far, we think the correct meaning of the libel is given, as will be shown in a subsequent part of the case. There are, indeed, other allegations; and a further meaning is imputed to the defendant, in the several innuendoes. Now, it is very clear, that an innuendo cannot extend the sense of the words beyond their true meaning, unless something is put upon the record for it to explain.

It is merely explanatory of the subject matter already expressed; and it is explanatory of such matter only. Rex v. Horne, and Van Vechten v. Hopkins, already cited. Now, whether the innuendoes here do attempt to extend the meaning of the words, and are thus obnoxious to the objection that has been raised, we do not think it very material to en- . quire: for the cases are abundant to prove, that although these additional averments are not warranted, by the introductory matter, yet if the counts can be sustained without these aver-ments, they may be rejected as surplusage. 1 Chitt. Plead. 383. 2 Chitt.

Plead. 256. in notis. 1 Sw. Dig. 644. 1 Saund. 243. n. 4. Roberts v. Camden, 9 East, 93. 95. Note a to Chambers v. Shackell, 6 Car. & Payne, 475. (25 Serg. & Lowb. 499, 500.) Harvey v. French, 2 Moore & Scott, 591. We are of opinion that they can be sustained, and that upon the whole, the declaration is sufficient, after verdict; and therefore, the motion in arrest of judgment must be overruled. The motion for a new trial, as has been observed, brings before us for review, several interlocutory decisions, made by the judge on the circuit. 1.

It is objected, that the evidence offered to prove that the plaintiff was the person intended in the libel, was improperly admitted. This objection extends to the testimony of Hoad-ley B. Ives, and the articles B and C, and involves two en-quiries : First, whether any evidence, not growing out of the libel itself, or the extrinsic circumstances brought upon the record, was admissible to show the identity of the plaintiff? And secondly, whether the evidence offered was relevant to that object ?

And in regard to the first branch of the objection, many of the remarks which have been made, and many of the authorities which have been cited going to show that the declaration is sufficient, are strictly applicable. It is indeed said, that to enable a plaintiff to maintain an action for a libel, he must have suffered damage from the publication itself, irrespective of the intention of the writing: and that in order to his suffering such damage, he must be clearly indicated, either by the publication itself, or by the extrinsic circumstances, with which it is connected.

Now, it is undoubtedly true, as has been already intimated, that words may be, in themselves, so vague and uncertain, that they cannot be intended to apply to any person ; and in such case, no action can be maintained. The case put at the bar furnishes an illustration of the principle. If the words published were, “ there is one pettifogger in Connecticut,” no person, whatever might be his character, could appropriate the description, and maintain an action.

But the objection takes much higher ground ; and assumes, as we think, the broad principle, that to render a writing libel-lous, it must be so explicit in its terms, and so pointed to the plaintiff, or so connected with extrinsic facts, as that every person reading the libel, or reading it it in connexion with a knowledge of the facts referred to, must necessarily understand it as applying to the plaintiff.

If this be the correct rule ; and if, as has been contended, in another part of the argument, the court is to judge of this matter; it would follow, that in cases of libel, every thing would be withdrawn from the consideration of the jury, but the naked fact of publication. But such we do not understand to be the rule.

We suppose it to be well settled, that where the person is so ambiguously described, that a resort to extrinsic facts is necessary to ascertain his identity ; there the libel and all attending circumstances, are to be submitted to the jury ; and that the plaintiff is at liberty to prove the averment, 11 that the libel was published of and concerning him,” in the same manner, and by the same kind of evidence, as he might prove any other fact in the case. In the case of Chubb v.

Westley, 6 Carr. & Payne, 436., subsequent libels, referring to those for which the action was brought, and attacking the plaintiff, were admitted, not only as shewing quo animo the former libels were published, but also as shewing that the defendant himself considered those libels as applying to the plaintiff. See also Roscoe on Evid. tit. Case for Defamation. Stark. Sland. 94., 5,6. 14 Serg. & Rawle 359. Gidney v. Blake, 11 Johns. Rep. 54. Bornman v. Boyer, 3 Binn. 515. Thorn v. Blanchard, 5 Johns. Rep. 508. Rex v. Horne, Cowp. 676. Secondly, was the testimony offered relevant?

Or did if conduce to prove the fact for which it was offered ? And in regard to the evidence of Hoadley B. Ives, we think the question entirely free from doubt. This witness testifies to a conversation between the defendant and others, soon after the publication of the libel in question ; and the charge here made was then repeated, and substantially in the same terms. The defendant expressed his gratification, at the removal of the plaintiff from the office of a justice; and said, 11 he is now in a situation where he will not pack another jury" The

article marked B, stands on as high, and perhaps on higher ground. There, the attention of the defendant was particularly called to the publication of the libel. He was directly charged with publishing it, of and concerning the plaintiff, and satisfaction was demanded for the injury. So far from denying the charge, as he might, and should have done, if it was unfounded, he impliedly admits its truth, and sets the plaintiff at defiance. If the

article marked C, is more remote, and does not prove much on the point, still we are not prepared to say, that it does not contain some evidence for the jury to consider. The deposition of John C. Palmer was objected to, in the court below; and the objection, although it has not been much insisted on here, may as well be disposed of, in this place. We think the deposition strictly admissible, as showing quo animo the publication was made.

It was further contended, on the trial, and has again been urged here, that as it appeared from the testimony introduced by the plaintiff, that there were other justices in JSeiv-Haven county, who were not re-appointed in May, 1834, and to whom the publication might have applied, as well as to himself, the whole was so vague, that the court should have told the jury there was no evidence to shew, that the plaintiff was the person meant; and to have directed a verdict for the defendant.

The objection is resolvable into the single enquiry, whether there was any testimony in the case for the jury to weigh ; because, if there was, the judge had no power to withdraw the evidence from their consideration. We certainly are not prepared to say, that there was no evidence in the case. 2. It is said, that the court erred in not admitting the evidence offered by the defendant, under his notice.

The testimony was received in mitigation of damages ; and the only question now is, whether the facts set up in the notice, and offered to be proved, amounted to a justification of the charge contained in the libel. In Chalmers v. Shackell & al., 6 Carr. & Payne, 475., the rule is laid down, that in order to a justification of the charge, the same evidence must be given, as would be necessary to convict the plaintiff, if he were on trial for the offence charged ; and the jury must be satisfied, that the strict legal, offence was committed.

The same rule, and almost in the same terms, was laid down, by the supreme court of the state of New- York, in the case of Root v. King & al., 7 Cowen 618., and again, by the supreme court of errors, in the same case on error. 4 Wend. 113. And in the case of Slow v. Converse, in this court, 4 Conn. Rep. 17., it is said, that a party who would justify a charge, must do it specifically, and cannot prove a charge of the same general nature, but distinct as to the particular subject.

It cannot, surely, be necessary to refer to the long list of authorities, which go to prove, that the specific charge must be justified ; and that a man may not “ defame in one sense, and defend in another.” With this rule in view, let us look, for a moment, at the charge, and compare it with the facts set up by way of justification.

The charge is of “ mal-practice in packing a jury.” Now5 whether we consult the most approved lexicographers, or adopt the popular meaning of the term “ to pack,” as applied to a jury, the charge clearly imports the improper and corrupt selection of a jury, sworn and empannelled for the trial of a cause. “ When (says Blackstone,) a sufficient number of persons are empannelled, they are then separately sworn well and truly to try the issue between the parties, and a true verdict to give, according to the evidence ; and hence they are denominated the jury, jurata.” 3 Bl. Com. 365.

The purport of the charge, then, cannot be mistaken. Now, what are the facts averred in the notice, and offered to be proved ? Nothing can be more obvious than that they do not meet the charge contained in the libel. They do not go to shew, that the plaintiff at all interfered in the selection of a jury empan-nelled and sworn. At most, they prove that he conducted improperly in the selection of free holders, to be placed in the jury-box. And this can hardly be said to be a charge of the same general nature : much less is it the specific charge complained of.

It has, however, been urged, that in Connecticut, ajustice of the peace has no power to pack a jury, according to the ordinary, and strictly legal meaning of that term ; and that the only agency he can exercise in the matter, is precisely that set forth in the notice; and that the charge must be understood to have been made in reference to these well known facts. The answer which was given to this argument, at the bar, was entirely satisfactory. For it is true, that in cases of forcible entry and detainer, and also in cases of

summary process to obtain possession of lands, «fee., a justice of peace may pack a jury, within the legal and known signification of the term. And besides, when words having a well known meaning, are used without qualification, they must be taken to have been used in their ordinary and common acceptation. And it is no excuse, much less a justification, that they might have been used in some other sense. 3. It is insisted, that the jury ought to have been permitted to pass upon (he truth of the innuendoes, and also to put a construction upon the libel.

It is indisputable, that an innuendo is not, ordinarily, the subject of proof. So are all the authorities. — And this follows from the very nature and office of an innuendo ; it being merely explanatory of that which is already sufficiently expressed. It can do no more than explain ; and if, in this case, the meaning of the words is extended, by the innuendoes, the objection is upon the record, and has already been considered.

It is true, that where the plaintiff sues, in a particular character, and in the innuendo, he explains the words spoken, as applying to him in that character, he is bound to prove, that they were so spoken. And so again, w here the words are ambiguous, and admit of different applications ; if the innuendo limit and confine them to a particular sense, the plaintiff is bound to prove, that they were used in that sense. The case of Sellers v. Till, 4 Barn. & Cres. 655., illustrates the former of these positions, and that of Smith v. Carey, 3 Campb. 460., the latter.

In the first-mentioned case, the declaration stated, that the plaintiff was treasurer and collector of certain tolls; — and that the defendant spoke of and concerning the plaintiff, as such treasurer and collector, certain words, I! thereby meaning that the plaintiff, as such treasurer and collector, had been guilty,” «fee. It was held, that he was bound to prove, that he was treasurer and collector, and that the words were applied to him, in the manner that he had himself pointed out. In Carey v.

Smith, the words were, “ that he lived by swindling and robbery” — innuendo—“meaning thereby that, the plaintiff had been guilty of felony and robbery.” The words might be understood to convey a charge either of felony ox fraud ; and they appeared to have been used in the latter sense. It was held, that the plaintiff was bound to shew, that the words were used in the sense ascribed to them. And Lord Ellenhorough there says, “ the words were in themselves actionable ; and if there had been no such innuendo as to their meaning, the plaintiff would ceitainly have been entitled to a verdict. See also Goldstein v.

Foss & al. 6 Barn. & Cres. 154. Thompson v. Bernard, I Campb. 48. Penfold v. Westcote, 2 New Rep. 335. But the court decided, that the words, if published of the plaintiff, did necessarily import that he had actually been guilty of mal-practicein packing a jury; and that the words were, on the face of them, libellous. And it is contended, that in this the court erred: that the words do not necessarily import this ; but only that the plaintiff had been deprived of his office on a charge of having packed a jury; and that what was the defendant’s meaning, was a question of fact for the jury to decide.

It is very difficult to see how the court could have avoided putting a construction on this publication. How could the question in regard to the justification be determined, without construing the libel ? And was the wrong construction put upon it? And was there really any thing to be left to the jury ? In the case of Roberts & al. v. Camden, 9 East, 93., the words were, “ he is under a charge of prosecution for perjury, and G.

A. had the attorney-general’s directions to prosecute him for perjury.” The words were held to be actionable; and Lord Ellenborough says, “ these words, fairly and naturally construed, appear to us to have been meant, and to be calculated to convey the imputation of perjury actually committed, by the person of whom they were spoken.” We think that the determination of the judge on the circuit, upon this point, was entirely correct. 4.

On the trial below, several articles, reflecting upon the plaintiff, and on the face of them confessedly libellous, and published by the defendant, after the publication of the libel in question, but having no reference to it, were offered in evidence, for the purpose of proving malice. The evidence was rejected, as inadmissible for any purpose. The articles marked F and G, were then offered, and on the supposition that they were not, in themselves actionable, were permitted to go to the jury for the purpose of showing the malice of the defendant.

We think that the ruling of the judge; in the first instance, was correct; and we are strongly inclined to the opinion, that the articles before us should have been rejected, as falling within the principle already decided. It is however unnecessary for us to say whether these articles are, on the face of them, libellous ; for we are all of opinion, that whether libellous or not, as they had no reference to the libel on trial, they ought not to have been permitted to go to the jury.

In regard to the admissibility of publications, or of words spoken, subsequently to those for which the action is brought, the authorities, both in Great-Br-itain and in the neighbour-ing states, are far from being uniform. Indeed, they cannot be reconciled. In the case of Charlter v. Barrett, Peake’s Ca. 22. Lord Kenyon admitted the evidence. In Mead v. Daubigny, Idem, 125. he rejected it; and again, he received it, in Lee v. Huson, Idem, 166. In Rusell v. Macquister, 1 Campb. 49. in note, Lord Ellenborough admitted the evidence ; and rejected it, in Stuart v. Lovell, 2 Stark. Ca. 93. In Finnerty v.

Tipper, 2 Campb. 72. Mansfield, C. J. rejected the testimony. It can hardly be either necessary or useful to refer to the numerous decisions, which have taken place, in the several states upon this “ vexed question.” We believe the weight of authorities, and especially the later ones, is in favour of rejecting the evidence. In giving the opinion of the court, in the case of Bodwell v. Swan & ux. 3 Pick. 370. Parker, C. J. remarks : “ According to Mansfield, C.

J. a repetition of the same words, or the same libel, may be proved, to show that the first was not heedless, but malicious; and we think, that so far we may go: but we cannot agree, that if a man sue another for calling him a thief, he may prove, that at another time afterwards, he called him a murderer.” It is not, indeed, easy for us to discover upon what principle evidence of this character has ever been received. Is it for the purpose of proving malice ? This is implied from the publication of the libel on trial.

The only object, then, can be to heighten the degree of malice, and thus to enhance the dama-, ges ; and so damages may be twice given for the same publication. But this consequence has been studiously repelled, by every judge, by whom the testimony has been admitted ; and the jury are uniformly told, that for subsequent publications or words, they are not to give damages. The point before us, has not, to our knowledge, ever been settled, by this court; and amidst the conflict of authorities, which has prevailed elsewhere, we feel ourselves at liberty to determine the question upon principle.

And upon this, we are decidedly of opinion, that neither any subsequent publication, nor subsequent words, not referring to the libel, or to the slander on trial, can be admitted in evidence. And on this ground, we make the rule, in the present case, absolute. In this opinion the other Judges concurred. New trial to be granted.