Joralemon v. Pomeroy

delivered the opinion of the court.

One set of counts in the plaintiff’s declaration, from the third to the eleventh inclusive, relate to the same charge, which is laid in different ways to meet the possible contingencies of the case. They allege the use of words, which by. the *275innuendoes in the several counts are so explained as to charge the plaintiff with the crime of fornication. Whatever may yet be the rule in England, undoubtedly it is actionable in this stale to impute ibis offence, one involving moral turpitude, and which here has long since been made punishable by indictment. The question raised is not, whether it is actionable per se, without proof of special damage, to charge this offence upon another; but it is, whether the wrords do import the offence, and are properly explained by the innuendo, so that the special meaning, which it is alleged they were intended to convey, is evident without the aid of any previous colloquium or statement of extrinsic facts.

It is true that it is no longer the rule that the words alleged to be slanderous are to be construed in miiiori sensu: they are to be taken in their ordinary sense, as they would naturally be understood by the persons to whom they were addressed. But the meaning of the words is not to be ascertained by the innuendo. • An innuendo cannot extend the sense of the words spoken beyond their natural meaning, unless something is put upon the record to which the words may be referred, and by which they may be explained. It connects the words spoken with something already on the record, and is only a link to attach together facts previously made known to the court. It may apply to whatever is already expressed, but cannot enlarge of change the sense of the previous words. Rex v. Horne, Cowp. 684; Goldstein v. Foss, 6 B. & C. 154; Bartow v. Brands, 3 Green 248 ; Barham v. Nethersall, Yelv. 22 ; 1 Win’s. Saund. 243, note 4. When words are susceptible of different meanings, of a harmless but also of an injurious meaning, the innuendo may then serve to define the sense in which the words were in fact used. In such case it will properly serve to point to the moaning which is injurious, and therefore actionable, and which, if found by the jury, will sustain (he suit brought. Griffith v. Lewis, 8 Q. B. 841.

Iu this case the words are not susceptible of ao injurious meaning, according to any legitimate interpretation. In themselves they are harmless, and they must have been used in some peculiar and cant way to convey the imputation charged *276in the innuendo. Now if words have a mere local or cabalistical meaning, which is slanderous, or have been so used, being in their usual sense innocent, they must be made significant by a proper colloquium or inducement. There must be a previous averment of the sense in which they were used. Thus in Angle v. Alexander', 7 Bing. 119, it was decided as to the words “you arca prover under bankruptcies,” meaning that-the plaintiff was accustomed to prove fictitious debts under commissions, that a previous averment, that the defendant had been accustomed to employ the words in that sense, was requisite. So it has been said, that the words “ black sheep ” and “ black legs ” could not be explained by innuendo to mean persons of bad reputation, guilty of cheating or defrauding ; though, perhaps, the necessity of a prior averment of the sense in which these words were used may not be so clear as in the former instance. They are words which, perhaps, ha.ve acquired a fixed meaning, and when used in a certain connection, possibly the injurious meaning may be sufficiently obvious without the use of any prior explanatory averment. McGregor v. Gregory, 11 M. & W. 287. See O’Brien v. Clement, 16 M. & W. 159 (167); Carter v. Andrews, 16 Pick. 1; Gooke on Defamation 96, 100. Here the words do not, in their natural sense, impute any thing injurious, and upon this distinction, established by the well considered cases to which I have referred, they require the aid of an introductory statement of the peculiar sense in which it is asserted they were «sed to make them actionable. They require an inducement, and the innuendo will not suffice. The demurrer' has been well taken to these counts.

The twelfth to the fifteenth counts, inclusive, relate to words spoken of the plaintiff, in his capacity of a country shopkeeper or retailer. The pleader in these, as in the preceding counts, seems to have mistaken the office of the innuendo. Averments of extrinsic and additional facts are made in this part of each of these counts, which would have found an appropriate position in the previous colloquium, and would have removed all ambiguity or doubt as to construction of the words. But these counts are not without an introductory statement, and setting *277aside such averments as appear in the innuendo alone, we must look to the words charged, in connection with the prior averments, to ascertain if the action can be maintained. “If the words before the innuendo do not sound in slander, no words produced by the innuendo will make the action maintainable, for it is not in the nature of an innuendo to beget an action.” Bar-ham v. Nethersall, supr. Still if sufficient appears to support the action, an innuendo improperly enlarging the sense beyond the prior statement, or so much thereof as is faulty in that respect, may be rejected as surplusage. Roberts v. Camden, 9 East 93; Harvey v. French, 2 Tyrwh. 284, cit. 2 Harr. Dig. 2431.

But the words stated in these counts, which it appears were spoken of the plaintiff in respect of his trade and business, are in our judgment actionable. The declaration states that the plaintiff was a country storekeeper, and, as such, used divers weights and measures ; that he was the owner of a pair of gray horses and red nets, and that, in a conversation of and concerning the plaintiff and his said horses and nets, the defendant said : “Short (or” as in some counts “ false) weights and measures paid for them,” (meaning the said horses and nets) “ by cheating the public.” The innuendo, or so much as is necessary to refer to, in substance explains the charge to be, that the plaintiff paid for the said horses and nets by his gains, as such storekeeper, in the use of short or false weights and measures in the sale of his wares and merchandise. The explanation, to this extent, seems warranted by the words as spoken in connection with the business and occupation of the plaintiff. The words so used import a charge of fraud in his trade and business. Considered in their natural sense, as they must have been understood by the persons to whom they were addressed, they can mean nothing less, and are therefore plainly actionable. The demurrer to these counts must be overruled, and judgment for the plaintiff.