
    Jesse W. Goodrich vs. Hiram Davis.
    A. declaration alleged that the plaintiff was editor of a newspaper, called the Massachusetts Cataract, and that the defendant published a false and malicious libel of and concerning the plaintiff and his violations of the seventh commandment of scripture, as follows: “ To the editor of the Massachusetts Cataract. Can you” (meaning the plaintiff) “ break every commandment in the decalogue, and still go unwhipped of justice ? Can you ” (meaning the plaintiff) “be guilty of breaking the seventh commandment, and cover that noisy and licentious affair ? Can you” (meaning the plaintiff) “recollect the tenth commandment, which says, thou shalt not covet thy neighbor’s wife? If you” (meaning the plaintiff) “recollect this commandment, can you ” (meaning the plaintiff) “ put your hand upon your heart, and say yon” (meaning the plaintiff) “have a clear conscience on this subject ? Is not conscience a little unquiet ? Does it not say, hush, be still ? It won’t do to reveal the things of the prison house; those things said and done in secret places; ” meaning thereby, that the plaintiff had committed the crime of adultery, and that his conscience accused him of this crime. Held, after verdict for the plaintiff, that the declaration was sufficient, although it did not contain a direct averment that the defendant charged the plaintiff with the crime of adultery, nor any colloquium to explain the words.
    
      On. the trial of an action for a libel in a publication addressed “ to the editor of the Massachusetts Cataract,” witnesses were permitted to testify that they understood the publication to apply to the plaintiff. JECetd, that this testimony was competent, so far as it tended to prove that the plaintiff was such editor, and that, for any other purpose, it was immaterial; and therefore that its admission was not a cause for granting the defendant a new trial.
    When a declaration, in an action for a libel, sets forth only a part of the publication which is alleged to be libellous, and the whole publication is read to the jury, without objection from the defendant, the jury may consider the whole, for the purpose of forming an opinion as to the meaning of the part set forth in the declaration.
    The declaration, in this case, alleged that the plaintiff, “ before and at the time of the committing by the defendant of the grievances hereinafter mentioned, was the editor of a public newspaper, printed in Worcester, in the county ot Worcester, called ‘ The Massachusetts Cataract; ’ and whereas the commandment of scripture, ‘ thou shalt not commit adultery,’ is and is known as the seventh commandment, yet the defendant, wickedly intending to injure the plaintiff, and to bring him into public scandal and disgrace, heretofore, to wit, on the 27th of June 1845, at said Worcester, falsely and maliciously did compose and publish, and cause- to be composed and published, of and concerning the plaintiff and his violations of said commandment, a certain false, scandalous, malicious and defamatory libel, containing, amongst other things, the false, scandalous, malicious, defamatory and libellous matter following, of and concerning the plaintiff, and the violation of said commandment by the plaintiff, that is to say: 1 To the editor of the Massachusetts Cataract,’ (meaning the plaintiff, the editor of said paper:) ‘But, Sir,’ (meaning the plaintiff,) ‘how is the fact? Are there hut one class of sins that can rightfully be attacked and exposed ? Can you ‘ (meaning the plaintiff) ‘break every commandment in the decalogue, and still go unwhipped of justice, because there is no popular clamor raised to bring your vices before the public ? Can you ’ (meaning the plaintiff) ‘ be guilty of breaking the seventh commandment ’ (meaning the said seventh commandment of scripture) ‘and cover that noisy and licentious affair ? ’ (meaning thereby that the plaintiff had violated and broken the seventh commandment of the decalogue, which prohibits adultery, and had committed adultery with some person or persons.) ‘ Can you ’ (meaning the plaintiff) c recollect the tenth commandment, which says, thou shalt not covet thy neighbor’s wife, nor his ass, nor any thing that is thy neighbor’s ? If you ’ (meaning the plaintiff) recollect this command, can you ’ (again meaning and intending the plaintiff) ‘ put your hand upon your heart, and say you ’ (meaning the plaintiff) ‘ have a clear conscience on this subject ? Is not conscience a little unquiet ? Does it not say, hush ! be still! It won’t do to reveal the things of the prison house ; those things said and done in secret places ; ’ (meaning thereby that,the plaintiff had committed the crime of adultery, and that his conscience accused him of that crime.) By means of the committing of which said grievances by the defendant, the plaintiff hath been and is greatly injured,” &c.
    The defendant pleaded the general issue, and filed a specification of defence, as follows: “ If the plaintiff shall make out uiy case against the defendant, the defendant will give in evidence, as a justification, or in mitigation of damages, several libellous publications upon him, published by the plaintiff, in ‘ The Massachusetts Cataract,’ a short time prior to the publication of the alleged libel by the defendant.”
    Trial before Hubbard, J. whose report thereof was as follows : The plaintiff introduced evidence tending to prove the publication by the defendant of the piece alleged to be libellous. He also introduced evidence tending to prove that the witnesses, who were called by him, understood the publication to apply to him. This latter evidence was objected to by the defendant, but the objection was overruled. The plaintiff then offered the said publication of the 27th of June, and the whole publication Avas read to the jury. The defendant thereupon moved for a nonsuit, on the ground that the plaintiff’s declaration was fatally defective, as no cause of action was set forth therein, because it contained no colloquium or averment whatever that the defendant charged oi imputed, or intended to charge or impute, to the plaintiff any crime, or other libellous matter; that as the words, at best, were ambiguous and equivocal, as they stood in the publication, that if they conveyed or imputed any charge of libellous matter at all, it was not direct, but covert; and that, as there was no averment of the sense in which the words were used in the writ, it could not be supplied by intendment, or matter extrinsic or dehors the record. This motion for a nonsuit was overruled.
    The defendant then offered in evidence a publication by the plaintiff, in the Massachusetts Cataract, of an editorial article, on the 18th of June 1845, containing alleged libellous matter against the defendant. This was objected to by the plaintiff, but was admitted.
    
    The plaintiff then offered to prove that the said publication in the Cataract was true, and was made for good and justifiable motives; but the evidence was rejected.
    The defendant’s counsel, in the course of his argument, stated that there was no evidence that the libellous matter contained in the article published by the plaintiff on the 18th of June, was true ; but that it was false. The plaintiff’s counsel objected to this course of argument, and the defendant’s counsel was thereupon stopped by the court, on the ground that the truth or falsehood of that publication was not in issue between the parties.
    The plaintiff’s counsel, in the course of his argument, contended for the truth of the publication of the 18th of June, from the tenor of the defendant’s publication of the 27th of June; but on objection being made, by the defendant’s counsel, to this course of argument, the court stopped the plaintiff’s counsel, for the same reason as above stated.
    The plaintiff’s counsel was permitted to argue, from other parts of the publication of June 27th, though not set forth in the declaration, (the same having been read in full to the jury, without objection, on the opening of the case,) what the defendant meant to charge by the words set forth in the declaration.
    The defendant’s counsel requested the court to charge the jury that, in interpreting the words set forth in the declaration, they must be confined to the words themselves, and that they could not look into other parts of the publication, or to extrinsic facts, to aid them in determining' what the words charged. The jury were instructed, that it. was incumbent upon the plaintiff to prove a publication of the words alleged to be libellous; that merely proving that the defendant wrote them was not enough ; that the publication might be proved by the admissions or confessions of the defendant, or the jury might infer it from the facts and circumstances which were proved; and that, if they believed the defendant published the article, it was their province, as well to judge of the meaning of the words, and of their application to the plaintiff, as of the proof of publication : and they were instructed, that if the words set forth in the declaration, taken in their natural sense and meaning, charged the plaintiff with the commission of the crime of adultery, then neither a colloquium or introductory averment in the declaration was required, nor were innuendoes or explanatory words necessary; but if they considered that the words were ambiguous, and were used by way of allusion and reference, and were fairly susceptible of different meanings, then there was required a sufficient averment, in the declaration, of the fact that the defendant charged the plaintiff with the commission of the crime of adultery, to entitle the plaintiff to recover, and that such averment must be direct, and not by way of argument or inference; and that, in forming their opinion as to the meaning of the words in the declaration, they were at liberty to consider the whole article, as it was in evidence before them ; but that they were not to be guided by any extrinsic facts; and that if they found that the words set forth in the declaration did charge the crime of adultery, and that the defendant published them, then the defendant’s malice was implied, and the plaintiff was entitled to recover damages ; and that the plaintiff’s publication in ‘ The Massachusetts Cataract,’ of the 18th of June, would be no justification; that a justification could be made only by proving the truth of the charge alleged in the defendant’s publication of the 27th of June; but that they might take into consideration the plaintiff’s said publication, and judge whether it was or was not calculated to excite the anger and resentment of the defendant, and provoke him to retaliate, and whether it was or was not of such a nature as greatly to exasperate the defendant, and that they might take it into consideration, and decide what weight they would give to it in mitigation of damages.
    The jury returned a verdict for the plaintiff for $618-80, which is to be set aside, and a new trial granted, if any of the foregoing rulings and decisions were erroneous.
    The defendant filed a motion in arrest of judgment, " because there is not in the declaration of the plaintiff any sufficient colloquium, or averment that the defendant charged or imputed any crime or other libellous matter to the plaintiff ”
    
      Bridges, for the defendant.
    1. Judgment should be arrested, because the words set forth in the declaration do not necessarily import a charge of adultery against the plaintiff, and there is no averment that the defendant charged him with that crime. Nor does the declaration directly aver that the defendant meant the plaintiff. If this is not averred, it is not proveable; nor will it be presumed after verdict. See Carter v. Andrews, 16 Pick. 1. Bloss v. Tobey, 2 Pick. 320. Kennedy v. Gifford, 19 Wend. 296. 1 Stark. on Slander (Wendell’s ed.) 350, note.
    
    2. The witnesses should not have been allowed to testify that they understood that the plaintiff was meant in the defendant’s publication. Van Vechten v. Hopkins, 5 Johns. 211. Gibson v. Williams, 4 Wend. 320.
    3. The plaintiff’s counsel should not have been permitted to argue, from parts of the publication that were not set forth in the declaration, what was the meaning of the parts that were set forth. Carter v. Andrews, 16 Pick. 4, 5.
    
      Bacon, for the plaintiff.
    1. The libel, as set forth in the declaration, sufficiently charges the plaintiff with the crime of adultery. It is not required that words should “ necessarily” import the charge complained of. Words are to be understood in their common, usual and obvious meaning. Woolnoth v. Meadows, 5 East, 463. Roberts v. Camden, 9 East, 93. Gay v. Homer, 13 Pick. 535. Rex v. Horne, Cowp. 684. The cases cited for the defendant show only that when words do not of themselves import the charge of an offence, it must be averred that the defendant intended to make such a charge. See The Queen v. Brown, 11 Mod. 86. 1 Stark. on Slander, (Wendell’s ed.) 351.
    2. The witnesses were rightly allowed to testify to the application of the words to the plaintiff. 2 Greenl. on Ev. § 417. 2 Stark. on Slander, (Wendell’s ed.) 45, 46. Commonwealth v. Buckingham, Thacher’s Crim. Cas. 29.
    3. As the whole publication was read to the jury, without objection from the defendant, the plaintiff’s counsel were properly admitted to argue from those parts thereof which were not set out in the declaration. The whole instructions to the jury are to be taken together; and if so taken, it will appear that the jury were instructed that the words set forth must contain the charge of adultery.
    
      
       This publication was as follows: 61 Let the vendors of intoxicating DRINKS PAUSE AND PONDER.
      “ The absolute impotency of exclusive moral suasion, when applied to the modern rumseller, has been, and is now daily, most strikingly shown in this town, saying nothing of a multitude of other places. One Hiram Davis, about two years ago, was the rumselling occupant of that old notorious haunt of alcohol, commonly called the 6 Green Store,’ on Main Street. The Washingtonians were for a longtime unceasing in their efforts to persuade him to abandon such a woful and illegal business, but all to no effect. They then prepared to have him brought before the grand jury. The fear of the indictment brought him to his humanity, and the prosecution was suspended upon his promise to quit, and his actual abandonment of the premises and the rum traffic, soon after. Some six or eight months ago, taking courage at the cry of exclusive moral suasion for the rumseller, which has been hqre, and in other places, sounded abroad, and emboldened*by the apathy and the inconsistency of some professing friends of temperance, he again plunged into the illegal traffic, and that, too, far more deeply than before. He has since been twice indicted; but the sus* pension of the case of 'Thurlow, Rum & Co.’ at Washington, has thus far prevented his cases from maturing into fine or imprisonment. But if his purse and his person have not yet been touched by the violated laws of the land, he has by no means escaped untouched by the fearful penalties of the violated laws of his nature. Often, during the past week, in all the agony of the delirium tremens, has he broken the midnight slumbers of his neighborhood, with some of the most startling, unearthly, and frightful screams that were ever uttered by a human being. Some who were thus aroused from their beds have represented the scene to us as indescribable, and truly appalling!
      "Delirium trernens! the most awful of maladies, and to alcohol alone indebted for its paternity and being ! What a fearful warning to those who drink ! And how admonishing should such a retribution be to those who sell! Can you handle pitch without contamination, or take coals of fire in your hand without being burned? Is it not the nature of the viper to bite¡ and is it not the tendency of intoxicating drinks to prostrate and ruin even those who sell¡ as well as those who use them? We allude to this case with pain, and solely as a warning to the vendors of such dangerous, disease-engendering, and mind-destroying fluids.”
    
   Dewey, J.

The general rules applicable to the pleadings in the action of slander are well settled. When the words used by the defendant do not of themselves convey the meaning which the plaintiff would attribute to them, and such meaning results only from some extrinsic matter, such extrinsic matter must be alleged in the declaration, and proved at the trial. Whenever there is any uncertainty as to the person or the crime imputed, arising upon the bare statement of the language used by the defendant, that uncertainty must be removed by a distinct averment, making the proper allegations as to the person or crime.

A written or oral statement may be expressed in such clear and unambiguous language as, upon its face and the obvious meaning of the words, to permit no other possible inference than that of an imputation of a charge actionable in its character. Iii such case, no averment of extrinsic facts is necessary, and it would be quite competent and proper for the court to instruct the jury that the words were in law to be deemed libellous Other cases may exist of language of such uncertain, indefinite and general import, either as to the person alluded to, or the charges imputed, that the court may at once perceive that they cannot be held actionable as regards the plaintiff, and may be well authorized so U instruct the jury,

Again; other cases may exist, where an ambiguity arises either as to the person or the crime charged; and whether the words are applicable to the plaintiff or not, and whether they are libellous or not, may depend upon inferences to be drawn by the jury from all the evidence in the case, giving proper effect to any extrinsic facts that are admissible under the pleadings.

In this connexion, it may be remarked that it is not enough to allege, by way of an inuendo, distinct and independent averments, in aid of the charge, and to rely upon such inuendo to authorize the jury to determine the general character of the charge. An inuendo does not enlarge the matter set forth in the other portions of the declaration. It is only explanatory of the matter already charged, and does not extend the sense of the words beyond their natural import, unless accompanied by a distinct averment, or colloquium, or other introductory allegation, to which it may properly have reference. 1 Saund. 243, note (4.)

A difficulty has sometimes arisen, in actions of slander, as to the rule by which words are to be construed. And at times, apparently from motives of public policy, courts have lent too willing an ear to suggestions as to the meaning of words, and, with a view to diminish this species of actions, have required greater certainty and directness in the charges, than comported with good sense or sound principle. The more sensible rule, and that well sanctioned in this Commonwealth, is, that courts and juries are to understand the language used in a publication alleged to be libellous, as mankind in general would understand it. The injury alleged is that of calumniating the character of the plaintiff. If the natural meaning of the words, as understood by the reader, would convey the idea that the publisher intended to impute to the plaintiff such crimes or misconduct as would make the publication libellous, the jury may well find the charge to ho libellous.

With these rules as our guide, we have examined tha declaration in the present case. We perceive no objection upon the face of the declaration, arising from any uncertainty as to the person alleged to be the subject of the libel. It is true that the article published by the defendant did not describe the plaintiff by his Christian and surname. The article is addressed to the editor of the Massachusetts Cataract. It purports to speak of such editor. But here the declaration comes in aid, and by a direct averment alleges that the plaintiff was the editor of the Massachusetts Cataract; and the alleged libellous words are introduced into the declaration, with the direct averment that the defendant published the same “of and concerning the plaintiff.” The declaration has other material averments. It alleges that the seventh commandment is, “ thou, shalt not commit adultery.” It then proceeds to allege that the defendant did compose and publish, of and concerning the plaintiff and his violations of said commandment, a certain false, scandalous and malicious libel, containing the. false, scandalous, malicious, defamatory and libellous matter following,” &c. Taking these averments, as found in the declaration, and reading in connexion with them the words of the libel set out in the other parts of the declaration, it seems to us that the declaration is sufficient in form, and that the jury would, if the averment were established by proof, be well authorized to find the article libellous. The form is interrogative; but that renders it none the less libellous, if the meaning and purpose of the author be to convey the same idea that would have been communicated by a uirect imputation. The language used is, “ can you be guilty of breaking the seventh commandment, and cover that noisy and licentious affair ?” It is true, there is no averment, nor any colloquium, to explain, or give force .and effect to the words, “ that noisy and licentious affair.” But when the slander can be collected from the words themselves, it is not necessary to refer to any fictitious affair. 1 Stark. on Slander, (Wendell’s ed.) 351. Nor could any such averment or colloquium be introduced in aid or illustration of the meaning of those words, if in fact there were no such previous reports or conversation about the plaintiff, and no reputed licentious affair, in which the plaintiff was implicated. But such words may have their proper effect in giving character to the publication, in making more plain and effective the charge of adultery upon the plaintiff. The plaintiff is described in the article; he is alluded to as connected with “ a licentious affair; ” and the allegation is to be taken in connexion with the other parts of the libel, in deciding upon the proper meaning to be given to the whole article. The allusions to the plaintiff’s conscience, which are made in the article, are proper to be considered, in deciding upon the meaning of the whole article. After a recital of a portion of the tenth commandment, “ thou shalt not covet thy neighbor’s wife,” &c., the question is asked, have you a clear conscience on this subject ? Is not conscience a little unquiet ? Does it not say, hush, be still,” &c.

The court are clearly of opinion that the declaration, in the present case, is good and sufficient, and that with such averments as are introduced, it does charge the defendant with the publication of libellous matter affecting the plaintiff’s character : and that upon such evidence as would be admissible for the plaintiff, under this declaration, it would be competent for the jury to find that the defendant charged the plaintiff with the crime of adultery. The result would be, therefore, that the article has been properly found to be libellous and actionable, whether that be a question for the court exclusively, or for the jury.

In the view we have taken of the case, it does not become necessary to decide particularly as to the duty of the court, and how far it is called upon to decide, as matter of law, on a motion by the defendant for a nonsuit, or for instructions to the jury that the action cannot be maintained, by reason that the matter set forth in the declaration is not libellous; or how far it is competent to submit the question of libel or no libel to the jury, upon proper instructions as to the nature of a libel, and leaving the jury to settle the question as to the meaning and application of the words used, as a matter of fact, subject only to the general rule, that if there was no sufficient evidence to warrant the jury to find that the publication was a libel upon the plaintiff, it would be the duty of the court to set aside the verdict, as a verdict against the evidence. Mr. Greenleaf, in his Treatise upon Evidence, vol. 2, § 411, says, “ it is now held that the judge is not bound to state to the jury, as a matter of law, whether the publication is a libel or not; but that the proper course is for him to define what is a libel in point of law, and to leave it to the jury to say whether the publication falls within that definition.” Certain it is, that the extent to which the question of libel or no libel was formerly referred to the court exclusively, as a matter of law, has latterly been much qualified, and the jury are often called upon to decide as to the meaning of the publication and the effect to be given to the words, and whether the publication be libellous as respects the plaintiff, within the definitions and under the principles of the law of libel given by the court. Parmiter v. Coupland, 6 Mees. & Welsb. 105. Baylis v. Lawrence, 11 Adolph. & Ellis, 920, and 3 P. & Dav. 526.

The views we have already expressed upon this case dis pose of the motion in arrest of judgment, and of that portion of the exceptions as to the ruling of the judge at the trial, refusing to direct a nonsuit, as prayed for by the defendant.

Other questions arose during the progress of the trial, which remain to be considered. 1st. The plaintiff was allowed to prove by sundry witnesses, thát they understood the publication to apply to him. Evidence of this character has been often received. Indeed, in some cases, as those of libels by signs or pictures, it would seem to be absolutely necessary to resort to this species of evidence, to show to the jury the application of the libel to the plaintiff. It has often been permitted in other cases also, where the fact of the application of the libel to the plaintiff was only to be established by connecting a-usions, in the article alleged to be libellous, to reports in circulation, or certain local epithets applied to him, which were well known to the witnesses as descriptive of the plaintiff, and used in reference to him particularly. In all such cases, resort must ordinarily be had to evidence dehors the libel, to establish the fact of its application to the plaintiff.

The competency of evidence resulting from calling witnesses merely to prove, that from reading the libel they believe the person intended by the libel was the plaintiff, was questioned, and such evidence excluded, in the cases of Van Vechten v. Hopkins, 5 Johns. 211, and Gibson v. Williams, 4 Wend. 320. On the other hand, Mr. Greenleaf, in his Treatise on Evidence, vol. 2, § 417, seems to sanction its admission. Treating of the proof of the application of the words to the plaintiff, he says, “ it may be proved by the testimony of any persons conversant with the parties and circumstances; and from the nature of the case, they must be permitted, to some extent, to state their opinion, conclusion and belief, leaving the grounds of it to be inquired into upon a cross-examination.” In the present case, we can perceive no ground for sustaining the motion for a new trial on account of tihe admission of this testimony. So far as it was evidence tending to show that the plaintiff was the editor o°f the Massachusetts Cataract, and thus establishing the application of the libel to the plaintiff, it was clearly competent; beyond that, the evidence upon this point was entirely immaterial It added nothing to the strength of the plaintiff’s case. If the plaintiff was the editor of the Cataract, the application of the libel to him was fully shown on the face of the libel; it being, in direct terms, an article applicable to the editor of the Cataract.” Whatever was asserted in the article, whether libellous or not, the person who was the subject of comment is made certain. It was at most, therefore, the admission of immaterial evidence, and could not prejudice the defendant.

2d. The only remaining objection is that which was taken to the ruling of the presiding judge, permitting the jury to consider the whole article published, embracing both those parts set out in the declaration and those not recited therein, for the purpose of forming their opinion as to the meaning of the words set out in the declaration. The court are of opinion that this ruling was proper, and especially so, as the whole article had been read as evidence to the jury, Avithout any objection. Judgment on the verdict.  