
    
      Samuel Gale v. James R. Hays.
    
    In slander the words spoken were "he swore to a lie” — the declaration, under-talcing to show that they conveyed an imputation of perjury, contained a prefatory averment of trial, &c., an innuendo, and between the words and the innuendo an unskilful averment of the colloquium or connection between the words and the trial: On the Circuit, testimony to show this connection was excluded and a nonsuit ordered: — the nonsuit was set aside, the connecting averment being held free from all objection, except one that might have been taken on special demurrer.
    Where it is clear that the action will not lie for an objection appearing on the record that would be fatal on motion in arrest of judgment, proceedings that must be futile may be stopped by nonsuit. But it is not to be encouraged that a plaintiff should, on motion for nonsuit, take advantage of matter that ought to have been set forth by special demurrer, or that might have defeated the action on general demurrer.
    Whatever may be presumed after verdict, a party may be allowed to prove to obtain the verdict.
    
      Before Withers, J. at Marion, Fall Term, 1848.
    The action was for slander, and the following is a copy of the plaintiff’s declaration.
    “ James R. Hays, the defendant, was attached to answer to Samuel Gale, the plaintiff, in a plea of trespass on the case, and so forth. And whereupon the said Samuel Gale, the plaintiff, by N. Phillips his attorney, complains, for that whereas the said plaintiff now is a good, true, honest, just and faithful citizen of this State, and as such has always behaved and conducted himself, and until the committing of the several grievances by the said defendant, as hereinafter mentioned, was always reputed, esteemed and accepted, by and amongst all his neighbours, and other good and worthy citizens of the State aforesaid, to whom he was in any wise known, to be a person of good name, fame and credit, to wit: at Marión court house, district and State aforesaid. And whereas also the t said plaintiff hath not ever been guilty, or until the time of .the speaking and publishing of the several false, scandalous, malicious and defamatory words by the said defendant, as hereinafter mentioned, been suspected to have been guilty, of perjury or of any other crime, as hereafter stated to have been charged upon and imputed to him, by the said defendant. By means whereof, the said plaintiff, before the committing of the said several grievances by the said defendant, as hereinafter •mentioned, had deservedly obtained the good opinion and credit of all his neighbours and other good and worthy citizens of the State aforesaid, to whom he was in any wise known, to wit: at Marion court house, district and State aforesaid. And whereas, also, a certain trial had taken place at Esquire Miller’s, one of the magistrates for the district and State aforesaid, in which trial the said plaintiff and defendant were parties, and on the hearing of which trial, the said plaintiff ivas called upon to testify, and did testify upon oath, which trial took place on or about the-day of-before the publishing of the words hereafter averred to have been uttered and published. Yet the said defendant, well knowing the premises, but greatly envying the happy state and condition of the said plaintiff, and contriving and wickedly and maliciously intending to injure the said plaintiff in his said good name, fame, and credit, and to bring him into public scandal, infamy and disgrace, with and amongst all his neighbours and other good and worthy citizens of this State, and to cause it to be suspected and believed by those neighbours and citizens, that the said plaintiff had been and was guilty of perjury, as hereafter stated to have been charged upon and imputed to him, and to subject him to the pains and penalties by the laws of this State made and provided against and inflicted upon persons guilty thereof, and to vex, harass, oppress, impoverish and wholly ruin him, heretofore, to wit: on or about the-day of July, A. D. one thousand eight hundred and forty-seven, at Marion court house, district and State aforesaid, in a certain discourse which the said defendant then and there had, of and concerning the said plaintiff, in the presence and hearing of divers good and worthy citizens of the State aforesaid, and then and there in the presence and hearing of the said last mentioned persons, falsely and maliciously spoke and published of and concerning the said plaintiff, the false, scandalous, malicious and defamatory words following, that is to say: — “ That he, (meaning said defendant,) would not have sworn to what Sam Gale (meaning the said plaintiff,) swore to, no, not for a housefull of dollars, no, not for every thing in the world, because he (meaning the said plaintiff,) swore to alie(meaning that the said plaintiff had committed perjury by swearing to a lie, and that he, defendant, would not have done so for a housefull of dollars, or for every thing in the world;) in which discourse and slander the defendant alluded to a trial which had taken place before Esquire Miller, one of the magistrates of the district and State aforesaid, and a person competent to administer an oath, between himself and said plaintiff, in which said plaintiff was called upon to testify, and did testify upon oath, intending to convey the imputation that said plaintiff had at such trial swore falsely and committed perjury in so doing.”
    The plea was the general issue.
    When the plaintiff proposed to offer evidence that there had been such a trial before a magistrate, and that the plaintiff was sworn therein, as set forth in the introductory matter of the declaration, the defendant objected, upon the ground that in the averment of the words charged to have been uttered, it was not stated that they were uttered of and concerning the said trial before the magistrate, and the evidence given by the plaintiff on that occasion: that this averment, however, was indispensable, if the plaintiff would avail himself of the right to prove that the words were connected with the trial, and thus imputed perjury, as was also stated in the introductory matter, and under a videlicit. The Court held the objection of the defendant well taken, and excluded the evidence. The plaintiff’s attorney desired leave to amend, and the Court offered to grant such leave upon the plaintiff’s paying costs up to that time, which was finally declined. The plaintiff thereupon proceeded with his testimony: and by one witness he did prove the substance of the words as averred in his declaration, but this did not import perjury, and of course the plaintiff was nonsuited.
    The plaintiff moved to set aside the nonsuit, on the grounds':
    1st. That having in the inducement averred the fact of a trial before “Esquire Miller, in which plaintiff was called upon to testify, and did testify upon oath,” the plaintiff was entitled to introduce testimony to support that averment, and such testimony was excluded by his Honor.
    2d. That the colloquium having sufficiently connected the alleged slander with the trial averred in the inducement, the plaintiff was entitled to introduce testimony to show that the slander proved was spoken in reference to the trial, and such testimony his Honor excluded.
    
      N Phillips, for the motion.
    
      Boylston, contra.
   Wardlaw, J.

delivered the opinion of the Court,

In actions of slander, great strictness was formerly required of the plaintiff, both in pleading and proof. This has been in modern times much relaxed as to the latter, somewhat as to the former.

Even in cases where the words laid were actionable per se it was formerly the practice in declaring, to allege a colloquium, as well as to connect the words with the plaintiff, by express averment that they were spoken of him, and by innuendoes to explain all doubtful words, so as clearly to point out the meaning which the plaintiff imputed to them. Thus, — “ [in a discourse had, &c. of and concerning the plaintiff] spoke [of and concerning the plaintiff ] these words, &c. He (meaning the plaintiff,) Spc. — Meaning that the plaintiff had, &e.” Here the words within the first brackets constitute what is properly called a colloquium — that is, a conversation on a certain subject; the words within the second brackets constitute the connecting averment, and the words meaning, &c.” constitute the innuendoes. I am thus minute m defining, because much confusion has arisen at the bar and in some of our cases, from using the term colloquium to signify the prefatory averment of extrinsic facts, which is necessary m cases of words not actionable per se.

3 Salk. 328.

i Saund. 242.

5 Starfde on Slan<iei'>391-2"

Ha/mlcesv. Htmkeii, 8 East, 427.

1 CamP-256-

It is now held that in cases of words actionable per se a colloquium is unnecessary, if there be a connecting averment; and if there be a good colloquium and innuendo, the want of a connecting averment must be pointed out by special demurrer, so that after verdict, or even upon general demurrer, it will be intended that the words were spoken of the plaintiff.

Where the objectionable quality of the publication arises from circumstances extrinsic of the words themselves, aver-ments are necessary to shew that such circumstances exist, and to connect - the words with those, circumstances. The technical mode of doing this is, first to state the circumstances by prefatory averment: second, to shew, by colloquium or connecting averment, that the words were published of and concerning those circumstances, and of and concerning the plaintiff as connected therewith : and third, to point the words, by proper innuendoes to the circumstances averred, to the plaintiff

An innuendo is wholly explanatory — it cannot enlarge the meaning oí words or supply the place of an averment. A good prefatory averment and proper innuendoes will not, even after verdict, sustain an action for the words “ he has forsworn himself.,” if there be no colloquium or averment connecting the words with the prefatory averment.

In the case before us, if it was clear that there was no connecting averment we would then sustain the nonsuit: for as was said by lord Ellenborough at Nisi Prius: “when it is clear that the action will not lie, although the objection appears on the record and might be taken advantage of by motion in arrest of judgment, or by writ of error, Judges are in the habit of directing a nonsuit.” But it is not clear here that the plaintiff has not made a sufficient connecting averment; on the contrary we think he has made one which is free from objection, except upon special demurrer.

The declaration is certainly not well drawn — but there is a sufficient prefatory averment of circumstances; there is a t colloquium “ of and concerning the plaintiff,” and the words— “ in which discourse and slander the defendant alluded to a trial which had taken place before Esquire Miller, one of the magistrates of the district and State aforesaid, and a person competent to administer an oath, between himself and said plaintiff, in which said plaintiff was called upon to testify and did testify upon oath” — constitute an averment distinct from the innuendo which immediately follows, — “intending to convey the imputation that said plaintiff had at such trial swore falsely, and committed perjury in so doing.” The first recited words are not the most apt that might have been employed, and are introduced at an unusual place, but they sufficiently serve to connect the words which were spoken with the trial and' testimony mentioned in the prefatory averment. If they had been introduced by way of parenthesis immediately after the words in a previous part of the count — “in a certain discourse which the said defendant then and there had, of and concerning the said plaintiff, in the presence and hearing of divers good and worthy citizens of the State aforesaid,” they could not have been confounded with the innuendo, and there could have been hardly any objection to them, besides the nice objection that instead of “a trial,” should have been inserted “the trial aforesaid.” Standing where they do, they are free from all other objection, and this nice one should have been presented by special demurrer.

A nonsuit in invitum usually follows a deficiency of the evidence, or a variance between the proof and the allegation,— that is, a failure of the plaintiff to sustain a cause of action which is well laid. By pleading in bar, the defendant waives defects of form, and in effect admits that the case alleged is sufficient in law to require a defence. Where, however, even after verdict, the record, with all the intendments which should be made its favor, does not shew enough to authorize the judgment of the Court, judgment will be arrested: and it may be in a clear case wise to stop proceedings, which must be futile, by granting a nonsuit, without putting parties to trial and driving the defendant to a motion in arrest of judgment. But it is nottobe encouraged that the defendant should put the plaintiff to the trouble and expense of proof, and then upon motion for nonsuit take advantage either of what ought to have been set forth by special demurrer, or of what would upon general demurrer have defeated the action without witnesses.

The Circuit Judge refused to hear evidence of the connection between the words spoken and the circumstances mentioned in the prefatory averment, upon the ground that there was no connecting averment. This is just the same as if, having heard sufficient evidence of the connection, he had ordered the nonsuit for want of the connecting averment. In either view the objection is to the sufficiency of the count: the insufficiency should have been more clear than it is, be-, fore it should have been permitted to defeat the action either by excluding testimony or by effecting a nonsuit in anticipation of a motion in arrest of 'judgment. After verdict every thing is to be presumed which is expressly stated in the pleadings, or necessarily implied from' the facts which are stated. Whatever may be presumed after verdict, a party should be allowed to prove to obtain the verdict. Is it not necessarily implied from what is stated in the count here, that the words were spoken of and concerning the said trial and the testimony there given by the plaintiff? We think it is.

1 Term Kep, 145.

The motion is therefore granted.

HighARdson, J. — Evans, J. — and Feost, J. — concurred.

Motion granted.  