
    *Adams v. Lawson.
    January Term, 1867,
    Richmond.
    [94 Am. Dec. 455.]
    1. Libel — When Innuendo Unnecessary. — In an action of libel, when the writing- on its face relates to the plaintiff and the words are libellous in themselves, the innuendo is unnecessary, and may be rejected as surplusage.
    2. Same — No Crime Imputed — Language Tending to Injure Reputation, etc. — To constitute a libel it is not necessary that the writing should impute an offence which may be indicted and punished. It is sufficient if the language tends to injure the reputation of the party, to throw contumely, or to reflect shame and disgrace upon him, or to hold him up as an object of scorn, ridicule or contempt. And the words will be understood in their plain and ordinary import.
    3. Same — In Form of Insinuation, — A libel may be in the form of insinuation as well as of positive assertion.
    
      4. Same — Case at Bar. — To write to the plaintiff — “As yon will make considerable by being summoned to court, I wonld advise you to go and pay George Bowman the balance you. owe him for bis wild bogs you killed,’’ is libellous. “I bope you will stop swearing lies about the trees,” and “I will close this letter by advising you either to auit lying or preaching, one,” are libellous.
    5. Same — Publication of — Case at Bar. — The letter containing the libel is sent sealed. The writer after-wards states in the presence of several persons, that he had got W. to write the letter for him and he had signed his own name to it, and kept a copy; and states the contents of the letter; but without producing it or a copy of it. This was a publication of the libel.
    6. Same — Evidence — Plaintiff’s Good Character. — In an action for libel, the plaintiff may introduce evidence in chief on his general good character, before the defendant has introduced any evidence.
    *This was an action on the case for a libel in the Circuit court of Patrick county brought in Hovember, 1857, by William Lawson against Notley P. Adams. The’ declaration after the usual colloquium set out the latter (omitting the references to the defendant and plaintiff), as follow:
    “Mr. William Lawson, I understand by one of the grand jury (meaning the grand jury that presented the defendant for perjury) that you appeared before the jury (meaning the said grand jury) and made oath, that at the farthest there was not more than eight trees cut in the two fields (meaning thereby the two fields upon the fences around which the plaintiff swore that not more than eight trees had been cut, whereas the defendant had sworn in a former prosecution that more than eight trees were cut down upon said fence), and if you did, you swore — a lie, knowingly and willfully; for I can prove that there was nine on one field and seven on the Underwood field; though I was not surprised’ at your swearing that, after your swearing as you did about the presentment between Jerman Lee and myself while I was absent from home. I understand that the voice of the church was, that they (meaning the Baptist church of which the plaintiff was a member) would as leave fellowship stealing as to fellowship old Cox — (meaning thereby an old Baptist preacher in Carroll county, Virginia) — the way he acted about the land, offering to sell under the power of attorney in the name of James Powell, and then bringing suit in the name of others, making out Powell’s claim not good to the land ; and William Conner says he blames you more than he (meaning said Conner) does Cox. As you will make considerable by being summoned to court, I would advise you to go and pay George Bowman the balance you owe-him (meaning George Bowman) for his (meaning said Bowman) wild hogs you killed (meaning thereby that the *plaintiff had killed and stolen said George Bowman’s wild hogs) ; and the four you killed last fall I believe to belong to Abram Adams (meaning thereby that the plaintiff had feloniously stolen Abram Adams’ hogs). I suppose Abram (meaning said Abram Adams) is able to lose his (meaning said Adams’_hogs), but I, would advise you to go and pay Bowman meaning said George Bowman), as he meaning said Bowman) is a poor man. I want you to call at William Bryant’s as you go home, and ask him (said Bryant) to go and show you the number of trees that was on the Nauman field, as Bryant helped to cut them (meaning said trees) up, and David Lewis helped to cut them down; and then I hope you will stop swearing lies about the number of trees. I say now, as I said in the commencement of this letter, that if you swore that there was not more than eight trees, you or any one else swore a lie.
    ‘‘‘I will close this letter by advising you either to quit lying or preaching, one (meaning thereby that the plaintiff, although a preacher of the gospel, had been guilty of swearing lies), and if you want to know how you stand in this community, I would just refer you to Green Conner, as he tore down an advertisement about you, so he (meaning said Green Conner) told me, as I suppose, as Green (meaning said Green Conner)told me that they (meaning authors of the said advertisement) charged you in that (meaning said advertisement) of being a hog thief. All your object in acting as you do towards me is just to run me to costs, and I disregard it, as I am able to bear it.
    Yours, &c.,
    Notley P. Adams. ”
    . The defendantdemurred to the declaration on the ground, that the innuendoes, and averments of facts by *way of innuendoes, were not sanctioned by the words of the letter itself, or any facts and circumstances averred by -way of colloquium or inducement. He also pleaded “not guilty.”
    Upon the hearing, the court overruled the demurrer; and on the trial the jury found for the plaintiff eight hundred and ninety-one dollars damages; ■ for which the court rendered a judgment. To this judgment Adams obtained • a writ' of error fr'om a judge of this court. .
    On the trial the defendant filed two bills, of exception to opinions of the court overruling his motions, to exclude evidence offered by the plaintiff.
    1st. The plaintiff offered -in evidence to the jury as the libel for the publication of which this action was brought, the letter which is set out in the declaratioh.
    He proved by a witness that previous to the institution of this suit the said letter was delivered to him by the defendant, folded up and sealed, so''as to conceal the' contents from, observation, and-requested the deponent to deliver said letter to the plaintiff, but that the défendant did not inform the witness of the nature of the contents of, said letter; and that in compliance with said request of the defendant the witness' did deliver the said letter, so sealed and folded, into the hands of the plaintiff. It was also proved by another' witness, that the signature -to the letter was in the handwriting of the defendant." And thereupon the letter was permitted to be read to the jury without objection.
    The plaintiff then introduced another witness,, William Conner, who testified that some time in the summer of 1857 the de-' fendant told the witness, in the presence of other persons, that he had sent a letter to the plaintiff; 'that he 'had got a certain Thomas B. Woólwine to write the said letter fór him, and that he, the defendant, had signed his own name to it, and that he had kept a copy *of the letter;' that at the same time defendant stated to witness the contents of the letter, without however producing or exhibiting the letter, or the copy of it. The witness was then asked by the plaintiff’s counsel to state to the jury what the defendant had so informed him were the contents of the letter, but the defendant by counsel objected to the witness being allowed to make said 'statement to the jury; which objection was overruled by the court, and the witness was allowed to proceed with the statement thus called for from him; when the witness stated that he did not recollect sufficiently what the defendant said were the contents of,the letter to state them to the jury, but' that at a former .term of this court he was a member of the grand jury, and the grand | jury were engaged during its session in inquiring into the facts connected with the delivery of a letter to the plaintiff by the defendant, with a view to the finding of an indictment against the defendant for libel, and that on that occasion a letter from the defendant 'to the plaintiff was proved and read, and that the contents of that letter were in substance- the same with - the statement made by the defendant of the contents of the letter, which he said he had caused' to be written to the plaintiff by Woolwine as above stated. The witness was then shown by the plaintiff’s counsel the letter above set forth, which was read in evidence to the jury in this suit, and asked to inspect , it, and say whether it was the. same letter he had heard read before the grand jury; and . after inspecting it, the witness stated that it was the same letter. To the admission of all which statements of the said witness in regard to the contents of said ' letter and the correspondence in substance with the ' witness’ recollection of the statements made by the defendants to him of the contents of the letter he had caused to be written by Wool-wine, the' defendant by counsel objected, but his objections *were overruled by the court, and the testimony was permitted to be given to the jury.
    2d. After the plaintiff had introduced the evidence referred to in the first bill of exceptions, and before the defendant had introduced any testimony, the plaintiff offered evidence to prove his general good character, which was objected toby the defendant as not competent; but the court overruled the objection, and admitted the testimony; and the plaintiff was allowed, before the introduction of any testimony by the defendant, to introduce a number of witnesses, by whom it was proved, that previous to the publication of the libel aforesaid, the plaintiff’s general character for truth and honesty was good.
    Early, for the appellant.
    ■ Tucker, for the appellee. ■
    
      
      Libel — When Innuendo Unnecessary. — See the principal case distinguished in Johnson v. Brown, 13 W. Va. Ill, 112.
      If plaintiff does not declare under the statute, his declaration must set out a common-law slander, and if the words charged do not amount to slander they cannot be helped by the innuendo. Moseley v. Moss, 6 Gratt. 534.
    
    
      
      Same — Language Tending to Injure Reputation. — In Chaffin v. Lynch, 83 Va. 113,1 S. E. Rep. 803, the court said: “It is true that written defamation is actionable at common lhw, and that any writing is libelous which tends to injure the reputation of a person, or to render him odious or ridiculous. Villers v. Monsley, 2 Wils. 403; Adams v. Lawson, 17 Gratt. 250; 4 Min. Inst. (1st Ed.) 382.”
    
    
      
      Same-Publication of. — See the principal case cited in Granger v. Commonwealth, 78 Va. 314.
    
    
      
      Same — Evidence—Plaintiff’s Good Character. — In Shroyer v. Miller, 3 W. Va. 161, the court said: “On this question (right of plaintiff to give evidence in chief of his general good character) very much con-flictof decision and authority is found in-the earlier cases, both in this country and England. It is evident, I think, however, that the tendency of the judicial mind of this country, at the present day, is toward the admission of such testimony; and in the very recent case of Adams v. Lawson, a Gratt. 2SO, it was expressly held that such evidence was proper and admissible. As a question of practice I perceive no objection to the doctrine.”
      In this case the court held that it was not error to permit the plaintiff to introduce evidence to prove his good character even though it had not been assailed by the defendant nor had evidence been introduced by him to impeach it. But in 18 Am. & Eng. Enc. Law 1102, it is said that, though some cases have held the character of the plaintiif is always in issne in such an action (i. e. libel or slander) and therefore he may, in the first instance, introduce evidence to show it to be good (citing the principal case as authority), yet the preponderance of authority supports the view that in such an action, as in other civil actions, the good character of the plaintiff Is presumed (citing Shroyer v. Miller, 3 W. Va. 158, as authority), and until It is attacked by the defendant, no evidence should be introduced on behalf of the plaintiff to show that his character or reputation is good; but that such evidence is admissible when the good character of the plaintiff is put in issue by the pleadings or attacked hy evidence or otherwise during the course of the trial.
    
   JOYJSTES, J.

The first question- to be decided in this case is that which arises upon the demurrer to the declaration. The ground of demurrer assigned in the petition is, that the innuendoes give a meaning to the letter upon which the action is founded which its language does not authorize. But we need not trouble ourselves with this question. Where the writing on its face relates to the plaintiff, and the words are libellous in themselves, the innuendo is unnecessary and may be rejected as surplusage. 4 Rob. Prac. 733, -and cases cited. T think this is a case of that sort.

It is not necessary to constitute a libel that the writing should contain the imputation of an offence which may be indicted and punished. It is sufficient if the language tends to injure the reputation of the party, to throw contumely, or to reflect shame and disgrace upon him, or to hold him up as an object of scorn, ridicule or ^contempt. And the court will understand the words of the writing- as they would generally he understood by the rest of mankind, or as we ourselves would understand them out of court: that is to say, according to their plain and ordinary import. These are familiar and well settled principles. Vide 1 Am. Dead. Cases 132 136; Ibid 152-161.

Thus construed, the letter contains at least two express charges against the plaintiff of a libellous character. He is charged with killing wild hogs belonging to two other persons, which he is advised to pay for. We cannot fail to understand by this that the hogs were killed under such circumstances as made the killing improper and unlawful. He is also charged with pursuing a course of conduct towards the defendant with no other motive than to run him to costs, which plainly imports that the conduct was improper and unjust, and that the plaintiff was actuated by a wicked and malicious motive.

But it is not necessary to make a writing libellous that the imputations shpuld be made in the form of positive assertion. It is equally so if they are expressed in the form of insinuation, provided the meaning is plain. 2 Saund. PI. & Evid. 900-902;. 1 Am. Read. Cases 156; Cooke on Defamation, 4-5. The plaintiff is advised to “quit lying” and to “stop swearing to lies,” which plainly imports, according to the, common acceptation pf language, that he has been telling lies and swearing to lies. He is further told, if he wants to know how he stands in the community, to apply to Green Conner, who told the defendant that he tore down an advertisement about the plaintiff, in which the,defendant supposes, as Green Conner told him, that the plaintiff was charged with being a hog thief. What is this but an imputation that the plaintiff has been posted as a hog thief, or, at least, that the defendant had been told so by Green Conner? *The letter is, on its face, addressed to Dawson, so that. every imputation in it applies plainly , to him.

The Circuit court, • therefore, did not err in overruling the demurrer.

The next question is, whether .the evidence set forth in the first bill of exceptions was properly admitted. After proving that the defendant delivered the letter to a witness, folded up and sealed, and requested him to deliver it to the plaintiff, which he did; and after the letter had been read to the jury, the plaintiff introduced another witness, who testified that the defendant stated to him, in the presence of other persons, that he had sent a letter to the plaintiff; that he had got Thomas B. Woolwine to write the letter for him, and that he (the defendant) had signed his own name to it, and kept a copy; and that the defendant, at the same time, stated to the witness the contents of the letter, but without prodtic-ing it, or a copy of it. Evidence was introduced tending to show that the letter thus referred to was the one on which the action is founded.

This evidence was, of course, offered to prove the publication of the libel, and the question is whether it was admissible for that purpose. To constitute a publication it is not necessary that the contents of the writing should be made known to the_ public generally. It is enough, it is said, if they are made known to a single person. Holroyd, J., 6 Eng. C. L. R. 375. They were made known to Woolwine, who wrote the letter at the request of the defendant. The defendant adopted and sanctioned what Woolwine wrote at his instance and request, and if the defendant’s signature to the letter was necessary to render the act complete, there was evidence from which the jury might have inferred that the signature was attached in the presence of Woolwine. My impression is, that • there was a sufficient publication to *Woolwine stated in this evidence to maintain the action. The subsequent repetition of the contents of the letter was undoubtedly a publication. In the case de libellis famosis, 5 Rep. 125, it is said that publication may be “verbis aut cantilenis, as when the libel is maliciously repeated or sung in the presence-of others.” In Iamb’s case, 9 Rep. 59, it is said, that if one who has. read a libel, or heard it read, repeats, it, or any part of it, in the hearing of others, that is a publication.- In Bac. Abr. Eibel B. this is laid down as undisputed law. The court did not err, therefore, in receiving the evidence.

After the plaintiff had given evidence as to the writing and publication of the libel, and before the defendant had ■ introduced any evidence, the plaintiff offered- to introduce ' evidence to prove that before the publication of the libel, his general character for truth and honesty had been good. The defendant objected to the admission of this evidence ; but the court overruled the objection: and the admissibility of this ■evidence constitutes the only remaining question in the case.

This question has given rise to much difference of opinion in England and in this country. In England the question appears to be unsettled. The only cases I find were cases at Nisi Prius; and they are conflicting. In King v. Waring & ux., 5 Esp. R. 13, Eord Alvanley allowed the plaintiff to give evidence of her general character, before any evidence had been introduced bjr the defendant. The decision was put on the ground that the general character of the plaintiff was, in some respects, in issue, and that such evidence ought to be received in answer to the slander. Starkie expresses the opinion that the plaintiff must rely upon the presumption which the law makes in favor of the goodness of his character; and that he cannot, therefore, give evidence to prove his character to be good until it *has been assailed by evidence on the part of the defendant. 2 Stark. Ev. 218. The case which is usually cited as showing that in England the plaintiff is not allowed to give evidence in chief to prove his general character, is the decision of Chief Justice Abbott in Cornwall v. Richardson, Ry. & Mood. 305 ( 21 Eng. C. L. R. 446). But that decision appears to have been placed upon the doctrine that the defendant is not at liberty to introduce evidence to impeach the general character of the plaintiff; a doctrine which was condemned by this court in McNutt v. Young, 8 Leigh 542.

It is not necessary to make any further reference to the English cases, as they afford no material aid in the solution of the question.

In this country the cases are conflicting. Many of them are collected in 1 Am. Bead. Cases 207. Cases are there cited from Connecticut and South Carolina, in which the right of the plaintiff to give evidence in chief as to his general character is maintained. To these may be added a recent case in North Carolina, in which the same doctrine was held upon full consideration. Sample v. Wynn, Busbee Law R. 319. These cases proceed upon the ground that, from the nature of the case, the general character of the plaintiff is involved in’the issue, or more properly in the trial of the-issue, in every such action. Greenleaf says, that in actions of slander (and the same reason applies to libel), it is well settled, that the plaintiff’s general character is involved in the issue, and that, therefore, evidence showing it to be good or bad, and consequently of much or little value; may be offered on either side to affect the amount of damages.” 2 Greenl. Evid. $ 275.

This precise question has never been decided by this court. But in McNutt v. Young, 8 Leigh 542, it was held that though, strictly speaking, .the general character *of the plaintiff was not within the issues, yet it was involved in the trial of the issues, because it was necessary to be considered with reference to the quantum of damages. Hence a man of bad character is not entitled to recover as much as a man of good character. Upon this ground it was held that the defendant was entitled, in mitigation of damages, to give evidence of the general bad character of the plaintiff in reference to the subject matter of the slander. The reasoning of the judges in that case, and the decision in the subsequent case of Lincoln v. Chrisman, 10 Leigh 338, seem to show that the defendant will not be confined to the character of the plaintiff in reference to the particular subject of the slander.

It being thus important to the decision of the case that the jury should hear evidence as to the character of the plaintiff, either generally or in reference to the particular subject matter of the slander or libel, can any good reason be assigned 'why it should depend on the option of the defendant whether they shall hear such evidence or not? Such a one-sided rule would not be fair and equal as between the parties, would often defeat the justice .of the case, and might operate great hardship upon a-plaintiff who is unknown to the jury. The defendant would not open the door by an attack on his character, and he would not be allowed to sustain it by evidence in chief. It does not appear to me to be a satisfactory answer to say, that the plaintiff ought to stand upon the presumption which the law makes, in the absence of evidence to the contrary, that his character is good. Why should the plaintiff be compelled to rely upon such a general presumption, when he offers to prove that the presumption, in his particular case, is in accordance with the fact? And what right has the defendant to complain, since the evidence is only offered to establish with more *certainty what the law would presume to be true in the absence of all evidence? I am not aware of any case in which a mere presumption that a fact exists, which is liable to be rebutted, is held to preclude a party in whose favor the presumption is made from introducing evidence to prove that the fact is really so. And besides, the character of the plaintiff is always impeached when the slander ■ or libel imputes crime or moral delinquency, and the charge moreover may proceed from a person whose known position and character give it weight with the jury.

I think, therefore, that the evidence offered by the plaintiff in this case was properly received. Such evidence was admitted in Bincoln v. Chrisman, above cited, and there was no intimation by any of the judges of this court that it was not admissible. Indeed the language used by Judge Parker in that case, and by Judge Brocken-brough and Judge Tucker in McNutt v. Young, seems strongly to indicate that they would have held such evidence admissible, if the question had been before them.

I am of opinion to affirm the judgment.

The other judges concurred in the opinion of Joynes, J.

Judgment affirmed.  