ting to a transaction not felonious;(1) and a witness cannot be permitted to say whom or what he was induced by current rumors or the conversations of others, to suppose that the defendant meant.(2) Moreover, no explanation or qualification, made subsequently, will take away the actionable character of a charge originally slanderous.*(3) *135] Neither will it take away such actionable character to show that while repeating a slander already in circulation, the defendant did so without a design to extend its circulation or credit, or to cause the person to whom he spoke it to believe or suspect it true.(4) In all cases of this kind, it is for the jury to say what was the meaning of the words as understood by the hearers.(5) It is said by De Grey, C. J., in Onslow v. Horne, 3 Wilson, 117, 186, that to make an imputation slanderous, "the charge upon the person spoken of, must be precise." The meaning is, not that the language averring the party to have been guilty must be precise, but that the crime alleged must be precise; that is, as explained in Sir William Blackstone's report of the same case, 2 Blackstone, 753, "a general charge of wickedness would not be sufficient." To call a man a “rogue,” or a "d-d rogue," is not actionable.(6) So a charge of "plundering a library," would not of itself be slanderous, because, though it conveys the notion of a wrongful acquisition, it does not express the nature of the wrong done.(7) A general charge of "felony," however, appears to be actionable;(8) or of having been convicted and sent to the penitentiary.(9) With regard to the precision with which the charge must be fixed upon the person, it is settled, that the crime or offence need not be charged in direct and positive terms; it need not be affirmatively averred; it may be as effectually made by ambiguous insinuation, by expressing a suspicion or delivering the words as matter of hearsay, or by way of interrogation or exclamation, as by way of affirmation; and it may be made by conditional words, or words in the future tense. The only inquiry is, whether, according to the natural and fair construction of the language used, in connection with the preliminary circumstances mentioned in the colloquia, the persons in whose presence and hearing the language was used, had a right to believe that it was the defendant's (1) Phillips v. Barber, 7 Wendell, 430; Hankinson v. Bilby, 16 Meeson & Welsby, 442. (2) Allensworth v. Coleman, 5 Dana, 315. (3) Lathan v. Berry, 1 Porter, 110. (4) Kenedy v. McLaughlin, 5 Gray, 3. (5) Becket v. Sterrett, 4 Blackford, 499, 501. (6) Caldwell v. Abbey, Hardin, 529; Idol v. Jones, 2 Devereux, 162; see Walton v. Singleton, 7 Sergeant & Rawle, 449, 452. (7) Carter v. Andrews, 16 Pickering, 1, 9. (8) Wiley v. Campbell, 5 Monroe, 396. (9) Smith v. Stewart, 5 Barr, 372. intention to make the charge.(1) [What they did in fact, believe cannot be shown; as for example, it cannot be shown by witnesses that on reading the alleged libel, they considered that the plaintiff was meant; see infra.(2)] If a person says, that he "believes," or "he has reason to believe," that another has committed a particular crime, it is actionable.(3) [And so if stated "I believe he did steal; and I believe he will steal."(4)] If the matter be stated as common report or common belief, it is still actionable.(5) [But if the words import a mere suspicion, they are not actionable. Tozer v. Mashford, 6 Exchequer, 539.] In point of law, also, it is immaterial whether the slanderer expects to be *believed or not; it is no excuse for an assault on character, that [*136 the speaker really was not in earnest, and did not intend that his hearers should credit his aspersions.(6) To say of a person, “Tell him he is riding a stolen horse, and has a stolen watch in his pocket,” is a charge of theft, and actionable in itself, on the ground that the words are to be taken in their natural sense.( se.(7) To say of one, that he " was whipped for hog-stealing," is an accusation of hog-stealing, with the addition that he was whipped for it.(8) And to say "You have been cropped for felony ;(9) or "he is a convict," or "he was in the penitentiary."(10) So to write of another, "He is so inflated with two hundred pound or three hundred pound which he has made in my service,-God only knows whether honestly or otherwise," is a charge of dishonesty, and is libellous.(11) But in all cases, the matter, of which the charge constitutes the offence, must be imputed to the plaintiff; if it be uncertain of whom the words were spoken, the action is not maintainable.(12) Where the plaintiff's name is not printed in a libel, but there are asterisks for it, "the question for the jury is, whether the libel designates the plaintiff in such a way as to let those who know him, understand that he (1) Gorham v. Ives, 2 Wendell, 534, 536; Gibson v. Williams, 4 Id. 320; Kennedy v. Gifford, 19 Id. 296; Cornelius . Van Slyck, 21 Id. 70; Rundell v. Butler, 7 Barbour's S. Ct. 260; Bornman v. Boyer, 3 Binney, 515; Cole v. Grant, 3 Harrison, 328, 331; Schenck r. Schenck, Spencer, 209; Drummond v. Leslie, 5 Blackford, 453, 455; Sawyer v. Eifert, 2 Nott & McCord, 511; Hart v. Reed, 1 B. Monroe, 166; Marshall v. Gunter, 6 Richardson, 419. (2) White v. Sayward, 33 Maine, 322. (3) Miller v. Miller, 8 Johnson, 74; Bechler v. Steever, 2 Wharton, 314, 329; Logan r. Steele, 1 Bibb, 593; Giddens v. Mirk, 4 Georgia, 364; Waters v. Jones, 3 Porter, 442. (4) Bechler v. Steever, 2 Wharton, 313; Dottarer v. Bushey, 16 Penna. State, 209. (5) Mason v. Mason, 4 New Hampshire, 110; Treat v. Browning, 4 Connecticut, 409, 414; Smalley v. Anderson and Wife, 4 Monroe, 368; Waters v. Jones, 3 Porter, 442. (6) Hatch v. Potter et ux., 2 Gilman, 725, 728. (7) Davis v. Johnston, 2 Bailey, 579. (8) Holley v. Burgess, 9 Alabama, 728. (9) Wiley v. Campbell, 5 Monroe, 396. (10) Smith v. Stewart, 5 Barr, 372. was the person meant; it is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff, can make out, that he is the person meant."(1) In determining whether spoken or written matter amounts to a slander or a libel, the construction must be upon the whole language used; and in that way, language in one part of a sentence which would not be actionable of itself, may be so affected by expressions in another, as to become actionable.(2) Accordingly, the following language, "I have lost a calf-skin out of my cellar the day that you and B. (the plaintiff) got the leather, and there was nobody in the cellar that day but you, B., and G., and I do not blame you or G., but B. must have taken it," has been decided to amount to a charge of stealing, because of the secret and blamable manner in which the taking is imputed.(3) In like manner, the words, "who gave you orders to feed my straw to your cattle? You did take it, for it could be seen at the back of the barn;" and "You fodder your cattle on my straw. What have you done you old scoundrel? You went and made a slaughter-house of my barn, and are acting dishonestly in everything you are doing about the place;" have been deemed actionable as importing theft, as the taking is spoken of as something secret, blamable and dishonest.(4) So, "I have made the charge against him, and I shall go on with it," with a colloquium of the oath and evidence of a person in a judicial proceeding, amounts to a charge of perjury, and as such is actionable.* (5) So in regard to *137] written matter, a paragraph running "Threatening Letters. The Middlesex grand jury have returned a true bill against a gentleman of some property, named French," was held to be actionable, because it would ordinarily be understood as meaning that the grand jury had found a true bill against French for sending threatening letters; and a bill of indictment for sending a threatening letter must import an unlawful threatening letter.(6) In order that words may be actionable, and written matter either actionable or indictable, it must have an individual application.(7) Where slanderous or libellous matter is uttered or published against a class of persons, or a profession, body, or order of men, and does not import a specific application tending to individual injury, a member, not (1) Bourke v. Warren, 2 Carrington & Payne, 307. (2) See Graves v. Waller, 19 Connecticut, 90, 94; Williams v. Gardiner, 1 Meeson & Welsby, 244. (3) Bornman v. Boyer, 3 Binney, 515. (4) McKennon v. Greer, 2 Watts, 352. (5) Thompson v. Lusk, 2 Watts, 17, 20. (6) Harvey v. French, 1 Crompton & Meeson, 11, 18; see also Hughes v. Rees, 4 Meeson & Welsby, 204; Marshall v. Gunter, 6 Richardson, 419. (7) See The King v. Alme & Nott, 3 Salkeld, 224. specially designated, cannot maintain an action;(1) and one reason is, that the body may have justly incurred the censure, and yet an individual in it may be acknowledged to be free from reproach. Where, however, many persons are severally included in the same attack, the plaintiff is not the less entitled to redress, because others are injured by the same act; and the question will always be, whether the charge bears upon the plaintiff personally, though among others, and whether, upon the whole, the declaration avers, with sufficient certainty, that the plaintiff, individually, is slandered or libelled.(2) The words, "Your children are thieves, and I can prove it," and, "you are a gang of murderersyou killed T., and you know it," have been held sufficiently individual, to give any one of the persons referred to a separate action.(3) ['And so where libellous matter is substantially charged to one or the other of two individuals, either may sue; the law regarding it as an imputation against both. Forbes v. Johnson, 11 B. Monroe 51. Indeed it would appear that where a charge is against several, separate actions ought to be brought and not a joint action.(4)] As the question, whether the declaration contains a good cause of action, is always matter of law, it is for the court to determine, on demurrer, or on motion in arrest of judgment, whether the whole matter charged in the count, amounts to slander.(5) If the words set forth, do, in themselves, that is, in their general legal meaning, or in the particular meaning intended by the speaker, as inferred from their connection with other words used at the same time, which are also set out in the declaration, import a charge against the plaintiff, which is sufficient to constitute slander, they are actionable in themselves, and no other matter need be averred; and the sufficiency of the words to sustain the action, is matter of law for the court.(6) But if the words, in themselves, do *not constitute such complete imputation against the plaintiff, as amounts in law to a slander upon him, it is necessary to aver, in the declaration, such extrinsic facts as, taken with the words, cause them to amount to a slander upon him. An averment that the words were used of and concerning a particular person, or particular circumstances. or subject matter, is called a colloquium. If the language be ambiguous, or ironical, or technical, or conventional, or be used by way of allusion (1) Sumner v. Buel, 12 Johnson, 475. [*138 (2) Ellis v. Kimball, 16 Pickering, 132; Ryckman v. Delavan, 25 Wendell, 186; controlling White v. Delavan, 17 Id. 49. (3) Gidney v. Blake, 11 Johnson, 54; Chandler v. Halloway, 4 Porter, 18. (4) Bash v. Sommer, 20 Penna. State, 162. (5) Bornman v. Boyer, 3 Binney, 515, 519; Dorsey v. Whipps, 8 Gill, 462. (6) See Woolnoth v. Meadows, 5 East, 463; Roberts v. Camden, 9 Id. 93; Carter v. Andrews, 16 Pickering, 1, 7; Woth v. Butler, 7 Blackford, 251; Stucker v. Davis, 8 Id. 415; Thirman v. Matthews, 1 Stewart, 384; Brittain v. Allen, 3 Devereux, 167; Vanderlip and Wife v. Roe, 23 Penna. State, 83; Robinson v. Keyser, 2 Foster, 323. VOL. I.-11. or reference, and in its general meaning would not necessarily be slanderous, but becomes so only in respect to the meaning in which it was used and understood in the particular case, or in which it is understood by the class of persons among whom it is uttered, then the facts which determine or show such meaning, or understanding, must be averred on the record by way of inducement or introduction to the words set forth; and there must be a positive averment, or colloquium, that the discourse was of and concerning those circumstances; without which, the induce. ment would be unavailing; for, the inneundo is incompetent to such a purpose; and if the words, in connection with such special circumstances modifying their meaning and understanding, do convey an imputation that is slanderous, they are actionable. In short, whenever the words in their legal construction, that is, in their natural and inherent signification, do not amount to a slanderous imputation, such matter or fact as, taken with them, causes them to amount to an imputation of that nature, must be averred by way of inducement; and these averments are of traversable matter, and may be proved or disproved.(1) The office of an innuendo is, by reference to the matter averred, that is, either the words alone, or the words and circumstances together, to explain the effect of the words used, so as to point out that they are slanderous; it is equivalent to "scilicet" or "id est ;" and is merely a statement of a reasonable inference from what is alleged in the foregoing part of the count; it cannot be proved on the trial; of course, it cannot enlarge, extend, or add to, the sense or effect of the words set forth, nor refer to anything not in the declaration.(2) (1) "The revised statutes of Indiana of 1852, have enacted, that in an action for libel or slander, it shall be sufficient to state generally that the defamatory matter was published or spoken of the plaintiff; and if the allegation be denied, the plaintiff must prove on the trial, the facts showing that the defamatory matter was spoken of him." R. S. 1852, vol. 2, p. 45. This statute is similar to that of New York. The statute of New York has been held to dispense with the allegation of extrinsic facts showing the application of the words to the plaintiff, but not to dispense with the necessity of an averment or innuendo, when it becomes essential to show the meaning of the words themselves. Pike v. Van Wormer, 5 Howard's Practice, 171. When the meaning of the words is so ambiguous that extrinsic facts are necessary to be proved to show them to be actionable at all, the necessity of stating these facts by an explicit averment is precisely the same as it has always been. Fry v. Bennett, 1 Code Rep., N. S. 238. Even though it may be uncertain to whom the words were intended to apply, it is no longer necessary to assert in the complaint any averments [of extrinsic facts] showing that they were intended to apply to the plaintiff. But, in other respects, the same averments are requisite, in pleading under the code, as at common law; Pike v. Van Wormer, 6 Howard's Practice, 99; and see note to Larsh v. Brown, 3 Indiana (Porter's) Reports, p. 234. This appears also to be the law as settled by the code of Wisconsin and the decisions on it. Van Slyke v. Carpenter, 7 Wisconsin, 173. (2) See Alexander v. Angle, 1 Crompton & Jervis, 143; S. C. 7 Bingham, 119; Goldstein v. Foss, 2 Younge & Jervis, 146; S. C. 4 Bingham, 489; McGregor v. Gregory, 11 Meeson & Welsby, 287, 295; O'Brien v. Clement, 16 Id. 159, 167; Hearne v. Stowell, 12 Adolphus & Ellis, 719; Brome v. Gosden, 1 Common Bench, 728; Babouneau v. Farrell, |