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yard he first called to Lindstrum. Lind- to have correctly stated the law, were pointstrum heard the call, but did not go farthered to the purpose only of emphasizing and than his front gate. Cassou drove the ani- laying stress upon matters which were, by mals out of Chandler's yard and left the other instructions given by the court, very place. Lindstrum testified that, when he fully stated to the jury. came to his front gate in answer to Chand- We have given no attention to claims for ler's call, Joe Rivera, the appellant, was error which are not supported by argument there seated upon a horse; that they ex- in the briefs. It seems clear enough that changed greetings; that Rivera continued on the merits the case against appellant was on his way; and that there was the noise of fairly presented, and that no error was comsomething proceeding ahead of him. Witness mitted which may be said to have produced Andrade, who lived about one mile from the a miscarriage of justice. Riveras, on the same night and at a time not The judgment and order are affirmed. far from that mentioned by Chandler in his testimony, hearing the barking of a dog, went

We concur: CONREY, P. J.; SHAW, J. out into his front yard and there saw this appellant and Cassou driving two cows. The

(28 Cal. A. 786) animals had stopped at a watering trough

POLLOK V. EVENING HERALD PUB. CO. that stood by the roadside. At a later date

(Civ. 1774.) a man named Burns shipped a carcass of

(District Court of Appeal, Second District, beef to Lapham, a butcher at Lancaster. The

California. Nov. 13, 1915.) witness Andrade testified that some time

1. LIBEL AND SLANDER Om 86–WORDS Not after the alleged theft of the heifer he was ACTIONABLE PER SE-INNUENDO. present when Harry Burns reported to ap Where defendant published an article saypellant that "they” had found the hides in ing that plaintiff's theater manager was guilty the lake, and that Rivera had replied to him, I *:

of immoral conduct, the charge specifically men

tioning the name of the theater, but not spe"They won't know who put them there, any- cifically referring to the plaintiff, nor sushow." In the face of this testimony, the ceptible of a meaning injurious to him; the claim that there was a lack of sufficient evi

| words were not actionable, since the innuendo

could not supply to them a meaning which they dence to warrant the jury in convicting im

of themselves did not contain. presses us with but little force. We think [Ed. Note.--For other cases, see Libel and that, upon the state of facts as the testi Slander, Cent. Dig: 88 205–208; Dec, Dig. Om mony for the prosecution presented them,

inted them 86.] there was ample evidence to show the com

2. LIBEL AND SLANDER 32 - GENERAL

DAMAGE-WORDS Nor LIBELOUS PER SE. mission of the crime alleged and the partici.

Where the words used were not libelous per pation of this appellant in it. It is said by se, merely alleging that the manager of the counsel in the briefs that it is altogether im | plaintiff's theater was guilty of immoral conprobable that Joe Rivera and John Cassou

duct, no general damage could be shown, since

the injury suffered, if at all, was due to the excould have driven the cattle from the place trinsic circumstances set forth by way of inwhere Babcock left them, a distance of seven nuendo. or eight miles, within the period of time [Ed. Note. For other cases, see Libel and from sunset or thereabouts until they were

Slander, Cent. Dig. 8 112; Dec. Dig. 32.] seen at Chandler's and Andrade's places.

3. LIBEL AND SLANDER Om 89 - WORDS ACThe witnesses in this case, as is usual in

ITIONABLE-WORDS Not LIBELOUS PER SE.

Where an alleged libelous article merely courtroom experience, did not attempt to alleged that the manager of plaintiff's theater state the time exactly, and, even though they was guilty of immoral conduct, but made.no had, the question as to the probability of specific reference to the plaintiff, and the comthe cattle having been driven the distance

plaint failed to charge any special damage, such

as loss of patronage at the theater, no recovery mentioned was one peculiarly for the jury to could be had, since special damage must be pass upon. No such state of improbability shown to warrant recovery for words not acis presented by the evidence as to warrant

tionable per se.

[Ed. Note.-For other cases, see Libel and this court in interfering with the verdict on sind,

Slander, Cent. Dig. $8 213, 214; Dec. Dig. that ground.

Em 89.] [2] We find it urged also in the brief of appellant that the court improperly allowed

Appeal from Superior Court, Los Angeles testimony of the selling of the carcass of

County; Charles Wellborn, Judge. an animal or animals by Burns to Lapham.

Action by Fred A. Pollok against the EvenWe find that objection was made to but lit

ing Herald Publishing Company, a corporatle of this testimony, and that the main facts

tion. From a judgment for defendant upon of the occurrence adverted to were given

an order sustaining his demurrer to the without any protest being heard from the

third amended complaint, plaintiff appeals. appellant.

Affirmed. [3] Some complaint is made on account of Jesse A. Gyger and Wesley H. Beach, the refusal of the court to give certain in- both of Los Angeles, for appellant. Denis structions offered by the appellant. Those & Loewenthal, of Los Angeles, for reinstructions, in so far as they may be said I spondent.

SHAW, J. Action for libel. Plaintife : [1] It must be conceded that as to plaintiff, prosecutes this appeal from a judgment ren. to whom the article made no reference, the dered in favor of defendant upon an order language thereof is not actionable per se. of court sustaining the latter's demurrer, Recognizing this fact, plaintiff seeks, by way both general and special, interposed to the of innuendo, to show that by the article dethird amended complaint.

fendant intended, and was understood to It appears from the complaint that on Oc- intend and mean, to charge him in effect tober 21, 1912, plaintiff became the lessee | with being an accomplice of Ryan in the and manager of a place of amusement in commission of the misdeeds imputed to the the city of Los Angeles, known as the Prin- latter. From no angle, in our opinion, is cess Theater; that at that time defendant the language used susceptible of such meanwas a corporation engaged in the publica- | ing or application. As said by Lord Kention of a newspaper of general circulation, yon in a very early case: known as the Los Angeles Evening Herald ; “The injury is much too remote to be the that on November 14, 1912, defendant pub- foundation of an action.” Ashley v. Harrison, lished in the regular issue of said newspaper

1 Esp. 48.

"If the words before the innuendo do not an article as follows:

sound in slander, no meaning produced by the "Theater Manager Accused in Court. Girl innuendo will make the action maintainable, for Says George E. Ryan Forced Her to Accept His it is not the nature of an innuendo to beget an Attentions.

action.". Grand v. Dreyfus, 122 Cal. 58, 54 "May Thomas, whose stage name is Ladene Pac. 389. Earl, who several days ago swore to an affidavit

While it may serve to point a meaning to charging Guy Eddie, city prosecuting attorney, with forcing his attentions upon her, appeared

precedent matter, it can never be resorted in Judge Wilbur's court this morning as prose-to for the purpose of establishing a

a new cuting witness against George E. Ryan, manager charge. At most, the article erroneously of the Princess Theater.

describes Ryan's calling as manager of the "According to the testimony of Miss Thomas, Ryan contributed to her delinquency. She stat | Princess Theater. Quoting from Odgers on ed that she was employed by Ryan as a chorus Libel and Slander (5th Ed.) p. 134, it is said: girl at the Princess and that two days after “Where the words can bear but one meaning. she went to work he told her that she would

and that is obviously not defamatory, then no be discharged unless she accepted his attentions.

innuendo or other allegation on the pleadings She also stated that he promised her a raise in

can make the words defamatory. * * * No salary provided she would look with favor upon

parol evidence is admissible to explain the his advances.

meaning of ordinary English words, in the ab"According to Deputy District Attorney H. S.

1: : sence of any evidence to show that in the case G. McCartney, Ryan has made a business of

before the court the words do not bear their forcing his attentions upon girls working in the

usual signification." chorus. He avers that when Ryan's trial is called he will produce at least six girls who have [2] Moreover, while it is alleged that the complained to him of Ryan's treatment.” article was published for the purpose of and

By way of innuendo, it is then alleged did damage plaintiff and injure him in his that by the publication of said article de business and calling, the article itself makes fendant intended to and did charge, and by it apparent that no general damage could the readers of said paper was understood have been sustained. This for the reason as charging, that Ryan was the manager of that, as stated, the language used was not said theater at the time of the publication libelous per se, the alleged injury suffered of the article, to wit, November 14, 1912, and being due solely to the extrinsic circumthat Ryan was and had been for some time, stances set forth by way of innuendo. as such manager, in the employ of plaintiff, [3] It appears to be the rule that "in order who had allowed him as his agent to employ to maintain an action upon words which are chorus girls in said theater, and that plain- not libelous * * * per se, the plaintiff tiff had allowed said Ryan to act in an in- must have suffered some special damage, decent, outrageous, and criminal manner in and the recovery is limited to compensation the course of the performance of his duties therefor.” 18 Am. & Eng. Ency. of Law, p. as plaintiff's manager, and that plaintiff was | 1085; Harris v. Burley, 8 N. H. 216; Hirsha person of low character, and allowed his field v. Bank, 83 Tex. 452, 18 S. W. 743, 15 business to be operated in a low and criminal L. R. A. 639, 29 Am. St. Rep. 660. Such dammanner. It is further alleged that plaintiff age might be predicated upon the loss of had never employed Ryan in any capacity, patronage and attendance upon entertainand that at no time subsequent to said Oc-ments given by him at the Princess Theater. tober 21, 1912, when plaintiff acquired the There is nothing in the complaint, however, Princess Theater, had Ryan been manager showing any falling off in such attendance, thereof; that said publication, as understood nor any allegations upon which special damby the general public and by defendant in- ages could be predicated. Our conclusion is tended to be understood, exposed plaintiff that, since the article was not libelous in itto hatred, contempt, and ridicule by imput- self, no recovery could be had thereon for ing to him a low and base character similar the general damages prayed for; and, while to that of an owner of a brothel; “that by plaintiff might have alleged facts upon which reason of the publication aforesaid plaintiff to base a claim for special damage, no such was thereby injured in his theatrical busi- averments were made, and therefore the comness to his damage in the sum of $15,000." plaint states no cause of action for the re

covery of such damage. Newbold v. Brad. "That the bonds of matrimony heretofore and street & Son Co., 57 Md. 38, 40 Am. Rep. now existing between herself and defendant be 426; Woodruff v. Bradstreet Co., 116 N. Y.

| dissolved, and that defendant be required to pay

to the plaintiff the sum of $75 on the first day of 217, 22 N. E. 354, 5 L. R. A, 555; Wilson v. each and every month during her life, or until Fitch, 41 Cal. 386; Harris v. Burley, supra; she shall remarry." Dun v. Maier, 82 Fed. 169, 27 C. C. A. 100. To this complaint defendant made default, The judgment is affirmed.

and upon the trial of the case the court

found: We concur: CONREY, P. J.; JAMES, J.

"That a divorce ought to be granted as prayed

for in said complaint, and that the defendant (28 Cal. A. 784)

pay $75 per month for the support and main

tenance of plaintiff as hereinafter directed." NEWELL V. NEWELL. (Civ. 1537.)

The appeal is prosecuted from that part (District Court of Appeal, Second District, Call of the decree wherein: ifornia. Nov. 13, 1915.)

| It is "ordered and decreed that defendant Wil1. DIVOBCE 255-ALIMONY-DECREE. liam D. Newell pay to plaintiff on the first day

Where the complaint of plaintiff wife suing of each and every month, beginning on the 15th for divorce alleged that she and defendant bad day of November, 1912, the sum of $75 per contracted to settle their property rights, where- month, until the further order of this court; the by defendant agreed to pay plaintiff, as alimony, said sum of $75 to be for the maintenance and the sum of $75 per month during her life, or un support of plaintiff, Kate Elizabeth Newell." til she should remarry, praying that defendant

As we gather from appellant's argument, be required to pay plaintiff such sum, a decree | ordering that defendant pay such sum monthly,

his contention is that the court went outuntil the further order of the court, for the sup side of the complaint and beyond the alleport of the plaintiff, was not open to attack on gations thereof in ordering that defendant the ground that the relief granted was without the issues tendered and prayed for.

pay alimony to plaintiff; that, since the [Ed. Note. For other cases, see Divorce,

complaint alleged an agreement for a diviCent. Dig. 88 722–724; Dec. Dig. Om 255.] sion of the community property and under 2. DIVORCE E 240_ALIMONY-DECREE.

which defendant had agreed to pay plaintiff Where plaintiff wife, suing for divorce, al- the sum of $75 per month as alimony, the leged a contract settling the property rights of effect of the decree is to require defendant the parties, whereby the husband agreed to pay

to pay the $75 per month alimony as order$75 a month alimony, praying that he be required to pay her that sum monthly as alimony, the

ed by the court, leaving him bound under decree ordering that defendant pay $75 per his contract with plaintiff to pay her an month until the further order of the court, the I additional $75 month, making in all $150 per amount to be for the maintenance and support of plaintiff, even if defendant were bound both

Roth month. The prayer of the complaint was by the order and the agreement to pay the that defendant be required to pay plaintifr amount, so that upon default plaintiff might the sum of $75 per month alimony, and the have concurrent remedies in enforcing payment,

decree and order are in strict accordance the decree was not improper as effectuating a double award.

with the prayer of the complaint Defend[Ed. Note.-For other cases, see Divorce,

ant therefore had due notice of the specific Cent. Dig. 88 675-678, 680; Dec. Dig. Om 240.) relief demanded by plaintiff, and hence,

since the complaint alleged his agreement to Appeal from Superior Court, Los Angeles

pay the same, cannot say the relief granted County; Charles Monroe, Judge.

was without the issues tendered and prayed Action for divorce by Kate Elizabeth New

for. Nor do we see any merit in the conell against William D. Newell. Judgment

tention of appellant to the effect that he is for plaintiff, and defendant appeals. Af

bound by his contract to pay $75 per month firmed.

as alimony, and also bound by the decree to Jones & Weller, of Los Angeles, for ap- pay an additional $75 as alimony. Concedpellant. K. B. Campbell, of Los Angeles, for ing that he may be bound by both the orrespondent.

der and agreement to pay said sum, and

upon default plaintiff might have concurSHAW, J. [1, 2] This was an action for rent remedies in enforcing payment, neverdivorce. In addition to the grounds there theless the payment of $75 per month would for, plaintiff alleged that she and defendant not only satisfy his obligation existing by had entered into a contract in writing where- virtue of the agreement made with plaintiff, by they had settled and adjusted all their but at the same time satisfy the obligation property rights, making a division of all imposed upon him by the order and decreo community property belonging to them, and made in accordance with the terms of the whereby, among other things, defendant agreement and pursuant to the prayer of agreed to pay plaintiff as alimony the sum the complaint. of $75 per month during her life, or until The judgment is affirmed. she should remarry. The prayer of the complaint was:

We concur: CONREY, P. J.; JAMES, J.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Inderas

(28 Cal. A. 792)

, which real estate it was represented had FEOPLE V. CANFIELD. (Cr. 415.) been conveyed to one Earl M. McLaughlin, (District Court of Appeal, Second District, and that $7,000 had been paid upon the prinCalifornia. Nov. 15, 1915.)

cipal of said note, and $350 paid on account 1. FALSE PRETENSES 31'- INDICTMENT - of interest accrued thereon, all of which repSUFFICIENCY-STATUTE.

resentations so made to said persons, it is Under Pen. Code, $ 952, requiring a statement of the particular circumstances of the

alleged, were at the time made, false, and offense when they are necessary to constitute

known by defendant to be false and untrue; an offense, where an indictment for obtaining "that by reason of the aforesaid false and money by false pretenses described no natural or

fraudulent representations and pretenses, so causal connection between the false representations alleged and the delivery of the property made as aforesa

made as aforesaid by the said Leonard C. to defendant, such indictment was demurrable, Canfield to the said Caroline Schertz, Flora since an indictment for the offense must show B. Schertz, Ernest H. Lockwood, and the that the property was obtained by means of the

Title Insurance & Trust Company, a body false pretenses alleged, so that, when no natural connection appears between the pretense and the corporate, the said Caroline Schertz, Flora delivery of the property, such additional facts B. Schertz, Ernest H, Lockwood, and the as are necessary to show the relation must be Title Insurance & Trust Company, a body alleged. [Ed. Note.-For other cases, see False Pre

corporate, relying upon the said false repretenses, Cent. Dig. $8 38–41; Dec. Dig. 31.) sentations and pretenses, and believing same, 2. FALSE PRETENSES m31 – INDICTMENT - were thereby induced to, and on the 3d day SUFICIENCY.

of September, 1914, did, at and in the county There may be averments in an indictment

of Los Angeles aforesaid, pay over and defor obtaining money by false pretenses from which the connection between the pretense and

liver to the said defendant, Leonard C. Canthe obtaining of the property can be inferred, so field, $2,739.20 lawful money of the United that the indictment is sufficient without direct States of the moneys and personal property averment of the connection.

of them, the said Caroline Schertz, Flora B. [Ed. Note.-For other cases, see False Pretenses, Cent. Dig. 88 38-41; Dec. Dig. Om 31.]

Schertz, Ernest H. Lockwood, and the Title 3. INDICTMENT AND INFORMATION OM 60

Insurance & Trust Company, a body corporate, · NECESSARY CONTENT.

and they were and each of them was thereby An indictment or information must set then and there defrauded out of said sum forth all the facts and circumstances necessary of $2.739.20 of the personal property” of to constitute the crime sought to be charged, as such matters cannot rest in presumption.

said persons. [Ed. Note. For other cases, see Indictment [1] In addition to the general demurrer, and Information, Cent. Dig. 88 182, 266, 267; it was also alleged that the indictment did Dec. Dig. Om60.)

not conform to the requirements of sections Appeal from Superior Court, Los Angeles 950, 951, and 952 of the Penal Code, and that County; Gavin W. Craig, Judge.

it was not direct and certain, in that it Leonard C. Canfield was indicted for ob- could not "be determined what, if any, taining money by false pretenses, and from causal connection there is or was between the a judgment sustaining his demurrer, the alleged false representation, and the parting people appeal. Affirmed.

with money by any one, if any was parted U. S. Webb, Atty. Gen., Robert M. Clarke, with."

Clarke with." It appears the trial court deemed the Deputy Atty. Gen., and Tracy C. Becker,

indictment obnoxious to the ground last statDeputy Dist. Atty., of Los Angeles, for the

ed. In thus sustaining the demurrer the court People. Paul W. Schenck, of Los Angeles,

followed the case of People v. Kahler, 26 for respondent.

Cal. App. 449, 147 Pac. 228, wherein this

court, in discussing a like objection urged SHAW, J. Defendant was indicted for

| against an information, said: obtaining money by false pretenses. His

"It is merely alleged that defendant, knowing

the same to be untrue, falsely represented to demurrer, interposed upon both general and

Richard J. Cogan that he had contracts for furspecial grounds, was sustained, and from the nishing orchestras to certain cafés and thejudgment following such ruling, the people

aters; that Cogan, believing the representationg

to be true, and relying thereon, paid and deappeal.

livered to defendant the sum of $75. For what The indictment is quite lengthy; the sub- | purpose is not disclosed. Conceding the represtance thereof being that defendant, with in sentation made by defendant to have been false, tent to defraud Caroline Schertz, Flora B. there is no causal connection between the pay.

ment of the money and the representation. Schertz, Ernest H, Lockwood, and Title * . * We are unable to perceive any connecInsurance & Trust Company, a corporation, tion between the alleged false representation out of their, and each of their, money, repre- and the paying or giving to defendant the $75,

nor how, in the absence of further allegations, sented that he was Helmer E. Rabild, the

| such representations should have been induced. owner and legal holder of a certain promis- or were calculated to induce, Cogan to pay sory note of the face value of $10,000, made defendant $75 in money." by one Justin E. Cook to him, said Helmer We deem the language there used likewise E. Rabild, payment of which was secured by appliable here. For aught that appears to a mortgage duly executed by said Cook upon the contrary, defendant retained and still certain real estate in Los Angeles county, I holds the note. Then for what purpose was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
154 P.-3

the money paid over and delivered to him? , the court cannot indulge in the presumption It is left entirely to conjecture. In the that acts were committed which constitute absence of any allegation to that effect, we a crime. The prosecuting witnesses herein cannot assume the prosecuting witnesses may by reason of such representations have were, by reason of the false representations, been induced to pay the money over to deinduced to pay their money to defendant in fendant as a contribution to some charitable consideration of a transfer by him to them object, in which case we do not mean to say of this promissory note and mortgage. Con- it would not constitute the offense charged. ceding the representations were, as believed, Section 952, Penal Code, requires a statement all true, why should they induce these per- of the particular circumstances of the offense sons to give their money to Rabild? That when they are necessary to constitute a they delivered the money to him relying upon complete offense. Measured by this prothe representation that he was Rabild is as vision, the indictment is insufficient, since inconceivable as that they should have paid it fails to disclose any natural or causal conit to him because of a false representationnection between the false representations that he was Dr. Cook and had been to the alleged and the delivery of the property to north pole.

defendant. "The indictment must show that the property The judgment and order from which the was obtained by means of the false pretense alleged. Accordingly, when there appears to be

appeal is prosecuted are affirmed. no natural connection between the pretense and

We concur: CONREY, P. J.; JAMES, J. the delivery of the property, such additional facts as are necessary to show the relation must be alleged.” 19 Cyc. 429; People v. White, 7

(28 Cal. A. 766) Cal. App. 99, 93 Pac. 683.

PEOPLE v. TURNER. (Cr. 592.) In the absence of an allegation showing

(District Court of Appeal, First District, Calthat the prosecutors were induced to pur

ifornia. Nov. 12, 1915.) chase the note and mortgage or lend money

1. CRIMINAL LAW 1186APPEAL AND ERthereon, there appears to be no natural con

BOR-HARMLESS ERROR-STATUTE. nection between the false representations Under Const, art. 6, § 412, providing that and the delivery of the property to defend- no judgment shall be set aside in any criminal ant.

case unless the court shall be of opinion that

the error complained of resulted in a miscarriage 121. While such facts should be directly of justice, in a prosecution for libel, where, pleaded, nevertheless there may be averments at the conclusion of the preliminary hearing, from which the connection between the pre- the magistrate merely announced and caused to tense and the obtaining of the property can

be entered in his docket, without signing it, an

order that the defendant should be held to an. be inferred, as in the case of People v. swer in the superior court to a charge of libel, Donaldson, 70 Cal. 116, 11 ,Pac. 681; where fixing his bail, in contravention of Pen. Code, the defendant was charged with false pre

$ 872, providing that, if it appears on exam

ination that a public offense has been committenses in obtaining from one Spence certain

ted, and there is sufficient cause to believe that hogs by falsely pretending to Spence that | the defendant is guilty, the magistrate must he, the defendant, had in bank a certain sum make or indorse on the complaint an order

signed by him to that effect, it not appearing of money for which he delivered to Spence

that defendant was injured by the failure of the his check. So, in the case of People v. Haas, magistrate to make the required indorsement 151 Pac. 672, recently decided by this court, upon the complaint before the information was and wherein the court, through Mr. Justice filed, judgment of conviction after fair trial

n will not be set aside for the omission. James, distinguished the facts therein from

[Ed. Note. For other cases, see Criminal those in the Kahler Case, an examination of

Law, Cent. Dig. $$ 3215-3219, 3221, 3230; Dec. the information upon which Haas was prose Dig. Om1186.] cuted exhibits facts from which the court 2. LIBEL AND SLANDER C 145 - CRIMINAL was fairly justified in inferring that the PROSECUTION-STATUTE-"LIBEL." money of the prosecuting witness was, by

Under Pen, Code, $ 248, declaring that a

libel is a malicious defamation, expressed by reason of the false pretenses, paid over to

printing, tending to impeach the honesty, integdefendant, in consideration of a transfer rity, virtue, or reputation of one, and thereby to her of certain property alleged to be expose him to public hatred, contempt, or ridi

le, where a newspaper proprietor published owned by Haas. In the case of People v.

an oath alleged to be required of all fourth deHines, 5 Cal. App. 122, 89 Pac. 858, cited by

gree members of a fraternal association, which appellant, the information, by indirect alle oath was of such a character as to impeach gations, disclosed the money of the prose the members' loyalty as citizens, though not di

rectly impeaching their honesty and integrity, cuting witness was paid over to defendant

| he was guilty of libel. in consideration of a conveyance of property

[Ed. Note.-For other cases, see Libel and which he represented he owned.

Slander, Cent. Dig. 8 404; Dec. Dig. 145. [3] It is a well-settled rule that an indict For other definitions, see Words and Phrases, ment or information must set forth all the First and Second Series, Libel.] facts and circumstances necessary to consti- 3. LIBEL AND SLANDER 145 – CRIMINAL tute the crime sought to be charged. In the PROSECUTION – LIBEL UPON MEMBERS OF

FRATERNAL ORDER. absence of such allegations, or statements

Where a newspaper proprietor published from which such facts may be fairly deduced, la libel in the form of an oath alleged to be

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