to the purport and effect following, or in manner and form following,' or that the words were of a certain tenor, import and effect. Nor are quotation marks sufficient to indicate that the exact words are set forth.3 Where the defamation consists in the adoption of words spoken. by another, the declaration must set forth the words with the same particularity as though the action were against that other.'

§ 330. Where the words were published in a foreign language, the foreign words must be set forth, together with a translation into English. To set forth the foreign words alone, or the translation alone, would not be sufficient. The omission to set forth a translation may be

1 Bagley v. Johnson, 4 Rich. 22; Watson v. Music, 2 Miss. 29; Zeig v. Ort, 3 Chand. (Wis.) 26; Bassett v. Spofford, 11 N. Hamp. 127; Churchill v. Kimball, 3 Ham. 409; Rex v. May, 1 Doug. 193. A count in slander stating that defendant charged plaintiff with the crime of forgery, held bad (Yundt v. Yundt, 12 S. & R. 427); and so of perjury (Ward v. Clark, 2 Johns. 10); and where a count alleged that defendant charged plaintiff with the crime of theft, without setting out the exact words, it was held bad after verdict. (Parsons v. Bellows, 6 N. Hamp. 289.) In Massachusetts, even before the statute of 1852, it was held sufficient to allege that defendant accused plaintiff of a certain crime, as stealing, without setting out the words spoken. (Pond v. Hartwell, 17 Pick. 269; Allen v. Perkins, Id. 369; Gardner v. Dyer, 5 Gray, 22; Nye v. Otis, 8 Mass. 122; Whiting v. Smith, 13 Pick. 364; Gay v. Horner, 13 Pick. 535; and see Kennedy v. Lowry, I Binn. 393; Grubs v. Keyser, 2 McCord, 305.) But, in that State, the defendant is entitled to a bill of particulars setting forth the exact words. (See Payson v. Macomber, 3 Allen, 71.) A count in slander alleging that defendant wrongfully and without reasonable cause "imposed the crime of felony" upon the plaintiff was, after verdict, held good. (Davis v. Noakes, I Stark. 377; Hill v. Miles, 9 N. Hamp. 9.) In actions for malicious prosecution, it is sufficient to declare quod crimen felonice imposuit, without stating the words. (Pippet v. Hearn, 5 B. & Ald. 634; Blizard v. Kelly, 2 B. & C. 283; Davis v. Noake, 6 M. & S. 33.)

Forsyth v. Edmiston, 5 Duer, 653.

* Commonwealth v. Wright, 1 Cush. 46.

4 Blessing v. Davis, 24 Wend. 100.

Zenobia v. Axtell, 6 T. R. 162. When the language is not actionable per se, but merely because of some local meaning which is attached to it, the declaration must affirmatively allege the import of the language at the time and place of use. (Miles v. Van Horn, 17 Ind. 245.)

Wormouth v. Cramer, 3 Wend. 394; Lettman v. Ritz, 3 Sandf. 734; Zeig v. Ort, 3 Chand. 26; Kerschbaugher v. Slusser, 12 Ind. 453; Hickley v. Grosjean, 6 Blackf. 351; Rehauser v. Schwerger, 3 Watts, 28.

rectified by an amendment. On a general denial, the plaintiff must prove the correctness of the translation, but its correctness is admitted by a demurrer.' To allege a publication of English words, and prove a publication of words in another tongue, is a variance,3 and cause for a nonsuit.*

331. The object, or one of the objects, of obliging a plaintiff to set forth in his complaint the very words complained against, is, that the defendant may, if he desires it, by demurring, have the opinion of the court upon the actionable quality of the words.

332. One exception to the rule now under consideration is said to be, when the words published are so obscene as to render it improper that they should appear upon the record, and in such case the statement of the words may be omitted altogether, and a description substituted; but the reason for not setting forth the exact words must appear by proper averments on the face of the complaint."

333. The omission to set forth in the declaration the very words published is a variance, and in the practice at common law the omission was not cured by verdict, and might be taken advantage of by motion in arrest of judgment.

The degree of certainty with which

1 Zenobia v. Axtell, 6 T. R. 162; Rehauser v. Schwerger, 3 Watts, 28; Jenkins V. Phillips, 9 C. & P. 766. An amendment was allowed by inserting the foreign words. (Deboux v. Lehind, 1 Code Rep. N. S. 235; see Variance.)

Hickley v. Grosjean, 6 Blackf. 351.

3 Keenholts v. Becker, 3 Denio, 346; Kerschbaugher v. Slusser, 12 Ind. 453.

4 Zenobia v. Axtell, 6 T. R. 162; Zeig v. Ort, 3 Chand. 26.

Wood v. Brown, 6 Taunt. 169.

"Commonwealth v. Tarbox, 1 Cush. 46; Commonwealth v. Holmes, 17 Mass. 336. Indecent words tending only to aggravate the damages need not be repeated in the declaration. (Stevens v. Han lley, Wright [Oh'o], 121.)

' Gutsole v. Mathers, 1 M. & W. 495; Wright v. Clements, 3 B. & Ald. 503; and see Variance.

the defamation must be set forth depends upon the subject-matter. Where the defamation consists mainly in postures and movements, the use of language somewhat general is unavoidable; and where a declaration alleged, that the defendant published of and concerning a certain court-martial, and of and concerning the plaintiff as a member thereof, a defamatory libel and carricature, consisting of a picture representing and pointing out the court-martial, and the plaintiff as a member thereof, by their position and certain grotesque resemblances, &c., it was held, after verdict, to be averred with sufficient certainty that the plaintiff was specifically and individually libeled.'

$334. The rule now under consideration does not render it necessary to set forth the whole of the matter published; it is sufficient to set forth the particular passages complained of, provided they are divisible from, and their meaning is not affected by, the other and omitted passages. It is sufficient to set out the words which are material, and additional words which do not diminish nor alter the sense of the words truly alleged may be omitted.3 But enough must be set forth to show the sense and connection in which the words set forth were used; otherwise there will be a variance, even if the

1 Ellis v. Kimball, 16 Pick. 132. Judgment was arrested in an action for slander respecting a bribe, because the charge did not specify to whom the money was given. (Purdy v. Stacey, 5 Burr. 2698.) A declaration in slander for charging the plaintiff with larceny, held good after verdict, although it did not set forth the name of the owner of the property alleged to have been stolen by plaintiff. (Thompson v. Barkley, 27 Penn. St. R. 263.) It is not necessary to set forth the imputation of an offense with the same particularity as in an indictment. (Id., Niven v. Munn, 13 Johns. 48.)

Culver v. Van Anden, 4 Abb. Pr. Rep. 374; Rex v. Brereton, 8 Mod. 329; Sidman v. Mayo, 1 Rolle R. 429. A document referred to in an alleged libel need not be set out if it does not affect the meaning of the language complained against. (Walsh v. Henderson, 4 Ir. L. R. 34.)

Spencer v. McMasters, 16 Ill. 405; Weir v. Hoss, 6 Ala. 881; Buckingham v. Murray, 2 Car. & P. 46.

precise words laid are proved to have been spoken.' Where several passages are extracted from the same publication, care should be taken to show that such is the case, as by prefacing the first extract, with the allegation, in a certain part of which said libel there was and is contained, &c., and by prefacing the subsequent extracts with the allegation, and in a certain other part of which said libel there was and is contained, &c. But unless the insertion of the whole matter published would be oppressive and embarrassing, there is no objection to setting forth the whole of the matter published. Thus where in slander the words set out were, "Your wife is a damned Irish woman, and has got the palsy, and your son is insane, and you are a damned thief," the court, on motion, refused to strike out as redundant the words in italics.3 In an unreported case in New York, in which the plaintiff set out, without innuendoes, the whole of the publication (nearly an entire column in a newspaper), on defendant's motion an order was made requiring the plaintiff to specify the particular passages on which he relied as defamatory.

$335. It is an elementary rule of pleading that whatever is alleged must be alleged with certainty; and one of the means of insuring certainty in a complaint for slander or libel is an innuendo. Among the attempts to define an innuendo and explain its function are the following: The office of an innuendo is to aver the meaning of the language published. An innuendo means

1 Edgerly v. Swain, 32 N. Hamp. 478.

2 Tabert v. Tipper, 1 Camp. 350; Cooke v. Hughes, 1 Ry. & M. 112.

3 Deyo v. Brundage, 13 How. Pr. Rep. 221.

Rodeburgh v. Hollingsworth, 6 Ind. 339. Where the language directly and in terms free from ambiguity is actionable, no innuendo is necessary. Butler, 7 Blackf. 251; Roella v. Follow, Id. 377.)

(Worth v.

5 Watson v. Nicholas, 6 Humph. 174. The office of the innuendo is to explain doubtful words or phrases, and annex to them their proper meaning. It cannot

or

nothing more than the words "id est," "scilicet "meaning" or "aforesaid," as explanatory of a matter sufficiently expressed before. It is in the nature of a prædict. It may serve for an explanation, to point a meaning where there is precedent matter, expressed or necessarily understood or known, but never to establish a new charge. It may apply what is already expressed, but cannot add to nor enlarge nor change the sense of the previous words. If the words before the innuendo. do not sound in slander, no meaning produced by the innuendo will make the action maintainable, for it is not the nature of an innuendo to beget an action.3 An innuendo helps nothing unless the words precedent have a violent presumption of the innuendo." The business of an innuendo is by a reference to preceding matter to fix

extend their sense beyond their usual and natural import, unless something is put upon the record by way of introductory matter with which they can be connected. In such case, words which are equivocal or ambiguous, or fall short, in their natural sense, of importing any libelous charge, may have fixed to them a meaning, certain and defamatory, extending beyond their ordinary import. (Beardsley v. Tappan, I Blatch. C. C. 588.) And to the like effect, see Dorsey v. Whipps, 8 Gill, 457; Nichols v. Packard, 16 Vt. 83; Patterson v. Edwards, 2 Gilman, 720; Andrews v. Woodmansee, 15 Wend. 232; Taylor v. Kneeland, 1 Douglass, 67; Gosling v. Morgan, 32 Penn. St. R. 273; The State v. Henderson, I Richardson, 179; Caverley v. Caverley, 3 Up. Can. Rep. O. S. 338; Van Vechten v. Hopkins, 5 Johns. 211; Caldwell v. Abbey, Hardin (Ky.) 529; McCuen v. Ludlam, 2 Harr. 12: Beswick v. Chappel, 8 B. Mon. 486; Benaway v. Coyne, 3 Chand. (Wis.) 214; Vaughan v. Havens, 8 Johns. 109; Gompertz v. Levy, 1 Perr. & Dav. 214; Dodge v. Lacey, 2 Carter (Ind.) 212; Cramer v. Noonan, 4 Wis. 231; Stevens v. Handley, Wright (Ohio), 123. Where the charge was that plaintiff was a "bunter," without any innuendo to explain the meaning of that term, the court on the trial refused to receive evidence of the meaning, and plaintiff was nonsuited. (Rawlings v. Norbury, I Fost. & F. 341.) In Halliwell's Dictionary of Archaic Terms, "Bunter" is defined "A bad woman." (See ante, note 2, p. 180.)

1 Rex v. Horne, 2 Cowper, 688; approved Reg. v. Virrier, 4 Per. & D. 161.

? I Stark. Sland. 418; Rex v. Greepe, 2 Salk. 513; 1 Ld. Raym. 256; 12 Mod. 139; 1 Saund. 243: Van Vechten v. Hopkins, 5 Johns. 220; McClaughry v. Wetmore, 6 Johns. 83; Thomas v. Croswell, 7 Johns. 271; Weed v. Bibbins, 32 Barb. 315.

Barham v. Nethersole, Yelv. 21.

4 Castleman v. Hobbs, Cro. Eliz. 428.