transferring himself, together with £ of John Bull's money, to Paris, where he now out-tops princes in his style of living, innuendo that the plaintiff had thereby cheated John Bull.'

§ 342. Evidence cannot be introduced to support or explain an innuendo.2 "I never knew an innuendo offered to be proved." Its truth must always appear from precedent averments. An issue cannot be raised upon the truth of an innuendo.5 Where an averment or colloquium introduces extrinsic matter into a complaint, that is proper subject of proof. Whether the language is capable of bearing the meaning assigned by the innuendo, is for the court; whether the meaning is truly assigned to the language, is for the jury."

$343. Where the language is not in itself applicable to the plaintiff, no innuendo can make it so. But where

8

fratre suo naturali, and adjudged for plaintiff. Where the description may apply to one of a class, as brothers or sons, it is unnecessary for the plaintiff to aver that he is the only brother or only son. (1 Starkie on Sland. 388; see ante, note 1, p. 568.)

1 Yrisarri v. Clement, 3 Bing. 432. Society of guardians for the protection of trade against swindlers and sharpers. I [defendant] am directed to inform you that A. B. [plaintiff] and C. D. are reported to this society as improper to be proposed to be balloted for as members thereof; innuendo that plaintiff was a swindler and sharper, held not warranted. (Goldstein v. Foss, 6 B. & Cr. 154.)

'The State v. Henderson, I Richardson, 179; Van Vechten v. Hopkins, 5 Johns. 211; Gidney v. Blake, 11 Johns. 54; see Johnston v. McDonald, 2 Up. Can. Q. B. Rep. 209.

'Pollexfen arg. Rosewell's Case, 3 State Trials, 1058, admitted by court and opposite counsel, cited and approved Van Vechten v. Hopkins, 5 Johns. 226; and see Fry v. Bennett, 5 Sandf. 66; Blaisdell v. Raymond, 4 Abb. Pr. Rep. 454.

4 Taylor v. Kneeland, 1 Douglass, 67.

5 Fry v. Bennett, 5 Sandf. 54; Commonwealth v. Snelling, 15 Pick. 335. Justifying an innuendo, see Biggs v. Gt. East. R. R. 16 Weekly Rep. 908. An innuendo may in some cases justify a demurrer. (Fry v. Bennett, 5 Sandf. 54.)

6 Van Vechten v. Hopkins, 5 Johns. 24.

'Blagg v. Sturt, 10 Q. B. 899; Broome v. Gosden, 1 C. B. 728; Barrett v. Long, 3 House of Lords Cas. 395; Babonneau v. Farrell, 15 C. B. 360; Hemmings v. Gason, 5 Ir. Law Rep. 498.

8 See in note to § 131, ante.

the matter published on its face appears to apply to a class of individuals, the plaintiff may, by an innuendo, show that the publication applied to him; that is not extending the sense of the matter. Therefore, where the declaration alleged that the plaintiff was owner of a factory in Ireland, and charged that the defendant published of him and of the said factory a libel, imputing that, "in some of the Irish factories" (meaning thereby the plaintiff's) "cruelties were practiced," though there was no allegation otherwise connecting the libel with the plaintiff, was, after verdict, held good. If the plaintiff is designated by another name in the libel, his real name may be designated by inducement and an innuendo." In libel the plaintiff averred that she was the mother of one Edward J. Barker, and that defendant, knowing this, to defame her, published "of the Barkers-that was the name of his reputed father, what was his mother's I either never knew or have forgot, but I know it was not Barker," innuendo that plaintiff was the mother of an illegitimate child, on demurrer held that the declaration was good. A count in libel, after averring that a sum of money was standing in the Bank of England, at the

Le Fanu v. Malcomson, I House of Lords Cas. 637; 13 Law Times, 61; Parker v. Raymond, 3 Abb. Pr. Rep. N. S. 343; Marsden v. Henderson, 22 Up. Can. Q. B. Rep. 585. There needs no innuendo when the words are spoken to the plaintiff himself. (2 Rolle Rep. 243.) "You have bewitched my mare," innuendo the mare of the plaintiff instead of the defendant, held good after verdict. (Smith v. Cooker, Cro. Car. 512; but see ante, note 5, p. 567.)

2

Hays v. Brierly, 4 Watts, 392. "Mr. Deceiver" (meaning the plaintiff), held good on writ of error. (Fleetwood v. Curle, Cro. Jac. 557.) The following was held sufficient to point out the plaintiff : "This diabolical character, like Polyphemus, the man-eater, has but one eye, and is well known to all persons acquainted with the name of a certain circumnavigator," meaning to allude to the plaintiff's name. (J'Anson v. Stuart, 1 T. R. 748.) A declaration in slander, which, averring a colloquium concerning the plaintiff and A., charged the defendant with saying that A. thinks it a hard matter to commit fornication with "his niece" (meaning the plaintiff), was held sufficient, without an averment that the plaintiff was A.'s niece. (Miller v. Parish, 8 Pick. 384.)

3 Anderson v. Stewart, 8 Up. Can. Q. B. Rep. 243; and see ante, note 13, p. 589.

time of the death of one W. T., in his name, alleged that the defendant published concerning the plaintiff, and concerning such money, the following libel: "There is strong reason for believing that a considerable sum of money was transferred from Mr. T.'s (meaning the said W. T.'s) name in the books of the Bank of England, by power of attorney obtained from him by undue influence, after he became mentally incompetent to perform any act requiring reason and understanding" (thereby meaning that the plaintiff had transferred, or caused to be transferred, the said money from the said W. T.'s name in the said books of the said bank, by means of a power of attorney obtained by him from the said W. T., by undue influence exercised by him over the said W. T., at a time when the said W. T. had become mentally incompetent to give a power of attorney, and to perform any act requiring reason and understanding). Held, after verdict for plaintiff, on motion in arrest of judgment, that the libel was sufficiently shown to point to the plaintiff." Averments were introduced into the declaration of words spoken by the defendant imputing dishonesty to L., the name of L. being followed by the innuendo, “meaning the plaintiffs' agent and clerk," but there was nothing else in the declaration showing any connection between L. and the plaintiffs. Held, that in the absence of a direct averment connecting L. with the plaintiffs or their business, the words alleged to have been spoken concerning them were not actionable in favor of the plaintiffs. Where the alleged libel consisted of a passage in a newspaper warning certain persons to avoid the traps laid for them by desperate adventurers, innuendo the plaintiff amongst others, was, after verdict, held suffi

1 Turner v. Merrywether, 13 Jur. 683; 18 Law Jour. C. P. 155; 12 Law Times,

2 Smith v. Hollister, 32 Vt. (3 Shaw), 695.

ciently to point out the plaintiff. Where there was no colloquium that the defamatory matter was concerning the justices of Suffolk, and it did not appear on the face of the alleged libel that it applied to such justices, it was held that the defamatory matter could not be connected with or applied to such justices by means of an innuendo.2

§ 344. If a complaint is sufficient without the innuendo, the innuendo may be rejected as surplusage;3 the innuendo may always be rejected when it merely intro-. duces matter not necessary to support the action, or when it is incongruous, or too broad; an innuendo that the attorney general spoken of meant the attorney general for the county palatine of Chester was so rejected."

$345. Special damages, or those damages which are not the necessary consequence of the language complained of (§§ 197-202), must be specially alleged in the complaint, or the plaintiff will not be allowed on the trial to go into evidence to prove such damages. Where

1 Wakley v. Healey, 18 Law Jour. 241, C. P.

2 Rex v. Alderton, Sayre, 280; and, to the like effect, Hawkes v. Hawkey, 8 East, 427; Savage v. Robery, Cowper, 680.

3 Commonwealth v. Snelling, 15 Pick. 335; Moseley v. Moss, 6 Gratton, 534; Cooper v. Greeley, I Denio, 360; Harvey v. French, I Cr. & M. 1; affirmed 2 Mo. & Sc. 591; Gage v. Shelton, 2 Rich. 242 ; Giles v. The State, 6 Ga. 276; see § 338,

ante.

4 Thomas v. Crosswell, 7 Johns. 264; Crosswell v. Weed, 25 Wend. 621; Carter v. Andrews, 16 Pick. 1; Carroll v. White, 33 Barb. 621; Hudson v. Garner, 22 Miss. (1 Jones), 423; Rodebaugh v. Hollingsworth, 6 Ind. 339.

Gardiner v. Williams, 2 Cr. M. & R. 78; 3 Dowl. Pr. Cas. 796.

Benaway v. Conyne, 3 Chand. (Wis.) 214; Barrett v. Long, 3 Ho. of Lords Cas.

Roberts v. Camden, 9 East, 93; and see Day v. Robinson, 4 Nev. & M. 841; West v. Smith, 4 Dowl. 703.

8 Squier v. Gould, 14 Wend. 159; Strang v. Whitehead, 12 Id. 64; Roberts v. Roberts, 5 B. & S. 385; Kelly v. Huffington, 3 Cr. C. C. 81; Birch v. Benton, 26 Mo. (5 Jones), 155; Johnson v. Robertson, 8 Porter, 486; Barnes v. Trundy, 31

2

the language is actionable per se, special damage need not be alleged; but if the language is not actionable per se, special damage must be alleged. Allegations of special damage are not traversable. They are inserted in the complaint to apprise the defendant of what he must be prepared to rebut on the trial. Where the declaration set forth that the plaintiff was a ship-master, the words defaming him as such, and that, by reason of the same, "certain insurance companies in the city of New York refused to insure any vessel commanded by him, or any goods laden on board any vessel by him commanded;" Held, that the allegation was too general, and that proof could not be given under it of the refusal of a particular company to insure the plaintiff's vessel.3 Where the allegation was that certain persons, naming them, who would otherwise have employed plaintiff, refused so to do; Held, that the allegation was not supported by evidence that certain other persons would have recommended plaintiff to the persons named in the declaration, and that if the plaintiff had been so recommended, the persons named in the declaration would have employed him; the not employing being not on account

Maine (1 Red.) 321; Bostwick v. Nicholson, Kirby, 65; Bostwick v. Hawley, Ib. 290; Shipman v. Burrows, I Hall, 399; Harcourt v. Harrison, Ib. 474; Geare v. Britton, Bull. N. P. 7; Wilson v. Runyon, Wright, 651; Bassil v. Elmore, 65 Barb. 627. Nor to give evidence of a general loss of reputation. (Herrick v. Lapham, 10 Johns. 281.) A complaint for words in writing charging insanity need not allege special damage. (Perkins v. Mitchell, 31 Barb. 461.) So in an action by one of several partners. (Robinson v. Marchant, 7 Q. B. 918.) In an action for defaming one in his trade no allegation of special damage is necessary. (Ingram v. Lawson, 6 Bing. N. C. 212; Foulger v. Newcomb, 36 Law Jour. Ex. 169; Butler v. Howes, 7 Cal. 87.) In such cases the occupation supplies the place of special damage. (Ante, note I, p. 279.)

'Hicks v. Walker, 2 Greene (Iowa), 440. Where the language is actionable per se, special damage, although alleged, need not be proved. (Cook v. Field, 3 Esp. Cas. 133; Kelly v. Huffington, 3 Cranch C. C. 81.)

Malony v. Dows, 15 How. Pr. R. 265; Robinson v. Marchant, 7 Q. B. 918. 3 Shipman v. Burrows, 1 Hall, 399.