Witnesses. had no lawful nor reasonable excuse or impediment to the contrary, but then and there wholly neglected and refused so to do, and by reason thereof, he the plaintiff was then and there forced and obliged to become nonsuited in the said action. And such proceedings were thereupon had, that afterwards, to wit, at the term [&c.], it was adjudged in and by the said court that the said E. F. should recover against the said plaintiff dollars, for his costs and charges by him laid out in and about his defence in that behalf, as by the record and proceedings thereof more fully appears; by means of which said several premises, he the plaintiff was not only forced and obliged to pay, and did necessarily pay the said E. F., the said sum of dollars, so recovered against him as aforesaid, but was also greatly hindered and delayed in the recovery of his damages in the plea aforesaid; and was forced and obliged to expend, and did necessarily expend, divers other sums of money, in the whole amounting to a large sum of money, to wit, the sum of dollars, in and about the prosecuting the said suit, and was and is, by means of the premises, otherwise greatly injured and damnified, to wit, at [&c.] aforesaid. [Another count may be added more general.] 2. For Fraud in Defendant falsely pretending that he could and would give Material Evidence for the Plaintiff, whereby the Plaintiff incurred great expense in Subpanaing him, whereas he knew nothing, and Plaintiff was Nonsuited. For that, whereas, on [&c.], at [&c.], and before the grievance herein next after mentioned, the said plaintiff impleaded one L. M. in the [state the court,] in a plea of [state the plea,] and in the declaration of the said plea had alleged that [state the allegation.] And the said L. M. had pleaded thereto, that [here state the plea,] and thereupon issue was joined in due form of law. And afterwards, to wit, on [&c.], at [&c.], the said issue was duly docketed to be tried at [place,] on [day,] and thereupon it became material for the said plaintiff, on the trial of the said issue, to prove that [state it,] and which the said plaintiff was fully enabled to do, by the evidence of one C. D. who resided in Charleston, in South Carolina, and out of this state, and for the taking of whose testimony. the said plaintiff intended to sue forth a commission to the said state of South Carolina. Nevertheless the said defendant in this suit well knowing the premises, and well knowing that he, the said defendant, could not give any evidence material or important, for the said plaintiff, on the trial of the said issue, but contriving [&c.], to wit, on [&c.], at [&c.], falsely, fraudulently, knowingly and wrongfully assured and represented to him the said plaintiff, that he, the said defendant, did know, and could and would, on the said trial, testify that [here state his representation.] And the said plaintiff then and there fully confiding in such false, [&c.], representation and assurance, so made as aforesaid by the said defendant, did then and there at the request of the said defendant,] cause the Witnesses. said defendant to be duly subpoenaed to give evidence on the aforesaid trial, at [&c.], on [&c.] And although the said trial was en and there had as aforesaid, and although the said defendant did then and t.. e duly attend the same as a witness, and was then and there called and sworn as such on behalf of the said plaintiff, yet the said defendant did not then and there, and could not testify to the facts, or any of them, so herein before represented and stated by him to the said plaintiff, in manner aforesaid. By means whereof the said plaintiff was then and there nonsuited at the said trial, and was compelled to pay out and expend, and did pay out and expend, divers large sums of money, amounting in the whole to five hundred dollars, as well for fees of witnesses as for attorney's and counsel fees, and lost the debt, [&c. state particulars of the loss,] all which the said plaintiff lost and was deprived of by the aforesaid false [&c.], representation and assurance of the said defendant, to the damage of the said plaintiff, [&c. Other counts may be added varying the statement, &c.] CHAPTER XVII. DECLARATIONS FOR LIBEL AND SLANDER. (a) 1. General form for a libel directly charging an offence, &c., and not requiring explanation by a special averment. 2. Second count for same. (a) For law, generally, see Steph. N. P. 2219, 2550; Com. Dig. Bac., and Stark. Ev. title LIBEL; Stark. on Slander. In general, three things are to be attended to in framing a declaration for libel or slander: 1st, The statement of extrinsic facts or circumstances, by which the words become actionable. 2dly, The colloquium, or averments that the libellous or slanderous matter relate to these extrinsic facts, and to the plaintiff; and 3dly, Connecting averments or inuendoes, by which such parts of the publication or words as want explanation are pointed or referred to the extrinsic facts which have been previously alleged. 1st. As to the statement of extrinsic facts or circumstances. If the words themselves are a direct unequivocal charge, and, per se, import slanderous or libellous imputations, and point directly to the plaintiff, as that “ A. B. has commited the crime of perjury," no extrinsic facts or circumstances need be averred. So, where the meaning can be collected from the defendant's own words, no averment ought to be made as to the existence of any circumstances to which the defendant might possibly allude; since it is now settled that it is perfectly immaterial to the maintenance of the action, whether the defendant invented the circumstances, or whether they really existed. Therefore, where the words are general, no explanation is necessary to render them more particular, if the words themselves impute a crime, &c. See Stark. on Sland. Wend. ed. 354, 355. But, in general, libels and slanders do not necessarily point to a particular individual, and the words themselves are often obscure and equivocal. Thus, if the defendant in conversation about the testimony of the plaintiff, upon a trial in which the plaintiff was examined as a witness, should say, "tell my landlord that he took a false oath on the trial;" it would be necessary, in order to show that the words were spoken of the plaintiff, that he was the landlord of the defendant. And as the words do not of themselves, according to the general current of decisions, import a charge of perjury, it would be also necessary, as in the form, post, No. 16, to state that an action was pending and trial had, in which the plaintiff was sworn and examined as a witness, &c., and that the plaintiff when speaking the words had intended to impute to the defendant the crime of perjury. It is, therefore, a general rule, that where a publication or words in their nature slanderous do not of themselves point to any particular individual as the person libelled or slandered, or the words are obscure or equivocal, and are not of themselves libellous or slanderous, it is necessary to allege by way of inducement, in the introductory part of the declaration, such extrinsic facts and circumstances as that, when read in connection with the libellous publication or words spoken, and with the inuendoes connecting the publication, &c., with the introductory matter, the conclusion will be inevitable, in the mind of the reader, that the plaintiff is the person intended to be slandered, and that the words themselves are slanderous. The extrinsic facts thus alleged in the introduetory part of the declaration, and pointed to by the colloquium and inuendoes, become as it were incorporated into the defendant's publication or slanderous words- become an integral part of the plaintiff's case, and the whole form one entire slanderous charge upon the face of the record. 16 Wend. 9; Saund. 242 a, n. (2) (3); 16 Pick. 1. With respect to the allegation of extrinsic facts, in reference to which the words are actionable, care should be taken not to allege too minutely, 3. For a libel not directly accusing the plaintiff of larceny, and requiring the aid of a special inducement. 4. For composing and publishing a libel not directly accusing the plaintiff of perjury, and requiring the aid of a special inducement. 5. Second count for publishing same. 6. Averment of special damage. 7. For a libel accusing the plaintiff generally of perjury, in an answer to a bill in chancery. 8. Second count for same, for words spoken. 9. By a servant against his master, for a written libel in a letter to a person who was about to employ him, who in consequence refused to take him into his employment. 10. For a libel on an attorney. 11. For a libel on a railroad company. 12. For a libel on the plaintiff's title. 13. For a libel by letter intimating plaintiff to be insolvent. 14. Skeleton of a declaration and second count, for verbal slander directly charging an offence, and not requiring explanation by inducement. and not to allege more than is necessary; for in such cases an omission or variance in the proof will be fatal, unless the objection to the proof relate to matters which may not only be taken distributively, but which neither bear essentially upon the libel or slander, nor affect its character, and enough be left to render it actionable. 10 Eng. C. L. Rep. 36, 24; 9 Eng. C. L. Rep. 156; 18 Eng. C. L. Rep. 173; 3 Eng. C. L. Rep. 453. If the matters referred to be material, and affect the charge in such a manner that the omission of it would alter the character of the libel, either in the degree in which it is charged to be injurious, or in the estimate of damages, the court will hold the plaintiff to strict proof. Cowp. 672; 18 Eng. C. L. Rep. 173; 3 Eng. C. L. Rep. 453. See 1 Chit. Pl. 8 Am. ed. 401 to 403. But if the extrinsic facts are mere surplusage, so that the words alleged in the declaration are actionable, independ ent of the extrinsic facts and the colloquium, the variance, &c., seems unessential. 3 Hill, N. Y. 572; 28 Eng. C. L. Rep. 151. 2nd. The colloquium and averments connected therewith allege, first, that the defendant held a discourse and usually that it was concerning the plaintiff; and secondly, that the libelous words were published, (or the slanderous words were spoken in the same discourse,) of and concerning the plaintiff; and if there be a previous statement of extrinsic facts or circumstances, it is also averred that the libelous matter was published, (or the slanderous words were spoken in such discourse,) of and concerning such extrinsic facts or circumstances. Thus, in the case just stated: "Tell my landlord that he took," &c.; the colloquium and averments connected therewith would be thus: "And the defendant, heretofore, to wit, on [&c] at [&c.], in a certain discourse which the defendant then and there had in the presence and hearing of divers persons, of and concerning the plaintiff, and of and concerning the matters and premises aforesaid, then and there, in the presence and hearing of those persons, falsely and maliciously spoke and published the false, malicious and defamatory words following, of and concerning the plaintiff,* and of and concerning the said evidence and testimony so given by the plaintiff on the said trial as a witness as aforesaid, to wit:" It will be perceived that the colloquium always connects, by its averments, the plaintiff and the extrinsic facts and circumstances, with the libelous or slanderous words set forth in the declaration. 3dly, The innuendoes. The office of the innuendoes, or connecting averments, is to explain such part of the libel or slanderous words as are equiv ocal, obscure, or need explanation. And for this purpose, the innuendoes, or connecting averments, can only point out or refer to the extrinsic facts, These words, "of and concerning the plaintiff," refer to the words spoken; the previous words, "of and concerning the plaintiff," refer to the discourse generally the difference is a subtle one, and worthy of the times of Aristotelian metaphysics, which left its traces upon the old English reports. The omission, however, of the averment, that the words were spoken of and concerning the plaintiff, although it be averred as above, that the discourse was of and concerning the plaintiff, may, if the slander or libel is in the third person, and do not itself point directly to the plaintiff, be visited by a special demurrer, even though the words themselves are set forth with the usual innuendo, viz: "He," (meaning the plaintiff,) &c. 1 Saund. 242 a, n. 3; 2 Hill, N. Y. 318, 282; 12 Wend. 135; 8 East. 427; and see 14 Eng. C. L. Rep. 83; 1 Com. Dig. tit. Defam. G. 7; 7 Johns, 359; 5 Johns. 211, 220; 1 Stark. on Sland. Wend. ed. 343; but it will be good after verdict. Id. 15. Skeleton of a form for slanderous words, not directly accusing the plaintiff of an offence, and requiring the aid of a special inducement, &c. 16. For accusing the plaintiff of having sworn falsely, &c., and containing a special inducement, &c. 17. By keeper of bathing rooms, for words imputing a propensity to commit an unnatural crime, spoken in answer to a question put to the defendant by a third person. 18. For accusing a school mistress of fornication. 19. For accusing a female of incontinence. 20. For slander of the plaintiff in his profession. 21. For slanderous words of the plaintiff in his trade or occupation. 22. By a tradesman, for words imputing that he would be insolvent shortly, the words not expressly naming him, and there being special damage. Another form for the like. 23. 24. For words actionable only in respect of special damage. 25. For procuring a third person to attend at a public auction room and slander the title of an estate that the plaintiff was about to sell. 26. Form for slander when words are spoken in other language than the English. &c., which have been previously alleged. Thus, if the words spoken are, "tell my landlord that he took a false oath on the trial," the innuendoes would be something like these: "tell my landlord (meaning the plaintiff) that he (again meaning the plaintiff) took a false oath on the trial;) meaning the said trial, and thereby then and there meaning that the plaintiff, in his said testimony on the said trial as a witness, as aforesaid, had committed wilful and corrupt perjury;) 21 Pick. 51; 11 Wend. 38; 1 Caine's Rep. 347; 20 Johns. 344; 11 Wend. 127, 140; 8 Wend. 573; 6 Johns, 82; 13 Johns. 48, 80; 3 Hill, N. Y. 572. The three parts of a declaration for a libel or slander have been here stated, because it is so common, in practice, to crowd into the innuendoes what should be averments in the introductory part of the declaration. The general rule, which should be ever kept in mind when framing declarations for libel and slander, is this: that an innuendoe cannot extend or enlarge the sense of the words beyond their own meaning, unless something be put in the previous part of the declaration for the innuendo to explain. It can in no case add or introduce new matter not previously stated. It cannot supply the want of a proper colloquium, nor of an averment of the introductory matter. The innuendo can simply explain what has been previously averred in the introductory part of the declaration, or in the colloquium, or other previous averments. Thus, for the words above mentioned, "tell my landlord," &c., although the colloquium stated that the words were spoken of and concerning the plaintiff, and the innuendo is also in the usual form, "tell my landlord (meaning the plaintiff,") &c: this would not be sufficient. Cro. Car. 420; 1 Stark. on Sland. Wend. ed. 344; 1 Saund. 243, n. 4; But the plaintiff should also aver in the introductory part of the declaration, as before observed, that he was at the time of the speaking of the words the landlord of the defendant. When the libelous or slanderous meaning is apparent on the face of the libel, or from the words themselves, the scandal is obviously actionable, innuendoes are unnecessary; and although they be in such case unnecessarily introduced, and be unsupported by prefatory averments, they are harmless and will not vitiate the declaration, provided they do not change the natural import of the words. 15 Eng. C. L. Rep. 350; 3 Hill, N. Y. 572; 28 Eng. C. L. Rep. 151. It is obvious that very great care is required in stating the words correctly; for the plaintiff must prove either the exact words laid in the declaration, or other words spoken in the same manner, which convey the same identical idea. But it is sufficient to prove part only of any one set of words alleged, if the part proved be itself intelligible and actionable, and the remainder be not a qualification of the part proved, nor necessary to render the part proved intelligible. 13 Eng. C. L. Rep. 424. See infra, n. (1). Among other reasons why the words proved should convey the identical idea alleged, is this: if the words are set out as conveying a different sense from those proved, and the court, notwithstanding, permitted the plaintiff to recover, it would give him the advantage of avoiding a plea of justification; for the defendant must, if he justifies, admit the words and meaning of the words as alleged, and justify them precisely as alleg |