said society, wickedly, falsely, and maliciously spoke these false and malicious words of and concerning the said plaintiff, having been proposed a volunteer as aforesaid, that is to say, his character, meaning the character of the said plaintiff, is infamous; he, meaning the said plaintiff, would be disgraceful to any society; whoever proposed him, the plaintiff, must have intended it as an insult; I will pursue him, the plaintiff, and hunt him from all society; if his name is inrolled in the Royal Academy, I will cause it to be erased, and will not leave a stone unturned to publish his shame and infamy; delicacy forbids me, meaning delicacy forbade him, the defendant, from bringing a direct charge, but it was a male child of nine years old who complained to me (meaning that a male child of nine years old had complained to the defendant of some unnatural crime, committed by the plaintiff upon such child;) and the plaintiff avers, that the words so uttered and published by the said defendant were so uttered with the intent and meaning to convey, and that the same were, by the said persons in whose presence they were uttered and published, understood, believed, and taken to convey, that the plaintiff was a person of unnatural propensities, and had committed the horrid and detestable crime of, &c. There were several other counts to the like effect. Pleas: 1st, not guilty; 2dly, as to the words in the first count, that a certain male child of nine years old, to wit, one J. K. M. did complain to the defendant of an unnatural crime, before that time committed by the plaintiff upon such male child; for which cause, &c. 3d plea very similar, viz. that the said child complained of the committing the said crime in the declaration mentioned; 4thly, that the said plaintiff did commit upon and with a certain male child, to wit, &c. the horrid and abominable crime in the first count mentioned, and he complained to the defendant, &c.; 5th plea, to all the words in the other counts, a plea similar to the third plea; 6th plea, to all the counts the same as the fourth plea. 1804. versus MEADOWS. 1804. versus MIADOWS. The plaintiff in his replication joined issue upon not WOOLNOTH guilty; and demurred to the second and third pleas with causes "that the defendant hath not justified or answered the special matter in the said first count; nor averred that the complaints, in the said pleas mentioned, were true, or that the said defendant believed the same to be true; and the matters in the said pleas respectively do not amount to any traverse of the said first count, but are consistent therewith and afford no justification or excuse of the malice of the said defendant in the said first count stated; and the matters attempted thereby to be put in issue, are immaterial." To the fourth plea, de inju- a riâ suâ propriâ; to the 5th plea, demurrer, with the like causes as above; to the 6th plea, de injuriâ suâ propriâ. Joinder in the demurrers and the issues. SCARLETT, for the plaintiff, in support of the demurrers, cited Lord Northampton's case, and Davis v. Lewis,† and relied upon the distinctions there taken, that it is not a sufficient justification that the party who reports slander spoken by another, has actually heard what he reports, but he should, at the time, state the person from whom he has heard it; and his stating such person's name afterwards in his plea, is not a justification. That the better reason for this doctrine is, that he who so reports slander, stating the author of it at the time, does not give approbation to it, by adding to it his own authority. He also contended that, upon the same principle, the defendunt, in his plea, should acknowledge that the report was false; whereas, here, the defendant neither says that he did not himself believe the statement of the boy, nor that hedid not mean to repeat it as giving any credit to it. BURROUGH, for the defendant. "First, The pleas are a sufficient answer to the action; and, secondly, the declaration itself is defective. As to the declaration, it does * 12 Co. 135. + 7 Term Rep. 17. 1804. versus MEADOWH not, in any one count, contain an averment, that no boy made such a complaint. In former times this was re- WOOLNOTH quired, and it let the defendant in to prove the truth of the words upon the general issue. This is still requisite upon actions for words spoken by another person originally, and repeated by the defendant. Thus, in Crawford ▼. Middleton,* where the defendant met one going to gaol, he said he had met one, who told him that he should follow him soon, and bring the plaintiff thither for stealing a mare. These the words were laid to be spoken falsely and maliciously, as it should seem from the report, and yet it was held by three Judges, that the declaration was bad, because it did not state, ubi, re verâ, no one met him on the road, &c. Lord ELLEN BOROUGH, C.J. "Twysden, C.J.in that case, differed from the rest of the Judges, and his opinion seems to have been right; for, according to Lord Northampton's case, which was decided upon great deliberation, it would be immaterial whether any one met him or not, since he did not state his name. All the modern cases shew, that it is not necessary to deny the truth of the scandalous words in the declaration, otherwise than by stating them to be spoken falsely and maliciously." BURROUGH then contended, that the scandal was not alleged with proper innuendoes and a sufficient colloquium, to make it appear that the words used were libellous and were meant to convey a charge of an unnatural crime. They were words of abuse; but for any thing that appeared, a male child of nine years old might have made a complaint of some conduct towards a woman, which delicacy might have forbidden the defendant to name; and, in that sense, the words would not be actionable. SCARLETT, in reply, repeated Lord ELLEN BOROugh's 1 Lecing. 82. 1804. versus MEADOWS, observations upon the case of Crawford v. Middleton; WOOLNOTH noticed that the ancient doctrine of construing words in mitiori sensu, is exploded; cited the cases of Baker v. Pearce, and Phillips v. Kingston, t to shew the impropriety of that doctrine; and lastly contended, that the words, importing in the apprehension of all men of common sense, a charge of felony, were actionable, and were laid with sufficient averments and innuendoes. He added, that there was an averment, that the defendant used the words, with an intention to have it believed, that the plaintiff was guilty of an unnatural crime; and that the defendant, by his plea in justification must be taken to have admitted that averment to be true, and that such was his intention. Lord ELLENBOROUGH, C. J.. "This case comes before the court, upon a demurrer to several pleas, which attempt to justify the speaking of certain defamatory words, by stating, that a child of nine years old did, in fact, make the charge against the plaintiff conveyed by those words. But these pleas do not state the name of the child. They are in effect abandoned, as they certainly fall within the principle of Lord Northampton's case; by which it is held necessary for a person who repeats slander spoken by another, to disclose his name, in order to found an action against that other person; and that he must disclose the name when he repeats the slander, and is too late to justify himself by doing it in his plea. The question now before the court must, therefore, wholly turn upon the sufficiency of the counts in the plaintiff's declaration. As to the objection, that it ought to be stated, that no person had made the statement which is the subject of the slander, that is completely answered by Lord Northampton's case. That case shews that such an averment would have been unnecessary, because if the statement had been made, it would 1804. versus MEADOWS. have been immaterial, unless he had stated who told him of it, at the time of speaking the words. Recourse must WOOLNOTH therefore be had to the second objection; which is in effect, that these words, construed by the innuendoes, do not imply a charge of felony. I admit that an innuendo cannot extend the meaning, and can only explain what has gone before, by ascribing to the words, under the circumstances of the colloquium set forth, that meaning which they would naturally bear, in the minds of the bystanders. Upon this principle we are to consider in what sense the words here used are to be construed, and whether the innuendoes have assigned to them their proper meaning. The first part of the charge against the plaintiff, is, "that his character is infamous." As to this, there may be various degrees of infamy, but the next clause explains it to be of such enormity, that "he would be a disgrace in any society," and that he would pursue him and hunt him from all society. "Delicacy, it is said, forbids him to state the direct charge;" but "it was on a male child of nine years old." It was, therefore, something which might be the subject of a charge; it was something which violated morals, and rendered him unfit for all society; which would be a motive to pursue him even through the world. Are we to understand any person's meaning, if the import of these words is not sufficiently plain? We are not to look for astute distinctions, as to the meaning of the words, upon a demurrer, which admits the speaking, and does not go to issue upon the malice; we are not to construe them in mitiori sensu; but the common understanding of mankind is to be applied to them; and should we not violate all common sense, if we understood them as imputing less than a criminal act, for which, if true, the plaintiff might be punished? But it does not rest here. There is an averment, on this subject, which, without violating the rules concerning innuendoes, would, if it went to trial, put the meaning beyond a doubt. It is averred, x°.24. |