#### Mary Watts v. John M. Greenlee.

From Burke.

In declaring for slander, the office of an innuendo is to connect words not in themselves actionable, with some precedent fact formally averred, which explains their meaning.

Words not in themselves actionable., cannot be rendered so by an innuendo, without a prefatory averment of extrinsic facts which explains their meaning, and makes them slanderous.

Hence, when the words were, “ all W’s girls are big,” and the declaration contained no averment of a fact affixing a slanderous meaning to the words, an innuendo, affirming- the meaning to be “ big with child to negro B,” was held to be insufficient, and the declaration to be defective.

The word “publish” is insufficient in a declaration for slander, without charging the words to be spoken in the presence and hearing of others.

The act of 1808 ( Rev, ch. 748,) has given a precise meaning to the term “incontinent,” and having rendered a charge of it against a woman actionable, a Count, charging the Defendant with saying the Plaintiff is “ incontinent,” without prefatory mutter, and without an •innuendo, is good.

After the new trial granted in this cause at June Term, i 827, (Ante, 1 vol. 210,) it was again tried on the. last Circuit, before M AN gum Judge. A verdict was return*116ed for the Plaintiff and after discharging1 rules for a new trial and in arrest of judgment, judgment was rendered for the Plaintiff. It is unnecessary to state the grounds Up0tl which these rules were discharged, as tiie cause was disposed of in this Court, upon a point not brought to the notice of his Honor, on the Circuit.

June, 1829.

The declaration was in the following words :

“ Mary Watts complains of John M. Greenlee, in custody, &c. of a plea, &c. and whereupon the said Mary, by, &c. complains that she being'-a person of good fame and reputation, and so esteemed by all persons, and never having been guilty of the infamous acts imputed to her by tile said J. M. G. as hereinafter stated — nevertheless, the said J. M. G. being an evil-minded person, and intending to slander her in her good name, fame and character, on, &c. in, &.c. did falsely and maliciously publish of her the said M. W. the following scandalous words, to wit, “ she the said M. is big. (meaning big with child to his negro Sen,) That all Waite’s girls (meaning the said M. W. as one of said girls,) is with child to negro Ben.” He the said J. M. G. knowing, &c.”

There was another count, similar to the above in all respects, charging the words as being, “she (meaning the said M. W.) is incontinent.”

Gaston and Badger moved in arrest of judgment.

1st. Because the words “ she is incontinent,” unaccompanied by any averment, do not convey the idea of a want of chastity. They contended that the declaration ought to contain a clear and technical statement of all facts, necessary to enable the Court to see upon the face of the record, that the words were defamatory — . That the statement of the words was not accompanied with an averment, alleging them to be spoken of and concerning the chastity of the Plaintiff, and there being no colloquium to that effect charged, the omission could not be supplied by an innuendo, For this was cited Rex v. Horne, (Cowp. 682,J — Starkieon Slander, 294, 295, 296 — 4 Hep. IS — Hawks v. Hawkey, (8 Mast. 427J— Peak v. Oldham, (Cowp. 275,J — Holt v. Scholefield. (6TJ. 691.)

*1172(1. That the words “she is big,” uñare.mpanied by any precedent averment, explanatory of their meaning, did not impute any slander of the Plaintiff: and for this the same reasons were urged, and the same authorities cited.

3d. That the declaration contained no avprment that ihe words were spoken in the presence and! hearing of any one — that the word publish.” taken singly, did not convey the idea of that kind of communication to the world, which caused the injury and gave the action.

Bevereux for the Plaintiff

contended that any defects in the declaration were aided by the verdict, and cited 1 Ghiti-y FI. 402 — 1 Sauiul. 228, «. 1 — 6 Comyn’s Big. Hammond’s Ed. 97". On the first point, he argued that the act of 1808, (Rev. c. 748,) had affixed to the word “ incontinent,’’ a precise and technical meaning, and had rendered words imputing to a female want of personal chastity, actionable in themselves. From this, lie urged, it should be inferred, that no colloquium nor innuendo was necessary, as their only use was to explain words in themselves innocent, and point out their actionable character. He contended, that there was a sufficient averment of publication — the word “ publish” meant “ to proclaim,” “ to make generally known,” “ to discover to mankind,” and this was equivalent to an averment of speaking “in the presence and hearing” of “'sundry persons.” On the authority of Taylor v. How, (Cro. E. 891,) he urged that the words “ publicly promulgated” were good, without saying “ in the presence and hearing” of others j and that the word “ publish” was exactly synonymous with the words “ publicly promulgate.”

Henderson, Chief-Justice.

Words not in themselves actionable, may be rendered so by a colloquium, or by something extrinsic, with the aid of an innuendo. In such cases, it is necessary that the colloquium, and extrinsic *118facts, commonly called introductory matter, should be put upon the record, that the Court may see that the jury have drawn a rational and probable conclusion. For notwithstanding the jury are the judges of the farts, and of all inferences to be drawn from facts, yet it is the province of the Court to decide, whether one fact can be inferred from another. Hence- arises the. distinction between relevant and irrelevant evidence. The Court decides the question, whether one fact can or may be inferred from another. — The jury determine whether the inference insisted on be correct or not, in ibe particular case. The- words are, “ all Watts’ girls are big.” There is no colloquium charged, by which any other than the ordinary meaning of the words can be given to them— They are to be taken, abstracted from any context, for none appears. The innuendo is, “thereby meaning, big with child to his negro Ben.” It is going far enough, and perhaps too far, without a colloquium, or introduction, to say that big, means big with child ; but there, cannot be the least pretence for saying, it means big with child by negro Ben. The innuendo therefore, which the jury have inferred, was quite unwarranted ; at least there is nothing stated, which shows that it was warranted. That must appear, or the declaration is bad j for otherwise juries would be quite arbitrary in giving to words such a meaning as they pleased. If this was the Defendant’s meaning, the words are actionable $ and liad a colloquium, or introductory matter been stated, which showed that this might have been (¡is meaning, it would have sustained the innuendo which the jury have affirmed. The verdict being general upon all the counts, and this being defective, the judgment must be arrested.

Other objections were made, which I will only slightly notice, the one before mentioned having put an end to the case. It is objected by the Defendant, that it is not seated that he gave publicity to the charge; that the word “ publish” does not sufficiently convey that idea. *119But for my part, I can scarcely conceive a word in language, which more definitely cosh eysiii ■ dea requisite in law, to support an action for speakicg slanderous words. Publish is to proclaim, to make known gone* rally. It needs not the epithet palam, \\ hieh was relied on, for palam promulgare is to publish.

It is objected that the words, “ the. Plaintiff is incontinent,” required a colloquium or introduction, to make them actionable. Incontinent is the word used in the statute ; it would be strange, that the Court should require the jury to tel! them the meaning of a word thus used, and the argument amounts to that. It is true, that where a statute declares, that he who commits a certain crime, murder for instance, shall suffer death without benefit of clergy, in an indictment on that statute, it is not sufficient to say that the Defendant committed murder, but it must be shown how. But in a civil action, the rule is different; it is not necessary to show how the Plaintiff is incontinent, with whom, for instance, there being no prosecution against her for incontinence. Tins would have been a more apt illustration than the case of murder. But the question is, what did the Defendant mean by the word incontinent, which cannot be understood, when generally applied to a female, to mean any tiling else but that she is unchaste. If there were facts, or cir-stances, which showed such was not his meaning, the Defendant should have shown them. It was not incumbent on the Plaintiffs to prove the reverse. But the errors in the Count before mentioned, are fatal.

Per Curiam. — Let the judgment be arrested.