Peterson v. Sentman

Brent, J., delivered the opinion of the Court. The first and principal question presented upon this appeal, is one of pleading. The declaration after averring that the plaintiff is a feme sole, and a housekeeper, and has always been a virtuous, modest and chaste citizen, &c., alleges that in a certain discourse in and about the plaintiff’s character and reputation for chastity, the ¹⁵³ defendant falsely, scandalously and maliciously spoke and published of her character and reputation for chastity, the following words: “you,” (meaning the plaintiff,) “are a bad woman, and keep a bad house, and 1 can prove it,” meaning thereby to charge that the plaintiff was not a chaste woman, was a whore, and kept a common bawdy house.” The same allegations are substantially made in the other two counts in the declaration, and what is said of the first, will equally apply to them. It is contended by the defendant, that the declaration contains no sufficient colloquium to support and warrant an innuendo, that in saying the plaintiff kept a “bad house,” the defendant meant thereby to charge, that she “kept a common bawdy house,” and in this view wo concur.

Charging a person with keeping a “bad house” is not in itself actionable. The words, however objectionable they may be, admit of other constructions, which readily suggest themselves to the mind, than that given to them by the plaintiff. To say that a person keeps a bad house may mean a disorderly house, or one that is dirty or comfortless. So indefinite is their meaning, that to render them the foundation of an action like the present, the declaration must set out such a statement of circumstances under which they were used, or of the subject matter of the conversation, as will indicate that they were applied in a sense imputing to the plaintiff the wrong complained of.

But this, under a rule of pleading firmly established by all the authorities, must be done through a colloquium and not by way of innuendo, the only object of which is to point to and explain what has before been introduced in the declaration.’ Unsupported by the necessary allegations of a colloquium, the innuendo can never be taken to expand or enlarge the meaning of the words used, and give to them a particular meaning, ¹⁵⁴ different from that in which they would be ordinarily understood in their more innocent signification. Words will not be construed to impute a crime, if in their milder sense they have another and more harmless meaning, unless the connection in which they are used and applied would give to them that effect. The office of the colloquium and innuendo, in actions of this description, is very satisfactorily stated in the case of Van Vechten vs. Hopkins, 5 Johns. R., 211, (1 Amer.

L. C., 117.) In illustrating the proper office of these distinctive parts of a declaration, the Court refer to Barham’s Case, 4 Coke’s R., 20, and say of it — “Barham brought an action for the defendant’s saying of him, £ Barham burnt my barn,’ (innuendo) £a barn with corn.’ The action was held not to lie; because burning a barn, unless it had corn in it, was not felony.” “But,” says De Gerrby, O. J., in Rex vs. Horne, (3 Cowp., 184,) “if in the introduction it had been averred that the defendant had burnt a barn full of corn, and that in a discourse about that barn the defendant had spoken the words charged in the declaration, an innuendo of its being the barn full of corn would have been good; for by coupling the innuendo in the libel with the introductory averment it would have been complete.” “ Here the extrinsic fact, that the defendant had a barn full of corn, is the