Tebbetts v. Goding

75 Mass. 254 | Mass. | 1857

Bigelow, J.

The practice act, St. 1852, c. 312, has not changed the rule of law, which requires the plaintiff in an action for slander to allege the extrinsic facts or circumstances which are necessary in order to give significance to the words spoken, and render them intelligible to the court and jury in the sense in which they were spoken, as importing a charge of crime. This is the office of a colloquium. By the note appended to the form of declaration in slander, in the schedule of forms annexed to the practice act, it is obvious that it is still essential to aver the facts and circumstances which render the words actionable.

The declaration in the present case is insufficient in this particular, , The words spoken by the defendant import no charge of crime. Standing by themselves, they do not even indicate whether the burning was intentional or the result of carelessness. This amounts to nothing more than that the act of the plaintiff caused his own mill to be destroyed, which night have been lawfully and innocently done.

Nor is the meaning of these words enlarged or changed by the preliminary averments in the declaration. It is not made to appear by them that the defendant at the time the words were uttered was speaking of the insurance on the building, or even that he knew that any such insurance existed. If that was not the subject of conversation at the time, and, a fortiori, if the defendant did not know of the insurance, he could not by the words charged have intended to accuse the plaintiff of setting fire to the building, with intent to injure and defraud the insurers. The case bears a strong resemblance to Bloss v. Tobey, 2 Pick. 320. Demurrer sustained.