Brown v. Brown , 14 Me. 317 ( 1837 )

The opinion of the Court was-afterwards drawn up by

Weston C. J.

There is no count in the declaration, averring in general terms, that the defendant charged the plaintiff with the crime of larceny. If-there had been, and such a charge maliciously made, was fairly to be extracted from the language of the defendant taken together, and was intended so to be understood, by those who heard it, the plaintiff’s case might have been made out, upon a count thus drawn and thus supported, according to the cases of Nye v. Otis, 8 Mass. R. 122, and Whiting v. Smith, 13 Pick. 364. There are, however, opposing authorities; and the principle upon which these cases rest, has not been adopted by any judicial decision in this State.

Three sets of words are set forth in the declaration ; neither of which do in themselves import a charge of larceny. To take logs, or to make away with logs, does not come up to that offence at common law, unless done with intent to steal. By the statute of 1831, c. 510, <§> 8, any person, who shall, fraudulently and secretly, take and convert to his own use logs, not his own, shall be adjudged guilty of stealing. But the words, set forth in the declaration, are not that the logs were fraudulently and secretly taken.

If the words used, were intended to fix upon the plaintiff the charge of larceny, they should have been preceded in the declaration by a colloquium, showing that intention. Holt v. Scholefield, 6 T. R. 691; Hawkes v. Hawkey, 8 East, 427. It is true, it is stated in the declaration, by way of inuendo, that the defendant meant to charge the plaintiff with the crime of stealing. The office of an inuendo is to apply the slander to the precedent matter ; but it cannot add to or enlarge, extend or change the sense of the previous words. 1 Saunders, 243, note 4. The words in the declaration, not in themselves importing a crime, are not enlarged or extended by the inuendo. The declaration, being therefore insufficient by the settled rules of law, applied to cases of this kind, is adjudged bad.