Curia,
per Sutherland, J.The three first counts in the declaration are unquestionably good. They contain a clear and explicit charge of the abominal crime against nature, in language which none of the hearers could misunderstand. The only question is as to the fourth count. If that is bad, the judgment must be arrested, the verdict being general.
The words in the fourth count are, (“ iff,” (meaning the said Issachar) “ has been with a sow, and I,” (meaning the" said Charles) “ can prove it.” What is the plain and natural import of these words ? and what idea are they calculated to convey to the by-standers ? Can it admit of a doubt, that ninety-nine persons out of an hundred would understand them as conveying a charge against the plainliif, of having had a criminal and unnatural connexion with a sow ? The enquiry is not whether the words could have been understood in any other terms, but whether that is the construction which common persons would naturally put upon them. (Roberts v. Cambden, 9 East, 96, per Ld. Ellenborough, C. J.)
In Peake v. Oldham, (1 Cowp. 272-3,) Ld. Mansfield says, “ where words, from their general import, appear to have been spoken with a view to defame a party, the Court ought not to be indusirious in putting a construction upon them different from what they bear in the common acceptation and meaning of them.” But this count goes on and avers, “ that (he words last aforesaid were so uttered and published by the said Charles, with intent and meaning to convey, and that the same were by the last mentioned citizens, in whose presence they were so uttered and published, understood and believed to convey a charge against the said Issachar, that he was a person of unnatural passions and appetites, and capable of committing, and had committed the detestable and abominable crime against nature, and that he, the said Charles, could prove it.”
*240If the words were of doubtful signification, it was the province of the jury to determine in what sense they were used. (Oldham v. Peake, 2 Bl. Rep. 961-2. Dexter v. Taber, 12 John. 260.) In Woolnoth v. Meadows, (5 Ectsi, 463,) the declaration contained an averment similar to this ; and Lord Ellenborough, in his opinion, (page 470.) speaking of the averment, says, “ Upon a count so framed, the plaintiff must have gone into other proof than the mere speaking of the words ; and he must have not only shewn that the defendant’s meaning was to impute a crime of that nature to the plaintiff, but that the words were so understood by the hearers.” So in Peake v. Oldham, (Cowp. 278,) Ld. Mansfield says, “ If the words had been shewn to have been innocently spoken, the jury might have found a verdict for the defendant. But they have put a contrary construction upon the words as laid, and have found that the defendant meant a charge of murder ; and he quotes, with approbation, the language of Lord Chief Justice Parker, who says, “ It is very odd, that after a verdict, a Court of Justice should be trying whether there may not be a possible case, in which words spoken by way of scandal, might be innocently said. Whereas, if that were in truth the case, the defendant might have justified, or the verdict would have been otherwiseIn this case, therefore, the jury, by their general verdict, have found the words to have been spoken and understood in the sense set forth in the averment. The motion must be denied.
Judgment for the plaintiff.