*324 By the Court,
Sutherland, J.The charge complained 0f jn declaration not having been made against the plaintiff by name, it became necessary for him to shew either by a or averments that he was the person intended, and that the defendant meant to be understood as charging him with having stolen his property.
The substantial words, that is, the words imputing the crime, were proved as laid in the first count. But the words which located the residence of the thief and designated the person intended to be charged, were not proved as laid. That part of the count is as follows : “ I (the defendant) will not call names for fear of being sued for slander; but the thief lives between here (the house of Putnam Bigelow where the words were spoken) and my house and the plaintiff then avers that he was the only person who lived between Bigelow’s and the defendant, and the averment is sustained by the evidence. But the words proved in relation to the residence of the thief are not that he lived between Bigelow’s and the defendant, but that he lived east of the defendant, and within two miles. ■ These are not only different words from those charged, but it is shown that several persons besides the plaintiff lived within two miles east of the defendant, and of course that they might as well have been intended as the plaintiff.
, But the plaintiff further avers the defendant, by means of the said words, insinuated and meant to be understood as charging him, the plaintiff, with being a thief and with having stolen his, the said defendant’s, hams, beef and flour, &c. and that the defendant was so understood by the persons in whose hearing the words were spoken. Whether such was the intention of the defendant was a question of fact to be determined by the jury upon the evidence presented to them upon the trial. (Van Vechten v. Hopkins, 5 Johns. R. 211.) Averments are the subject of proof, though inuendoes are not. (idem, and Starkie’s Slander, 304, ch. 20, and cases there cited.)
I think there was evidence, enough to go to the jury in support of the averment that the plaintiff was the person whom the defendant intended to charge, independently of *325the testimony of Bigelow and Foley, which was excluded by the judge. That the defendant intended to charge the crime upon some particular individual there can be no question. It was not a general allegation that his property had been stolen. But he declared that his wife saw the thief and would declare upon oath who she thought he was. That he lived in the neighborhood and east of defendants house and within two miles. The property was also alleged to have been stolen on the 3 d and 16 th of April; and the defendant told Andrew 3VL Foley that he had sent word to the plaintiff, by his son Ira Gibson, that if he did not stop driving his cattle that way he would put him in mind of the 3d and 16th of April. And Ira Gibson testified that such a message was sent by the defendant to his father by the witness. That the witness asked the defendant to explain what he meant by the 3 d and 16 th of April; but he did not explain. The testimony of Mrs. Foley upon this point is also entitled to some weight.
If the jury upon this evidence had found a verdict for the plaintiff, I think we should not have set it aside and granted a new tidal. A defendant who will couch his slanders in ambiguous terms, in the hope of blasting the reputation of his neighbour, without incurring any legal responsibility, cannot claim an indulgent construction of his words either from the court or the jury. The evidence, I think would justify the conclusion that the plaintiff was the person alluded to. The judge erred therefore in nonsuiting the plaintiff.
The testimony of Bigelow and Foley as to whom they understood the defendant to mean by the infamous thief, &c. was properly excluded. Mr. Starkie, in his Treatise on Evidence. (2d vol. 861,) seems to consider this species of evidence as admissible. He says the colloquium and other averments, which connect the words or libel with the plaintiff or subject, must next be proved. This is usually done, he remarks, by the testimony of one or more witnesses, who know the parties and the circumstances, and who state their opinion and judgment as to the intention of the defendant to apply Ms words or libel to the party or circumstances as alleged. It seems to be sufficient, he continues, if the witness in the first *326instance state his general belief and opinion as to the defendants mean{ng^ without disclosing his reasons, leaving it to the defendant, if he think proper, to enquire as to the grounds and reasons which support that conclusion. Mr. Starkie cites no case as authority in support of these positions, and it is believed that none can be found; nor is the doctrine asserted, as far as I have been able to discover, by any other writer upon the law of libel or the rules of evidence. It is an elementary principle in the law of evidence that the understanding and opinions of witnesses are not to be received except in matters of science, and a few other special cases, resting upon peculiar circumstances. (McKee v. Nelson, 4 Cowen, 355. Murray v. Bethune, 1 Wendell, 196.) It is the business of witnesses to state facts, and it is the province of the jury, under the direction of the court, to draw such inferences or conclusions from those facts as in their judgment they will warrant.
In Van Vechten v. Hopkins, (5 Johns. R. 211,) the plaintiff offered a witness to prove that from reading the libel he applied it to the plaintiff, and understood him to be the person intended. This evidence was overruled by Judge Spencer, who tried the cause, on the ground that it was the province of the court to determine, from a perusal of the libel, whether it was intended to apply to the plaintiff or not. Upon a motion for a new trial, it was held that whether the libel was published of and concerning the plaintiff was a question of fact which belonged to the jury and not to the court to decide. But it was also held that the evidence was properly excluded, and the court remark, that the intention of the defendant is not the subject of proof in the way here attempted. It is the mere opinion of the witness, which cannot and ought not to have any influence upon the verdict; and the judge who delivered the opinion of the court observed, that this kind of evidence had, he believed, frequently though he thought erroneously been admitted at nisi pirus. It is true that in that case there was no express averment that the plaintiff was the person to whom the defendant intended to apply the charge; but it is obvious that if there had been, it would not have altered or affected the views of the court to which I *327have adverted. If there had been such an averment, then the plaintiff might have introduced evidence in its support ; for an averment may be proved, an inuendo cannot. But an . /i ., , averment must he proved by competent evidence, and not by the opinions or understanding of witnesses.
Nonsuit set aside and new trial granted.