Van Ness, J.
The decision of the questions arising in this case, will be greatly facilitated by first defining the meaning and office of an averment, a colloquium and an innuendo. The use in pleading of an averment, is to ascertain that to the court, which is generally, or doubtfully expressed ; so that the court may not be perplexed of ■whom, or of iwhat, it ought to be understood; and to add matter to the plea to make doubtful things clear. (System of Pleading, 121.) A colloquium, serves to show that the words were spoken in reference to the matter of the averment. An innuendo is explanatory of the subject matter sufficiently expressed before; and it is explanatory of such matter only; for it cannot extend the sense of the words beyond their own meaning, unless something is put upon the record for it to explain. This may be illustrated by Barham’s case. (4 Coke’s Rep. 20.) 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 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 [221]*221words 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.” (De Grey, Ch. J. in Pex v. Horne, Cowp. 184.) Here the extrinsic fact that the defendant had a barn full of corn, is the averment. The allegation that the words were uttered in a conversation in reference to that barn, is the colloquium ; and the explanation given to the words thus spoken, is the innuendo. (See also Hawkes v. Hawkey, 8 East, 427.) The application of these principles to the present case, will be seen in the sequel.
The averment of extrinsic matter, in this declaration, was for the purpose of showing that the libel was published, as it is expressly alleged to have been, “ of and concerning the plaintiff,1” And whether it was so published or not, is a question of fact, which it is the province of the jury, and not of the court to decide.
This has been so held in a great number of instances ; and is so reasonable and just a rule, that it cannot fail of receiving universal assent. Were the law not so, the jury, in case of libels, would be nothing, and the court every thing. In England, until lately, the court assumed the exclusive right to determine whether the writing charged, was or was not libellous. If the meaning and application of the libel, is also to be determined by the court, it would be going one step further; and nothing would remain for the jury but the single, and the rarely disputed fact, of publication.
In the very lucid opinion, delivered by Lord Ch. J. He Grey, in the house of lords, (in the case of The King v. Horne,) which contains a complete analysis of the law on this subject, he observes, that “ it may happen that a writing may be so expressed, and in such clear and unambiguous words, as that it may amount of itself to a libel. In such a case, the court wants no circum[222]*222stances to make it clearer than it is of itself. But if the terms of the writing are general, ironical, or spoken by way of allusion or reference, although every man who r&ads such a writing, may put the same construction upon it, it is by understanding something not expressed in direct words, and it being a matter of crime, and the party liable to be punished for it, there wants something more. It ought to receive a judicial sense, whether the application is j ust; and the fact, or the nature of the fact on which that depends, is to be determined by a jury.” In the case of The King v. Andrews, (9 St. Tr. 679.) which was one of the many prosecutions that followed the rebellion in 1745, (when it is presumed the judges of the English courts did not relax in asserting the rights which constitutionally appertained to their offices,) the prisoner was indicted for publishing a treasonable libel, in vindicating the rights of the pretender to the British throne. An objection was made, that it was not shown with sufficient certainty, that the pretender was meant to be designated by the words “ The Chevalier,” as he was called in the libel. Lord Ch. J. King, in his charge to the jury, commenting on this objection observes, “ The case here is a positive charge that the book the prisoner wrote, relates to the pretended prince of Wales ; and the matter of fact you are to try is whether it is so or no.” In another part of his charge he says, “ that the matter of fact you are to consider,” &c. To the same effect are many other cases in the books. (Roberts v. Campden, 9 East, 93. and the cases there cited. Oldham v. Peake, 2 Wm. Bl. Rep. 959.)
I do not, however, mean to deny that cases exist, in which the words in themselves were held to be so vague and uncertain, as that it could not be intended they were spoken of any person ; and where, for that reason, they could not be made actionable by an averment. I agree, too, that the court, and not the jury, are to judge whether [223]*223such uncertainty exists in the case now under consideration. Such for example are the cases of Leawkner v. Godnam, (3 Bulst. 249.) and Johnes v. Dovers, (Cro. Eliz. 496.) There are other cases again in which, as in the case now under consideration, the words in them- - selves amount to a libellous charge upon some particular person, but where that person is so ambiguously described, as that without the aid of extrinsic facts, his identity cannot be ascertained; but where, by the introduction of proper averments, and a colloquium, the words may, notwithstanding, be rendered sufficiently certain to maintain an action. Such is the case of Baker v. -, (Bulst. 72.) Wiseman v. Wiseman, (Cro. Jac. 107.) The case of Roberts v. Campden also recognises the same doctrine. The certainty in the latter kind of cases, is arrived at, by taking into consideration, both the extrinsic facts stated in the averments, and colloquium, and the whole of the libel, all of which must be submitted to the jury, under the direction and charge of the judge, as in other cases. The evidence may sometimes be so inconclusive as not to entitle the plaintiff to carry the cause to the jury, and in that event it would be the duty of the ■ judge to order a nonsuit. With these exceptions and qualifications, the application, or allusions in a libel are questions of fact, and the decision belongs exclusively to the jury.
This brings me to the consideration of the true question in this cause, viz.
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Van Ness, J.
The decision of the questions arising in this case, will be greatly facilitated by first defining the meaning and office of an averment, a colloquium and an innuendo. The use in pleading of an averment, is to ascertain that to the court, which is generally, or doubtfully expressed ; so that the court may not be perplexed of ■whom, or of iwhat, it ought to be understood; and to add matter to the plea to make doubtful things clear. (System of Pleading, 121.) A colloquium, serves to show that the words were spoken in reference to the matter of the averment. An innuendo is explanatory of the subject matter sufficiently expressed before; and it is explanatory of such matter only; for it cannot extend the sense of the words beyond their own meaning, unless something is put upon the record for it to explain. This may be illustrated by Barham’s case. (4 Coke’s Rep. 20.) 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 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 [221]*221words 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.” (De Grey, Ch. J. in Pex v. Horne, Cowp. 184.) Here the extrinsic fact that the defendant had a barn full of corn, is the averment. The allegation that the words were uttered in a conversation in reference to that barn, is the colloquium ; and the explanation given to the words thus spoken, is the innuendo. (See also Hawkes v. Hawkey, 8 East, 427.) The application of these principles to the present case, will be seen in the sequel.
The averment of extrinsic matter, in this declaration, was for the purpose of showing that the libel was published, as it is expressly alleged to have been, “ of and concerning the plaintiff,1” And whether it was so published or not, is a question of fact, which it is the province of the jury, and not of the court to decide.
This has been so held in a great number of instances ; and is so reasonable and just a rule, that it cannot fail of receiving universal assent. Were the law not so, the jury, in case of libels, would be nothing, and the court every thing. In England, until lately, the court assumed the exclusive right to determine whether the writing charged, was or was not libellous. If the meaning and application of the libel, is also to be determined by the court, it would be going one step further; and nothing would remain for the jury but the single, and the rarely disputed fact, of publication.
In the very lucid opinion, delivered by Lord Ch. J. He Grey, in the house of lords, (in the case of The King v. Horne,) which contains a complete analysis of the law on this subject, he observes, that “ it may happen that a writing may be so expressed, and in such clear and unambiguous words, as that it may amount of itself to a libel. In such a case, the court wants no circum[222]*222stances to make it clearer than it is of itself. But if the terms of the writing are general, ironical, or spoken by way of allusion or reference, although every man who r&ads such a writing, may put the same construction upon it, it is by understanding something not expressed in direct words, and it being a matter of crime, and the party liable to be punished for it, there wants something more. It ought to receive a judicial sense, whether the application is j ust; and the fact, or the nature of the fact on which that depends, is to be determined by a jury.” In the case of The King v. Andrews, (9 St. Tr. 679.) which was one of the many prosecutions that followed the rebellion in 1745, (when it is presumed the judges of the English courts did not relax in asserting the rights which constitutionally appertained to their offices,) the prisoner was indicted for publishing a treasonable libel, in vindicating the rights of the pretender to the British throne. An objection was made, that it was not shown with sufficient certainty, that the pretender was meant to be designated by the words “ The Chevalier,” as he was called in the libel. Lord Ch. J. King, in his charge to the jury, commenting on this objection observes, “ The case here is a positive charge that the book the prisoner wrote, relates to the pretended prince of Wales ; and the matter of fact you are to try is whether it is so or no.” In another part of his charge he says, “ that the matter of fact you are to consider,” &c. To the same effect are many other cases in the books. (Roberts v. Campden, 9 East, 93. and the cases there cited. Oldham v. Peake, 2 Wm. Bl. Rep. 959.)
I do not, however, mean to deny that cases exist, in which the words in themselves were held to be so vague and uncertain, as that it could not be intended they were spoken of any person ; and where, for that reason, they could not be made actionable by an averment. I agree, too, that the court, and not the jury, are to judge whether [223]*223such uncertainty exists in the case now under consideration. Such for example are the cases of Leawkner v. Godnam, (3 Bulst. 249.) and Johnes v. Dovers, (Cro. Eliz. 496.) There are other cases again in which, as in the case now under consideration, the words in them- - selves amount to a libellous charge upon some particular person, but where that person is so ambiguously described, as that without the aid of extrinsic facts, his identity cannot be ascertained; but where, by the introduction of proper averments, and a colloquium, the words may, notwithstanding, be rendered sufficiently certain to maintain an action. Such is the case of Baker v. -, (Bulst. 72.) Wiseman v. Wiseman, (Cro. Jac. 107.) The case of Roberts v. Campden also recognises the same doctrine. The certainty in the latter kind of cases, is arrived at, by taking into consideration, both the extrinsic facts stated in the averments, and colloquium, and the whole of the libel, all of which must be submitted to the jury, under the direction and charge of the judge, as in other cases. The evidence may sometimes be so inconclusive as not to entitle the plaintiff to carry the cause to the jury, and in that event it would be the duty of the ■ judge to order a nonsuit. With these exceptions and qualifications, the application, or allusions in a libel are questions of fact, and the decision belongs exclusively to the jury.
This brings me to the consideration of the true question in this cause, viz. was there sufficient evidence in this case to warrant the jury to find that the plaintiff was intended to be charged as being one of the parties to the corrupt agreement stated in the libel ? If this should be decided against the plaintiff, a new trial would be useless ; for notwithstanding it is the right of the jury to determine this fact, yet if in the opinion of this court, they would not be authorised, by the evidence, to find for the plaintiff, we should set the verdict aside. [224]*224Before I proceed to consider this question, it is neces- . . saiy to state certain rules of law, which are to govern m the determination of it. In the case of The King v. Horne, already often adverted to, it is laid down, “ that the crime of a libel consists in conveying and impressing injurious reflections upon the minds of the subject; if the writing be so understood by all who read it, the injury is done by the publication of these injurious reflections, before the matter comes to the jury and the court. And if courts of justice are bound by law to study by any one possible or supposable case or sense, in which the words used might be innocent, such a singularity of understanding might screen an offender, but it would not recall the words, or remedy the injury. It would be strange to say, and more so to give out, as the law of the land, that a man should be allowed to defame in one sense, and defend himself by another.” (De Grey, Ch. J.) In the same case, Lord Mansfield, lays down the same rule. (See also, as to this point, Lord King’s charge to the jury, in The King v. Andrews ; and Woolnoth v. Meadowes, 5 East, 463.) With these rules for our guide, let us consider the facts stated in the libel, and the proof given at the trial. The plaintiff, it was proved, was a member of the legislature. The libel states that when Lansing, in the plaintiff’s office, made several severe remarks on the political character of governor Lezvis, the plaintiff told him, by way of caution, “ these severe remarks which you have made, won’t do, for we have agreed to support him at the ensuing election.” The obvious import of the word we, as here used, taken into connection with what precedes, and follows it, and as it would be understood by all the world, is that the plaintiff was one of those who had agreed to support governor Lewis. Immediately after the plaintiff had communicated to Mr. Lansing the existence of this agreement, he is represented to have produced the [225]*225Written articles of the coalition, subscribed by IS or 20 persons, principally quid and federal members of the legislature, (a description which may embrace the plaintiff,) which he submitted to Lansing's perusal. For what purpose ? Most clearly, I think, as containing the evidence of the agreement previously spoken of, and to which the plaintiff avowed himself to be a party. But the libel does not stop here. • The plaintiff is said to have produced the written agreement; and hence it appears, that he was intrusted with the custody of it. Does not " this fact, connected with the other circumstances, lead the mind irresistibly to conclude, that he was intended to be charged as being a party to it ? Upon this brief statement of the facts, I think the defendant’s intention is so palpably clear and certain, as to preclude the possibility of a difference of opinion respecting it. Indeed, it strikes me that there is not even the appearance of an attempt to disguise it; and such, I presume, would and ought to have been the conclusion of the jury, if the case had been left to them, as according to my view of the law it ought to have been. Upon this ground, I am of opinion, that there ought to be a new trial.
There is another point in the case, upon which, in the-view I have taken of the subject, it would not be necessary for me to express an opinion. As it may, however, embarrass the parties, on a future trial, (if there should be any,) it may as well be disposed of. I allude to the exclusion by the judge, of the testimony of the witness who was called to say, that from reading the libel, he applied it to the plaintiff. This evidence was properly overruled. The intention of the defendant is not the subject of proof, by witnesses, 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. I consider the evidence as inadmissible, because it goes to ■ [226]*226prove the correctness of an innuendo. This kind of evidence, I know, has frequently, though I think err oneouslv, been admitted at nisi prius. From what has been sa*d before, of the nature and use of an innuendo, tech-so called, it is clear that it cannot be the subject of proof by witnesses : Not so of an averment 'and colloquium, which introduce into the pleading extrinsic matter, which is the proper subject of proof. This is fully stated by Mr. Pollexfen, who was afterwards chief justice of the common pleas, in his able argument in Rosewells case. (3 St. Tr. 1058,1059.) “ I never knew,” says he, “ an innuendo offered to be proved and his doctrine was admitted both by the court, and by the attorney~ general, in his reply.
My opinion, therefore, is, that the nonsuit should be set aside, and a new trial be awarded.
Kent, Ch. J. Thompson, J, and Yates, J. were of the same opinion.
Spencer, J.
My brethren think that I erred, at the cirT cuit, in nonsuiting the plaintiff; and that it should have been submitted to the jury to determine, whether from the whole matter contained in the libel, the plaintiff was charged with being one of the persons who had subscribed the articles of coalition. If the libel warrants the idea, that the plaintiff was charged with subscribing the articles of coalition, then undoubtedly, instead of non-suiting the plaintiff, the jury should have been charged to find a verdict for him.
The rejection of the witness called at the trial, to give a construction to the libel, unaided by any circumstances within the knowledge of the witness, except what he obtained from reading the libel, my brethren think correct; and indeed it se ms to me, that to permit a witness to be heard on the construction of a paper, and to give his [227]*227Opinion, in aid of the court and jury, is against every principle of law. It would be giving up the prerogative of the court, and this too most unnecessarily. The legal effect of every paper produced in evidence, is matter for the decision of the court; and why it is not equally so upon a libel, when its construction and import come in question, I am at a loss for a reason.
It would appear to me, to follow, as a necessary consequence, if the rejection of the witness coming to construe the libel, was correct, that then, the construction appertained to the court, as matter of law. Let me not bej understood to say, that it is the business of the court, in all cases of libels, conclusively to give that construction ;| for whenever there are matters of fact, arising from the| innuendoes, which become contested, then it is peculiarly! within the province of the jury to pass on those facts. In the present case, there were no such facts ; for the only ¡ matters of fact proved, dehors the libel, were, that the plaintiff, at the time when the defendant charges in the libel, to have seen the corrupt agreement at the plaintiff’s office, as well as at the publication of the libel, was recorder of the city of Albany, and at the former period, was also a member of the assembly of this state, and that the plaintiff was the only person of the name of Abraham Van Vechten, resident in the city of Albany, and that he kept an office there. These facts were not as-: certained, and what then, were the jury to decide ? Whether from the terms of the libel, upon a fair and just construction of its several parts, the plaintiff was implicated as one of the subscribers to the articles of coalition ; and on what did this depend ? most undoubtedly upon the libel itself. In every view in which I can consider the case, it appears to me, that it became a question for the court to decide, what was the legal import of the libel, and whether the plaintiff was implicated as one of the subscribers to the corrupt agreement.
[228]*228What would have been the defendant’s situation, had the construction of the libel been submitted to the jury, an¿ had they found for the plaintiff ? There are imiten•* does in this declaration, not proved upon the trial, which might possibly have produced ■ a motion in arrest of judgment. I mean the innuendo in which the plaintiff avers that himself and several other leading federalists were meant and intended.
The principles in relation to actions for defamatory-words, as well as upon libels, are well settled ; that the person slandered or libelled must be certain, and that if words are uncertain and do not designate any particular person, no averment shall make them actionable ; (Roll. Abr. 81. l. 25. 79.) and that where words are ambiguous, and equivocal, and require explanation, by reference ; to some extrinsic matter, to make them actionable, it ; must no.t only be predicated that such matter existed, but also that the words were spoken of and concerning that matter. (8 East, 431. Cowp. 648.) If a person should say of three witnesses, one of you is perjured, none of them shall have an action. (Roll. Abr. 81.l. 25.) So in the familiar case, where a person was charged with burning a barn, innuendo, a barn full of corn, the innuendo was held to be irrelevant, and incapable of enlarging the words which were uncertain. Having premised thus much, I proceed to consider the libel. It is supposed the plaintiff’s alleged reply to Mr. Lansing, after rebuking him for his remarks on Governor Lewis, “ for we have agreed to support him at the ensuing election,” and the alleged production of the instrument, containing articles of coalition, the first of which was an engagement by several leading federal men, whose names were thereto subscribed, to support with all their strength and influence, the next election of Governor Lewis, in consideration of which the friends of Governor Lewis, whose names were thereto subscribed, should exert all their power [229]*229and influence to cause the election of 6'. Van Rensselaer, . . m the gubernatorial election of 1810, taken together, nnport that by the said several leading federal men, whose names were subscribed to the articles, the plaintiff was ... meant and intended, and is fairly designated.
Under the circumstances, as stated in the libel, what is the import of the expressions imputed to the plaintiff, for we have agreed to support him at the ensuing election.” It must be remembered, that this was urged by the plaintiff as a reason, according to the libel, why Mr. 'Lansing should not persevere in his remarks, and animadversions, upon the political character of Governor La •'is. And then the inquiry arises, in what sense the plaintiff must have spoken, as he is alleged to have done to Mr. Lansing ; whether in his individual capacity, or as one of a political sect, with whom Mr. Lansing was associated. It appears to me, indubitably, that the expressions, upon the most natural construction, import that the political party, to which both the plaintiff and Mr. Lansing belonged, had agreed to support Governor Lezvis, at the then ensuing election; and not that the plaintiff, and some others of the party, had individually agreed to support him. The supposed production of the instrument by the plaintiff, to verify his allegation, that that agreement had been made, does not necessarily implicate the plaintiff, if my construction is right, that the-terms he is supposed to have made use of, point to the political party to which he, Mr. Lansing, belonged; for if several leading federal men, had made that agreement, the plaintiff’s position, “ for we have agreed to support him at the ensuing election,” was as well maintained, as though the plaintiff himself had subscribed the paper.
The libel is considered as implicating the plaintiff as one of the subscribers to the corrupt agreement, by force of the expressions, that it was an agreement by several leading federal men, whose names were thereto sub[230]*230scribed. Now there is no proof in the case, to what poll- . , „ tical party the plaintiff belonged, or that he was'a leading federal man; so that for aught that appears, the plaintiff is not of the description of those who are alleged to have - subscribed the agreement. The declaration, indeed, contains the' averment, that by the several leading federal men, mentioned in the libel, the plaintiff and several other leading federalists were meant and intended. Whether the manner in which this is introduced into the de» claration, being there inserted as an innuendo, and not as a prefatory fact, would have entitled the plaintiff to give evidence that he was a leading federalist, I need not now examine, because no such evidence was offered or overruled. To set aside the nonsuit, on the ground that the cause should have been submitted to the jury, upon the evidence offered, is not only saying that it docs not appertain to the court to construe papers given in evidence, and to decide on their import and effect, when there are no extraneous facts in controversy; but it is also saying, that the expressions supposed to have been used by the plaintiff, “ for we have agreed to support him at the ensuing election,” imply not only that the plaintiff subscribed the articles of coalition, but that he was a leading federal man. These inferences appear to me un- . natural and unwarranted by the expressions. I therefore remain of the opinion, that the nonsuit was properly directed.
New trial granted.