ston and Andrew J. Hamilton, justices of the peace for day of The second count, without any colloquium or reference to the action at law, stated that on the day of April, 1857, in a conversation between the plaintiff and defendant, in the presence of divers citizens, the defendant, in the course of said conversation, falsely and maliciously spoke and published, to and of the plaintiff, these false, scandalous, malicious, defamatory, and insulting words, that is to say: "You [meaning the plaintiff] swore to a lie for one dollar and twenty-five cents"; thereby then and there meaning that the plaintiff was guilty of perjury. The defendant appeared and pleaded "not guilty," and also demurred to the declaration and each count VOL. XVI.-9 1860. July Term. Hogan V. Wilmoth. 1860. July Term. Hogan V. thereof; and the plaintiff took issue on the plea, and joined in the demurrer. The cause came on for trial in June, 1859, when the Wilmoth. court overruled the demurrer; and there was a verdict and judgment for the plaintiff for five hundred dollars. To this judgment the defendant, Hogan, obtained a supersedeas from the Circuit court of Rockbridge; but when the cause came on to be heard in that court the judgment was affirmed; and thereupon Hogan applied to this court for a supersedeas, which was awarded. There were several exceptions to rulings of the court in the progress of the trial in the County court; but they were not noticed in this court. D. E. Moore and Baldwin, for the appellant. DANIEL, J. Neither of the counts in the declaration is good as a common law count in slander. To say of a party that he swore to a lie is not of itself actionable 'at common law. Such a charge does not necessarily imply perjury. In case of a charge of forswearing, unless, from the accompanying words, it be clear that a judicial fors wearing was meant, the plaintiff must show upon the record that the defendant alluded to some particular forswearing which amounted to perjury. 1 Starkie on Slander, 355; Hopkins v. Beedle, 1 Caine's R. 347. The first count in the declaration, whilst it sets out in its prefatory or introductory statements that the defendant in error, before the speaking of the words by the plaintiff in error, had been examined on oath, and had given his evidence as a witness in an action depending before two justices of the peace, has no allegation or averment that the words complained of were spoken in relation to said evidence. In the colloquium, no allusion even is made either to the action aforesaid or to the evidence of the plaintiff in error, given therein. defect was fatal. Term. Hawkes v. Hawkey, 8 East's R. 427; 3 Strobh. R. 455; Sanderson v. Hubbard, 14 Verm. R. 462. The insufficiency of the second count is still more obvious. It is without any of the introductory averments of the first count. The averment in the innuendo, that the plaintiff in error, in speaking the words, meant to charge the defendant in error with perjury, cannot serve to supply the want of previous statements showing that the words were spoken in reference to sworn evidence given by the defendant as a witness on examination in a judicial proceeding. An innuendo is explanatory of subject matter sufficiently expressed before, and it is explanatory of such matter only; it cannot extend the sense of the words beyond their own meaning, unless something is put on the record for it to explain. Vanvechten v. Hopkins, 5 John. R. 211; Sheely v. Briggs, 2 Har. & John. 363; Porter v. Hughey, 2 Bibb's R. 232; Mosely v. Moss, 6 Gratt. 534. It seems to me quite clear also, that, unless certain provisions in the Code, which will be presently noticed, are to be construed as having altered the rules of pleading in the particular under consideration, neither of the counts can be sustained as a sufficient count for insulting words. In the case of Mosely v. Moss (just cited) this court held that the legislature did not design, by the act then in force, to interfere with the common law actions for defamation; that a party aggrieved might still proceed at the common law as if the statute had never been made, or might avail himself of the statutory remedy when applicable to his case; that if he proceeded under the statute he should declare under the statute, and that if he did not declare under the statute, his declaration, to be good, should properly charge words amounting to slander at common law; that Hogan V. Wilmoth. 1860. July Term. Hogan V. he could not blend charges for the statutory and the common law grievance in the same count; and that when, therefore, the plaintiff, on the face of his declaration, Wilmoth, treated the grievance as a common law defamation, he should be held to his own construction of the words, and required to make out such a case by his pleading and evidence, and, failing to do so, could not recover for an insult under the statute. It is true there is some apparent conflict between the decision of the court in Mosely v. Moss and its previous decision in the case of Brooks v. Calloway, 12 Leigh 466, inasmuch as the court, in affirming, in the last mentioned case, the judgment of the Circuit court, rejecting the plea of justification to the first count of the declaration-which, whilst it averred the words complained of to be slanderous, was plainly defective as a common law count for defamation-proceeded on the assumption that said count might be relied on, under the statute, though it neither averred that the words were insulting nor made any reference to the statute, to indicate that the action was founded on it. It is to be observed, however, that in Brooks v. Calloway there was no demurrer to the declaration, and that the main question discussed and considered was, whether, treating the first count as a count for insulting words under the statute, a special plea of justification to part of the words charged in said. count ought to have been rejected by the Circuit court ; whilst in Mosely v. Moss there was a demurrer to the declaration, in passing upon which the question how far the mode of declaring, in actions for defamation, had been regulated or affected by our legislation, was distinctly presented to, and fully considered by, the court; and that, of the four judges composing the court in the last mentioned case-all of whom concurred in sustaining the demurrer-three were also members of the court in Brooks v. Calloway, and had united in rendering the decision made in that case. 1860. July Term. Hogan V. The case of Mosely v. Moss is, therefore, I think, entitled to be treated as furnishing the rule on the subject, Wilmoth. as matters stood under our former statute. Such a rule is, as I conceive, in strict accordance with the general principles of pleadings, it being well settled, as a general rule, that,in a statutory action, the offence or act charged to have been committed or omitted by the defendant must appear to have been within the provision of the statute, and all the circumstances necessary to support the action must be alleged, or in effect appear on the face of the declaration. 2 Saunders on Pl. & Ev. 410. The propriety of the rule, too, it is worthy to be noticed, has been strongly vindicated by the decisions of one of our sister States. The State of Mississippi, at an early period, adopted our act of 1810, and, in cases arising under the statute there, the Supreme court, in repeated decisions, have uniformly held that, in counting under the statute, the declaration must contain an averment that the words, according to the common acceptation, were insulting, and calculated to lead to violence and breach of the peace, or some other averment of like import. Scott v. Peebles, 2 Smeedes & Marsh. 546; Davis v. Farrington, Walker's R. 304; Warren & wife v. Norman & wife, Ib. 387. It is argued, however, that the change in the law, as it was enacted in 1810 and in 1830-31, made by the second section of the one hundred and forty-eighth chapter, and the introduction into our system of the new provisions to be found in the forty-fourth section of the one hundred and seventy-sixth chapter of the Code, were designed by the legislature to effect, and should be treated by the courts as effecting, an entire abrogation of the rule in question, as declared in Mosely v. Moss; and that now, whether the plaintiff proceeds |