the plaintiff with keeping "a house of ill-fame," without using the further words of the statute. It is said there are several kinds of houses of ill-fame, and that, as the matter is left by the pleader, the words must be taken to mean a house of illfame of a more innocent character that the one described in the statute. Both at common law and in common language the term "house of ill-fame," without words giving it a special application, means a house resorted to for prostitution. Bouvier defines a house of ill-fame to be "a house resorted to for the purpose of prostitution and lewdness." Thus to charge one with keeping a house of ill-fame is to charge the exact offense punished by our statute. The innuendo is sufficient in this respect, unless it is necessary, in alleging that a statutory offense was intended, to use the entire language of the statute. We do not think this strictness is required.

It is further insisted that if the words are sufficient to charge the crime described in the statute, the punishment of the crime is not an infamous one, and that the words are therefore not actionable. This claim is in view of the fact that by the statute of 1884 the punishment was changed from imprisonment in the state prison to imprisonment in the house of correction. But it is sufficient if the punishment is corporal; the place of confinement is not the test. The crime charged is one that involves moral turpitude and subjects the offender to imprisonment, and the words are therefore actionable: Redway v. Gray, 31 Vt. 292.

It is also objected that in neither count is there an averment that the plaintiff had a house. As regards the first and fourth counts, in which the defendant is charged with using words directly denoting the possession of a house, this is no defect. When the slanderous words themselves import the existence of the thing, it is not necessary to aver its existence: Townshend on Slander and Libel, sec. 308, note; 1 Chitty's Pleading, 403. The slander is the same whether the falsity of the charge relates only to the character of a house or includes the existence of one.

The defamatory words relied upon in the first count are: "She keeps a common open house; she is nothing but a whore, anyway"; and the meaning assigned is, that she kept a house. of ill-fame. The question is not, as assumed by the defendant, whether this is the only natural meaning of the words "common open house." In determining the meaning of this particular phrase, the language used is to be taken together,

and the question, then, is, What might the person to whom the words were spoken have properly taken them to mean? Might they not, without other aid, have naturally conveyed the meaning assigned by the innuendo? If so, the words are legally susceptible of the meaning charged, and the count is sufficient after verdict. The charge of keeping a common open house, standing alone, could not support an innuendo that a house of ill-fame was meant, without the aid of special prefatory averments. But when it is said of a woman who in the same connection is declared to be a prostitute that she keeps a common open house, we think the words are legally susceptible of the meaning here ascribed to them; and the jury has found by its verdict, that they were used by the defendant in that sense.

The important words of the second count are: "My mail won't come into a whore-house." The term used to indicate the character of the house is, in common language and acceptation, synonymous with the term used in the statute. But the defamatory words have no apparent connection with the plaintiff or her affairs, and their application must fully appear from the antecedent averments and colloquium. It is averred that the plaintiff was an applicant for appointment as postmistress, and that the defendant spoke the words of and concerning the plaintiff to prevent her obtaining such appointment. We think there should have been also an averment that the plaintiff had a house, and that the colloquium should have been framed to include it. Here the charge is made by an indirect reference, and the possession of a house is only implied.

In the third count, the defendant is charged with having referred to the plaintiff's house as a "stinking place," and an unfit place for the mail. This is alleged to have been followed by a question and answer as to the possible communication of some disease. The subsequent conversation is set forth as follows: "Why, is the character of Mrs. Posnett not in good standing?" "I do not think she is." "Is she in the habit of having men come there to her house, and lounge around and stay for hours at a time?" "I am sure she does that. She has men enough there most of the time." We think an innuendo which ascribes to the defamatory language of this count the meaning that the plaintiff kept a house of ill-fame goes beyond the fair import of the words. The words relating to the presence of men at her house are not in

themselves sufficient to carry this meaning, and there is no direct charge touching the plaintiff's character for chastity to give them aid.

The objections to the fourth count are confined to the points, already considered, in relation to the description given the offense in the innuendo and the want of an avernment that the plaintiff had a house.

The defamatory words of the fifth count charge the plaintiff with having a venereal disease. There is not a further suggestion in the language. It utterly fails to justify the innuendo that the plaintiff kept a house of ill-fame.

The several counts purport to be for words spoken upon different occasions. A general verdict was rendered upon all the counts. The second, third, and fifth counts are held to be insufficient, and the court has no means of determining upon which counts the damages were in fact assessed.

This being the situation, what disposition shall be made of the case? The courts are not agreed as to the procedure. One course is to end the suit by arresting the judgment. Another course is to award a venire de novo. In Haselton v. Weare, 8 Vt. 480, the court arrested the judgment, saying that this was in accordance with the settled rule in England. The court had before it English cases in which this course had been taken, but the English practice up to that time was far from uniform, and the other method has since prevailed. One of the cases relied upon by the court in Haselton v. Weare, 8 Vt. 480, was Holt v. Scholefield, 6 Term Rep. 691. But this case. was expressly overruled by Leach v. Thomas, 2 Mees. & W. 427, soon after Haselton v. Weare, 8 Vt. 480, was decided. In Leach v. Thomas, 2 Mees. & W. 427, it was said that this point did not appear to have been at all argued in Holt v. Scholefield, 6 Term Rep. 691; and in Corner v. Shew, 4 Mees. & W. 162, Parke, B., in stating that the point had been considered doubtful before the decision of Leach v. Thomas, 2 Mees. & W. 427, expressed surprise that such a doubt should have existed, inasmuch as the matter had been provided for by rules of court in both the king's bench and the common pleas as early as 1654. In Empson v. Griffin, 11 Ad. & E. 186, the court of queen's bench followed the decision in Leach v. Thomas, 2 Mees. & W. 427, and awarded a venire de novo.

The rule adopted in Haselton v. Weare, 8 Vt. 480, has never been cordially approved. In Word v. Scott, 13 Vt. 42, the ourt considered the question settled, but Redfield, J., referred

with evident sympathy to the regret expressed by Lord Mansfield in Peake v. Oldham, Cowp. 275, that such a rule had been established. In Camp v. Barker, 21 Vt. 469, and in Whitcomb v. Wolcott, 21 Vt. 368, the court vigorously criticised the rule, and indicated its intention to make all reasonable intendments in favor of a verdict, when some of the counts were good. In the latter case, the court referred to the modern English practice of awarding a venire de novo, where it could be done, as the true course, but considered that this could not well be done in a court of error. In Joy v. Hill, 36 Vt. 333, the motion in arrest was disposed of on the ground of a misjoinder of counts, the question whether the expressions in more recent cases had abrogated the law as declared in Wood v. Scott, 13 Vt. 42, being recognized, but not considered. In 1865, the difficulty was removed by statute, as far as declarations containing only counts for the same cause of action are concerned: Rev. Laws, sec. 913. In Dunham v. Powers, 42 Vt. 1, and in Kimmis v. Stiles, 44 Vt. 351, decided since this enactment, the counts not being for the same cause of action, it was considered that judgment should be arrested.

In view of the misapprehension under which the rule was adopted, the position afterwards taken in regard to it, and the modern vindication in the English courts of the earlier and better practice, we are inclined to extend the benefit of a new trial to cases like this. Upon a mistrial of this character, we think the law may conveniently and properly give the liti gants a more substantial justice than is afforded by an arrest of judgment. That the proposed action may properly be taken by this court is apparent from the settled practice of many courts of error. The nature of the proceeding is fully stated in Corner v. Shew, 4 Mees. & W. 162, above cited. The theory is, that the defect is in the verdict. The order is made, in the language of the ancient rule, "as upon an ill verdict." By sending back the case an opportunity is given to have the damages assessed upon the good counts only. The plaintiff will also be entitled to the usual privileges of amendment under the rules of the trial court.

Judgment reversed. New trial granted on condition that plaintiff pay defendant's costs heretofore incurred in the court below, and take no costs for that time in the event of a final recovery; and if a new trial is not desired upon these terms, plaintiff to become nonsuit. Cause remanded.

SLANDER-WORDS ACTIONABLE PER SE-As to what words are slandercus and actionable per se, see Morasse v. Brochu, 151 Mass. 567; 21 Am. St. Rep. 474, and note.

SLANDER-PRIVILEGED COMMUNICATIONS. As to what communicationa are to be regarded as privileged, see Byam v. Collins, 111 N. Y. 143; 7 Am. St. Rep. 726, and note; note to Shurtleff v. Stevens, 31 Am. Rep. 708-715; note to Vanderzee v. McGregor, 27 Am. Dec. 158.

SLANDER-INNUENDO. — Upon the subject of the office and nature of the innuendo, see note to Van Vechten v. Hopkins, 4 Am. Dec. 349–354; Hayes v. Press Co., 127 Pa. St. 642; 14 Am. St. Rep. 874, and note.