¶1By the Court,
¶2The motion for a nonsuit was properly denied. The first count is open to the objection that the innuendo attempts to enlarge the meaning of the words spoken, beyond the averment introductory to the speaking of the words. The introductory averment is, that the defendant, contriving and intending to have it understood *320and "believed that the plaintiff was intending to produce an' infant, and pretend that it was born of herself. The innuendo is, that the defendant meant, and intended, by the speaking of the words, to charge the plaintiff with attempting to produce a false and pretented child, as one born of herself and the said Elihu Weed, &c. It is well settled that the innuendo cannot enlarge the meaning of words spoken, beyond the averment of the intention by which the speaking of “the words is introduced, where the words themselves are ambiguous and do not necessarily impute crime.” The mere intention to commit a crime, without an attempt" by some overt act, is no offense; and had there been no other count, it would seem, by the rules of pleading, that no cause of action would have been alleged, and the nonsuit should have been granted, as no amendment was asked for or allowed. (Dias v. Short, 16 How. Pr. R. 322.)
¶3But the second count is open to no such criticism. In. that count the introductory averment and the innuendo are alike, and although the words spoken do not necessarily impute a crime, yet when looked at and understood in the light of the introductory averment and the innuendo, a criminal offense is clearly imputed to the plaintiff by the defendant. “The use of an averment,” says Van Ness, J., in Van Vechten v. Hopkins, (5 John. 211,) “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 what, it ought to be understood;. and to add matter to the plea to make doubtful things clear.” Here the defendant’s meaning in using the otherwise doubtful words is made clear to the court by the introductory averment; especially in-view of the extraneous fact alleged, to wit, the birth of the plaintiff’s child.
¶4But the evidence showing what was generally understood by “the Cunningham affair,” was improperly admitted. The question of the meaning of the language employed, and of the intention of the defendant in using it, was a question *321for the jury, upon the whole case, and not a matter to be established by the opinion or understanding of any witness, or number of witnesses. (Van Vechten v. Hopkins, supra. Gibson v. Williams, 4 Wend. 320. Maynard v. Beardsley, 7 id. 560. Dias v. Short, supra.)
¶5Smith, Knox and Johnson, Justices.]
¶6I am of opinion, also, that the evidence offered by the defendant, under the second answer, was improperly excluded. Under the decision of the court of appeals in the case of Bush v. Prosser, (1 Kern. 347,) it seems to me that evidence of the apparent and actual physical condition of Weed, the plaintiff’s husband, for a year and more previous to the birth of the child, was clearly competent for the purpose for which it was pleaded and offered. It was pleaded in mitigation of damages, and the evidence was offered for that purpose. Had the fact set up in the answer been proved, the obvious tendency of the evidence would have been to disprove, to a certain extent, malice on the part of the defendant, and to establish grounds for a sincere belief in his mind, that any issue springing from the marriage was impossible, and the alleged pregnancy and birth were pretence. It was offered as a partial defense only, bearing upon the question of damages. I think it falls exactly within the principle established in Bush v. Prosser, and that the evidence should have been received. What weight it was entitled to, and what influence it should have, upon the measure of damages, were questions for the jury to determine. It follows that there must be a new trial, with costs to abide the event.