itself, and not the reason of the former speech, nor any diminution thereof*. Little stress, however, would probably be now laid upon this distinction, since, in common discourse, and is frequently intended to mean før. And even in the construction of legal instruments, instances are not unfrequent, where the vulgar and obvious acceptation of the word has been preferred to its strict grammatical signification. Brittridge brought an action for these words, "Mr. Brittridge is a perjured old knave, and that is to be proved by a stake parting the land of H. Martin and Mr. Wright." And upon motion in arrest of judgment, it was held, that although the words," thou art a perjured knave," without any more, would have been actionable; yet, that upon all the words taken together, no action lay; for the latter words 1extenuate the former, and explain his intent, that he did not mean any judicial perjury; and there -fore it was adjudged that the words were not acftionablese But it was said, that if the plaintiff's : counsel had disclosed the truth of the case in the declaration, the words would have maintained the action; for the truth of the case was, that in an action between Martin and Wright, the state of the controversy was, whether the stake stood upon the -26 5d3 79tfel sit pro COPACro. 3.014. B. L. N. P. 5. Hob. Rep. 106. Cro. Eliz. 857. Hob. 77, Brown). 2. God, b. 241. Hard. 7. All. 31. Sty. 66. ↑ 6 East, 486. Mo. 422. 1 Wils. 140. land of the one or the other, or indifferently as a boundary between their lands. And in that action the plaintiff was sworn as a witness; and, by the pretence of the plaintiff, had perjured himself. But this special matter was not disclosed, and therefore it was decided for the defendant*. Sir Edward Coke in his fourth report observes,: that, "In case of slander by words, the sense of the words ought to be taken, and the sense of them appears by the cause and occasion of speaking of them; for," Sensus verborum ex causa dicendi ac cipiendus est." And again, "God forbid that a man's words should be, by strict and grammatical construction, taken by parcels against the manifest intent of the party, upon consideration of all the words which import the true cause and occasion, which manifest the true sense of them." This rule is so clear, and so well established, that any further illustration of it would be nugatory; and the questions which may arise, upon which party shall the onus of proving, or dis-> proving the injurious intention and meaning be imposed? and how shall the defendant best avail himself of explanatory circumstances in his favour? will be afterwards considered under more appropriate divisions. 3dly. From the mere description of the circumstances constituting the offence... * 4 Co. 18. Yel. 10. 34. 2 Rol. Ab. 343. Mo, 666. In the older cases, much difficulty prevailed with respect to the actionable quality of words containing a mere enumeration of circumstances: it was doubt ed, in the first place, whether the circumstances, supposing them to be true, constituted an indict able misdemeanor in the second, whether the imputing such a misdemeanor was a sufficient ground of action? abrow vd samdir to Sout! The affirmative of the latter question has already been attempted to be shewn. With respect to the first point, it may be proper to advance a few observations. In considering the class of cases referable to this head, where offences have been charged not amounting to, but connected with, felony, it will be convenient to distribute them into imputations charging,tolly An attempt to commit a crime. mstt bret A solicitation to commit a crime, tetevendere Some preparation made in contemplation of the commission of a crime..: fa ders As to words charging an attempt to commit a crime.bets 1294 20 € 179 1 In the case of Sir Harbert Croft v. Brown. Coke C. J. observed, that, in ancient time,“ voluntas reputabatur pro facto;" and that if a person lay in wait to kill another, and upon his resisting, wounded but did not kill him, it amounted 3 Buls. 167. L to a felony at Common Law, and the offender was ousted of his clergy; that the intention, manifested by an overt act, constituted a felony. The learned judge then proceeded to intimate, that any words charging an overt act done in pursuance of a felonious intention, would be actionable. But that in the principal case, the words, "He keepeth men to rob me," were not actionable, since they did not charge any way-laying or overt act done. The words," He sought to murder me, and I can prove it," were held actionable. In this case it may be observed, the words imported more than a mere inclination to murder; since the term sought is shewn by the latter words to refer to some overt act capable of proof. But for the words, "Thout wouldest have killed me," it was held that no action lay, since intention only was charged. In Muney's caset. Coke C. J. and Houghton J. held the words, "Thou art a knave, and hast laid in wait to kill me; and thou hast hired one. W. to kill me," not actionable, because no act was laid to be done, but an intention only; and that a mere intent is not punishable. It is remarkable, that the lying in wait, and hir * Cro. Eliz, 308. + Dr. Poe's case, vid. 2 Buls. 206. 1 Vin. Ab. 440. pl. 9. ing an assassin to murder another, should be considered as nothing more than mere intention; and this decision seems very inconsistent with the subsequent doctrine of Lord Coke in Sir Harbert Croft's case*; notwithstanding therefore, this and some other contradictory authorities, it may be collected from a general view of the cases, that the charging any attempt to commit a felony is actionable, since such an attempt constitutes an indictable offencet. Where the words charge a solicitation to commit a crime. The defendant said, " Mrs. Margaret Passie sent a letter to my Mr. and therein willed him to poison his wife." After judgment for the plaintiff, it was assigned for error, that the words were not actionable; because they did not charge any act done; and that it was not like charging the plaintiff with lying in wait to commit a murder; but all the justices and barons, besides Kingsmill, held, that the action lay+. The defendant said, "Tibbot and one Gough agreed to have hired a man to kill me." And judg ment was given for the plaintiff by Wray C. J. and Fenner J. against the opinion of Gawdy.. * 3 Buls. 167. † 2 East, 6. Cro. Eliz. 747. cited by Williams J. Buls. 201. |