Opinion
(1793.)
Sir Simon Clark brought an action on the case against S. for saying of him the following words, viz., Sir Simon Clark kept Faulkner, the Jesuit, in his house a week, knowing him to be a Jesuit, etc., and a verdict was found for the plaintiff, with £ 100 damages — and now
Davenport, Serj., moved in arrest of judgment:
1. Because it is not averred when these words were spoken. As they may have been spoken before the 27 El., 2, which makes it penal to receive priests and Jesuits: For then it was not penal to receive them, but by that statute it is made felony.
*2. Because it is not averred that the Jesuit was born within the realm, as the statute requires it.
Crew, Serj., contra, showed an express precedent. Hill. 9 Jac. rot. 10484. Splint v. Smith. Thou hast harbored a seminary priest, the other answered: it may be so, and I not know it: the other replied: thy father, they mother, and thyself did harbor him, and did know him to be a priest: and an action on the case was brought upon those words, and adjudged that it lies, on account of the last words, knowing him to be a priest, and it is the same here, knowing him to be a Jesuit. And the record was read, and rule shown to proceed to judgment.
On view of which precedent it was adjudged per totam curiam that the action does lie.
There is a strong presumption that Faulkner, the Jesuit, in this case, is born in England, as the statute requires it; inasmuch as Faulkner is an English name.
And per totam curiam, the first exception was disallowed, because it shall not be intended that the words were spoken so long ago.
I confess that when words are dubious, they shall be taken in mitiori sensu. As if one says: I. S. hath the pox, it shall be understood the smallpox; but as to words in which there is a strong presumption that the party intended a scandal, the action lies; and thus it was adjudged in this Court, in Sydnam's case, that an action lies for these words, I. S. is laid of the pox. Quod nota. Here there is a strong presumption that the defendant intended to scandalize Sir Simon Clark.
And if the Jesuit was not born in England, still the action would lie for the scandal. The statute makes it felony to receive Jesuits born in England. Though it is not felony nor treason, yet it is a discredit to receive a foreign Jesuit. And it is sufficient, because if one says of I. S. that he harbors Swary, the Jesuit, in his house, it is well known that Swary is a Spaniard, and was not born in England. Still the action would be in this case, because I. S. is scandalized by this means. Judgment for the plaintiff. See Jones, 68; Rol., 69; Palm., 410; 2 Cr., 300; Bulst., 181; 1 Rol., 69. Postea, p. 690.