The same Term in the same Court. Reynor versus Hallet.

IN an Action upon the Case for these words, viz. Reynor is a base Gentle∣man, * he hath four children by his Servant Agnes, and he hath killed them all, or caused them to be killed; and after a verdict for the Plaintiff, it was moved in arrest of Iudgement by Jermy, that the words were not actiona∣ble:

For 1. As to the first words, Base Gentleman, they are but words of chol∣ler.

2. The next words, He hath four Children by his servant Agnes, cannot be actionable, for although she were once his servant, yet she might be after∣wards his Wife.

3. The Plaintiff hath averred in his Declaration, that he hath lived con∣tinently, and then he cannot have children by his servant Agnes, and then the words are not actionable.

And 4. For saying he hath killed them is not actionable, and upon this he cited one Snags Case, Co. lib. 4. who brought an Action for these words, Thou hast killed thy Wife; and it appeared by the Declaration, that his Wife was alive, and therefore it was resolved, that the words were not actionable.

And as to the last exception, it was said by Ashley Serjeant on the other side, that albeit the Plaintiff hath averred in his Declaration, that he lived continently, and so in a manner confessed that he had no children, this is but for the aggravation of the offence of the Defendant: as when an Action is brought for calling one Thiefe, he avers that he lived honestly, and yet the Action will lye. But I confesse if the Plaintiff had averred that he never had any child, then it would be like to Snags Case, Co. lib. 4. 16. a. and that the A∣ction would not lye.

But in Anne Davyes Case, there she averred, that she was a Virgin of good fame, and frée from all suspition of incontinency; and the Defendant sayd that a Grocer had got her with child: Owen Wards Case in Cook, Book of Entries hath the same Declaration as this, and it was the President thereof. But Jermy moved another exception upon these words, he hath killed them, and doth not say Felony, which is not good, for he migt kill them in execu∣tion of Iustice, which is justifiable, Trin. 2. Jac. Willers Case in the Court, it was adjudged, that for these words, Thou hast stollen a peece, and I will charge thee with Felony, an Action lies not, because a péece is a word of doubt∣full signification.

And Trin. 20. Jac. It was resolved that these words (Agnes Knight is a Witch) were not Actinable: but it was answered of the other side. that upon the whole frame of these words, they cannot be intended but to be spoken ma∣litiously, and there can be no pretenc• of lawfull killing of children: Dode∣ridge, all the words joyned together are actionable; but these words only considered, he hath four children by his servant Agnes, are not Actionable, and albeit he doth not alledge it felony, yet this is a scandall, and good cause of Action. Jones agreed, and yet he conceived, that for saying singly, that one hath a Bastard, an Action lies not, albeit the having of a Bastard be punisha∣ble by the Statute of 18. Eliz. cap. 1. But by him he hath killed the King. Page  188 shall be taken in pejori sensu; otherwise it is, if the words of themselves be in∣different, as (Pope) and this word shall not be the rather taken in pejori sen∣su, having relation to all the sentence: for the contrariety of the Declara∣tion, it seems to me, that the Declaration is good enough, but if one saith, Thou hast killed J. S. where in truth, there never was such a man, it is not actionable.

But here the Averment of the Plaintiff is more generall, Ubi re vera, he is not guil•y or incontinent, which is a general allegation: but if he had averred ubi re vera, he never had any child, there peradventure the Action would not lye, but here it will: Whitlock Justice agreed, and he sayd that the first words, hath had four children by his Maid Agnes are actionable, and for the other matters they agreed, whereby Iudgement was given for the Plaintiff.