occasioned to the one to whom the promise is made, to give it validity. 1 Saund. 211. b. n. A mistaken supposition or belief of the parties, that the plaintiff may be liable to loss or damage is not sufficient. 3 Pick. 93, Cabot & al. v. Haskins & al. See also Coggs v. Barnard, 2 Ld. Raymond 919. Pillans v. Microp, 3 Burr. 1673. 2 Saund. 136 & note. Also 2 Bos. & Pul. 72, Parker v. Baylis. 5 Cranch 142, Violett v. Patton. 4 East 455, Jones v. Ashburnham. 10 Mass. 230, Lent & al. v. Padelford. 1 Caines 45, Miller v. Drake. 3 Johns. 100, Powell v. Brown. 3 T. R. 17, Nerot v. Wallace & al. 2 H. Black. 312, Pullin v. Stokes. 1 Taunt. 522, Williamson v. Clements. 8 Taunt. 371, Solly v. Weiss. 2 Barn. & Cres. 674, Bates v. Court. How far an express promise, founded on an antecedent moral obligation to pay, is sufficient to support an assumpsit, see 3 Bos. & Pul. 247, Wennal v. Adney, and the note. 13 Johns. 257, Smith v. Ware. 14 Johns. 378, Doty v. Wilson., 14 Johns. 468, Bently v. Morse. 2 Taunt. 184, Barnes v. Hadley. 5 Taunt. 37, Lee v. Muggeridge. 3 Pick. 207, Mills v. Wyman. [5 a] GARDINER vs. BELLINGHAM. Declaration that the defendant was indebted to the plaintiff in £- for agistment of beasts and for wheat et aliis mercimoniis is sufficiently certain in assumpsit. Jenk. Cent, 293. Ro. 1. R. 24. Co. 10, 77. a. 3 Cr. 100. ap. 18. 216. 21 7. 13. 1 H. 7. 1. 5 H. 11. Assumpsit. 9 Surrey 492. B. le Roy prædict. Tho In assumpsit certainty is Cro. 245,207, 397. 213, 598, RICHARD GARDINER brought an assumpsit against Thomas Bellingham, and declared that the defendant, in consideration that he was indebted unto the plaintiff in ten pounds four shillings ten pence, for agistment and Cr. Car. 131. feeding of certain beasts of his in the plaintiff's ground, and for wheat, et aliis mercimoniis per prædict. R. habitis Trin. 10 Ja. R. et receptis, did assume to pay to the plaintiff the said Excheq. Cham. debt, that he hath not paid it. Upon issue non assump- mam de. sit, it was found for the plaintiff, and seventeen pounds for debts, what five shillings four pence damages and costs, and judgment requisite given accordingly; upon this writ of error was brought in- 2 to the Exchequer Chamber. The error assigned was, that 668. Allen 20. there must be some certain cause of the debt assigned; 2 Cro. 642. ap. for it is no sufficient declaration to say where the defend- sur le case 108. ant was indebted to the plaintiff in ten pounds, and prom- 2 Cro. 77, 207, ised to pay it. But yet the judgment was affirmed, for 213, 598, 548. though it be not sufficient to say generally that he was indebted, because that may be for rents upon leases, debts upon specialities, yet this is certain enough, for well the wares and merchandizes, as the pasturing and wheat, are personal things, for which an assumpsit may lie, and may be turned into damages, and it requires not or as 14. Yelv. 175. 19. B. action Cro. Car. 32.6. ap. 88, 284. Yel. 1, 9, 17, 18, 20, 84. Cro. 343. Co. 494. a. Saund. 71. 2 Saund. 122. [5b] so much certainty, as if it were an action of debt upon the very contract. Ejectione. Jenk. Cent. 293. 2 Cr. 332. 1 Rol. 763. B. error, 117. Pop. 132. N.B. 20 e. Salop Ba. R. Exchequer Cham. 101. Error by the death of one not party to the writ. Error in fact out of the WILKES vs. Jorden. The death of one not party to the writ cannot be assigned for error; nor can any fact be assigned for error, in ejectment, to re-examine the title. THOMAS WILKES brought an ejectione firme against Rowland Jorden, upon a demise made of certain land, in Wharton Aston, by Edward Bridgeman; upon issue not guilty, it was found for the plaintiff, and judgment given that he should recover the possession of his term, and P. 9. Jac. Rot. eighteen pounds damages and costs. Hereupon error assigned was, that Edward Bridgeman was seized but in the right of Elizabeth his wife, and that he was dead before the day of the judgment; and so the lease determined; King's Bench. and therefore judgment to recover the term erroneous. It was over-ruled and judgment affirmed; for though it were agreed, that in the Exchequer, judgment may be reversed for errors in fact, as death of the parties, or the like, where the writ is absolutely abated, there is no 166. 3 Cr. 713. colour in this case, where the error depends upon the death of one, that is not party to the suit, and upon the title of the land; for the defendant may say that Bridgeman was seized in his own right, or the like, which were to re-examine the whole title in the writ of error. (1) 2 Cro. 5. 1 Cro. 514. 2 Cro. 657. p. Jones 4. 1 Yel. 208. (1) See 2 Saund. 46. a. n. 6. Williams v. Gwyn. 2 Saund. 100. n. 1. Jacques v. Cesar, 101. e. Dyer 90. a. 1 Leon. 261. Debt. Ro. 1. Rep. 1 787. Jenk. CROW VS. EDWARDS. Venue from a wrong place, though by consent of parties, is error. ROBERT CROW brought an action of debt upon an ob28. Ro Abr. ligation of sixty pounds against William Edwards, for Bulst. 216. the payment of thirtyone pounds ten shillings at Coven6. 47. a. Co. 8. try, issue taken that the money was paid at Coventry, and yet by consent of parties, and paper rule of court, Cent. 310. 1 Yel. 218. Co. 163. a. London, B. le Cham. Pasch. the issue was tried at London, and found for the plaintiff, [5 c] and judgment given; and upon judgment a writ of error Roy. Excheq brought in the Exchequer Chamber, and the judgment re- 7. Jac. Rot.47 versed; (1) for consent of parties may not change the by consent. law. (2) 5 Co. 36. b. & 40. b. ultra. Wrong visne Dyer 367. ul. tra. Visne from town, or parish in the record. V. ultra. 1 Inst. H. 6. 7. Trial of villinage (1) The fault assigned for error in this case is now aided, after verdict, by Stat. 16 and 17. Car. 2. c. 8, which enacts that no judgment Cook. 5. part. shall be arrested or reversed 'for that there was no right venue, so as Tr. 38 Eliz. the cause were tried by a jury of the proper county or place where the in Exchequer. action is laid.' This statute extends not only to those cases where there 1 Inst. 125. b. is a wrong venue in the proper county, but also to those, like that in the 51.b. Bayntext, where the cause has been improperly tried in a wrong county, and ham's case. 7. whether the objection appear on the record or not. 1 Saund. 246, Craft v. Boite, and note (3). 7 T. R. 583, Mayor &c. of London v. Cole. Another change was introduced by the Statue 4 Ann. c. 16. s. 6., which provides that 'every venire facias for the trial of any issue shall consent of the be awarded of the body of the proper county where such issue is triable,' parties, 44 E. instead of being awarded, as anciently, from the particular venue of pa- 8. 3. The derish, town or hamlet. The venire, therefore, now directs the sheriff mandants and to summon twelve good and lawful men &c. from the body of his coun- tenants consent, that two ty, and no part of them are necessarily summoned from the particular of the knights hundred, manor, parish, &c. in which the particular place laid for the in a writ of venue is situated. altered from natural trial by right shall be If the defendant would take advantage of a wrong venue apparent on esquires, althe record, in local actions, he may demur. 1 Wils. 165, Thrale v. Corn- though by the wall. If it is not apparent, he may, under the general issue, avail him- law they ought to be knights, self of the objection at the trial, as the ground of nonsuit. 1 Chitty, yet it is good' 284. In transitory actions, any objection to the mode in which the ven- though against ue is stated, must be taken by special demurrer. 3 T. R. 387, Mellor the law, being v. Barber. 5 Mass. 94, Briggs v. Nantucket Bank, in which case it is by consent of the parties. said by C. J. Parsons, that in this Commonwealth venues are of no use.' Co. Lit. 125. b. In Massachusetts, by Stat. 1784, ch. 28, sec. 13, transitory actions, when 309. a. 2 Cro. both parties live within the state, must be brought in the county where 664. visne B. one of the parties lives. If the defendant would avail himself of an ob- 15. 1 Bulst. jection founded on this provision of the statute, he must do it by plea in 216. Damages abatement. 4 Mass. 591, Cleaveland v. Welsh. In a plea no venue seems to be necessary, the place laid in the declaration drawing to it the trial of everything that is transitory. 2 H. Bl. 161, Ilderton v. Ilderton. 7 T. R. 243, Neale v. De Garay. (2) It seems that consent of parties, in order to take away error, should be entered of record. Post 266, Fawkner v. Andrews. Cro. El. 664, Fineux v. Hovenden. Dyer 284, Fleyer v. Crouch. Dyer 367. Bac. Abr. Error. K. 6. MILES US. JACOB. 'Thou hast poisoned Smith,' not actionable; for it might have been unwillingly. If damages be several and costs entire, though part of the action fail, and judgment for that part be reversed, the entire costs shall stand. B. 28. 2 Keb. 260. p. 9. Case. [6] B. le Roy. Exchequer Cham. EDWARD MILES brought an action of the case against Francis Jacob for these words, Thou' innuendo, &c. Innuendo. [6 a] Thou hast pois oned Smith Post. 268. 8.9. 1 Roll. 77, 83, 775. Co. Ent. 25. b. nu. 23. Cent. 293. Ro. 282. 2 Cro. 343, hast poisoned Smith,' quendam Sam. Smith adtunc. defunct. innuendo, and it shall cost me a hundred pounds but I will hang thee for it.' And further declared that the defendant of mere malice, at the next assizes and gaol-delivery holden at Bury, procured him to be falsely Allen 75. Jenk. indicted, that he had given poisoned drink to Smith, to 1. R. 24. Cr. the intent to poison him, whereof he died. Whereupon Jac. 424. 3 Cr. Miles was afterwards acquitted. Upon issue not guilty it was found for the plaintiff, and damages severally for the words and indictment seven pounds a piece, and fourteen pounds costs entire; whereupon Miles had judgment to recover the said damages and costs. And upon writ of error in the Exchequer Chamber it was adjudged that the Words could bear no action for divers reasons. For it doth not appear by the words that he poisoned him wilingly, neither that Smith was dead at the time of the words spoken, and the innuendo for that purpose is no sufficient averment, (1) but for the indictment it is ad R. F. 24. Dam- Cr. 306. 4 Co. 2 Cr. 424. 4 Co. 14. b. 10 Co. 131. a. Ap. 268.5 Co. 35. b. Yelv. 21. ultra. 9 H. 7. 4, 5. 2 Cro. 438. ultra. 2 Sand. 171. Plo. 91. b. Costs intire the action fail. (1) The innuendo in this case is bad because it materially enlarges the Vide ante, p. 2, Thomas v. Axworth, and the note to that case. though part of sense. The other objection to the judgment, to wit, that it doth not appear by the words that he poisoned him willingly,' would not, at the present day, be fatal, if sufficient appeared in the declaration to show that they were uttered maliciously. The old doctrine which, absurd as it was, prevailed in the time of Hobart, was, that in cases of slander the words spoken should be understood in their mildest sense. Many cases are accordingly found, in the reports of those days, in which this doctrine or the benignior sensus was allowed to prevail even after verdict and in direct opposition to the finding of the jury. Post 77, Coote v. Gilbert. 331, Clearke v. Gilbert. Cro. Ja. 688, Foster v. Browning. 315, Holland v. Stoner. 331, King v. Bagg. There is, however, occasionally a gleam of common sense upon this subject in the decisions of those times. Thus in the case of Fleetwood v. Curley, post 268, it is said, 'when there is a pregnant, violent and certain sense that may lead the court and hearers to take it one way, that shall be taken, and not another imagined whereof there is no appearance.' The rule now adopted and established is the only rational rule, and one which is supported by every legal analogy. It is, that in all cases of words which, on the face of them, are of doubtful import, or which are, prima facie, innocent, and derive their offensive quality from collateral or extrinsick circumstances, both judges and jurors shall understand the words in that sense which the speaker intended to convey to the minds of the hearers, as evinced by all the circumstances of the case. Thus in 10 Mod. 196, Harrison v. Thornborough, the court observed that the rule that has prevailed is, 'that words are to be taken in that sense that is most natural and obvious, and in which those to whom they are spoken will be sure to understand them.' So in Rex v. Horne, Cowp. 687, it is observed by lord C. J. De Grey, that, if courts of justice were bound by law, to study for any one possible or supposable case or sense in which judged that the action will lie, so that for the damages for the words being several, the judgment being reversed for that part failed. But the judgment for the indictment, the words used might be innocent, such a singularity of understanding might screen an offender from punishment; but it could not recall the words or remedy the injury. It would be strange to say, and more so to give out as the law of the land, that a man may be allowed to defame in one sense, and defend himself by another.' The true rule to go by is laid down by my lord King in the case of Rex v. Matthews, (St. Tr. vol. 9. p. 710,) that the court and jury must understand the record as the rest of mankind do.' In Woolnoth v. Meadows, 5 East 473, Le Blanc J. says, 'It is not sufficient to show by argument that the words will admit of some other meaning; but the court must understand them as all mankind would understand them, and we cannot understand them differently in court, from what they would do out of court.' In Roberts v. Cambden, 9 East 93, Lord Ellenborough C. J. says, 'The rule which at one time prevailed, that words are to be understood in mitiori sensu, has long ago been superseded, and words are now construed by courts as they always ought to have been, in the plain and popular sense in which the rest of the world naturally understand them." See also 13 Mass. 254, Chaddock v. Briggs. From the old reports first above cited, and many others, it also appears that the courts formerly considered the construction and meaning of the words as matter of law for the 'consideration of the court exclusively, and to be collected, as in the case of deeds, from the words themselves without regard to extrinsick circumstances. Post 77, Coote v. Gilbert. The courts, therefore, took upon themselves, when the words were ambiguous, to settle their meaning. The absurdity and injustice of such a doctrine, in its practical application, are obvious at a single glance. Under the operation of this rule, in its connexion with that above noticed that words must be taken in mitiori sensu, no words could be the foundation of an action, unless, upon the face of them, they contained a direct, manifest, and unequivocal charge against the plaintiff. Words spoken ironically, and words in themselves of ambiguous meaning, or deriving their actionable quality from concomitant circumstances, however malicious and defamatory, would, in all cases, pass with impunity. The modern rule, therefore, is unquestionably the correct one. It is this; that when words are capable of two constructions it is the province of the jury to decide, as a matter of fact to be collected from the whole of the circumstances, in which sense they were used by the speaker. Thus in Rex v. Horne, Cowp. 672, it was observed by Lord Mansfield, that it is the duty of the jury to construe plain words and clear allusions to matters of universal notoriety, according to their obvious meaning and as everybody who reads must understand them. But the defendant must give evidence to show they were used, on the occasion in question, in a different or in a qualified sense.' In Peake v. Oldham, Cowp. 277, Lord Mansfield said that if the words were shown to be innocently spoken, the jury might have found a verdict for the defendant; but they have put a contrary construction upon the words as laid.' In Chaddock v. Briggs, 13 Mass. 254, Parker C. J. observed that when words 'appear to have been spoken maliciously, such a meaning is to be attached to them us will be consistent with malice; and of this the jury are to judge; who will never give damages if the defendant shall show that he intended no slander.' See also 12 Johns. 239, Dexter v. Taber, and 20 Johns. 356, M’Kinley v. Rob, and 3 Camp. 461, Smith v. Carey, acc. Where words may be taken in a double sense, the court, after [6 b] |