Clark's case

1 N.C. 2

• Court: U.S. Circuit Court for the District of North Carolina
• Decided: July 1, 1793
• Status: Published

Opinion

Crew, C. J.

There is a strong presumption that Faulkner, the jesuit, in this case, is born in England, as the statute requires it; in as much 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.

Jones, J.

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 small pox; 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.

Doderidge, J.

and if the jesuit was not born in England, still the action would lie, for the scandal. The statute makes it felony to receive jesuit 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 harbours 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. Same case afterwards, p. 83, of this book.