“I am of opinion that no action is maintainable by
Mr. Jerdan against Mr. Taylor for the words spoken by the latter.
No action will lie for words of the nature stated in the case, unless they
either impute to the party of whom they are spoken the commission of some legal
crime, or unless they are spoken of him with reference to a trade or profession
which he carries on; and I think the words spoken by Mr.
Taylor do not fall within either of those two classes. The word
thief, indeed, in its strict literal sense, imports
the legal offence of felony; but it is also a word of common vulgar abuse,
without any very definite meaning; and when the question is left to the jury in
what sense Mr. Taylor used those words, it would be
impossible for
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“With respect to the letter, I am of opinion that it may, in strictness, be made the subject of an indictment, because it certainly does appear to contain insinuations which are calculated to provoke Mr. Jerdan to a breach of the peace. But at the same time I must observe that it is but just within the law of libel. The allegation that Mr. Jerdan’s motives are those of a swindler, is very far from a direct allegation; and, indeed, the whole of the objectionable passage in the letter is so obscure as to be scarcely intelligible. I am of opinion that, in cases of this nature, it is the most prudent and politic course not to indict, unless the offence is so clearly defined, and so aggravated in its nature, that there can be no doubt of the event or the measure of the punishment; because an indictment begun and not carried through, or, if carried through with success, terminated at last by a slight punishment, is more a matter of triumph to the defendant than to the prosecutor. This point, however, I leave to the discretion of the prosecutor.
