carpenter versus Tarrant the words C be in W gaol and try for his life and  will have be hang have it not be for l for break open the granary of farmer a  and steal his bacon hold actionable averment of the falsity of the charge not  necessary the gist of the action be whether the word be speak false and  malicious action upon the case for speak these word Robert carpenter be in  Winchester gaol and try for his life and will have be bang have it not be for  Leggat for break open the granary of farmer a and steal his bacon after  verdict for plaintiff sergeant Eyre move in arrest of judgement and a rule be  make that all thing shall stay his objection be his that these word be not  actionable and be nothing more than a account of a trial touch the break open  the granary and that these word be not actionable be cite gardener case   and  cro Elizabeth Hobart coote and Gilbert Hutton and Noy steward and bishop cro  Elizabeth Bayley and Carrington ib Lovet and hawthorn dly he object that to  make these word actionable there shall have be a averment that plaintiff never  be in gaol and try for his life and for that he cite the case of Bland and  Edmund in hob and Brownlow roll Abr d pl lev Crawford and Middleton sergeant  chapel for plaintiff as to the first objection cite cro James Showell and hook  ib Heynes and sprot roll Rep Searle and maunder palmer brown and Audley cro  Elizabeth redfern and Todd ib royal and Peckham ib Willymote and Wetton and  the case of button and Heyward hill geo I Mod where these word be hold  actionable he be the man that have kill my husband and the court in that case  say that former action for word be discourage but now they be encourage and be  to be understand by the court in the common acceptation of they as to the  second objection be cite vent Phillips and Kingston I side bull and Mayo and  lev Jones and Powell which be soon after the case of Crawford and Middleton I  lev cite for defendant Lord Hardwicke c j as to the first question this be one  of those case that be frequent in which the difference betwixt the old rule  case tempt Hardwicke and modern one come case tempt Hardwicke er p in question  and I shall think that accord to all the rule lie down of late year these word  be actionable for they import a scandal the very charge a man of have be in  gaol be a reproach and it must be a very strong intendment to have they mean  only that he be acquit by Leggat Cardans probable gardener cite from a   case  be a very strong case for defendant but if those word be to come in question  now they will be hold actionable but there be a very strong case on the other  side and not a modern case neither which be Halley and Stanton cro Charles  where the word be he be arraign for steal twelve hog and if he have not make  good friend it have go hard with he which word be very like the present word  and be hold actionable indeed in that case there be a averment that be never  be arraign and the court say the speak be the more malicious as it appear by  the averment to be false and several case be here cite to support that  resolution so that accord to that case a action be maintainable for the word  now in question for they be as strong as those in that case see cro James dly  be there any necessity for a averment in this case I take it there be many  case where averment be ancient think necessary but be not so of late time and  I take it that the word be here lie to be speak falsely et wickedly be a  averment that the word be false for if they be speak false the word can not be  true and if they be true it lie upon the defendant to show that in mitigation  of damage for I believe there be case that it may be give in evidence for that  purpose but however that be not the case here if therefore the modern  authority be that a averment be not necessary then the case of Halley and  Stanton be in point for there without a averment the word be hold actionable  so that I think the declaration be good lee I this resolution can be no hurt  to the defendant for if these word have be only a narrative of what pass at  the trial he may have plead it so and justify though at the trial it can only  that have be give in evidence in mitigation of damage the true gist of the  action with respect to the defendant be whether he speak the word false and  malicious tot cur accord the rule discharge see the case collect starke on  libel et seq