IN MITIORI SENSII (Lat. in a milder acceptation).
A phrase denoting a rule of construction formerly adopted in slander suits, the object of which was to construe phrases, if possible, so that they would not support an action. Ingenuity was continually exercised to de vise or discover a meaning which by some remote possibility the speaker might have intended ; and some ludicrous examples of this ingenuity may be found. To say of a man who was making his livelihood by buy ing and selling merchandise, "He is a base, broken rascal ; he has broken twice, and I'll make him break a third time," was gravely asserted not to be actionable,—"ne poet dar porter action, car poet estre intend de burst ness de belly." Latch, 114. And to call a man a thief was declared to he no slander, for this reason : "perhaps the speaker might mean he had stolen a lady's heart." 2. The rule now is to construe words agree ably to the meaning usually attached to them. It was long, however, before this rule, ra tional as it is, and supported by every legal analogy, prevailed in actions for words, and before the favorite doctrine of construing words in their mildest sense, in direct oppo sition to theifinding of the jury, was finally abandoned by the courts. "For some inscru
table reason," said Gibson, J., in a very re cent case, "the earlier English judges dis couraged the action of slander by all sorts of evasions, such as the doctrine of mitiori sensu, and by requiring the slanderous charge to have been uttered with the technical pre cision of an indictment. But, as this discou ragement of the remedy by process of law was found inversely to encourage the remedy by battery, it has been gradually falling into disrepute, inasmuch that the precedents in Croke's Reports are beginning to be consi dered apocryphal." 20 Penn. St. 162 ; 7 Serg. & R. Penn. 451 ; 1 Nott & M'C. So. C. 217 ; 2 id. 511 ; 8 Mass. 248 ; 1 Wash. Va. 152 ; 1 Kirb. Conn. 12 ; Heard, Lib. & Sland. 162.