
    *Van Rensselaer against Dole.
    Where words otherwise actionable, are explained at the time by a reference to a known and particular transaction, they are to be construed accordingly ahd being so explained, they were held not actionable.
    Where a verdict is found against the charge of the judge, on granting a new trial, the costs are to abide the event of the shit.
    This was an action of slander. The declaration' charged the defendant with speaking of the plaintiff and others, the following words: “ John Keating is-as damned a"rascal as ever lived, and all who joined1 his party and the procession on the 4th July, (meaning .the said John Yan Rensselaer and the party and procession, in which the said John' Keating acted as captain on the said 4th day of July) are a set of blackhearted highwaymen, robbers,, and murderers.” The words were differently charged, with some additional expressions, in the other counts, but Were in substance the same. Plea the general issue.
    ' The 'cause was tried before Mr. Justice Benson, at the last March sittings,, in the city of Albany. The words charged, were proved to tiáve been spoken by the defendant.
    On the part óf the defendant it appeared, that on the day previous to the speaking of the words, there, had been a public procession to a church in Lansingburgh, where the parties resided ; that Keating commanded an artillery .company, which formed part of the. procession, attended with music; that a Mr. Bird claimed one of the instruments of music, a bass viol, and went to the church to demand, or take it, but it was refused to. be delivered, and retained by force; that upon this,,an'affray ensued, in which Mr. Bird received a: dangerous wound.
    It was proved, that the conversation, in which the words were spoken, was understood by the witnesses to relate to the transactions of the preceding day, and that the terms highwaymen, robbers, and murderers,” Were used in reference to the treatment of Mr. Bird in Withholding the bass viol, and in stabbing him.
    
      The judge was of opinion, that the words being spoken in relation to the transactions of the preceding day, and so understood, were thereby explained, and on that account not actionable. The jury, nevertheless, found a *ver- [*280] diet for the plaintiff, for 50 dollars damages and 6 cents costs.
    The defendant at this term, moved for a new trial, on the ground that the verdict was contrary to law, and the evidence.
    Woodworth, for the plaintiff.
    
      Van Vechten, for the defendant.
   Per Curiam.

We agree in opinion with the judge at the trial. The words spoken by the defendant were clearly understood to apply to the transactions of the preceding day, and these were known not to amount to the charge which the words would otherwise import. Let the verdict, therefore, be set aside; and there being no question upon the evidence, the finding of the jury must be considered as, contrary to law, and it is therefore ordered, that the costs abide the event of the suit

Rule granted.. 
      
      
         It is a general though discretionary rulé, where the parties are equally blameless, in reference to the facts upon which a new trial.is granted, that the courts will grant the' motion without costs, or direct the costs to abide the event. Of this description are new trials for the misdirection of the judge, his admission of illegal, and his rejection of legal testimony, and his -directing a nonsuit contrary to law. Graham on New Trials, 600, et seq, and references: Hodgson v. Barvis, 2 Chit. 268. Bunscall v. Hogg, 3 Wils. 146. Haine v. Davey, 6 Nev. & M. 356. 4 Ad, & E; 892. 2 Har. & W. 30. But when a verdict is set aside because it is contrary to evidence, or because of excessive damages, the new trial is usually granted upon payment of costs: 12 Mod. 370. 1 Burr. 12, 393. Jackson ex dem. Livingston v. Thurston, 3 Cowen, 342. Though when a verdict is set aside, as against-evidence and the charge of the judge, costs will be madeto abide the event. Knapp v. Curtis & Root, 9 Wend. 60. Gra. Prac. 2d ed. 635.
     
      
      
         In Christie v. Cowell, Peak. N. P. C. 4, the words proved were “ he is a thief for he has stolen my beer.” It appeared in evidence that the defendant was a brewer, and that the plaintiff had lived with him as servant; in the course of which service he had sold beer to different customers of the defendant, and received money for the same, which he had not duly accounted for. Lord Kenyon directed the jury to consider whether these words were spoken in reference to the money received and unaccounted for by the plaintiff, or whether the defendant meant that the plaintiff had actually stolen beer; for if they referred to the money not accounted for, that being a mere breach of contract, so far explained the word “ thief” as to make it not actionable. Thus if a man says to another “ You are a thief, for you stole my tree,” it is not actionable, (Cro. Jac. 114; Bull. Nisi Prius, p. 5,) for it shows he had a trespass and not a felony in his contemplation. Words may import a charge of felony, yet if it appear from the subject matter that the fact charged could not have happened, an action cannot be maintained. Jackson v. Adams, 2 Bing. N. C. 402. 2 Scott. 599. Snagg v. Gee, 4 Co. 16 a. Steph. N. P. 2252, 2253. “ Words apparently actionable may be explained by circumstances, to have been intended and understood in an innocent sense. Thus, though the defendant should say, ‘ Thou art a murtherer,’ the words would not be actionable, if the defendant could make it appear that he was conversing with the plaintiff concerning unlawful hunting, when the plaintiff confessed that he killed several hares with certain engines, upon which the defendant said, ‘ Thou art a murtherer,’ meaning a murtherer of hares so killed. 4 Co. 13. But the words, 11 think the business ought to have the most rigid inquiry, for he murdered his first wife, that is, he administered improperly medicines to her for a certain complaint, which was the cause of her death,’ were held to be actionable, as importing at least a charge of manslaughter ; and though the words werp doubtful, the doubt would be cured by the finding of a jury, that they were meant in that sense. Ford v. Primrose, 5 D. & R. 289.” 1 Stark, on Slander, Wend. ed. 99, et seq.
      
     