his Calling of Function by which hée gets his living or which do charge him with any great infectious disease All such words will bear an Action without alledging or averring of any particular damage by the speaking of them But in all other Cases there must be a special damage alledged to be sustained by the Plaintiff by the speaking of the words And if that be in the Case almost any words that carry any thing in them of a foul aspersion may bée actionable Bulst 1. part 40. So much of the Rules of Extension 22. The Rules of Exception or Limitation shall be these That actionable words in all cases especially in cases where they may bring a man in dauger of his life must have these qualifications and conditions in them 1. They must be false for if the thing spoken be true let the words bée what they will the party that speaks them may justifie them 2. They must be malicious and purposely and intentionally to slander and defame for otherwise notwithstanding they be true yet will they not be actionable 3. They must be particular and clear for if they be so general as thereby to be ambiguous and doubtful no Action will lye upon them 4. They must bée of a simple single and known sense for if they be of an indifferent meaning no Action will lye upon them 5. They must be certain against which there may not be any intendment for if they be altogether uncertain either as to the person slandered or the slander it self no Action will lye upon them 6. The words must have in them some matter of weight and substance for if the things spoken import no substantial matter no Action will lye upon them 7. They must be positive affirmative and direct importing some peremptory Accusation for if they import a slander by way of Argument Inference or Implication only no Action will lye upon them 8. They must import a thing possible to bée for if they import a thing simply and apparently impossible no Action will lye upon them 9. They must import some Act done for if they import only an Affection Inclination or Intention to do something and nothing done no Action will lye upon them 10. They must carry in them or cause by occasion of them something of damage and prejudice to him against whom they are spoken for if it be apparent they neither do nor will bring any damage to him no Action will lye upon them 11. The words all of them spoken together must be actionable for if some of them only be actionable and the rest spoken at the same time do qualifie them and take away the force thereof no Action will lye upon them 12. They must be spoken in an extrajudicial way for if they be spoken in a course of Iustice and a judicial way no Action will lye upon them 13. They must be spoken in the hearing of some body that doth understand them for if they be spoken in another language which none of them that do hear them understand no Action will lye upon them 14. The words if they charge a man with a crime must import that the man charged hath notice or knowledge of the ground or occasion of the crime or they will not be actionable 15. They must carry an Import of Slander in them as they are taken and understood in their vulgar and common sense and acceptance for if they become scandalous as they are taken in a forein strict and grammatical sense and construction only this will not bear an Action For the first of these 1. The words spoken and the thing said against him of whom they are The words must be false Sect. 6. spoken must be false for the Writ is falso malitiose dixit c. And so the Action must be laid or else it is not well laid For if the words spoken be true let them be what they will the defendant in the Action may justifie the speaking of them But in that case hée must take héed hée do not plead Pleading not guilty And if they be malicious and false an Action will lye upon them Dyer 236. Broo. 104. Action of the Case Huttons Rep. 73. Croo. 2. 91. 2. For the second thing The words spoken must be malicious and with The words must be malicious an intent and purpose to prejudice him against whom they are spoken For the Writ is falso malitiose and it must be both false and malitious otherwise it is not good it is therefore in this considerable Quo Animo The words therefore must be such as importing something that if true may bring the party against whom they are spoken in danger for his Life Liberty Estate or Credit and no good cause can be shewed for the speaking of them But for the discovery of the malice these things are to bée known 1. That where no other Cause can be shewed of the speaking of the words there the Law will take it to be malicious That which is chiefly therefore to be considered is Causa Dicendi For if a Lawyer shall in the pleading of his Clients cause innocently and pertinently to the cause in hand which hée must look to and according to his Instructions speak such words as may charge a man with a Crime or bée actionable in another Case this shall not be taken to be malicious and therefore not actionable And yet if the Lawyer shall speak those words at another time or in another place then when and where the Cause is debated this may be actionable So where a Preacher in preaching shall recite a History out of a Book that doth prove false and scandalous this will not be actionable So if one advise his friend to forbear the Company of such a one for that shée hath the Pox or tell his friend of somewhat that is reported of him and wish him to clear himself of it In these Cases no Action will lye for these words For here the cause or occasion of the speaking of the words doth shew that there was no malicious intent in the speaker when hée spake the words And yet if one shall make this but a Cloak for his malice in any such Case as this it will be otherwise But by these and such like Circumstances it must be considered with what mind hée spake the words and whether there were malice in them or not Bulstr 1. part 148. Hill 21. Car. 1. B. R. Stiles Regist 5. Croo. 2. 91. 339. Trin. 7. Car. 1. B. R. Norman and Simonds Case Coo. 4. 16. Hobb Rep. pl. 11. 399. Dyer 236. Huttons Rep. 73. Dyer 236. Bustr 1. part 148. 3. For the third thing The words spoken must be clear and perspicuous The words must be clear and perspicuous as Thou art a Theef J. S. is a Bankrupt or thou hast killed J. S. or thou was forsworn in the Kings Bench Court or in a Court of Record and the like And not obscure and
not an Obligation but a Writing only But they held that for saying Thou hast made a false Bond an Action lyeth not for that may be upon false instructions Secondly It was alledged that this issue was not good for there being a special forgery alledged it ought to be specially traversed But the Court held the issue to be well enough And if it were not good it is aided by the Statute 32. H. 8. Wherefore it was adjudged for the Plaintiff Croo. 1. part last publisht 607. 7. Case 247. Action for these words which the Defendant spoke to one Gurney Bring mee to the Constables house for I am robbed this night and bring Charge of Robbery mee to Bonaventure Theobalds house to arrest him for old Theobalds Innuendo the Plaintiff setteth his Sons to rob mee Innuendo dictum Bonaventure quendam Johannem filium ipsius Anthonii from time to time The Defendant pleaded not guilty and found against him And after Verdict it was moved in arrest of Iudgement that the words were not actionable because it is not alledged that any of Anthony's Sons robbed him and it is but an intent of setting to rob and no Action done the words also are insensible But notwithstanding it was held by the Court that the words were very slanderous and that the Action was maintainable And so it had béen adjudged in this Court that one such lay in wait to murder mee c. Wherefore it was adjudged for the plaintiff Note errour Endeavour to do it was hereof brought because it is not precisely affirmed of the plaintiff But it is said old Theobalds and hee doth not name the plaintiff and an Innuendo will not serve whereupon it was reversed Croo. 1. last pub Innuendo 618 3. Case 248. Action for words whereas the Plaintiff was and is a Physitian that the Defendant intending to defame him and to prejudice him in his Art falso et malitiose spake of him these words Mr. Poe innuendo the Plaintiff hath Slander of a Physitian killed Mr. Pasfield of the old Jury with Physick quidam Johannem Pasfield late inhabiting within the old Jury and now deceased innuendo which Physick was a Pill and the Vomit was found in his mouth and D. Atkins and D Paddy quosdam Henricum Atkins Johannem Paddy Doctors in Physick Innuendo were there and found it so and it is true ubi re vera neither the said Doctor Atkins nor Doctor Paddy nor any other ever found any such thing to be committed by him et ubi re vera he never Administred any Physick unto him in Pills or otherwise c. The Defendant pleaded a concord in Barr which plea was ill pleaded as it was agréed on both sides whereupon the Plaintiff demanded And now Cook Attorney generall moved that an Action lay not for these words for it is not any slander to a Physitian to say of him that he had killed one with physick for he might do it involuntarily in not knowing the disease and no discredit unto him Popham and Fenner held that the Action lay not for it cannot be any discredit to a Physitian to say that he killed one with physick for it is an usual and common expression and it may be without any fault in him for they may mistake the diseases in their own bodies much more in others and apply wrong medicines which may be the cause of the Patients death and yet no discredit unto them But if it had béen that he scienter et voluntarie ministred Physick to one to kill him that toucheth him in his profession and the words had béen Actionable but not here And although it bee said that he never administred any physick unto him that is not material wherefore they without any argument on the plaintiffs side Clinch repugnate et Gaudy absente adjudged it for the Defendant Croo. 1 last publisht 620. 9. Case 249. Action upon the Case for that he spake quaedam scandalosa verba of the Plaintiff tenor quorum sequitur in haec verba thou art a Cousening Knave and a Bankerupt vel his similia the Defendant pleaded not guilty and found for the plaintiff and judgement uttered for him without privity of the Bankerupt Court and the Court being now moved therein held that an Action lies not And Walmsley said it was by reason of the word consimilia as it was Couzening Knave adjudged in Garters Case it is not good also for that it is said that hee spake divers words tenor quorum sequitur wherefore it was commanded that the Roll should be amended Croo. 1 part last publisht 654. 52. Case 250. Action for words viz. The Plaintiff was one of them that brake Mr. Philips house and did take and carry away part of the money that was stollen Walmsley held that an Action lay not for these words for where Charge of Burglary words are ambiguous so as they may bee expounded in good or ill part no Action then lyes for they shall be expounded in the best sence Incertainty in the words and it may bee here intended that he brake the house upon just cause and brought the money to another place upon just cause Wherefore c. And so was the opinion of the other Iustices Croo. 1. part last publisht 672. 33. Case 251. In Croo. 2. 144. This Action was adjudged to lye upon a Demurrer for this Thou art a Leprous Knave Taylor and Perkins Hill 4 Jac. Leprous Knave B. R. Sée Croo. 2. 430. Case 252. Action for these words Thou art a Pillory Knave remember Brown thou shouldst have been set on the Pillory and the Plaintiff had judgement Pillory Knave though it was not said He was set on the Pillory Brown and Dawks Mich. 24 25 Eliz. Co. B. Croo. 1. last publisht 11. And yet in Trin. 26 Eliz. B. R. in Smiths Case the Court was of opinion that for these words Thou art a Knave and a Pillory Knave no Action lyeth Croo. 1. part last publisht 31. And in Pasche 26 Eliz. Co. B. an Action was adjudged to lye for this Where is that bankrupt Knave where is that Pillory Knave with an averment that he was a Merchant of whom the words Averment were spoken Griffith and Morrisons Case Croo. 1. last publisht 26. Case 253. Action for this Thou wert a Suitor to a Woman in Southwark and didst couzen her of her goods and procured certaine false Witnesses to be Charge of couzening forged And after verdict the judgement was stayed for that the words are not actionable Engurst and Brown Trin. 30 Eliz. B. R. Croo. 1. last Forgery publisht 99. Case 254. Action for these words Thou hast used Jugling with me but thy Jugling Charge of Jugling and of Forgery shall not serve thy turn and thou hast forged a VVrit of Quare Impedit Innuendo a Writ of Quare impedit against him and the Bishop of Coventry and the Plaintiff had judgement
such like words as these are no Felony Action will lye Hobb Rep. pl. 381. 286. Bulstr 1. part 148. Coo. 4. 15. Popham Rep. 210. For the eighth thing That the thing said by the words must be a thing that is possible to have béen done For if it import such a thing done as is altogether and apparently impossible no Action will lye upon them And therefore it is held that no Action will lye for saying of another that hee hath Murther killed my Wife for that the words themselves do shew her to be then alive Coo. 4. 16. So to say to a Brewer My Mare doth piss as good Beer as thou dost brew these words in themselves are impossible and will bear no Action And yet if the Brewer in his Trade shall suffer any special loss Trade by them for this hée may have his Action Coo. 4. 16. Mich. 15. Jac. B. R. Dicks Case For the ninth thing That the words must import some Act done For if Not for words importing only an inclination or intention to do a thing Adjective words they import only an Inclination Affection or Intention to do a thing no Action will lye upon them And therefore it is held That no Action will lye for such like words as these Hee is a Theevish Knave or hee is a Traiterous Knave or hee is a seditious Knave And yet if these and such like Adjective words shall import an Act done as Hee is a perjured Knave or the like There this Action will lye Or if they be Theft such words as do slander a man in his Office Function or Profession as to say of a Judge Hee is a corrupt Judge or of such an Officer Corruption in an officer Hee is a corrupt Officer or hee is a bribing Knave Or if they be such words as do slander a man in his Trade As to say of a Tradesman Hee is a Bankrupt or a Bankeruptly fellow For all these and such like Bankerupt words the Action will lye And so also it will where the Adjective word is Theft added to an actionable word As Thou art a cunning Theef And so also it will lye where the intent of doing an Act and the Act done are joyned together As Hee would have robbed mee and did rob mee of my dagger And so also it will lye where the words import that hée is doing of the Act as where hée saith of one Hee is ravishing a woman or hee is robbing a man Coo. 4. 16 19. Hobb Rep. pl. 17. Dyer 72. Croo. 1. 301. Godb. Rep. 151. Bulstr 1. part 134 145 138 210. For the tenth thing That the words must carry in them or cause by occasion of them something of damage or prejudice to him against whom they That the words must import somewhat of damage to him of whom they are spoken Sect. 8. Murther are spoken For if the thing spoken being true may not hinder or hurt him by hazard of his life or by the infringing of his Liberty or by the impairing of his estate or by the defamation of his Credit no Action will lye upon them And therefore it is agréed That to charge a man with a Crime by words in another language that none of the hearers understand or to charge a man in an Action brought with the killing of a man where it doth appear by the Record it self that the party supposed to be killed is yet alive is not actionable for hée neither hath nor can have damage by it So to charge a man with a trivial light matter as that hee hath erected a Cottage against the Law or hath a Dog that will not suffer his neighbours Cattel to go in peace these things will not bear Action Coo. 4. 16. Bulstr 1. 148. Croo. 1. 350. Hobb Rep. pl. 11. 236 145 164. 154. For the eleventh thing That the words all of them spoken together That the words must be taken altogether must be Actionable for words that are in and of themselves Actionable may be qualified by the precedent or subsequent words joyned with them and spoken at the same time and therefore where part of the words rent asunder from the rest are Actionable but there are other words spoken before or after them at the same time and in the same speech or conference that doe explain limit and qualifie them in such cases they will not be Actionable and therefore it is agréed that no Action will lye for the words in the Cases hereafter following For that thou hast stoln my Apple out of my Orchard I will say thou art a Theef or Art thou not a Theef that hast stoln away my Evidences or Art not thou a Murtherer that hast killed so many Hares Or where two are talking of Hunting and one of them shall brag how many Hares he had killed by Engines and thereupon the other say to him Thou art a Murtherer in these and such like cases no Action will lye upon them But these two Rules are given herein 1 That the words that shall qualifie and extenuate such Actionable words must be full and clear and not ambiguous 2 That the words that must qualifie and correct must be such as doe not contain any matter of slander in them And 3 Some make a question of such kind of words where they are subsequent to the Actionable words and are brought in by the word And as you are a Theef and you have stoln my Apples out of my Orchard and in this case they argue that they are additional and cumulative and shall not correct at all as they shall when they are brought in by the word For as you are a Theef for you have stoln my Apples c. But sée more of this hereafter Coo. 4. 19. Hobb Rep. 97. 381. 406. Stiles Rep. 115. 135. New Book of Entries 22. 6. Croo. 1. 351. Godb. Rep. 89. Huttons Rep. 65. 109 110. For the twelfth thing That the words must be spoken in an extrajudicial That the words be not divulged in a course of Justice way for if a slander shall be raised and spread only by occasion and the means of a prosecution by one that doth but pursue the course of Iustice in an ordinary way of Iustice no Action will lye for this for in this it is held for a rule That for a Suit or any other legal procéeding in a course of Justice if it be not out of malice and touch not a mans life no Action will lye and therefore this Action will not lye against a man for bringing a Writ of Forger of false Deeds nor for preferring Articles against Forgery a man to a Iustice of Peace to have the good behaviour against him nor for the prosecution of a suspected Felon by indictment as there is cause and yet if in this case the prosecution shall prove to be malicious as where an Indictment is preferred against a man for Felony or the like and there
keeping and concealment of Felons and goods stoln maintainest Pirates to rob upon the Seas Sée Croo. 2. 629. So it is said to be adjudged to lye for this Hee is a maintainer of Felons albeit hée doth not say that he knew them to be Felons or that he was a Justice of Peace Sir Henry Leas Case cited in Croo. 2. 268. Some Reports have béen of judgements in Cases for these and such like Charge of a man as an accessary to a Felony Sect. 10. words as these Thou receivest theeves thou keepest theeves thou keepest theeves about thee thou keepest theeves in thy house thou maintainest theeves in thy house Let me say it with reverence I cannot receive them as Law nor sée reason for them for such kinds of spéeches have not an import of any foul aspersion they are ambiguous why and how a man doth receive and kéep such men about him he may by occasion of businesse relation or other obligation have cause to kéep such men about him possibly he may not know them to be such or if he doe it is not against any Law to receive théeves or stoln goods unlesse it bee so as to countenance or cover the offence or kéep the offender from punishment nor is any man bound by the Law to discover any such offender except he be a Traitor but at his pleasure for a man may doubtlesse in many Cases knowingly receive a thief or the goods stoln by a thief and justifie it by Law and therefore in 42 Eliz. in the Exchequer Chamber a Iudgement upon a Writ of Error was reversed in the Case of Ball and Bridges and it was therein agréed by all the Iustices and Barons That this Action shall not lye for these words He is a maintainer of theeves and keepeth none but theeves in his house and I will prove it c. for one may Harbour or keep Traitors have and maintaine théeves in his house and not know them to bee such and this is no offence But there the Iudges did séeme to agrée all of them in this that if the words be thus That he did maintaine and keep such in his house knowing them to be such that this would be Actionable Croo. 1. last publisht 746. 888. and it is reported by Goldsb 48. That in Easter Tearm 29 Eliz. Co. B. It was there agreed by the Iudges that this Action was maintainable for these words Thou dost maintaine traytors or thou dost maintaine theeves see chap. 6. sect 1 2. But that no Action will lye for saying Thou dost keep theeves And that it hath béen agréed not to lye for this He is a receiver of theeves Mich. 40. 41 Eliz. Co. B. Nor for this He kept men that did rob upon the High-way Hobb Rep. Nor for this Thou keepest thieves without saying or knowing them to be such Goldsb pl. 7. Nor for this Hee hath theeves in his house Croo. 2. 331. Nor for this Thou keepest none but theeves or Cut-purses in thy house and hast their goods Mich. 17. Jac. B. R. Nor for this Thou keepest men to rob on the High-way Nor for this Thou keepest men that rob me for all this may be unawares to him Croo. 1. last publisht 188. It is said it will not lye for this of a man that had lost cloth stoln by unknown persons A. hath received again his peeces of cloth and beareth with the theef Innuendo quendam malefactorem ignotum Hall versus Hemsy Trin. 38. Eliz. Noys Rep. 57. Nor for this Hee hath three parcels of his cloth again of the theef that did steal it from him and if I receive any hurt henceforth I will charge him with it Goldsb Rep. 119. Nor for this A. keepeth men to rob mee albeit hée hath béen robbed by his men But if hée say Hee keepeth men to that intent to rob mee and I was robbed by them these words would be dangerous Sir Harbert Croft against Brown Pasche 14. Jac. Bulstr 3. part 167. Nor for this A. and his servants went about to rob mee and hee did maintain them But if hée say that hée kept them to that intent and that any thing was done the words would be dangerous Sir John Harpers Case Bulstr 3. 167. This Action will lye for this Thou hast hoistred Theeves and stoln goods and the theeves and goods were found in your house and the theeves were had before such Justices and committed by them to prison and were hanged and if the Justice had not been your friend it had been hard with you Bulstr 2. part 109. So for these words spoken by a servant whose Master had lost goods thou art a maintainer of theeves to steal my Masters goods Croo. 2. 629. It will not lye for a Son for these words A. hath stoln a horse and his Son is consenting to it Trin. 14. Jac. Lewkners Case Nor for this I was robbed and A. received part of the goods stoln and I could hang him for it Pasche 7. Jac. Newlins Case Nor for this Thou art a favourer of theeves Dyer 75. Nor for this Thou didst consent to the stealing of my Mare Croo. 1. last publisht 780. Nor for this Thou art a companion of theeves Croo. 1. last publisht 554. Nor for this Thou didst and dost receive theef-stoln goods witness a Feather-bed tick in thy house and the cloth which thy mans Sute was made of and thou knewest they were stoln Stiles Rep. 91. Nor for this Thou art an arrant Knave thou hast bought stoln Swine and a stoln Cow knowing them to be stoln Yelverton Rep. 5. Nor for this You have taken stoln goods knowing them to be stoln Yelverton 5. But it is thought it may lye for this A. stole a Mare and thou B. knowing of the same conveyedst her into the Fens to my Brother B. his house And it may lye for A. and B. both Goldsb Rep. 132. Cut-purse And yet it is said it will not lye for this Thy Boy Innuendo Ambrose Latham the Plaintiffs wives Son hath cut my purse and thou hast received it I charge thee with Felony knowing it and hast the Rings and Mony that were therein in thy hand therefore I charge thee with Felony Croo. 1. last publisht 890. Nor will it lye for saying Thou art a Knave and hast received stoln goods and thou knewest they were stoln For all this though it be true is not Felony unless it be a Receipt to maintain the Felon and a man may in divers cases receive such goods lawfully Croo. 1. part last publisht 888. So for this I was robbed and you were privy thereunto and had part of the mony So it is said it will lye for this Thou hast been a setter of Theeves to rob mee Hill 3. Jac. B. R. So where there is talk between two of A. and B. and one of them that Sect. 11. are talking together say A. hath stoln away such goods and B. was privy and consenting thereunto in this case A.
doth prosecute another upon an Indictment by constraint or compulsion in a Court as where men are obliged to it by their Oath or Office as Iustices of Peace or Iurors sworn to present such offences or witnesses called to testifie their knowledge of such things or one that doth come into a Court voluntarily and there discover one that is a Felon indeed and yet if it be voluntary at the first and after compulsory it may be unlawful and actionable And yet if one shall come into a Court voluntarily and discover Felonies and it be true which hee doth discover and this be without any malice precedent no Action will lye for this So if one come into a Court and by the command of all or one of the Iustices draw or procure to be drawn an Indictment or if being bound to prosecute hee do so and cause an Indictment c. Or if hee be bound to give in evidence and hee do so or hee do give false evidence this will not make him liable to this Action 27. H. 6. 12. 35. H. 6. 14. 27. H. 8. 2. Fitz. 115. Leonard Rep. 107. For if this Writ should lye against one that comes in only to swear to the truth of an Indictment then would no man come in to do it Coo. 4. 14. Bulstr 1. part 185. Porter and Griffins Case B. R. This Action lieth not against a Iuror or witnesse that comes into a Court to be sworn Coo. 9. 55. And if a Witnesse or Iuror had conspired out of Court and the Witnesse had sworn or the Iuror had given a corrupt verdict upon a Conspiracy before out of Court they might have been punished in the Starr-Chamber Coo. 2. 23. 24. And so also of the Iudge or Iustice of Peace But neither Iudge nor Iury nor Witnesse will bee liable to this Action by our Law in such a Case Coo. 12. 23. 24. 12. Ed. 4 18. 21. Ed. 3. 17. 7. H. 4. 31. 35. H. 6. 14. 20. H. 6. 5. F. N. B. â—15 And yet if there be just cause as that in truth there is a Felony committed and any man whatsoever shall complain to a Iustice of Peace of it and thereupon hée that doth complain is bound over to prosecute which is the ordinary course and thereupon hée doth prefer an Indictment and prosecute c. this is not actionable Croo. 2. 32. 130. 191. Bulstr 1. part 150. 5 The procéeding and prosecution must be malicious for an unjust revenge as well as voluntary For if one man do prosecute another in this way upon good ground as where a Felony is done and there is some cause of suspition of that person more than another either by the common fame or otherwise as where a man is robbed and the next Village upon Hue and Cry doth make pursuit and take a man whom they have in suspition and thereupon the party robbed doth indict that man and upon the Indictment in his Trial he is acquitted Or a Coroner after a murder sitting super visum corporâ—s cannot finde out the murder and then enquiring of the first finders of the body they present that J. S. killed him and thereupon hée is indicted and acquitted these proceedings shall not be said to be malicious nor are they as punishable by any Action as in case where it appears he doth begin and prosecute his work maliciously And whether there be malice or not in such a prosecution must be iudged by Circumstances as his manner of prosecution speeches and the like and a Iury only must determine it Bulstr 2. part 2. 84. Broo. Couâ—p 4. Coo. 9. 55. Croo. 2. part 191. 194. Bulltr 2. part 269 Leonard Rep. 107. pl. 146. Bulstr 1. part 149. Croo 1. part 96. Croo. 1 part last publisht 724. 6 It hath been held by some Iudges that it ought not only to be maliciously contrived but it must be false and that if the party be guilty of the Crime whereof hee is accused and for which hee is prosecuted that this Writ will not lye By the two Chief Justices and Lord Chancelour Sed Quere if this may not admit of some exception Huttons Rep. 73. If one be robbed by persons unknown and one of the Theeves had a white Horse and brown Cloak and was like to the Plaintiff and upon this was apprehended and prosecuted this was held lawful and that this Action did not lye for it So where the Daughter complained to the Father shee was ravished by J. S. but was not so and thereupon hee did prosecute him that no Action lay for this So in like cases where there are good and seeming probabilities a man may prosecute another after this manner and justifie it albeit the party accused be innocent and the thing false But if there be no probabilities in the Case or the Iustice in his examination finde no cause to binde over and yet hee proceeds Bulstr 1. part 149. 150. 185. Godb. Rep. 203. Huttons Rep. 73. Bulstr 3. part 331. And in this it is said that if the Charge and Accusation be true but in part as where the Writ doth suppose a man to indict him for murder and it was upon his Arraignment found that hee did kill the man but that the killing was per infortunium or se defendendo in this case the Writ will not lye Fitz. Consp 21. Stamf. lib. 3. cap. 12. 7 The party indicted or appealed must be legittimo modo acquietatus Sect. 3. Acquittal by pardon that is he must be acquitted upon his Trial by the Petit Iury after an Indictment found by the Grand Iury or if hee bring an Appeal be non-suit or the like And therefore if the Acquital be by a general or particular pardon or hee is discharged for the insufficiency of the Indictment and no Iudgement be given upon it or the party is indicted and an Ignoramus is found upon the Bill in all these Cases this Writ of Conspiracy will not lye Croo. 2. 131. Bendloes Rep. 152. Yelvertons Rep. 161. Brownl and Goldsb 10. 9. Ed. 4. 12. F. N. B. 114. Coo. 7. 45. 41. And yet the last of these Cases upon an Ignoramus found is doubted of by some and the contrary said to be twice adjudged 41. Eliz. B. R. 20. Jac. And for the general Pardon hée is to plead it and the Iustices are to allow of it Brownl 1. part 9. Bulstr 1. part 150. 151. Croo. 1. 208. Dyer 28. 85. Goldsb 51. 8 The Prosecution must be about some criminal matter that may bring a scandal upon him for if it be but a matter of Trespasse only no Action will lye for this Stiles Rep. 157. 9 This Action may lye for procuring one to be indicted although the party himself do it not for one may exhibit a Bill to the Grand Iury without oath Stiles Rep. 10 To encourage one that is robbed to cause the suspected Felon to be indicted and to accompany him to the Assizes is lawful to do and will not bring one in
was imprisoned for it or that the common fame was that he did it Dyer 236. Broo. 127. New Book of Entries 26 27. Nor can one justifie the charging of one with Felony after hée hath a pardon Hobb Rep. pl. 106. 11 If in this Action the Plea be not guilty and part of the actionable words only be found this will maintaine the Action But if the Defendant take a Traverse to the words Contra. Noys Rep. 134. 12 The Action was for this Thou didst keep and sell by false weights and in twenty four shillings bestowing thy weights were false two ounces and thy man will bee a witnesse against thee and I will prove it The Defendant justified in pleading that the Plaintiff kept a Shop and used unlawful weights and by such weights sold by reason whereof hee said these words viz. Thou didst keep and sell by unlawful weights and in twenty four shillings bestowing thy weights were false an ounce and three quarters and thy man c. and traversed the words in the Declaration and it was adjudged a naughty Traverse for that the words in the Barre and justified by the Defendant are acionable Goldsb and Brownl 5. 13 The Action was brought for this word perjured The Defendant justified that it was found by Verdict that the Plaintiff was perjured but no Iudgement was entred upon that Verdict and it was adjudged no Barre because no Iudgement was given in the first Action Goldsb and Brownl 11. 14 That where the words may be justified Ex causa dicendi there the Defendant may if he please take the general issue not guilty Modo forma c. and give in evidence of the coherence occasion or connexion of the words or he may as the cause shall require justifie the speaking of other words and traverse the speaking of the words in question and upon the evidence have the words specially found 15 And when the matter in fact will serve for the Defendant albeit he may suppose that the Plaintiff hath no cause of Action yet is it not safe for him to hazard his Case upon a Demurrer but first let him take his advantage of the matter of Fact and leave the matters in Law which arise upon the matters in Fact to the last for after trial the matters in Law shall be saved to him Coo. 4. 14. Sée more Croo. 1. part last publisht 239. 492. As to this question three things are to be known What shall bee said a sufficient Verdict of a Jury herein upon which Judgement may be had 1 That where the Action is laid for saying I know him to be a thief and the Defendant pleaded other words Absque hoc c. And the Iury doth find it thus I think him to be a thief this will not be a good Verdict to give judgement upon Hobb pl. 213. 2 That where the words are laid to bee spoken thus That Nicholas Fenner procured eight or ten of his Neighbours to perjure themselves the Defendant pleads not guilty and the Iury doth finde that the words are thus That Nicholas Fenner had caused eight or ten of his Neighbours to perjure themselves it is doubtful whether this be a good Verdict to give judgement upon or not M. 4. Jac. B. R. 3 That where the words are said to be thus That John Barber and his Children be false theeves men cannot have their Cattle going upon the Common but they will kill and eate them c. and the issue is joyned whether the Defendant spake the words modo forma c. and the Iury doth finde the words spoken to be thus viz. Men cannot have their Cattle c. but they doe not finde the first which are the only Actionable words to be spoken this is not a good Verdict to have a Iudgement for the Plaintiff for the words found are not Actionable Dyer 118. 4 That where the words are laid to be spoken thus A. is a Thief for he hath stollen a Lamb from A. and Geese from B. and killed them in my ground the issue is whether the words be spoken modo forma c. and the Iury finde that the words spoken were thus That the Plaintiff was a thief for he hath stollen a Lamb from A. and killed it in my ground and nothing said of the Géese this is good enough to warrant the Declaration and to give him a iudgement upon it Hill 3. Jac. B. R. 5 That where the words are laid to be thus Burges is a maintainer of Theeves and a strongthief himself and the issue is joyned upon the words Modo forma and the Iury finde all the words but the word strong this is a sufficient Verdict to ground a judgement for the Plaintiff and by these Cases we may observe That if the Action be brought for more words than are found yet if there be some of the words that are actionable found it is well enough Dyer 21. 75. And so it is if the Iury finde other words than those that be in the Declaration if they doe not finde withall so much of the actionable words for substance as are set forth in the Declaration Croo. 2. 407 408. 6 Where an Action is brought for words some whereof are and some are not actionable and the Iury assesse damages for all together this will bee error And yet if words bee spoken at several times and the words spoken at one time are actionable and the words spoken at another time are not actionable but they have reference to the former words in this Case the damages may be assessed for both entirely and good Croo. 1. 238. And yet if an Action be brought for calling of one Murtherer Blood-sucker Villain Rogue Bankerupt some of which are and some are not actionable and the damages bee assest by the Iury entirely this will bée good enough and it shall be intended to bee given only for the actionable words Croo. 1. 238. 7 Where words are spoken at several times and some are actionable and some not and two Actions are brought for them and both are found for the Plaintiff and damages are given entirely this is not good But otherwise it is where one Action is brought for words actionable spoken at one time and words not actionable spoken at another time for there it shall be taken to be given for the actionable words only Bulstr 3. part 283. yet see the contrary in Coo. 10. 131. Jenk Cent. 8. Case 89. Croo 1. 471. Hobb Rep. 6. Jenk Cent. 7. Case 70. Croo. 2. 343. 8 The Plaintiff declares that the words are spoken Falso malitiose and the Iury finde that they were spoken Falso injuriose this is not a good Verdict for the Plaintiffe to have a Iudgement upon it Trin. 7. Car. 1. B. R. 9 The Declaration was for calling of J. S. thief and the Record of Nisi prius was quod predictus W. dixit de prefat I. S. haec scandalosa verba c. prefat W. Innuendo
is shewn that such Land was given to his Grandfather and that his Father had divers Sons Slander of a Title whereof the plaintiff is the youngest and his elder Brothers are living And that such a one was to buy the Land and offered him such a summe of money for his title and by reason of those words refused to give him any thing So it appears by his own shewing that he hath not any present title and therefore no cause of Action at all But the two chief Iustices conceived that although he hath not any present Title it appears hee is by a possibility inheritable to those Lands and being offered a summe of mony for that possibility to joyn in the assurance although he hath not any present title to the Land yet by reason of those words hee had a present damage and in future might receive prejudice thereby in case hee were to claime any Land by discent And for these causes they held that the words were actionable and the judgement was affirmed Croo. 2. 213. Case 229. 2 Car. B. R. Reynor vers Hallet The Action was brought for these words viz. Reynor is a base Gentleman and hath four Children by his servant Agnes and he hath killed them all or caused them to bee killed And after a verdict for the Plaintiff and amotion for to arrest the judgement judgement was given for the Plaintiff and there it was said to be adjudged not to lye for these words Agnes Knight is a Witch and Witch by Dodridge these words Hee hath four Children by his servant Agnes alone are not actionable but Whitlock contra And by Iustice Jones it Incontinency For saying one is a Bastard lyeth not for saying One is a Bastard and by him it lyeth not for saying Thou hast killed I. S. where in truth there never was any such man But to say Thou hast killed the King Contra. Case 230. Mich. 40 Eliz. In an Action of the Case for calling one Bastard Dyer and Walsh Iustices said an Action would lye but Brown on the contrary For calling one Bastard because it must be tried in the Spiritual Court And Dyer said that at Barwick Assizes a Formedon in Dicender was brought and one said That his Father by whom he claimed was a Bastard and thereupon he brought an Action against him for those words and recovered Case 231. The Clerk said That he had a Son in Nottinghamshire and that he Charge of Theft Incertainty Averment had his Chest picked and a hundred pound taken out of it in one Lock-smiths house and I thank God I have found the Chief who it is it is one that dwelleth in the next house called Robert Kingston whereupon Kingston brought this Action without averment that he did live in the next house and had a verdict for him and it was held not good for lack of this averment Pasche 7. Jac. B. R. Case 232. Action for these words There was never a Robbery committed within Charge of Robbery forty miles of Wellingborough but thou hadst thy part in it after verdict it was moved in arrest of judgement that the Action did not lye because it was not averred there was any Robbery committed within forty Averment miles c. for otherwise it is no slander sicopinio cur and judgement for the Defendant Mich. 36 37 Eliz. B. R. placito 12. Croo. 1. last published 308. 11. Case 233. Action for these words You have sought to murder me and I can Charge of an endeavour to Murder prove it adjudged that it lay Croo. 308. 1. last published 12. Case 234. Action for words That he being a Counsellor at Law and Steward to Slander of a Lawyer I. S. of his Mannours the Defendant said of him Hee is a paultry Lawyer and hath as much Law as a Jack-a-napes upon not guilty pleaded it was found against him and damages twenty pound And it was moved and the Action lyeth not for it is not said hee had no more Law than a Iack-a-napes but it was adjudged for the Plaintiff for the words are scandalous and touch him in his profession Croo. 1. last publisht 342. 9. Case 235. Action for these words Thou art a forsworn Jack in the Court-Baron Charge of Perjury of D. thou hast sworn me out of twenty shillings rent and hast me on thy side adjudged that the Action lay and the Plaintiff recovered Croo. 1. last publisht 342. 10. Case 236. Action for these words There was never a Purse cut within twenty Charge of Theft Cut purse miles of VVellingborough but thou hadst thy part in it and avers that such a Purse was cut c. and he had no part in it And it was moved that an Action lyeth not for it is not said he had a part of it as a partaker in the Felony for he may have a part in it in the losse and so it is no slander but it was adjudged for the Plaintiff for the words shall be taken to be spoken in the worst sense in disgrace and reproach of the Plaintiff Nota Serjeant Yelverton cited a Case Pasche 32 Eliz. Sir Edward Hastings Endeavour brought an Action for these words You have procured a perjured man to seek my bloud and ruled that an Action did not lye But Fenner said the Case was not adjudged but ended by his Arbitrement Vide Mich. 35. 36. Eliz. Antea B. R. placite 11. Croo. 1. last publisht 342. 11. Case 237. Action for words for that the Defendant said to I. B. Son of the Plaintiff in the presence of divers Thou praefat J. B. Innuendo and thy Charge of Perjury Father Innuendo the Plaintiff were both Perjured and I Innuendo the Defendant will prove you both perjured Vpon not guilty it was found for the Plaintiff damages twenty pound And it was moved in arrest of judgement that it was not averred that I. B. was the Son of the Plaintiff but it was held well enough for that it was alledged that the Averment words were spoken to I. B. his Son and it was adjudged for the Plaintiff Croo. 1. last publisht 143. 11. Case 238. Action for these words Many an honester man hath been hanged and Charge of Felony Indirectly a Robbery hath béen committed and I think he was at it and I think he is a Horse-stealer it was moved after verdict that an Action lyeth not without an expresse averment he was so Curia contra they are great Averment slander if the Defendant sheweth not a good cause of his thinking and it was adjudged for the Plaintiff Croo. 1. last publisht 148. 20. Case 239 Action upon the Case was brought for these words Thou art forsworn and I will make thee flowre the Pillory or else it shall cost me a hundred Charge of Perjury pound Et per totam curiam an Action lyes not for Anderson said There is a great difference betwirt the words