perjured and therefore not Actionable Thomas brought an Action against Axworth for these words this is Iohn Thomas his writing he hath forged this VVarrant adjudged the Action would not lie Harvy brought an Action against Duckin for saying that the Plaintiffe had forged a Writing adjudged that the words were not Actionable the reason of these cases is because of the incertainty of the words VVarrant and Writing and as I have given you the rule before the scandall must bee certaine and apparent in the words themselves otherwise they will not be Actionable By Tanfield Iustice in Wisemans case cited before if a man say that one of his Brothers is perjured no Action will lie because of the incertainty In the case which I put you before moved by Williams Mich. 41. 42. of the Queene in the Common Pleas this case was remembred by Walmseley Iustice one of you forged a Sub-pâ—na out of the Chancery innuendo the Plaintiffe he saith that judgement was stayed in this case because he which is greeved ought to be certainly defamed and the innuendo cannot make the words more certaine here likewise you have examples that where the person is incertaine that is scandalised no Action will lie Powell brought an Action against Winde for these words I have matter enough against him for Mr. Harley hath found Porgery and can prove it against him Resolved the words were not Actionable because they were too generall and utterly incertaine Britteridges case cited before Britteridge is a perjured old knave and that is to be proved by a stake parting the land of H. Martin and Master Wright adjudged the words were not actionble because of the subsequent words which extenuate the former and explaine his intent that he did not intend any juditiall perjury and because that it is impossible that a Stake should prove him perjured here you have words that are not Actionable by reason of the qualification of the subsequent words thus you may see that the grounds formerly laid downe may serve as a Touchstone for all cases of scandalous words The third part of that rule or ground which I have laid downe before and which I am now to handle is this That scandalous words spoaken of a man which touch or concerne a man in his Office or Place of Trust will beare an action Skinner a Manchant of London said of Manwood chiefe Baron that hee was a corrupt Judge adjudged the words were actionable Stucley a Justice of Peace brought an Action for these words Mr. Stucley covereth and hideth Felonies and is not worthy to be a Iustice of Peace adjudged the Action would lie because it is against his Oath and the Office of a Iustice of Peace and good cause to put him out of Commission and for this he may be indicted and fined Pridham and Tuckers case to say of a Constable that he is a concealer of Fellons adjudged actionable Stafford Iustice of Peace brought an Action against Poler for these words William Web being Arrested as accessory for stealing his own Goods Master Stafford knowing thereof discharged the said VVeb by and agreement of 3. l. 10 which Master Stafford was party whereof 30. s. was to be paid to Master Stafford and was paid to his man by his appointment upon a VVrit of Error brought in the Chequer Chamber it was holden the words were Actionable Cotton Iustice of Peace brought an action against Morgaâ— for these words Hee hath received money of a Theefe that was apprehended and brought before him for stealing of certaine sheep to let him escape and to keepe him from the Goale adjudged the Action would lie Morris Gilbert Iustice of Peace brought an Action against Adams for these words Mr. Gilbert hath done me wrong in returning the Recognizance of Podger in 20. l. where it was taken in tenne and the suerties in 10. l. a peece by the whole Court the words are Actionable If a man say of a Iustice of Peace that he is a common Barret or Champertor or maintainer of Suites the words are Actionable Carre brought an Action against Rande for words and declared that hee was Steward to divers great Lords of their Court Barrons and of the Leetes with in their Mannots and that he was Steward of one A. of his Court Barron and of the Leete within his Mannor the Defendant of this not ignorant said these words Mr. Carre hath put a presentment into the Iuries verdict against me of 3s 4d for sueing of Peter VVest forth of the Court contrary c. without the consent of the Iury by the whole Court the Action lies because he doth accuse him of falsity in his Office but by the better opinion if he had not alledged in his Count that he was Steward the Action would not have layen Sir George Moore brought an Action against Foster for scandalous words and sets forth that he was a Iustice of Peace in the County of Surrey and that there was a Suit depending in Chancery betwixt the Defendant and one Richard King and that a Commission was awarded to Sir George Moore and others to examine Witnesses in the said cause and also to heare and determine it and that he with the others dealt in the execution of the said Commission and that the Defendant said of the Plaintiffe these words Sir George is a corrupt man and hath taken bribes of Richard King and at another time King hath set Sir George Moore on horseback with bribes where by to defrande equity Iustice and good conscience resolved that the words were Actionable because that though the Plaintiffe bee neither Officer â—or Iudge nor is sworne yet because it is a place of great Trust reposed by the King in the Plaintiffe and for that he is punishable for bribary or corruption in the execution of the said Commission in the Court out of which it issues not deserving if the words were true to be imployed in the like Commission or any other for these causes the words were held to be Actionable and Popham Chiefe Iustice in this case made no difference where the Commission issues to one and where to many nor where they are nominated by the Court where by the party for in the first case he said the confidence of the Court is all one and in the last though that they be nominated to the Court by the party yet they shal not be Commissioners without the approbation of the Court. Sir Richard Greenefield brought an Action against Furnace for these words thou innuendo Captaine Greenfield hast received money of the King to buy new Saddles and hast cousened the King and bought old Saddles for the Troopers It was objected that the Action would not lie and it was likened to these cases which I will cite because they are worth the knowing 8. Car. the Major of Tivertons case one said of him that the Major had cousened all his Brethren c.
But I cannot thus baulke that observation of that learned Chiefe Justice whoâ—ses that in our old books Actions for scandalls are very rare and such as are brought are for words of eminent slanders and of great importance This must needs bee acknowledged to be a most exact and true observation for in searching of the Books I cannot finde that any Action for scandalous words was brought before E. 3. time and so rare then that I finde but one in 50. yeares of E. 3. and that is Sir Thomas Setons case of Justice for calling of him Traytor Felon and Robber no frivolous cause of action And I finde but three Actions for words brought in 22. yeares of E. 4. and those for one and the same words for publishing one to bee the Pilleine of I. S. a slaunder of no small importance neither for so long as that base and slavish Tenure of Pilleinage held hee that was a Pilleine was subject both in person and estate to the will of his Lord so that he might seize all his estate reall and personall and Vassalize his person at his pleasure so that he did not kill or mayme him In all the 21. yeares of H. 7. there is not one action that I can find brought for scandalous words And in 38. yeares of H. 8. our books tell us but of five actions brought for scandalous words two whereof were in 27. H. 8. so that I find none before that time neither The other were in 30. H. 8. and 28. H. Dyer And these for no trifling words for you shall finde that one of them was for calling a man Heretike another for saying a man was perjured and the other three for calling of one Thiefe all of which are high scandals to a mans reputation and most of them tending to the losse of life and fortunes so that it is very true that that Reverend Chiefe Justice observed that these Actions were very rare in our old bookes and such as were brought were for words of emminent slander and of great importance But these few have now got such a numerous progeny that I feare we cannot turne over many leaves in our new books but wee shall finde one of these Actions They began thus to multiply in the Queenes time as wee finde in my Lord Cockes 4. book where there is no lesse then 17. adjudged cases together upon these Actions And you may easily judge they did not abate in King Iamses his time for if I mistake not there is no lesse then two and twenty adjudged cases upon these Actions in my LORD Hobarts Book And I am certaine they are not fallen in His Majesties Raigne that now is for I my selfe have reported no lesse then three and twenty judgments upon these Actions but from Easter Tearme in the sixteenth yeare of the King to Trinity Tearme in the eighteenth Well therefore might Wray Chiefe Iustice say that the malice of men doth more increase in these times then in times past and as he saith the malice of men ought to be with stood as much as may be which I am sure the too frequent tollerating of Actions of this nature wil not effect no more then fire can be extinguished by adding fewell unto it You have heard my advise and direction before therfore I will here close this with one word though the tongues of men be set on fire I know no reason wherefore the Law should bee used as Bellowes to bow the Coles It is the saying of the Prophet David I will take heed to my ways that I offend not with my tongue I will keepe my mouth as it were with a Bridle It were happy for all men if they could make the like resolution and keep it But seeing that wee are but men whilest wee carry this lump of flesh and masse of corruption about us we shall be subject to the like passions and affections that oâ—â—erâ— have beene before us and the flesh will rebell against the spirit And therefore I have provided this Treatise upon Actions of slander as a Bridle for all rash and inconsiderate â—ongues that seeing the mischiefe they may the better know how to avoyd it And here I shall lay downe this as a generall rule which I shall by the way as I goe make good in every perticular That all scandalous words which touch or concerne a man in his life Liberty or Member or any corporall punishment or which scandall a man in his Office or place of Trust or in his Callâ—ng or function by which he gaines his living or which tend to the slandering of his Title or his disinheritance or to the losse of his advance me it or preferment or any other particular damage or lastly which charge a man to have any dangerous infectious disease by reason of which he ought to seperate himselfe or to be seperated by the Law from the society of men all such words are actionable And first for the first part of this Rule viz. Scandalous words which touch or concerne a man in his life such words are actionable If a man call another Traitor Felon Theefe or Murderer an Action lies for these words because they call a mans life in question So it is all one if one shall say of another that he killed or murdered I. S. or that he stole his goodâ— or that he poysoned him if it appeare to be intended to be wittingly done or the like these words likewise are Actionable as appeares by the Bookes in the Margent So if one shall say of another he hath burnt my Bâ—â—ne with Corne which is Felony this likewise will beare an Action I have a Report of a case which was thus a Servant of one Mr. Roger Brook said of one Mis. Margaret Passey that she sent a Letter to his Master and in the said letter willed his Master to poyson his Wife Bridget Brooke and in this case it is said that upon a Writ of Error brought in the Cnequer Chamber it was resolved the words were actionnable and the judgement affirmed which case I confesse I much doubt because here was but bare advise and nothing appearing to be done like Eatons case in Cooks 4 Booke Where the Defendant said of the Plaintiffe that Hee gave his Champion Councell to make a Dâ—ed of gift of his goods to kill him c. adjudged that the words were not Actionable because that the purpose or intent of a man without act is not punishable by the Law And I conceive it will not be like the case put by Tanfiâ—ld Iust. in Harris and Hixons case where he saith that to say of another that he lay in wait to Rob or to murder I. S. will beare an Action because that he accuses him of an act viz. The preparation and lying in wait which is punishable by the Law but in the former case there is nothing but bare advise which is not punishable by the Law Hawly
case will beate it and it is usuall so to doe in these cases for the increase of damages Bramston chiefe Iustice in the arguing of Hawes case which I remembred before tooke this for a Rule that if words did import a scandall of themselves by which damage might accrue in such case the words would beare an Action without alledgeing of a particular damage But now on the other side words which doe not touch or concerne a man in any of the cases aforesaid will not beare an Action without alledgeing of a particular damage Words spoken in scandall of a mans Title will not beare an Action without averring of a particular damage as appeares by the cases before cited upon that ground There are many words which are words of passion and choler only as to say of a man that he is forsworne Generally or that he is a villain or a rogue or a varlet or the like these words are not Actionable of themselves yet I doe conceive that in these cases an Action will lie with an Averrement of a particular damage by reason of the speaking of them There are other words which concerne matter meerely Spirituall and determinable in the Ecclesiasticall Court only as for calling of a man a Bastard a Heretique a Scismatique an Advoâ—vterer a Forniâ—atoâ— or for calling of a Woman a Whore or charging her witâ— any particular act of incontinency or the like yet in these cases with an averrement of a particular damage an Action will lie at the Common Law as it is adjudged in Anne Davies case cited before By Popham Chiefe Iustice if one say of a Woman that is an Inholder that she hath a great infectious disease by which she loses her guests an Action will lie this must bee taken with an averrement of that particular damage otherwise an Action will not lie unlesse the disease be such for which shee ought to separate her selfe or to be seperated by the Law from common society as I shall shew you hereafter Axe and Moods case cited before the Plaintiffe being a Dyer brought an Action for these words thou art not worth a Groate adjudged that the words were not Actionable because that many man in his beginning is not worth a Groat and yet hath good credit with the world But in this case it was agreed that if the Plaintiffe had averred specially that he was thereby damnified and had lost his credit so that none would trust him with such an averrement the Action would have layen In the case of the Foreman of a Shoomakers Shop cited before for these words it is no matter who hath him for he will cut him out of doores the Plaintiffe averred that the Common acceptation of these words inter Calâ—eareos is that he will begger his Master and make him run away and shewed a speciall damage by the speaking of these words and it was adjuged that the Action would â—ie which I conceive was only for the particular damage for to say of a Servant that he doth Cheaâ—e Cousen or defraud or that he will begger his Master or the like will not beare an Action without an averrement of a particular damage And in this case it was said by the Court that for some words an Action will lie without an averrement of any particular damage as for calling of a man Theefe Traytor or the like and some words will noâ— beare an Action without an averrement of a particular damage As if a man shall say of another that he kept his Wife basely and starved her these words of themselves will not beare an Action but if the party of whom they were spoken were to bee maried to another and by these words is hindered in such case with an averrement of the particular damage an Action will lie So likewise in the case of Dickes and Fenne which I also cited before where one said of the Plaintiffe being a Bâ—ewer that he would give a peck of Malte to his Mare and â—ead her to the water to drink and she should pisse as good Beere as the Plaintiffe brewed it was resolved that the words themselves were not Actionable because of the impossibility of them But it was agreed by the Court that if there had beene a speciall damage alledged as losse of Custome or the like the Action would have laien Hawes case cited likewise before one said of him that he had spoaken against the Booke of Common Prayer and said that it was not fit to bee read in the Church for which he brought his action and shewed how that by reason of the speaking of these words by the Defendant he was cited in to the Ecclesiasticall Court and had paid and expended severall summes c. adjudged that the words themselves were not Actionable because if they had beene true they charge him only with an offence against a penall Law which doth not inflict corporall pâ—nishment but for non payment of the penalty But it was resolved that for the particular damage the Action would lie and of this opinion were Heath and Mallet Iustices But Bramston Chiefe Iustice the other Justice being absent was of a contrary judgement and hee tooke this for a Rule that if the words did not import a scandall in themselves as Hee conceived they did not in this case in such case the averrement of a particular damage should not make them Actionable But with all due respect to the judgement of this learned Judge I doe conceive that the words are in themselves scandalous because that they do charge a Man with faction and opposition to established Law and settled Government But if they were not in themselves scandalous yet I conceive according to the judgement of those reverent Jâ—dges that for the dammage only the Action will lie for otherwise the Plaintiffe shall suffer through the default of the Defendant and be without remedy which I conceive the Law will not permit but I submit this to the judgement of the learned Reader Lastly words which charge a man with any dangerous infectious diseasâ— by reason of which he ought to seperate himselfe or to be seperated by the Law from the society of men will beare an Action If a man say of another that hee hath the French Pox an Action will lie Taylor brought an Action against Packins for these words thou art not worthy to come into any honest mans company thou art a Leaprous knave and a Leaper Adjudged that the words are Actionable because that it is cause of seperation by the Law of God and Man So by Tanfield Iustice to say that one is infected with the French Pox will beare an Action but to say that one hâ—th the falling Sicknesse is not Actionable except that it disables him in his profession as to say that a Lawyer hath the falling Sicknesse an Action lieth because that it disableth him for his businesse Vpon this ground I conceive to
say of a man that hee is infected with the Plague will beare an Action because this also is a dangerous infectious disease and a cause of separation I have now finished my task of shewing you what words are Actionable in the Law and what not And yet Reader I shall not end this Treatise here for there are many things not worthy the knowing which I could not aptly introduce before and therefore not to be omitted There are two things or grounds very remarkable in all Actions upon the case for words First Causa dicendi the ground or occasion of the speaking of the words And that must be collected out of the precedent discourse or communication concerning the Plaintiffe or else out of the relation that the words themselves have to the Defendant or otherwise as the case shall fall out to be The next thing is the affection of the Speaker that is to say whether the words were spoken Ex malitia or not First for the first Causa dicendi the ground or occasion of speaking of the words And here I shall lay downe this as a ground that scandalous words which of themselves singly would beare an action yet being joyned to other words or discourse and so Causa dicendi or the subject matter being considered they will not beare an Action For Sensus verborum ex causa dicendi accipiendus est c. And words must ever be construed according to the subject matter Henry Lord Cromwell brought an Action de Scandalis Magnatum against Edmund Denny Vicar of N. in the County of Norfolke c. for these words It is no marvill that you like not of me for you like of those that maintaine sedition against the Queens proceedings the Defendant pleaded a speciall justification in effect thus that the Defendant being Vicar of N. the Plaintiffe procured I. T. and I. P. to preach there who in their Sermons enveyed against the Booke of Common Prayer and affirmed it to bee superstitious wherefore the Defendant inhibited them for they had no licence nor authority to preach yet they proceeded through the encouragement of the Plaintiffe and the Plaintiffe said to the Defendant Thou art a false varleâ— I like not of thee to whom the Defendant said It is no marvill though you like not of me for you like of those meaning the aforesaid I. T. and I. D. that maintaine sedition meaning that seditious Doctrin against the Queens proceedings In this case it was adjudged that the justification was good For though that in this case taking the words singly of themselves as the Plaintiffe hath declared they might have beene Actionable because that then they could not be construed otherwise then of a publike and violent sedition as the word it selfe doth import Yet now the ground and occasion of the words appearing by which it is evident that the defendant did not intend any publike or violent sedition but only that seditions Doctrine against the proceedings of the Queene viz. the Statute de anno primo by which the Common Prayer was established and God forbid saith the Booke that words by a strict and Grammaticall construction should be taken contrary to the manifest intent of the Speaker therefore it was ruled upon the coherence of all the words that the justification was good and so the words not Actionable And in this case it was ruled that if a man bring an Action against another for calling of him murderer and the Defendant will say that hee was speaking with the Plaintiffe of unlawfull hunting and that the Plaintiffe confessed that he had killed divers Hares with certaine Engines to whom the Defendant answered and said Thou art a murtherer meaning the killing of the said Hares that this was a good justification and so upon the whole matter the words not Actionable Byrchley an Attorney brought an Action against one for these words you are well knowne to bee a corrupt man and to deale corruptly resolved that the words were Actionable but in this case it was ruled that if the precedent speech had beene that Byrchley was a Vsurer or that he was Executor of another and would not performe the testament and upon this the Defendant had said these words upon a speciall justificatioâ—â— as aforesaidâ— they would not beare an Action Banister and Banisters case resolved that if I call an heire a Bastard an action will lie but if the defendant pretend that the plaintiffe is a Bastard and that he is next heire there no Action will lie The reason of this is plaine because causa dicendi or the occasion of speaking of these words is not to defame the Title of the plaintiffe but only to justifie the Title of defendant and it is lawfull for any one to speak in justification of his owne Title though hee do thereby seeme to slander the Title of another man agreeing with this case is Gilbert Gerrards case cited before Molton brought an Action against Clapham and declares how that there being a cause pending in this Court betwixt the plaintiffe and defendant upon reading of certaine Affidavids of the plaintiffes in Court the Defendant said openly in presentâ—â— auditu Iusticiariorum juris peritorum c. There is not a word true in the Affidavids which I wil prove by forty witnesses and alledges that the words were spoken malitiose yet it was resolved by the Court that they were not Actionable because as they are usuall words upon the like occasion so they are spoken in the defence of the defendants cause and this case was likened to the case of the Bastard immediatly before And Bartley Iustice said that there are two things mainely considerable in words the words themselves and causa dicendi and therefore somtimes though the words themselves would beare an Action yet causa dicendi being considered they will not be Actionable as in this case Now as my Lord Cooke ses in Cromwels case before remembred so I say to you In these cases Reader you may take notice of an excellent point of learning in Actions for slander to observe the cause and occasion of speaking of them and how this may bee pleaded in excuse of the Defendant But before I passe this Reader I shall observe unto you that the defendant in these cases might take the generall issue if he would viz. that he is not guilty modo forma as the Plaintiffe hath alledged and so give in evidence the coherence and connection of the words and the occasion of speaking of them and have them specially found if it be conceived to be necessary Or the defendant may as the case shall require justifie the speaking of other words and traverse the speaking of the words in question and so likewise upon the evidence have the words specially found And hereupon where the speciall finding of the Iury will warrant the Declaration of the Plaintiffe and maintaine the action and where not may be very questionable and worthy
the knowing The Defendants plea is that which must guid us in these cases if hee plead not guilty the words are as I have said before modo forma as the plaintiffe hath alledged and if the justifie the speaking of other words and traverse the words in question he doth it thus absque hoc that he spake the words in the Declaration modo forma as the plaintiffe hath alledged Now where the words that are founde by the Iury shall bee said to agree modo forma with the words in the Declaration this is the question here I shall lay down this as a ground That where the words that are found do not agree with the Declaration in the substantiall and essentiall forme that in such case they do not warrant the Declaration But if they do agree in the substantiall and essentiall formâ— though they agree not in every word yet they doe well warrant the Declaration and by consequence maintaine the Action Sydenham against Man for these words If Sir Iohn Sydenham might have his will he would kill all the true Subjects in England and the King too and he is a maintainer of Papistry and rebellious persons The defendant pleaded other words and traversed the speaking of the words modo forma c. the Iury found that he speak these words viz. I think in my conscience that if Sir Iohn Sydenham might have his will he would kill c. and find all the subsequent words before Alledged and whether the Defendant were Guilty of speaking of the words in the manner and forme as they are Alleadged by the Plaintiffe in his Declaration was the Question resolved against the Defendant And upon a Writ of Error in the Chequer Chamber the Court also inclined against the defendant for the matter is in effect the same and the forme must be understood the essentiall forme not according to every word here you have the ground laid downe before Yet the Booke saith that Pasch. 16. though the Court inclined that either of the words would beare an Action yet it was agreed that the words were not found so absolute as the Declaration neither moved credit in the eare so fully which is the force of a slander and then they are not the same words in force and effect as if the words were laid I know him to be a Theefe and it were found I thinke him to bee a Theefe For my part Reader I doubt in this case whether the finding of the Jury do warrant the Declaration because they are not the same words in force and effect as is said before And I conceive they are not the same in the essentiall forme of them for I question â—as I have don before if a man should say of another that he doth think if he might have his will he would kill all the Kings true Subjects and the King too or that he doth think such a one to be a Theefe whether these words be Actionable or no because the words are no positive charge out only the thought or opinion of the Defendant But to this it may bee said that if such words as these should not be actionable this would open a gap for scandalous Tongues to slander a man at pleasure and yet no Action lie which were very mischievous therefore I shall leave it to the judgement of the Reader Fenner against Mutton in an action upon the case for words which were thus Nicholas Fenner procured 8. or 10. of his neighbours to perjure themselves the defendant pleaded not guilty and the Iury find that the defendant said that Nicholas Fenner had caused 8. or 10. of his Neighbours to prejure themselves and if this Verdict were found for the Plaintiffe or the defendant was the question and the doubt was whether this word cause amount to as much as procure Tanfield Iustice seemeth that it doth not for hee might be a remote cause as causa fine qua non and yet no procurer as if a Notary writ a writing and put to this a seale and another take it and forge and publish it the writer was the cause that this was forged and yet no procurer of it I find no judgement in this case therefore quaere of it Chipsam against Ieeke for these words Chipsam is a Theefe for he hath stollen a Lambe from A. and Geese from B. and killed them in my ground issue was joyned whether the Defendant spoake the words modo forma c. the Jury find that the defendant said that the plaintiffe was a Theefe for hee hath stollen a Lambe from A. and killed it in my ground but they find that hee spoake nothing of the Geese yet it was resolved that the finding of the Jury did well warrant the Declaration of the plaintiffe because that the substance of the words is that he is a Theefe and thee for hee hath c. only a demonstration in what he is a Theefe which is as well in stealing of the Lambe as of the Geese and then if it bee found that he said any of them it sufficeth and judgement was given for the plaintiffe Norman and Symons case the plaintiffe brought an Action for words and declared that they were spoaken false malitiose the Iury find the words spoaken falso injuriose and it was adjudged that the Action would not lie because the finding of the Jury doth not warrant the Declaration in the substantiall forme of it for if the words were not spoaken out of malice they will not be Actionable as I shall shew you hereafter Brugis brought in Action for these words Brugis is a maintainer of theevs and a strong Theefe himselfe issue was joyned whether the Defendant spoake the words modo forma and the Iury found all the words except the word strong and in this case the Plaintiffe had judgement Here we may observe that though every word alledged in the Declaration be not found yet the essentiall and substantiall forme of the words being found that is sufficient to maintaine the Declaration This I say you may observe not only by this case but the cases also before put Barbar brought an Action against Hawley for these words Iohn Barbar and his Children be False Theeves men cannot have their Cattell going upon the Common but they will kill them and eat them c. issue was joyned whether the Defendant spoake the words modo forma and the Iury fonnd that he spoak these words viz. Men cannot have their Cattell going upon the Common but Iohn Barbar and his Children will kill them with Barbars Doggs in this case it was adjudged for the Defendant The reason is plaine because the words found by the Iury do vary in the essentiall and substantiall forme from the words in the Declaration For the words in the Declaration do charge the Plaintiffe with Tneft for which an Action would lie but the words found by the Iury charg him only with trespasse for
which no Action will lie I have sufficiently proved the ground laid downe before and therefore I shal now proceed to the second thing which I have touched before very considerable in all Actions for words and that is Quo animo with what affection the words are spoken whether ex malitia or not for if it do appeare that they were not spoken out of malice they will not be actionable Ralph Brook York Harrauld brought an Action against Henry Mountague Knight Recorder of London for saying of the Plaintiffe that he had committed Felony The Defendant pâ—eaded how that he was a Counseller and earned in the Law and that he was retained of Counsell against the Plaintiffe at such a Tryall and set forth all the matter in certaine and that hee in giving evidence to the Jury spoake the words in the Count which words were pertinent to the matter in issue in this case it was resolved that the Action would not lie because that the words were not spoken out of malice for that they were spoken to the purpose and being to the purpose though the words were false no Action will lie against the Defendant As in an Appeale of Murder if the Counsell with the Plaintiffe saith that the Defendant committed the murder though it be not true yet he shall not he punished for it because that what he said was pertinent so that it cannot be taken to be spoken out of malice but only as of Counsell for the Plaintiffe But if that which he saith be impertinent in scandall of him against whom he speaks it as in Trespasse of battery to say that the Defendant is a Felon there an Action will lie for that they cannot be otherwise taken but to bee spoken out of malice And in this case it was further said that if a Counseller be informed of any matter of slander apt to be given in evidence and hee speakes it at other places and at another time then in evidence an Action lies for it for the same reason In confirmation of the former case there was this case put and agreed for Law which was the case of Parson Prit in Suffolke the case was thus In the Acts and Monuments of Mr. Fox there is a relation of one Greenwood of Suffolke who is there reported to have perjured himselfe before the Bishop of Norwich in the testifying against a Martyr in the time of Queene Mary and that afterwards by the judgement of God as an exemplary punishment for his great offence his bowels rotted out of his belly And the said Parson Prit being newly come to his benefice in Suffolke and not well knowing his Parishoners preaching against perjury cited this story for an example of the justice of God and it chanced that the same Greenwood of whom the story was written was in life and in the Church at that time and after for this slander brought an Action to which the Defendant pleaded not guilty c. and upon evidence all the matter appeared and by the rule of Anderson Justice of Assise he was acquitted because it did appeare the Defendant spoak the words without malice and this rule was approved by the Kings Bench in this case In the arguing of Sanderson and Rudds case which I remembred before these cases following were cited by Gotbolt Serjeant who was of Counsell with the Defendant and agreed by the Court for Law Iames and Rudlies case the Defendant spoake by way of advise to his friend telling him that the Plaintiffe was full of the French Pox and therefore advised him not to keepe him company adjudged he said that no Action would lie for these words of advise the reason is because that these words were not spoken out of any malice to the Plaintiffe but meerely cut of good will to his friend Norman and Simons case remembred before the Plaintiffe brought an Action for words and declared that they were spoaken falso malitiose the Jury find the words and that they were spoken falsâ— injuriose judgement was given that the Action would not lie because that they did not find the malice for if the words were not spoaken malitiously no Action will lie And therefore I conceive that if a man bring an Action for words and do not declare that the words were spoken malitiose as well as falso that the Action will not lie In the case of the Lady Morrison that I have cited before this case was put by Popham chiefe Iustice If one say in Counsell and good will to his friend that it is reported that he hath done such or such an ill Act and advises him to purge himselfe and avoid such occasion afterwards it se mes saith he that an Action will lie for such counsell but quaere saith the Reporter for it is without malice And truly for my part I conceive an Action will not lie for that reason but I submit it to the judgement of the Reader And now I have finished my labour of shewing you what words are Actionable in the Law and what not It will in the next place be very necessary to be knowne where a mans Suit or prosecution at Law shall subject a man to an Action and where not and here I shall lay downe this as a rule That for any Suit or other legall prosecution in course of Iustice if not out of malice and touching a mans life no action will Lie A Man brougâ—t a Writ of Forger of false deeds against a Lord pending which Writ the Lord for the slander of the said Forgery by the said Suit brought his Action de scandalis Magnatum the Defendant justifies the said flander by bringing of the said Writ by the better opinion there which is also agreed for Law in Bucklies case in my L. Cokes 4. Booke the justification was good for saith the Booke no punishment was ever appointed for a Suit in Law though that it were false and for vexation Cutler and Dixons case adjudged that if one exhibit Articles to a Justice of Peace against a certaine person containing divers great abuses and misdemeanours not only touching the Petitioners themselves but many others and all this to the intent that he should be bound to his good behaviour in this case the party abused shal not have for any matter contained in such Articles an Action upon the Case because that they have pursued the ordinary course of Justice in such case and if actions should be permitted in such cases those which have good cause of complaint will not dare to complaine for feare of infinit vexation Oâ—en Wood exhibited a Bill in the Starchamber against Sir Richardâ— Buckley and charged him with divers matters examinable in the same Court and further that he was a maintainer of Pirates and Murderers and a procurer of Murders and Pyracies which offences were not determinable in the said Court upon which Sir Richard Buckley brought an Action In this case it was adjudged
to the arbitrement of I. S. concerning a matter in controversie which did arise of the part of the wife of B. before covertute I. S. awarded that A. should pay so much to B. and his wife In this case it was moved by Seriant Rolls that the award of paiment of mony to the wife was out of the submission and therefore nought But by the whole Court the award was held good because it doth appeare upon the submission that the controversy did arise on the part of the wife Secondly an award may be void where it is not according to the submission in respect of the things or matters submitted If one be chosen arbitrator to make an Arbitrement upon one thing and he makes an Arbitrement upon another thing the Abitrement is void In the case of Moore and Bedel cited before who submitted themselves to an Arbitrement of all matters in varience betwixt them the Arbitrators award amongst other things that whereas Bedle being possessed of a certaine coppy hould â—oulden of the Mannâ—r of L. in the Country of B. had made a Lease for years of the said Copihould by Indenture contrary to the Custome that one William Salter Pro Posse suo should cause that no advantage should be taken of the forfeiture in this case it was adjudged that the award concerning this Coppihould not being within the submission was void Two submitted themselves by recognisance to an Arbitrement of the right and interest of 200. Acres of Land c. the Arbitrators award that the Defendant should have Brakes during his life in the land resolved that the award was not according to the submission because that that was of the right and interest in the land and the award is only of parcell of the profits out of it If I. N. and three others put themselves upon an award of I. S. of all Actions and demands betwixt them In this case the Arbitrator hath good authority to make an award of all joynt matters betwixt them and of all severall matters also but he cannot arbitrate any matter betwixt the three only because they are one party against the fourth but he may determine betwixt any of the three and the fourth In 9. E. 4. two submitted themselves to the arbitrement of one I. L. de omnibus actionibus personalibus sectis querelis c. betwixt them c. who awarded that because the Defendant had committed divers offences to the Plaintiffe and that the Plaintiffe was seised of such a house in Fee that the Defendant should release to the Plaintiffe all the right which he hath in this house c In this case I conceive the better opinion to be that the Arbitrement is void because that the power of the Arbitrator who is a Judge privatly chosen by the parties shall be taken stricti juris in that thing onely of which the compremise is and not in another thing and here the compremise was but of a thing personall and the Arbitrator hath awarded a satisfaction reall to wit aâ—release of a right to a house which was not comprised within the submission And Littleton in this case said that if he had awarded that the Defendant should serve the Plaintiffe two yeares this would be void And by Choke if we put our selves in Arbitrement de jure titulo possessionâ— Manerij de Dale and the Arbitrator makes an award of the Mannor of Sale this is void Haynes against Aâ—nsteed in Debt upon an obligation to stand to an Arbitrement in all causes that have bin depending betwixt the parties ab initio mundi the award is that the Defendant shall release all causes to the Plaintiffe from the beginning of the world usque c. Tanfield Iustice that the award is void for it is that the Defendant shall release all causes generally and the submission is of all causes depending then and so the award void and then the obligation not forfeited quod Curia concessit and judgement was given for the Defendant In a Writ of Error upon a judgement given in the Common Bench in debt upon an obligation to stand to the award of I. S. concerning an action of account pending the arbitrator made an award touching the account and further awards that every of the parties should release to the other all Actions the error in point of Law was that the award was void for though the Arbitrement may be good in part and void in part yet if it be void in any part the obligation is void quod non allocatur for per curiam when the award is made for more then is submitted as in this case it is good for the thing submitted and void for the surplusage but if the award bee made of lesse then is submitted then it is void for the whole If divers Covenants be and a man is bound in an obligation to performe them and some of the Covenants are void and against Law and the residue good yet he ought to performe those that are good otherwise the obligation is forfeited and this was one Alderman Lees case vide 14. H. 8. wherefore judgement in this case was affirmed Goffe against Browne upon an Obligation dated the 23 of February to performe an award of all causes untill the day of the Date of the Bond. The Defendant pleaded that the Arbitrators made no award The Plaintiffe replyed that the 28 of March following they made an award de super premissis that the Defendant should pay the Plaintiffe 20. l. at Midsummer following in full satisfaction of all matters between them and that they then should make the one to the other generall releases of all matters betweene them and assigned the breach for the non-payment of the 20. l. The Defendant demurred because the award did seeme to exceed the submission being for discharge and satisfaction of all matters to the day of the award which was more then was submitted for it may bee that the Arbitrators might meane some part of the 20. l. in discharge of the causes that might arise betweene the 23. of February and the 28. of March which were not within their power and so for the release Yet judgment was given for the Plaintiffe either because de super Premissis may import a restraint to the thing submitted or else that no new causes shall be supposed except they were alledged as in pleading of awards of causes they neede not averre that these were all c. There was a case which was betwixt Robert Tiderby the Father and Robert Tiderby the sonne which was thus they bound themselves to stand to the award of I. S. concerning all controversies quarrels and debates right title and possession of or concerning the Mannor of Dale I. S. awarded a convayance of the Mannor of Dale to certaine uses and that Robert Tiderby the Father should deliver all evidences and charters concerning the Mannor In this case it was objected that