words spoken which such a mans life which are by way of interrogation or by way of hearesay or relatiâ—n or lastly by way of negation only and yet will beare an Action It was said at the Kings Bench Barre which I heard and observed that it had bin adjudged in this Court in one Appletons case that where a man said to another where is my Peece thou stoâ—lest from me that these words were Actionable And Iones Iustice then said that he remembred this case to be adjudged A. said that B. told him that C. stole a Horse but he did not beleeve him that these words with an averrement that B. did not say any such thing to A. were actionable Agreeing with this case is the Lady Morrisons case Widdow who brought an action for words against VVilliam Câ—de Esquier and declares that she was of good fame c. and that Henry Earle of Kent was in speech and communication with her concerning Marriage the Defendant preâ—â—issorum non ignarus said these words Arsoot hath reported that he hath had the use of the Lady Morrisons body at his pleasure ubi revera Arscot did never report it and alledges that the Earle of Kent upon the hearing of these words surceased his suit by which she lost her advancement c. adjudged that the words were Actionable though spoken upon the report of another for otherwise a man might malitiously raise slanderous Reports of another and should never bee punished for it But in this case Tanfield Iustice said that if it had beene expressely alledged that in truth it was so reported by Arscot then an action would not lie against Cade for saying that Arscot reported it because it is true that he did so And Bartley Iustice said that an action had bin brought for these words You are no Theefe In which there was an averrement which implied an affirmative and agreed to be Actionable and Appletons case was then agreed for Law A. said to Is. hast thou beene at London to change the money thou stollest from me In this case it was objected that these words were not actionable because that they are spoken onely by way of interrogation and are no direct affirmative But Iones and Barily Iustices the others being absent both said that the words were actionable for the first words Hast thou been at London c. are the only words of interrogation and the subsequent words viz. The mony thou stollest from mee is a positive affirmation and Baâ—tley Iust. then said that it had beene oftentimes adjudged that words of interrogation should be taken as a direct affirmation which Iones Just. also agreed and further said that this case had bin adjudged One said to another I dreamt this night that you stole a horse these words were adjudged actionable And he said that if these and the like words should not beare an action a man might bee as abusive as he pleased and by such subtill words as these always avoyd an action And how I will put you a case or two where words which imply an affirmative shall be actionable One said of another he would prove he had stollen his books In this case the opinion of the Court was that the words were actionable because they imply an affirmative and are as much as if hee had said that he had stollen his Books And so if I will say of another that I will bring him before a Justice of Peace for I will prove that he hath stollen c. though the first words are not actionable yet the last are Whitaerâ—s brought an action against Lavington for these words I will prove that Whytacre is for sworne and that ten men can justifie and I could prove him perjured if I would adjudged that the words were actionable for that it is a great slander to be reported that it is in the power of any one to prove one perjured and it is as a direct affirmance It will be proved by many vehement presumptions that Welby was a plotter and contriver of Thomas Powels death because hee would not sell his Land to the said Welby adjudged the words were actionable And now I have shewne you the affirmative part where words which touch or concerne a mans life shall bee actionable I shall now shew unto you the negative part where words in such case shall not be actionable Words that touch or concern a mans life may not be actionable in these cases Where they are too generall or not positively affirmative or of a double or indifferent meaning or doubtefull in sence or for that they are incertaine in themselves or the person of whom they are spoken or else by reason of the subsequent qualification of the words or because they doe not import an Act but an intent or inclination only to it or for that they are impossible or lastly because it doth appeare that the speaking of them could be no dammage to the plaâ—ntiffe in all these cases the words will not be actionable And first words that are too generall or not positively affirmative will not bee actionable To say of a man that he deserves to be hanged adjudged not actionable because they are too generall for that hee doth not shew any thing that hee hath done to deserve it and bâ— Yelverton Iustice hee may deserve it for unnaturall using of his Parents and the like where he shall not bee punished by the Law Cooke lib. 4. f. 15. b. Yeomans and Hexts case for my ground in Allerton Hext seekes my life adjudged not actionable because seeking his life is to generall for which there is no punishment So if I say of another that it is in my power to hang him adjudged not actionable in Prâ—dham and Tuckers case cited before because the words are too generall Iames Steward brought an action against Bâ—shop for saying of him that hee waâ— in Warwicke Gaoâ—e for stealing of a Mare and other Beasts and adjudged that the words would not beare an action because they doe not affirme directly that he did steale them as if he had said that he stole them and was in Goale for it but onely make report of his imprisonment and the supposed reason of it and it may very well be that the Warrant of Mittimus was for stealing expressely as is the common forme of making of the Kalender of the Prisoners for the Justices of Assize and the like Georg Blaâ—d brought an action against A. B. for saying that he was Indicted for Felony at such a Sessions it was said that it was questioned whether an action would lie because an Indictment is but a surmise But I conceave that it is without question that no action wilâ— lie in such case because that to say a man was indicted of Felony is no more then to say hee was impeached or accused for Felony which an honest man may bee and is no positive affirmation
beâ— onely against a penall law for the Statute of 1. of the Queen cap. 2. gives a penalty only for speaking against the Booke of Common Prayer but in default of payment thereof imprisonment And hee held that all scandalous words which if they were true would make a man lyable either to a pecuniary or a corporal punishment would beare an action But Mallet Iustice and Bramston Chiefe Iustice were of a contrary judgment and their reason was because that if this should be law it would be a great occasion to increase and multiply actions for words which the Law labours to suppresse as much as may be for then all words spoken of any man which if they were true would subject him to a penalty either by the Common or the Statute Law would beare an action as to say of a man that hee hath erected a Cottage or committed a Ryot or the like would be actionable which the Law will not suffer for the reason aforesaid and judgment was given accordingly Mallet Justice in the arguing of this case said that there was an action then pending in the Common-Pleas for calling of a man Recusant and hee said that his opinion was the action was not maintainable I never heard what became of that case but I conceive the Law to bee with Justice Mallet for though there bee many penalties and forfeitures provided by Statutes against Recusants yet no corporall punishment is given by any of them no not after conviction Thorneton brought an action against Iobson and layed that he was a Carrier and of good same and that the defendant said of him that hee was a common Barretor In this case the booke sayes that the Court was of opinion that if these words were spoken of a Justice of Peace or publike Officer or of an Attorney or the like that they would beare an action by which it is evident the Court did incline against the action in this case In an action upon the case for words the words were I am sorry for thy Wife and children thou art a common Barretor and I will indict thee for it aâ— the next Assizes c. adjudged the words were not actionable and by Yelverton Justice the action will not lye for saying that hee is a Barretor no more then for saying that he is a Riotor a peace breaker or the like and an action will not lye for saying that a man is a Rogue To say of an Attorney that hee is a Champertor will beare an action But I conceive upon the case aforesaid that to say of one who is no Attorney Justice of Peace nor other publike Officer that he is a Champertor or a common maintainer of suites will not be actionable nor is it actionable in case of the Atorney to say that he is a common maintainer of suites The reason of these cases may bee because that though any man may bee indicted for being a common Barretor Champertor or maintainer of suites and thereupon fined and imprisoned yet the punishment is only the Fine and the imprisonment as a consequent or incident thereunto And as it is said before in Hawes case if an action should lye in these cases then in all cases where a man shall charge a man with a crime or offence for which a man might be indicted and fined an action would lye which would occasion multitudes of suites of this nature that the law labours so much to suppresse And now I have shewn you what words which touch or concerne a man in member or any corporell punishment will beare an action I shall in the next place shew you what words in such case will not be actionable and that may be in these cases either by reason of the doubtfull or indifferent meaning of them or of the incertainty of the words themselves or of the persons of whom they are spoken or of the subsequent qualification of them or upon the other grounds and reasons which I have layd downe before For we must know that I may speak once for all that all those grounds which are before set downe whâ—re words shall not be actionable which touch or concerne a mans life will agree with all actions for words whatsoever whether that the words touch or concerne a man in corporall punishment as before or in his Office or place of trust or in his calling or function by which he gaines his living or the like as is manifested likewise in part before and shall bee more fully hereafter but to the point what words in this case wil not be actionable Box and Barnabies case cited before to say of an Attorny that he is a Champertor will beare an action But to say that he is a common maintainer of suites will not bâ—are an action for there is maintainance lawfull and unlawfull an Attorney may and ought to maintaine his Clyents cause and an Attorney may well bee said a common maintainer because he is common to as many as will retaine him thus you see words of a double intendment shall be taken best for the Speaker for the words in this case shall not bee intended of any unlawfull maintenance but of a lawfull maintaining of his Clyents causes Stanhope brought an action for these words Master Stanhope hath but one Mannor and that hee hath gotten by swearing and forswearing adjudged the words were not actionable for this reason amongst others because that for ought appeares hee might bee forsworne in ordinary communication and not in any juditiall proceeding which is not punishable by the Law and where the words are of an indifferent meaning the Law will as is said before take them the best for the Speaker Smith brought an action for these words Thou art forsworne and hast taken a false oath at Hereford Assizes by the opinion of Iones and Bartley Iustices the other Justices absent the action will not lie because that hee might be forsworne in ordinary communication otherwise if hee had said that he had taken a false Oath in the Assises for there it shall be intended that he forsworne himselfe in a juditiall proceeding In a case that I have cited before which was Mich. 41. 42. of the Queene in the Common Pleas this case was remembred by Williâ—ms thou art c. thou wert forsworne in the Kings Bench he said that in this case the Plaintiffe could have no judgement because of the double intendment of the words for they may bee taken that he was forsworne either in the Court or the Prison and the best shall be taken for the Speaker viz. that he was forsworne in the Prison Weaver brought an Action against Cariden for these words he is detected for perjury in the Starchamber adjudged that the Action would not lie because that an honest man may be detected but not convicted and every one who hath a Bill of perjury exhibited there against him is detected here the words do not positively affirme him to be
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.
that so the said words not examinable in the said Court an action would lie because this could not be in course of Justice for that the Court hath not power or jurisdiction to do that which belonges to justice nor to punish the said offences c. Also by the Law no Murder or Pyracy can be punished upon any Bill exhibited in English but the offender ought to be indicted of it and upon this to have his tryall so that he that preferred this Bill hath not onely mistaken the proper Court but the manner and nature of prosecution so that it hath not any appearance of an ordinary Suit in course of justice But if a man bring an Appeale of murder returnable in the Common bench for this no action lies for though the Writ is not returnable before competent Judges which may doe justice yet it is in nature of a lawfull Suit namely by writ of appeale Scarlet brought an Action against Stiles for these words thou didst steale a Sack The Defendant pleaded that there was a Sack of a mans unknowne stolen and that the common fame was that the Plaintiffe had stolen it whereupon the Defendant did informe Thomas Kempe a Iustice of Peace that hee had stolen it and in complaining and informing the said Iustice thereof hee did there in the presence of Kempe and of the Plaintiffe say unto the Plaintiffe of him thou diddest steale c. whereupon the Plaintiffe demurred in Law There is nothing spoken to the case in the Booke but I conceive the Law will be somewhat strong for the Plaintiffe that the demurrer is good and that the Action notwithstanding the Defendants justification will well lie For though common fame as it is agreed in Câ—udington and Wilkins case be a sufficient warrant to arrest for felony though the same be not true as also to charge a man with felony as it is agreed in Bland and Masons case because these tend to the advancement of Iustice yet it doth not warrant any man to say he is a Felon or a Theefe or though common fame be such yet â—he party suspected may be innocent Nor doth it any way difference the case that the words were spoken before a Iustice of Peace because though common fame may as I have said warrant him to charge him with felony before a Iustice of Peace yet it cannot warrant him to call him felon A man brought an Action against another for caâ—ling of him Theefe The defendant pleaded that there was a Robbery done c. communis vox fama patriae was that the Plaintiffe was guilty of it and so justifies but the justification was held nought for common fame that a man is a Theefe wiâ—l nor justifie any man in the calling of him so But there it is agreed that it would defend a man in arresting and imprisoning another for it Cuddington and Wilkins case adjudged that to call a man a Theefe after a generall or speciall Pardon though the Defendant knew it not will beare an an Action but there it is agreed that to arrest a man for Felony after pardon if he knew it not may bee justifiable because it is a legall course and an Act of justice In Iustice Crooks case it was agreed by the Court that though it be lawful for a man to preferre a Bill in the Star-chamber against a Judge for corruption or any other for any grand misdemeanour because it is a proceeding in an ordinary course of justice Yet if the plaintiffe will publish the effect of his Bill in a Taverne or other place openly by this meanes to scandall the defendant this is punishable in another Court notwithstanding the Bill pending in the Star-Chamber because this tends meerely to scandall and not to a pursuing of the ordinary course of justice and so Iones Justice said it had bin adjudged Owen Wood and Buckleys case cited before doth in effect make good that which Justice Iones said the case was thus Owen Wood exhibited a Bill in the Star-Chamber against Sir Richard Buckley and charged him with very great misdemeanours afterwards Buckley brought an action against Owen Wood for publishing that the said Bill and matters in that contained were true and had judgment which was afterwards reversed in the Chequer Chamber because that the plaintiffe layed that the defendant published the Bill to be true without expressing the matters in particular conteyned in the Bill upon which the action was intended to bee founded so that those which heard only the said words that his Bill was true cannot without further saying know the clauses which were slanderous to the plaintiffe So that it is in this case plainely admitted that if hee had published the particular matters contained in the Bill and this had beene shewen by the plaintiffe there the action would have layen Note Reader I have inserted this clause in the rule before layd downe where the prosecution in course of justice is not out of malice and touching a mans life for this reason Because I doe conceave That in case where a man is scandaled in his reputation and his life in question by a malitions prosecution in course of justice that in such case an Action will lye If two falsly and malitiously conspire to indict another and after hee that is so indicted is acquitted a Writ of conspiracy lyes So if one only falsly and malitiously cause another to bee indicted who is therupon acquitted an action upon the case in nature of a conspiracy lyes against him for it and so it hath bin often adjudged I shall only remember one case in point Marsham brought an action against Pescod and declares how that he was of good fame and report and that the defendant intending to defame him falsâ— malitiose procured the plaintiffe to be indicted of Felony to be arrested and imprisoned quousque fuit acquietatus so that the alleaging of the acquittall was insufficient for that hee ought to have said that he was legitimo modo acquiâ—tatus the defendant pleaded not guilty and it was found for the plaintiffe and Richardson said in arrest of judgment that this action will not lie if it bee not alledged that hee was lawfully acquitted and said that F. N. B. had the like Writ and there it is alledged expresly that hee was lawfully acquitted and so it ought here Tanfield Iustice A conspiracy nor an action in nature of a conspiracy wil not lie if the plaintiffe bee not legittimo modo acquietatus but if one procure another to be indâ—cted arrested and imprisoned falso malitiose nee shall have an action upon the case for the slander and vexation though that hee be never acquitted and he said that the like action upon the case had beene adjudged to lie well though that the Plaintiffe were never acquitted and the Justices relied much upon the words falso malitiose and after judgement was given for the Plaintiffe Thus
Actions for Slaunder OR A Methodicall Collection under certain Grounds and Heads of what words are actionable in the LAW and what not A Treatise of very great use and consequence to all men especially in these times wherein Actions for Slaunder are more common and do much more abound then in times past And when the malice of men so much increases well may their tongue want a Directory To which is added AWARDS or ARBITREMENTS Methodised under severall Grounds and Heads collected out of our Year-Books and other pirvate authentick Authorities wherein is principally shewed what Arbitrements are good in Law and what not A learning of no lesse use and consequence to all men then the former for that submissions to Arbitrements were never more in use then in these times And this learning well observed would avoid multitudes of suits and contentions which daily arise through the defects of Arbitrements By JO. MARCH of Grayes-Inne Barister LONDON Printed by F. L. for M. Walbank and R. Best and are to be sold at Grayes-Inne-Gate 1647. Actions for Slaunder OR A methodicall Collection under certaine Grounds and heads of what words are actionable in the Law and what not THE first part of my labour is to shew what words are actionable in the Law and what not In the prosecution of which ti 's not my purpose to run over all the cases that have bin adjudged neither can I if I would my intent is only to lay downe a certaine rule or ground upon which to go which will indeed be as a light to all Cases of this nature and having done so to follow every particular thereof with the most pertinent cases that I finde adjudged in the Law which done there will be very few cases of consequence hitherto adjudged omitted But before I enter upon this part of my labour give me leave to premise this that I do not undertake this work with an intent â—o incourage men in giving â—ll and unworthy language or to teacâ—â— them a lawlesse Dyalect but as my Lord Cook speakes to direct and instruct them rightly to manage that which though but a little member proves often the greatest good or the greatest evill to most men And withall to deterre men from words which are but winde as hee further speakes which subject men to actions in which dammages and costs are to bee recovered which usually trench to the great hinderance and impoverishment of the speakers And in truth that which caused mee to enter upon this labour was the frequency of these actions for I may with confidence affirme that they doe at this day bring as much Gryse to the Mill if not more then any one branch of the Law whatsoever And it were to bee wished and certainly never in a better time then now that the greatest part of them were suppressed that words only of brangle heate and choler might not he so much as mentioned in those high and honourable Courts of Justice For I professe for my part I judge of them as a great dishonour to the Law and the professors thereof especially when I consider that they are used only as instruments to promote the malice and vent the spleene of private jarres and discontents amongst men The Apostle calling in question the wisdome of men for going to Law one with another is not to bee intended as the learned observe upon that place generally to condemne all legall prosecutions be ause a man may without question maintaine his just rights priviledges bâ— Law but onely to reprehend the folly of such who upon every slight and triviail occasion like many in these contention times care not to intayle a suite upon them and their posterity though in Fine they docke their owne intayles without recovery and justly may actions for words come within the compasse of the Apostles exprobration I doe not condemne all actions for words neither for it is but equall that where a mans life liveliehood or reputation which is dearer to him then the former is much endangered by scandalous words that in such case the offender should bee inforced by action to make compensation But that a man should flee to the Law out of malice and make the Courts of Justice maintainers of every small and vaine brabble this seemes to me utterly unlawfull and intolerable amongst Christians I cannot but take notice of that which Wray Chiefe Iustice saith in Cookes 4th Booke That though slanders and false imputations are to be repressed because that oftentimes a verbis ad verbera perventum est which â—confes tends much to the disturbance of the common peace and therefore by all meanes possible to bee prevented Yet he saith that the Judges have resolved that actions for scandalls should not bee maintained by any strained construction or argument nor any favour extended for supportation of them And he addes the reason of it because they doe abound more in these dayes then in times past and the intemperance and malice of men increases Et malitijs hominum est obviandum and further addes that in our old bookes actions for scandalls are very rare and such as are brought are for words of eminent slander and of great importance I is true that the Law doth in some cases discountenance these actions and therefore we have a rule that words if they admit of a double construction shall alwayes be taken in the best sence for him that speakes them as I shall make evident hereafter because usually they are spoken in chollar and passion This I say the Law doth where the words are amphibolus but if the words are clearely actionable in such case the Law will never ayde a man though they were spoken in the distemper of passion which seemeth very hard and unreasonable Nay which is yet more extreame if counsell shall but informe the Jury of the quality and reputation of the Plaintiffe and also make them understand if they be capable the true sence and meaning of the words and the hainousnes of them such words against such a person this inforced and prest on by eminent Councell shall make a Jury give a hundred pounds dammages whereas it doth not appeare to them that the Plaintiffe by the speaking of the words was prejudiced one farthing a case of very great extremity and worthy of reliefe And can any man deny but that this is a countenancing of these frivolous Actions But give mee leave Reader and I will in a word informe you how this may be remedied and though the malice of men cannot bee stopped yet their Actions may Let no words be actionable which do appeare to have beene spoken in chollar and passion or if actionable yet let the Plaintiffe recover no more in damage then hee can upon Oath make appeare that hee was actually damnified by the speaking of them and if this were provided by Act of Parliament our new bookes would bee as little infested with these frivolous actions as the old ones are
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
brought an Action upon the case against Sydnam for these words hâ— is infected of the Robery and Murder lately-committed and smels of the murder adjudged that the words were actionable by reason of the word infected One said of another thou diddest kill a Woman great with Child innuendo Iocosam Vxocem cuiusdam R. S. defunct and rules by the Court that the Action wold lie though that the woman were utterly incertain because that the offence and the party intended to commit it is certaine and t is not like the case where one said that there is one in this company who hath committed a murder there it is incertain of whom the words were spoken and cannot possibly bee ayded by an innuendo but here the words are Actionable without an innuendo but quaere whether the Action would lie or no because there is no expresse averrement that the Woman was dead for the innuendo will not be suffitient Hassellwood brought an Action against Garrâ—t for these words amongst others agreed not to be actionable whosoever is he that is falsest Theefe and strongest in the County of Salop whatsoever he hath stollen or whatsoever he hath done Thomas Hasselwood is falser then hee resolved that these words are actionable with an averrement that there are Felons within the County of Salop but for defanâ—t of such averrement the judgement being given in the Common Pleas was reveâ—ed in this Court Stoner brought an Action for words against Gambell and declares that the Deâ—endant dixit deprefato the Plaintiffe thou innuendo c. hast stollen my Goods and upon not guilty pleaded the Iury found for the Plaintiffe and in arrest of judgement it was said that the Count was nought for the words are in the second person and it is not all adged that the Plaintiffe was present at the speaking of them Et Tota Curia contra for dixit deprefato is as much as Dixit ad prefatum for cannot he say thou hast of the Plaintiffe except that it were spoken to him and rule was given for judgement One â—â—â—mans said of Hext I do not doubt but within two dayes to Arrest Hextâ—or â—or suspition of Fellony adjudged that the words were Actionable because that for suspition of Felony hee shall be imprisoned and his life drawne in question Hill 20. Iac. in the Kings Bench Winch came to the Barre and shewed a Libell against another in Court Christian for these words thou art a Witch and dealest with Witchery and diddest procure Mother Bale to witch the Cattell of I. S. and upon this prayed a prohibition because that the Plaintiffe had remedy at Law and by Fenner and Gawdy Iustices the others abâ—ent and Prohibition lies because she hath remedy at Law So that their opinion was that an Action would lie at the Common Law for calling of one Witch And in one Edwards his case Hill 40 Iac it was said to have been three 〈◊〉 adjudged that to call one Witch would beare an action and also that an action would lie for calling â— one Hagge but I doubt of the latter because I take Hag to be a doubtfull word But why Witch should not beare an Action I know no reason being tâ—e life may be thereby drawne in question though I know it hath beene doubted Marshall brought an Action against Steward for saying the Devill appeares to thee every night in the likenesse of a black man riding upon a black Horse and thou conferrest with him and whatsoever thou dost aske he gives it thee and that is the reason thou hast so much money adjudged the words were Actionable Note Reader that by the Statute of 10 of King Iames cap. 12. Conjuration or consultation with the Devill is Felony In the case of Hawes Mich. 17. of the King that now is this case was put and agreed by the Iudges one said of another that hee had received a 〈◊〉 Priest adjudged actionable because it is Felony he might receive a Romish Priest and yet not know him to be so like the cases I have put you afterwards therefore Quere Sir Iohn Sydenham against Timothy Man Clark I think in my conscience that if Sir Iohn Sydenham might have his will he would kill all the Subjects in England and the King too and he is a maintainer of Papistry and Rebellious Persons These words upon a Writ of Error in the Exchequer Chamber were adjudged actionable It seemes somewhat hard to me Reader that words of thougâ—t or opinion only should beare an Action as here in the former words And for the latter words that he is a maintainer of Rebellious Persons they are Adjective only and do not import any Act of rebellion in those Persons but only an inclination to it but of this more hereafter If a man say of another that he doth like or approve of those that maintaine sedition against the King I conceive that these words are actionable and sedition is a violent and publique thing of which he cannot but have notice This Rule was agreed by the Iudges in the debate of a case in the Kings Bench that many words though of themselves they be not actionable yet being equivolent to words that are actionable will beare on Action And it was said by Iones Iustice that in Yorkshire strayning of a Mare is all one with Buggering of a Mare and therefore he said that an action will sie for these words with an averrement that they tantamount to Buggering of a Mare Note by his opinion in such case there must be an averrement of the mâ—â—â—ning or importance of the words Yet my Lord Hobart hath severall cases adjudged where a man brought an action for Welch words and did not averre what the words did import in English and yet judgement was given for the Plaintiffe and the Court tooke information upon Oath by VVelchmen what the words meant in English And in one of the cases Serjeant Iohn Moore then informed tâ—â— Court that judgement had bin given in the Kings Bench in the case of Tuâ—h upon these words Thou art a healer of Fellons without any averâ—ement how the words were taken because the Court was informed and tooke knowledge that in some Counties it was taken for a smotherer of Felons The caâ— intended by Serjeant Moore was I conceive the case of Pridham and Tucker in the Kings Bench where the words were adjudged actionable without an averrement and in this case â—t was agreed that words may be slanderons in one County and not in another for in Norf they know not what healer signifieth but this being in Deâ—â—nshire where this word is used for concealer of Theeves will be actionable And I take this to be generally true that in all cases where a mans life may beâ— drawne in question by scandalous words that such words are Actionable And now I shall cite a case or two where
that hee had committed Felony and so it hath bin often adjudged I will only cite one case in the point Hasselwood brought an action against Garret for these words I can finde in this Parish a falser knave then Briscoe is the which Briscoe is indicted of Felony burglary and is gone to Stafford Goale and that false knâ—ve is Thomas Hasselwood c. it was adjudged that these words are not actionable because that Briscoe might be indicted and yet be an honest man Thou hast layeâ— in Fullers Tubbe in which none come but those that have the Pox adjudged the words were nor actionable because this is no direct affiâ—mation that the Plaintiffe had the Pox. Poland brought an Action against Mason for saying I charge him meaning the Pâ—aintâ—ffe with Felony c. adjudged the words were not actionable because that he doth not affirme that he is a Felon but doth onlâ— say that he doth charge him with Felony which he may do in some cases though he did not the fact as if a Felony were done and the common fame were that he did it any one that suspects him may charge him with it Henâ—y brought an Action against Fitâ—h for these words I arrest you for Felony agreed that the words were not actionabâ—e for this is no positive charge that hee was a Felon and this may bee lawfully done upon a common fame as is said before thus you see that words that are not directly affirmative wil not beare an action Yet you may see before fol. 7. where words which imply an affirmative only shall be actionable as to say that I will prove that you stole my Books or the like but of this sufficient Secondly Words that are of a double or indiffâ—rent meaning The Law wil take in the best sence for the Speaker and sâ— adjudge them actionable for the rule of Law is as I have said before that verba accipienda sunt in mitiori sensu Yeomans and Hexts case cited before for my land in Allerton Hext seekes my life c. adjudged these words were not actionable because he may seeke his life lawfully upon just cause and his Land may be holden of him and so in mitiori sâ—nsu Barham brought an Action upon the case against Nethersall and the words were Master Bâ—rham did burn my barne innuendo a Barue with Corne with his owne hands and none but he and after verdict it was moved in arrest of judgment that the words were not actionable for it is not felony to burn a Barne if it be not parcell of a Mansion house nor full of Corne And in such case agitur civiliter and not criminaliter and words must be taken in mitiori sensu and the innuendo will not serve when the words themselves are not slanderous Ieams his case hang him he is full of the Pox I marvaile that you will eate or drinke with him c. adjudged that the words werâ— noâ— actionable because they shall bee taken in mitiori sensu for the small Pox and not the French Pox. But noâ—e that in Hawtry and Miles case cited afterwards it was said by Fenner Iust that to say that a man is layd of the Pox will beare an Action because that is the phrase for the French Pox. Adrian Coote brought an Action against Adrian Gilbert for these words Thou art a Thiâ—fe and hast stollen a Tree adjudged that the words were not actionable and agreed that there is no difference betweene and thou hast stollen and for thou hast stollen for in common acceptation and is to bee understood to be but a verifying and making good of the generall word Theefe and then a Tree shall bee understood rather of a Tree standing then felled which can bee no Felony or Theft for that a man cannot steale a mans inheritance So Clarke brought an Action against Gilbert for these words thou art a Theefe and hast stollen twenty load of my Furz adjudged that the action would not lie for the reasons given in the former case The like Law is if a man say of another that he hath stollen his Apples or his Corne or robbed his Hoppe ground or the like the Law in these cases will adjudge them rather growing then gathered or cut downe and so the words not Actionable Thus it is evident that where the words may be taken in a double or an indifferent meaning that the Law will ever take them best for the Speaker I shall only put one case more upon this ground and so passe it over Pawlin brought an Action against Ford for these words thou art a Theevish rogue and hast stollen my Wood. It was in this case said at Barre the Action would not lie because it should be construed rather to be wood standing then cut downe like those cases put before But Bramston chiefe Iustice seemed to incline that the words were actionable because that wood cannot be otherwise intended then of Wood cut down according to the old verse Arbor duâ— crescit lignum dum crescere nescu and so it was adjourned without more saying Note Reader according to the opinion of Bramston Chiefe Iustice betwixt Litchfield and Saunders for the same words hee hath stollen my wood to which the defendant demurred it was adjudged that the Action would lie for Tanfield Iustice said that the words shall be intended according to the most usuall sence viz. That it was Lignum and not Arbor as if one say that the Plaintiffe hath committed a murder it shall not be intended that he hath muâ—dered a Hare but a man You may here observe Reader that though words of a double or indifferent meaning ought to be taken in the best intendment for the speaker as I have sufficiently cleared it unto you yet they ought not to be taken contrary to common intendment For as you shall not straine words to an intent not apparent to make them actionable so you must not wrâ—st them contrary to common intent to make them noâ— actionable this is apparent by Sanders his case immediatly before where it is adjudged that to say of another you have stollen my Wood shalâ— be intended to be Lignum and not Arbor and so actionable so to say of a man that he hath committed a murder shall not be understood murdering of a Harâ— but a Man Dame Morrison brought an Action against VVilliam Cade Esquier aâ—d declared that she was of good same c. and that Henry Earle of Kent was in speech and communication with her for mariage the defendant prâ—misso um non ignarus said these words Arscot hath reported that he hath had the use of the Lady Morrisons body at his pleasure ubi revera Arscot never reported it And further alledges that the E. of Kent upon the hearing of these words surceased his suit by which she lost her advancement the Defendant pleaded not guilty and it was found for the
they were as sufficiently layed to entitle every of the defendants to a severall Action as if they had beene specially named here you see the words may be sufficiently certaine by relation Fifthly where former words actionable are qualified with subsequent words not Actionable there though the former words spoaken generally aud by themselves would have maintained an Action yet now taking altogether they will not bee Actionable Thou art a Theefe for thou hast stolen my Apples out of my Orchard or for thou hast robbed my Hopground or for thou hast stollen a Tree or for thou hast stollen my Furzes as I have put you the cases before Or thou art a Theefe and thou hast stollen my aples out of my Orchard or and thou hast robbed my Hop ground c. aud and for have both one and the same signification in these cases as I have cleered it to you before to be adjudged and in all these cases no Action will lie For as I have said before the latter words do qualifie the former for the former words say him to be a Theefe but the latter prove him to be noâ—e I have given the reason before because that in all these cases the Law which will alwayes construe words the best for the Speaker will take the Apples Hopes c. to be growing and then it is Trespasse only and not fellony to take them away because felony as I have told you before cannot bee committed of that which is parce of a mans inheritance as these are whilst they are growing Britteridge brought an Action for these words Britteridge is a perjured old knave and that is to be proved by a Stake parting the land of H. Martin and M. VVright adjudged that the words are not actionable because though the former words would beare an Action the latter do so qualifie and extenuate them that taking altogether they are not actionable for the latter words do explaine his intent that hee did not intend any judiciall perjury also it was impossible that a Stake could prove him perjured and therefore for the impossibility and insensibility of the words the action would not lie Sixtly where the words doe not import an Act but an intent only or an inclination to it there such words except where they sâ—and all a man in his function or profession will not beare an Action If a man say of another that he is a seditious knave or a theevish knave or a traiterous knave these words will not beare an Action because that the words do not import that he hath done or is guilty of Sedition Felony or Treason but are Adjective words which import an inclination to it only But if a man say of another that hee is a parjured knave an Action will lie for these words because that the Adjective perjured presumeth an Act committed or otherwise hee cannot be perjured Besides Adjective words will beare an Action when they scandall a man in his office Function or Trade by which he doth acquire his living though they do not import an Act done My Lord Cooke cites this case adjudged 24. Eliz. between Philips Parson of D. and Badby in an action brought for these words thou hast a seditious Sermon and moved the people to sedition this day resolved that the words were actionable notwithstanding that the first part of the words were utter adjective and the last words were but a motive to sedition and it doth not appeare that any thing ensued yet because that they scandall the Plaintiffe in his function they were adjudged actionable So if a man say of a Merchant that hee is a Bankruptly Knave or a Bankrupt Knave these words will beare an action though that the Bankrupt bee adjective Or if one say of a Merchant that he will be Bankrupt within two dayes which imports but an inclination â—yâ—t an action will lie for these scandalls reach to the profession So if a man say of an Officer or Judge that hee is a corrupt Officer or Iudge though the words be adjective yet an action lyeth for both causes first because the words touch him in his Office and then because they doe import an act done Hob. Kep pag. 12. pl. 17. Yardly and Ellillâ— case to say of an Atorney that he is a bribing knave will beare an action though the words be adjective Words likewise that import an intent only will not beare an action The defendant said of the â—laintiffe for he is a brabler a quarreller he gave his Champion counsell to make a Deed of gift of his goods to kill me c. but God preserved mee The book saith that it was strongly urged that the action should be maintainable and divers cases cited which I will remember unto you My Lady Cockeins case for these words My Lady Cockein offered to give poyson to one to kill the Child in her body Another betwixt Tibets and Heyne in Glocester for these words Tibots and another did agree to hire one to kill B. Also Cardinalls case for these words if I had consented to Master Cardinall T. H. had not beene alive And the Lord Lumlyes case My Lord Lumley hath gone about to take away my life against all Christian dealing But notwithstanding these cases the book saith that upon great deliberation and advisement it was adjudged that in the principall case the words were not actionable because that the purpose or intent of a man without act is not punishable by the Law My L. Cooke in the close of this case sayes Note well this case and the casue and reason of the judgment Certainly Reader there is somwhat more than ordinary in this Nota beâ—e of my Lord Cookes and the reason of the case seemes to intimate as much unto us which is that the purpose or intent of a man without act is not punishable by the law which is a certain truth But I conceive it is as true that where that purpose or intent is manifested by an overt act or attempt that that is punishable Mich. 4. of King Iames in a case in the Kings Bench this was agreed for law to say of a man that hee lay in waite to assault I. S. with an intent to robbe him or to murder him an action lyes because that hee doth accuse him of an act viz. the preparation and lying in waite to assault him but if hee had said that he would have murdered or would have robbed I. S. an action would not lye because hee only guesses at his imagination And in Harris and Dixoâ—s case in the Kings Bench that case was allowed for law by Tanfield Iustice where hee sayd that if one say of another that hee lay in waite to murder I. S. an action lyes because such lying in waite is punishable by the law By this case it should seeme that to charge a man with an attempt only to commit Felony as to say of a man that hee offered to rob or
to poyson or to murder I. S. that these should be actionable for I think the like punishment is in these cases as in the former which I conceive is only the good behaviour or at most indictable for it and thereupon fined And if an action should lye in such case by the same reason to say of a man that he is a common Quarreller breaker or perturber of the Peace or that hee is a Riotter or the like would beare an action because that for these likewise the good behaviour is grantable and likewise a man may bee indicted for them therefore quaere of the former cases Seventhly words which are apparently impossible will not be actionable Benson brought an action against Morley for these words Thou hast robed the Church innuendo Ecclesiam sic Alhagi extra Creplegate London and hast stollen the Leads of the Church Upon not guilty pleaded it was found for the plaintiffe and it was moved in arrest of judgement that the words were not actionable because the Church shall be intended the Universall Church and not any materiall Church and the Church Militant cannot bee robbed and so the words are impossible but by Popham Chiefe Iustice and Tanfield Iustice the action will well lie and so it was adjudged because the words in this case cannot be intended of an invisible Church as is objected but of a materiall Church as is explained by the subsequent words and hast stollen the leade of the Church which cannot bee understood of the invisible Church In this case Reader you may observe that it is admitted that to say of a man that hee haâ—h robbed the Church generally will not bee actionable because that it shall be understood of the invisible Universall Church and so the words impossible because that cannot be robbed So I conceive to say of a man that he hath robbed a Church will be actionable because this must of necessity be understood of some perticular materiall Church Dickes a Brewer brought an action against Fâ—nne for these words I will give a picke of Malt to my Marâ— and leade her to the water to drinke and shee shall pisse as good beere as Dickes doth brâ—w adjudged the words were not actionable because impossible and therefore they could be no scandall to the plaintiffe Britteridge brought an action for these words Britteridge is a perjured old Knave and that is to bee proved by a stake parting the land of H. Martin and M. Wright adjudged the words were not actionable because that it was impossible that a stake could prove him perjured Lastly where it doth appeare that the speaking of the words could bee no dammage to the plaintiffe there likewise no action will lye The Plaintiffe shewes in his Count that the defendant hath a wife yet in life and that the defendant said of the plaintiffe Thou hast killed my VVife adjudged that the words were not actionable because that it doth appeare by the plaintiffes Declaration that the Wife of the defendant was in life so that by these words the Plaintiffe could not bee in any jeopardy nor scandaled or damnified by them The like case was put in 〈◊〉 Thomas Hâ—lt and Taylors case Pasch. 5. of King Iames if one say of a woman That she hath murdered her husband and shee and her husband bring the action it will not lye because it doth appeare by the Record that the slander is not prejuditiall And as when it doth appeare by the Record that the speaking of the words could be no dammage to the plaintiffe no action will lye So where the speaking of the words might bee a dammage to the plaintiffe yet if the ground of tâ—at damnification doe not sufficiently appeare by the Record the action will not lye A brâ—ught an action against B. for saying That hee kept false waytes by which he did cousen c. and declared that hee gained his living by buying and selâ—ing but did not shew of what profession he was adjudged that the action would not lye because it cannot appeare without shewing of his profession that the speaking of the words could bee any dammage to the Plaintiffe A. Brought an action against B. for these words Thou hast killed my brother innuendo G. c. fratrem c. nuper mortuum adjudged that the words were not actionable because the Plaintiffe did not averre that hee was dead at the time when the words were spoken and if hee were living then the speaking of the words could be no slander or damage to the Plaintif So where a man brings an action for Welsh words or the like which are scandelous and doth not aver or set forth that they were spoken to one who understood the meaning of them the action will not lye because it doth not appeare by the Record that the speaking of the words could be any damage to the Plaintiffe For if they were spoken to one that did not understand the meaning of them no action would lie because they could bee no scandall to the Plaintiffe And now I shall adde to the rest only this one ground where words shall not be actionable and that is in this case VVhen a man is charged with a crime or offence by scandalous words where it doth not appeare by the words that he had notice or knowledge of the ground or occasion of the crime or offence in such case no Action will lie for such words Bridges brought an Action for those words he prefat Bridges innuendo is a maintainer of T'heeves and he keepeth none but Theeves in his â—ouse and I will prove it upon a writte of Error in the Chequer Chamber it was holden the words were not actionable because he might maintaine Theeves without notice and therefore the first Judgement was reversed Like the case in my Lord Hobarts Booke where an Action was brought against another for saying that the Plaintiffe kept men which did robbe upon the Highway adjudged that the words would not beare an action because that he might keepe them and not know them to be such persons In the case of Reade and Saule which was Mich. 40. eâ— 41. of the Queene this case was remembred by Walmesley Iustice a man brought an action in that Court for these words he meaning the Plaintiffe is a receiver of Theeves and he said that in this case the Plaintiffe could have no judgement because that he might receive Theeves and yet not know them to be so A. said of B. that he kept false waites for which B. brought his action adjudged that the action would not lie because that it did not appeare that he did use them and besides for that hee might keepe false waites and not know them to be so The case of Miles and Iacob cited before is likewise to this purpose where an action was brought for these words thou hast poysoned Smith adjudged that the words would not beare an action because that it did not
appeare that he did it wittingly Stanhop brought an action against Blith for these words Mr. Stanhop hath but one Mannor and that he hath got by swearing and forswearing resolved that the words were not actionable for this reason amongst others for that hee might recover or obtaine a Mannor by swearing and forswaring and yet he not procuring or assenting to it And now I am come to the second part or clause of that generall rule layed downe before where I am to shew you That scandalous words which touch or concerne a man in his Liberty will beare an Action By the Bookes in the Margent the Law is plaine that if I publish and claime B. to be my Villeine that in such case no action will lie because I my selfe claime an interest in him and the Law will not in such case punish a man for then no man durst claime his owne for feare of an action But upon these Bookes I conceive the Law is evident that if a man had published another to be the Villein of I. N. that in such case an action would have layne because these words tend to the inslaving of him and his posterity and to the utter deprivation of his Libertys which the Law so much favours for as it is well knowne he that was a Villaine he was subject both in person and estate to the will of the Lord soâ— that he might seize all his Estate reall and personall and vassalise his person at pleasure so that he did not kil or maime him But I conceive that at this day an action in such case will not lie because that time and inconvenience hath quite abolished and worne out this Bondage our Books have little upon this ground therefore I shall thus passe it over Scandalous words which touch or concerne a man in Member or in any corporall punishment will beare an Action A man brought an Action for calling him Theefe and that he had stollen 2. Sheepe from B. the Defendant justifies the calling of him Theefe for that the Plaintiffe did steale the Sheepe and it was good by the whole Court without expressing the value of the Sheepe for if they be not worth twelve pence so that it is but petty Larceny and not capitall yet it is Fellony in its nature By this it is evident that to say a man hath stollen six-pence from B. will beare an Action though it be but petty Larceny because the Offender by Law may be imprisoned and whipt for it If a man say of another that he is perjured or that he hath forsworne himselfe in such a Court an action will lie for these words For by the Statute of 5. Eliz. cap. 9. A man convict of perjury forfeits 20. l. and is to have six Moneths imprisonment and his testimony taken away while that conviction stands and if hee have not Goods and Chattels to the value of 20. l. then he is to be put in the Pillary and his Eares to be nailed so that you see here is an immediate corporall punishment given by this Statute which is imprisonment And if a man say of another that hee can prove him perjured an action will lie though it be but an implied affirmative Hearle against Tresham thou hast taken a false Oath in the Session of c. resolved the words were actionable for the Court shall intend this to bee a Court of Record as Records of which they ought to take conusance Adams against Flemming he hath forsworne himselfe before the Counsell of the Marches of VVales in the suit I had against him there for perjury adjudged actionable In Lelicke and VVrinskemores case Mich. 7. of King Iames in the Kings Bench one Cossimans Case was cited which was thus thou wast forsworne in such a Bishops Court it was said that these words were adjudged actionable so it was agreed by the Court. It was moved by Williams in Arrest of Judgement for these words thou art a forsworne knave thou wast forsworne in Ilcon Court innuendo the Court Leete there holden it was agreed that the innuendo should not stretch the words further then they were spoaken And VVilliams put this case which was in the Kings Bench thou art a forsworne man thou wert forsworne in White Church Court which was affirmed by all the Serjeants to be adjudged not actionable Which case I conceive cannot bee Law because it is adjudged as I have put the case before that if one say of another that he hath forsworne himselfe in such a Court that the words are Actionable and in this case judgement was given accordingly If a man say of a Woman that shee hath a Bastard an action wil lie for these words because that shee is punishable by the Statute of 18. of the Queen cap. 3. at the discretion of the Iustices who alwayes inflict a corporall punishment upon them as imprisonment whipping or the like Morgan and Rookes case Morgan said of the Wife of Rookes shee is a Bawde and keepes a Bawdy house adjudged that the words were Actionable upon a writ of Error brought by Morgan to reverse the judgement given in the Common Pleas and judgement was affirmed Chambers and his Wife against Ryly for the same words Chambers his wife is a Bawd and keepes a Bawdy house Adjuded the words were Actonable and in this case it was agreed that to say of a Woman shee is a Bawde will not beare an Action because shee is not punishable by the Law for it but to say of her that shee keepes a Bawdy house will be Actionable for that shee is punishable by the Law for keeping a house of Bawdry A Prohibition was prayed because that Elizabeth Thorne had Libelled in Court Christian against Turnam for defamation for these words thou art a Bawde and dost keepe a bawdy house and it was granted by the whole Court because that an Action lies at Common Law for these words The reason why an Action lies in these cases is because the party may be indicted for keeping of a Bawdy house and if shee be thereupon convicted shee shall be imprisoned and most ignominiously Carted which are corporall punishments If a man say of another that hee hath forged a Leafe Obligation Release or Accquitrance or the like an Action will lie for these words Because that by the Statute of 5. of the Queene cap. 14. there are great and grievous corporall punishments inflicted upon such offenders if it bee to disturbe a Title the punishment is the greater but if onely in the cases aforesaid the Offender is to be put in the Pillory one of his Eares to be cut off and to bee Imprisoned for a yeare Hawes brought an Action for these words my Cousen Hawes hath spoken against the Booke of Common Prayer and said it is not fit to bee read in the Church Heath Iustice was of opinion that the words were actionable though the offence
adjudged not Actionable 9. Iac. in the Kings Bench the Overseer of the poore hath cousened the poore of all their bread this was likewise said to be adjudged not Actionable but I doe some what doubt of this case because the words doe scandall the Plaintiffe in his office of Overseer but to this it may be said that this is an Office of burden and trouble and not of profit 26. Of the Queene in the Kings Bench Kerby and VValters case thou art a false knave and hast cousened my two Kinsmen adjudged the words were not Actionable 18. Of the Queene in the Kings Bench Serjeant Fenner hath cousened me and all my kindred adjudged the words would not beare an Action Out of which cases wee may by the way observe this for Law that if a man say of an other without any precedent communication of his Office place of Trust or profession that he is accusening or a cheating knaveâ— or that he hath cousened any man thus and thus that no Action will lie for such words generally spoken otherwise if they be spoken in reference to a mans Office place of trust or profession And in the principall case it was resolved by Heath Iustice and Bramston chiefe Iustice the other Iustices being absent that the Action would lie because the words did scandall him in his place of Trust and they said it was not materiall what imployment the Plaintiffe had under the King if by the speaking of these words he might be in danger of loosing his Trust or imployment Bray brought an Action against Hayne and declared that where he had beene Bayly to Sir VVilliam M. Kt. for three yeares last past of his Land in C. and had the selling of his Corne and Graine the Defendant said these words unto him thou art a cousening knave and thou hast cousened me in selling false measure in my Barley and the Country is bound to curse thee for selling with false measures and I will prove it c. adjudged the words were not Actionable for every falsehood charged upon a man in his private dealing will not be Actionable And in this case it doth not appeare that these words were spoken of any sale of Corn whilest he was in his Office of Bayliffe nor of his Masters Corne nor to the damage of his Master But it was agreed in this case that if he had beene a common Rider or Badger and had beene charged with selling false measure it would have borne an Action which is evident because it is a slander to him in his function by which he gaines his living And my Lord Hobart puts this case if a man saith he have a Bayliffe to whom he commits the buying and selling of his Corne and graine and gives him the greater wages in respect of that trust and imployment and charges him to have deceived him in his Office by buying and selling of false measure to his losse or damage this will beare an Action because this discredits him in his Office and may not only because to put him out of that service but to be refused of all others this case is evident Reader because the words doe charge him with selling with false measure whilst he was in his Office In the debate of Sir George Moore and Fosters case before cited these cases were put by VVilliams Iustice if one say of an Arbitrator that he hath done corruptly and hath taken bribes no Action will lie the reason may be because being chosen by the parties themselves and not being sworne such corruption is not puniâ—hable by Law nor can the countermaunding of his power be any damage to him But if a man say of a Wayer in a Market or Faire appointed to way betwixt the buyer and seller that he hath done corruptly and hath taken bribes to make false waite an Action lies for these words because hee is an Officer Miles Fleetwood Generall Receiver of the Court of Wardes for the King brought an Action against Curbey for these words Mr. Deceiver hath deceived and cousened the King and dealt falsâ—y with him adjudged the words were Actionable The like case where one said of an Auditor that he was a Frauditor was adjudged Actionable An Action was â—rought for calling of the Plaintiffe false Justice of Peace vil his similia I do conceve that thesewords are not Actionable because though they doe reâ—â—ect upon his Office yet they are too generall But the Booke saith that these words his similia were ordered to be expunged or drawne ouâ— of the Booke for the incertainty and well they might indeed for certainly if a man shall bring an Action against another and shall declare that the Defendant said of the Plaintiffe that hee was a Rogue and a Theese or words like these or to this effect the Action will not lie because the words upon the very face of the Declaration are utterly incertaine The Law affords very few Cases Reader where words shall not be actionable that scandall a man in his office or place of trust upon those grounds which I have formerly layd downe But note this that all those grounds as I have said before are as a touchstone for all Actions for words whatsoever and therefore if you meet with scandalous words which touch a man in his Office or place of trust examine them by those rules if they be too generall or not sâ—fficiently possitive or if of a double intendment or doubtfull in meaning or incertaine in themselves or the person of whom they are spoken or the like in such cases they will not be actionable and therefore those Rules ought especially to be observed The fourth part of that generall rule which I have laid downe before and which in course I must now speake of is this That words spoken of a man which scandall him in his profession or function by which he gaines his living will beare an Action Yardleys case there being a communication or discourse of him in his profession of Attorney one said that hee was a bribing knave Boxes case one said of him being an Attorney that he was a Champertor Byrchlyes case an Attorney there being speech of his dealing in his profession one said to him you are well knowne to be a corrupt man and to deale corruptly adjudged in all these cases that the words because they scandall a man in his profession by which he doth acquire his living were Actionable So by the opinion of the Court in Thornton and Iobsons case cited before to say of an Attorney that he is a common Barretor will beare an action Dawtry an Attorney in the Court of Ipswich brought an action against Miles for these words Dawtry is a knave and a cousening knave and hee did take Fees of both hands in a suit betweene me and Greene and by knavery suffered me to be condemned at Ipswich at Greens suit willfully being Attorney for me The only words
held considerable in this case were these the Defendants saying that the Plaintiffe tooke Fees of both hands and whether this would amount to as much as if he had said the Plaintiffe was an ambidexter was the question Popham and Yelverton Iustices that the action would not lie because that the words in this case may have a double intendment for it may be intended that hee tooke Fees with both hands lawfully but if he had said that he was an ambidexter an action would lie for this is vox artis and cannot bee otherwise intended Fenner and Williams Iustice that the Action would lie for that the words amount to as much as ambidexter and are the english of it a direct affirmâ—tion and no Metaphor if a man say of another that he hath the Pox no Action will lie because it shall be intended the small Pox but if a man say of another that he hath beene laid of the Pox there an Action will lie because it is the phrase for the French Pox. I do rather incline to the latter opinion because as hath beene said these words are but the English and proper meaning of Ambidextery and to construe them to a taking Fees with both hands would be to make a construction against the expresse meaning of the words which I conceive the Law will not permit and the rather as this case is because that hee doth charge him with knavery in suffering of him wilfully to be condemned in a suit being his Attorney I do not find any judgement in the case therefore I shall leave it to the Juditious Reader Philips Parson of D. brought an action against Badby for these words thou hast made a seditious Sermon and moved the people to sedition this day in this case notwithstanding the first part of the words were utterly Adjective and the latter were but a motive to sedition and it doth not appeare that any thing ensued thereof yet because they scandaled the Plaintiffe in his function it was resolved that they were Actionable If a man say of a Merchant that he is a Bankrupt or that he will be a Bankrupt within two dayes the words are actionable Edmunds a Marchant brought an action against Whetston for these words He would prove that Master Edmunds had beene a Bankrupt and had agreed with his Credâ—itors for a Noble in the pound It was moved in Arrest of judgement by Hucham that the action would not lie because that the speech referres to a time past and though that he were once a Bankrupt yet it may be now that he is of credit But it was resolved that the Action would lie because that it was an impeachment of his credit for if he were once a Bankrupt every man will be the more suspitious and fearefulâ— of him A Marchant brought an Action for calling of him cousening knave by Iones and Barkley Iustices the other Justices absent the Action will not lie because that the words are too general But if they had touched him in his profession they would have borne an action And therefore to call a Marchant Bankrupt will beare an Action but to say of a Lawyer that he is a Bankrupt will not be Actionable the reason may be because that a Lawyer cannot bee a Bankrupt for that he doth not acquire his living by buying and selling as the Statutes speake Iones Iestice in the former case put this case there being a communication of Serjant Heale in his profession one said of him these words He hath undone many adiudged that the words were actionable because they touch him in his Profession A. Shoomaker brought an Action against one for calling of him Bankrupt adjudged upon a Writ of Error in the Chequer Chamber that the Action would lie Axe a Dyer brought an Action against Moode for these words thou art not worth a Groat and averres that in such a place where they were spoken they have the common acceptation and are equivalent to the calling of a man a Bankrupt resolved that the words of themselves were not Actionable because that many men in their beginnings are not worth a Groat and yet their credits are good in the world And that the averrement was idle and could not make them actionable because that the words have a plaine and proper significant meaning of their owne and therefore cannot be taken in another sence or meaning A Journeman and Foreman of a Shoomakers Shop brought an Action for these words it is no matter who hath him for he will cut him out of Doores and averres that the common acceptation and intendment of these words inter Calceareos is that he will begger his Master and make him run away and averres a perticular damage by the speaking of them resolved that the Action would lie Note Reader here the averrement is good because the words cutting out of Doores are of a doubtfull meaning and intendment and so may be aided by an averrement so that the difference betweene this and Axes case cited before is evident Knightly an Attorney brought an Action against Childoner for these words spoken to his Sonne my Father was not cast over the Barre as thy Father was the parties were at issue and in this case Walmesley Iustice said that he conceived the words were not actionable Box and Barâ—abies case before the defendant said of the plaintiffe being an Attorney these words amongst others which were held actionable that hee would have him throwne over the barr the next Tearme in this case agreeing with the opinion of Walmesley before the opinion of the Court was that these words were not Actionable because of the incertaine sence and meaning of them Dickes a Brewer brought an Action against Fenne and declares that the Defendant having communication with some of the Customers of the Plaintiffe concerning him in his profession said these words of him I will give a peck of Malt to my Mare and lead her to the VVater to drink and shee shall pisse as good Beere as Dicks doth brew adjudgeed the words were nâ—t Actionable because that they are Comparative only and besides they are impossible and therefore they can bee no scandall to the Plaintiffe In this case it was said by Rolls Serjeant that it had beene adjudged Actionable to say of a Brewer that hee brewes naughty Beere which was agreed by the Court because that he is presentable in a Leete for it And likewise in this case it was said by Bartley Iustice that where one said of a Lawyer that hee had as much Law as a Munkey that these words were adjudged not actionable because that he hath as much Law more also then the Monkey hath but if hee had said that he had more Law then a Monkey these words would be actionable One said of a Counseller at Law that he was a Concealer of the Law adjudged actionable Sanderson and Rudds case the Plaintiffe being a Lawyer and
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
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
you may see that where a man is falsly and malitiously procured to be indicted if he be acquitted a Writ of conspiracy or an action upon the case in nature of a conspiracy as the case shall be will lie and though he be not acquitted yet an action upon the case will lie for the slander and vexation Yet in all these cases there is a prosecution in course of justice but because this prosecution was malitious tending much to the slander and scandall of the plantiffe therefore the action lies But here I would have you observe Reader that the plaintiffe ought in these actions to declare that the defendant falso malitiose procured him to bee indicted because the malice is the ground of the Action and if upon the Tryall it doe appeare that there was Probabilis causa for the indictment and prosecution therevpon the Action will not lie Thus much shall suffice to shewe you in what case a legall prosecution in course of Iustice shall Subject a man to an Action in what not In the next place I shall shew you which I cannot omit For what scandall of a Noble man or great Officer c. an action de scandalis Magnatum will lie upon the Statutes of 3. E. 1. cap. 33. or 2. R. 2. cap. 5. For a Suit or other legall prosecution in course of justice against a Noble man or great Officer no Action lies as is adjudged in the case of Forger of false deeds cited before so that as to this there is no difference betwixt a Noble man and another person but what scandalous words may be Actionable in case of a Nobleman for which an action de scandalâ—â— Magnatum will lie and what not may bee very considerable I shall cite only one case to this purpose which will be as a light to all cases of this nature and therefore give me leave to give it you wholly without dissection or abbreviation as I find reported The Earle of Lincolne brought an Action de scandalis Magnatum upon the Statute of Westm. 1. cap. 33. against one Iohn Righton and recited the Statute and said that the Defendant said of him my Lord is a base Earle and a paltry Lord and keepes none but Rogues and raseals like himselfe Vpon not guilty pleaded it was found for the Plaintiffe and it was moved in arrest of judgement that the words were not actionable for though they were unseemely immodest yet they were not such defamaâ—ory words upon which to ground an Action for though they were true the Earle could not incurre any prejudice by them Crook cont this action de scandalis magnatum is not to be compaâ—ed to other actions upon the case for words spoken of any other persons for this is inhibited by Act of Parliament and if the words bee such that any diâ—cord may arise by them betwixt the King and his Subjects or his Nobles or any slander to them to bring them into contempt this action lies and I have seene a Record of a case in 4. H. 8. of such an action brought by the Duke of Buckingham for such words which might cause him to be in contempt which were holden sufficient upon which to ground an action Hobart Attorney Generall for the Plaintiffe also who said that though an Action doth not lie for words betwixt common persons but in case where they are touched in life or Member or much in reputation yet if one speake any scandalous words of an Earle or other Peere of the Realme which impeaches their credit because that they are of the great Counsell of the King and State and a principall part of the body politique so that their discredit or disparagement is a disparagement to all the Realme therefore every thing which trenches only to their discredit is a cause of action and this was the cause of the judgement in the case of the Ducke of Buckingham in 4 H. 8. Feâ—ner Iust. it seemes to me that the action lies for they are words of great slander to the Earle But where the Statute of Marleb is that Lord shall not distraine the Beasts of the subject of the King and carry them into Castles so that they cannot be replevied and if one say that a Lord hath so done yet an Action will not lie Tanfield Iustice concesset but he saith if one say of a Lord that he used to distraine and put the Beasts in his Castle ut supra an action lies for one act against Law wil not bring him into contempt but if it be usuall for him so to do this is a cause to make him contemptible In the case of the Earle of Arundell who had made Commissions to his Servants to make Leases and improve Rents one said of him My Lord hath sent his Commissioners to spoyle the Country it was adjudged that this action would lie and yet in case of a common person it would not lie without doubt yet because that it may cause the Lord to be in contempt with the King and the People this action lay and so it seemes to me that it will here Williams Iustice to the same purpose and that the Earle is conservator Pacis at common Law and Comes Regis and if any one speake of them any thing which may make them to bee contemned of the King or his people an action lies upon this STATVTE Yelverton Iustice was absent judgement was respited to the intent that the Defendant by his submission might give satisfaction to the Earle Here you see the difference between words actionable in case of a Noble man and of a common person For words only of descredit to a Nobleman and which may bring him to contempt with the King or his People are sufficient to maintaine an action de scandalit magnatum otherwise in case of a common person I have now Reader quite finished my labour of shewing you for what scandals an action will lie for what not But before I conclude there are two things yet in all Actions for words worthy the knowing which I cannot omit The first is to declare unto you the use or office of an innuendo And the next is to shew you where an Averrement will be necessary and where not For the first you may take this for a certaine and infallible rule That an innuendo shall never make words actionable which of themselves are not Actionable And therefore if words be of a double or indifferent meaning and in the one sence actionable in the other not in such case an innuendo shall never make them actionable As if a man bring an Action against another for saying that he hath the Pox innuendo the French Pox or for saying that the Plaintiffe burnt his Barne innuendo a Barne with Corne. In these cases the innuendo where the words are of an indifferent meaning and may be taken so as not to be Actionable shall not straine them to such an intendement as to make them
or avoide his sentence and certainely they doe not for this differs much from a submission to an Arbitration for in such case a man ties his interest and binds his person which every one is not of capacity to doe but in this case what he doth as an arbitrator is onely to charge or discharge others And besides they are chosen by the parties themselves and if they they be not competent Jvdges the fault is theirs that chose them And now I shall proceed to shew you what Arbitrators are and their power by which you will easily perceiue of what high concernement it is to men to have a speciall care of the choise of Arbitrators What arbitrators are and there power An Arbitrator is as our bookes say a Judge indiffâ—rently chosen by the parties to end the matter in controversy betweene them Ad Arbitrium and therefore they are said to be Arbitrators because they have an Arbitrary power and may judge according to there will aud pleasure so that their judgment be according to the submission these Judges are not tied to any formalities or punctuallities in Law neither are they sâ—orne as other Judges established by publike authority are Besides their power is farre greater for as they may judge as they please keeping themselves to the submission so their sentence is absolutely definitive and conclusive from which there lies no Appeale as it was excellently well said by Heath Iustice in arguing of the case of Rudston and Yates cited before the judgement of Arbitrators said he provided that they keepe themselves to their jurisdiction is higher then any judgement given in any Court for if they erre no Writt of Error lies to reverse their judgement no not so much as Equity against them This is true where they keep themselves close to the submission but if they do not in such case though no Writt of Error lies to reverse their judgement upon an Action brought upon a Bond or promise for not performing an awaâ—d if the Defendant plead that the Arbitrators made no award and the Plaintiffe replies that they did make an award and sets it forth in speciall if it do appeare that the award is void as it may be in many cases which I shall set forth hereafter the Action in such case will not lie as every dayes experience teaches and in which our Bookes are plentifull By that which I have said before it is manifest how it concerns every man to have a care what Arbitrators hee makes choice of but of this sufficient The next thing considerable is Whether the power of Arbitrators be Assigenable or not The Law is cleere that Arbitrators cannot assigne over their power the reason is because that it is but a nude power or Authority which is evident in that it is revocable as I shall shew you hereafter and therefore by the Law not assignable To which may be added that it is a power coupled with a great trust and confidence and therefore not assignable I confesse that the Booke in 47. E. 3 doth tacitely admit this power to bee assignable where the case is thus In Debt the Defendant pleaded that they submmitted themselves to the Arbitrement of two persons who did award that they should stand to the award of W. P. which W. P. made an award which he hath performed c. here it is tacitely admitted that the Arbitrators might award that they should stand to the Arbitrement of another but Brooke in abridging this case saith the Law seemeth contrary In 8. E. 4. prototam Curiam except Yelverton where a man is bound to stand to the award c. who award that an Action shall be commenced betwixt the parties by the advise of VV. and P. this is a good award for by this W P. are not Arbitrators but onely executors of the Arbitrement And in this case the Arbitrators judged the Title to bee tryed betwixt them but know not what action should be brought But if they had awarded that the parties should stand to the Arbitrement of W and P. this had beene void because that they cannot assigne ouer their power Yelverton held in the first case that the award was void for the incertainty because that W. and P. are to give their advise which is not certaine vntill it be notified and in this case he hath made them Judges I confesse that I doe somewhat doubt of the case because the judgment of the arbitrators ought to be finall and this is no concluding of the matter in controversy but a transâ—erting of their power over to the Lawe to determine it Besides W. and P. may never give their advise or may refuse to doe it and in such case the arbitrement will prove idle And I do not conceive this case to be like the case in 19. E. 4. where the Arbitrators awarded a certaine sume and in surety of payment thereof to be bound by the advise of Counsell for here their judgement of the matter in controversie is certaine and finall and here is a some certaine awarded for which an Action will lie only the security is to be advised by Counsell which is no assignement of their power but of this more hereafter Emery and Emerys case the chiefe point whereof was thus the arbitrators award that the plaintiffe should make such a Release as one of the Arbitrators should like of in this case the arbitrement was held to be void because this was an appointing of an authority committed to them all unto one which they cannot do I shall conclude this point with Samons case in Coâ—kes 5. Booke where the case is â—hus Arbitrators award that the defendant should enter into an Obligation to the plaintiffe and doe not judge of what some the Bond shall be adjudged the Arbitrement was void for the incertainety and that the Arbitrators could not assigne over their power but that themselves ought to determine it and therefore neither the plaintiffe nor the defendant could assesse the someâ— the next thing considderable is VVhether the authority of Arbytrators be countermandable or not In his case also the Law will bee strong and evident that this authoritie is countermandable at any time before the award made but not after because then the authoritie is executed and cannot be countermanded and so are all our Bookes but 5. E 4. where it is said that if a man be bound to stand to the Arbitrement of I N he cannot discharge the Arbitrator contrary if he were not bound to stand to his arbitrement yet Brooke upon this case saith that it is cleere that he may discharge the arbitrator in both cases but in the one case he shall forfeit his Bond in the other he shal loose nothing because that ex nuda submissione non oritur actio so likewise it is resolved in Vinyors case which I shall put you presently In 28. H 6. by Ashton Iustice if there be two plaintiffs and one
to a third person in an 100. l. out tâ— circitâ—r In this case it was objected that the arbitrement is void because the Arbitrators have arbitrated a thing uncertain by reason that it doth not certainly appear of what summe the bond was in which they were bound and the â—o circiter is utterly uncertain But the opinion of the whole Court was that there was a sufficient certainty because that lyes not in the power of the Arbitrators to know the direct sum and a small variation is not materiall and therefore the award was held good Nichols and Grummons case there the Arbitrators award that one of the parties should pay 3 l. 101. to the other and doth not say for what so that it may appear whether it concerned him or no it was held void for the uncertainty And if this should not be void it might be very mischievous to the party for by this means he might be doubly charged For in an action brought for the same thing for which this money is awarded to be paid I doubt the arbitrement could be no plea in bar of the action because it cannot appear whether it were for the same thing or no. And the avertement of the party can never declare the intent of the Arbitrators and so help the uncertainty or other imperfection in the arbitrement as it is agreed in this case and resolved also in 7 and 8 of the Queen Dyer and in Girling and Gosnolds case here immediately following Girling and Gosuolds case in the Kings Bench was thus Debt was brought upon a bond for not observing of an award which was that the Defendant should pay to the Plaintiffe 20 l. per annum during the continuance of two leases for yeares in being of the Parsonage impropriate of Yarmouth c. and it was not showne in the award for what tearm the leases were but the Plaintiffe shewed for what tearme they were and the continuance of them and alleaged a breach for non payment of the 20 l. c. In this case it was objected that the award was void for the uncertainty because that it did not expresse for what time or tearme the leases for yeares were and that it could not bee aided by the averrement of the party and for the uncertainty Samons case was cited for the averment my L. Dyers case which I put you before But by Popham Chief Justice the award is good he agreed that where the award is uncertaine it is void and that the parties can never aid it by an averrement to shew the intent of the Arbitrators if it be not expressed in the award either directly or by circumstance Buâ— he said that if Samons case in Cokes 5. book had been thaâ— the party should be bound in such a sum as hee was bound in to stand to the award or by other reference so that it might be reduced to a certainty and this infallibly in such case the award had been good And in this case the payment of the 20 l. per annum is referred to the continuance of the leafes which is certain and therefoâ—e he conceived the award to be good Of the same opinion were Williams Yelverton and Tanfield Justices Here Reader you may observe that an award which is referred or may be reduc'd to a certainty is good enough agreeing with that rule in law certum est quod certum reddi potest This shall suffice to shew you in what case an award shall be void for uncertainty The next thing considerable is Where an Award shall be void in Law for impossibility Wheresoever the Arbitrators award a thing impossible to be done in such case the award is void and by consequence the bond not forfeitable for the non-performance of it as I have shewed before for it were a most unjust and unreasonable thing for to make a man incurre a penalty for the not doing of that which is in it self impossible to be done In 8 E. 4. by Yelverton if an arbitrement be made to do a thing impossible the party for the nonperformance of this shall not lose his Obligation notwithstanding that hee bee bound to stand to the arbitrement because he cannot by any possibility do it As if they award that I shall make the Thames to run over the seller of Westminster within a day or that I shall pull down Pauls steeple with my hands within an hour or the like impossibilities because I cannot performe it I am excused of my Obligation So in 8 E. 4. by Moile if the arbitrators award a thing impossible as if I put my self upon an arbitrement this day and they award that I shall pay a sum certain at a day which was before the submission I shall not forfeit my Obligation for the non-performance of this arbitrement because that it was impossible to be performed In 21 E. 4. by Genney if an award be that I shall release all the right which I have in the Mannor of I S. in the County of M. to Pigot or levie a fine to him and in truth there is no such Mannor this award is void because it is impossible So if the award be that he shall release his suit against B. and he hath no suit against him this is a void award But note Reader Where the thing awarded is in it self feasable and possible to be done though in relation to him that is to do it it may not be possible yet because it carries with it no apparent impossibility the award in such case is good If the Arbitrators award that hee shall pay a 1000 Marks presently he is bound to do it and it is the folly of the party to put such confidence in the parties that are chosen arbitrators So they may arbitrate things the party cannot do which are the very words of the book as that the Defendant shall pay 10 l. in money where peradventure hee never had 10 d. Or that he shall pay 20 Tunnes of wine or the like where he hath not one in these cases the award is good In debt upon a bond to stand to an award the Defendant pleaded that the Arbitrators did award that the Defendant within eight-dayes after the award should go to the house of Sir Henry Collet and that he should bring a bale of Woad c. and the Defendant saith that there was not any bale of Woad in the house of the said Henry Collet within eight dayes after the said award By Keble this plea is not good because he hath bound himself to stand to the award and to perform it which he must do otherwise his obligation is forfeited Besides this is a thing feasable for though Sir Hen Collet had not any bales in his house if he would have performed the condition he ought to have bought certain bails and to have brought them to the house of Sir Henry Collet c. and then departed c. and because he hath
tyed himself to perform the arbitrement he ought to do it if it may be by any possibility done The reason of all these cases is because it is the folly of the parties to make choice of and to put so great confidence in such persons whom they chose to be their arbitrators and it is no newes that a man should suffer through his owne folly Againe where the thing awarded is in it selfe possible and possible also as to the party who is to do it yet Where the thing awarded lies not in the power of the party himselfe without the aide of a third person in such case the award is void Two submit themselves to an arbitrement the arbitrators award that one of them shall make I. S. to pay 20. l to the other the award is void because in this case it lies in the will of I.S. whether he will do it or no and the party hath no meanes to enforce him Two submit themselves to the award of I.S. who doth award one of the parties to pay to the other 40 l. 10. l. in hand and for the 30 l. residue that he finde three severall persons to be bound every one in 10. l. to the party In this case by the opinion of all the Iustices the award was void And there it is said that in an arbitrement the Law intends that the arbitrators should be indifferent and equall judges betwixt the parties buâ— what indifferency is this to cause a man to make such a thing to bee done which lies in the will of a stranger whether he will do it or nâ— As put the case saith the book that an arbitrator wil award that I must cause the King to giue the tower of London to the other such an award is clearely void And by Brian in 19 E. 4. an arbitrement that the party before such a day shall levie a fine before us is good but if the arbitrement be that he shall command us to sit here and to make him levie a fine this is void for he hath not power to do it So in 5 H 7. an award that the parties shall discontinue and make Retraxits of their suits is good the reason of these cases I conceive may be because that though these things cannot be done without the act of Court yet heere is concurrence of the act of the party also which doth produce the act of the Court. And 〈◊〉 Cheife Justice in 21 E. 4. takes the true difference sayes he there where the act may be done by my selfe without the aid of a third person in such case I ought to do it but where it cannot be done without the aid of a third person there it is otherwise There was a case which was 15 of this King which I cited before to another purpose which was thus an award was made that one of the parties should pay a certaine summe to the other and that the other in consideration of this should acquit him of a bond in which they were both bound to a third person in a 100 l. c. In this case the award was held good and this diversity was taken by the Court where the arbitrators arbitrate a party to do a thing which lies in his power without the aid of a third person there the award is good otherwise where it lies not in his power without the aid of a third person And here it was agreed that the thing awarded was feasable by the party himself without the aid of the obligâ—e and this difference was taken by the Court where the bond was forfited and the penalty incurred and where 〈◊〉 where the day of payment was not incurred there the payment of theâ— money at the day would bee a good discharge of the bond and by consequence a good acquit 〈◊〉 of the party but where the bond was forfeited there it could not And Ionâ—â— Iustice said that he might compell the obligeâ— upon payment of the money though the bond were forfeited to deâ—iver the bond by subpoenâ— in Chancery or that he might suffer an action to be brought against him and then discharge and pay it According to the opinion of Iustice Iones in his former case it was ruled that where arbitrators doe award that whereas such a one was seised to my use that I should cause him to make a release to the other being in possession that the award was good because that I have such an interest power that I may compell my feoffees to do it by subpoena in the Chancery Thus you see that where I may do the thing awarded my self without the aid of another or may inforce it to be done in such case the award will be good the next thing to be considered is Where an Award shall be void by reason of the not indifferency of it or because it is made of out side only As Arbitratorâ— are indifferently elected so the law intends as it is said in 17 E. 4. that the arbitrators should bee indifferent and equall Iudges between the parties which they cannot be if they do not giue satisfaction to both sides and therefore in such case where the award is not mutually satisfactory it is voide It was an ingenious saying of Hearu an Emery Emerys case cited before arbitrators saith he are indifferently chosen so that both the parties may have recompence in regard of their Bond which is equale pondus to both and an arbitrement saith he is like a fine wherein the Iudges are arbitrators one hath the land pro hac concordia the other hath money If the defendant plead an arbitrement made betwixt him and the plaintiffe of all quarels between them c. who award that the defendant should goe quit of all actions and quarrels had by the plaintiffe against him aud nothing is spoken of the quarels which the defendant hath against the plaintiffe the arbitrement is void So if two submit them selves to an award of all Trespasses and an award is made that the one shall make amends to the other and nothing is awarded that he shall do to him againe this is a void award because all is for the one party nothing for the other In Trespesse for taking away of goods the defendant pleaded an arbitrement which awarded that because the defendant had taken away the goods of the plaintiffe that he should re-deliver them in satisfaction of the Trespasse which he did and â—here by the better opinion the plea is nought because that re-delivery of his owne goods can be no satisfaction for the taking and detaining of them An Arbitrement is no plea in trespasse if the defendant doe not say that the arbitrators awarded that he should giue something to the plaintiffe more or lesse in satisfaction for that is a satisfaction to neither side the plaintiffe is not satisfied for the trespasse done him nor the defendant discharged thereof without some satisfaction for the
no remedy in this case to constraine him to convey it to him If an arbitrement be that the defendant shall be bound by such a day which is not come he shall not plead this in an action of trespasse for then the plaintiffe should be barred and should have no action to compell the defendant to make the Obligation Note Reader that these cases must be entended where the submission is without specialty otherwise he were not without remedy In this case there are these three grounds observable and warranted by the books First where the award is for payment of money at a day to come there the award is good because an action of debt will lye for the money upon the arbitrement if it be not paid or the party may resort to his action againe if he please Secondly though the award be of a collaterall thing for which there is no remedy yet if it be executed it is good Thirdly and lastly where the award is of a collaterall thing not executed yet if the submission be by speciallty the award is good Upon these grounds you may observe these four rules to direct you where an arbitement shall be a good plea in barre of an action in these cases First where the award is for the payment of money for which you have remedy and the day of payment not past in such case the award is a good plea in barre of the action Secondly where the day of payment is past it is no plea in barre of the action without pleading of payment Thirdly where the day of payment is past yet if there be no default in the defendant in such case I conceive the arbitrement not executed is a good plea in barre of the Action Fourthly and lastly where the award is of a thing for which the party hath no remedy though the day be not yet come in which the thing ought to be done or delivered in this case the award is no plea in bar of the action According to these differences it hath been ruled in a case in the K. Bench which was thus The defendant in trespasse pleaded an award that he should instantly pay 20 s. to the plaintiffe and so demanded judgement of the action by Flemming Chiefe Iustice Williams and Crooke Iustices it was holden that the plea was nought because that he did not shew the money was paid and these differences agreed An arbitrement pleaded in bar of an action where the defendant hath not performed the thing and the day past is no good plea. But where the day of the performance of the thing awarded is to come and the doing of the thing awarded may be compelled by action there the arbitrement is a good plea in barre of the action And by Flemming if the arbitrement be â—o make a release or such other collaterall matter which the defendant cannot be enforced by action to do in such case the arbitrement is no good plea in barre of the action though the day of performance be not yet come And you must know Reader that where the arbitrement is to make a Release or such other collaterall thing and the day to come though the sumission were by specialty yet the award would be no plea in barre of an action because that cannot inforce the doing of it though it may be forfeited for the thing not done And so saith Nedham in 9 E. 4. though the arbitrement be void to this intent that the plaintiffe hath no action to compell the defendant to make the release yet it is good to this intent if the party do not performe it that he shall forfeit the penalty of the obligation But enough of this the next thing considerable is Where an award shall be void because it is not finall The arbitrators as I have often told you are Iudges of the matters in controversy referred vnto them and their award is a judgement now â—udicium must not only be certum as is said before but determinatum also it must determine the matter in controversy T is true an award may in some cases as I have shewed before be good of part of the things only submited but we must vnderstand this so that the award must be finall as to that parte or else it will be void An award that either party shall be Non-suit against the other in actions commenced by them is void because it makes no end of the matters in controversy And every arbitrement saith the Booke ought to make an end and finall determination of the things in dispute and controversy which it doth not in this case because that notwithstanding the Nonsuits they may commence their Suites de nove And vpon this ground as also the former authority I conceive that the Booke in 5. H. 7. is no Law where there is an opinion that an award of a Nonsuit may be good but it is vpon this reason because it is not only the act of the Court but the act of the party also But if it were wholy the act of the party yet for the reason before given because it is no final conclusion I conceive it cannot be good for this is but like blowing out of a candell which a man may at his own pleasure light againe So in all those cases that I have put you before where the award is of one side only it is void also for this reason because it doth not determine the controversies between them and the controversies cannot be ended without they be ended in respect of both parties So likewise in the cases that I have put you before where the award is uncertain it is also voide for this cause for that it is not finall For an uncertaine award cannot decide the matter in controversie but is more apt to beget new strifes and variances then to conclude the old In 8 E. 4. an award is made that an action shall be conceived betwixt the parties by the advice of S. and F. I do conceive in this case the award is void because it is not finall for this concludes not the controversie but leaves it to the judgement of law See fo 16. b. Warley and Beckwiths case in debt upon a bond to stand to an arbitrement the arbitrators award that the defendant shall pay severall sums to the plaintiffe which were aleaged by the plaintiffe to be done unto him And further that if the defendant at or before the Feast of S. Andrew the Apostle then next following should before the said arbitrators disprove the debt or any part thereof then so much should be deducted out of the payment of the severall summes aforesaid c. T is true I finde no judgement in this case yet I conceive the Law will be somewhat strong in it that the arbitrement is void because it leaves the matter in suspence and undecided whereas it ought to be finall and conclusive And besides this is upon the
standing for the Stuardship of a Corporation the Defendant said of him that he was an ignorant man the Court in this case inclined that the words were Actionable Snag a Counceller at Law brought an Action against Peter Gray for these words Goe yee to him to be of your counsell he will deceive you he was of Counsell with me and revealed the secrets of my Cause Adjudged the words were actionable because that this cannot be intended of a Lawfull revealing to the Iudge by way of motion before whom it was tried for this were a commendation for him but the words are to be taken as they were spoken that is conjunctim and uno halitu and then his intention appeares contrary for he said before He will deceive you c. Also the Plaintiffe declared that they were spoken Malitiose And these words revealed the secrets c. are to be intended revealed to those from whom they ought to be concealed and every man is to make the best of his cause and therefore secreta sua non sunt revelanda and also the words touch the Plaintiffe in his Art and Science which requiers men of great trust confidence and so the words before being spoken in derogation of the confidence and fidelity of the Plaintiffe are a great slander to him for these causes judgement was given for the Plaintiffe Vpon this case I do conceâ—ve that to say of a Lawyer generally that hee revealed the secrets of his Clyents cause will beare an Action One said of a Doctor of Phisick that he was a Monntebanke an Empericke and a base fellow adjudged the words were Actionable Paine brought an Action upon the case for words and shewed how that he was a Farmer and used to sow his land and to tell the Corne upon it and by this per majorem partem he maintained his Family and that the Defendant said these words of him He keepes a false Bushell by which hee doth cheat and cousen the poore and averres the losse of his custome by the speaking of these words In this case it was moved by Gotbolt Serjeant in Arrest of Judgement that the words were not Actionable because it doth not appeare that the Plaintiffe kept a false Bushell Sâ—ienter knowing it to be false But it was resolved that the words were Actionable for as this case is it must of necessity be taken that hee kept a false Bushell knowing it to bee false for otherwise it could be no coâ—senedge And this case plainly differs from the case where an Action was brought for saying that the Plaintiffe kept false Waites generally without further saying in this case the words were adjudged not Actionable because that it doth not appeare that he used them or knew them to be false The fifte part of that Generall Rule which I have laid downe before and which now I am in course to speake of is this That words spoken in scandall of a mans Title or which tend to a mans disinheritance will beare an Action Henry Mildmay brought an Action against Roger Standish for saying and publishing that certaine Land was lawfully assured to one Iohn Talbot Oliffe his Wife for a 1000. yeares and that they of the interest of the tearme were lawfully possessed whereas in truth there was no such matter and so for slandring of the Estate and Title conveyed to his Wife by certaine Indentures and shewed all in certaine and how hee was prejudiced by the said words he brought the said action The defendant pleaded a Proviso in the same Indentures and the said limitation for 1000 yeares according to the said Proviso as he pretended whereas in trueth the said limitation was void in Law by force of which he saith that the said Oliffe had an interest for a 1000 yeares and so justified the words upon which the plaintiffe demurred adjudged that the action would well lie though that the said Iohn Talbot and Oliffe his wife had such a limitation de facto for a 1000 yeares which occasioned the defendant being unlearned in the lawe so to publish it yet for that he hath taken upon himselfe notice of the lawe and medled in that which did not concerne him and hath affirmed and published that Oliffe had a good estate for a 1000 yeares in slander of the Title of the plaintiffe and to his preiudice for this cause judgment was given for the plaintiffe Sir Thomas Gresham Knight brought an action against Robert Gunsley Clark and shewes how his father was seised of divers Mannors and lands and amongst them of the Mannor of Tittesey which he did by his will amongst other lands devise to Beatrice his wife for life the remainder to the plaintiffe and the heires males of his body begotten and had issue William Grâ—sham his eldest sonne and the plaintiffe the younger and dyed and that William after this death confirmed to Thomas his estate and that Beatrice died and the plaintiffe entred into the said Manour of Tittesey and further shewes that William had issue Elizabeth his heire apparent and that the plaintiffe had a wife and sonnes and daughters and that he had an intent to conveye some of his lands to his wife for her ioynture and some to his sonnes and daughters for their advancement and to exchange parcell with others and to make a lease of another parte but doth not shew to whom and that the defendant premissorum non ignarus in derogation of the Title and estate of the plaintiffe said these words to the plaintiffe As I before said to your Wife I say now that your brother was afoole and never borne to doe himselfe any good for that he could not hould his hands from ratefying and subscribing to his Fathers will bnt yet notwithstanding I have that to shew in my house that if his heire doe not any such Act as hee hath done it shall bring her to inherit Tittesey by which words he saith that hee was hindred in the conveyances aforesaid In this case it was resolved that the Action would not lie first because that the words themselves are not scandalous to the Title of the plaintiffe the words considerable are onely these that he had that in his house c. that shall bring her that is the Daughter and Heire of William to inherit Tittesey which is apparently feasible for the Plaintiffe being Donee in Taile of the guift of his Father the Daughter and Heire of the eldest Brother is inheritable to the Revertion in Fee and so no prejudice to the Plaintiffe to say he hath that which shall bring her to inherit Besides the action will not lie because that he doth not shew any special damnification by the speakeing of these words as that he was upon a sale of these lands to I. S. who by reason of the speaking of these words refused to buy them or the like and in this case here was nothing but a purpose or intent of conveying some of these lands
And Popham Iustice said that there is a difference when a man declares his opinion of the Title of another to land this is nothing and he shall not be punished for it but if he doth so publish it that it comes to the hearing of any one that intended to buy the Land in such case an Action lies but he must shew specially in his Count in what he was damnified otherwise the Action will not lie Banister brought an Action against Banister for that the Defendant said of the Plaintiffe being Sonne and Heire to his Father that he was a Bastard resolved that the Action would lie for this tends to his disinherision of the Land which discends to him from his Father But in this case it was resolved that if the Defendant pretend that the plaintiffe was a Bastard and that he himselfe was next heire there no Action lies So if a man say that another hath noe right to land an Action lies but if a Counseller say that his Client hath the better right this will not beare an Action Mich. 3. Jac. in the Kings Bench per Curiam if one say to me that I am a Bastard if I have Land by discent I shall have an Action upon the case and thought that I have Land by discent and this tends to my disinheritance if I sue in Court Christian for it a Prohibition lies because that the tryall there may be to my disinheritance And if one say to another that hee is base borne an action will not lie for the words shall be taken in meliori sensu And if one say to his Sonne that he is a Bastard or a Leaper hee shal not have an action neither in Court Christian nor at Common Law Sir Gilbert Gerrard brought an action against Mary Dickinson and declares how that he was seised of certaine lands in Fee and that hee was in communication to demise them to Ralph Egerton fot 22. yeares for 200. l. Fine and a 100. l. rent per annum and that the Defendant premissorum non ignara said I have a Lease of the Mannor and Castle of H. which was the same lands for ninety yeares and shewed and published it c. by reason of which words he saith the said Ralph Egerton did not proceed to accept the Lease c. In this case it was resolved that no Action would lie for the said words though they were false because that the Defendant pretended an interest in the said land So if the Defendant had affirmed and published that the Plaintiffe had not any right to the said Land but that she her selfe had right to it in this case because that the Defendant pretends title to it though that in truth shee hath not any yet no Action lies For if in such case an Action should lie how could any one make claime or title to any land or commence any suit or seeke advise and Counsell but hee should be subject to an Action which would be very inconvenient Agreeing with these cases in 2. E. 4. and 15. E. 4. it is resolved that no action upon the case lies against one for publishing another to be his Villeine The sixt part of that generall Rule which I have laid downe before and am now to speake of is this That scandalous words which tend to the hinderance or losse of a mans advancement or preferrement or which cause any particular damage will beare an Action Anne Davies brought an Action against Gardiner for these words spoken to one B. a Suiter to the Plaintiffe and with whom a marriage wss almost ' concluded I know Davies Daughter well shee did dwell in Cheape side and a Grocer did get her with Childe c. and shee saith that by reason of the speaking of these words the said B. utterly refused to take her to Wife so that thereby she lost her advancement c. adjudged that the Action would lie because that if shee had a Bastard she was punishable by the Statute of 18. of the Queene cap. 3. But it was in this case further resolved that if the defendant had charged the Plaintiffe with bare incontinency only yet the Action would have laine by reason that by the said slander shee was defeated of her advancement in Marriage And it was in this case likewise resolved that if a Divine be to bee presented to a Benefice and one to defeat him of it saith to the Patron that he is a Heretique or a Bastard or that he is excommunicated by which the Patron refuses to present him as he well might if those imputations were true and he loses his preferrement that in this case an Action will lie Dame Morrison Widdow brought an Action against William Cade Esquier and decâ—ares that shee was of good fame c. And that Henry Earle of Kent was in speech and communication with her for marriage the Defendant premissorum non ignarus said these words Arscot hath reported that hee had the use of the Lady Morrisons body at his pleasure ubi reverâ— Aâ—scot never reported it and alledged that the Earle of Kent upon the hearing of the words surceased his suit by which she lost her advancement c. upon not guilty pleaded it was found for the Plaintiffe in this case it was resolved that though the words charge the Plaintiffe with bare incontinency only which is an offence Ecclesiasticall and not civill nor punishable by our Law yet because of the temporall damage viz. the losse of her advancement in marriage the Action would well lie which agrees with the judgement in An Davies case Sanderson and Rudds case cited before the Plaintiffe being a Lawyer stood for the Stewâ—râ—â—ship of a Corporation and the Corporation being assembled to elect a Steward the plaintiffe was motioned to them whereupon the Defendant being one of the corporation 〈◊〉 to his Brothers he is an ignoran◠〈◊〉 and not fit for the place and 〈…〉 that by reason of these words they did refuse to elect him Stâ—ward so that he thâ—reby lost his preâ—errement c. the Court in this case inclined that the Action would lie And now I am falâ—en upon a question very necessary to be resolved and that is What words are Actionable of themselves only and what are not Actionable without alledgeing of a particular damage I take this for a Rule that scandalous words which touch or concerne a man in life liberty or Member or any corporall punishment or which scandall a man in his office or place of trust or in his calling or function by which he gaines his living or which charge him with any great infectious disease by reason of which hee ought to seperate himselfe or to be seperated by the Law from the society of Men all such words will beare an Action without averring or alledging of any particular damage by the speaking of them Yet I do not deny but that it is best to alledge a particular damage if the