Action upon the Case FOR SLANDER OR A Methodical Collection under certain Heads of Thousands of CASES Dispersed in the many Great Volumns of the LAW of what words are Actionable and what not And of a Conspiracy and a Libel BEING A Treatise of very great use and consequence to all men especially in these times wherein Actions for Slander are more common then in times past With an exact Table annexed for the ready finding out any thing therein By W. Sheppard Esq. LONDON Printed for Ch. Adams J. Starkey T. Basset and are to be sold at their Shops at the Talbot in Fleetstreet the Mitre neer Temple-Bar and in St. Dunstans Church-yard in Fleetstreet 1662. TO THE Right Honourable the Lord Chief Justice of the Court of the Kings Bench The Lord Chief Justice of the Court of the COMMON PLEAS The Lord Chief Baron of the Court of the EXCHEQVER And the rest of the Reverend Judges of the same COVRTS Honourable Lords and Reverend Sages of the LAW TO whom should I present this Peece but to Your Selves And of whom should I begge the Patronage thereof but of Your Selves The Work being about the LAW and nothing else but the Grave and Learned Judgements Resolutions and Opinions of Your Eminent and learned Predecessors By which they being dead yet speak And though it must bee confessed that neither the Authour nor the Work have any thing in them to merit Your Approbation yet Your Goodness and condiscention will be the more eminent and singular in affording both him and it Your Countenance and Protection and lay greater Obligations upon Your Lordships most humble Servant W. SHEPPARD To the READER Judicious Reader IT is not improbable but we are faln into the last age of the World foretold by our blessed Saviour Wherein the love of many shal wax cold and Iniquity shall abound And among the abounding Iniquity of this Age the iniquity of the Tongue that little Member set on fire by Hell is not the least And among the evils of the Tongue is there any more pernicious and deadly and yet more common and epidemical then Backbiting and Slander May wee not now say with the Prophet Jer. 6. That men walk with Slanders And with the Royal Psalmist Psal 50. Thou sittest and speakest against thy Brother and Slanderest thine own Mothers Son It is true that in former times wee finde Actions of the Case for Slanderous words very rarely brought which speaks thus much that such words were then very rarely spoken But in these daies they are become almost as natural to men as their language and discourse and therefore the disease so deeply rooted and over-spreading calls for the application of the Remedy which our Law doth abundantly furnish us withall And hence it is I have been encouraged to ingage in this work which is nothing else but a naked and Methodical Collection of the remedies prescribed by the Law against this Malady And herein for brevity sake you may finde in some Rules in the first and in some especially in some of the last Examples answering to those Rules in the last Chapter of the Book an Epitome of the whole work Wherein we have thought it best to name amongst others of more Authority some of the Cases in the Books of uncertain Authors lately published and leave the same to the Judgement of the Reader You may perhaps finde herein some seeming Impertinencies Superfluities Contradictions and vain Repetitions the which upon mature Deliberation will bee found otherwise And there will bee doubtless by reason of the shortness of time and haste of the Press many Erratas of mine and the Printers escaped But this notwithstanding I doubt not but it may bee found very usefull to the ends I have proposed to my self therein viz. For Lawyers to lead them to the Cases that they shall have occasion to look after therein For others to teach them to set a watch before the door of their Lips And if now you will but cover the Defects of the work and accept of the pains of the Author this is all that is desired by your Friend a lover of his Country and well wisher to the Laws thereof W. SHEPPARD THE CONTENTS OF THE Chapters contained in this BOOK Chapters Pages 1 OF an Action of the Case in general 1 2 Some general things of Actions of the Case for Words 3 3 Of the Slander of a Title to Land 14 4 Of the Scandalum Magnatum 16 5 Of Actions for Slanders of all kinds 19 6 Of words of Slander about matter of Treason 32 7 Of words of Slander about matter of Murder 35 8 Of words of Slander about matter of Witchcraft 40 9 Of words of Slander about Rape Sodomy Buggery and house-burning 42 10 Of words of Slander about matter of Theft 43 11 Of words of Slander that may bring a man in danger of other corporal punishment besides death Of Petit Larceny 60 12 Of Perjury 61 13 Of Forgery 66 14 Of words of Slander about matter of Incontinency 68 15 Of other words importing some charge of transgression of a Penal Law 71 16 Of words Spiritual Passionate and Vain for which no Action is given 74 17 Of other words that have another import in them 75 18 Of words that hinder ones Preferment 77 19 Of words importing a charge of Deceit and Couzening 79 20 Of scandalous words that relate to men in their Offices Professions and places of Trust 82 21 Of scandalous words that relate to men in their Trade and VVay of Living 94 22 Of an Action of the Case for a Conspiracy 100 23 Of Pleadings in Actions of the Case for VVords 106 24 Of a Libel 115 25 Some Cases for the illustration and confirmation of all that is before laid down in the whole work 117 Advertisement THere is in the Press an Exact Collection of Approved Forms of Judicial Writs fitted for the use of all Practicers in the Court of Common-Pleas Collected by a very able hand And to be sold by C. Adams I. Starkey and T. Bassett at their Shops in Fleetstreet ACTION OF THE CASE CHAP. I. Of an Action of the Case in general Action of the Case AN Action of the Case is a Writ brought against one What it is Sect. 1. for an offence done without force as for not kéeping promise for breaking Trust for slanderous words or the like Misdemeanour And is called an Action of the Case because the whole Cause or Case so much as is in the Declaration save only the time and place is set down in the Writ And there is no other Action given in the Case save only in some few Cases where the Plaintiff hath his choice to bring this or some other Action This Action is sometimes about Defamations or Slanders and this may How many kinds of it there be be by words spoken Or it may be by a déed done By words spoken it is either for words spoken against the Title of a mans
the first words Croo. 1. part last publisht 601. 602. It will not lye for this spoken to one that is speaking of retaining him Go not to him for hee will couzen you Pasche 18. Jac. Ratcleifs Case Croo. 1. 29. Nor for this will it lye as it is said Thou art a false couzening Knave Words of qualification and hast couzened my two Kinsmen of their Land and deservest the Pillory 26. Eliz. B. R. Nor for this Hee couzened J. S. out of his Land Nor for this Thou hast couzened J. S. of his fee and I will sue thee for it in thee Starr-Chamber Brownl 1. part 3. 5. 6. 16. 2. part 253. And it is said it hath béen doubted whether it will lye for this Hee is a base cheating couzening Knave and hath cheated mee as never man was cheated Croo. 1. 112. 367. But these words séem to others clearly to be actionable So it will lye also for this Hee is a Champertor Hobb Rep. 117. Champertor Barretor Extortioner Maintainer of Suits 359. pl. 145. 351. Coo. 4. 16. Brownl Rep. 17. Winches Rep. 481. So for this Hee is a common Champertor and I will have him turned over the Barr. Hobb Rep. 183. So for this Hee is an Extortioner Hill 40. Eliz. B. R. So for this Hee is a common Barretor Brownl and Goldsb 11. Winchel Rep. 166. Huttons Rep. 104. Croo. 1. 139. 406. Hobb Rep. pl. 188. But it will not lye for saying of him He is a common Maintainer of Suits Hobb Rep. pl. 145. Winch. Rep. 40. Forgery So it will lye for saying of him Hee is a forging Knave Brownl 1. part 16. Hetleys Rep. 140. Soalso it will lye for this Hee is a suborning Knave or hee is a suborned Knave So for this Hee is a perjured Knave Stiles Rep. 17. Paines Case So for this Hee is an extorting Knave and did suborn one to be forsworn Subornation of Perjury before the Lord Chief Justice 20. Jac. So for this Take heed of him for hee is the falsest Knave in England and hee will cut your throat Hetleys Rep. 140. And so it will lye for calling of him Knave only as hath béen adjudged Knave after a Writ of Errour brought Nichols Case Stiles Regist 8. 17. Trin. 12. Car. 1. B. R. Yardlies Case 18. Eliz. 2. B. R. And therefore a fortiori it must lye for saying hee is a couzening or a forging Knave or the like Yet see the whole Court Co. B. against it Croo. 1. last publisht 601. So for this He is a common stirrer up of Suits and a disturber of the Peace and so a mover of unjust Actions Hetleys Rep. 140. So for this Thou art a Knave and stirrest up Suits between parties to their undoing and 't is pity such persons go unhanged Croo. 1. 166. So for this said to a Client of the Attorney I marvel you will imploy such a Knave as Nichols is you will have but disgrace and discredit by imployment of him for he is a proclaimed Knave in the Market Croo. 1. part 331. 333. So for this He is a base Rascal and I will make him to lose his ears Leys Rep. 70. Sect. 9. But it will not lye for saying this of an Attorney or such like Officer Cheater Vipet Villain Judas Brabler Swaggerer He is a Cheater a Judas a Destroyer a Viper a Villain a common Brabler a common Breaker of the Peace and a Swaggerer all together or asunder But if an actionable word be joyned with them these will aggravate the slander and so the damages Hetleys Rep. 140. 139. 143. Huttons Rep. 104. Winches Rep. 166. Nor for this I think thou art no Attorney but an Attorneys Clerk and if thou be I shall have thee pickt over the Bar the next Term and thy ears nailed to the Pillory Hobb Rep. pl. 159. Nor will it lye for this Thou art a Usurer Nor for this Thou hast Usurer plaved the Knave with mee about a Will Coo. 4. 16. Nor for this He is a Recusant Hetleys Rep. 140. 141. Recusant Nor for this Thou art a flagging Jack and a Couzener and wouldest have couzened mee Hetleys Rep. 140. Nor for this I have matter enough against him for M. H. hath found Forgery against him and I can prove it against him Hobb Rep. 189. 395. Forgery Incertainty Nor for this spoken to an Attorneys Son My Father was not cast over the Barre as thy father was Knightlies Case Trin. 41. Eliz. B. R. Hobb pl. 145. Nor for this Thou gettest thy living by extortion Nor for this Thou Extortion gettest thy living by swearing and forswearing Croo. 1. last publisht 603. Nor for this I will have him thrown over the Barre the next term Hobb Rep. 1. 59. Boxe and Barnabies Case Nor for this He was or will be picked over the Barre And yet it is said to lye for this He was picked over the Barre This Action will lye also for an Attorney or such like kind of Officer For lack of skill for these words viz. Thou art the simplest Attorney towards the Law Mich. 39. 40 Eliz. B. R. Martins Case So for this He is the foolishest Attorney towards the Law and if he doth not overthrow your Cause I will give you my ears he is a Fool and an Asse and so I will prove him Croo. 1. part last publisht 589. Goldsb Rep. 128. Hobb Rep. pl. 117. So for this Thou hast no skill in thy office But it will not lye for saying of him That he hath no skill in Husbandry or the like But it is said that it hath béen doubted whether an Action will lye for these words said of an Attorney He is a Knave and a couzening Knave and did take fees on both hands in a Suit between me and Greene and by knavery suffered me to be condemned at Ipswich at Greens Suit wilfully being Attorney for me See March of Slanders 1 part 78. But this Case séems to others to be out of doubt Actionable So it is said by some that it will not lye for these words Thou art the dishonestest Attorney in England and if any bee more dishonest than thou he deserves to be hanged unlesse the words be spoken with reference to his office or practise and unlesse there bee an Averment made that Averment there is a dishonest Attorney in England Croo. 1. 29. And this also is here to be added 1 That where the words in the Cases before named be Actionable there will be no need of any special averment of losse Averment 2 That where the words be not Actionable in themselves yet if the party of whom they are spoken have any special losse by them they may perhaps be Actionable 3 These kinds of slanderous words are to bee subject to the Rules laid down in other Cases for other Actionable words they must be certaine false malicious and not subject to qualification c. For if the words bee true
Sect. 6. for procuring him to bee indicted for the Ravishment of his Daughter and the Defendant her Father shewed that his Daughter complained of it to him and hee to the Iustice of Peace who bound the one to appear and the other to prosecute at the Gaol-delivery where hee preferred a Bill of Indictment and gave evidence c. And this was held a good plea and excuse without saying that there was a Rape But if the Plaintiff had set forth that there was no Rape and that the Defendant knew there was none haply the Action might have béen maintainable Croo. 2. 193. Coxe versus Wirral The like Case is Croo. 1. 130. Markams Case And the like in Bulstr 2. part 286. Case 2. 2 Doggatee vers Lawry B. R. Croo. 2. part 190. This general Action of the Case was brought against the Defendant for that hée did falsly and maliciously accuse the Plaintiff of a Felony and caused him to be brought before a Iustice of Peace and procured him to binde the Plaintiff to appear at the Gaol-delivery and there put in a Bill of Indictment against him which was found not true c. The Defendant pleaded that hee had Shéep stoln and missed others which were found in the Plaintiffs possession going with twelve Shéep that were stoln c. And the Iewry upon the tryal found him guilty and hee had Iudgement and could not get it staid because the Declaration laid to bee false and malicious and the Iewry found it also to bee so Case 3. 3 Huttons Rep. 49. Hord versus Cordery The Plaintiff brought an Action of the Case against C. the Defendant and B. his Wife and D for a malicious confederacy to charge the Plaintiff with the Felonious Rape of the said D. and procured him to bee examined before a Iustice of Peace and thereupon was bound in a Recognisance to appear at the general Sessions and from thence bound over to the Assizes and there they Indicted him and hee was acquitted and hee averred that hee did not ravish her And adjudged for the Plaintiff after a Writ of error and twenty marks costs given for his delay Case 4. 4 Leonards Rep. pl. 146. s 107. An Action of the Case of this nature was brought by Joan Jerome against Knight and shee declared that Knight had maliciously caused the Plaintiff to bee Indicted of Felony and to bee Arraigned upon it and that shee was legittimo modo acquietatus c. And the Case was this that the Defendant came into the Court where the Sessions was held and complained of the Plaintiff for the said Felony for which the Iustices commanded her to cause an Indictment to bee drawn and the Plaintiff had Iudgement and could not avoid it by a Writ of error Case 5. 5 Smith versus Crashaw and others B. R. M. 1. Car. 1. Croo. 1. 10. The Plaintiff brought his Action of the Case in nature of a Conspiracy against the Defendants for that they had at T. c. falsly and maliciously accused him of Treason caused him to bee apprehended brought to a Iustice to bee commited to Gaol Indicted and falsly and maliciously affirmed it to bee true and not guilty was pleaded and verdict given for the Plaintiff and Iudgement given for the Plaintiff two hundred and forty pound Damages notwithstanding motions to Arrest it and after a solemn deliberation The like Case was by Lovet vers Faulkner 11. Jac. B. R. Bulstr 3. part 270. Case 6. 6 Smith versus Hodgeskins Pasche 8. Car. 1. B. R. Croo. 1. part 201. An Action was brought for this that the Defendant malitiose et falso crimen feloniae ei imposuit and caused him to bee arrested for Felony and for these words and this work it was adjudged the Action of the Case did lye Case 7. 7 Maning and his wife versus Fitzharbert Hill 7. Car. 1. B. R. Croo. 1. 197. An Action of the Case was brought against the Defendant for that hee ex malitia of the Plaintiffs wife crimen feloniae imposuit caused her to bée brought before a Iustice there charged her with Felony required that shée might bee bound over to the Assizes which shee was forced to do c. and this was found for the Plaintiff and had damages and Iudgement c. Case 8. 8 Williams versus Fletcher Pasche 10. Jac. In an Action of the Case in nature of a Conspiracy for indicting of a man for a common Barretor and making oath to the Iewry that the Bill was true upon which the Bill was found supposing it false and malicious In this Case it was adjudged that in this Case no Action of the Case in nature of a Conspiracy will lye Bulstr 1. part 185. Case 9. 9 Three men conspired amongst themselves to charge J. S. with a robbery and to procure him to be Indicted and procured divers Warrants from Iustices of Peace by which he was apprehended and examined and after they preferred an Indictment against him whereupon an Ignoramus was found in this Case it was resolved that an Action of the Case in nature of a Writ of Conspiracy lieth Coo. 9. 55. Pasche 5. Jac. in Camstellat Case 10. 10 It was resolved by the two chief Iustices and the Lord Chancellor and the chief Baron That when the Grand Iury doth indict one of Murder or Felony and after the party is acquitted that no Conspiracy lieth for him that is acquitted for this Case 11. 11 A man brought this Action of the Case in nature of a Conspiracy for causing him to be indicted of Felony c. for suffering a Prisoner to escape that was convicted and Iudgement was given for the Plaintiff for this is more than trespasse Stiles Rep. 157. Case 12. 12 Hill 8. Jac. B. R. Wall and Hills Case Bulstr 1. part 149. An Action of Conspiracy was brought for conspiring to indict the Plaintiff for a supposed counterfeiting of a Letter and for the malicious prosecution thereof at the Assizes and that hee was acquitted And he pleaded that the Letter was brought to him by one unknown and delivered to him two others being in his company one of which afterwards told him that the Plaintiff was the man that delivered it and thereupon hee prosecuted him for it in this Case it was adjudged for the Plaintiff for that the prosecution was not upon the Defendants owne but upon another mans suspition and his prosecution and the justification thereof must be upon good probabilities and not upon the suspition of others Bulstr 1. part 149. Sée Coo. 9. 26. Pasche 9. Case 13. Car. B. R. Case 13. 13 The Action was for that Falso malitiose he spake these words of the Plaintiff He committed Felony and procured him to be Arrested and Imprisoned for three daies and had Judgement after a Plea by Verdict c. Croo. 1. 223. CHAP. XXIII Of Pleadings in Actions of the Case for words AS to the Pleadings in all Actions of the Case for words this is first to bée
stoln is not Felony nor will it make one accessary unless it bee joyned with the receipt or abetment of the Felon himself For in some Cases it is lawful to receive stolen goods as if a Lord of a Mannor that hath bona waivata méet with the Theef and the goods about him and saith you have stolon these goods and hee confesseth it and flye Per Gawdie Fenner et Yelverton Popham absente Trin. 44. Eliz. B. R. Dawsons Case Yelvertons Rep. 5. Case 192. Brooke against Mountague Recorder of London And the Action was Charge of Felony in a course of Justice Slander of a Lawyer for these words spoken of the Plaintiff That hee had committed Felony and upon not guilty pleaded it was found that hee was of counsil with the Defendant in an Action and that hee in giving of evidence to the Iury spake the words and that they were pertinent to the matter in issue and it was ruled against the Plaintiff albeit the words were false Mich. 31. Jac. B. R. And agréed that so it will bee in an appeal of Murder if the Counnsel say the Plaintiff did commit the Murder But if it were in trespass for a Battery that such words were spoken they may bee actionable And so also if the words were never so much pertinent if the Council speak them at another time or in another place they may bee Actionable The Case of Parson Prit in Suffolk Croo. 2. 90. Case 193. Pasche 12. Jac. B. R. Hutton versus Beck for these words spoken to Constables a Constable and Church-warden of a Parish viz. Thou hast beguiled and deceived the Town Innuendo the Inhabitants of the Village of A. upon Church-Wardens thy accounts of four pound And it is no marvel thou growest rich when thou deceivest the Town And it was adjudged with the Defendant Charge of couzening a Town against the Plaintiff that the words were not actionable for they were too general Croo. 2. 339. Case 194. Taylor brought the Action against Taliv That whereas there was talk betwéen the Defendant and J. S. such a day in such a place concerning a Marriage to be had betwéen the Plaintiff and the Daughter of J. S. Super quod Colloquium The Defendant in present a diversarom personarum cum present haec Anglicana verba dixit to J. S. of the Plaintiff Will you cast away your Daughter upon Taylor to which J. S. said why to Charge of a Rape by which a match was lost whom the Defendant answered Taylor ravished the wife of J. D. upon which the Marriage did not take effect c. Vpon not guilty pleaded it was found for the Plaintiff and moved in arrest of Iudgement that the place where the words were spoken was uncertain for albeit it be said that the talk was at such a place yet it is not said where the scandalous words were spoken Richardson contra and that they were spoken at the same Place of speaking the words place where the talk was for the time and the place are conjoyned by the Adverb Tunc present and in a Court there néed not that certainty as in an Indictment Quod Car. Concessit and so here the Super Quod is the Commencement of a new sentence and for the words supposed to be spoken no place is mentioned Doderidge accord Ergo per Car. quer nil capiat per billam Taylor versus Tally 21. Jac. Benlowes Rep. 128. Case 195. Davis brought an Action upon the Case against Ockham for speaking these words of him The Knave the Apothecary that married my Sister Charge of Murder hath poisoned my Uncle and I will have him taken up again to hang him The Defendant pleaded an Accord betwirt him and the Plaintiff that whereas the Plaintiff had done a trespasse against him that one trespasse Acccord pleaded passe should be set against the other To this plea the Plaintiff demurred and Twisden said the Plea was not good and cited 16. Ed. 4. f. 89. and prayed Iudgement for the Plaintiff Latch of Counsel with the Defendant said that the Accord was executed on the Defendants part and therefore may be pleaded in Barr. To this Roll Chief Justice answered how have you discharged the Accord for you do not shew it Latch took exceptions Poyson to the Plaintiffs Declaration Pleading in this Action 1 That the words set forth are not actionable for it doth not expresse that the Plaintiff wittingly poisoned the Defendants Vncle or that hée did dye of the poison and cited Hobb Rep. 8. Miles and Jacobs Case and 275. Fleetwood and Caveleys Case 2 There is no Communication expressen in the Declaration to be of the Vncle and it may be spoken of another Vncle and the Innuendo will not help it because hée may have divers Vncles Twisden answered that it is implyed in the sense of the words that hée poisoned him feloniously and so consequently wittingly And 3. Hee saith that hée will have him digged up and so it must be intended that hée died of the poison Roll Chief Justice held that the words are actionable And 4. That the Defendants plea in Bar is not good Jerman Justice held the plea in bar not good but hée doubted whether the Declaration was good for it doth not appear thereby whether the party died of the poison and the latter words help it not Nicholas Justice and Aske Justice agréed with Rolls in all and thereupon the Rule was Judicium Nisi Lundi Suivant Styles Rep. 245. Case 196. Rosse brought an Action of the Case against Lawrence for speaking these Welsh words of him viz. Dediagues Will. Rosse in Mudon which are in English William Rosse hath forsworn himself upon issue joyned and Slander in another language a Verdict for the Plaintiff the Defendant moved in Arrest of Iudgement that the words are not actionable as they are rendred in English Welsh and so the Action lyes not Roll Chief Justice if the words found in Welsh that the Plaintiff was perjured yet if the Plaintiff do english them in English which doth not amount to Perjury it is ill and an Action will not lye for them Therefore let Iudgement be staid Styles Rep. 263. Case 197. After a Verdict in an Action upon the Case brought for these words viz. I was never a Traitor to the State as you have been It was moved in Arrest Treason Incertainty in the person slandered Falso malitiose of Iudgement by Turner for the incertainty of the Declaration for that it appears not thereby that the words were spoken of the Plaintiff or to the Plaintiff and because it is not said that the words were spoken falso malitiose Shafto of Council on the other side answered that it appears the words were spoken upon conference betwixt the parties and thereby doth appear a sufficient Averment that the words were spoken of Averment the Plaintiff Roll Chief Justice The Declaration implies that
man For and against whom and where this Action will lye or not for such a wrong these things are to bée known 1. That the King is within the Statute of Westm cap. 34. but not within the Statute of 2. R. 2. cap. 5. and 12. R. 2. cap. 12. Dyer 155. 2. That the persons that are to have this Writ are declared to be Prelates Dukes Earls Barons and other Nobles and Grandées of the Realm and also the Chancelour Treasurer Clerk of the Privy-Seal Lord Guardian of the Cinque Ports and of the Kings Privy-Council Steward of the Kings Houshold Justice of the one and of the other Bench and other the great Officers of the Realm 2. R. 2. cap. 5. Westm 1. 34. Dyer 155. in Hetleys Rep. 55. 3. That for this it matters not for the manner of contrivance or publication How this slander may be contrived and published of it which way the words or reports be published either by spéech or writing either spoken or written from a mans own knowledge and from himself or by the report of another And by writing either delivered to the party himself or to another or hanged up in any open place or by Libels or by any other extrajudicial way whatsoever See in Hetley Rep. 55. But this lyeth not against any man for any thing done by him in a judicial way as for bringing a Writ or for having a Suit for forging of déeds or other Cause in a legal way or for preferring and prosecuting of a Legal Indictment or an Appeal of Murder Robbery or the like offence albeit the Charge be false And whiles the Starr-Chamber-Court was in being a Bill might have béen brought against any such great man for any thing whereof the Court had Conusance as against another but for preferring any Charge in that Court for any thing whereof the Court had not Conusance a man might have had this Action Or for a Conspiracy to indict such a man the Defendant or party indicted may have the same remedy against the Plaintiff and Conspirators as another man may have Crompt Jur. 13. Coo. 2. part Iust 228. Coo. 4. 14. Fitz. Disceit 35. Dyer 285. Kelw. 27. in Hetley Rep. 55. For what this Action may bee laid Or not Sect. 2. 4. For the Matter and Quality of this Slander take this That the words or rumours uttered against great men for which this Action is given 1. Must be false and horrible 2. Such as by which discord or slander may arise betwéen the King and his people or the Grandées of the Realm Westm 2. cap. 24. Or between the Lords and Commons 2. R. 3. cap. 53. by which great peril and mischief may come to all the Realm 3. Such as tend to the destruction of the Realm Coo. 12. 134. And if any do hear or shall hear any such words by the report of another it will not be safe for him to report them again Coo. 12. 136. It hath béen adjudged and resolved for the words uttered as in the Cases following viz. For saying Thy Lord is a Traitor and I will prove him a Traitor Vicount Sayes Case In Leyes Rep. 82. Croo. 1. 96. And for this My Lord of Winchester sent for mee and imprisoned mee till I entred into bond of twenty pound to the Kings use The Bishop of Twenty pound Winchesters Case Croo. 1. last publisht See it in Leonard Rep. 336. 2. H. 8. So for saying My Lord is a base Earl and a paultry Lord and keepeth none but Rogues and Rascals like himself Earl of Lincolns Case Trin. 5. Jac. B. R. Yet see Croo. Rep. 2. 196. So for saying You bring in Jesuits and Papists into the Realm c. Earl of Northamptons Case Coo. 12. 136. So for saying You maintain sedition against the Kings proceedings Or you uphold and countenance them that do so Coo. 4. 13. So for this You are a Traitor to your Prince or Rebel against him Lord Monteagles Case M. 9. Jac. B. R. So for this It is your grief that you are a subject County of Salops Case M. 40. 41. Eliz. B. R. So for this You charged them that transport or import Merchandizes to or from such a place that they should not pay custome for it nor suffer the customers to search them Old Book of Entries 593. So for this You have no more conscience than a Dog so you have goods you care not how you come by them Duke of Buckinghams Case M. 4. H. 8. Rot. 659. Or to a Chief Justice You are a Corrupt Judge Cromp. Jur. 35. So for this You said you would wind my guts about your neck Lord Abergavenie's Case Cromp. Jur. 13. So also it is thought of these words You are used to do things against Law to impound the Subjects beasts and keep them in a Castle that they cannot be replevied but to say that hée did so once will not bear an Action Duke of Buckinghams Case So for this You have sent Commissioners to spoil the Country where hée sent Commissioners to make Leases of his Land and improve his Rents Duke of Buckinghams Case So for this My Lord of Abergavenie sent for us and put some of us in the stocks sent some of us into the Gaol and put some of us into the house called Little Ease Hill 19. Eliz. the Lord Abergavenies Case See it in Croo. 1. last publisht 192. and Leonards Rep. 336. And so generally of any words of an ordinary mans spoken will give him an Action being spoken to such an eminent person will much more give him this Action Coo. 12. 132 134. Leys Rep. 32. But it is said It will not lye in these Cases and for these words following viz. The Earl of Lincolns men by his commandment did take the goods of one Hoskins by a forged warrant because it was not said hée knew the Warrant to be forged Goldsb 115. See more of this Subject Leys Rep. 82. In the Case of the Earl of Northampton Mich. 10. Jac. B. R. It was as it is said amongst other things resolved in the Starre-chamber 1. That the publishing of false Rumours either concerning the King or of the high Grandées of the Realm may in some Cases be punished by the Common Law So as 1. The words and rumours be false and horrible by which discord or slander may arise betwixt the King and his People or the Grandées of the Realm West 2. cap. 24. or betwéen the Lords and Commons 2 R. 2. cap. 53. by which great peril and mischief may come to all the Realm 2. The persons against whom the words be spoken must be Prelates Dukes Earls Barons and other Grandées and Nobles of the Realm and also the Chancelour Treasurer Clerk of the Privy-Seal Steward of the Kings houshold Iustice of the one and of the other Bench. 2. R. 2. cap. 5. Westm 1. 34. Dyer 5. 2. It was resolved that if one hear such false and horrible rumours either of the
losse sustained by the words but in other Cases it séems to be necessary And yet it is said in some Books that the Action will not lye for this Hee keeps a Common Bawdy-house See for these thing Croo. 1. 168. 189. 239. 288. 27. H. 8. 17. Coo. 4. 17. It séems that this Action will not lye at this day for saying of a man or woman That hee or shee is a Bawd And yet in London these words may happily be actionable Stiles Rep. 322. 323. Croo. 1. 168. Noys Rep. 85. 27. H. 8. 14. It is said to have béen adjudged to lye for this Thou art a Whore and a Bawd to thy Daughters and keepest a Bawdy-house Stiles Rep. 326. Hill 3. Car. 1. Elsey and Harrisons Case So for this Hee is not sit to bear office in such a place for hee keeps a Common Bawdy-house in London Bulstr 1. part 138. 27. H. 8. 15. But it is said it will not lye for this Thou art a Pander to Sir H. Vanyham Noys Rep. 74. But here also as in the other heads of Actions of the Case for Slanderous words this is to be added That where the Action shall be maintainable for words of this nature they must be malicious false certain and under the Rule of qualification by other words For if the words be true or without malice incertain or such as may be qualified by the rest of the words spoken with them no Action will lye upon them CHAP. XV. Of other words importing some charge of transgression of a Penal Law THere are some other words that may sound to the hazard of a mans Sect. 1. losse of his liberty or of the enduring of some corporal punishment Speaking against the book of Common-prayer for which this Action may lye And therefore it is held that this Action will lye for saying of a man That hee spake against the Book of Common-Prayer and said it was not fit to be read in the Church in case where hée Averment can and doth aver in his Action that hée hath any special damage by it as that by this means hée was cited into the Ecclesiastical Court and there put to trouble and expence c. otherwise not Brownl 1. part 10. 13. 2. part 100. 129. March Rep. pl. 191. It is said that this Action may lye for calling of a great man Papist or For saying of a man hee is a Papist or hath been at Mass or hath said Masses or is a Priest Recusant or for saying that hee hath a pardon from the Pope or that he can help any man to such a pardon But otherwise it is of such words spoken of an ordinary man Brownl and Goldsb 12. Brownl 2. part 166. March Rep. pl. 191. Leonards Rep. 335. It will not lye therefore against a man for saying of another That hee Papist Recusant Priest is a Simonist a Recusant Croo. 2. 284. Nor for this Thou art an arrant Papist and it were no matter if such were hanged and thou and such as thou wouldst pull the King out of his Seat if they durst Hobb Rep. pl. 187. To say of one Hee is a Mass-Priest or hath said Mass or hath heard Mass divers times may be actionable And to say of one that hee received a Mass-Priest into his House knowing him to be such a one is dangerous Bulstr 1. part 181. But to say of a man Hee hath received a Recusant without more words is not actionable Godb. Rep. 106. Croo. 2. 484. This Action will not lye for saying of a man Hee hath erected a Cottage Erecting a Cottage contrary to the Statute Godb. pl. 125. 106. March Rep. pl. 191. Nor for saying You did eat meat on a Friday Nor for this You did Eat Flesh Fish-daies Sabbath-breaker Strike in a Church eat flesh Fridaies Godb. pl. 125. March pl. 191. Nor for this Thou art a Saboath-breaker It may happily lye for saying Thou didst strike another in a Church with a weapon But not for this Thou didst quarrel in the Church Godb. 125. March Rep. pl. 191. It hath béen said that it will not lye for saying of one Hee is a Champertor Champertor Maintainer of Suits Buyer of Tites Slander of an Officer Maintenance or a Common Champertor or a Common Maintainer of Suits or a Common Buyer of Titles And yet this said of a Iudge Iustice of Peace Attorney or such like officer may be actionable Hobb Rep. pl. 145. and Hares Case And yet in a Case B. R. 35. Eliz It is said by Popham Chief Justice that it had béen adjudged to lye for this Thou maintainest such a Sute Croo. 1. part last publisht 297. See Hobb Rep. pl. 188. Hetleyes Rep. 139. 143. Rioter Maker of forcible Entry Nor for this Thou hast made a forcible Entry into Lands Nor for this Thou art a common Rioter or thou hast committed a Riot And yet some think that this may be actionable Mich. 8. Car. 1. B. R. Stones Case Nor for this Thou art a Forestaller Regrator and Ingrosser Forestaller Regrator Ingrosser Common Drunkard Nor for this Thou art a common Drunkard a Drunkard or a drunken Fellow And yet some say it may lye for the first of these words Croo. 1. 207. March 1. part of Slanders 46. M. 8. Car. B. R. Finches Law 186. Nor for this Thou art a common Swearer Common swearer Sect. 2. Nor as it séems will it lye for any charge of an offence against a penal Law which doth not inflict Corporal punishment save only in case of non-paiment of the penalty This Action will not lye for any of the words in the Cases Common Libeller Slanderer Quarreler Breaker of the Peace Affrayer Night-walker Eves-dropper Hedge-breaker Mis-feasor following viz. for saying Thou art a common Libeller or a common Slanderer or a common Quarreller or a common breaker of the Peace or a common Affrayer Nor for this Thou art a common Night-walker nor for this Thou art a common Eves-dropper nor for this Thou art a common Hedge-breaker Nor for this Thou art a common Misfesor Kitch 173. 22. Ass 31. This Action is said will be maintaineable against any man that shall say Common Barretor of another hee is a convicted Barretor and for saying of a great man of a Iudge Iustice of Peace Attorney or the like Officer He is a Barretor or He is a Common Barretor But it will not lye for saying of a Common person He is a Barretor or He is a common Barretor Hob. Rep. pl. 188. Hetlies Rep. 139. 143. Croo. 3. 171. Croo. 1. part last publisht 171. Kitch 173. Goldsb and Brownl 11. Hobb Rep. pl. 188. Yelvertons Rep. 90. It is said that it will lye for this Hee hath been indicted for Barretry if it were true he was Indicted and upon the Indictment acquitted But had he béen found guilty upon the Indictment then the speaking of the words are justifiable Stiles Rep. 49. But it will
doth prosecute another upon an Indictment by constraint or compulsion in a Court as where men are obliged to it by their Oath or Office as Iustices of Peace or Iurors sworn to present such offences or witnesses called to testifie their knowledge of such things or one that doth come into a Court voluntarily and there discover one that is a Felon indeed and yet if it be voluntary at the first and after compulsory it may be unlawful and actionable And yet if one shall come into a Court voluntarily and discover Felonies and it be true which hee doth discover and this be without any malice precedent no Action will lye for this So if one come into a Court and by the command of all or one of the Iustices draw or procure to be drawn an Indictment or if being bound to prosecute hee do so and cause an Indictment c. Or if hee be bound to give in evidence and hee do so or hee do give false evidence this will not make him liable to this Action 27. H. 6. 12. 35. H. 6. 14. 27. H. 8. 2. Fitz. 115. Leonard Rep. 107. For if this Writ should lye against one that comes in only to swear to the truth of an Indictment then would no man come in to do it Coo. 4. 14. Bulstr 1. part 185. Porter and Griffins Case B. R. This Action lieth not against a Iuror or witnesse that comes into a Court to be sworn Coo. 9. 55. And if a Witnesse or Iuror had conspired out of Court and the Witnesse had sworn or the Iuror had given a corrupt verdict upon a Conspiracy before out of Court they might have been punished in the Starr-Chamber Coo. 2. 23. 24. And so also of the Iudge or Iustice of Peace But neither Iudge nor Iury nor Witnesse will bee liable to this Action by our Law in such a Case Coo. 12. 23. 24. 12. Ed. 4 18. 21. Ed. 3. 17. 7. H. 4. 31. 35. H. 6. 14. 20. H. 6. 5. F. N. B. â—15 And yet if there be just cause as that in truth there is a Felony committed and any man whatsoever shall complain to a Iustice of Peace of it and thereupon hée that doth complain is bound over to prosecute which is the ordinary course and thereupon hée doth prefer an Indictment and prosecute c. this is not actionable Croo. 2. 32. 130. 191. Bulstr 1. part 150. 5 The procéeding and prosecution must be malicious for an unjust revenge as well as voluntary For if one man do prosecute another in this way upon good ground as where a Felony is done and there is some cause of suspition of that person more than another either by the common fame or otherwise as where a man is robbed and the next Village upon Hue and Cry doth make pursuit and take a man whom they have in suspition and thereupon the party robbed doth indict that man and upon the Indictment in his Trial he is acquitted Or a Coroner after a murder sitting super visum corporâ—s cannot finde out the murder and then enquiring of the first finders of the body they present that J. S. killed him and thereupon hée is indicted and acquitted these proceedings shall not be said to be malicious nor are they as punishable by any Action as in case where it appears he doth begin and prosecute his work maliciously And whether there be malice or not in such a prosecution must be iudged by Circumstances as his manner of prosecution speeches and the like and a Iury only must determine it Bulstr 2. part 2. 84. Broo. Couâ—p 4. Coo. 9. 55. Croo. 2. part 191. 194. Bulltr 2. part 269 Leonard Rep. 107. pl. 146. Bulstr 1. part 149. Croo 1. part 96. Croo. 1 part last publisht 724. 6 It hath been held by some Iudges that it ought not only to be maliciously contrived but it must be false and that if the party be guilty of the Crime whereof hee is accused and for which hee is prosecuted that this Writ will not lye By the two Chief Justices and Lord Chancelour Sed Quere if this may not admit of some exception Huttons Rep. 73. If one be robbed by persons unknown and one of the Theeves had a white Horse and brown Cloak and was like to the Plaintiff and upon this was apprehended and prosecuted this was held lawful and that this Action did not lye for it So where the Daughter complained to the Father shee was ravished by J. S. but was not so and thereupon hee did prosecute him that no Action lay for this So in like cases where there are good and seeming probabilities a man may prosecute another after this manner and justifie it albeit the party accused be innocent and the thing false But if there be no probabilities in the Case or the Iustice in his examination finde no cause to binde over and yet hee proceeds Bulstr 1. part 149. 150. 185. Godb. Rep. 203. Huttons Rep. 73. Bulstr 3. part 331. And in this it is said that if the Charge and Accusation be true but in part as where the Writ doth suppose a man to indict him for murder and it was upon his Arraignment found that hee did kill the man but that the killing was per infortunium or se defendendo in this case the Writ will not lye Fitz. Consp 21. Stamf. lib. 3. cap. 12. 7 The party indicted or appealed must be legittimo modo acquietatus Sect. 3. Acquittal by pardon that is he must be acquitted upon his Trial by the Petit Iury after an Indictment found by the Grand Iury or if hee bring an Appeal be non-suit or the like And therefore if the Acquital be by a general or particular pardon or hee is discharged for the insufficiency of the Indictment and no Iudgement be given upon it or the party is indicted and an Ignoramus is found upon the Bill in all these Cases this Writ of Conspiracy will not lye Croo. 2. 131. Bendloes Rep. 152. Yelvertons Rep. 161. Brownl and Goldsb 10. 9. Ed. 4. 12. F. N. B. 114. Coo. 7. 45. 41. And yet the last of these Cases upon an Ignoramus found is doubted of by some and the contrary said to be twice adjudged 41. Eliz. B. R. 20. Jac. And for the general Pardon hée is to plead it and the Iustices are to allow of it Brownl 1. part 9. Bulstr 1. part 150. 151. Croo. 1. 208. Dyer 28. 85. Goldsb 51. 8 The Prosecution must be about some criminal matter that may bring a scandal upon him for if it be but a matter of Trespasse only no Action will lye for this Stiles Rep. 157. 9 This Action may lye for procuring one to be indicted although the party himself do it not for one may exhibit a Bill to the Grand Iury without oath Stiles Rep. 10 To encourage one that is robbed to cause the suspected Felon to be indicted and to accompany him to the Assizes is lawful to do and will not bring one in
whereas it should have been prefat I. S. Innuendo and this was amended by the Court Croo. 2. 157. As to this Question these things are to be known Where the plea in Bar or Verdict of the Jury will help to maintaine the Declaration and Action or not 1 That the Writ and Declaration must set forth that the words were spoken in auditu or in presentia quamplurimorum subditorum c. otherwise it is not good and the Defendant may take advantage of it but if hee doe not except against it but plead to it and it bee put to a Iury that doth finde for the Plaintiff this may haply supply that defect Croo. 1. 65. 144. 2 That where the words supposed by the Declaration are That Eyres Innuendo the Plaintiff is a Theef And hereupon the Iury doth finde it for the Plaintiff this is good and doth make the incertain words certain and actionable Eyres Case M. 7. Jac. B. R. So if one say to another of a woman passing by shee is a Witch and Sect. 6. hath bewitched my childe Innuendo the Plaintiff and verdict is given for the Plaintiff now it is out of question Pasâ—he 18. Jac. B. R. Roberts Case 3 That where the words that are found by the Iury do not agrée with the words in the Declaration in the substantial and essential form in this Case they will not warrant and maintain the Declaration But if they do agrée in the substantial and essential form though they agrée not in every word yet they may warrant the Declaration and maintain the Action Hobb Rep. pl. 213. M. 4. Jac. B. R. Hill 3. Jac. B. R. Dyer 21. 75. And although all the words in the Declaration be not found yet if the essential and substantial form of the words be found it will be good enough Dyer 21. 75. 4 In this Action for words upon not guilty pleaded the Iury found the words laid in the Declaration to be spoken by the Defendant of the Plaintiff The words were these Thou art a Theef and I will prove thee so And the Iury finde that hée spake the words de Querenti not in his presence but in his absence and so finde it specially And it séems it might be good Bulstr 1. part 56. 5 In this Action against a Husband and Wife if the Iury finde the Husband guilty and the Wife not guilty and a verdict be found in the Case And albeit that the Declaration be naught it now is holpen by the verdict and the Plaintiff may have Iudgement Stiles Rep. 350. 6 If the Action be brought by the Plaintiff against the Husband and Wife for words spoken by the Wife and the Iury finde the Wife guilty this is good and the Iudgement shall be against them both Stiles Rep. 460. Brownl and Goldsb 7. 7 The Count was that the words were spoken falso malitiose and Sect. 7. the Iury found it falso injuriose And it was agréed to be naught and that they were not actionable Trin. 7. Car. B. R. Norman and Simons Case 8 The Count was that the words were That hee is a maintainer of Theeves and a strong Theef And the Iury found all the words but the word strong And it was adjudged for the Plaintiff Burgis Case Dyer 75. 21. 9 The Count was That John Barker and his children be false Theeves men cannot have their Cattel going upon the Common but they will kill them and eat them c. And the Iury found the last but not the first words viz. B. and his children be false Theeves which are the only actionable words and it was adjudged for the Defendant Barbars Case If the Action be for words only and the Plaintiff recover hée is to have Costs recoverable no more costs than the Iury have given damages But if the Action be for words and déeds together as for slandering and causing imprisonment or the like there hée is to have full costs Croo. 1. part 223. If the Plaintiff be non-suit the Defendant shall have costs Hobb pl. 286. CHAP. XXIV Of a Libel A Libel called Famosus Libellus seu infamatoria scriptura is taken Libel What Sect. 1. for a scandalous writing or Act done tending to the defamation of another And this may be and sometimes is against a publick and sometimes against a private person sometimes against the living sometimes against the dead This may be by writing or by other Act done By writing when any Epigram Rhyme or other writing is composed or published to the note or contumely of another by which his fame or dignity may be prejudiced And this may be either verbis or cantilenis as where it is malitiously repeated The kinds of it or sung in the presence of others 2. Traditione when the Libel or any Copy of it is delivered over to another to the intent to scandalize the party Or it may be done by other waies An infamous Libel without writing may be either by pictures when the party is painted in any ignominious or reproachful manner 2. Or by signs when one doth make or fix a Gallows or any other reproachful or ignominious sign at the door of the party or elsewhere Coo. 5. 126. Or the like Thus Jeffes exhibited an infamous writing directed to the King against Sir Edward Cook Chief Justice of the Kings Bench and against the Court for a Iudgement given in the Court affirming the Iudgement to be Treason calling him therein Traitor and perjured Judge and scandalizing all the Professors of the Law containing much scandalous matter in it And fixed the Libel upon the great Gate at the entrance into Westminster-Hall and in divers other publick places and was indicted for it in the Kings Bench and fined a thousand pound committed to the Marshal ordered to stand on the Pillory at Westminster and Cheapside with a Paper of his offence on his back to be detained in prison till hée made an open submission in all the Courts at Westminster and to be bound with sureties for his good Behaviour during life Croo. 1. 125. And so an infamous Libel was composed and published in verse against John the Archbishop of Canterbury and his successour by Circumlocutions and descriptions and not in expresse terms by which they were traduced and scandalized which was punished in the Starre-Chamber Coo. 5. 225. And so William Peacock did exhibit his Bill in the Starre-Chamber against Sir George Reynel for this that the Defendant perceiving that the Plaintiffs Father was inclined to settle his Land upon him that hée to take off his affection and that hee might settle it upon himself writes a Letter to his Father that the Plaintiff was not the Son of a Peacock and was a haunter of Taverns and that divers women did follow him from London and that hee longed for his death and that his Land would not be sufficient to pay his debts c. And the Defendant was there fined two hundred pound and
and B. talking of how many Hares one of them had killed and the other therein say to him You are a Murtherer this is not actionable The Plaintiff therefore was barred Coo. 4. 12. Case 2. Cutler and Dixon To prefer scandalous Articles against any man to In a Course of Justice not actionable the Iustices of the Peace to the intent he may be bound to the good behaviour is in pursuance of justice and not actionable M. 27 28. Eliz. Coo. 4. 14. Case 3. Sir Richard Buckley and Owen Wood Sir Richard sued him for preferring divers scandalous Articles against him in the Star Chamber not determinable there and for affirming the same to be true without naming any of the particulars of the Bill in the County of S. W. doth traverse the affirmance before or after the day in the Count. In this Case it was resolved 1 That the Traverse is not good that the day in the Count is excluded 2 That no Action lyes for things determinable in that Court where In a course of Justice the Complaint is made for it is in a course of justice 3 For things not determinable there it is otherwise for an appeal of Murder brought in the Common Pleas no Action will lye it is in nature of a just Suit though the Court be mistaken but because the words in the County out of which the Action is composed are not actionable the hearers not being of judgement to know what was in the Bill Iudgement was given against the Plaintiff Coo. 4. 15. Case 4. Stanhop and Blisse Case 27 Eliz. An Action was brought by Master Words general and incertain Stanhop a Iustice of Peace Surveyor for these words He hath but one Mannour and that he hath gotten by swearing and forswearing It was Officer Justice of Peace Perjury resolved that the Action would not lye for the words were too general and such words to ground this Action must have convenient certainty in them he doth not charge the Plaintiff with swearing c. and he may recover a Mannour so and yet not procure or agree to the perjury It was resolved to say to another He hath forsworn himself is not actionable for this may be in an ordinary discourse but to say a man is perjured or that he was forsworn in such a Court is actionable And resolved also that for words of Passion and Choller as to call one Villaine Rogue Varlet Villaine Rogue Varlet or the like will not bear Action Coo. 4. 15. Case 5. Hert and Yeomans Case The Plaintiff being a Iustice of Peace sues Charge of an endeavour of Murder for these words For my ground in Alerton Hert seeketh my life and if I could finde I. S. I doubt not but within two dayes to accuse H. of Felony In this Case it was adjudged that for the first words for my ground in A. he seeketh my life no Action will lye for this may lawfully be done Justice of Peace Incertain words if he hold Land of him and be an offender 2 Seeks my life is too general there is no punishment to be inflicted for séeking only But for the latter words it was agréed they were actionable Words general endeavour because for a suspicion of Felony a mans life is brought in question and he may be imprisoned Coo. 4. 16. Case 6. Byrchleys Case 27 28 Eliz. The Defendant said to B. C. a Clerk of Officer charged to deal corruptly the Kings Bench and sworn to deal duly without corruption discoursing together about his carriage in his Office these words You are well known to bee a corrupt man and to deal corruptly In this Case it was adjudged that the Action did lye 1 For the words Ex causa dicendi imply that he meant he did deal corruptly Causa Dicendi in his office and this toucheth him in his oath 2 The words scandalize him in that whereby he gets his living Skinner Justice of Peace slandered of London said That Manwood was a corrupt Judge and it was adjudged actionable and in this Case it was resolved That if the precedent talk had béen that B. was a Vsurer or Executor of another and would not perform the Will And upon this the words had béen spoken they had not béen actionable Coo. 4. 26. Case 7. Weaver and Caridens Case It was adjudged that no Action lyes for saying That the Plaintiff was detected for perjury for an honest man Detected for perjury may be detected but not convicted Coo. 4. 16. Slander of a Justice of Peace Case 8. Stuckley and Bulheads Case 44 and 45 Eliz. It was adjudged That this Action will lye for saying of a Iustice of Peace Hee covereth and hideth Felonies and is not worthy to be a Justice of Peace For this is against his Oath and Office and cause to put him out of Commission and for this hee may be indicted and fined Coo. 4. 16. Case 9. Snagg and Gees Case An Action was brought for these words Thou Charge of Murder Words Repugnant hast killed my Wife and art a Traitor and it was adjudged that the Action would not lye for the Wife as appeared was alive and so vain and no scandal but otherwise it would be if shee had been dead Coo. 4. 16. Case 10. Eaten and Allens Case An Action was brought for these words Hee is Charge of Murder a Brabler and a Quarreller for hee gave his Champion counsel to make a Deed of Gift of his Goods to kill mee and then to flye out of the Country but God preserved mee And it was strongly urged that the Attempt and endeavour to murder Action should be maintainable and divers cases cited Lady Cockein Mich. 32. 33. Eliz. B. R. for these words My Lady Cockein offered to give poison to one to kill the childe in her body Another between Tibbot and Heine in Gloucester for this Tibbots and another did agree to hire one to kill S. B. Also Cardinals Case If I had consented to Mr. Cardinal T. H. had not been alive And the Lord Lumleys Case My Lord Attempts and endeavours Lumley hath gone about to take away my life against all Christian dealing But upon great deliveration it was adjudged that the words were not actionable for a purpose or intent to do an evil Act unlesse it be in case of Treason is not punishable by Law yet such a Conspiracy might have béen punished in the Starre-Chamber when it was up Coo. 4. 16. Case 11. Anne Davis Case The Plaintiff was néer to Marriage the Defendant Charge of Incontinency said of her Shee had a Bastard and by this shée lost her Marriage this is actionable 1. For shée is punishable upon 1. Eliz. if true 2. So upon any naked charge of Incontinency and special damage shewed by it and the ground of the Action is temporal viz. the defeating of her advancement Inne-keeper in Marriage By Popham An
opinion the other Iustices did incline but this was only upon motion Croo. 1. part last publisht fol. 214. Case 49. Action for these words Thou hast sought the blood of thy Husband Charge of Murder and wast his death for if thou hadst been an honest woman hee had been alive yet And averrs in facto that her Husband was killed it was moved the Action lyeth not for it is not said shée did any unlawful act and Averment it was cited to be adjudged Mich. 18. 19. Eliz. that for these words Thou wert the death of J. S. Action lyeth not for it may be by grief but it was ruled here that the Action lyeth for they shall be taken to be spoken in malam partem and it was adjudged for the Plaintiff Croo. 1. part last publisht fol. 239. Case 50. Action for these words ss Aid mee to Stoner for I have Felony to Charge indirect lay to his charge for hee would have robbed mee After verdict for the Plaintiff it was alledged in arrest of Iudgement that the words are not actionable for perhaps the saying I have Felony to lay to his charge of themselves are actionable but when hée saith further for hee would have robbed mee they prove no Felony but extenuate the first words and shew what hée did intend and the last words are not actionable for to say One would have robbed mee an Action lyeth not without shewing Intent or will to do a Felony some overt act put in ure which is Felony or cause to binde one to his good Behaviour for though hée had an intent peradventure hee repented of it and did no evil act And Lea cited a Case adjudged in 27. 28. Eliz. inter Tuttle Osborne that these words scilicet thou wouldest have murthered mee are not actionable and for this cause the Court inclined that an Action did not lye Sed adjurnatur Croo. 1. part last publisht fol. 250. Case 51. Action for words ss My Lord President of the North shewed Mr. Stapleton his hand set to a Book whereby hee had consented to the late Charge of Treason Rebels of the North but by the means of Mr. Fairfax my Lord President was perswaded and the matter suppressed after verdict for the Plaintiff it was moved in arrest of Iudgement that an Action lay not for it is not said that hée consented to the Rebels but that his hand was set to a Book whereby hée did consent c. but sheweth not who set to his hand it might have béen done by another Also it is not said hée consented to them in their Rebellion but the consent may be in some other matter nor that hée knew they were Rebels Also it appeared not in what they were Rebels if in Treason or only upon processe of Rebellion Cura contra in omnibus for it cannot be his hand if hee himself sets it not to the Book but another may write his name and when hée said hée consented to the Rebels and shewed not any certain person this cannot be otherwise intended but that hée consented to all the Rebels in their Rebellion but if hée had said That hee consented to A. and B. which were Rebels this peradventure may be intended that hée consented to them in some other matter as it was ruled 26. Eliz. inter Brown Lisle where the words were Hee was confederate with Campian the Jesuite no Action lay for it is not said hée knew him to be a Iesuite nor in what matter hée was confederate with him and in this term it was adjudged for the Plaintiff Croo. 1. part last publisht fol. 251. Case 52. Action for these words Mr. Winckfield you never thought well of mee since Graves did steal my Lamb adjudged actionable although it Charge of Theft was alledged in arrest of Iudgement that it was not a direct affirmance that G. R. did steal it Croo. 1. part last publisht fol. 289. Case 53. Action for words and declared that the Plaintiff was an Inn-holder in Inn-holder D. the Defendant spoke these words Thy house is infected with the Pox and thy Wife was laid of the Pox adjudged actionable for it shall be intended Infectious disease the great Pox and if it were the small Pox yet they were actionable for it is a discredit to the Plaintiff and guesse would not resort thither and it was adjudged for the Plaintiff and fifty pounds damages given Croo. 1. part last publisht fol. 289. Case 54. Action for these words Thou art falsly forsworn in Bell Court Innuendo About Perjury a Court Baron held at Bell per Curiam with this Innuendo the Action did lye otherwise not Croo. 3. part last publisht fol. 297. Case 55. Action for these words Thou art forsworn and perjured the Iury found About Perjury a special verdict that the Defendant said the Plaintiff was a forsworn fellow to whom the Plaintiff said will you say I am perjured the Defendant said yes if you will have it and the Court conceived that upon this matter an Action did not lye and it was adjudged for the Defendant Croo. 1. part last publisht 297. Case 56. Action for words for that whereas the Plaintiff was a Iustice of Peace Justice of Peace the Defendant said You do openly maintain and countenance the worst people against Gods Laws and the Queens after verdict it was moved that an Action did not lye for these words for it is not shewn who these people are which hée intended were the worst people viz. Rogues Hereticks or the like and it is not shewn that hée did know them to be such persons nor in what hée did maintain them and of that opinion were Fenner and Clench but Popham Chief Iustice contra for they sound to his discredit and hée said it was adjudged upon good deliberation in a Case betwéen Sir Henry Portman and Stowell that for these word Thou maintainest such Charge of Maintainance a Suit an Action did lye for maintainance is unlawful and odious and it is here alledged to bee spoken malitiose and cannot bée intended but hée maintained them in their naughtinesse and afterwards Mich. 35. 36. Eliz. the Case was moved again and it was held by the whole Court that the Action did not lye for the words are too general to maintain an Action Croo. 3. part last publisht fol. 297. Case 57. Action for these words Thou art a perjured Knave for thou swarest Charge of Perjury this day at the Leet that I bake bread in my house where I did not after verdict for the Plaintiff upon not guilty pleaded it was moved that an Action lay not for these words for perjury cannot 〈◊〉 a Léet whereof the Law takes any notice but all the Court held that the words were actionable for although it bee not a perjury punishable by the Statute of 5 Eliz. yet it is a discredit for which an Action lyes wherefore it was adjudged
words for calling of him Bastard And the cause of the Errour was laid to be that the Action lies not for these words without special cause shewn that hée was damnified by them as that hée was inheritable to some Lands and by reason thereof he Hindrance of preferment is to have losse And here it is shewn that such Land was given in tail to his Grandfather and that his Father had divers Sons whereof the Plaintiff is youngest Son and his Elder Brothers are living and that such a one was to buy the Land and offered him so much for his Title And by reason of those words refused to give him any thing In this case it was For saying of one Hee is a Bastard agréed that albeit hée had no present Title but a possibility and being offered mony for it and having lost this gain by the words and in futuro might receive prejudice in case hee were to claim any Land by descent And for these causes they held the words actionable and did affirm the Iudgement Croo. 2. 213. Case 132. An Action of the Case was brought for speaking of these words viz. J. S. For saying Thou hast had Bastards 34. years since had two Bastards and hath paid for the nursing of them and the Plaintiff shewed that by reason of these words contention grew betwirt him and his wife almost to a divorce and it was adjudged that an Action would not lye for the words and the Chief Iustice said that an Action upon the Case doth not lye for every ill word but for words by speaking of which the Plaintiff is damnified and that cannot be in this Case the time being so long past And the causes wherefore a man shall be punished for saying that a man hath a Bastard are two the one because by the Statute of 14. Elz. The offender is to be punished for the same And secondly because the party by such means is discredited or hindered in his preferment Godbolt Rep. Case 385. Pasche 16. Jac. B. R. Case 133. Sir Gilbert Gerrard brought an Action against Mary Dickinson and Slander of a Title declared that hée was seized of the Land in Fée and was in treaty to make a Lease of it for two and twenty years at a hundred pound a year Rent to R. Egerton and that the Defendant knowing of it said I have a Lease of the Mannor and Castle of H. which was the same Land for ninety years and published it c. by reason whereof R. Egerton did not procéed In this Case it was agréed that no Action would lye for the words although they were false because the Defendant did pretend an interest in the Land So if the Defendant had said that the Plaintiff had no right to the Land but that shee her self had right to it no Action would lye for this Coo. 4. 18. Case 134. An Action upon the Case was brought for these words viz. Thou art a For saying Thou art a Couzener and Bankerupt Couzener and Bankerupt and hast an occupation to deceive men by the words were spoken of a Gentleman who had a hundred pound Land per annum to live upon and therefore although hée used to buy and sell Iron yet because hée was not a Merchant nor did live by his Trade the better opinion of the Court was that the words were not actionable and so adjudged Godb. Rep. Case 45. Hill 28. Eliz. B. R. Case 135. Pasche 15. Car. 1. Smiths Case One said Thou art forsworn and hast Charge of Perjury taken a false Oath at Hereford Assizes against J. S. And the opinion of the Court was against the Action But it was said it would have lyen for this Thou art forsworn and hast taken a false Oath at the Assizes against J. S. with an Averment that hée was sworn in the cause March Rep. pl. 17. Smiths Case Pasche 15. Car. 1. Case 136. Easter 15. Car. 1. Molton versus Clapham The Defendant upon reading Perjury Affidavids in Court openly in the presence and hearing of the Iustices and Lawyers said There is not a word true in the Affidavids which I will prove by forty witnesses March Rep. pl. 45. Molton versus Clapham Easter 15. Car. 1. Case 137. Mich. 15. Car. 1. Johnson versus Dyer The Case was this The Defendant Incertain charge of Felony having spéech with the Father of the Plaintiff said to him I will take my Oath that your Son stole my Hens But did not averr that hée was his Son or that hee had but one Son and it was held not good March Rep. pl. 96. Mich. 15. Car. 1. Case 138. Mich. 15. Car. 1. Just Crooks Case It was agreed That if one had preferred Manner of divulging of a Slander a Bill in the Starr-Chamber against a Iudge for Corruption in his office and then shall go unto a Tavern or other place and tell the effect of it that this is actionable March Rep. pl. 119. Case 139. Pasche 17. Car. 1. B. R. Sir Richard Greenfields Case The Action agreed Charge of couzening to be maintainable for this Thou hast received mony of the King to buy new Saddles and hast couzened the King and bought old Saddles for the Troopers for hee may thereby lose his office or imployment So if hee had said these words of the Kings Sadler March Rep. pl. 135. Case 140. Trin. 17. Car. 1. Co. B. Action was brought for this Thou hast killed my Charge of Murder Lack of Averment Brother Innuendo C. c. fratrem nuper mortuum and it was held by the whole Court not actionable without averment that hee was dead and that the Innuendo will not do it March Rep. pl. 187. See Hobb Rep. pl. 11. Case 141. Trin. 17. Car. 1. Hawes Case The Action was brought for these words Charge of speaking against the book of Common-Prayer Averment Necessary My couzen Hawes hath spoken against the Book of Common-Prayer and said it is not fit to be read in the Church with an averment of a special losse by it that hée was called into the Spiritual Court and the Plaintiff had Iudgement in it March Rep. pl. 191. Case 142. Mich. 17. Car. 1. Co. B. Baine sued for these words That hee kept a Charge of cheating and couzening Averment false Bushel whereby hee did cheat and couzen the poor But hée set forth that hée was a Farmer did use to sow Land and sell the Corn and thereby maintained himself and his Family and that the words were spoken to one that did use to buy of him and that by reason of the words hée lost his custome And it was adjudged actionable March Rep. pl. 192. Case 143. Mich. 17. Car. 1. Co. B. A. sued for these words That hee kept false Couzening weights and hée set forth that hée got his living by buying and selling but did not shew of what Trade or Profession he was and agréed that the Action
Plaintiff declared Slander of a title to Land That his Brother dyed seized of Land in Fée and dyed seized thereof without issue and the Land descended to him as Heir and that he had a purpose to settle part of it upon his Son and to make Leases of part of it and that the Defendant to frustrate his intent used these words The Plaintiff hath no more right to the Land than a stranger It was adjudged against the Plaintiff because he did not shew any cause of losse that he was about to make a Lease or assurance of it to his Son but that he had an intent only Croo. 2. 397. 337. Owens Rep. 32. Pophams Rep. 187. Case 167. Trin. 18 Jac. B. R. Action for these words the Plaintiff alledged That 1. April 17 Jac. hée was a Merchant and the said 1. April 17 Jac. the Defendant spake these words of the Plaintiff Hee is a Bankrupt Bankrupt slave the Defendant justifies because 1 April 17 Jac. the Plaintiff became bankrupt but adjudged the words actionable and the Defendants Bar insufficient because he doth not alledge he continueth still a bankrupt for it may be he afterwards recovered himself and became a good Merchant judgement for the Plaintiff Usher and Bretts Case Croo. 2. 578. Case 168. Trin. 22 Jac. in C. B. Action for these words Thou art as arrant a Indirect words Theft thief as is any in England for thou hast broken up I. S. his chest and taken away forty pound After verdict and motion to arrest the Iudgement it was adjudged the first words without any Averment will not maintaine an Action and the last words doe not prove any Felony committed and the money may be taken away and the Chest broken open upon pretence of Tithe and in mid-day in the presence of divers and then it is no felony Iudgement was for the Defendant and there this Case was put by Hobbard Thou art a thief for thou hast stoln away my corn not actionable but if he say For thou hast stoln my corn contra Foster and Brownings Case Croo. 2. 687. Case 169. The Plaintiff being an Attorney in B. R. for one Ecombridge prosecuted for him a Latitat against Lord which he delivered to the Sheriff Slander of a Lawyer upon which Lord was arrested The Defendant having spéeches with Ecombridge concerning the Plaintiff and his honesty as an Attorney and concerning the said Latitat ex malitia praecogitata said these words of the Plaintiff Go tell your Lawyer Roberts that I say hee is a base Rascal and I will make him lose his ears and I will teach him or any Lawyer of them all to have a Writ served on mee Vpon not guilty it was found for the Plaintiff And upon debate between the Iudges it was resolved that the words were actionable Trin. 3. Car. 1. Rott 1170. in B. R. Roberts and Lords Case Ley. 70. Case 170. Action for words The Plaintiff declared that one named Carolus being Charge of Perjury Incertainty of good fame and name the Defendant said â—e prefato Carolâ— Where is this Baker Innuendo Caroius Baker hee hath taken a false oath and I could make him look through the Pillory It was moved that the Innuendo Innuendo will not make it good there being no Baker spoken of before But the opinion of the Court was The Declaration was good And if one say of a Counsellour Where is this Counsellour Innuendo such a one it is good Adjudged for the Plaintiff Trin. 13. Jac. in B. R. Bakers Case Bulstrod 3. part 72. Case 171. Action brought for these words Sir Herbert Crofts keepeth men to rob mee the truth was that the Defendant was robbed by two of Sir Herbert Hee keepeth men to rob mee Crofts men and upon this the Defendant spake the words But the Defendant doth not say That hée did kéep them so to do It was agréed by Cook Chief Iustice and all the Court that the Action would not lye for those words for that there is done and it is to be intended his kéeping of them to be lawfull and the words to rob mee this is but an intent and Inclination and purpose no Act and an intent without an act is not punishable and Hill 39. Eliz. in C. B. Snag and Gee's Case was vouched by Cook where the words were Thou hast killed my Wife and it appeared the Wife was then living Adjudged the words not actionable in the principal Case it being found for the Plaintiff the Iudgement was arrested because the words were not actionable Pasche 14. Jac. B. R. Sir Herbert Crofts and Browns Case Bulstr 3. part 161. Case 172. In an Action upon the Case for words it was found for the Plaintiff Charge of Theft It was laid in the Declaration cum quidam malifactores ignoti had feloniously shorn the shéep of J. S. upon a Communication had betwéen the Defendant and another touching the shearing of these shéep the Defendant spake these words I do know who did shear the sheep predict J. S. Innuendo General and incertain words the other desired of her who this was shee answered It was the Plaintiff and M. that did shear them Innuendo Felonice it was upon Innuendo motion for stay of Iudgement adjudged that the words were not actionable and that the general words shall not be restrained to particular and the Innuendo will not help it And in the Declaration it is laid there was Communication betwixt the Defendant and another concerning the shearing of the shéep but not concerning the Felony And it is not said that shée did know who did shear the shéep feloniously but who did shear them generally and the scandal grows out of an inference only which ought not to be to make words actionable but the words themselves ought to be directly scandalous Iudgement was arrested Mich. 13. Jac. B. R. Helly and Henders Case Balstr 3. part 83. Case 173. Hill 9. Jac. Rott 832. B. R. Action for these words Thou art a Bankerupt Bankerupt Rogue Knave Theef Rogue and accounted a common Knave and thou art a Theef and hast stoln my Corn. Adjudged the first words were not actionable but the second were but because the Iudgement was intire and the damages intire the Iudgement was reversed upon a Writ of Errour Damages entire brought Lloyd and Pearses Case Croo. 2. part 424. Case 174. In an Action upon the Case for words it was found upon not guilty for the Plaintiff The words spoken by the Defendant to the Plaintiff Charge of Forgery were these viz. Thou hast forged Writings for which thou shouldest lose thy ears It was laid in the Declaration that the Plaintiff was a Practitioner Solicitor and Steward of a Mannor The Court was divided in opinion For Mountague Chief Iustice and Crook were of opinion that the words were actionable for although the first words of Charge indirect themselves are not actionable yet
the words were spoken falso malitiose and there néeds not an expresse Averment that they were so spoken as there ought to be in an Indictment and this Declaration is laid two years after the words were spoken Therefore take your judgement except better matter be shewn Styles Rep. 435. Case 198. Townsend brought an Action upon the Case against Barker that had Couzening Knave béen a Co-partner with him in Trade for speaking these words of him You are a couzening Knave and did couzen mee of twelve hundred pound at one time and that was in making an account in the year 1648. Vpon a Verdict for the Plaintiff it was moved in Arrest of Iudgement Trades man that the words are not actionable because though they be spoken of a Trades-man yet they are not spoken of him in reference to his Trade but in reference to an account and although by way of reduction and consequence they may reflect upon his honesty yet they are not actionable and though his Reputation be impaired by speaking them yet hée cannot bée indicted for couzening in his Trade by reason of them because they are spoken of a singular and particular abuse and not of a general couzening used in his Trade and an Action of the Case lyes not for words which are only scandalous by way of Reduction and if the words should hinder the party to get a partner hereafter to trade with him yet hée may use his Trade and so cannot be preiudiced Nor are the words that he cheated him but that hée couzened him which are not of so violent a Construction Wild on the other side said that here is a Partnership which is necessary to the driving of a Trade and without which it cannot be so well driven and the account is incident to all Partnerships and prayed for Iudgement Co-partners in Trade Roll Chief Justice if the Co-partnership continued the words were actionable without doubt For then they must be spoken of him in the way of his Trade but here the Partnership being ended makes the matter more considerable but yet as it is the words are scandalous and may hinder from getting a Partner for the time to come and it may be hée cannot manage his Trade without a Partner and although an account be a private thing yet the Plaintiff is disgraced by the speaking of the words and none will deal with a man that will couzen his own Partner and we must countenance Trade and Traffick and mens Credits and the account is not so collateral a thing to trade as Hales objects as is the hiring of a shop to trade in or the like German Justice ad idem and said that Co-partnership is necessary to support Trade and the kéeping of a true accompt is the principal thing betwéen Partners Nicholas and Aske Justices ad idem Judicium nisi pro quaerenter Styles Rep. 389. Case 199. Sir William Walgrave brought an Action upon the Case against Agur. Vpon these words spoken by the Defendant to a Servant of the Plaintiff Treason it is well known that I am a true Subject but thou Innuendo the said Servant servest no true Subject and thine own conscience may accuse thee thereof It was moved in arrest of Iudgement that these words are not actionable for no slander comes to the Plaintiff thereby for perhaps the party served no man but the Quéen and if the words may receive such sense which is no pregnant proof of Infamy they are not actionable as in the Case betwixt Savage and Cook These words Thou art not the Queens friend are not actionable for it might be they were Words incertain as to the person slandered spoken in respect of some ordinary mis-demeanours as in not payment of subsidies or the like Also it is not averted that the party to whom the words spoken was the Plaintiffs Servant Cook where a man is touched in the duty of his office or in the course of life an Action lyeth although that otherwise the words are not actionable and here is set forth in the Declaration That the Plaintiff at the time of speaking of the said words was a Iustice of Peace and Sheriff of Suffolk and Captain of a Troop of a hundred and twenty horse to attend the preservation of the Quéens person So in respect of place and dignity in the Common-wealth as 2. H. 8. The Bishop of Winchestor brought an Action upon Scandalum Magnatiam the Statute of Scandal Magnatum upon these words My Lord of Winchester sent for mee and imprisoned mue until I made a release to J. S. and in respect of his place and dignity the words were holden actionable and 9. Eliz. Dyer in an Action upon the Case by the Lord Aburgaveny against Wheeler My Lord of Aburgaveny sent for us and put some of us into the Coal-house and some into the Stocks and mee into a place in his house called Little-Ease and the words were holden actionable So in our Case Lewes said it was the Case of one Kinsey one said to a Bayliff of a Franchize Thou didst execute false Officer slandered VVarrants without saying they were falsified by him adjudged an Action did not lye VVray Chief Justice These words in themselves are not actionable for the Plaintiff might be untrue in small things which gave no discredit but the quality of the person of whom they were spoken may add weight to them as to call one Bankerupt generally Bankerupt no Action lyeth upon it but to call a Merchant so is actionable So to call one Papist no Action lyeth for it but if one calls the Arch-Bishop Papist of Canterbury in an Action will lye for hee is Governour of the Church Thou art an untrue man to the Queen gives not an Action to an ordinary Untrue man to the King Subject but such words spoken of one of the Privy Council are actionable Corrupt man of themselves are not actionable but being spoken of a Iudge an Action Iyeth It was Birchleys Case an Attorney of this Court Thou art a corrupt man and dealest corruptly and it was adjudged per curiam that Slander of an Officer the words were actionable for that refers to his Calling Gawdy was of opinion that the words were actionable of themselves without respect had to the quality of the person of whom they were spoken for the words are particular enough and to touch him in the duty of a Subject which is to be faithful to his natural Prince is a great reproach and slander Fenner conceived that the words were not actionable Wray as before of themselves they are not actionable for they are in general for if hée bée indicted of Trespasse he is not a good subject Leonards Rep. Case 469. M. 32 Eliz. B. R. Case 200. Mich. 1 Car. 1. Co. B. Sir John Isham a Iustice of Peace sued York Slander of a Justice of Peace for these words I have been oft with Sir John
is shewn that such Land was given to his Grandfather and that his Father had divers Sons Slander of a Title whereof the plaintiff is the youngest and his elder Brothers are living And that such a one was to buy the Land and offered him such a summe of money for his title and by reason of those words refused to give him any thing So it appears by his own shewing that he hath not any present title and therefore no cause of Action at all But the two chief Iustices conceived that although he hath not any present Title it appears hee is by a possibility inheritable to those Lands and being offered a summe of mony for that possibility to joyn in the assurance although he hath not any present title to the Land yet by reason of those words hee had a present damage and in future might receive prejudice thereby in case hee were to claime any Land by discent And for these causes they held that the words were actionable and the judgement was affirmed Croo. 2. 213. Case 229. 2 Car. B. R. Reynor vers Hallet The Action was brought for these words viz. Reynor is a base Gentleman and hath four Children by his servant Agnes and he hath killed them all or caused them to bee killed And after a verdict for the Plaintiff and amotion for to arrest the judgement judgement was given for the Plaintiff and there it was said to be adjudged not to lye for these words Agnes Knight is a Witch and Witch by Dodridge these words Hee hath four Children by his servant Agnes alone are not actionable but Whitlock contra And by Iustice Jones it Incontinency For saying one is a Bastard lyeth not for saying One is a Bastard and by him it lyeth not for saying Thou hast killed I. S. where in truth there never was any such man But to say Thou hast killed the King Contra. Case 230. Mich. 40 Eliz. In an Action of the Case for calling one Bastard Dyer and Walsh Iustices said an Action would lye but Brown on the contrary For calling one Bastard because it must be tried in the Spiritual Court And Dyer said that at Barwick Assizes a Formedon in Dicender was brought and one said That his Father by whom he claimed was a Bastard and thereupon he brought an Action against him for those words and recovered Case 231. The Clerk said That he had a Son in Nottinghamshire and that he Charge of Theft Incertainty Averment had his Chest picked and a hundred pound taken out of it in one Lock-smiths house and I thank God I have found the Chief who it is it is one that dwelleth in the next house called Robert Kingston whereupon Kingston brought this Action without averment that he did live in the next house and had a verdict for him and it was held not good for lack of this averment Pasche 7. Jac. B. R. Case 232. Action for these words There was never a Robbery committed within Charge of Robbery forty miles of Wellingborough but thou hadst thy part in it after verdict it was moved in arrest of judgement that the Action did not lye because it was not averred there was any Robbery committed within forty Averment miles c. for otherwise it is no slander sicopinio cur and judgement for the Defendant Mich. 36 37 Eliz. B. R. placito 12. Croo. 1. last published 308. 11. Case 233. Action for these words You have sought to murder me and I can Charge of an endeavour to Murder prove it adjudged that it lay Croo. 308. 1. last published 12. Case 234. Action for words That he being a Counsellor at Law and Steward to Slander of a Lawyer I. S. of his Mannours the Defendant said of him Hee is a paultry Lawyer and hath as much Law as a Jack-a-napes upon not guilty pleaded it was found against him and damages twenty pound And it was moved and the Action lyeth not for it is not said hee had no more Law than a Iack-a-napes but it was adjudged for the Plaintiff for the words are scandalous and touch him in his profession Croo. 1. last publisht 342. 9. Case 235. Action for these words Thou art a forsworn Jack in the Court-Baron Charge of Perjury of D. thou hast sworn me out of twenty shillings rent and hast me on thy side adjudged that the Action lay and the Plaintiff recovered Croo. 1. last publisht 342. 10. Case 236. Action for these words There was never a Purse cut within twenty Charge of Theft Cut purse miles of VVellingborough but thou hadst thy part in it and avers that such a Purse was cut c. and he had no part in it And it was moved that an Action lyeth not for it is not said he had a part of it as a partaker in the Felony for he may have a part in it in the losse and so it is no slander but it was adjudged for the Plaintiff for the words shall be taken to be spoken in the worst sense in disgrace and reproach of the Plaintiff Nota Serjeant Yelverton cited a Case Pasche 32 Eliz. Sir Edward Hastings Endeavour brought an Action for these words You have procured a perjured man to seek my bloud and ruled that an Action did not lye But Fenner said the Case was not adjudged but ended by his Arbitrement Vide Mich. 35. 36. Eliz. Antea B. R. placite 11. Croo. 1. last publisht 342. 11. Case 237. Action for words for that the Defendant said to I. B. Son of the Plaintiff in the presence of divers Thou praefat J. B. Innuendo and thy Charge of Perjury Father Innuendo the Plaintiff were both Perjured and I Innuendo the Defendant will prove you both perjured Vpon not guilty it was found for the Plaintiff damages twenty pound And it was moved in arrest of judgement that it was not averred that I. B. was the Son of the Plaintiff but it was held well enough for that it was alledged that the Averment words were spoken to I. B. his Son and it was adjudged for the Plaintiff Croo. 1. last publisht 143. 11. Case 238. Action for these words Many an honester man hath been hanged and Charge of Felony Indirectly a Robbery hath béen committed and I think he was at it and I think he is a Horse-stealer it was moved after verdict that an Action lyeth not without an expresse averment he was so Curia contra they are great Averment slander if the Defendant sheweth not a good cause of his thinking and it was adjudged for the Plaintiff Croo. 1. last publisht 148. 20. Case 239 Action upon the Case was brought for these words Thou art forsworn and I will make thee flowre the Pillory or else it shall cost me a hundred Charge of Perjury pound Et per totam curiam an Action lyes not for Anderson said There is a great difference betwirt the words
forsworn and perjured for forsworn is where he swears against the truth in ordinary discourse but Perjurum est quando jus alterius pervertitur which is to bee intended in judicial procéeding and this difference hath béen allowed of quod curia concessit but to say hee was forsworn in such a Court or betwixt such Parties an Action lies wherefore it was adjudged for the Defendant Croo. 1. part last publisht 394. 20. Case 240. Action for these words One told me that he heard one say that Mistris Charge of poysoning husband by Report Meggs had poysoned her Husband Ubi re vera nullus dixit c. and upon not guilty pleaded it was found for the Plaintiff and now alledged in Arrest of Iudgement that an Action lyes not for these words for it is but a report of an hear-say which cannot be any discredit but notwithstanding it was adjudged for the Plaintiff for it is a great defamation and is a cause of drawing her name and life in examination wherefore c. Croo. 1. part last publisht 400. 7. Case 241. Action for these words Thy Father Innuendo the Plaintiff hath Charge of theft stoln six sheep The Defendant justifies and issue taken thereupon and found for the Plaintiff and it was alledged in arrest of Iudgement that the Declaration was not certain nor sufficient to shew that hée spake those words of the Plaintiff for it is not averred that hée spake them to the Plaintiffs Averment Son nor that the Plaintiffs Son was there present and then it cannot be intended of the Plaintiff and the Innuendo will not help this incertainty Pleading And although the Defendant hath admitted it by his Plea yet that never shall help a Declaration which is defective in substance but if Innuendo it were defective in form only as by leaving out the place where a thing was done or by pleading a collateral plea that may be made good as 18. Ed. 4. 16. and 6. Ed. 4. 2. And of that opinion were all the Iustices besides Declaration Gawdy that the Declaration was not good for it cannot be intended to be spoken of the Plaintiff more than of any other person unlesse it had béen averred that his Son was there present And although the Defendant by his plea confesseth that hée intended them of the Plaintiff yet that shall not help the Declaration which is insufficient But Gawdy e contra because it shall be intended that the Plaintiffs Son was there for otherwise hée could not have said thy Father But notwithstanding it was adjudged for the Defendant Croo. 1. last publisht 416. 11. Case 242. Action upon the Case whereas hée was seized of the Mannor of Upton Slander of a Title Grey that the Defendant to slander his title spake these words Mr. Marvin Innuendo the plaintiff hath not any title to Upton Innuendo Upton Grey upon not guilty pleaded it was found for the plaintiff and now moved in Arrest of Iudgement First Because hée doth not shew what estate hée had therein for it may be that hée hath it but per anter vic and then Cestuy que vic being dead hée hath not any title he ought also to recover his damages to his estate c. Secondly The words are not spoken of Upton Grey but of Upton only which cannot be intended of Upton Innuendo Grey and it cannot be helped by the Innuendo But all the Court resolved that the Declaration was well enough for as to the first hée néeded not shew what estate c. for his seizing of any estate is sufficient And therefore Fenner said in the case of Huddleston against the Lord Dacres in a Writ of Annuity The Defendant pleaded that hée granted it unto him to be his Steward and that hée was seized of the Mannor of D. and requested him to kéep his Court there and hée refused c. And exception was there taken because he shews not of what estate hée was seized and ruled well enough for peradventure it might be perilous to discover his estate And to the second they held that the Innuendo did sufficiently serve to shew his intent what hée meant in naming Upton for it is usually Innuendo known without the addition and might be called so wherefore the Innuendo stands well with his speaking But if without the Innuendo it could not by any intendment be taken so it might have béen otherwise wherefore it was adjudged for the Plaintiff Croo. 1. part last publisht 419. 14. Hee hath deserved hanging Case 243. Action for these words J. Halland the Plaintiff will come home again if hee escape the Gallows for hee hath deserved to be hanged after Verdict it was moved that an Action lay not for those words And so it was ruled accordingly for they are too general Because the Country people might intend that hée deserved hanging although hée never committed any Felony wherefore it was adjudged for the Defendant Croo. 1. part last publisht 470. 30. Case 244. Action for words and declares whereas hée was a Merchant That the Defendant to discredit him said to one Dudley Doth Vauspike the Bankerupt Plaintiff owe you any mony to whom hée said that hée did hée then said to Dudley You had best call for it take heed how you trust him And it was thereupon domurred and adjudged for the Defendant For it is not any slander to the Plaintiff but good Counsel to Dudley Croo. 1. part last publisht 541. 5. Case 245. Action for these words I will call him in question for poisoning my Charge of Poisoning Aunt and I make no doubt to prove it after Verdict for the Plaintiff it was moved in Arrest of Iudgement that the words were not actionable for it is not any direct affirmation that hée poisoned his Aunt sed non allocatur Indirect for it cannot be more direct when hée saith hée will call him in question and maketh no doubt to prove it Secondly It was alledged that the Action lyes not because it is not averred that his Aunt was Averment poisoned for otherwise it is not any offence sed non allocatur for his credit is not impeached although hée never did any such fact as to say that hée was perjured in this Court although hée never were sworn is actionable wherefore it was adjudged for the Plaintiff Croo. 1. part last publisht 569. 3. Case 246. Action of the Case was brought for these words Thou hast forged an Obligation and I will prove it the Defendant justifies because hée had Charge of Forgery forged such an Obligation in the name of Wendy the issue de son tort demesn c. and found for the Plaintiff and now moved that an Action lay not for these words for hée doth not shew that this Obligation was sealed and delivered but the Court held it to be well enough for it cannot be otherwise intended for without those circumstances it is
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