you may see that where a man is falsly and malitiously procured to be indicted if he be acquitted a Writ of conspiracy or an action upon the case in nature of a conspiracy as the case shall be will lie and though he be not acquitted yet an action upon the case will lie for the slander and vexation Yet in all these cases there is a prosecution in course of justice but because this prosecution was malitious tending much to the slander and scandall of the plantiffe therefore the action lies But here I would have you observe Reader that the plaintiffe ought in these actions to declare that the defendant falso malitiose procured him to bee indicted because the malice is the ground of the Action and if upon the Tryall it doe appeare that there was Probabilis causa for the indictment and prosecution therevpon the Action will not lie Thus much shall suffice to shewe you in what case a legall prosecution in course of Iustice shall Subject a man to an Action in what not In the next place I shall shew you which I cannot omit For what scandall of a Noble man or great Officer c. an action de scandalis Magnatum will lie upon the Statutes of 3. E. 1. cap. 33. or 2. R. 2. cap. 5. For a Suit or other legall prosecution in course of justice against a Noble man or great Officer no Action lies as is adjudged in the case of Forger of false deeds cited before so that as to this there is no difference betwixt a Noble man and another person but what scandalous words may be Actionable in case of a Nobleman for which an action de scandalâ—â— Magnatum will lie and what not may bee very considerable I shall cite only one case to this purpose which will be as a light to all cases of this nature and therefore give me leave to give it you wholly without dissection or abbreviation as I find reported The Earle of Lincolne brought an Action de scandalis Magnatum upon the Statute of Westm. 1. cap. 33. against one Iohn Righton and recited the Statute and said that the Defendant said of him my Lord is a base Earle and a paltry Lord and keepes none but Rogues and raseals like himselfe Vpon not guilty pleaded it was found for the Plaintiffe and it was moved in arrest of judgement that the words were not actionable for though they were unseemely immodest yet they were not such defamaâ—ory words upon which to ground an Action for though they were true the Earle could not incurre any prejudice by them Crook cont this action de scandalis magnatum is not to be compaâ—ed to other actions upon the case for words spoken of any other persons for this is inhibited by Act of Parliament and if the words bee such that any diâ—cord may arise by them betwixt the King and his Subjects or his Nobles or any slander to them to bring them into contempt this action lies and I have seene a Record of a case in 4. H. 8. of such an action brought by the Duke of Buckingham for such words which might cause him to be in contempt which were holden sufficient upon which to ground an action Hobart Attorney Generall for the Plaintiffe also who said that though an Action doth not lie for words betwixt common persons but in case where they are touched in life or Member or much in reputation yet if one speake any scandalous words of an Earle or other Peere of the Realme which impeaches their credit because that they are of the great Counsell of the King and State and a principall part of the body politique so that their discredit or disparagement is a disparagement to all the Realme therefore every thing which trenches only to their discredit is a cause of action and this was the cause of the judgement in the case of the Ducke of Buckingham in 4 H. 8. Feâ—ner Iust. it seemes to me that the action lies for they are words of great slander to the Earle But where the Statute of Marleb is that Lord shall not distraine the Beasts of the subject of the King and carry them into Castles so that they cannot be replevied and if one say that a Lord hath so done yet an Action will not lie Tanfield Iustice concesset but he saith if one say of a Lord that he used to distraine and put the Beasts in his Castle ut supra an action lies for one act against Law wil not bring him into contempt but if it be usuall for him so to do this is a cause to make him contemptible In the case of the Earle of Arundell who had made Commissions to his Servants to make Leases and improve Rents one said of him My Lord hath sent his Commissioners to spoyle the Country it was adjudged that this action would lie and yet in case of a common person it would not lie without doubt yet because that it may cause the Lord to be in contempt with the King and the People this action lay and so it seemes to me that it will here Williams Iustice to the same purpose and that the Earle is conservator Pacis at common Law and Comes Regis and if any one speake of them any thing which may make them to bee contemned of the King or his people an action lies upon this STATVTE Yelverton Iustice was absent judgement was respited to the intent that the Defendant by his submission might give satisfaction to the Earle Here you see the difference between words actionable in case of a Noble man and of a common person For words only of descredit to a Nobleman and which may bring him to contempt with the King or his People are sufficient to maintaine an action de scandalit magnatum otherwise in case of a common person I have now Reader quite finished my labour of shewing you for what scandals an action will lie for what not But before I conclude there are two things yet in all Actions for words worthy the knowing which I cannot omit The first is to declare unto you the use or office of an innuendo And the next is to shew you where an Averrement will be necessary and where not For the first you may take this for a certaine and infallible rule That an innuendo shall never make words actionable which of themselves are not Actionable And therefore if words be of a double or indifferent meaning and in the one sence actionable in the other not in such case an innuendo shall never make them actionable As if a man bring an Action against another for saying that he hath the Pox innuendo the French Pox or for saying that the Plaintiffe burnt his Barne innuendo a Barne with Corne. In these cases the innuendo where the words are of an indifferent meaning and may be taken so as not to be Actionable shall not straine them to such an intendement as to make them
But I cannot thus baulke that observation of that learned Chiefe Justice whoâ—ses that in our old books Actions for scandalls are very rare and such as are brought are for words of eminent slanders and of great importance This must needs bee acknowledged to be a most exact and true observation for in searching of the Books I cannot finde that any Action for scandalous words was brought before E. 3. time and so rare then that I finde but one in 50. yeares of E. 3. and that is Sir Thomas Setons case of Justice for calling of him Traytor Felon and Robber no frivolous cause of action And I finde but three Actions for words brought in 22. yeares of E. 4. and those for one and the same words for publishing one to bee the Pilleine of I. S. a slaunder of no small importance neither for so long as that base and slavish Tenure of Pilleinage held hee that was a Pilleine was subject both in person and estate to the will of his Lord so that he might seize all his estate reall and personall and Vassalize his person at his pleasure so that he did not kill or mayme him In all the 21. yeares of H. 7. there is not one action that I can find brought for scandalous words And in 38. yeares of H. 8. our books tell us but of five actions brought for scandalous words two whereof were in 27. H. 8. so that I find none before that time neither The other were in 30. H. 8. and 28. H. Dyer And these for no trifling words for you shall finde that one of them was for calling a man Heretike another for saying a man was perjured and the other three for calling of one Thiefe all of which are high scandals to a mans reputation and most of them tending to the losse of life and fortunes so that it is very true that that Reverend Chiefe Justice observed that these Actions were very rare in our old bookes and such as were brought were for words of emminent slander and of great importance But these few have now got such a numerous progeny that I feare we cannot turne over many leaves in our new books but wee shall finde one of these Actions They began thus to multiply in the Queenes time as wee finde in my Lord Cockes 4. book where there is no lesse then 17. adjudged cases together upon these Actions And you may easily judge they did not abate in King Iamses his time for if I mistake not there is no lesse then two and twenty adjudged cases upon these Actions in my LORD Hobarts Book And I am certaine they are not fallen in His Majesties Raigne that now is for I my selfe have reported no lesse then three and twenty judgments upon these Actions but from Easter Tearme in the sixteenth yeare of the King to Trinity Tearme in the eighteenth Well therefore might Wray Chiefe Iustice say that the malice of men doth more increase in these times then in times past and as he saith the malice of men ought to be with stood as much as may be which I am sure the too frequent tollerating of Actions of this nature wil not effect no more then fire can be extinguished by adding fewell unto it You have heard my advise and direction before therfore I will here close this with one word though the tongues of men be set on fire I know no reason wherefore the Law should bee used as Bellowes to bow the Coles It is the saying of the Prophet David I will take heed to my ways that I offend not with my tongue I will keepe my mouth as it were with a Bridle It were happy for all men if they could make the like resolution and keep it But seeing that wee are but men whilest wee carry this lump of flesh and masse of corruption about us we shall be subject to the like passions and affections that oâ—â—erâ— have beene before us and the flesh will rebell against the spirit And therefore I have provided this Treatise upon Actions of slander as a Bridle for all rash and inconsiderate â—ongues that seeing the mischiefe they may the better know how to avoyd it And here I shall lay downe this as a generall rule which I shall by the way as I goe make good in every perticular That all scandalous words which touch or concerne a man in his life Liberty or Member or any corporall punishment or which scandall a man in his Office or place of Trust or in his Callâ—ng or function by which he gaines his living or which tend to the slandering of his Title or his disinheritance or to the losse of his advance me it or preferment or any other particular damage or lastly which charge a man to have any dangerous infectious disease by reason of which he ought to seperate himselfe or to be seperated by the Law from the society of men all such words are actionable And first for the first part of this Rule viz. Scandalous words which touch or concerne a man in his life such words are actionable If a man call another Traitor Felon Theefe or Murderer an Action lies for these words because they call a mans life in question So it is all one if one shall say of another that he killed or murdered I. S. or that he stole his goodâ— or that he poysoned him if it appeare to be intended to be wittingly done or the like these words likewise are Actionable as appeares by the Bookes in the Margent So if one shall say of another he hath burnt my Bâ—â—ne with Corne which is Felony this likewise will beare an Action I have a Report of a case which was thus a Servant of one Mr. Roger Brook said of one Mis. Margaret Passey that she sent a Letter to his Master and in the said letter willed his Master to poyson his Wife Bridget Brooke and in this case it is said that upon a Writ of Error brought in the Cnequer Chamber it was resolved the words were actionnable and the judgement affirmed which case I confesse I much doubt because here was but bare advise and nothing appearing to be done like Eatons case in Cooks 4 Booke Where the Defendant said of the Plaintiffe that Hee gave his Champion Councell to make a Dâ—ed of gift of his goods to kill him c. adjudged that the words were not Actionable because that the purpose or intent of a man without act is not punishable by the Law And I conceive it will not be like the case put by Tanfiâ—ld Iust. in Harris and Hixons case where he saith that to say of another that he lay in wait to Rob or to murder I. S. will beare an Action because that he accuses him of an act viz. The preparation and lying in wait which is punishable by the Law but in the former case there is nothing but bare advise which is not punishable by the Law Hawly
brought an Action upon the case against Sydnam for these words hâ— is infected of the Robery and Murder lately-committed and smels of the murder adjudged that the words were actionable by reason of the word infected One said of another thou diddest kill a Woman great with Child innuendo Iocosam Vxocem cuiusdam R. S. defunct and rules by the Court that the Action wold lie though that the woman were utterly incertain because that the offence and the party intended to commit it is certaine and t is not like the case where one said that there is one in this company who hath committed a murder there it is incertain of whom the words were spoken and cannot possibly bee ayded by an innuendo but here the words are Actionable without an innuendo but quaere whether the Action would lie or no because there is no expresse averrement that the Woman was dead for the innuendo will not be suffitient Hassellwood brought an Action against Garrâ—t for these words amongst others agreed not to be actionable whosoever is he that is falsest Theefe and strongest in the County of Salop whatsoever he hath stollen or whatsoever he hath done Thomas Hasselwood is falser then hee resolved that these words are actionable with an averrement that there are Felons within the County of Salop but for defanâ—t of such averrement the judgement being given in the Common Pleas was reveâ—ed in this Court Stoner brought an Action for words against Gambell and declares that the Deâ—endant dixit deprefato the Plaintiffe thou innuendo c. hast stollen my Goods and upon not guilty pleaded the Iury found for the Plaintiffe and in arrest of judgement it was said that the Count was nought for the words are in the second person and it is not all adged that the Plaintiffe was present at the speaking of them Et Tota Curia contra for dixit deprefato is as much as Dixit ad prefatum for cannot he say thou hast of the Plaintiffe except that it were spoken to him and rule was given for judgement One â—â—â—mans said of Hext I do not doubt but within two dayes to Arrest Hextâ—or â—or suspition of Fellony adjudged that the words were Actionable because that for suspition of Felony hee shall be imprisoned and his life drawne in question Hill 20. Iac. in the Kings Bench Winch came to the Barre and shewed a Libell against another in Court Christian for these words thou art a Witch and dealest with Witchery and diddest procure Mother Bale to witch the Cattell of I. S. and upon this prayed a prohibition because that the Plaintiffe had remedy at Law and by Fenner and Gawdy Iustices the others abâ—ent and Prohibition lies because she hath remedy at Law So that their opinion was that an Action would lie at the Common Law for calling of one Witch And in one Edwards his case Hill 40 Iac it was said to have been three 〈◊〉 adjudged that to call one Witch would beare an action and also that an action would lie for calling â— one Hagge but I doubt of the latter because I take Hag to be a doubtfull word But why Witch should not beare an Action I know no reason being tâ—e life may be thereby drawne in question though I know it hath beene doubted Marshall brought an Action against Steward for saying the Devill appeares to thee every night in the likenesse of a black man riding upon a black Horse and thou conferrest with him and whatsoever thou dost aske he gives it thee and that is the reason thou hast so much money adjudged the words were Actionable Note Reader that by the Statute of 10 of King Iames cap. 12. Conjuration or consultation with the Devill is Felony In the case of Hawes Mich. 17. of the King that now is this case was put and agreed by the Iudges one said of another that hee had received a 〈◊〉 Priest adjudged actionable because it is Felony he might receive a Romish Priest and yet not know him to be so like the cases I have put you afterwards therefore Quere Sir Iohn Sydenham against Timothy Man Clark I think in my conscience that if Sir Iohn Sydenham might have his will he would kill all the Subjects in England and the King too and he is a maintainer of Papistry and Rebellious Persons These words upon a Writ of Error in the Exchequer Chamber were adjudged actionable It seemes somewhat hard to me Reader that words of thougâ—t or opinion only should beare an Action as here in the former words And for the latter words that he is a maintainer of Rebellious Persons they are Adjective only and do not import any Act of rebellion in those Persons but only an inclination to it but of this more hereafter If a man say of another that he doth like or approve of those that maintaine sedition against the King I conceive that these words are actionable and sedition is a violent and publique thing of which he cannot but have notice This Rule was agreed by the Iudges in the debate of a case in the Kings Bench that many words though of themselves they be not actionable yet being equivolent to words that are actionable will beare on Action And it was said by Iones Iustice that in Yorkshire strayning of a Mare is all one with Buggering of a Mare and therefore he said that an action will sie for these words with an averrement that they tantamount to Buggering of a Mare Note by his opinion in such case there must be an averrement of the mâ—â—â—ning or importance of the words Yet my Lord Hobart hath severall cases adjudged where a man brought an action for Welch words and did not averre what the words did import in English and yet judgement was given for the Plaintiffe and the Court tooke information upon Oath by VVelchmen what the words meant in English And in one of the cases Serjeant Iohn Moore then informed tâ—â— Court that judgement had bin given in the Kings Bench in the case of Tuâ—h upon these words Thou art a healer of Fellons without any averâ—ement how the words were taken because the Court was informed and tooke knowledge that in some Counties it was taken for a smotherer of Felons The caâ— intended by Serjeant Moore was I conceive the case of Pridham and Tucker in the Kings Bench where the words were adjudged actionable without an averrement and in this case â—t was agreed that words may be slanderons in one County and not in another for in Norf they know not what healer signifieth but this being in Deâ—â—nshire where this word is used for concealer of Theeves will be actionable And I take this to be generally true that in all cases where a mans life may beâ— drawne in question by scandalous words that such words are Actionable And now I shall cite a case or two where
words spoken which such a mans life which are by way of interrogation or by way of hearesay or relatiâ—n or lastly by way of negation only and yet will beare an Action It was said at the Kings Bench Barre which I heard and observed that it had bin adjudged in this Court in one Appletons case that where a man said to another where is my Peece thou stoâ—lest from me that these words were Actionable And Iones Iustice then said that he remembred this case to be adjudged A. said that B. told him that C. stole a Horse but he did not beleeve him that these words with an averrement that B. did not say any such thing to A. were actionable Agreeing with this case is the Lady Morrisons case Widdow who brought an action for words against VVilliam Câ—de Esquier and declares that she was of good fame c. and that Henry Earle of Kent was in speech and communication with her concerning Marriage the Defendant preâ—â—issorum non ignarus said these words Arsoot hath reported that he hath had the use of the Lady Morrisons body at his pleasure ubi revera Arscot did never report it and alledges that the Earle of Kent upon the hearing of these words surceased his suit by which she lost her advancement c. adjudged that the words were Actionable though spoken upon the report of another for otherwise a man might malitiously raise slanderous Reports of another and should never bee punished for it But in this case Tanfield Iustice said that if it had beene expressely alledged that in truth it was so reported by Arscot then an action would not lie against Cade for saying that Arscot reported it because it is true that he did so And Bartley Iustice said that an action had bin brought for these words You are no Theefe In which there was an averrement which implied an affirmative and agreed to be Actionable and Appletons case was then agreed for Law A. said to Is. hast thou beene at London to change the money thou stollest from me In this case it was objected that these words were not actionable because that they are spoken onely by way of interrogation and are no direct affirmative But Iones and Barily Iustices the others being absent both said that the words were actionable for the first words Hast thou been at London c. are the only words of interrogation and the subsequent words viz. The mony thou stollest from mee is a positive affirmation and Baâ—tley Iust. then said that it had beene oftentimes adjudged that words of interrogation should be taken as a direct affirmation which Iones Just. also agreed and further said that this case had bin adjudged One said to another I dreamt this night that you stole a horse these words were adjudged actionable And he said that if these and the like words should not beare an action a man might bee as abusive as he pleased and by such subtill words as these always avoyd an action And how I will put you a case or two where words which imply an affirmative shall be actionable One said of another he would prove he had stollen his books In this case the opinion of the Court was that the words were actionable because they imply an affirmative and are as much as if hee had said that he had stollen his Books And so if I will say of another that I will bring him before a Justice of Peace for I will prove that he hath stollen c. though the first words are not actionable yet the last are Whitaerâ—s brought an action against Lavington for these words I will prove that Whytacre is for sworne and that ten men can justifie and I could prove him perjured if I would adjudged that the words were actionable for that it is a great slander to be reported that it is in the power of any one to prove one perjured and it is as a direct affirmance It will be proved by many vehement presumptions that Welby was a plotter and contriver of Thomas Powels death because hee would not sell his Land to the said Welby adjudged the words were actionable And now I have shewne you the affirmative part where words which touch or concerne a mans life shall bee actionable I shall now shew unto you the negative part where words in such case shall not be actionable Words that touch or concern a mans life may not be actionable in these cases Where they are too generall or not positively affirmative or of a double or indifferent meaning or doubtefull in sence or for that they are incertaine in themselves or the person of whom they are spoken or else by reason of the subsequent qualification of the words or because they doe not import an Act but an intent or inclination only to it or for that they are impossible or lastly because it doth appeare that the speaking of them could be no dammage to the plaâ—ntiffe in all these cases the words will not be actionable And first words that are too generall or not positively affirmative will not bee actionable To say of a man that he deserves to be hanged adjudged not actionable because they are too generall for that hee doth not shew any thing that hee hath done to deserve it and bâ— Yelverton Iustice hee may deserve it for unnaturall using of his Parents and the like where he shall not bee punished by the Law Cooke lib. 4. f. 15. b. Yeomans and Hexts case for my ground in Allerton Hext seekes my life adjudged not actionable because seeking his life is to generall for which there is no punishment So if I say of another that it is in my power to hang him adjudged not actionable in Prâ—dham and Tuckers case cited before because the words are too generall Iames Steward brought an action against Bâ—shop for saying of him that hee waâ— in Warwicke Gaoâ—e for stealing of a Mare and other Beasts and adjudged that the words would not beare an action because they doe not affirme directly that he did steale them as if he had said that he stole them and was in Goale for it but onely make report of his imprisonment and the supposed reason of it and it may very well be that the Warrant of Mittimus was for stealing expressely as is the common forme of making of the Kalender of the Prisoners for the Justices of Assize and the like Georg Blaâ—d brought an action against A. B. for saying that he was Indicted for Felony at such a Sessions it was said that it was questioned whether an action would lie because an Indictment is but a surmise But I conceave that it is without question that no action wilâ— lie in such case because that to say a man was indicted of Felony is no more then to say hee was impeached or accused for Felony which an honest man may bee and is no positive affirmation
they were as sufficiently layed to entitle every of the defendants to a severall Action as if they had beene specially named here you see the words may be sufficiently certaine by relation Fifthly where former words actionable are qualified with subsequent words not Actionable there though the former words spoaken generally aud by themselves would have maintained an Action yet now taking altogether they will not bee Actionable Thou art a Theefe for thou hast stolen my Apples out of my Orchard or for thou hast robbed my Hopground or for thou hast stollen a Tree or for thou hast stollen my Furzes as I have put you the cases before Or thou art a Theefe and thou hast stollen my aples out of my Orchard or and thou hast robbed my Hop ground c. aud and for have both one and the same signification in these cases as I have cleered it to you before to be adjudged and in all these cases no Action will lie For as I have said before the latter words do qualifie the former for the former words say him to be a Theefe but the latter prove him to be noâ—e I have given the reason before because that in all these cases the Law which will alwayes construe words the best for the Speaker will take the Apples Hopes c. to be growing and then it is Trespasse only and not fellony to take them away because felony as I have told you before cannot bee committed of that which is parce of a mans inheritance as these are whilst they are growing Britteridge brought an Action for these words Britteridge is a perjured old knave and that is to be proved by a Stake parting the land of H. Martin and M. VVright adjudged that the words are not actionable because though the former words would beare an Action the latter do so qualifie and extenuate them that taking altogether they are not actionable for the latter words do explaine his intent that hee did not intend any judiciall perjury also it was impossible that a Stake could prove him perjured and therefore for the impossibility and insensibility of the words the action would not lie Sixtly where the words doe not import an Act but an intent only or an inclination to it there such words except where they sâ—and all a man in his function or profession will not beare an Action If a man say of another that he is a seditious knave or a theevish knave or a traiterous knave these words will not beare an Action because that the words do not import that he hath done or is guilty of Sedition Felony or Treason but are Adjective words which import an inclination to it only But if a man say of another that hee is a parjured knave an Action will lie for these words because that the Adjective perjured presumeth an Act committed or otherwise hee cannot be perjured Besides Adjective words will beare an Action when they scandall a man in his office Function or Trade by which he doth acquire his living though they do not import an Act done My Lord Cooke cites this case adjudged 24. Eliz. between Philips Parson of D. and Badby in an action brought for these words thou hast a seditious Sermon and moved the people to sedition this day resolved that the words were actionable notwithstanding that the first part of the words were utter adjective and the last words were but a motive to sedition and it doth not appeare that any thing ensued yet because that they scandall the Plaintiffe in his function they were adjudged actionable So if a man say of a Merchant that hee is a Bankruptly Knave or a Bankrupt Knave these words will beare an action though that the Bankrupt bee adjective Or if one say of a Merchant that he will be Bankrupt within two dayes which imports but an inclination â—yâ—t an action will lie for these scandalls reach to the profession So if a man say of an Officer or Judge that hee is a corrupt Officer or Iudge though the words be adjective yet an action lyeth for both causes first because the words touch him in his Office and then because they doe import an act done Hob. Kep pag. 12. pl. 17. Yardly and Ellillâ— case to say of an Atorney that he is a bribing knave will beare an action though the words be adjective Words likewise that import an intent only will not beare an action The defendant said of the â—laintiffe for he is a brabler a quarreller he gave his Champion counsell to make a Deed of gift of his goods to kill me c. but God preserved mee The book saith that it was strongly urged that the action should be maintainable and divers cases cited which I will remember unto you My Lady Cockeins case for these words My Lady Cockein offered to give poyson to one to kill the Child in her body Another betwixt Tibets and Heyne in Glocester for these words Tibots and another did agree to hire one to kill B. Also Cardinalls case for these words if I had consented to Master Cardinall T. H. had not beene alive And the Lord Lumlyes case My Lord Lumley hath gone about to take away my life against all Christian dealing But notwithstanding these cases the book saith that upon great deliberation and advisement it was adjudged that in the principall case the words were not actionable because that the purpose or intent of a man without act is not punishable by the Law My L. Cooke in the close of this case sayes Note well this case and the casue and reason of the judgment Certainly Reader there is somwhat more than ordinary in this Nota beâ—e of my Lord Cookes and the reason of the case seemes to intimate as much unto us which is that the purpose or intent of a man without act is not punishable by the law which is a certain truth But I conceive it is as true that where that purpose or intent is manifested by an overt act or attempt that that is punishable Mich. 4. of King Iames in a case in the Kings Bench this was agreed for law to say of a man that hee lay in waite to assault I. S. with an intent to robbe him or to murder him an action lyes because that hee doth accuse him of an act viz. the preparation and lying in waite to assault him but if hee had said that he would have murdered or would have robbed I. S. an action would not lye because hee only guesses at his imagination And in Harris and Dixoâ—s case in the Kings Bench that case was allowed for law by Tanfield Iustice where hee sayd that if one say of another that hee lay in waite to murder I. S. an action lyes because such lying in waite is punishable by the law By this case it should seeme that to charge a man with an attempt only to commit Felony as to say of a man that hee offered to rob or
perjured and therefore not Actionable Thomas brought an Action against Axworth for these words this is Iohn Thomas his writing he hath forged this VVarrant adjudged the Action would not lie Harvy brought an Action against Duckin for saying that the Plaintiffe had forged a Writing adjudged that the words were not Actionable the reason of these cases is because of the incertainty of the words VVarrant and Writing and as I have given you the rule before the scandall must bee certaine and apparent in the words themselves otherwise they will not be Actionable By Tanfield Iustice in Wisemans case cited before if a man say that one of his Brothers is perjured no Action will lie because of the incertainty In the case which I put you before moved by Williams Mich. 41. 42. of the Queene in the Common Pleas this case was remembred by Walmseley Iustice one of you forged a Sub-pâ—na out of the Chancery innuendo the Plaintiffe he saith that judgement was stayed in this case because he which is greeved ought to be certainly defamed and the innuendo cannot make the words more certaine here likewise you have examples that where the person is incertaine that is scandalised no Action will lie Powell brought an Action against Winde for these words I have matter enough against him for Mr. Harley hath found Porgery and can prove it against him Resolved the words were not Actionable because they were too generall and utterly incertaine Britteridges case cited before Britteridge is a perjured old knave and that is to be proved by a stake parting the land of H. Martin and Master Wright adjudged the words were not actionble because of the subsequent words which extenuate the former and explaine his intent that he did not intend any juditiall perjury and because that it is impossible that a Stake should prove him perjured here you have words that are not Actionable by reason of the qualification of the subsequent words thus you may see that the grounds formerly laid downe may serve as a Touchstone for all cases of scandalous words The third part of that rule or ground which I have laid downe before and which I am now to handle is this That scandalous words spoaken of a man which touch or concerne a man in his Office or Place of Trust will beare an action Skinner a Manchant of London said of Manwood chiefe Baron that hee was a corrupt Judge adjudged the words were actionable Stucley a Justice of Peace brought an Action for these words Mr. Stucley covereth and hideth Felonies and is not worthy to be a Iustice of Peace adjudged the Action would lie because it is against his Oath and the Office of a Iustice of Peace and good cause to put him out of Commission and for this he may be indicted and fined Pridham and Tuckers case to say of a Constable that he is a concealer of Fellons adjudged actionable Stafford Iustice of Peace brought an Action against Poler for these words William Web being Arrested as accessory for stealing his own Goods Master Stafford knowing thereof discharged the said VVeb by and agreement of 3. l. 10 which Master Stafford was party whereof 30. s. was to be paid to Master Stafford and was paid to his man by his appointment upon a VVrit of Error brought in the Chequer Chamber it was holden the words were Actionable Cotton Iustice of Peace brought an action against Morgaâ— for these words Hee hath received money of a Theefe that was apprehended and brought before him for stealing of certaine sheep to let him escape and to keepe him from the Goale adjudged the Action would lie Morris Gilbert Iustice of Peace brought an Action against Adams for these words Mr. Gilbert hath done me wrong in returning the Recognizance of Podger in 20. l. where it was taken in tenne and the suerties in 10. l. a peece by the whole Court the words are Actionable If a man say of a Iustice of Peace that he is a common Barret or Champertor or maintainer of Suites the words are Actionable Carre brought an Action against Rande for words and declared that hee was Steward to divers great Lords of their Court Barrons and of the Leetes with in their Mannots and that he was Steward of one A. of his Court Barron and of the Leete within his Mannor the Defendant of this not ignorant said these words Mr. Carre hath put a presentment into the Iuries verdict against me of 3s 4d for sueing of Peter VVest forth of the Court contrary c. without the consent of the Iury by the whole Court the Action lies because he doth accuse him of falsity in his Office but by the better opinion if he had not alledged in his Count that he was Steward the Action would not have layen Sir George Moore brought an Action against Foster for scandalous words and sets forth that he was a Iustice of Peace in the County of Surrey and that there was a Suit depending in Chancery betwixt the Defendant and one Richard King and that a Commission was awarded to Sir George Moore and others to examine Witnesses in the said cause and also to heare and determine it and that he with the others dealt in the execution of the said Commission and that the Defendant said of the Plaintiffe these words Sir George is a corrupt man and hath taken bribes of Richard King and at another time King hath set Sir George Moore on horseback with bribes where by to defrande equity Iustice and good conscience resolved that the words were Actionable because that though the Plaintiffe bee neither Officer â—or Iudge nor is sworne yet because it is a place of great Trust reposed by the King in the Plaintiffe and for that he is punishable for bribary or corruption in the execution of the said Commission in the Court out of which it issues not deserving if the words were true to be imployed in the like Commission or any other for these causes the words were held to be Actionable and Popham Chiefe Iustice in this case made no difference where the Commission issues to one and where to many nor where they are nominated by the Court where by the party for in the first case he said the confidence of the Court is all one and in the last though that they be nominated to the Court by the party yet they shal not be Commissioners without the approbation of the Court. Sir Richard Greenefield brought an Action against Furnace for these words thou innuendo Captaine Greenfield hast received money of the King to buy new Saddles and hast cousened the King and bought old Saddles for the Troopers It was objected that the Action would not lie and it was likened to these cases which I will cite because they are worth the knowing 8. Car. the Major of Tivertons case one said of him that the Major had cousened all his Brethren c.
adjudged not Actionable 9. Iac. in the Kings Bench the Overseer of the poore hath cousened the poore of all their bread this was likewise said to be adjudged not Actionable but I doe some what doubt of this case because the words doe scandall the Plaintiffe in his office of Overseer but to this it may be said that this is an Office of burden and trouble and not of profit 26. Of the Queene in the Kings Bench Kerby and VValters case thou art a false knave and hast cousened my two Kinsmen adjudged the words were not Actionable 18. Of the Queene in the Kings Bench Serjeant Fenner hath cousened me and all my kindred adjudged the words would not beare an Action Out of which cases wee may by the way observe this for Law that if a man say of an other without any precedent communication of his Office place of Trust or profession that he is accusening or a cheating knaveâ— or that he hath cousened any man thus and thus that no Action will lie for such words generally spoken otherwise if they be spoken in reference to a mans Office place of trust or profession And in the principall case it was resolved by Heath Iustice and Bramston chiefe Iustice the other Iustices being absent that the Action would lie because the words did scandall him in his place of Trust and they said it was not materiall what imployment the Plaintiffe had under the King if by the speaking of these words he might be in danger of loosing his Trust or imployment Bray brought an Action against Hayne and declared that where he had beene Bayly to Sir VVilliam M. Kt. for three yeares last past of his Land in C. and had the selling of his Corne and Graine the Defendant said these words unto him thou art a cousening knave and thou hast cousened me in selling false measure in my Barley and the Country is bound to curse thee for selling with false measures and I will prove it c. adjudged the words were not Actionable for every falsehood charged upon a man in his private dealing will not be Actionable And in this case it doth not appeare that these words were spoken of any sale of Corn whilest he was in his Office of Bayliffe nor of his Masters Corne nor to the damage of his Master But it was agreed in this case that if he had beene a common Rider or Badger and had beene charged with selling false measure it would have borne an Action which is evident because it is a slander to him in his function by which he gaines his living And my Lord Hobart puts this case if a man saith he have a Bayliffe to whom he commits the buying and selling of his Corne and graine and gives him the greater wages in respect of that trust and imployment and charges him to have deceived him in his Office by buying and selling of false measure to his losse or damage this will beare an Action because this discredits him in his Office and may not only because to put him out of that service but to be refused of all others this case is evident Reader because the words doe charge him with selling with false measure whilst he was in his Office In the debate of Sir George Moore and Fosters case before cited these cases were put by VVilliams Iustice if one say of an Arbitrator that he hath done corruptly and hath taken bribes no Action will lie the reason may be because being chosen by the parties themselves and not being sworne such corruption is not puniâ—hable by Law nor can the countermaunding of his power be any damage to him But if a man say of a Wayer in a Market or Faire appointed to way betwixt the buyer and seller that he hath done corruptly and hath taken bribes to make false waite an Action lies for these words because hee is an Officer Miles Fleetwood Generall Receiver of the Court of Wardes for the King brought an Action against Curbey for these words Mr. Deceiver hath deceived and cousened the King and dealt falsâ—y with him adjudged the words were Actionable The like case where one said of an Auditor that he was a Frauditor was adjudged Actionable An Action was â—rought for calling of the Plaintiffe false Justice of Peace vil his similia I do conceve that thesewords are not Actionable because though they doe reâ—â—ect upon his Office yet they are too generall But the Booke saith that these words his similia were ordered to be expunged or drawne ouâ— of the Booke for the incertainty and well they might indeed for certainly if a man shall bring an Action against another and shall declare that the Defendant said of the Plaintiffe that hee was a Rogue and a Theese or words like these or to this effect the Action will not lie because the words upon the very face of the Declaration are utterly incertaine The Law affords very few Cases Reader where words shall not be actionable that scandall a man in his office or place of trust upon those grounds which I have formerly layd downe But note this that all those grounds as I have said before are as a touchstone for all Actions for words whatsoever and therefore if you meet with scandalous words which touch a man in his Office or place of trust examine them by those rules if they be too generall or not sâ—fficiently possitive or if of a double intendment or doubtfull in meaning or incertaine in themselves or the person of whom they are spoken or the like in such cases they will not be actionable and therefore those Rules ought especially to be observed The fourth part of that generall rule which I have laid downe before and which in course I must now speake of is this That words spoken of a man which scandall him in his profession or function by which he gaines his living will beare an Action Yardleys case there being a communication or discourse of him in his profession of Attorney one said that hee was a bribing knave Boxes case one said of him being an Attorney that he was a Champertor Byrchlyes case an Attorney there being speech of his dealing in his profession one said to him you are well knowne to be a corrupt man and to deale corruptly adjudged in all these cases that the words because they scandall a man in his profession by which he doth acquire his living were Actionable So by the opinion of the Court in Thornton and Iobsons case cited before to say of an Attorney that he is a common Barretor will beare an action Dawtry an Attorney in the Court of Ipswich brought an action against Miles for these words Dawtry is a knave and a cousening knave and hee did take Fees of both hands in a suit betweene me and Greene and by knavery suffered me to be condemned at Ipswich at Greens suit willfully being Attorney for me The only words
which no Action will lie I have sufficiently proved the ground laid downe before and therefore I shal now proceed to the second thing which I have touched before very considerable in all Actions for words and that is Quo animo with what affection the words are spoken whether ex malitia or not for if it do appeare that they were not spoken out of malice they will not be actionable Ralph Brook York Harrauld brought an Action against Henry Mountague Knight Recorder of London for saying of the Plaintiffe that he had committed Felony The Defendant pâ—eaded how that he was a Counseller and earned in the Law and that he was retained of Counsell against the Plaintiffe at such a Tryall and set forth all the matter in certaine and that hee in giving evidence to the Jury spoake the words in the Count which words were pertinent to the matter in issue in this case it was resolved that the Action would not lie because that the words were not spoken out of malice for that they were spoken to the purpose and being to the purpose though the words were false no Action will lie against the Defendant As in an Appeale of Murder if the Counsell with the Plaintiffe saith that the Defendant committed the murder though it be not true yet he shall not he punished for it because that what he said was pertinent so that it cannot be taken to be spoken out of malice but only as of Counsell for the Plaintiffe But if that which he saith be impertinent in scandall of him against whom he speaks it as in Trespasse of battery to say that the Defendant is a Felon there an Action will lie for that they cannot be otherwise taken but to bee spoken out of malice And in this case it was further said that if a Counseller be informed of any matter of slander apt to be given in evidence and hee speakes it at other places and at another time then in evidence an Action lies for it for the same reason In confirmation of the former case there was this case put and agreed for Law which was the case of Parson Prit in Suffolke the case was thus In the Acts and Monuments of Mr. Fox there is a relation of one Greenwood of Suffolke who is there reported to have perjured himselfe before the Bishop of Norwich in the testifying against a Martyr in the time of Queene Mary and that afterwards by the judgement of God as an exemplary punishment for his great offence his bowels rotted out of his belly And the said Parson Prit being newly come to his benefice in Suffolke and not well knowing his Parishoners preaching against perjury cited this story for an example of the justice of God and it chanced that the same Greenwood of whom the story was written was in life and in the Church at that time and after for this slander brought an Action to which the Defendant pleaded not guilty c. and upon evidence all the matter appeared and by the rule of Anderson Justice of Assise he was acquitted because it did appeare the Defendant spoak the words without malice and this rule was approved by the Kings Bench in this case In the arguing of Sanderson and Rudds case which I remembred before these cases following were cited by Gotbolt Serjeant who was of Counsell with the Defendant and agreed by the Court for Law Iames and Rudlies case the Defendant spoake by way of advise to his friend telling him that the Plaintiffe was full of the French Pox and therefore advised him not to keepe him company adjudged he said that no Action would lie for these words of advise the reason is because that these words were not spoken out of any malice to the Plaintiffe but meerely cut of good will to his friend Norman and Simons case remembred before the Plaintiffe brought an Action for words and declared that they were spoaken falso malitiose the Jury find the words and that they were spoken falsâ— injuriose judgement was given that the Action would not lie because that they did not find the malice for if the words were not spoaken malitiously no Action will lie And therefore I conceive that if a man bring an Action for words and do not declare that the words were spoken malitiose as well as falso that the Action will not lie In the case of the Lady Morrison that I have cited before this case was put by Popham chiefe Iustice If one say in Counsell and good will to his friend that it is reported that he hath done such or such an ill Act and advises him to purge himselfe and avoid such occasion afterwards it se mes saith he that an Action will lie for such counsell but quaere saith the Reporter for it is without malice And truly for my part I conceive an Action will not lie for that reason but I submit it to the judgement of the Reader And now I have finished my labour of shewing you what words are Actionable in the Law and what not It will in the next place be very necessary to be knowne where a mans Suit or prosecution at Law shall subject a man to an Action and where not and here I shall lay downe this as a rule That for any Suit or other legall prosecution in course of Iustice if not out of malice and touching a mans life no action will Lie A Man brougâ—t a Writ of Forger of false deeds against a Lord pending which Writ the Lord for the slander of the said Forgery by the said Suit brought his Action de scandalis Magnatum the Defendant justifies the said flander by bringing of the said Writ by the better opinion there which is also agreed for Law in Bucklies case in my L. Cokes 4. Booke the justification was good for saith the Booke no punishment was ever appointed for a Suit in Law though that it were false and for vexation Cutler and Dixons case adjudged that if one exhibit Articles to a Justice of Peace against a certaine person containing divers great abuses and misdemeanours not only touching the Petitioners themselves but many others and all this to the intent that he should be bound to his good behaviour in this case the party abused shal not have for any matter contained in such Articles an Action upon the Case because that they have pursued the ordinary course of Justice in such case and if actions should be permitted in such cases those which have good cause of complaint will not dare to complaine for feare of infinit vexation Oâ—en Wood exhibited a Bill in the Starchamber against Sir Richardâ— Buckley and charged him with divers matters examinable in the same Court and further that he was a maintainer of Pirates and Murderers and a procurer of Murders and Pyracies which offences were not determinable in the said Court upon which Sir Richard Buckley brought an Action In this case it was adjudged