Innuendo will not help for that actionable words must import in themselves precise slander without ambiguousnesse so that every one that hears them may intend of whom they be spoken For it was said that hée spake the words of the Plaintiff and the Iury found him guilty And this difference was taken where the words in themselves import apparent incertainty and when they may be ascertained by Intendment In the first Case no Averment will aid it But in the last Case by Averment an Averment and a Verdict it may be aided And therefore where the words be One of my Brothers is perjured this is so incertain that neither of them can bring an Action and if he be found guilty by Verdict it will not help But here it did not appear that hée had more Brothers than one and then it may be certain enough and here it is expressy averred to be spoken of him and the Iury hath found him guilty and therefore it is here certain enough And this Case was cited by the Court to be adjudged for the Plaintiff That murdrous Knave Stroughton lay in wait to murder mee And upon this one Thomas Stroughton brought the Action and said they were spoken of him And upon not guilty pleaded and a Verdict for the Plaintiff it was adjudged after divers motions to arrest the Iudgement for the Plaintiff Croo. 2. 108. Case 225. Sir Thomas Gresham versus Grindsley Thy Brother was a fool and was never born to do himself any good for that he could not hold his hand from ratifying and subscribing to his Fathers Will notwithstanding I have that to shew in my house that if his heir Elizabeth Gresham do not any such Act as hee hath done it shall bring her to inherit Titsley Sir Tho. upon this sues the Defendant And shews how his Father was seized Slander of a Title to Land of the Mannor of Titsley and of other Lands and by his will devised to A. his wife for life the Remainder in Tail to the Plaintiff and how the Father had issue William the eldest which had issue Elizabeth his Daughter and Heir and this Plaintiff the youngest Son and that A. is dead and the Plaintiff entred and the Defendant to slander his Title spake these words before and shewed further how hée had an intention to make a Ioynture to his Wife and to passe divers parcels of the Land devised to him to his younger children for their advancements and that hée was hindred in his intent by these words ad damnum a hundred pound and upon not guilty pleaded it was found for the Plaintiff and twenty pound damages But Iudgement was given for the Defendant 1 For that it doth not appear by any thing in the Declaration that the Plaintiff is damnified viz. that hée was about to sell it or has entred into any Bond to make a Ioynture to his wife which by reason of these words would not be accepted and there ought to be some special matter shewed in which damage may be apparent Coo. 4. 18. For upon such general words no special slander may be imposed As if a Lease for life be with a condition to re-enter and J. S. shall say That hee can shew that which will bring him in Reversion to the possession this is no slander of the Title for the very Lease it self by the Indenture by which the Land was devised will bring him to it either by the condition or by the determination of the estate 2 For that it doth appear by the Plaintiffs own shewing that Elizabeth is Heir at Common Law and that the Plaintiff himself had but an estate tail and upon the determination of it Elizabeth will have Titsley as general Heir and the Defendant doth not shew any time certain when Elizabeth shall have it but indefinitely and this shall be taken in meliori sensu Yelverton Rep. 88. Coo. lib. Entries 35. Case 226. Mich. 4. Jac. B. R. Earl of Northumberland versus Birches In an Slander of a Title to Land Action for the slander of a Title The Plaintiff declared that Henry Earl of Arundel was seized in Fée of the Mannor of D. and gave it to the plaintiff in tail and that the Defendant was a Customary Tenant for life of a messuage parcel of the said Mannor And the Plaintiff was in Communication with J. S. to make a Lease for years to him to make a Lease for years of the Land to him to begin after the estate of the Defendant for life was determined for which J. S. agréed to give him five hundred pound that the Defendant intending to hinder that bargain and slander his Title spake these words The late Earl of Arundel Lord of the Mannor of D. did make a Lease of my Tenement to one J. D. for sixty years to begin after my customary estate ended and the same is a good Lease Whereas the said Earl did not make such a Lease by reason whereof neither J. S. nor any other person would give him ten pound for the Lease The Defendant justified that Henry Earl of Arundel before the Gift made to the Plaintiff made such a Lease to J. S. for sixty years and that J. S. conveyed the Lease to him It was objected that the words import not any slander nor is it alledged when the Earl made the Lease But the opinion of the Court was that the words shall be taken in the worse sense according to his intent which hée spake when hée said it to be a good Lease And the words themselves imply that hée spake them to countenance the Title of a stranger which is not lawful and now hée cannot excuse himself by intituling of himself when at the first the words did not import as much and now hée cometh too late to justifie Croo. 2. 163. Case 227. M. 3. Car. B. R. Law and Harwoods Case In this Action for a slander of a Title The Plaintiff declared that hée was seized in Fée as a Coppy-holder Slander of a Title to Land of Land in D. within the Iurisdiction of the Defendants Court and that the Defendant said Hee had not any title to those Lands It was found for the Plaintiff And upon a Writ of Errour brought the Iudgement was reversed because the plaintiff did not shew that by occasion of the words hée had any prejudice as by any bargain of Inheritance or Lease of the Land And this Action is not maintainable without shewing a special prejudice Croo. 1. part last publisht 99. Case 228. M. 6. Jac. B. R. Vaughan versus Ellis M. 6. Jac. B. R. Errour of a Iudgement in the Exchequer-Chamber in an Action of the Case for words for saying Hee is a Bastard The Errour assigned was that the Action lyes not for these words without special cause shewn that hee was damnified by them as to alledge that hée was inheritable to some Lands and that by reason of those words hée is to have losse And here it
Assize Yelvertons Rep. 143. Case 119. Blanchflower and Atwood The Action was for this I will hang him Charge of Treason for hee hath spoken words which be high Treason and they were adjudged actionable Yelverton Rep. 107. Case 120. Brinsby and Balgy M. 5. Jac. B. R. The Action was brought by a Charge indirect of a Robbery Maid in a Treaty of Marriage for this It is no marvel shee comes not to Church for it is thought she is with childe and I fear it is too true And it séems not actionable And yet that such words used about a Robbery would be actionable Yelvertons Rep. 113. Case 121. Tomson and Knot M. 6. Jac. B. R. The Action was brought for these Charge indirect of a Theft words You might have known your own sheep and not have stoln mine In this Case by two Iudges the words were not actionable for they are no direct affirmation of any stealing but by way of Implication and a slander may not be drawn in by a strained construction And two Iudges that they were actionable Yelvertons Rep. 145. Case 122. James Wilshire hath forged the late Queens Writ It was affirmed in Forgery a Writ of Errour that the words are actionable Wilshire Case Mich. 5. Jac. B. R. Yelvertons Rep. 146. Case 123. Staverton and Relfe M. 7. Jac. B. R. The Action was this I will prove Charge indirect of Perjury thee a perjured Knave And it was adjudged actionable for these words I will prove import a vehement affirmative of the thing and the Plaintiffs guilt therein Yelvertons Rep. 160. Case 124. Dromant and Westofer M. 6. Jac. B. R. The Action was for these Charge of Theft Pickpocket words The wife of D. Innuendo the wife of the Plaintiff pickt five shillings six pence out of H. Davis wives pocket and her Husband Innuendo the Plaintiff was consenting to the same and in this Case the Iudgement given in the Common-Pleas upon a Writ of Errour was affirmed in the Kings-Bench for the Plaintiff for the first words to pick a pocket c. are slanderous and in the common phrase is in the worst sense a stealing Yelvertons Rep. 136. Case 125. Tuerleote and Morrison Hill 8. Iac. B. R. The Action was brought for these words by an Alien Merchant Hee is a Bankerupt and fled beyond the Seas for much mony And the Defendant pleaded that the Alien Plaintiff was an Alien but it was adjudged for the Plaintiff Yelvertons Rep. 199. Case 126. 1 In an Action upon the Case for words the Plaintiff did declare That Case hée was Heir apparent to his Father and also to his younger Brother who had purchased Lands but had no issue either Male or Female and that the Loss of Preferment Defendant with an intent to bring him in disgrace with his Father and also with his younger Brother and thereby to make the Father and younger Brother to give away their Lands from the Plaintiff did maliciously speak Thou art a Bastard these words to the Plaintiff Thou art a Bastard which words were spoken in the presence of the Father and younger Brother by reason of speaking which words the Father and younger Brother did intend and afterwards did give their Lands from the Plaintiff And by the opinion of the whole Court it was adjudged that the words were actionable and Iudgement entred accordingly Godbolt Rep. Case 519. Humfreys Case 13. Car. B. R. Case 127. Mich. 20. Jac. B. R. Elborrow versus Allen. Action upon the Case Whereas hee was the Son and Heir of John Elborrow and Anne his Slander of a Title to Land Wife Daughter and Heir of John Travel and had divers Lands by discent from them of the value of two hundred pound per annum that the Defendant envying his estate speaking of the Plaintiff and Katherine his wife said these words Shall Elborrow his wife sit above my wife hee is but a Bastard That by this hée was much scandalized in his Estate and forced to great expence to defend his Title upon Nihil dicit writ of Injury and fifty pound damages and after motion to arrest the Iudgement it was given for the Plaintiff And it was agréed that the words in themselves were scandalous and dangerous that may cause his Inheritance to be questioned Croo. 2. 642. Case 128. Banister sued Banister for saying to him being Son and Heir to his Father Slander of a Title to Land That hee was a Bastard And it was resolved that the Action would lye for the words tended to his dis-inherison But if the Defendant himself had pretended to be the next Heir then the words had not béen actionable Trin. 25. Eliz. B. R. Mich. 3. Jac. B. R. Case 129. Two men having speech together of John Syms and William Syms Slander incertain in the person slandered and in the matter one of them said The Symses make Half-crown peeces and John Syms did carry a cloak-bag full of clippings And whether the Action would lye was the question because it was incertain in the person for hee did not say these Symses but the Symses Like unto the Case where one Farrer being slain and certain persons being Defendants in the Starre-Chamber one having spéech of them said These Defendants did murder Farrer and it was adjudged that the Action would not lye for two causes First Because the words these was incertain in the person And secondly it was incertain in the thing for it might be that they had authority to do it as in Mills Case 13. Jac. in the Kings-Bench Thou Charge of coyning of money hast coyned Gold and art a Coyner of Gold Thirdly a Cloak-bag of Clippings that is also uncertain for it might be Clippings of Wooll or other things or it might be Clippings of Silver from the Goldsmith for the Goldsmith that maketh Plate maketh Clippings and fourthly it is not shewed any certain time when the words were spoken And for these causes it was adjudged that the Action would not lye Godbolt Rep. Case 477. Syms Case Pasche 3. Car. B. R. Case 130. Note it was cited by Chamberlain Justice 15. Jacobi to be adjudged Hinderance of Preferment Bastard Slander of a Title For saying one is a Bastard That where a man brought an Action upon the Case against another man for calling of him Bastard that the Action was maintainable the Defendant brought a Writ of Errour and shewed for Errour that the Plaintiff did not claim any Inheritance or to be Heir to any person certain But notwithstanding that Errour assigned the Iudgement was affirmed And hee said that if one saith of J. S. that his Father is an Alien that an Action upon the Case will lye because it is a disability to the Son Quere Godbolt Rep. Case 421. Case 131. Mich. 6. Jac. B. R. Vaughan versus Ellis Errour of a Iudgement in Slander of a Title the Exchequer in an Action of the Case for
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
his Mannor when hée is about and hath néed to sell it or the like Or which tend to a mans dis-inheritance as to say to an Heir to Land Hée is a Bastard or the like Or which tend any other way to the Bastardy infamy discredit or disgrace of a man or that may any way import any damage to a man All such words regularly are Actionable Coo. 4. 13 14. c. Coo. 10. 130. Dyer 26. 72. Styles Regist 6. Kitchin 172. Bulstr 1. Part. 40. This General Rule for the clearing of it doth admit of many Extensions and many Exceptions and Limitations which wée shall lay down in the Rules that follow The Rules of Extension may be these 1. That albeit some of the words spoken at the same time are and others Some words Actionable others not Sect. 2. of them are not Actionable yet an Action may lye for the Actionable words and the Action may be brought for them altogether Dyer 75. Plow 118. Trin. 8. Jac. B. R. Lukers Case Jenk Cent. 7. Case 70. Coo. 10. 131. Styles 112. 2. That many words though of themselves they be not Actionable yet Words aequivalent to Actionable words being equivalent to words that are Actionable may bear an Action for they may prima facie sound from the mouth of the speaker in the ears of the hearer as bad as any Actionable words Pasche 15. Car. 1. B. R. Agréed 3. That it matters not how the words if they be Actionable be published Which way soever published or divulged whether by writing or spéech for the Action is maintainable in both Cases So a man might have béen charged in this Action for a slander by a Bill in the Star-Chamber and so hée may be now by a malicious Indictment Coo. 4. 14 15. See in Huttons Rep. 10. In Owens Rep. 30. 4. That it is all one as to the maintainance of the Action if the words Spoken to or of a man all one be spoken or written to the person slandered before his face or of him behinde his back Old Book of Entries Coo 4. 14. 15. and Hob. P. 292. 5. That it is not material whether the words be spoken in the second person Spoken in the second or third person all one Theft to the party slandered himself as thus Thou art or you are a Théef or in the third person behinde his back thus J. S. is a Théef for the Action is alike maintainable in both Cases Coo. 4. 14 15 16. 6. Nor is it material in what language the words are written or spoken Words written or spoken in another Language whether in Latine or Welch or in the Native Language they be scandalous in all if they be spoken so as the hearers do or may attain to understand the meaning of them And yet if the words in their Native Language be such as are not Actionable no Action will lye for them And if in another Language in the hearing of them that do not understand them it séems they are not Actionable And yet if one speak words in another language that are Actionable and hée English them himself by words that are not Actionable it is said the words shall not bear Action Croo. 1. Part last publisht 496 497 865. 15. Car. 1. B. R. in Hetleys Rep. 175. In Huttons Rep. 8. in Hobb Pl. 155 351 236. Sée in Marches Rep. Bendlows Rep. 134. Styles Rep. 263. Yet sée Brownl Rep. 6. Hobb 126 291. 7. Nor is it material how the words be uttered whether directly or indirectly Spoken after any manner of Speech Sect. 3. Theft and obliquely and whether by way of Affirmation as A. is a Théef or by way of Interrogation as where is the péece you stole from mée Hath that Bastard B. caused you to be arrested Hast thou béen at London to change the mony thou didst steal from mée or by way of Argumentation as I will prove J. S. to be a Théef Or by way of Negation when it doth imply an Affirmation as You are no Théef or by way of Irony as You are no Théef are you Or thus I have said that J. S. is a Théef and I Theft will justifie it and have told him so much to his face or the like For in all these Cases they are Actionable Pasch 15. Car. 1. Appletons Case B. R. Hill 4 Jac. B. R. Lady Morrisons Case Croo. 2. 275. Croo. 1. last part publisht 273. Sée in March Rep. fol. 7. pl. 18. and 58 pl. 19. And so in like Cases March 19. pl. 44 and 55. pl. 9. Goldsb 186 139. Croo. 2. 103 569 406 422. Coo. 12 134. 30. Ass 10. Jenk Cent. 8. Case Nelsons Case Croo. 2. 275. Hobb Rep pl. 276 289. 8. Nor is it material whether it be spoken as from the Speaker himself As from a mans self or from the Report of another or by hear-say or by Relation or by the Report of another if the other did not report it As when one saith J. S. said A. B. is a Théef if J. S. did not say so the words are Actionable if hée did say so hee may justifie the speaking of them But if hée report the words as to say one said A. B. is a Théef and not name the Author of the Report the words are dangerous and may be Actionable Croo. 1. part last publisht 400. M. 9. Jac. B. R. adjudged Croo. 2. 102 406 407. In March Rep. 8. Coo. 12 134. Jenkins Cent. 8. Case 7. Leonard Rep. 187. Croo. 2. 275 422. Yelvertons Rep. 21. Bulstrode Rep. 3. 225. 9. Nor is it material whether they be uttered by way of earnest or Spoken in earnest or in jest séemingly only in jest but with a mind appearing to be malicious and with a purpose to slander for the Action will lye in both Cases 10. Nor is it material whether the man that uttereth them be sober or Spoken by one sober or drunk drunk with Wine or Passion for the Action lieth alike in both Cases 11. Nor is it material whether the words be delivered in one or more Spoken at one or more times and in one or more sentences Sect. 4. sentences or spéeches or at one or more sentences or spéeches or atone times they may enure to the ag-or more times gravation of each other or if the words be all of them Actionable give several Actions Croo. 1. 238. Bulstrod 3. 283. Coo. 12. 134. 12. Nor is it material whether the Slander be raised and fixed by an extra-judicial way as by ordinary Talk or by a judicial way as by Indictment or the like for in both cases they may be Actionable Jenk Cent. 7. Case 64. Kelw. 13. Coo. 4. 26. Dyer 285. Leonard Rep. 187. 13. That this Action will lye for words though the words in a proper Taken improperly Theft spéech cannot be true as if a woman say to mée Thou hast stoln my goods for shée hath no goods but what is
be not so much as probabilis causa for what is done and the party be acquited upon it he may have this Action or an Action in the nature of a Conspiracy for as a Thief may be spared by the favour of Iurors so Conspiracy an honest man may be much prejudiced in his reputation by such a malicious prosecution 41 42. Eliz. Co. B. Sherington versus ware Sée March of slanders 2 part 10. Stiles Rep. 335. For the thirtéenth thing That the words must be spoken in the hearing of some body that doth understand them for if words of slander be spoken in Latine Gréek Welch or any other Language in the hearing of such persons as whereof not one amongst them doth understand what they Words of another Language intend or signifie no Action will lye upon them Croo. 1. 65. 144. Hobb Rep. 63. 276. For the fourtéenth thing That where a man is charged with a Crime by any such words and it doth not appear that he had notice of the ground or occasion of the Crime in this case no Action will lye for the words As where one is charged to kéep Théeves about him and it is not said that he knew them to be such no Action will lye for this Mich 40. 41. Eliz. And thus much for the Rules of Limitation or Exception The Rules that follow are of another nature 1 That if a man be charged with a Felony by a common fame Arrested Imprisoned or Indicted upon it and yet be as he may be innocent he may not upon this ground be charged with this Felony and therefore if any man in this case shall charge him with it he way by this make himself liable to this Action for in this case common fame will not excuse him that shall so charge him for this slander Brownl Rep. 2. Hobb Rep. 105. 238. 381. 112. March 76. 26 H. 8 9. 2 That if the words spoken be true let them be what they will the Defendant may justifie them and excuse himself Broo. Action of the Case 104. 3 That in some cases the words that are in their first utterance imperfectly and incertainly spoken and perhaps not Actionable that these words may yet by the pleadings of the Parties and Verdict of a Iury for the Plaintiff be made certain and so become Actionable The Pleadings therefore of the parties in these Suits must be carefully héeded for they may be of great advantage or disadvantage to either party 4 That words relating to a Person ought to be understood according to the condition of the person to whom they are spoken so that the same words spoken to some meaner men that will not bear an Action yet spoken to a more eminent person may be Actionable Croo. 1. last publisht 192 193. As to say to a Bishop or a Iudge or Iustice of the Peace or the like man he is a Vermine in the Common-wealth or a corrupt man may be Actionable See Scandalum Magnatum For the better discovery and more clear understanding of general ambiguous and uncertain words and when they are or are not actionable these Sect. 9. things are to be known That the intent and meaning of the Speaker in them is as well to bée héeded as far as it can be known as the import of the words themselves And for this it is said It must bée héeded Quo Animo they are spoken sensus verborum est attendendus Et quae ad unum sensum or ad unum finem loquuta sunt non debent ad alium detor queri Nor are these Actions to be maintained upon mens words by a strained Construction but where the words in themselves do import a slander And for the better finding out of the sense of mens words and their intent in them this is to be known 1. That words are not to be taken and understood in a strict and Grammatical sense or ex ei termini per se in their natural and proper signification but in the vulgar and common sense that they are taken in the time when and the place where they are spoken For in this the Rule is Loquendum ut vulgus Intelligendum ut sapiens And hence it is that the same words that in one Country are actionable in another Country are not actionable Coo. 4. 14. 2. They are not to be carried by a forrein Construction besides their most natural likely and common sense and meaning into another sense and meaning Croo. 1. 352. 3. The cause or occasion of the speaking of them is to be considered according to the Rule Sensus verborum sumenâ—ius ex causa dicendi For upon this difference it is That the same words that will bear an Action in one case will not bear an Action in another case And words that in themselves will bear an Action yet considered ex causa dicendi will not bear an Action And therefore if one say of another That hee is a Bastard Bastardy when this is to defend his own title where he himself doth claim to be heir to the Land that is now in question or like to be in question Or say of another that hee hath forsworn himself where it is in a case wherein hée hath taken his Oath against him or where a Lawyer in the pleading of Perjury his Clients Cause shall utter words according to his Instructions pertinently to the Cause or a man shall in an orderly course of Iustice utter such words as otherwise would be scandalous In these and such like Cases as these no Action will lye for words so spoken albeit they be otherwise in themselves actionable Croo. 2. 90 91. Coo. 4. 13 14 16. March pl. 45. 4. The words must be considered by all the rest of the words spoken together with them at the same time And they are to be taken secundum subjectam materiam conjunctim uno halitu and not by a part of them rent asunder from the rest And therefore if one be talking about a Iudge Attorney or other such like Officer about his office and in this discourse say Hee is known to be a corrupt man and to deal corruptly this will Corruption in an office bear an Action But if the discourse be about his dealings as a Vsurer or as an Executor in the performance of a Trust committed to him by a Will there the words will not be actionable So if two be talking together of Hunting and one of them confesseth that hée doth kill Hares with Engines and thereupon the other doth say to him That hee is a Murtherer So if Murder one say of mée Hee is a Traitor for I trusted him to buy Land for mee and hee bought it for himself So if hée say I robbed him for I took away Treason his evidences and a subpena In these and such like cases no Action will lye for the words Coo. 4. 16. 19. Brownl 7. and 2. Godb. Rep. 89. Lievre de Entries 22.
6. 5. But where the sense is double and indifferent that it may be taken the one or the other way But one of the senses is worse and the other is better there the words shall bée taken in the better and not in the worser sense But of this sée before 6. That where the sense of the words is general and may be taken divers waies there it shall bée understood with reference to the person of whom they are spoken For in this the Rule is Sermo relatus ad personam intelligi debet de Conditione personae And thus the same words spoken to one man may be and spoken to another man may not be actionable to say to a Iudge or such like Officer You are a corrupt man is actionable But such words to another man are not actionable Coo. 4. 16. And yet if in this case there be other words spoken together with these words that do manifest them not to bée intended with reference to his office but to some other thing the words will not be actionable Coo. 4. 16. Hetleys Rep. 123. 139. Wée have toucht it before That Slander is and may bée by word or by déed And by word it may be either of the title a man hath to his Land or of his Person Wée shall first of all lay down something of the first of the slander of titles and then wée shall enter upon the slander of perâ—ons As to which it may bee easily discovered by that which is laid down in the general foregoing Rules That in this subject wée are upon these things are principally to bée considered 1. The Person of the Slanderer 2. The Person of the Slandered 3. The way and manner of divulging of the Slander 4. The frame of the words whereby the Slander is raised and made 5. The matter and quality of the slander it self Wée shall therefore after wée have dispatcht the first and after wée have spoken a little to the Slander of great men called Scandalum Magnatum in the next place say something to every one of these particulars CHAP. III. Of the Slander of a Title to Land THere are some words spoken that are in scandal and disparagement of Words that tend to the slander of a mans title to his Land or to a mans disinheritance Sect. 1. a mans Title to his Land or tend to a mans disheritance for which an Action of the Case may lye And for the opening of this point these things are to be known That in all cases where an Action will lye for a Slander of this nature there must be these things in the Case 1. The words must be spoken about such Land as wherein I that am to bring the Action have some Title of Estate or at least a possibility or probability of Estate or Title in Possession Remainder or Reversion For if they bée spoken about Land that doth not concern mée and wherewith I have not to do they cannot as they refer to the Land be actionable 2. The words spoken must be false For if what is said bée true bée it what it will the speaker may justifie the speaking of it where an Action is brought against him for it 3. They must be spoken by one that neither hath nor pretendeth title to the Land himself and that is not of Counsel with him that hath or pretendeth title to it For if a man lay claim to Land that another hath in possession or to which hée doth pretend title as next heir or otherwise And hée shall say any such words as these That the Land is his Land that claimeth it and not the others or that hee hath a good title to it and the other hath no title to it or that hee hath such an Estate in it or such a conveyance of it if in truth hee have such a conveyance of it and if it bée true as hée saith no Action will lye for it So if they both claim as heir and the one of them say of the other That hee is a Bastard or that hee is not the rightful heir or that his Father was an Alien or the like and that hée himself is the heir And so if the Counsel of such a man shall use any such words as these in the agitation of his Case about the Lands these words will not be actionable And yet if a man shall pretend title to the Land another hath in possession and hath no colour of title for it And say hée hath such a déed or conveyance of it where in truth hée hath no such déed or conveyance at all or if hée hath any such it is a counterfeit and a forged one and hée knoweth it to be so in these Cases the words may be actionable But if there be any colour for what is said the words will not be actionable Coo. 4. 17 18 Yelvertons Rep 80. 88. New Book of Entries 20. 28. Trin. 25. Eliz. B. R. Banisters Case Mich. 3. Jac. B. R. Croo. 2. 339. 4. The party that brings the Action must have or be likely to have some special damage by the speaking of the words as that hée is hindred in the sale of his Land was forced to fall his price or in his preferment in marriage or the like by it And therefore where a man is not about the sale of his Land or about a match with a Wife or Husband and another shall speak words to the disparagement of the title of his Land this will not bear an Action But if by the speaking of the words hée hath lost his Chapman or otherwise suffered any special prejudice the which he must not faile to set forth in his Declaration there without question the Action will lye Croo. 1. 99. 100. Croo. 2. 213. 397. 422. 484. Croo. 2. 642. 337. Owens Rep. 32. Popham Rep. 187 Yelvertons Rep. 88. Bulstr 2. part 9â— 5 That where the words are spoken to the prejudice of his Inheritance as where he is denied to be rightful Heir or the like there the Averment Action may be maintainable without Averment of any present damage and therefore it is held that this Action will lye for saying of a lawful Heir to Land before or after the Ancestors death He is a Bastard and so albeit the words be spoken before or after he hath Land in possession and though he be not about to sell the Land and although he have no special losse by the speaking of the words for by this the King or other Lord may be moved to search after the Title and the Title of his Land if he have any may be called in question and so it may in time turne to his prejudice Coo. 4. 17. Croo. 2. 642. M. 20. Jac. B. R. Elborrows case 6 That this Action will not lye for words that are too general and incertain nor for words that are not malicious sufficiently positive and the like within the Rules of words spoken in other cases for if they be incertaine of a
double intendment doubtful meaning or the like no Action will lye upon them It is therefore agreed That if I have Land and am about the sale of Sect. 2. it in treaty with another or about to settle it on a Marriage and one that hath nothing to doe with it or makes no title to it shall say That I have no title to the Land or I have no right to it or I can make no good estate of the Land or that it is anothers Land or that another hath such an estate in it and set forth such a one as will disable the estate that I am now about to make this is Actionable As if I bee a Copy-holder for life of Land in a Mannour and the Lord is making a Lease of it after my life and is bid five hundred pound for it and I shall say I have a Lease for years of it after my life made by a former Lord this will be Actionable Coo. 4. 18. Croo. 2. 397. 337. Owens Rep. 32. Pophams Rep. 187. Croo. 2. 163. Yelvertons Rep. 88. Croo. 1. 99. But if it be so that I have only a purpose to sell it or to settle it upon Children and any man speaks such words about it this will not bear Action Croo. 2. 397. 337. 444. Pophams Rep. 187. Owens Rep. 32. Croo. 1. 99. And if one that claimes this Land as his owne shall say It is my Land or I have a Lease of it or the other hath no estate in it or hath no right to it or the like this is not Actionable Coo. 4. 18. so if I pretend Title to Land as Heir and another claims it as Heir and I say He is a Bastard and I am next Heir this is not Actionable Coo. 4. 17. Yelverton Rep. 80 88. And if a Counsellor shall say That his Clyent hath the better right to the Land or shall use other words in the course of his pleading pertinent and necessary to be said in order to the advance of the cause no Action will lye for this Coo. 4. 17. Trin. 25. Eliz. B. R. Banisters case If I have a Copy-hold of Inheritance within the jurisdiction of the Court of another and he saith That I have not any Title to those Lands if by this I have no special prejudice no Action will lye for it Croo. 1. 99. and yet if such a one that hath no Title to nor estate in it himself shall say that another hath an estate in it or title to it who hath no good but hath a colourable estate or title in it this will be Actionable so it is to say in such a case I know one that hath a Lease of the Land and hée will not part from it at any rate Mich. 37. 38. Eliz. B. R. Pennimans Case Mich. 20. Jac. Elborrows Case Croo. 1. 99 100. Croo. 2. 397 422 642. Croo. 4. 17. Coo. 1. 175. And if two have Leases of the same Land and hée that hath the last Lease which is not good shall say That the Land is his and the others estate is not good this is actionable Coo. 1. 175. Coo. 4. 18. And if I be about to sell my Land and J. S. shall pretend to and shew a Lease of it and it is counterfeit and hée know it to be so this is actionable Coo. 4. 18. So if a woman shall publish a Lease of the Land of another as made by her Husband and shall know it to be forged if by it the party have any special loss hée may have this action Coo. 4. 18. So if I bée about to sell my Land and another man shall say the Land is conveyed to J. S. and is his Land or that hée hath a Lease of it for years or the like this is actionable And so it is albeit there be a conveyance or Lease made to J. S. in truth if it bée not a good Conveyance or Lease in Law Coo. 1. 175. Coo. 4. 18. But for these words I had rather to buy the title of the younger Brother than of the elder Brother and the Plaintiff and that hee had seen an Indenture to lead the uses of a Fine whereby it did appear that the Plaintiff had no authority to sell the Land no Action will lye Crush vers Crush M. 3. Jac. B. R. And so it hath béen agréed That an Action will lye in the Cases following To say a man is a Bastard and not a rightful Heir to Land As I have Land as Son and Heir of J. S. and another shall say of mée I am a Bastard if by this I suffer any special prejudice there is no doubt I may have this Action against him Croo. 2. 642. And if I bée Heir apparent to my Ancestor who intends to settle his Land upon mée and by occasion of these words hée doth give it away from mée I may have this Action against him that speaketh the words Croo. 2 Bastardy 642. Croo. 2. 213. Godb. Rep. 421 451. pl. 519. Bulstr 2. part 90. Nay it séems the Law is That if one shall say of mée that I am a Bastard albeit I do not claim any Inheritance or to be Heir to any one person in certain and albeit I have not any present or special damage by it yet that these words are actionable Croo. 2. 642. Croo. 2. 213. Godb. Rep. 421 451. pl. 519. Bulstr 2. part 90. And if I have but a remote possibility of Land as where an entail is of Land on my Father and the Heirs of his body whereof I am the youngest of many and hée is about the sale of this Land and I am bid mony for this possibility and then one shall say of mée I am a Bastard and after that the Purchaser refuse to give mée any thing for my possibility in this case I may have this Action against him for it Croo. 2. 213. Godb. Rep. 421 451. pl. 519. CHAP. IV. Of the Scandalum Magnatum SCandalum Magnatum is a wrong done to some eminent person of the Scandalum Magnatum What. Land as Duke Earl Baron Chancellour Treasurer Privy-Seal Justice of the one Bench or of the other by false news or false messages whereby debates and discords betwéen them or any scandal to their persons Sect. 1. may arise Stat. 2. R. 2. chap. 5. Westm 1. chap. 34. In this Case the party defamed may have his Action in the name of the The punishment of it King and his own Name upon the Stat. of 2. R. 2. And hereby shall recover damages for the wrong and the party may also be otherwise punished And if the slander be divulged in the nature of a Libel it is punishable by Indictment and great Fines are imposed for this offence for that the reproach of such persons is the reproach of the King and State it self Coo. 5. 125. Old Book of Entries 593. Crompton Jur. 35. 19. 13. For the knowledge of this wherein this Action is given to a great
Burrows Case Albeit this Averment be added that none do lye there but such as have the French-Pox M. 44. 45. Eliz. Boddin and Jones Case Nor for this Hee hath been in Fullers Tubb meaning a Chirurgions Tubb wherein none were but such as had the Pox I will not say of the Pox but hee lay in the Tubb that time that Langhams wife was laid of the Pox and his hair falls from his head and hee is a pilled and a Rascal-knave and a Villain no Christian and thinks there is neither Heaven nor Hell Goldsb 135. pl. 34. Croo. 2. 144. Nor for this Thou art Matcombes Hackney thou art a theeving and a pocky Whore Innuendo that shée had the French-Pox and I will prove thee a pocky Whore Croo. 2. 514. Godb. 278. Nor for this Thou art a scurvy pocky Whore and a Pickpocket Nor will it lye for saying of a man Hee hath the Falling-sickness Hill Falling-sickness 4. Jac. B. R. unlesse it may disable him in his Profession as a Lawyer or the like Hill 4. Jac. B. R. It is adjudged as it is said not to lye for this to advise a mans friend not to kéep company with J. S. because hée is full of the French-pox because there is no malice in this James and Rudleys Case 40. 41. Eliz. Co. B. Nor will an Innuendo enforce any of these words beyond their native Innuendo sense to make them actionable that in themselves are not so Coo. 4 17. And yet in some of these Cases if any special damage come to the party by the words spoken there haply they may be actionable albeit they be not so in themselves And in other Cases albeit there be damage yet may not the words be actionable Croo. 2. 499. CHAP. XVIII Of words that hinder ones Preferment THere are other words that do or may hinder a Preferment that a Sect. 1. man or woman may be in a possibility and likelihood to have And this falls out especially in one of these Cases where a man is in likelihood to have a wife or a woman a husband or one that is or may be an heir to an Ancestour and in that Right to have Land from him or a Minister is in possibility and likelihood to have a Parsonage by presentation or one is in a likelihood to be chosen to an office or one is in likelihood to be preferred to a special service and by some scandalous words spoken by another against him to his disparagement hée is prevented of and put besides it in such a Case and for this Injury the Law gives him this remedy And therefore it is held that this Action will lye for the words in the Cases hereafter following That is to say where a woman is like to have a husband or a man is like to have a wife and one say of him or her hée or shée had a Bastard or lay with J. S. or J. S. had the use of her body or the like and hée or shée lose the Match thereby this Action will lye for him or her that is so disappointed Hill 4. Jac. B. R. Dame Morrisons Case Hobb Rep. 106. 236. 350. Croo. 1. 110. 111. 195. 134. Croo. 2. 163. So if one say of a man Thou art a Whoremaster for thou hast lyen For a hindrance in Marriage Sect. 2. with Browns wife and hadst to do with her against a Chair If by this he lose a preferment by a wife Bulstr 2. part 90. So to say of a Widdower being about a wife that hee had lien with such a woman and others carnaliter cognovit and that by this hée lost such a match Croo. 1. 293. So for this Hath that Bastard A. B. caused you to be arrested is this all the spight the Bastard can do you if by reason hereof hée lose a match hée was about Croo. 2. 422. It will lye for these words A. hath had a childe for shee was conveyed to B. and there shee laid her great belly it is as true that she hath had a childe as that you sit there For shee was sent away with childe and if shee had not a childe shee hath made it away Croo. 1. part 639. For an Heir to hinder him of Land If one be Heir to his Father or Vncle that hath an Estate of Land or Goods which in likelihood hée may bestow upon him or if Land be given to his Grandfather and the Heirs of his body and hée hath children the Father and others that may be Heirs to the Entail though in the second or third degrée and the Land being at sale hée is offered somewhat for his possibility and after one shall say of him Hee is a Bastard and by this means hee loseth it hée may have this Action and not aver any special loss Croo. 1. 337. Coo. 4. 13. 14. Coo. 10. 130. Owens Rep. 32. Yet see Popham 187. If a Divine be to be presented to a Benefice and one say of him Hee For a Divine to hinder him of a Parsonage is a Heretick or a Bastard or Excommunicate if thereby the Patron refuse to present him and hée lose his Preferment this is actionoble Coo. 4. 16. 17. If one be Heir to his Father Brother or other Ancestour who intendeth For an heir to hinder him of Land to settle his Land upon him And another shall say of him Hee is a Bastard and thereupon the Father Brother or Ancestour give away the Land from him this is actionable Hughes Rep. 451. Bulstr 2. part 276. 277. Croo. 2. 213. And this Action some say it hath béen adjudged will lye albeit the party have no special losse by the words N. B. Entries 28. Trin. 25. Eliz. B. R. Godb. Rep. 519. Croo. 1. 337. Coo. 10. 130. Owens Rep. 32. If some say of a Lawyer that stands for a Town-Clerks place or any other For an Officer to hinder him of an office place of preferment Hee is an ignorant man and unfit for the place and thereby hée loseth this place this Action will lye March Rep. pl. 217. Sandersons Case 17. Car. B. R. And so by the like reason if any common servant be like to have a service and For a Servant to hinder him of a service by some slanderous spéeches hée loseth it Agreed M. 15. Car. B. R. So it lyeth for this Hee is not worthy to bear office in such a place for he keeps a Baudy-house in London if by this hée lose the place he stands for Bulstr 1. part 138. It is said that this Action will not lye for saying of another hee is base born And yet that perhaps it may lye for saying of another Hee is an Alien if he have any special damage by it Godb. Rep 327. 328. This Action will lye for saying of a Maid or a Widdow that hath a Hindrance of Marriage Suitor I know her well enough shee did dwell in Cheapside a Grocer did get her with childe
marriage c. Vpon not guilty it was found for the Plaintiff and damages given and a Writ of error brought and a Iudgement given for the Plaintiff and so the first Iudgement was affirmed and agréed that the words were spoken affirmatively and not by way of Interrogation and that the Action was given for the stain of his blood and his special damage And that a man may perhaps have this Action albeit he have no Land at all Croo. 2. 422. Case 77. Trin. 15. Jac. B. R. Sr. John Tasburge versus Day This Action was brought for this that whereas hee was a Iustice of Peace c. and that hee upon the seventh of March and long before seized in Fée of the Advowson Slander of a Title Of an Officer of Sandcroft in the County of S. and intended to sell it towards the paiment of his debts and the Defendant knowing of it and intending to Slander him in his Religion c. and to Slander his Title to the Advowson and hinder the sale thereof the same day having spéech with divers persons about his Title to the Advowson and about his Religion spake these words True it is that Sir John Tasburge was the true and undoubted Patron of Sandcroft but now hee hath lost that Patronage and presentation by being a Simonist and a Recusant both which I will prove him to bee By reason whereof hee was hindred in the sale of his Advowson And upon not guilty pleaded and a verdict for the Plaintiff it was adjudged for the Defendant because it doth not appear hee was about the sale of it and so had any special damage by it and for the rest of the words they were held not Actionable Croo. 2. 484. Case 78. Pasche 13. Car. B. R. Humfreys and Studfields Case In this Action for Hindrance of preferment words the Plaintiff declared that hee was heir apparent to his Father and also to his younger Brother who had purchased lands but had no Issue either male or female and that the Defendant with an intent to bring him in disgrace with his Father and also with his younger Brother and thereby to make the Father and younger Brother to give away their Lands from the Plaintiff did maliciously speak these words of him Thou art a Bastard which were spoken before the Father and the Brother Hee is a Bastard by reason of the speaking of which words the Father and younger Brother did intend and afterwards did give their Lands from the Plaintiff and by the opinion of the whole Court it was adjudged that the words were Actionable and Iudgement entred accordingly Godb. Rep. 451. Case 89. Pasche 15. Jac. B R. Cooper versus Smith This Action was brought for this viz. waterman and thou Innuendo the Plaintiff hast killed Charge of Murder thy Masters Cook Innuendo c. and I will bring thee in question for thy life And after Verdict for the Plaintiff and motion to arrest the Iudgment for the Incertainty of the words for that it did not appear who was his Master or that his Master had a Cook it was adjudged for the Plaintiff Incertainty Innuendo and said that albeit the Innuendo cannot make a thing incertain certain but shall serve only as a predict yet the words import that hee had a Master and that his Master had a Cook c. And another Action was brought for these words viz. thou hast sacrificed thy Childe to the Devil and adjudged that the words were Actionable Charge of Murder Pophams Rep. 128. Bridgmans Rep. 60. Case 80. Mich. 44. 45. Eliz. B. R. An Action was brought for this Thy Father By Report Averment said thou hast murdred thy husband Innuendo such a man by name jam defunct and averred ubi re vera her Father spake no such words And Verdict for the Plaintiff upon not guilty pleaded and it was moved in arrest of Iudgement because it was not averred that the husband was dead at the time of the words spoken and divers Cases cyted to the purpose Yelvertons Rep. 20 21. Case 81. Mich. 23. Car. B. R. Person and Dawson An Action was brought for Charge of Theft this your Son Innuendo your Son William stole a Horse and sold him for ten pound and a verdict for the Plaintiff upon a not guilty and after many motions to arrest the Iudgement it was given for the Plaintiff Stiles Rep. 46. Case 82. Pasche 33 Eliz. B. R. Buckley versus Wood. The Plaintiff in this Action Slander in a course of Justice declared that whereas the Defendant did exhibit a Bill against him in the Star-Chamber 30. Eliz. containing inter alia that hee was a nozeler of Théeves Murderers and Pirates c. and recited a great part of the Bill that afterwards the Defendant at P. in the County of Salop. 7 Maij. 31. Eliz. Said hee would justifie his Bill to bee true in every part c. The Defendant pleads that the seventh of May at Wellminster in the County of Middlesex he was demanded of the Lord Chancelour if his Bill were true and he said it was true in all points Absque hoc quod dixit predicta Pleading verba before or after the said day Aliter vel alio modo And upon this the Plaintiff did demur in this Case albeit it was objected For the first thing that it was in a course of Iustice and that his words after were justifiable and that the declaration containing this that he had exhibited his Bill inter alia was not good but that he ought to recite the whole Bill yet it was adjudged for the Plaintiff for that they were matters not examinable in that Court and especially because hée had spoken of them after in the Country Croo. 1. part last publisht 230. 247. Case 83. Action for these words Coles hath strained a Mare Innuendo carnaliter Strained a Mare cognovit equam the Iury found that the Defendant spoke the words C. hath strained a Mare meaning that carnaliter cognovit c. And upon these words the Plaintiff had Iudgement although it was alledged that the words in themselves had no sense And the Innuendo will not help the Innuendo matter but only denote the person but because the verdict was found prerisely that this was his meaning and it is a phrase of the Country it was adjudged for the Plaintiff Croo. 1. part last publisht fol. 250. Case 84. Mich. 33. 34. Eliz. B. R. Cole vers Havilland This Action was A. hath strained a Mare brought for these words Coles hath strained a Mare Innuendo Carnaliter cognovit equam and upon issue joyned c. the Iury found the words and the meaning thereof to be as was declared and Iudgement was given for the Plaintiff Croo. 1. part last publisht 250. Case 85. The Bishop of Norwich against Pricket Action de scandalis magnatum Scandalum Magnatum brought for these words viz.