said Goe not to such a one c. it is actionable without question Slander of one in his Trade will bear an action And so all being connexed alike it ought to be intended that he killed him in respect of his skill In Cases of Defamation Sir George Hasting's Case Thou didst lye in wait to kill me with a Pistoll were actionable So if one touch another in respect of his skill in that that he professes it will maintain an action c. And Yelverton to the same purpose for there is a difference between a Profession and a particular Calling As if words are spoken of one that is a Iustice of Peace he ought to shew that he was then a Iustice of Peace for he is removable and may be changed every Quarter Sessions But as to a Calling the Calling of every man is his Free hold 43 E. 3. Grant of an Annuity to one pro consilio and he professes Divinity Physick and Law there the grant is pro consilio generally for Physick if that be his usuall Profession And it is intended that a man alwayes dyes in his Calling If he said to I. S. Thou art a murtherer it shall not be intended of Hares for the Iudges are not to search so far for construction Loquendum ut vulgus intelligendum et sapiens If one sayes of a Merchant Put not your Son to him for hee 'l starve him to death These words are actionable for that that it comes within the compasse of the disgrace of his Profession And so of a School-master Put not your Son to him for hee 'l come away as very a dunce as he went Harvey If one sayes of a Iudge He is a corrupt Iudge it cannot be meant of his body to be corrupt but it shall be intended of his Profession Peitoes Case before HEnden for the Defendant the Case is thus A Rent is granted for life out of Lands which descend to the Heir and he makes a Lease of parcell of the Land to the Grantee for years who surrenders the term Whether the Rent shall revive or suspend during the term And it was said by him it shall revive First For that that it is the act of him who is lyable to the Rent to accept the surrender And there is a difference where there is a determination barely by the act of the party there it shall not be revived For the first 21 H. 7. 9. Tenant in Tayl of a Rent is infeoffed of Land and he makes a Feoffment of Land with a warranty to B. with Voucher as of land discharged of that Rent And so it is 19 H. 6. 55. Ascue put this Case Grantee of a rent in Fee and Donee in Tayl of Land infeoffs the Grantee who grants that over and afterwards the issue in Tayl recovers in a Formedon yet the rent shall not be revived But if it had been the joynt act of the parties as so by surrender it should have been revived First It is clear that if a Chattell personall be suspended by Sute it shall be gone for ever As if a Feme marries the Obligor 11 H. 7. 25. unless suspension be in anothers right if it be by the act of the party there it shall be revived As if a Feme Executrix marry with the Obligor and he dyes the suspension is determined and they are revived against the Executors 7 H. 6. 2. In one Gascoines Case Lessee surrenders to the Lessor upon condition the rent be suspended but if the Lessor enter for conditions broken the Rent is revived Which in effect is our case A rent is granted to the Daughter and the land descends to her and her other Sister who make partition The Rent is revived for it is the joynt act of both parties Plow 15. If a man had a Rent and disseises the Tenant of the land and after the Disseisee re-enters Where there is a revivor of the land there is a revivor of the Rent for the disseisin was the cause of the suspension and that now is gone Secondly Because that when the Lessee for years surrenders the term is determined to all purposes and the Lessor is in of his Estate is Fee and there is a diversity of surrender in respect of a stranger for to a stranger it may have Essence after surrender But as to himself it is otherwise extinct And he cannot say that it had any Essence 5 H. 5. 12. But in respect of a stranger it ha's continuance as if an Executor surrenders yet it shall be assets And all acts done upon Lessee for ltfe before surrender shall have a continuance after And so he prayed Iudgement for the Avowant But more after Wakeman against Hawkins IT was said That if an Executor was sued in this Court by Originall he shall not put in Bayl. But if he be arrested in an inferiour Court and removed by Habeas corpus he ought to put in Bayl. Stamford and Coopers Case STamford and Coopers Case was thus I. S. acknowledges a Statute to Cooper the 22 January and afterwards he confesses a Iudgement to Stamford the 23 of January next ensuing the Statute And it is extended And Stamford brought a Scire fac against Cooper to wit now because he ought not to have the land by Elegit And the Question was whether the Iudgement by relation shall defeat the Statute And it was resolved That the Iudgement shall have relation to the Essoin day which is the 20 day of Ianuary for that is the first day of the term legally and the fourth day after is the first day of the Term open Dyer 361. Pla. 10. A Release was pleaded after the last continuance and it bore date the 21 of Ianuary which was after the day of Essoin de Octab. Hil. And for that nought because that it came late for it ought to have been after the last continuance and before the last day c. 33 H 6. 45. Nisi prius was taken after the day of the return and before the fourth day after and adjudged nought because that the day of the return which is the Utas is the first day of the term and the fourth day after but a day of Grace and that is the difference If a man be obliged to pay money the first day of the Term he shall not pay it but upon the fourth day after for that is the first day in all common acceptance But in all legall proceedings the first day is the Essoin day And so it was adjudged 16 Eliz. And in the Kings Bench it was in one Williams Case A Iudgement was given the 20 of Ianuary and a Release of all Errours the 21 Ianuary and adjudged that that bars the Iudgement given the 20 Ianuary although it was not entred the fourth day after A Iustice in the Kings Bench examined an Infant upon inspection the Essoin day and found him to be under age and would not permit him to confess a Iudgement although that he would
that there was a conference of a Bill of Costs laid out by him c. and does not say laid out by him as Attorney And the whole Court seemed to be of the same opinion But it was adjourned If it had been said that habente colloquio primo die c. he spoke it should have been good But habito implies time past Hitcham against an Attorny of this Court HItchsm Chief Sergeant of the King brought an Action upon the Case against James Cason an Attorney of this Court And he declared that he was now Sergeant to the King and so was to his Father and that the King made him Iustice of Peace for his County of Suffolk and that he for many years theretofore and yet did exercise the Office of a Iustice of Peace And that the Defendant on purpose to disgrace him and to make him to be removed from being a Iustice of Peace in the Court openly spoke these scandalous words In a matter wherein I was questioned at the Quarter Sessions in Suffolk Mr. Sergeant Hitcham being there was Witness Judge and Party and did there oppresse me And moreover he said In Articles there presented against me he did me injusticâ—… and hath contrived those Articles And moreover he said Mr. Sergeant Hitcham bound my Son Finch to the Quarter Sessions and there indicted him and was Witness Judge and Party and counts to the dammage of the Plaintiff 1000 pound The Defendant to some of the words in the Declaration pleads not guilty to the residue he justifies and says that the Plaintiff was made a Iustice of Peace 1 Apr. 1 Car. And as to the words In a matter wherein I was questioned in the Quarter Sessions in Suffolk Mr. Sergeant Hitcham being there was Witness Judge and Party And all but the last words That the Plaintiff at the Sessions 8 Sept. 2 Car. at W. in Suffolk quosdam falsos Articulos scribi fecit exhibuit et produxit And recited all the Articles being in number eleaven Hil. 5 Car. Com. Banc. And that after the exhibiting the Articles in open Court The Plaintiff there said that they were true and counselled the Clark of the Peace to read them and then said he should be tryed upon them But the Plaintiff denied that and said that he would proceed now no further upon them but took the Articles and carried them with him by which the Court was dispossessed of them And would not proceed against him upon them And upon the last words scil Mr. Sergeant Hitcham bound my Son over to c. He said that his Son was bound to appear at the Quarter Sessions And caused an Indictment to be preferred against him Because he being elected Constable refused to take his oath or to execute his office And upon that Indictment the Sergeant gave evidence to the grand Iury and they found the Indictment And upon that Iudgement was given that he should be amerced that estreated And upon this bar the Plaintiff dumurred Finch for the Plaintiff And first he answers to the Exceptions which were taken before to the Declaration c. First that it did not appear by the Declaration that the Plaintiff was Iustice of Peace at the time of the speaking of the words To that he answers That is sufficient in the Declaration to shew that he was a Iustice of Peace at the time For it is per multos annos jam ultime elapsos et adhinc est and that the Declaration coming in M. 5 Car. If it was per multos annos ulterius c. It was at the time of the speaking For it was Paululum before the Action commenced And also the Defendant says in his Bar that the King made him a Iustice of Peace and that he was not a Iustice of Peace at the Sessions And although that he was not a Iustice of Peace at the Parlance Yet the words are actionable which charge him with Injustice when he was c. Secondly It was objected that part of the words were not alleged to be spoken of the Plaintiff But the Declaration is That in a matter c. Mr. Sergeant did c. which is directed to the first words But the subsequent words are induced such like afterwards Ad tunc ibidem the Defendant said And he did me injustice c. And although the first words were laid to be spoken of the Plaintiff yet the last words not But and he did me c. which ought to be taken That they were spoken of the Plaintiff For it is ad tunc ibidem upon the same Communication And also the Defendant cleared that For he justifies those words as spoken of the Plaintiff Thirdly It was objected that the words themselves are not actionable In Actions for words it is as in Wills The best argument will be from the words themselves yet we can borrow light from other words in the same Will Which I will recite The proverbial Verse Quid de quoque viro cui dicas saepe caveto Quid c. Some words declare all malice which are not actionable of some persons they may be spoken of quo some only actionable being spoken of such a man 4 H. 8. The Duke of Buckingham hath no more conscience than a Dog Those words upon the Statute of Scandala magnatum are actionable 10 Iac. the Earl of Northamptons Case It was resolved in the Starchamber that to publish false rumors of any of the Peers of the Realm was punishable at the Common law And if one heard such words and reported them again it is punishable But not in a Common persons case But this difference there was resolved That to say of Commons person generally that he heard so is not actionable if he name the person If one says of a Merchant he is a Banckrupt it is actionable not of the Defendant If one said of the Defendant he is an Ambidexter it is actionable not if of a Merchant It is a general rule that slander of every man in his profession is actionable Much more of the Plaintiff in his profession being a Iustice of peace For the words themselves if they be taken together or asunder are actionable The ground of the speaking was that there was a communication of Injuries done to him by the Plaintiff but take them asunder Trin. 7. Car. Com. Banc. and none of them but with the circumstances here will bear an action First that he was a Iudge Witness and party That is against the Law to be Iudge and party They who are Duellists are Iudges and parties and Executioners Iudge and party is as much as to say he is partial and he did oppresse me That shews that he was not Iudge and party fairly But they have objected that this word oppresse is incertain for he may be oppressed with overwait or hunger and cold But this case cannot have any such such sence But here it is intended the perverting of Iustice But this case was
of Westminster And adjudged that they were not Because that it is expresly limited to those Courts in a branch of the Statute of 37 H. 8. cap. 9. In one Fosters Case 11 Rep. it is plain that Affirmative words cannot take that from those Courts at Westminster For those are excepted by the Law If this Statute extends to take the power given to another Law you will repeal former Statutes without express words And there is a good rule take 18 Eliz. Dyer 247. pl. 12. which see Thirdly It ought to have been pleaded For to deprive the Court of Iurisdiction A motion does not stand with the intention of the Statute or the dignity of the Court. For because the Court had a general Iurisdiction it cannot be ousted of that without pleading upon 31 Eliz. Richardson said that this Case is upon consideration of 3 Statutes 21 Jac. 23. 33 H. 8. By the Statute of 21 Iac. Where the Iustices of the Peace had some power upon Informations There Courts at Westminster are bound up For that he said to Henden That he did not well understand him in his second point But he said I hold That if that Court only from the time of the making of 21 Iac. had power Then it is clear that it so remains now But if this Court had the sole power Then the same Informations may be so either before the Iustices of the Peace or of Oyer and Terminer Then the Iurisdiction of this Court is ousted by 21 Iac. For the words are in that plain It was not the intention of the Statute to inlarge the power of the Iustices of Peace but to confine those things to them Pasc 4 Car. Com. Banc. So that here will be the Question whether the Iustices of the Peace at the time of the making of 21 Iac. might take Informations against Brewers upon the Statute of 23 H. 8. before to avoid the vexation of the Subject That he shall not be lyable to the Information at Westminster and in the Country too But that the Statute ought to favour For when such persons were subject to many informations they would be more afraid So that all the question will be upon the 33 H. 8. And admit that Beer-brewers are within that Statute yet the jurisdiction of that Court continues before the 21 Jac. Then that construction does not repeal the former Statute as it was taken by Henden But both may stand and the Statute of 37 H. 8. alters only the six wéeks sessions and gives the power at the general Sessions So the case may rest meerly upon the word Victuallers within 33 H. 8. First then if they are within the words which is proved by the Statute 23 E. 3. 4 H. 4. cap. 21. which Statute confounds Victuallers and sellers of Victuals and 21 H. 8. cap. 17. Which says precisely that Beer-brewers and Bakers which have been Victuallers But whether they are Victuallers within the intention of the Statute is the doubt They may be within some Statute of Victuallers and not within others For if he brew their beer unwholsomly he may be punish'd but not by Information And it was well observed that the words That they ought to put in execution certain Laws which ought to be intended such in which they had Iurisdiction before It was said that Brewers are not like to a Graster Butcher or Miller for they prepare that which is made Victuals by others but beer is beer in the hands of the Brewer immediately and nothing is done to it afterwards to make it more beer But a Brewer although he be a victualler in general yet not being particularly named he is not within the power of a Iustice of peace Butcher Fishmonger and by the Statute of Rich. 2. Vintners are Victuallers and are these within this Statute Certainly not But because that Inne-holders are named there ought to be other words And there are Alehouse-kéepers and Cooks For all sellers of victuals are not within that Law nor Brewer nor Baker which are particular trades of themselves And if it had béen intended that they should have béen within the Statute the Law would have named them And Crompton and Lambert naming Brewers in their charge is by the Common Law For that that for the unwholsomness of their Beer in their Assize they are inquirable by presentment But by that it does not follow that a Iustice of peace may take information of them Now the question is upon 33 H. 8. In generalty Brewers are Victuallers There is one Statute which enacts that no Mayor shall be a Victualler And afterwards there is another Statute made that he may be a Mayor although he was a Victualler So it was intended that they were Victuallers for they prepared Victuals But yet it is not within this Statute for it appears by the preamble that he is to enquire of things whereof they had power before either by the Statute or by the Common-Law but it was not the intention to give them other authority They may enquire of a combination in their prizes and such things but not by information Then when the Statute gives power to execute it does not give power of new things because c. Harvey argued to the like purpose but said that the Iurisdiction of these Courts ought to be preserved as much as may For the true execution of the Law is in these Courts For in the Country if an Informer inform against his neighbour he will compound the matter and so the King shall lose his profit of the penal Laws And so the Statute is made as a stawking horse to help a friend Crook It is true that Brewers shall be construed to be Victuallers secundum subjectam materiam Trin. 4 Car. Com. Banc. as the Statute is of shipping of victuals out of the Land Beer shall be within that Statute And he argued in omnibus as before Wherefore I doe not report it at large But he said that the Statute of 21 Jac. was upon the matter of all penal Statutes repealed because that it was so ill executed in the Country And so Iudgement was given for the Plaintiff Howsons Case A Libel was against Howson the Viccar of Sturton in Nottinghamshire in the high Commission Court at York Because that he was not resident but lived at Doncaster and neglected to serve his cure And that divers times he when the high Court visited spoke so lowd that he was offensive to many and being reproved for that he gave a scornfull answer And that there was one Wright in the Parish who had a seat in the Church and that the Vicar would spit in abundance in the seat and that when Wright and his Wife were there And that afterwards he said with a common voice That the Wife of Thomas Howson was as good as the wife of Wright And that in his Sermon he made jests and said That Christ was laid in a Manger because he had no money to take
action upon the case lies for retaining the servant of another And by them the retainer without being testimonial which is an offence against that Law is after the years of reteiner expired For so are the words of the Statute But they said that the Information was naught because that it does not appear that the Defendant did not retain him out of the Parish where they served before For the Statute says out of the City Town or Parish c. except he have a testimonial And the words secundum formam Statuti will not aid it And in the same Village or City c. The Statute does not require a testimonial because that there it was known c. And for these reasons after here said for the Plaintiff Iudgement was stayed if c. Jennings against Cousins IEnnings brought a Replevin against Cousins who avowes for damage feasant The Plaintiff replies that post captionam ante deliberationem he tendered 3 s. which was a sufficient amends for the Trespasse and the Defendant notwithstanding detained his Cattel contra vadum pleg c. Vpon which they demurred And by the whole Court the Replication is naught For Pilkintons Case was agreed to be good Law that the tender ought to be before pounding but any time before the impounding it is sufficient But here ante deliberationem implies that the Cattel were impounded and it is not shewn in certain that the tender was before And it was agreed in trespass That the Defendant may plead the Trespass to be involuntary and disclaim in the Title without pleading the Statute of 21 Iac. for the Statute is a general Statute Whereupon Iudgement was given for the Defendant Butts against Foster THe Plaintiff in an Action upon the Case the Plaintiff declared That whereas he was a man of good fame carriage and behaviour and free from all blot or stain Yet the Defendant with purpose to draw his life in Question and traduce him amongst his Neighbours in presentia multorum c. crimen felonae ei imposuit ea occasione illum arrestari causavit et per spatium duarum dierum in custodia detineri coram Iohanni Pettyman uno Justic ad pacem c. duci procuravit nequisfime prosecutus est c. The Defendant pleads not guilty which was found for the Plaintiff And Hitcham moved in arrest of Iudgement that the Action would not lie And of that opinion was Hutton because that he did not proceed to indictment For there an Action of that lies in the nature of a Conspiracy But if an Action should lie here it would be a mischievous Case for by that every man would be deterred to question any person for felony And it was said by Hutton If one said You have broken the Peace and I will cause you to be arrested and procures a Warrant from a Iustice of Peace by which he is arrested No Action here will lye But Berkley on the other side said to the contrary and of that Opinion was Richardson Chief Iustice that the Action will well lye And by Richardson The Defendant ought to have justified that there was a Felony done and that he suspected him c. But he pleads not guilty And it does not appear by the Declaration what was done with the Plaintiff after he was brought to the Iustice of Peace and by that it shall be implyed that he was dismissed upon his examination And here the Plaintiff was imprisoned and carried before a Iustice of Peace which is an act done as well as in the case where there is an Indictment And an Attourney of the Court cited one Danvers and Webly's Case In that very case it was adjudged that the Action lay But it was adjourned to another day Champues Case OUnson makes his will gives 200 l. to Tho. Champues son of Jeremie Champues Also to other Children of Ieremy 20 l. a piece to be paid at their several marriages or ages of 21 years And after wills that his Executor should enter into bond to the several parents to pay the several Legacies to the several Children at the ages of 21 years or their marriages And his Executor after his death gave an Obligation to Jeremy Champues to pay the 200 l to Thomas at his full age or marriage But in the Spiritual Court afterwards upon libell it was ordered that he pay the legacies presently Thomas being under age of tender years And for that Henden moved for a prohibition Richardson although the sute for a Legacy be properly in the Spiritual Court yet if there be an Obligation given for the payment of it it is not turned to a duty in the Common Law and then it is not tryable there This is one reason why a prohibition shall be granted Secondly another reason is because that they sentenced the payment of the Legacy against the Will and against Law and the Obligation here will not alter the case for it is given to another person not to the Legatee and then the Legatee notwithstanding the Obligation may sue in the spiritual Court But by Richardson it is all one for here the Will orders the Obligation to be made Which Hutton changing opinion and Harvey agréed For now because the Obligation is given if the sentence shall be given the party is liable to the Obligation also to perform that And by Richardson it seemed that the clause in the will of the Obligation to be entered into by the Executor to pay at the marriage or 21 years of age the several Legacies c. extends to the first Legacy of 200 l. to Thomas although it be coupled to the last Legacy which should be by a new and several Item And by that clause the intention of the Testator appears that the 200 l. which is given generally and no time of payment named It shall not be paid until marriage of 21 years of age And a prohibition was commanded to be granted NOte It was said by Richardson chief Iustice If a man had a way over the Land of another for his Cattel and upon the way he scares his cattel so that they run out of the way upon the land of the owner and the party who drives the Cattel freshly pursues them c. That in Trespasse he who had the way might plead this special matter in justification Green against Brouker and Greenstead IN Trover and reversion the Plaintiff declares That whereas he was possessed of a bag of hops and a bag of flax to the value of c. And that the Defendant found them and the third day of October converted them And the Defendants plead that Sandwich is an antient Village and that the custom of forrain attachment is used there as in London and that these goods were lost upon default in November and traverses absque hoc that they were guilty of any conversion in October Pasc 7 Car. Com. Banc. or any other time or day than the times before which are
by subtile and false means thou hast been the death of 100 men For before verdict against them and the words were that he was their death by false verdict As to the Bar. That is naught it appears by the Bar that the Defendant was not called to answer the Articles aforesaid For he said the Plaintiff would not proceed upon them Then the Plaintiff might be Iudge witness and party and not oppress me c. And it is not Iustice for one Iustice of Peace to refuse to proceed As here If Articles be given to him the Witnesses perhaps are not ready and although he request the Plaintiff to proceed it is not the Office of a Iustice of peace to promote a Cause For the words continue he justifies scribi fecit And that is no justification to contrive which is a word well known and apt to signifie the framing or inventing of Articles c. And the words are in the Declaration and did then oppress me And there is nothing answered to then or justified to it Pasc 24 Kings Bench Actions for words in London and the Defendant justifies the words in S. the Plaintiff demurred and had Iudgement M. 27 Eliz. Kings Bench. An Action for calling the Plaintiff Thief The Defendant pleads the Plaintiff guilty in 3 several Felonies And issue was taken de injuria sua propria absque aliqua tali causa And the Plaintiff was found guilty of two Felonies but not of the third And it was adjudged for the Plaintiff because he failed of his tali causa upon which he concludes c. Bramston at an other day on the contrary And said that the Declaration is not good First it must appear plainly that the Plaintiff was a Iustice of Peace at the time of the speaking of the words and implication will not serve I agree that necessary intendment shall be sufficient And if there might be other intendment it is not sufficient 13 Eliz. Dyer 304. Mich. 20 Jac. Kings Bench. Arundel Plaintiff Mead and Harvey Defendants in an Ejectione firmae brought upon a Lease made for 5 years if a Woman should so long live And after verdict for the Plaintiff It was moved that the Declaration is not good Because that it was not averred that the Woman was living at the time of the Ejectment But it was adjudged that the words virtute cujus he was possessed and termino nondam finito he was ejected supplies that Dyer 254. Debt upon a Lease for years rendring rent the Plaintiff declars upon the lease by him made to A. who devises it to the Defendant and he enters And it was objected that the Declaration was naught because that he does not shew the assent of the Executors and it is not said virtute Legationum c. But that he entred and that may be by any other Title and for that naught And in our Case that he was a Iustice of Peace many years before and at the time of the speaking And the words premisor non ignorant the Defendant intending to remove him c. does not aid it For it might be meant when he was not a Iustice of Peace It is not but by argument that he was then a Iustice of Peace Secondly The second Objection The second words are not laid to be spoken of Roberti Hitcham aforesaid It is to be observed that the words And he did then c. be distinguished in time For it is postea ad tunc et ibidem By which it ought to be meant spoken at another time of the same day and then all the subsequent words not actionable And it is not sufficient as it was objected that he was a Iustice of Peace when the Injuries were supposed to be done There are two reasons why a Iustice of Peace shall have his Action for words First That if the words be true they expose him to punishment or pain and either of them is sufficient cause to make the words actionable And when the words are such that they do not expose the party to punishment but only discredit him in his profession and make him subject to be removed they are not actionable unless spoken at the time that he is a Iustice of Peace And here the words are of such nature But words which expose him to punishment for a misdemeanour when he was a Iustice of Peace are actionable although spoken after he was removed Secondly If the Declaration was defective in substance for want of a precise shewing that he was a Iustice of Peace at the time Nothing in the Bar will help it But defect in circumstance may be so aided scil by the Bar as time or place failing in the Bar may be supplied by the Bar. 6 E. 4.16.6 E. 4.2.7 Rep. 24. Buts Case Mi. 37.38 Eliz. Badcop against Atkins Thy Father hath stollen six sheep It was moved in arrest of Iudgement Because it was not shewn in the Declaration that the words were spoken to the Son or in his presence of his Father the Plaintiff And as to that it ought to be intended For it is not sense to say thy Father to any but the Son Secondly the Defendant admitted it in his Bar. But resolved by the whole Court it is not necessarily implyed that they were spoken to the Son And then it was agréed by all that the Declaration was defective in substance and is not aided by any admittance in the Bar. Thirdly The third Exception here is there wants an Innuendo to make the Declaration good where the place is necessary to make the words actionable there ought to be an Innuendo for the place c. Barham did burn by Barn there no Innuendo will make the words actionable But if there be a Communication of the Plaintiffs Barn and that it was full of Corn there with an Innuendo horreum praedict will serve H. 37 Eliz. Banc. Roy rot 334. Thou art a Thief thou hast stollen half an acre of my Corn Innuendo half an acre of Corn severed Adjudged that the Innuendo does not serve So for Slander of title Entties fol. 36. A. was seised of the Mannor of S. and there was a Communication of that Mannor of S. And the Defendant said I have enough in my Study to make I. S. Heir to the Mannor of I. S. Innuendo manet praedict de S. It is sufficient Secondly The words are not actionable Witnesse Iudge and party is not a scandal without a violent construction of the words To say he did oppresse me That of a Iustice of Peace without more is hard to maintain an action for it does not appear that he was damnified And words of themselves which are actionable joyned with others are not sometimes actionable If one says of a Lawyer he did reveal the secrets of my Case that is not actionable for he might reveal it to a Iudge But if he said Goe not to such a one he did reveal the secrets of my case that is actionable Suegos case in the book
afterwards at another time he spoke these words of him That he was a Common Barrettor and a Villain and he would make him lose his practice And upon not guilty pleaded it was found that the Defendant spoke thâ—se words Thou art a Common Barrettor and a Judas and a Promoter But not the other words And 50 l. dammages was given to the Plaintiff Vpon which Ayliff moved in arrest of Iudgement because the words were too general And if they had béen spoken of another person they would not lye Hil. 30 Jac. Hawk against Moulton I will not leave thee any thing thou art a common Barrettor And there was demurrer joyned upon the Declaration but no Iudgement The words are here found without relation to his profession But if the last words had béen found it would have been questionable Mich. 41 Eliz. Hather an Attorney brought an action for these words Thou art a Flagging Jack and a Cousener and wouldst have cousened me And adjudged not actionable Because it does not appear that they were spoken with relation to his profession But Hitcham Barkley and Heidley of the other side And that the words were actionable being spoken of an Attorney scil to say he is a Common Barrettor For although there is a doubt if it be spoken of a Common person Yet these are scandalous to an Attorney for no man now will retain him in his Business If one had said of an Attorney That he is a Common stirrer up of Sutes and a disturber of the peace and so a mover of unjust actions without doubt it had been actionable And a common Barrettor comprehend aâ—l that Hil. 8. It was doubtfull whether a Thief were actionable without alleging when and what he had stoln But it was adjudged actionable For Thief intimates that he had done all that which might make him a Thief And so Banckrupt to a Merchant A Common Barrettor in 8 Coment is said to be a Common mover of strifes and there it is said that he ought to be fined and imprisoned if he be convicted Westminster 2. cap. 32. There it is ordained that a Sheriff shall not permit a Barrettor to remain in the County much less this Court will not permit him to be an Attorney For it is that an Attorney ought to be discréet and of honest behaviour 4 H. 4. cap. 18. 3 Jac. cap. 7. They ought to be men of sufficiency and honest disposition These words touch him in his honesty and disposition An Attorney ought to be a man of good conscience 20 E. 4. 9. There it is said that if a Clyent will put in a Plea which the Attorney thinks in his Conscience is not true He may plead non sum informatus and disceit does not lye against him then if the words should be true he touches him in his profession and he might never more be an Attorney In Birchleys Case 4 Rep. You are a corrupt man These are smaller words and more general yet actionable Yet such words make a man to mistrust him and trust next skil is most requisite in an Attorney 14 Jac. Com. Banc. Rot. 1753. Small an Attorney against Moon He is a forgeing Knave adjudged actionable yet to a common person they shall not be accomptable and the case before Distrey an Attorney brought an action against Dorrel in the Common Bench for these words Take heed of him for he is the falsest Knave in England and he will cut your Throat And judged actionable and that the words shall be understood false as an Attorney And a Common Barrettor is more infamous than any of these And the word Judas here ought to be accepted according to the usual understanding of it scil for a betrayer And what can be more scandalous to an Attorney than to be a Betrayor of his Clyents For which he prayed Iudgement for the Plaintiff Richardson said It is doubtfull whether the words will bear an action Barrettor is a notorious offender and if he be to be convicted he is to be fined and bound to his good behaviour And it is hard to make a definition of a Common Barrettor but a description may be made that he is a mover of Sutes and contentious in dispositions and practice But whether the words shall have relation to him as Attorney is the Question Birchleys Case A corrupt man This directly relates to his practice so of Cousener But such a thing which ought not to be applyed to him as Attorney is not actionable Common Brabler Swaggerer Breaker of the Peace which Barrettor comprehends being spoken of an Attorney are not actionable For they do not refer to him as Attorney And the Statute cited before of Westminster 2. It is to be intended if he be found to be a Barrettor And then he should be put out of the Court. And here if there had been a communciation of him as an Attorney then it would be actionable But it ought to be laid habens Collequium of him as Attorney For then of necessity it ought to be understood of his Office And so also the words Trust him not he will cut your Throat ought to be understood of him as Attorney he will cut the throat of your Cause Hutton and Harvey on the contrary And said the words here are as well applicable to his profession as if it had béen found that there was a Colloquium of him as Attorney For it is laid that he was an Attorney and that he lived by that profession and that the Defendant maliciously to hinder him in this profession spoke these words It hath been said what a Common Barrettor is and his punishment is appointed by 24 E. 3. Littleton also mentions speaking of Feoffments made to Barrettors scil Quarrellors then being spoken of an Attorney none but quarrelsome men will go to quarrelsome Attorneys For although he deals in Sutes yet his carriage and practice ought to be fair and peaceable And without Question if it be said Thou art a cousening Attorney an Action lies But by Harvey perhaps Cousening generally will not And if of a common person it be said He is convicted of common barretry It will bear an Action And by Hutton to say of an Attorney he is a Recusant convicted it will bear an Action If it be said of a Iudge that he is a Common Barrettor an action lies And if it be actionable for speaking so of a Iudge it is so of an Attorney For he is in an inferiour ranck a Minister of Iustice and he ought to be chosen of the most honest discreet and religious men and these words if true make him incapable of being Attorney here As in Smalls Case before it was held To say of a Bishop he is a Papist will bear an Action For then he cannot hold his Bishoprick If one said of a Merchant he is a poor man is not actionable But if he said he is worth nothing had been questionable Because that it tantamounts to a Banckrupt And by