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A51909
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Actions for slaunder, or, A methodicall collection under certain grounds and heads of what words are actionable in the law and what not a treatise of very great use and consequence to all men, especially in these times wherein actions for slaunder are more common and do much more abound then in times past, and when the malice of men so much increases, well may their tongue want a directory : to which is added awards or arbitrements methodified under severall grounds and heads collected out of our year-books and other private authentick authorities ... / by Jo. March.
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March, John, 1612-1657.
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1647
(1647)
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Wing M571; ESTC R29500
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98,473
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242
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standing for the Stuardship of a Corporation the Defendant said of him that he was an ignorant man the Court in this case inclined that the words were Actionable Snag a Counceller at Law brought an Action against Peter Gray for these words Goe yee to him to be of your counsell he will deceive you he was of Counsell with me and revealed the secrets of my Cause Adjudged the words were actionable because that this cannot be intended of a Lawfull revealing to the Iudge by way of motion before whom it was tried for this were a commendation for him but the words are to be taken as they were spoken that is conjunctim and uno halitu and then his intention appeares contrary for he said before He will deceive you c. Also the Plaintiffe declared that they were spoken Malitiose And these words revealed the secrets c. are to be intended revealed to those from whom they ought to be concealed and every man is to make the best of his cause and therefore secreta sua non sunt revelanda and also the words touch the Plaintiffe in his Art and Science which requiers men of great trust confidence and so the words before being spoken in derogation of the confidence and fidelity of the Plaintiffe are a great slander to him for these causes judgement was given for the Plaintiffe Vpon this case I do conceâ—ve that to say of a Lawyer generally that hee revealed the secrets of his Clyents cause will beare an Action One said of a Doctor of Phisick that he was a Monntebanke an Empericke and a base fellow adjudged the words were Actionable Paine brought an Action upon the case for words and shewed how that he was a Farmer and used to sow his land and to tell the Corne upon it and by this per majorem partem he maintained his Family and that the Defendant said these words of him He keepes a false Bushell by which hee doth cheat and cousen the poore and averres the losse of his custome by the speaking of these words In this case it was moved by Gotbolt Serjeant in Arrest of Judgement that the words were not Actionable because it doth not appeare that the Plaintiffe kept a false Bushell Sâ—ienter knowing it to be false But it was resolved that the words were Actionable for as this case is it must of necessity be taken that hee kept a false Bushell knowing it to bee false for otherwise it could be no coâ—senedge And this case plainly differs from the case where an Action was brought for saying that the Plaintiffe kept false Waites generally without further saying in this case the words were adjudged not Actionable because that it doth not appeare that he used them or knew them to be false The fifte part of that Generall Rule which I have laid downe before and which now I am in course to speake of is this That words spoken in scandall of a mans Title or which tend to a mans disinheritance will beare an Action Henry Mildmay brought an Action against Roger Standish for saying and publishing that certaine Land was lawfully assured to one Iohn Talbot Oliffe his Wife for a 1000. yeares and that they of the interest of the tearme were lawfully possessed whereas in truth there was no such matter and so for slandring of the Estate and Title conveyed to his Wife by certaine Indentures and shewed all in certaine and how hee was prejudiced by the said words he brought the said action The defendant pleaded a Proviso in the same Indentures and the said limitation for 1000 yeares according to the said Proviso as he pretended whereas in trueth the said limitation was void in Law by force of which he saith that the said Oliffe had an interest for a 1000 yeares and so justified the words upon which the plaintiffe demurred adjudged that the action would well lie though that the said Iohn Talbot and Oliffe his wife had such a limitation de facto for a 1000 yeares which occasioned the defendant being unlearned in the lawe so to publish it yet for that he hath taken upon himselfe notice of the lawe and medled in that which did not concerne him and hath affirmed and published that Oliffe had a good estate for a 1000 yeares in slander of the Title of the plaintiffe and to his preiudice for this cause judgment was given for the plaintiffe Sir Thomas Gresham Knight brought an action against Robert Gunsley Clark and shewes how his father was seised of divers Mannors and lands and amongst them of the Mannor of Tittesey which he did by his will amongst other lands devise to Beatrice his wife for life the remainder to the plaintiffe and the heires males of his body begotten and had issue William Grâ—sham his eldest sonne and the plaintiffe the younger and dyed and that William after this death confirmed to Thomas his estate and that Beatrice died and the plaintiffe entred into the said Manour of Tittesey and further shewes that William had issue Elizabeth his heire apparent and that the plaintiffe had a wife and sonnes and daughters and that he had an intent to conveye some of his lands to his wife for her ioynture and some to his sonnes and daughters for their advancement and to exchange parcell with others and to make a lease of another parte but doth not shew to whom and that the defendant premissorum non ignarus in derogation of the Title and estate of the plaintiffe said these words to the plaintiffe As I before said to your Wife I say now that your brother was afoole and never borne to doe himselfe any good for that he could not hould his hands from ratefying and subscribing to his Fathers will bnt yet notwithstanding I have that to shew in my house that if his heire doe not any such Act as hee hath done it shall bring her to inherit Tittesey by which words he saith that hee was hindred in the conveyances aforesaid In this case it was resolved that the Action would not lie first because that the words themselves are not scandalous to the Title of the plaintiffe the words considerable are onely these that he had that in his house c. that shall bring her that is the Daughter and Heire of William to inherit Tittesey which is apparently feasible for the Plaintiffe being Donee in Taile of the guift of his Father the Daughter and Heire of the eldest Brother is inheritable to the Revertion in Fee and so no prejudice to the Plaintiffe to say he hath that which shall bring her to inherit Besides the action will not lie because that he doth not shew any special damnification by the speakeing of these words as that he was upon a sale of these lands to I. S. who by reason of the speaking of these words refused to buy them or the like and in this case here was nothing but a purpose or intent of conveying some of these lands
And Popham Iustice said that there is a difference when a man declares his opinion of the Title of another to land this is nothing and he shall not be punished for it but if he doth so publish it that it comes to the hearing of any one that intended to buy the Land in such case an Action lies but he must shew specially in his Count in what he was damnified otherwise the Action will not lie Banister brought an Action against Banister for that the Defendant said of the Plaintiffe being Sonne and Heire to his Father that he was a Bastard resolved that the Action would lie for this tends to his disinherision of the Land which discends to him from his Father But in this case it was resolved that if the Defendant pretend that the plaintiffe was a Bastard and that he himselfe was next heire there no Action lies So if a man say that another hath noe right to land an Action lies but if a Counseller say that his Client hath the better right this will not beare an Action Mich. 3. Jac. in the Kings Bench per Curiam if one say to me that I am a Bastard if I have Land by discent I shall have an Action upon the case and thought that I have Land by discent and this tends to my disinheritance if I sue in Court Christian for it a Prohibition lies because that the tryall there may be to my disinheritance And if one say to another that hee is base borne an action will not lie for the words shall be taken in meliori sensu And if one say to his Sonne that he is a Bastard or a Leaper hee shal not have an action neither in Court Christian nor at Common Law Sir Gilbert Gerrard brought an action against Mary Dickinson and declares how that he was seised of certaine lands in Fee and that hee was in communication to demise them to Ralph Egerton fot 22. yeares for 200. l. Fine and a 100. l. rent per annum and that the Defendant premissorum non ignara said I have a Lease of the Mannor and Castle of H. which was the same lands for ninety yeares and shewed and published it c. by reason of which words he saith the said Ralph Egerton did not proceed to accept the Lease c. In this case it was resolved that no Action would lie for the said words though they were false because that the Defendant pretended an interest in the said land So if the Defendant had affirmed and published that the Plaintiffe had not any right to the said Land but that she her selfe had right to it in this case because that the Defendant pretends title to it though that in truth shee hath not any yet no Action lies For if in such case an Action should lie how could any one make claime or title to any land or commence any suit or seeke advise and Counsell but hee should be subject to an Action which would be very inconvenient Agreeing with these cases in 2. E. 4. and 15. E. 4. it is resolved that no action upon the case lies against one for publishing another to be his Villeine The sixt part of that generall Rule which I have laid downe before and am now to speake of is this That scandalous words which tend to the hinderance or losse of a mans advancement or preferrement or which cause any particular damage will beare an Action Anne Davies brought an Action against Gardiner for these words spoken to one B. a Suiter to the Plaintiffe and with whom a marriage wss almost ' concluded I know Davies Daughter well shee did dwell in Cheape side and a Grocer did get her with Childe c. and shee saith that by reason of the speaking of these words the said B. utterly refused to take her to Wife so that thereby she lost her advancement c. adjudged that the Action would lie because that if shee had a Bastard she was punishable by the Statute of 18. of the Queene cap. 3. But it was in this case further resolved that if the defendant had charged the Plaintiffe with bare incontinency only yet the Action would have laine by reason that by the said slander shee was defeated of her advancement in Marriage And it was in this case likewise resolved that if a Divine be to bee presented to a Benefice and one to defeat him of it saith to the Patron that he is a Heretique or a Bastard or that he is excommunicated by which the Patron refuses to present him as he well might if those imputations were true and he loses his preferrement that in this case an Action will lie Dame Morrison Widdow brought an Action against William Cade Esquier and decâ—ares that shee was of good fame c. And that Henry Earle of Kent was in speech and communication with her for marriage the Defendant premissorum non ignarus said these words Arscot hath reported that hee had the use of the Lady Morrisons body at his pleasure ubi reverâ— Aâ—scot never reported it and alledged that the Earle of Kent upon the hearing of the words surceased his suit by which she lost her advancement c. upon not guilty pleaded it was found for the Plaintiffe in this case it was resolved that though the words charge the Plaintiffe with bare incontinency only which is an offence Ecclesiasticall and not civill nor punishable by our Law yet because of the temporall damage viz. the losse of her advancement in marriage the Action would well lie which agrees with the judgement in An Davies case Sanderson and Rudds case cited before the Plaintiffe being a Lawyer stood for the Stewâ—râ—â—ship of a Corporation and the Corporation being assembled to elect a Steward the plaintiffe was motioned to them whereupon the Defendant being one of the corporation 〈◊〉 to his Brothers he is an ignoran◠〈◊〉 and not fit for the place and 〈…〉 that by reason of these words they did refuse to elect him Stâ—ward so that he thâ—reby lost his preâ—errement c. the Court in this case inclined that the Action would lie And now I am falâ—en upon a question very necessary to be resolved and that is What words are Actionable of themselves only and what are not Actionable without alledgeing of a particular damage I take this for a Rule that scandalous words which touch or concerne a man in life liberty or Member or any corporall punishment or which scandall a man in his office or place of trust or in his calling or function by which he gaines his living or which charge him with any great infectious disease by reason of which hee ought to seperate himselfe or to be seperated by the Law from the society of Men all such words will beare an Action without averring or alledging of any particular damage by the speaking of them Yet I do not deny but that it is best to alledge a particular damage if the