words spoken which such a mans life which are by way of interrogation or by way of hearesay or relatiâ—n or lastly by way of negation only and yet will beare an Action It was said at the Kings Bench Barre which I heard and observed that it had bin adjudged in this Court in one Appletons case that where a man said to another where is my Peece thou stoâ—lest from me that these words were Actionable And Iones Iustice then said that he remembred this case to be adjudged A. said that B. told him that C. stole a Horse but he did not beleeve him that these words with an averrement that B. did not say any such thing to A. were actionable Agreeing with this case is the Lady Morrisons case Widdow who brought an action for words against VVilliam Câ—de Esquier and declares that she was of good fame c. and that Henry Earle of Kent was in speech and communication with her concerning Marriage the Defendant preâ—â—issorum non ignarus said these words Arsoot hath reported that he hath had the use of the Lady Morrisons body at his pleasure ubi revera Arscot did never report it and alledges that the Earle of Kent upon the hearing of these words surceased his suit by which she lost her advancement c. adjudged that the words were Actionable though spoken upon the report of another for otherwise a man might malitiously raise slanderous Reports of another and should never bee punished for it But in this case Tanfield Iustice said that if it had beene expressely alledged that in truth it was so reported by Arscot then an action would not lie against Cade for saying that Arscot reported it because it is true that he did so And Bartley Iustice said that an action had bin brought for these words You are no Theefe In which there was an averrement which implied an affirmative and agreed to be Actionable and Appletons case was then agreed for Law A. said to Is. hast thou beene at London to change the money thou stollest from me In this case it was objected that these words were not actionable because that they are spoken onely by way of interrogation and are no direct affirmative But Iones and Barily Iustices the others being absent both said that the words were actionable for the first words Hast thou been at London c. are the only words of interrogation and the subsequent words viz. The mony thou stollest from mee is a positive affirmation and Baâ—tley Iust. then said that it had beene oftentimes adjudged that words of interrogation should be taken as a direct affirmation which Iones Just. also agreed and further said that this case had bin adjudged One said to another I dreamt this night that you stole a horse these words were adjudged actionable And he said that if these and the like words should not beare an action a man might bee as abusive as he pleased and by such subtill words as these always avoyd an action And how I will put you a case or two where words which imply an affirmative shall be actionable One said of another he would prove he had stollen his books In this case the opinion of the Court was that the words were actionable because they imply an affirmative and are as much as if hee had said that he had stollen his Books And so if I will say of another that I will bring him before a Justice of Peace for I will prove that he hath stollen c. though the first words are not actionable yet the last are Whitaerâ—s brought an action against Lavington for these words I will prove that Whytacre is for sworne and that ten men can justifie and I could prove him perjured if I would adjudged that the words were actionable for that it is a great slander to be reported that it is in the power of any one to prove one perjured and it is as a direct affirmance It will be proved by many vehement presumptions that Welby was a plotter and contriver of Thomas Powels death because hee would not sell his Land to the said Welby adjudged the words were actionable And now I have shewne you the affirmative part where words which touch or concerne a mans life shall bee actionable I shall now shew unto you the negative part where words in such case shall not be actionable Words that touch or concern a mans life may not be actionable in these cases Where they are too generall or not positively affirmative or of a double or indifferent meaning or doubtefull in sence or for that they are incertaine in themselves or the person of whom they are spoken or else by reason of the subsequent qualification of the words or because they doe not import an Act but an intent or inclination only to it or for that they are impossible or lastly because it doth appeare that the speaking of them could be no dammage to the plaâ—ntiffe in all these cases the words will not be actionable And first words that are too generall or not positively affirmative will not bee actionable To say of a man that he deserves to be hanged adjudged not actionable because they are too generall for that hee doth not shew any thing that hee hath done to deserve it and bâ— Yelverton Iustice hee may deserve it for unnaturall using of his Parents and the like where he shall not bee punished by the Law Cooke lib. 4. f. 15. b. Yeomans and Hexts case for my ground in Allerton Hext seekes my life adjudged not actionable because seeking his life is to generall for which there is no punishment So if I say of another that it is in my power to hang him adjudged not actionable in Prâ—dham and Tuckers case cited before because the words are too generall Iames Steward brought an action against Bâ—shop for saying of him that hee waâ— in Warwicke Gaoâ—e for stealing of a Mare and other Beasts and adjudged that the words would not beare an action because they doe not affirme directly that he did steale them as if he had said that he stole them and was in Goale for it but onely make report of his imprisonment and the supposed reason of it and it may very well be that the Warrant of Mittimus was for stealing expressely as is the common forme of making of the Kalender of the Prisoners for the Justices of Assize and the like Georg Blaâ—d brought an action against A. B. for saying that he was Indicted for Felony at such a Sessions it was said that it was questioned whether an action would lie because an Indictment is but a surmise But I conceave that it is without question that no action wilâ— lie in such case because that to say a man was indicted of Felony is no more then to say hee was impeached or accused for Felony which an honest man may bee and is no positive affirmation
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 Methodised under severall Grounds and Heads collected out of our Year-Books and other pirvate authentick Authorities wherein is principally shewed what Arbitrements are good in Law and what not A learning of no lesse use and consequence to all men then the former for that submissions to Arbitrements were never more in use then in these times And this learning well observed would avoid multitudes of suits and contentions which daily arise through the defects of Arbitrements By JO. MARCH of Grayes-Inne Barister LONDON Printed by F. L. for M. Walbank and R. Best and are to be sold at Grayes-Inne-Gate 1647. Actions for Slaunder OR A methodicall Collection under certaine Grounds and heads of what words are actionable in the Law and what not THE first part of my labour is to shew what words are actionable in the Law and what not In the prosecution of which ti 's not my purpose to run over all the cases that have bin adjudged neither can I if I would my intent is only to lay downe a certaine rule or ground upon which to go which will indeed be as a light to all Cases of this nature and having done so to follow every particular thereof with the most pertinent cases that I finde adjudged in the Law which done there will be very few cases of consequence hitherto adjudged omitted But before I enter upon this part of my labour give me leave to premise this that I do not undertake this work with an intent â—o incourage men in giving â—ll and unworthy language or to teacâ—â— them a lawlesse Dyalect but as my Lord Cook speakes to direct and instruct them rightly to manage that which though but a little member proves often the greatest good or the greatest evill to most men And withall to deterre men from words which are but winde as hee further speakes which subject men to actions in which dammages and costs are to bee recovered which usually trench to the great hinderance and impoverishment of the speakers And in truth that which caused mee to enter upon this labour was the frequency of these actions for I may with confidence affirme that they doe at this day bring as much Gryse to the Mill if not more then any one branch of the Law whatsoever And it were to bee wished and certainly never in a better time then now that the greatest part of them were suppressed that words only of brangle heate and choler might not he so much as mentioned in those high and honourable Courts of Justice For I professe for my part I judge of them as a great dishonour to the Law and the professors thereof especially when I consider that they are used only as instruments to promote the malice and vent the spleene of private jarres and discontents amongst men The Apostle calling in question the wisdome of men for going to Law one with another is not to bee intended as the learned observe upon that place generally to condemne all legall prosecutions be ause a man may without question maintaine his just rights priviledges bâ— Law but onely to reprehend the folly of such who upon every slight and triviail occasion like many in these contention times care not to intayle a suite upon them and their posterity though in Fine they docke their owne intayles without recovery and justly may actions for words come within the compasse of the Apostles exprobration I doe not condemne all actions for words neither for it is but equall that where a mans life liveliehood or reputation which is dearer to him then the former is much endangered by scandalous words that in such case the offender should bee inforced by action to make compensation But that a man should flee to the Law out of malice and make the Courts of Justice maintainers of every small and vaine brabble this seemes to me utterly unlawfull and intolerable amongst Christians I cannot but take notice of that which Wray Chiefe Iustice saith in Cookes 4th Booke That though slanders and false imputations are to be repressed because that oftentimes a verbis ad verbera perventum est which â—confes tends much to the disturbance of the common peace and therefore by all meanes possible to bee prevented Yet he saith that the Judges have resolved that actions for scandalls should not bee maintained by any strained construction or argument nor any favour extended for supportation of them And he addes the reason of it because they doe abound more in these dayes then in times past and the intemperance and malice of men increases Et malitijs hominum est obviandum and further addes that in our old bookes actions for scandalls are very rare and such as are brought are for words of eminent slander and of great importance I is true that the Law doth in some cases discountenance these actions and therefore we have a rule that words if they admit of a double construction shall alwayes be taken in the best sence for him that speakes them as I shall make evident hereafter because usually they are spoken in chollar and passion This I say the Law doth where the words are amphibolus but if the words are clearely actionable in such case the Law will never ayde a man though they were spoken in the distemper of passion which seemeth very hard and unreasonable Nay which is yet more extreame if counsell shall but informe the Jury of the quality and reputation of the Plaintiffe and also make them understand if they be capable the true sence and meaning of the words and the hainousnes of them such words against such a person this inforced and prest on by eminent Councell shall make a Jury give a hundred pounds dammages whereas it doth not appeare to them that the Plaintiffe by the speaking of the words was prejudiced one farthing a case of very great extremity and worthy of reliefe And can any man deny but that this is a countenancing of these frivolous Actions But give mee leave Reader and I will in a word informe you how this may be remedied and though the malice of men cannot bee stopped yet their Actions may Let no words be actionable which do appeare to have beene spoken in chollar and passion or if actionable yet let the Plaintiffe recover no more in damage then hee can upon Oath make appeare that hee was actually damnified by the speaking of them and if this were provided by Act of Parliament our new bookes would bee as little infested with these frivolous actions as the old ones are
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