CHAP. I. Of an Action of the Case in general. Action of the Case.

AN Action of the Case, is a Writ brought against one What it is Sect. 1. for an offence done without force, as for not kéeping promise, for breaking Trust, for slanderous words, or the like Misdemeanour: And is called an Action of the Case, because the whole Cause or Case, so much as is in the Declaration (save only the time and place) is set down in the Writ: And there is no other Action given in the Case, save only in some few Cases where the Plaintiff hath his choice to bring this or some other Action.

This Action is sometimes about Defamations or Slanders; and this may How many kinds of it there be be by words spoken. Or it may be by a déed done. By words spoken; it is either for words spoken against the Title of a mans Land, or for words spoken against the man himself. This Action is in some Cases for other things. And so it is also either for not doing what the man ought to do, or it is for doing of something a man should not do, or it is for doing of something otherwise than hée should have done it. This for the not doing of what a man ought to do, is either upon his own undertaking to do it; or it is upon the requiring of Law, without any personal undertaking of his own.

The Action for Defamation is either for a Defamation by words, where one speaketh any thing to the prejudice of the Life, Estate, or Name of another, or for a Defamation by déed, where one doth any thing that will vehemently imply an Accusation of some great Crime against another. This also is either of great men, called Scandalum Magnatum, or it is of Scandalum Magnatum. ordinary men. The Action of the Case for déeds, is either upon an Assump­sit, or Promise, or upon a Nusance, upon a Trover and Conversion, upon [Page 2] a Deceit, upon a Conspiracy, or it is upon some other Non-feasance, or Mis-feasance. Amongst Slanders and Defamations, also some of them For Words and Acts of Slander. tend to the disgrace of the person of another: Some to the disgrace of the Title of his Land. Those against the person also, do some of them tend to the peril of his life; some to the prejudice of a man in his Livelihood and E­state, and some to his reproach in his Name only. Coo. 4. 92, &c. Dyer. 8. 72.

A Defamation may be also by déeds, as by the doing of something against a man, which will be Tant-amount, or more than a Slander by words, as to call a man in question, and prosecute a man in a course of Justice, for a supposed Crime, whereof he is innocent, bringing of an Action, &c. Bulst. 3. Part. 272. Coo. 4. 14, 15. If the Lord shall please to give time and strength, wée may give you an account of the Law touching this subject in both, the one after the other.

Some Defamations also may be said to be temporal or civil; as to call one Traitor, Murderer, Théef, Bankrupt, and the like.

Some spiritual, as to call one Adulterer, Baud, Whore, Heretick, and the like.

And as to those Slanders called Spiritual, no Action will lye in a Civil Sect. 2. Court, unless the party slandered have some special loss by them, but the proper place for relief for these is in the Spiritual Court; And there are other Slanders that may be said to be Civil or Temporal. And for these the proper remedy is to be had in the Civil or Temporal Courts, as for cal­ling Traitor, Théef, Murderer, Bankrupt, and the like. And yet in some cases hée may bring his Action at the Common Law for that which hée may also have his Remedy in the Ecclesiastical Court; for the Common Law is to be preferred where they stand in equal degrée in respect of the matter to be tryed. Mich. 23. Car. 1. B. R. Styles Register.

Wée might here have distinguished Slanders by Publick, and Private, Finches Law, 185. 43. Aff. Pl. 381. Jenk. Cent. 1. Case 93. or Personal: For there is a Slander of the State, as to report any thing about the Affairs thereof that is false, and may be to the prejudice of it, as that the Coin is abased, the Wooll transported, or the like. And this is pu­nishable upon Indictment by Fine and Imprisonment. But wée shall not have to do with this at all. But with private and personal Defamations, which are either of eminent, or common persons.

There are some Slanders by words that are Actionable, albeit the party of whom the words are spoken have no special loss by them, and such generally are all the Slanders that bring a man in question for his life, as to call a man Traitor, Murderer, Théef, or the like. And some others, for speaking of things, that if they were true, hée might be fined or imprisoned for them.

And there are other Slanders that are not Actionable, but in case where the party slandered doth suffer some special loss by them; As to call one Whore, Bastard Whore, Bastard, or the like. Croo. 1. 99, 100.

There are also some slanderous words, that being spoken of any person whatsoever are Actionable, as to call a man Traitor, or Théef, or the like. Treason, Theft. And there are others that will not bear Action, unless they be spoken of some certain men, as Merchants, Trades-men, or the like; as to call a man Bank­rupt, or the like. Goldsb. 126. 84. Croo. 1. 99, 100.

Wée shall begin with Actions about words, the which wée shall dispatch in this péece, and then shall speak to Actions about déeds: And in our labour about words, to open the Law herein, wée shall first lay down some general Rules about all kind of Slanders, and the Slanders of all kinds of men, and then descend to particulars.

CHAP. II. Some general things of Actions of the Case for Words.

WEE shall first give you in sundry Rules, and a few Cases, the Sect. 1. general Doctrine of Actions of the Case touching Slanders; And these like the veins in the body run through the body of all the Cases here­after following, wherein the words are, or are not actionable, as they fall within these Rules. And then wée shall give you the Cases themselves as examples answering to these Rules. The Rules are these.

1. That all scandalous words which touch or concern a man in his life, as to say hée is a Traitor, Théef, or the like; or which touch him in his Liberty, as heretofore to have said of one, Hée was Villain to J. S. or which concern a man in member in any corporal punishment, as to say, A man hath stoln six-pence (which is Petit Larceny) or the like: or which Theft. scandal a man in his office, or place of Trust, as to say to a Iudge or Iu­stice of Peace, Hée is a corrupt Iudge or Iustice of Peace, or the like; Or Corruption in an office. Deceit in Trade which slander a man in his Calling or Trade, by whith hée gets his living, as to say to an Attorney, You are a cheating Knave, of a Trades-man, that lives by buying and selling, hée is a Bankrupt, or the like; or which tend to the losse of a mans preferment, as to say to a man about to be preferred to a Benefice, That hée is an Heretick; or of a woman like to have a Hus­band, Heretick. Whore. Infectious Dis­ease. that shée is a Whore; or the like, if by this means they lose their pre­ferment; or which charge a man to have any dangerous disease, by reason whereof hée ought to separate himself, or be separated by the Law from the society of men, as to say a man hath the French-Pox: or the Plague, or the like, or which tend to the slandering of a mans Title, as to say, Hée hath no Estate in 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. [Page 4] 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.

[Page] [Page] [Page 5] 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 her husbands, adjudged. 9. Jac. Croo. Rep. 2. 60.

14. That the slander that doth concern a mans Life, Liberty, Member, or any corporal punishment, his Office, Trust, Calling, or the Charging with a foul disease, to cause a separation; these Actions are maintainable without any Averment in the Action of any particular damage that came Averment. to the Plaintiff by it, but it is otherwise in the rest of the Slanders; For if a man speak against another, words that are not in themselves Actionable, Rogue. Knave. Couzener. Fornicator. as that he is a Rogue, Knave, Couzener, Fornicator, or the like; for these words hée can bring no Action without Averment of some special loss hée hath sustained by them.

15. That the Quality of the person of whom the words are spoken, doth The quality of the person of whom they are spoken consi­derable. Papistry. much tend to the maintainance of the Action. And therefore some words that in themselves are no Actionable; relating to some persons, may bée Actionable. So that albeit it will not kear an Action to call an ordinary man Papist, yet it will bear an Action to call the Archbishop of Canterbu­ry Papist. So albeit it will not bear an Action to say of an ordinary man, Hee is no true Subject; yet to say so of a Privy Counsellor, Iustice of Peace, Sheriff of a County, Captain of a Troop of Horse, about the King, may be Actionable. As it is reported in Leonards Rep. 335. So to say to one of the Privy Counsel, Hee is an untrue man to the King. Trin. 32. Eliz. B. R. Walgroves Case. And yet it hath béen adjudged not to lye for this, said of a Knight, and one of the Gentlemen of the Kings Privy Cham­ber, That he was a couzening Knave, and lived by couzenage. In Godb. Couzening. Rep. 284. Croo. 2. 427. In Leonards Rep. 336.

16. That to charge a man with any Crime of Felony after a General, After a pardon. or special Pardon, albeit the Defendant know not of the Pardon, will bear an Action. So to charge a man with a Crime after hée hath béen indicted for it, and acquitted of it upon his trial on the Indictment. In Hobb. Rep. pl. 71. 105. In Owens Rep. 150. Brownl. and Goldsb. Rep. 10. 1. Ed. 3. Corone. 15. 2. Ed. 3. Corone 18.

17. That words that in, and of themselves, and in their own nature are Words not Actionable in themselves, that are actionable by circumstan­ces and acci­dents. Treason. Felony. not Actionable, yet relating to some Persons in their Offices, Callings, and Conditions of life: Or by reason of some Accidents happening by them, they may be Actionable. As if one by doubtful and uncertain words (that are not Actionable) shall cast a charge of Treason, or Felony, or the like, and any special loss come to him of whom the words are spoken by them; these words may be Actionable, Coo, 4. 15, 17, 20. Mich. 19. Jac. B. R. Harrisons Case. In March. Rep. 114, 115. In Brownl. Rep. 1. 11, 12. Croo. 2. 484. In Brownl. 2. part. 166.

18. That if a man speak many slanderous words together of another, hée Action brought for part of the words. of whom they are spoken, may have this Action for any part of the words a­lone, and omit the rest of the words. In Owens Rep. 30.

19. That there are some words, uncertain and unknown, and of no use in Words action­able in some Countries only. some Countries, that may be certain and known in other Countries, and be equivalent to slanderous words in another Country, and so be Action­able, being spoken there. And therefore for any such words spoken in the Country where they are used and known; or spoken elsewhere, if it bee be­fore [Page 6] them that understand them, they may bee Actionable. So to use any of these words, Thou art mainsworn; or, thou art an out-putter; or, thou art a healer of Felons; or, thou hast strained my Mare; or that thou (being a Shooemakers Journey-man) wilt cut thy Master out of doore. Every one of these spéeches are actionable in some places. But then Averment. some say, there must be this Averment in the Declaration, that they do carry this sense in the Country where they are spoken. And yet others say it may be proved at the Trial to have this sense. But it is most safe to a­verre it. And thus, to say of one in Devonshire, and thereabouts, Hee is a healer of Fclons; For there it is taken for a hider, or concealer of Felons; Healer of Fe­lons. Mainsworne. where it is said, The healer is as bad as the stealer. So to say of one in some Countries, Hee is mainsworn, where it is taken for, Hee is for­sworn. So to say of one in some Countries, Hee hath strained a Mare, where it is taken for, Hee hath stoln a Mare, or, buggered a Mare. So to Strained a Mare. Outputter. say of a man in Northumberland, Westmerland, and some other places, Hee is an out-putter, where it is taken for a Horse-stealer. So to say of a man in Westmerland, and some places, Hee is a Sheep-Theef, where it is taken for a Stealer of Sheep. So to say of a man in some places that is Sheep theef. servant to a Shoomaker, Thou wilt cut thy Master out of doors, where it is taken for, Thou wilt undo him. So to say of a man in some places, as Cut his Master out of doors. Daffidowndilly in the North Country, Hee is a Daffidowndilly, where it is taken for this, Hee is an Ambodexter: These, and such like words as these, spoken in the places where they are known, will be actionable. But some hold that if they be not spoken in the hearing of some that do understand them, that they are not actionable; And yet this may be a little doubted; For hée that hears them spoken may ask the meaning of them of those that know it. And so the party will be slandered, and have no remedy. Sée for all these things in Brownl. 1. part. 13. Hobb. Rep. 350. 236. 106. 126. 191. 394. Yelverton Rep. 153. Bulstr. 1. part. 146. March. Rep. pl. 2. 17. Bulstr. 2. 146. Coo. 4. 25. Brownl. Rep. 4. 6. In Hetleys Rep. 123. Noys Rep. 98. 133. Bendloes Rep. 186, 187.

20. That where a Defamation is cast upon a man by déed, which is tan­tamount, Slander by Act done. or more than a slander by word; as where a man is maliciously in­dicted for Treason, Felony, or the like; there the party grieved may have this Action; Bulstr. 3. part. 272.

21. That where words are in themselves actionable, as tending to the Infamy, Discredit, and Disgrace, and importing damage to the man of whom they are spoken, there the Action will lye without any Averment of any special loss by them. And so it is held for scandalous words that touch Averment. a man in his Life, Liberty, or Member, or any corporal punishment, or which scandalize a man in his Office, or Place, or Trust, or in his Calling, of Function, by which hée gets his living, or which do charge him with any great infectious disease. All such words will bear an Action, without al­ledging or averring of any particular damage by the speaking of them. But in all other Cases there must be a special damage alledged to be sustained by the Plaintiff, by the speaking of the words. And if that be in the Case, al­most any words that carry any thing in them of a foul aspersion, may bée actionable. Bulst. 1. part. 40. So much of the Rules of Extension.

22. The Rules of Exception or Limitation shall be these.

That actionable words in all cases (especially in cases where they may bring a man in dauger of his life, must have these qualifications and conditions in them.

1. They must be false, for if the thing spoken be true, let the words bée what they will, the party that speaks them may justifie them.

[Page 7] 2. They must be malicious, and purposely; and intentionally to slander and defame, for otherwise notwithstanding they be true, yet will they not be actionable.

3. They must be particular and clear, for if they be so general, as there­by to be ambiguous and doubtful, no Action will lye upon them.

4. They must bée of a simple, single, and known sense; for if they be of an indifferent meaning, no Action will lye upon them.

5. They must be certain, against which there may not be any intendment; for if they be altogether uncertain, either as to the person slandered, or the slander it self, no Action will lye upon them.

6. The words must have in them some matter of weight and substance; for if the things spoken import no substantial matter, no Action will lye upon them.

7. They must be positive, affirmative, and direct, importing some pe­remptory Accusation; for if they import a slander by way of Argument, In­ference, or Implication only, no Action will lye upon them.

8. They must import a thing possible to bée; for if they import a thing simply and apparently impossible, no Action will lye upon them.

9. They must import some Act done; for if they import only an Affe­ction, Inclination, or Intention to do something, and nothing done, no Action will lye upon them.

10. They must carry in them, or cause by occasion of them something of damage and prejudice to him against whom they are spoken; for if it be ap­parent, they neither do, nor will bring any damage to him, no Action will lye upon them.

11. The words all of them spoken together must be actionable; for if some of them only be actionable, and the rest spoken at the same time do qualifie them, and take away the force thereof, no Action will lye upon them.

12. They must be spoken in an extrajudicial way; for if they be spoken in a course of Iustice, and a judicial way, no Action will lye upon them.

13. They must be spoken in the hearing of some body that doth under­stand them; for if they be spoken in another language, which none of them that do hear them understand, no Action will lye upon them.

14. The words, if they charge a man with a crime, must import that the man charged hath notice, or knowledge of the ground or occasion of the crime, or they will not be actionable.

15. They must carry an Import of Slander in them, as they are taken and understood in their vulgar and common sense and acceptance; for if they become scandalous, as they are taken in a forein, strict, and grammatical sense and construction only, this will not bear an Action. For the first of these.

1. The words spoken, and the thing said against him of whom they are The words must be false. Sect. 6. spoken must be false; for the Writ is falso & malitiose, dixit, &c. And so the Action must be laid, or else it is not well laid. For if the words spoken be true, let them be what they will, the defendant in the Action may justifie the speaking of them. But in that case hée must take héed hée do not plead Pleading. not guilty; And if they be malicious, and false, an Action will lye up­on them. Dyer. 236. Broo. 104. Action of the Case. Huttons Rep. 73. Croo. 2. 91.

2. For the second thing; The words spoken must be malicious, and with The words must be malicious. an intent and purpose to prejudice him against whom they are spoken; For the Writ is falso & malitiose, and it must be both false and malitious, o­therwise it is not good, it is therefore in this considerable Quo Animo. The [Page 8] words therefore must be such, as importing something, that if true, may bring the party against whom they are spoken, in danger for his Life, Li­berty, Estate, or Credit, and no good cause can be shewed for the speaking of them. But for the discovery of the malice, these things are to bée known.

1. That where no other Cause can be shewed of the speaking of the words; there the Law will take it to be malicious. That which is chiefly therefore to be considered, is Causa Dicendi. For if a Lawyer shall in the pleading of his Clients cause, innocently, and perti­nently to the cause in hand (which hée must look to) and according to his Instructions, speak such words as may charge a man with a Crime, or bée actionable in another Case; this shall not be taken to be malicious, and there­fore not actionable. And yet if the Lawyer shall speak those words at ano­ther time, or in another place then when and where the Cause is debated; this may be actionable. So where a Preacher in preaching shall recite a History out of a Book, that doth prove false and scandalous; this will not be actionable. So if one advise his friend to forbear the Company of such a one, for that shée hath the Pox, or tell his friend of somewhat that is re­ported of him, and wish him to clear himself of it; In these Cases no Action will lye, for these words. For here the cause, or occasion of the speaking of the words, doth shew, that there was no malicious intent in the speaker when hée spake the words. And yet if one shall make this but a Cloak for his malice in any such Case as this, it will be otherwise. But by these and such like Circumstances, it must be considered, with what mind hée spake the words, and whether there were malice in them, or not. Bulstr. 1. part. 148. Hill. 21. Car. 1. B. R. Stiles Regist. 5. Croo. 2. 91. 339. Trin. 7. Car. 1. B. R. Norman and Simonds Case. Coo. 4. 16. Hobb. Rep. pl. 11. 399. Dyer. 236. Huttons Rep. 73. Dyer. 236. Bustr. 1. part. 148.

3. For the third thing, The words spoken must be clear and perspicu­ous; The words must be clear and perspicuous as, Thou art a Theef, J. S. is a Bankrupt, or, thou hast killed J. S. or, thou was forsworn in the Kings Bench Court, or, in a Court of Record, and the like. And not obscure and ambiguous. And therefore for such like words as these; as to say, I have matter against him, for A. hath found forgery, and can prove it against him; or, I charge him with felony, for Obscure words. Forgery. taking mony out of the pocket of J. S. Thou wast cooped up for forging Writs.

Or, thou didst forswear thy self in the Kings Bench; for this may bée taken in the Prison called the Kings Bench. Or thus, Hee hath but one Perjury. Mannor, and hee hath gotten it by swearing and forswearing; or, thou hast stoln my Apples, or my Corn; for it may be from the Trée, or out of Theft. the Field. No Action will lye for these, and such like words as these. Popham. Rep. 211. Hobb. Rep. pl. 381. 382. Croo. 1. 195. Coo. 4. 15.

4. For the fourth thing; They must be of a simple, single, and univo­cal The words must be of a plain and simple sense, or univo­cal. sense in the vulgar acceptance of them: As, Thou didst burn the Barn of J. S. full of Corn; Or, Thou hast the French-Pox. Yelvertons Rep. 21.

For if they be of a double and indifferent sense, that may be taken one Words of a double sense, or equivocal. way or other; there if the words taken in either sense be actionable, they must néeds give an Action. But if the words will bear a good, and a bad sense, or a worse, and better sense; there if there be nothing in the Case by that which is said with them, and before, or after them, to guide them more to the worser, than to the better sense, they shall be alwaies taken in the better, and not in the worser sense, and so not be liable to Action. For in this the Rule is, verba sunt accipienda in mitiori sensu. And again, Be­nignior [Page 9] sensus in generalibus & dubiis preferendus. It is therefore agréed, Burning a Barn. An infectious disease. Felony. That no Action will lye, for saying of a man, Hee did burn my Barn, for it may be a Barn without Corn; Nor for saying, Hee hath the Pox; for it may be the ordinary, not the French-Pox; Nor for saying, Thou art a Coyner of Gold; for it may be his Trade, and hee may do it by authority; Nor for this, I charge you with Felony, for this may be such a Felony, as for which damages only are recoverable as a Maihm is: Nor for this, Thou Perjury. Invendo. art forsworn, for this may be in ordinary communication, or it may bée in a Court of Iustice, or the like. And no Invendo in any of these Cases will make any such like words that in themselves are not actionable to bée actionable. And yet if in this Case, the Common, Ordinary, and Violent sense of the words in the Import thereof be the worse sense; and there bée no other words spoken with them to turn their sense the other way, there they may be taken in the worser sense, and liable to Action; and therefore it hath béen adiudged to lye for these words, A. hath had the use of her bo­dy; Incontinency. and for these words, A. hath spoken Treason. Huttons Rep. 75. 76. Coo. 4. 20, 21. Godo. Rep. 1. 167, 181, 375. Hobb. Rep. pl. 351. Po­pham. Treason. Rep. 211. Croo. 1. 352.

5. For the fifth thing, That the words that shall maintain an Action The words must be direct and certain as to the person and thing. Sect. 7. Theft. must be so apparent, direct, and certain, that there may be no intendment against them; as J. S. is a Theef; or, your Husband, or, your Wife, or, your Father is a Theef. For if they be altogether uncertain, either as to the person slandered, or as to the slander it self, no Action will lye upon them. And therefore if one say, One that is neer you is a Theef, or, mine enemy is a Theef; or, one of the Sons [or, one of the Servants] of J. S. (who hath many Sons or Servants) is a Theef, or the like; no Action will lye for these words. And so if one say, A. deserves to be hanged; Or, A. Murder. hath taken away money from J. S. or, A. seeks my life; or, A. hath a mind to kill mee; or, A. smells of the murther of J. S. or the like; no Action will lye for any of these words. And no Invendo can in these Ca­ses Invendo. make the words certain and actionable. And yet if there be any thing else spoken in the conference, by which there is a certain description of the person slandered, as where the conference is about such a Son or Ser­vant by name, and therein the party say, Hee is a Theef, or by which the Theft. thing intended by the slander is cleared, this may make the words cer­tain, and so actionable. Coo. 4. 17. Hobb. Rep. p. 382. Croo. 1. 127. Hobb. Rep. pl. 196. Croo. 2. 184, 443. Brownl. 1. part. 2.

For the sixth thing, That the words spoken must have in them some matter of weight and substance; and therefore the Law will not give this Action for every light and trivial spéech, nor for every passionate word or spéech, but there must be some such weighty and substantial matter in the words, that if true, might be perilous, and prejudicial to the party of whom they are spoken. And therefore it is agréed, That this Action will not lye, for any of these following words; Thou art a Villain, Rogue, Var­let, Villain, Rogue. Varlet. Rascal. Knave. Couzener. Cheater. Railer. Miscreant. Hypocrite. Knave, Couzener, Rascal, Cheater, Railer, Miscreant, Hypocrite, or the like. Nor for calling of another, any, or all of these names together. And yet any of these words being joyned with other words that are action­able, may aggravate the slander, and so increase the damages. So to say of another, That hee keeps such a Dogg, that his neighbours Cattel about him cannot go in peace; or, that his Cattel are in every mans ground. For these, and such like words as these, no Action will lye. For in this the Rules are Boni Judicis Interest dirimere lites & Malitiae hominum est obviandum. Coo. 4. 15. Bulstr. 1. part. 40.

For the seventh thing, That the words (especially if they concern a [Page 10] man in his life) must be so particular, positive, affirmative, and direct, that they may import a peremptory Accusation. And not by way of Argument, Inference, or Implication only, for if they so import a slander only, no Action will lye upon them. And therefore it is agréed, that no Action will lye for Felony. words thus spoken; I fear you will be charged with Felony; or, take heed you be not arrested for Felony, or, I doubt whether your words may not be treasonable words; or, thou hast deserved to be hanged for Felony; Treason. or, if thou hadst had thy Right, thou hadst been hanged for Felony before this day; or, I shall call him in question for the murther of J. S. or, I shall arrest him for flat Felony. For these, and such like words as these are, no Felony. Action will lye. Hobb. Rep. pl. 381. 286. Bulstr. 1. part 148. Coo. 4. 15. Popham. Rep. 210.

For the eighth thing, That the thing said by the words, must be a thing that is possible to have béen done. For if it import such a thing done, as is altoge­ther and apparently impossible, no Action will lye upon them. And there­fore it is held, that no Action will lye for saying of another, that hee hath Murther. killed my Wife, for that the words themselves do shew her to be then alive. Coo. 4. 16. So to say to a Brewer, My Mare doth piss as good Beer as thou dost brew, these words in themselves are impossible, and will bear no Action. And yet if the Brewer in his Trade shall suffer any special loss Trade. by them, for this hée may have his Action. Coo. 4. 16. Mich. 15. Jac. B. R. Dicks Case.

For the ninth thing, That the words must import some Act done. For if Not for words importing only an inclination or intention to do a thing. Adjective words. they import only an Inclination, Affection, or Intention to do a thing, no Action will lye upon them. And therefore it is held, That no Action will lye for such like words as these; Hee is a Theevish Knave; or, hee is a Traiterous Knave; or, hee is a seditious Knave. And yet if these, and such like Adjective words, shall import an Act done; as, Hee is a per­jured Knave; or the like; There this Action will lye, Or if they be Theft. such words as do slander a man in his Office, Function, or Profes­sion; as to say of a Judge. Hee is a corrupt Judge; or, of such an Officer, Corruption in an officer. Hee is a corrupt Officer; or, hee is a bribing Knave: Or if they be such words as do slander a man in his Trade; As to say of a Tradesman, Hee is a Bankrupt [or a Bankeruptly] fellow. For all these, and such like Bankerupt. words the Action will lye. And so also it will where the Adjective word is Theft. added to an actionable word; As, Thou art a cunning Theef. And so al­so it will lye where the intent of doing an Act, and the Act done are joyned together. As, Hee would have robbed mee, and did rob mee of my dag­ger. And so also it will lye where the words import that hée is doing of the Act, as where hée saith of one, Hee is ravishing a woman, or, hee is rob­bing a man; Coo. 4. 16, 19. Hobb. Rep. pl. 17. Dyer. 72. Croo. 1. 301. Godb. Rep. 151. Bulstr. 1. part 134, 145, 138, 210.

For the tenth thing, That the words must carry in them, or cause by oc­casion of them something of damage or prejudice to him against whom they That the words must import somewhat of damage to him of whom they are spoken. Sect. 8. Murther. are spoken. For if the thing spoken being true, may not hinder, or hurt him by hazard of his life, or by the infringing of his Liberty, or by the im­pairing of his estate, or by the defamation of his Credit, no Action will lye upon them. And therefore it is agréed, That to charge a man with a Crime by words in another language, that none of the hearers understand, or to charge a man in an Action brought with the killing of a man, where it doth appear by the Record it self, that the party supposed to be killed, is yet alive, is not actionable; for hée neither hath, nor can have damage by it. So to charge a man with a trivial light matter, as that hee hath erected a Cottage against the Law, or hath a Dog that will not suffer his neighbours [Page 11] Cattel to go in peace; these things will not bear Action. Coo. 4. 16. Bulstr. 1. 148. Croo. 1. 350. Hobb. Rep. pl. 11. 236, 145, 164. 154.

For the eleventh thing, That the words all of them spoken together That the words must be taken altogether. must be Actionable, for words that are in, and of themselves Actionable, may be qualified by the precedent, or subsequent words joyned with them, and spoken at the same time, and therefore where part of the words rent asunder from the rest are Actionable; but there are other words spoken before, or after them at the same time, and in the same speech, or confe­rence that doe explain, limit, and qualifie them, in such cases they will not be Actionable; and therefore it is agréed, that no Action will lye for the words in the Cases hereafter following. For that thou hast stoln my Apple, out of my Orchard, I will say thou art a Theef; or, Art thou not a Theef that hast stoln away my Evidences; or, Art not thou a Murthe­rer, that hast killed so many Hares? Or, where two are talking of Hun­ting, and one of them shall brag how many Hares he had killed by Engines, and thereupon the other say to him, Thou art a Murtherer, in these and such like cases no Action will lye upon them. But these two Rules are given herein.

1 That the words that shall qualifie and extenuate such Actionable words, must be full and clear, and not ambiguous.

2 That the words that must qualifie and correct, must be such as doe not contain any matter of slander in them.

And 3 Some make a question of such kind of words, where they are subsequent to the Actionable words, and are brought in by the word (And) as you are a Theef, and you have stoln my Apples out of my Orchard; and in this case they argue that they are additional, and cumulative, and shall not correct at all, as they shall when they are brought in by the word For, as you are a Theef, for you have stoln my Apples, &c. But sée more of this hereafter. Coo. 4. 19. Hobb. Rep. 97. 381. 406. Stiles Rep. 115. 135. New Book of Entries, 22. 6. Croo. 1. 351. Godb. Rep. 89. Huttons Rep. 65. 109, 110.

For the twelfth thing. That the words must be spoken in an extraju­dicial That the words be not divulged in a course of Justice, way, for if a slander shall be raised and spread only by occasion, and the means of a prosecution, by one that doth but pursue the course of Iu­stice in an ordinary way of Iustice, no Action will lye for this, for in this it is held for a rule, That for a Suit, or any other legal procéeding in a course of Justice, if it be not out of malice, and touch not a mans life, no Action will lye; and therefore this Action will not lye against a man for bringing a Writ of Forger of false Deeds, nor for preferring Articles a­gainst Forgery. a man to a Iustice of Peace to have the good behaviour against him, nor for the prosecution of a suspected Felon, by indictment as there is cause; and yet if in this case the prosecution shall prove to be malicious, as where an Indictment is preferred against a man for Felony, or the like, and there 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 [Page 13] to the Rule; Sensus verborum sumen [...]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 per [...]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.
• [Page 14]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, [Page 15] 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 9 [...].

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 [Page 16] 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 [Page 17] 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 man, For and a­gainst whom, and where this Action will lye or not. for such a wrong these things are to bée known.

1. That the King is within the Statute of Westm. cap. 34. but not within the Statute of 2. R. 2. cap. 5. and 12. R. 2. cap. 12. Dyer. 155.

2. That the persons that are to have this Writ, are declared to be Pre­lates, Dukes, Earls, Barons, and other Nobles and Grandées of the Realm, and also the Chancelour; Treasurer, Clerk of the Privy-Seal, Lord Guardian of the Cinque Ports, and of the Kings Privy-Council, Steward of the Kings Houshold, Justice of the one, and of the other Bench; and o­ther the great Officers of the Realm. 2. R. 2. cap. 5. Westm. 1. 34. Dyer. 155. in Hetleys Rep. 55.

3. That for this, it matters not for the manner of contrivance or publi­cation How this slan­der may be con­trived and pub­lished. of it, which way the words or reports be published, either by spéech or writing; either spoken or written from a mans own knowledge, and from himself, or by the report of another. And by writing either delivered to the party himself, or to another, or hanged up in any open place, or by Libels, or by any other extrajudicial way whatsoever. See in Hetley. Rep. 55.

But this lyeth not against any man for any thing done by him in a judicial way, as for bringing a Writ, or for having a Suit, for forg­ing of déeds, or other Cause in a legal way, or for preferring and pro­secuting of a Legal Indictment, or an Appeal of Murder, Robbery. or the like offence, albeit the Charge be false; And whiles the Starr-Chamber-Court was in being, a Bill might have béen brought against a­ny such great man for any thing whereof the Court had Conusance as a­gainst another; but for preferring any Charge in that Court for any thing whereof the Court had not Conusance, a man might have had this Action; Or for a Conspiracy to indict such a man, the Defendant or party indicted, may have the same remedy against the Plaintiff, and Conspirators as ano­ther man may have. Crompt. Jur. 13. Coo. 2. part Iust. 228. Coo. 4. 14. Fitz. Disceit. 35. Dyer. 285. Kelw. 27. in Hetley Rep. 55. For what this Action may bee laid; Or not. Sect. 2.

4. For the Matter and Quality of this Slander, take this. That the words or rumours uttered against great men, for which this Action is given.

1. Must be false and horrible.

2. Such as by which discord or slander may arise betwéen the King and his people, or the Grandées of the Realm. Westm. 2. cap. 24. Or be­tween the Lords and Commons. 2. R. 3. cap. 53. by which great peril and mischief may come to all the Realm,

3. Such as tend to the destruction of the Realm. Coo. 12. 134.

And if any do hear, or shall hear any such words by the report of another, it will not be safe for him to report them again. Coo. 12. 136.

It hath béen adjudged and resolved for the words uttered, as in the Ca­ses following, viz. For saying, Thy Lord is a Traitor, and I will prove him a Traitor, Vicount, Sayes Case, In Leyes Rep. 82. Croo. 1. 96. And for this, My Lord of Winchester sent for mee and imprisoned mee till I entred into bond of twenty pound to the Kings use. The Bishop of Twenty pound Winchesters Case. Croo. 1. last publisht. See it in Leonard Rep. 336. 2. H. 8.

So for saying, My Lord is a base Earl, and a paultry Lord, and keep­eth none but Rogues and Rascals like himself. Earl of Lincolns Case. Trin. 5. Jac. B. R. Yet see Croo. Rep. 2. 196.

So for saying. You bring in Jesuits and Papists into the Realm, &c. Earl of Northamptons Case. Coo. 12. 136.

So for saying, You maintain sedition against the Kings proceedings; Or, you uphold and countenance them that do so. Coo. 4. 13.

So for this, You are a Traitor to your Prince, or Rebel against him, Lord Monteagles Case. M. 9. Jac. B. R.

So for this, It is your grief that you are a subject. County of Salops Case. M. 40. & 41. Eliz. B. R.

So for this, You charged them that transport, or import Merchandi­zes to or from such a place, that they should not pay custome for it, nor suffer the customers to search them, Old Book of Entries. 593.

So for this, You have no more conscience than a Dog; so you have goods, you care not how you come by them. Duke of Buckinghams Case. M. 4. H. 8. Rot. 659. Or to a Chief Justice, You are a Corrupt Judge. Cromp. Jur. 35.

So for this, You said you would wind my guts about your neck; Lord Abergavenie's Case. Cromp. Jur. 13.

So also it is thought of these words, You are used to do things against Law, to impound the Subjects beasts, and keep them in a Castle that they cannot be replevied; but to say that hée did so once, will not bear an Action. Duke of Buckinghams Case.

So for this, You have sent Commissioners to spoil the Country, where hée sent Commissioners to make Leases of his Land, and improve his Rents. Duke of Buckinghams Case.

So for this, My Lord of Abergavenie sent for us, and put some of us in the stocks, sent some of us into the Gaol, and put some of us into the house called Little Ease. Hill. 19. Eliz. the Lord Abergavenies Case. See it in Croo. 1. last publisht. 192. and Leonards Rep. 336.

And so generally, of any words of an ordinary mans spoken, will give him an Action, being spoken to such an eminent person, will much more give him this Action. Coo. 12. 132, 134. Leys Rep. 32.

But it is said, It will not lye in these Cases, and for these words fol­lowing, viz. The Earl of Lincolns men by his commandment did take the goods of one Hoskins by a forged warrant, because it was not said, hée knew the Warrant to be forged. Goldsb. 115. See more of this Subject. Leys Rep. 82.

In the Case of the Earl of Northampton. Mich. 10. Jac. B. R. It was (as it is said) amongst other things resolved in the Starre-chamber.

1. That the publishing of false Rumours, either concerning the King, or of the high Grandées of the Realm may in some Cases be punished by the Common Law. So as

1. The words and rumours be false and horrible; by which discord or slander may arise betwixt the King, and his People, or the Grandées of the Realm. West. 2. cap. 24. or betwéen the Lords and Commons, 2 R. 2. cap. 53. by which great peril and mischief may come to all the Realm.

2. The persons against whom the words be spoken, must be Prelates, Dukes, Earls, Barons, and other Grandées, and Nobles of the Realm, and also the Chancelour, Treasurer, Clerk of the Privy-Seal, Steward of the Kings houshold, Iustice of the one, and of the other Bench. 2. R. 2. cap. 5. Westm. 1. 34. Dyer. 5.

2. It was resolved, that if one hear such false and horrible rumours ei­ther of the King, or of the said Grandées, it is not lawful for him to relate to others, that hée hath heard J. S. to say such false and horrible words, for if it should, by this means it may be published generally, &c.

[Page 19] 3. It was resolved, That if A. say to B. Did you not hear that C. is guilty of Treason, &c. this is tant-amount to a scandalous publication. And in a private Action for Slander of a common person. If J. S. publish that hee hath heard J. N. say, that I. G. was a Trairor, in an Action of the Case, if the truth be so, hée may justifie it. But if J. S. publish gene­rally, without a certain Author, that J. G. was a Traitor, there an Action of the Case lieth against J. S. for that hée hath not given to the Plaintiff any cause of Action against any but against himself, who published the words, albeit hée might hear such a report, for otherwise this might tend to the great Slander of an innocent, it coming first from a mans mouth of no credit, and being after in the mouths of persons of credit, &c.

4. It was resolved, That the Iudgement in an Indictment upon the said Statutes, when the words are spoken generally, without Relation to a certain Author, is that the Offender shall be fined and imprisoned. Also the party grieved may have an Action de Scandalo Magnatum, and recover his damages. Coo. 12. 133. 134.

CHAP. V. Of Actions for Slanders of all kinds. Where it ly­eth, and what words will bear this Action; or not.

IN all Cases where this Action of the Case for the Slander of a common person, shall be maintainable (as hath béen before touched) there must be these things in the Case. As to the man­ner, contri­vance, and pub­lication of the slander.

1. The Slander must be published and contrived.

2. It must be so published and contrived, that there may be a certainty in it.

1. As to the persons of the Slanderer, and Slandered.

2. As to the manner of the utterance of the words, and charge of the Slander.

3. And as to the thing wherein the Slander lies, the which also must be such a thing, as for which the Law doth give this Action.

And for the first of these as to the manner of Publication and Contri­vance For the manner of contrivance of the slander. Sect. 1. of the Slander, take these things.

1. If a Minister in a Certificate to his Ordinary, wherein hée is bound to certifie other matter, shall insert scandalous matter, this is actionable. Words in a cer­tificate. Reads Case. M. 7. Jac. B. R.

2. A Libel may have and contain such matter in it as may give advan­tage to the party slandered by it, to bring this Action; and therefore to In a Libel. write a Libel of Slander in Paper, and affir it to the Church door, men go­ing to the Church, is actionable. 17. Ed. 4. 3. lib. 13. sect. 4.

3. To write a Letter in private sealed, wherein is matter of Slander, is actionable. And yet if the Writer shall deliver it to him who is slander­ed In a Letter. in his own hands, perhaps it may be otherwise. Hobb. Rep. 63. M. 9. Jac. B. R. In the Lord Lumley, and Hoods Case. It was agréed, That where Ford in a Letter written by him had written, It is reported the Lord Lumley seeketh my life; and in truth it was not reported, this is actionable. Leonard. 187. Bulstr. 3. Rep. 225.

4. To speak the words in a mans ear, and by him kéep counsel, is action­able. M. 9. Jac. B. R. Hob. Rep. pl. 63. Words uttered by a Counsel­lor in pleading.

5. If a Counsellor give in evidence, and enforce any thing in his In­structions for his Client against his Adversary, or against the Testimony of a witness, albeit it be false, if it be pertinent to the Case in question, which hée must look to, this is not actionable. But if it be not pertinent to the is­sue, [Page 20] or matter in question, it will be his wisdome to forbear it, for if not true, or if true, and not pertinent, hée may be sued for it in this Action. So if hée shall speak the words at another time, and in another place, Mich. 31. Jac. B. R. Brook Versus Mountague. And if the slander be by this infor­mation of his Client, the Client may be charged in this Action for a slan­der thus published. Croo. 9. 90. And yet by Glin. ch. Iust. B. R. It was said, That if a Counsellor speak scandalous words against one in the de­fence of his Clients Cause, no Action will lye for this; for hée doth but his duty, and it shall bée intended to bée spoken according to his Clients In­structions. Styles Rep. 462.

5. If the Slander be contrived by way of Iudictment, Articles exhi­bited By way of In­dictment. to procure one to be bound to the Good Behaviour, or otherwise in a course of Iustice, it may be actionable; But for this know, That this Action will not lye for any thing that is said, that may reflect upon ano­ther, if it bée said or done in a way of Iustice, without any malicious in­tent. As where a Defendant in a Spiritual Court amongst exceptions put in against the Plaintiffs witnesses, one of them is, that such a one of them was perjured; so if one bring another before a Iustice upon a suspi­tion of Felony that is false. And where one doth exhibit a scandalous Bill in a Court that hath Iurisdiction of the Things, and they be false; or a man in pleading say, such a man was Bankerupt, and so hée seized his goods under a Commission, and the like. So where a witness doth give in evi­dence Bankerupt. only. So for indicting a man for Felony, where there is ground for it, although it be false; So for suing of a Writ of Forgery of a false déed; Forgery. so for to make a false Affidavit in Chancery, by which a man is imprison­ed; So for to put a slanderous Complaint into the hand of a Member of Parliament, no Action will lye for any of these things. Noys Rep. 116. In Godb. Rep. pl. 333. Kelw. 26. Dyer. 2. Coo. 4. 14. Pasch. 3. Jac. B. R. Marsham Versus Pescod. Croo. 1. part last publisht. 230. 247. Dyer. 285.

But if a man shall so accuse a man in a Court, that hath not jurisdiction Sect. 2. of the thing whereof the party is accused, or insert other things amongst things wherein it hath jurisdiction, or speak of other matters, which do not [...]n a Court of [...]ustice. concern himself, but others with which hée hath nothing to do; As when the Star-Chamber stood, if one had charged another person, a stranger, with matter of slander; Or had charged another there in a Bill of Piracy, Mur­ther, or the like, wherewith the Court had not Iurisdiction, as Sir Richard Buckly was charged by a Bill in the Star-Chamber to be a maintainer of Pirates, Théeves and Murtherers, and a Procurer of Pirates, and for this the Action was adjudged to lye, for that Court had not Conusance of these things. Coo. 4. 14. Croo. 1. last publisht. 230. 247. So also if one ha­ving a Bill in there against a Iudge for Corruption, or the like, and hée had gone about and divulged what was in the Bill to others to scandal the party; this had béen actionable. Trin. 116. Car. B. R. Vast. Crooks Case.

So if a Iustice of Peace sent his Warrant to arrest a man pretended by the Iustice to be accused before him for the stealing of the horse of J. S. the party is arrested and kept in Prison, till hée give bond to answer it, and in Theft. truth the man was not accused, nor had the Iustice any ground for it; this is actionable adjudged. But if in truth hée had béen accused, albeit it had béen false. Contra Trin. 3. Eliz. B. R. Windhams Case. Leonard. Rep. 187.

If I have lost goods, and I suspect a man for it on some ground, and I Theft. go to a Iustice for a Warrant against him, and hée say, take héed what you [Page 21] do, and thereupon I say I will charge him with the stealing of my goods; this is not actionable adjudged. Hatton. Rep. 113.

But if a Felony be done, and the rumour fained is, that A. did it, and thereupon B. doth inform a Iustice of the Report, and before the Iustice, or elsewhere shall positively affirm, that A. did this Felony; this may be actionable. For albeit one may charge a man with a Felony, or arrest a man for it in such a Case of suspition, yet hée may not thereupon affirm that hée did it, for hée may be innocent all this while. Hobb. Rep. pl. 238. 103. 381. 112. 105.

Or if one shall begin to charge another in the right place, and then pro­secute it elsewhere out of course, there the Action may lye. So if hée do or Robbery. say more than is necessary in the right rode of Iustice. As if I be robbed, and J. S. is suspected by the common report; now I may have him arrest­ed, and prosecute him for it; But if I shall report and affirm that J. S. hath robbed mée, I may be liable to his Action; So where I have duly indicted a man upon a suspition of Felony, and I shall after tell of it boastingly in Ale-houses, and report of him, that hée hath done the Felony whereof hée is suspected, or had preferred a Bill in the Star-Chamber of scandalous matter, and had after gone and reported the thing in an Ale-house, or the like. Croo. 1. last publisht. 230. 247.

So if one shall indict or charge another legally for Felony, where there is no ground of it at all, nor any colour of guilt about him. So where a witness shall go beyond the issue, or point in issue, and slandereth a third person, an Action will lye for this. Croo. 1. part last publisht 230. 247.

6. A Bill of Indictment was falsly and maliciously without any colour By way of In­dictment. of guilt preferred by one to a Grand Iury against another for a Rape, and an Ignoramus found by the Iury; this is actionable adjudged, and affirm­ed in Error. Hill. 10. Jac. B. R. Horewoods Case. Jenk. Cent. 7. Case 64. 40. Dyer. 285. Winches. Rep. 28. 54. Marches Rep. 76. pl. 119. Stiles Rep. 335. See in March. of Slanders. 2. part 10.

And if there be malice and conspiracy in a Course of Iustice, to take Conspiracy. away my life, I may be relieved by this in some cases by an Action of the Case for a Conspiracy. 27. H. 8. 11. See after.

7. Mich. 28. 29. Eliz. B. R. Stanley versus Curson. One was brought in by subpena ad testificandum, and upon his oath, uttered matter of Infamy against the Plaintiff; and it was said no Action would lye for this. Croo. 1. part last publisht. 230. 247. 248.

8. A. Exhibited Articles to have the good behaviour against B. and took his oath before a Master of the Chancery, after hée ceased his prosecution there, and did get a Supplicavit out of the Kings Bench, to have the good behaviour there.

In this Case it was resolved, that the Action did lye. But had hee prose­cuted in the Chancery, although the Articles had béen scandalous no Action would lye, for a man shall not be punished for mistaking the Law, for hée may be misadvised by his Council. Brownl. 4. Mich. 27. 28. Eliz. B. R. Tuthill. versus Osborne.

2. As to the persons of the Slanderer, and the Slandered, who may have this Action, and against whom.

An Alien born under a King in Amity with our King, may have this Alien. Sect. 3. Action. If therefore such an Alien Merchant who tradeth here be called Bankerupt, hée may have this Action against him that so called him. Bulstr. 1. part 134. Yelvertons Rep. 198.

If one man slander two men at one time, they may not joyn in one Action, but must have several Actions for this slander. Pasche. 1650. Croo. 1. [Page 22] 368. Dyer. 19. Goldsb. 76. Marches Rep. pl. 249. So if two men do slan­der one man, hée must sue them severally, and may not sue them joyntly for this slander. M. 20. Jac. Chamberlains Case. 2. H. 7. 16.

If the wife slander, the Husband and Wife may and must be sued for Husband and Wife. this, and the Wife may not be sued alone for it. But for slanderous words spoken both of a man and his wife; the husband may sue one Action alone for his own slander, and hée and his wife may after sue another Action for the slander of his wife. And so for any slander of the wife alone, the husband and wife must sue; or perhaps the husband may sue alone, but it is safe to joyn his wife with him. In Styles Rep. 113. Trin. 14. Car. 1. B. R. Stiles Rep. 361.

If two have an office joyntly, and a slander be of one of them in relation Officer. to his office, hée may have this Action, and hée must bring it alone. Winch. 21. Rep. 40.

If one say of a Jewry, All the Jewry is perjured; Every Iuror may Perjury. have this Action against him, and they must sue asunder, and not together. Mich. 7. Jac. Co. B. Deacons Case.

If the declaration be laid, that the Defendant dixit the words, and it say not de Querente, it is naught, for now it appears not how the words were uttered. Stiles Rep. 70.

If the declaration be, hée spake these words of the Plaintiff, Thou art a Theef, in the second person, it is good enough; for to say, de praefat. or, ad praefatum, is all one. So to say to a mans face, Hee is a Theef, is actionable. Croo. 2. 39. Bulstr. 1. part 5650. Brownl. and Goldsb. 5.

To say of A. B. Thou art a Theef, behinde his back, or, hee is a Theef, Theft. to his face. And where two be speaking of A. B. and one of them say, Hee is a Theef; this may be reduced to a certainty, and so be actionable. Coo. 4. 17. For uncertain words may be made certain by reference, Id certum est Certainty. quod certum reddi potest. Hobb. Rep. pl. 119. In Godb. Rep. 391.

To say to the Father, Thy Son J. S. or, thy Son J. is a Theef; if hée Father and Son. have but one Son, and it is so averred, is no doubt actionable. Croo. 2. 635. March. Rep. pl. 96. So to say to the Son, Thy Father is a Theef. Croo. 2. 635. 1. 635. And this néeds no Averment. Bulstr. 3. 72. And yet it was adjudged to lye for this, your Son Innuendo your Son William J. stole a horse, and sold him for ten pounds. Stiles Rep. 46. Theft.

But to say without any precedent communication of any person incer­tain, one of the Sons of J. S. is a Theef; and J. S. have more Sons than one, is utterly incertain, and not actionable. Coo. 4. 17. Croo. 1. 127. Hobb. pl. 351. Bendloes. 134.

To say to the Wife, Thy Husband is a Theef; or, to say to the Hus­band, Husband and Wife. Theft. Thy Wife is a Theef, is no doubt actionable. Croo. 2. 635. Bulstr. 3. 226.

In say to the Servant, Thy Master is a Theef, is without doubt action­able. Master and Servant. Theft. Croo. 1. 127. and 2. 443. 635. Hobb. 351. 371. Leonard. Rep. 335.

This Action will lye for saying, Thou servest no true subject. And here an Innuendo. J. S. such a man, will make it certain. Croo. 1. last pub­lisht. 192. 193.

But to say without any precedent communication of a person in certain. One of the Servants of J. S. (if hée have more servants than one) is a Theef, is utterly incertain, and therefore not actionable. Coo. 4. 17. Croo. 127. Hobb. Rep. pl. 331. Bendloes Rep. 134. Croo. 2. 443. But if hée have but one servant, and, it be laid to be spoken of him, it may be certain enough, and actionable. Brownl. and Goldsb. 2. Brownl. 1. part 7. 9. 10. 13. Hobb. Rep. 351. 371.

To say to a woman, Thy Husband and his Master stole my Horse, will Theft. not give Action to any one as his Master, but it may give Action to her Hus­band. But if hée say, Thy Husband and his Master J. S. stole my Horse; this will give the Action to J. S. also, if J. S. were then re vera his Master. Bul­strode 2. part 82.

To say to A. B. Thy Brother C. B. is a Theef, is without doubt action­able. Brother. So to say, Thy Brother, without more, if hée have but one Bro­ther, and it be said to be spoken of him. But to say without any precedent communication of a person incertain, One of the Brothers of J. S. is a Theef, and J. S. hath many Brothers, is utterly incertain, and not action­able. Theft. Coo. 4. 17. Croo. 1. 127. Hobb. Rep. pl. 331. Bendloes Rep. 134. Hobb. Rep. 351. 371. So for one that hath more Brothers than one, One of my Brothers is a Theef. Bulstr. 3. 226. And yet to say to A. Thy brother is a Theef, and hée hath but one Brother, which is B. in this Averment. case B. may have this Action, but then hée must aver himself to be his on­ly Brother; and therefore it was adjudged not to lye for these words spoken to the Father, thy Son [Innuendo the Plaintiff] hath murthered my childe, Murder. because it was not averred that the spéech was about the Plaintiff, or that hée was his only Son. Croo. 2. 635. March. Rep. pl. 96. And yet see Brownl. 4. and. Croo. 107. where for saying, My Brother is perjured, Averment. upon not guilty, pleaded, it was found for the Plaintiff, and said to be well laid without any averment, and that it shall be now intended, hée had no o­ther Brother.

To say, That one that is neer to J. S. [or one that is about J. S.] or Sect. 4. one that is mine Adversary, or one of you three (where there are thrée in the company) is a Theef, or one of you two (where there are but two Theft. in the company) is a Theef. These words are utterly incertain, and not actionable. Yet if in the first case it may appear by Averment, that such a one was then his enemy, and hée had no other enemy, it may happily lye, Coo. 4. 331. 17. Croo. 1. part last publisht. 497. Croo. 1. 127. Hobb. Rep. pl. Bendloes Rep. 134. So to say to thrée that have given in evidence, one of you three is perjured, Croo. Rep. 1. last publisht. 496. 497. and his fellows are Theeves; this can be certain for none but the first, and no other person but him may have an Action for these words. Stiles Rep. 247. Croo. 1. part 127. Hobb. Rep. 351. So to say, One I. S. stole the Horse that is lost, is altogether incertain, and not actionable. Mich. 7. Jac. B. R. Reads Case. But to say of a man there present, this man is a Theef, is certain enough, and actionable. Brownl. and Goldsb. 2.

To say of two others of one Sirname Jones, and the one of them say to Theft. the other, These Jone-ses are Theeves, this may be certain enough, and so actionable; But if the words be, The Jone-ses are Theeves; the Case will be more doubtful. Godb. Rep. 391. 344.

If a spéech be about a Suit that is betwéen A. and B. and sir others de­fendants, and in this spéech the defendant is charged to say, These defen­dants Murther. Jnnuendo. B. the Plaintiff, and the others, are those that did help to murder J. S. this is certain enough, and all of them it was agréed might have Action upon it.

To say, The Parson of Dale is a Theef, may be certain, and bear Action Theft. with an Averment that hée that sues was then Parson of Dale, when the words were spoken. Per Just. Dodridge. Mich. 14. Jac. B. R. Bulstr. Rep. 3. 326.

To say, That murdrous Knave Stroughton lay in wait to murder mee, Murther. and after not guilty pleaded in an Action brought by Thomas Stroughton, and verdict for him, hath béen adjudged actionable. As was said in Croo. 2. 101.

To say, that one Stamford (leaving out his Christned name) stole my Horse, is altogether incertaine and not actionable. Croo. 1. 303. Theft.

If there be spéech betwéen two about scandalous words, and therein one of them uttereth this spéech, I know who spake those words, Winnifle and Bell, I mean to have their Ears cut off, and their Tongues cut out; it séems no Action will lye for these by any one of either of those names. Bendlers Rep. 134. yet sée Golds. 76. which séems to differ somewhat herein.

To say, A. had a Childe, and between her and her mother they mur­thered Murther. it; it séems this is certaine enough, and happily both of them may have the action. But A. may doubtlesse have an action. Bendloes Rep. 152.

A. and B. were speaking together of C. and D. the Plaintiff, and the Theft. Defendant spake these words of C. and D. C. hath stoln such goods, and shee (Innuendo the Plaintiff) was privie and consenting thereunto; in this Case it was resolved to be certaine enough, and that the word (Shee) shall have reference to D. the Plaintiff, and not to C. and so that she may have an action upon them. Croo. 1. 171.

To say these words, I. S. and I. D. is Perjured, is incertaine and not Perjary. Actionable, but to say, He Innuendo, the Plaintiff, and one A. are perju­red Knaves, is certaine and actionable. Croo. 2. 102.

An Action was laid, That the Defendant, Dixit de prefato Carolo, VVhere is this Baker, Innuendo the said Carolus Baker, hee hath, &c. In this Case the words were held to be certaine enough and actionable; as Innuendo, or Averment. to say of a Counsellor, VVhere is this Counsellor, Innuendo such a one, this is actionable. Bulstr. 3. 72.

But here it must be observed:

1 That where the words are utterly incertain in, and of themselves, there no Innuendo or Averment can make them certain. and so actionable; but where the words are so certain in themselves as that it may appear what person the speaker did intend, there the words may be actionable. Croo. 2. 107.

2 That sometimes where there is such an incertainty in the words, by a Verdict found for the Plaintiff after not guilty pleaded, the words may be ascertained to be spoken of the Plaintiff, and so the Action maintaina­ble. Croo. 2. 107. Bridgemans Rep. 60. Stiles Rep. 245.

3 That where the words are in themselves somewhat incertain, there in many cases they may by the precedent Conference, or by some Circum­stances, and with a special Averment thereof in the Declaration be made Actionable, and so it may be done in many of the Cases before laid down, wherein the words will not bear Action, without some such special Aver­ment to help. Croo. 1. 303. Bulstr. 2 part, 227.

The Plaintiff doth in his Declaration set forth, that there being talk Theft. betwéen his Father and the Defendant, who said to the Father, That Taylor did steal the Mare of I. S. and thy Son was consenting to it; in this case the Declaration was ruled to be naught, because it did not averr that the Father had no more Sons but the Plaintiff. Trin. 14. Jac. B. R. Lewkner and Bodnams Case, Bulstr. 3. 249. And yet sée Croo. 2. 107.

In all these and such like Cases of Incertainty before named, where the Plaintiff is to make a supply by his Averment, to maintaine his owne Action, and he omit it, it will be the wisdome of the Defendant in his Pleading, to set forth the Truth omitted for his owne advantage; As where the words are about a Son, a Brother, or Servant, and the Plaintiff doth omit to shew, that there is but one Brother or Servant in [Page 25] the Case, to shew that there are more Sons, Brothers, or Servants in the Case then one.

And now as to the manner of the utterance of the words, and charge of the 3 As to the manner of utte­rance of the words, and charge of the Slander. Murder. Sect. 5. Slander it is to be known (as is before touched) That slander may be uttered by direct, expresse, and downright words, thus; Thou hast killed I. S. or, He hath killed I. S. or, A. B. is a Thief, or the like; or by indirect and implicite words, and in other forms of words, either by way of question, thus, Are you not a Thief? Did you not kill I. S. or the like: or by way of report from others, as, A. told me you were a Thief, or the like; or by way of opinion, or thought, as, I think in my consci­ence you are a Thief, or the like; or by way of threatning, as, I shall call you in question for killing of my Aunt, or the like; or by way of com­parison, as, You are as very a Thief as any in VVarwick Goal, or the like. And some are otherwise uttered, also some slanders import a charge of an inclination, or a purpose only to doe a thing; and some import a charge of an Attempt, and an indeavour to doe a thing, but no Act done; but some import a charge of an Act done, and some have another import in them. And therefore it is held it will lye for words of slander uttered Theft. By way of In­terrogation. thus, What art thou a Bankrupt? &c. Croo. 1 Part last publisht, 273. what I. S. that Thief? Croo. 2. 422. Pasche. 15 Jac. B. R. Nelsons Case, Hardwicks Case, 40 Eliz. Co. B. or thus, VVhen will you leave your stealing? or thus, Have you brought again the Horse you stole from me? Theft. or, Have you brought again the Mony you stole from mee? Maxies Case, Trin. 18. Jac. B. R. or thus; Have you been at London to change the Mony you stole from me? It is said therefore that it will lye for Theft. words spoken thus, Did you not kill I. S? and some think these words Actionable, You might have known your owne Sheep, and not have stoln mine. Yelverton, 144. And these words also, Hath A. B. the Bas­tard sued you, is that all the spight the Bastard can do you? Croo. 2. 422. Bastardy. Felony. Jenk. Cent. 8. Case 78. But if words be thus spoken, A, saith to B. He is a Felon, to which a stander by saith. Take heed what you say; to which he saith, Is not he a Thief that doth conceal Felons [or steal Trees, or takes my goods in Execution] it seems these words are not Actionable; but if the Ironically spo­ken. last words were first contra, Hill. 17. Jac. Newlands Case. And it is said, that an Action will lye for words spoken ironically, thus, You are no Thief. Theft.

This Action will also lye for words uttered after this manner, viz. I have said that I. S. is a Thief, and I will justifie it, and I have told him so much to his face, Croo. 2. 438, Or thus, I will justifie that I. S. is a I have said that I. S. is, &c. I will justifie, &c. Theft. Uttered as a Dream. By way of thought or o­pinion. Theft. Treason. thief, Trin. 9. Jac. B. R. Barnes Case. Or thus, I did dream that I. S. did steal a Horse, March Rep. pl. 90. Or thus, I think in my consci­ence I. S. is a Thief, Hobb. Rep. 152. Or thus, I think thou wouldst if thou couldst kill the King, &c. Croo. 2. 407. Hobb. Rep. 152. Or thus; I think in my conscience if thou mightst have thy will thou wouldst kill the King, &c. Croo. 2. 407. Coo. 4. 19. Sée for this March of Slanders, the first part, 113. VVinches. Rep. 124.

But these words are held not to be Actionable.

It is reported A. did such a thing, and I feare it to be too true. And if question be about a Robbery, and one say, He thinketh the Robbery was done by A. and he fears it is too true. Yelvertons Rep. 114. So if one ask why Mary S. did not come to Church, and another said, It is thought I shall question him for, & a Murther. shee is with childe, and I fear it is too true. Yelvertons Rep. 114. So,

This Action will lye for words uttered after this manner, I shall call him in question for poysoning my Aunt, &c. Noys Rep. 63. Sidenhams Case 16 Jac. See Winches. Rep. 124. Pophams Rep. 210.

So for words thus spoken, It will be proved by many vehement pre­sumptions, It will bee proved, &c. that A. did steal the Horse of B. Pasche 7. Jac. B. R. Wel­byes Case. Whitacres Case. Pasche 5. Jac.

So for this, I can prove you are a Theef, and ten men will justifie it, Theft. I doubt not to prove, &c. Murther. Treason. Pasche 15. Jac. B. R. So for this, I make no question but to prove that hee hath poisoned my Aunt, &c. Noyes Rep. 63. So for words uttered thus, I doubt not but to prove that hee hath spoken words of High Trea­son. Serjeant Hitchams Case. Huttons Rep. 75. Winches. Rep. 124. Or thus, I will prove Fermon to be a perjured Knave. Croo. 1. last publisht. 122. Or thus, I will prove you are a Theef. Yelverton 126. Or thus, Perjury. I did not know A. was your Brother, I will prove him perjured, or else I will bear his charges. Popham. 210. For this, I doubt not to prove you are a Theef. Croo. 1. last publisht. 420. Or thus, I will bring you before a Justice, and prove that you have stoln, &c. And yet it is said, that it will not lye for this, I will prove that A. was perjured. Winch. 124. And Perjury. that it will lye for this, I could prove him perjured if I would. Yet see Hobb. pl. 394.

This Action will lye also for words uttered by way of Report from o­thers, By way of Re­port. Theft. thus (viz.) J. S. told mee that A. was a Theef. And in truth J. S. did never tell him so. But if in truth J. S. did tell him so, then the words are not actionable. Croo. 2. 407, 427. 413. Bulstr. 3. 225. Croo. 2. 103. The Lady Morrisons Case. 5. Jac. B. R. Lord Norths Case. 41. Eliz. B. R. But if in truth a slander be raised of a man, and one that is his friend tell him of it, and wish him to clear himself of it; this is not actionable. And yet if in this case a man shall report such a thing generally, and not name the Au­thor of the Report, the words will be actionable; and therefore it is said, it iwll lye for words thus uttered; I have heard A. B. is a Traitor, if hée do not say by whom hée heard it. So for words thus spoken, Did you not Treason. hear that A. B. was guilty of Treason. Coo. 12. 134. Jenk. Centurie 8. Case 7. Leonards Rep. 187.

This Action will lye also for words uttered after this manner, viz. I charge him with that Felony. Pophams Rep. 110. 111. 150. Croo. 2. I arrest you for Felony, &c. I charge him with Felony, Sect. 6. 312. Or thus, Bear witness I arrest you for Felony. 17. Jac. B. R. Serles Case. Coo. 4. 15. yet see the contrary, in Hobb. Rep. pl. 396. Popham Rep. 110. 111. Hobb. Rep. pl. 286. 381. Or thus, I charge you with Felony, and I charge the Constable to take you; or, I arrest thee for high Treason; some say this is actionable. Mich. 5. Jac. B. R. the contrary seems to be in Huttons Rep. 38. And there held to lye for this. I accuse J. S. of High Treason. Huttons Rep. 131. It is held to lye for this, Bring Treason. mee to the Constables house, for I am robbed, and I will bring him to the house of J. S. to arrest him, for hee setteth them to rob mee from time to Theft. time. So to say to a Constable, There hee is, take him, for I charge him with that Felony. Styles 59 And yet for this it will not lye, I charge you, King, with Felony, and you Constable [Innuendo. A. &c.] to apprehend him. Popham. Rep. 210. Yet see Hobb. pl. 286. 381. Or thus, If I could finde J. S. I doubt not but within two daies to arrest him of suspi­tion of Felony. Coo. 4. 15. Albeit hée do not say, Hee committed Felo­ny. Felony. Popham 150. And yet some say, that it will not lye for these words, I charge him with Felony, &c. Nor for this, I have arrested A. for Felo­ny, for stealing sheep of mine. Pophams Rep. 210. Nor for these words, I charge you with Felony, for taking mony out of the pocket of J. S. Theft. Huttons Rep. 38. Hobb. Rep. pl. 381. 394. And yet if no Felony be done, it séems reasonable the words should be actionable. Brownl. 1. part 18. Hobb. Rep. 38. But in case where a Felony is done; And a man in a [Page 27] course of Iustice shall speak words to this purpose, I arrest thee for Felony; or, I will charge him with [or arrest him for] Felony, there the words will not be actionable. Popham Rep. 110. 111.

The Action will lye for words uttered after this manner, Thou hast Thou hast been in Gaol for, &c. Indicted, &c. Theft. been in the Gaol for stealing a Pan. Croo. 2. 155. Bulstr. 1. part 40. And yet it is said, it will not lye for this, Thou wast in Warwick Gaol for stealing of Horses. Noys Rep. 24. Bulstr. 1. part. Hutton. Rep. 2. Brownl. and Goldsb. 16. And yet it is held, it will lye for this, Thou wast in the Tower for High Treason. M. 9. Jac. B. R. if it be false that is said. Hobb. Rep. pl. 96. So it is said, it will lye for this, Shee is a ve­ry Theef as any that robbeth by the High way side. So for this, Shee is a worse Theef than any that robbeth by the High way side. Croo. 1. last publisht. 224.

But it is said, it will not lye fot words thus spoken, Thou wert arraign­ed Theft. for Felony, for stealing of a Horse. Bulstr. 1. part 40. Nor for this, Hee is in Warwick Gaol for stealing of a Mare. Hobb. Rep. 196 But if Or hee is in Gaol for, &c. He is indicted, arraigned, &c. Felony. hée say, Hee stole them, and was in Gaol for it; this may be actionable. Nor will it lye, for saying of a man, Hee was indicted [or arraigned] or impeached] for Felony, if it be true; but if false, the words are actionable. Hobb. Rep. pl. 190. 196. 286.

But it séems it will not lye for words thus spoken, viz. What is J. S. in Gaol for? for murder. Huttons Rep. 2. Nor for this, J. S. was in Theft. Thou wast whipt, &c. Thou wast burnt in the hand, &c. Thou wast de­tected for, &c. Thou wast con­victed for, &c. Hee held up his hand at the bar for, &c. Averment. Newgate for forging of writs. Huttons Rep. 2. Nor for this, Thou wast whipt about Taunton [or burnt in the hand, or shoulder] for stealing Sheep. Hills Case. Mich. 8. Car. 1. B. R. Nor for this, Hee was de­tected for Perjury. Coo. 4. 16. Nor for this, Thou art a false Knave, thou wast arraigned for two Bullocks; or, for thou wast arraigned for stealing two Bullocks. Croo. 1. part last publisht. 279. Nor for this, Hee held up his hand at the Bar for Felony. See Brownl. 2. part 272. And therefore, where the Action is laid for such like words as these, Hee was indicted for Felony at W. Sessions; or, Hee was impeached for Felo­ny; or, Hee was accused for Felony; the Plaintiff must avert, that there was re vera no such thing done, otherwise the Action will not lye. Hobb. Rep. pl. 196. 289.

It is said, it will lye for this, I will indict him for stealing of my horse. Huttons Rep. 58.

It is said, that this Action will lye for this, I will pawn my shirt, I I can hang thee, &c. will hang him for., &c Winches. Rep. 124. And yet it is said not to lye for this, It is in my power to hang thee. Pasche 7. Jac. B. R. Brownl. 2. part. 280.

So it is held to lye for these words, As sure as you beleeve God Rules the world, and the King rules the Kingdome, so sure did Whorewood Sure it is that J. S. is a Theef. steal my horse. Winch. Rep. 124. Hughes Abridgement. 37. So also for this, I am sure J. S. is a Theef.

It is said, it will not lye for this, I have served thee with the Queens Letter for stealing of goods out of my Mothers house. Croo. 1. part. last publisht. 234.

So likewise for this, Masters, bear witness hee is a Theef. Huttons Theft. Rep. 39. But Quere of this.

It is generally held, That the words that shall bear an Action, must be Words spoken in an unknown language. Sect. 7. Theef. uttered in a language, that one of them (at the least) that do hear them do understand. And therefore that to call a man Theef in Welch, or in La­tine, before such persons, neither of which do understand the tongue; that this will not bear an Action. And yet some doubt much of this, for they [Page 28] may remember the word, and enquire, and so come to know what it is. Hobb. Rep. pl. 63. 276. 126. Hughes Abridgement. 37. Croo. Rep. 1. last By way of Caution. Treason. publisht. 496. 497. 865. It is said, that this Action will not lye for words thus spoken; Take heed that you do not speak Treason. Bulstr. 1. 143.

It is said, it will lye for this, Hee hath deserved to stand on the Pil­lory. Hee hath de­served, &c. Bulstr. 1. part 147. And yet it is said, it will not lye for this, Thou deservest to be hanged. Mich. 4. Jac. B. R. Nor for this, Thou hast de­served hanging. Croo. 1. last publisht. 470. Nor for this, Hee will come home if hee escape the Gallows, for hee hath deserved to be hanged. Nor for this, If thou hadst thy Right, thou hadst been hanged. Brownl. 1. part. 3.

It is held, that the Action will not lye for these words thus spoken, I I fear you will be arrested, &c. Felony. I doubt you will be found guilty, &c. Treason. Treason. fear you will be charged with [or arrested for] Felony. Nor for words thus spoken, Take heed you be not arrested for Felony. Hobb. Rep. pl. 381. 286. Nor for words thus spoken, I doubt [or I fear] whether your words be not Treason, and I shall advise upon them. Bulstr. 1. part 143. 148.

It is held to lye for words thus spoken, I did tell Mr. Carne, that I am neither Traitor to my Prince, nor Rebel to my Country, as J. S. and the words are spoken to Mr. Coxell, albeit they were never spoken to Mr. Carne, nor to any but to Coxell himself. And so for this, If I say to A. Go tell B. hee is a Theef, albeit A. do never tell B. of it. Mich. 9. Jac. Foxes Cases B. R.

It is held that this Action will lye for words thus uttered, Thou art as Thou art as ve­ry a Theef as a­ny in the Gaol. Averment. Theft.very a Theef as any in Warwick Gaol [or as any in England.] So as hée averr, that there is a Theef in Warwick Gaol, or in England, and what Théef it is. But not otherwise. Nor will it lye for these words, If ever man was perjured, Williams was, because it appeareth not that any Perjury. man was perjured. Bulstr. 1. part 40. Noys Rep. 116. Sed Quere of this last Case. Winches. Rep. 70. 89.

It is said, this Action will not lye for words thus uttered, I suspect you I suspect you, &c. Sect. 8. Theft. for stealing of my horse. Huttons. Rep. 18. 19. Nor for this, I doubt not to see J. S. indicted at the next Assizes for Barretry or Sheep-stealing, as George Bland, for hee was indicted at the last Assizes for stealing of Sheep. Albeit it was not said by the Plaintiff, that hée was not indicted. Barretry. Huttons Rep. 18. 19.

But here wée must and to the Cases before put upon this head, these fol­lowing Cautions to be observed.

1 That in many of the Cases before mentioned under this head, the words there mentioned that are said not to be actionable in another Case; yet if they be spoken to a Iustice of Peace, or some such like Officer, with reference to his Office, they may be actionable. Huttons Rep. 131.

2 That no Innuendo will alter the Case, or make the words not action­able in themselves, to be actionable, by the Innuendo.

3 That in some of the Cases before cited (as to the frame of words) not to be actionable, that there perhaps by the help of a special Averment, added by the Plaintiff in his Declaration, the same words may bee made actionable, and therein especially, wherein the Plaintiff shall afterwards have a verdict given for him also in the Case.

4 That in some of the Cases noted not to be actionable for the frame of the words, the precedent or subsequent words spoken at the same time with them, may make them actionable, for as the precedent and subsequent words may make actionable words spoken at the same time not actionable, so may they make words not actionable to be actionable.

5 That in many Cases where the words originally spoken for their in­certainty [Page 29] may not be Actionable, yet after by the help of a Verdict for the Plaintiffe in the Case, the Action may become maintainable.

6 That the Plaintiff must be very careful how he Declare in his Acti­on upon any such words spoken, and the Defendant likewise how he pleads, for either of them may much disadvantage themselves thereby.

7 That many of these Cases séem very difficult, and questionable, and therefore it will be the wisdome of him that is to Sue in such a Case, to be well advised by the Lawyers therein.

And now we shall come to the Matter and Quality of the Slander it self, and herein we are to know, what we have before touched upon, That there are some Slanders that bring a man in danger of his life, and there are other Slanders that doe not bring a man in danger of his life, but they doe bring him in danger of some bodily harm; and there are other Slanders that doe neither bring him in danger of his life, nor of other bodily harm; but they bring him in danger of some other damage and prejudice in his Name, or Estate, or in both. Those that bring a man in danger of his life, doe carry in them some charge, either about matter of Treason, or about some other Felony; but herein we are to know, that there are some ge­neral words that may refer to both, or either of these, and may bee Actio­nable words, and therefore it is held, That this Action will lye for saying of a man, Hee is a Traitor, a Murtherer, a Thief, a Robber, a Church-robber, Traitor. Murtherer. Thief. Robber. Church-robber Sacrileger. House robber. Buggerer. Sodomite. a Sacrileger, a House-robber, a Buggerer, a Sodomite, or the like, 30 Ass. 19 Dyer 19. 236. 27 H. 8. 14. 22. So for saying of a man, He hath committed High Treason, or Treason, or Murder, or Robbery, or Burglary, or Buggery, or Sacriledge, or the like. Dyer 19. 75. 236. Plow. 118. Jenk. Cent. 7. Case 70. Croo. 116. 27 H. 8. 14. Coo. 10. 130. and 4. 15, 16. 30 Ass. 19. Croo. 2. 275. 424. Bulstr. 2. 272

It séems to be agréed also, that this Action will lye, for saying of a man that He is a Felon, or that he hath committed Felony, Coo. 4. 17. Bulstr. 1. Felon. 148. Croo. 2. 312. And yet the contrary is affirmed by some, by whom it is held, that it will not lye for saying of a man, He is a Felon, or, he hath com­mitted a Felony, unlesse he shew something wherein he is so, or hath so done, as that he stole a Horse, or the like, for that it is too general and incertain, for every maihme is a kind of Felony. But see for this, Huttons Rep. 38 Bendloes Rep. 202. Coo. 4. 15.

But this is agréed on all sides, that these general words may bee so in­termixt with other words of explication, and qualification, that they may not be Actionable at all; as to say, You are a Traytor, for I trusted you to buy Land for me, and you bought it for your self. Or, You are a Thief, for you robbed me of one of my Sentences out of one of my Books, or, of my Apples out of my Orchard; or, You are a Murtherer, for you killed forty Hares in one year, or the like. Huttons Rep. 69. 110. 113. Yelvertons Rep. 10. 155. Coo. 4. 13, 14, 16. But for the further opening of this, sée what followeth in the next Section.

And as to the matter of the Slander it self, and the thing charged upon 4 As to the matter of the Slander it self. Sect. 9. Murder. Robbery. the slandered person, take these following Cases, referring to all kind of slanders. This Action will lye for this, Thou hast Sacrificed thy Childe to the Devil. So for this, He is infected of the Robbery lately committed, and smells of it; for the former, but not for the latter words. Dyer 317. Hut­tons Rep. 58.

This Action will lye for this. Waterman and thou [Innuendo, the Murder. Plaintiffe] hast killed thy Masters Cook [Innuendo, &c.] And I will bring thee in question for thy life. And that without any Averment, who was his Master, or that he had a Cook, for it is certaine enough without it. [Page 30] Pophams Rep. 128. Bridgeman 60. Stiles Rep. 66. So for this, Thou Theft. art a Thief, and hast robbed my Son; without Averment that he had, or hath a Son. Noys Rep. 55. So for this, Thou didst kill a Woman Murther. great with Childe [Innuend. uxorem cujusdam. R. C. defunct. M. 2 Jac. B. R.

This Action will lye for this, Long is a Murtherer, and hath bewitch­ed my childe, and was the death of my childe, when a Verdict is found upon a not guilty for the Plaintiffe. So for this, VVhosoever is the falsest thief, and the strongest in the County of S. whatsoever hee hath Felony by Theft. Averment. stoln or done, A. B. is falser than hee; so it bee applied by an Averment, that such a Felon is in the County of S. but not otherwise. So for this, Thou art a Thief, and hast stoln one Passions Lamb, and marked and de­nied it, albeit there be no Christian name to Passions; for the first words are Actionable. Huttons Rep. 109. It is said it will lye for this, Thou Felony. art a concealer of Felonies. Bulstr. 1. 148.

It is said to lye for saying of an Attorny, He was cooped for forging of Forgery. VVrits. 31 Eliz. in Nowels Case. Huttons Rep. 58.

It will not lye for this, Hee hath cousened the Town of S. [or, hath Cousening. made a false account.] But if he be an Officer of whom the words bée spo­ken, it is more doubtful. Bulstr. 1 Part. 228, 229.

It seemes it will not lye for these words, He is a base beggerly Ras­cal and hath cousened the Parliament a hundred times, and deserves to ride on the Woodden Horse on Sandhil. Stiles Rep. 422. Nor for these words, Old Apthorp is a perjured Knave, for he did swear that such wood Perjury. was worth forty shillings, whereas it was dear of a mark. Bulstr. 3. 150.

This Action will not lye for saying, Thou art a false Thief, Rogue, or Theft. In the Dis­junctive De­claration. some such like thing. Brooks Action of the Case, 112. and therefore where the Declaration, That the Defendant spake such words in certain, Vel verba similia; this is naught. Nor will it lye for this, Thou hast stoln my Mare, or consentedst to the stealing of her. Croo. 1. last pub­lisht. 780.

But where it is said in the Declaration, that the Defendant spake of a Cousening. Merchant, Thou art a cousening Knave, and a Bankerupt Knave, ac eadem verba, aut alia iis similia sepius repetivit, in this case it is good; for Bankrupt. the first words are certaine and Actionable, 41 Eliz. Co. B, March in Slan­ders, 2 part 8. Golsb. Pl. 11. Hill 41. Eliz. Co. B.

Nor will the Action lye for these words, Thou hast stoln my Mare, or Theft. was consenting to it. Noys Rep. 172.

This Action will not lye for saying, He hath killed J. S. where, there Murder was never any such man known as I. S. Godb. 181. Pophams Rep. 188. Nor for saying to a Bayliff, Thou dost serve false VVarrants, and de­ceivest Deceit. the people. Sée it in Croo. 1. last publisht. 192. Nor for this, You make false Records, and justifie them for true. Nor for this, Thou Innuendo. art a Papist, and not the Queens friend. Nor for this, Thou hast broken my shop, and taken my goods, and an Innuendo will not make them Theft. Actionable. Croo. Idem.

This Action will not lye for saying, He hath cut my Wives Purse, and his Father knew it, and his Father knowing of it received it of him, and the Mony and Rings therein. But if he adde this further, and therefore I Felony. charge him with that Felony, it may be Actionable. And yet it is said it will not lye for this, A. did see B. that had committed Felony, and did suffer him to escape, I charge him of Felony, Popham. Rep. 111.

Nor will it lye for this, Thou art a Thief, and that will bee proved by Theft. the Apples thou hadst off my trees. Yelvertons Rep. 10. 34.

It is doubted whether it will lye for this, Thou art a Knave of Record, Forgery. and a forgering Knave. For forgering is altogether incertain. Hill. 1. Car. B. R.

This Action will lye, for saying of a man, Hee hath been a Theef. So Words in the preterperfect tense. Theft Sect. 10. Plague. for saying, Hee hath committed perjury. But for saying, J. S. was a Theef; Or, J. S. had been a Theef: Or, of a Iustice of Peace, Hee had been a debauched man, &c. Or of any man, Hee hath had the Pox, or the Plague; it séems none of these words are actionable, for it may be other­wise with him now. Noys Rep. 151. Stiles Rep. 22. 23. 210. 24. 25. Eliz. Co. B.

It will lye against a woman Covert, for saying, Thou art a Theef for Theft. stealing my Corn out of my Barn, albeit it cannot properly be said to be her Corn. Stiles Rep. 135.

This Action will not lye, for saying, Hee did break open the Trunk of Theft. A. with the tools of J. S, and took out twenty pound, for this way be a taking as a Trespassor. So it is said of these words, Hee is an arrant Theef, for hee did break open the Trunk of A. with the tools of J. S. and took out twenty pound, and that these latter words do mittigate the for­mer. Winch. Rep. 70.

This Action will not lye for such words as these, Thou deservest to be Forgery. hanged; or, thou wast cubbed up for forging of Writs. Croo. 1. part last publisht. Or, it is in my power to hang thee; Or, thou seekest my life. Theft. Coo. 4. 15. Or, thou didst bear away my goods; Or, thou didst carry away my goods. Hobb. Rep. 236. Or, hee took my mony with a strong Forgery. hand. Mich. 15. Car. 1. B. R. Or, hee forged a Writing [or a Warrant.] Huttons Rep. 39. Hobb. Rep. 4. 48. Or, hee hath killed a man, not nam­ing Murder. any man. Popham. Rep. 188. Or, thou didst cut my purse. Popham. Rep. 110. Or, thou art a Cut-purse. For every Glover is so. Godb. 181. Cutpurse. Nor for this, Thou wast the cause that J. S. did hang himself [or did cut his own throat.] Hetlyes Rep. 70. For these words are all of them too general, Murder. and incertain. Hobb. Rep. pl. 236. So it is said for these words, Thou Witchcraft. hast bewitched a man; Or, thou hast bewitched my good man. And yet it is said, to lye for this, Thou hast bewitched a man; Or, thou hast kil­led a man by witchcraft. Stiles Rep. 106. It is said, it will not lye for these Filching fellow words, Hee is a filching fellow, and did filch four pound from mee. Hutton. 34. Or, thou art a filching fellow, and didst filch from A. B. one hundred pound. Hobb. pl. 323.

Nor for this, Hee is a prigging pilfring Merchant, and hath pilfred a­way Prigging fellow my Corn and my Goods from my Wife and my Servants, and this I will stand to. Owens Rep. 57.

Nor for this, Thou hast stoln a peece, and I will charge thee with Felo­ny, for it may be a péece of any thing; Popham. 187. Theft.

Nor for this, Thou didst carry away my Sheep on thy back. Huttons Rep. 8. Some Iudges have held, That for saying, Thou hast killed J. S. no Action will lye, for the words are too general, and hée may come to his Murder. death by execution, Physick, battel, &c. But the general opinion of the Iudges is, that the words are actionable. See Croo. 2. 306. Godb. Rep. pl. 257. Hetley Rep. 70. Coo. 4. 16. Snaggs Case. Popham. 187. Croo. 2. 438. Bulstr. 1. 42. Croo. 1. 352.

And yet to say to one, Thou art a Healer of Felonies, Mainsworne, Out­putter, Strange words. Sheep-Theef, or the like in the Country where the use and mean­ing of the words are known to be scandalous, will bear Action. And so for Another lan­guage. Slanders in the Welch, or in other languages, the Action will lye for them, and that without Averment of the sense of the words in the Country. Averment. [Page 32] Hobb. Rep. pl. 155. 236. Goldsb. and Brown. 4. 6. Croo. 1. part last publisht. 250.

This Action will not lye for these words, I have matter enough against Forgery. thee, for J. H. hath found Forgery against thee, and can prove it. Huttons Rep. 39. Nor for this, Thou art a perjured Knave, and that will bee Perjury. proved by a stake that standeth between the ground of J. S. and J. D. Yel­vertons Rep. 10. 34. Lewis Case. Pasche 1. Jac. B. R. Nor for this, said of a man sworn in a Cause before a Iudge, Hee was disproved before the Justices of Assize at Darby before Kingsly. Owens Rep. 58.

For these words are some of them incertain, and some of them insensible.

Nor for these words, That Prichard which serveth Mris. Shelley did murder John Adams childe. And in the Count it is thus, Quandam Isa­bellam Murder. Addams modo defunct. filiam cujusdam Johannis Addams of W. in the County of G. Innuend.] for it should have béen true, and not modo defunct. Coo. 13. 71.

The Plaintiff declares, that the Defendant dixit de praefat. The Plain­tiff, Thou [Innuendo the Plaintiff] hast stoln goods, &c. and this after not guilty, and a virdict for the Plaintiff was held good enough. Pasch. 5. Jac. Theft. Stones Case.

And so where two talk of one Tooses wife, hée being lately dead, and the one saith to the other, Tooses wife [Innuendo the Plaintiff] killed thy Hus­band [Innuendo. one J. D. her Husband lately dead; this is actionable, Croo. 1. 352. Croo. 2. 366. Murder.

But here wée must also add to the Cases put upon this head, the same Cautions wée gave upon the last head.

1 That in many of these Cases where the words spoken to ordinary men are not actionable, yet spoken to a Iustice of Peace, or such like Officer, they may be actionable.

2 That an Innuendo will not make any unactionable words actionable.

3 That an Averment, and especially if there be a verdict found upon it, for the Plaintiff, may in some Cases make words otherwise unactionable, to be actionable.

4 That precedent or subsequent words may make words in themselves doubtful, and incertain, and unactionable, certain and clear, and so action­able.

5 That in all Cases of uncertain and doubtful words, the Plaintiff must be very careful how he doth declare, and the defendant must be careful how he doth plead.

6 That there being same difficulty in many of these Cases it will be his wisdome, that is to bring his Actions in the same Case for the same words, that hée be well advised in it.

It is said in Croo. 1. 201. That this Action was brought against a man for that hée had maliciously and falsly imposed a Crime of Felony upon the Plaintiff, and caused him to be arrested for it, and that it was adjudged good. Croo. 1. 201.

Wée shall now descend to the particulars before named. And 1 To slan­derous words about matter of Treason.

CHAP. VI. Of words of Slander about matter of Treason.

FOr the opening of this particular about slanderous words, that have an Treason, what it is. import in them of any matter of Treason, or of any thing about it, [Page 33] Wée are to know first of all, That Treason (in the eye of our Law) is a great Crime, and the punishment appointed by the Law to be inflicted on him that dath commit this offence, is the loss of his life, and all his estate whatsoever. If any man therefore shall by slanderous words charge ano­ther man with this Crime, or any thing like unto it, the party slandered may have this Action to relieve himself by damages to be recovered therein for this wrong.

And therefore it is held, that this Action will lye, for calling of another Traitor. Traitor, or Traitor-Knave. 30. Ass. 19. 27. H. 8. 9. 14. 27. 26. H. 8. 9. Coo. 4. 17. Or for saying of another, Hee hath committed Treason—or the like. So for saying, There is no King in England. Croo. 2. 407. Committed Treason. So for this, I doubt not out to prove that hee hath spoken Treason. Ser­jean. H [...]tcham, Case. Huttons Rep. 75. So for this, Thou hast spoken Treason, and I shall bang thee for it. 9. Jac. Beriffords Case. B. R. Bulstr. 1. part 148. So for this, Thou hast spoken Treason, and I will prove it. Spoken Trea­son. Croo. 2. 235. But it will not lye for this, Take heed you do not speak Treason. Nor for this, I fear you have spoken Treason, and shall advise upon it. Nor for this, I doubt you have spoken Treason, and I shall advise upon it. Bu [...]str. 1. part 148. Trin. 9. Jac. Benefords Case. This Action will Killed the King. lye for saying, Thou hast killed the King. Popham. Rep. 187.

So it will lye for saying, Thou hast committed Treason beyond the Seas, and didst run away from thy Captain. Lewis Case. Croo. 2. 424.

So it will lye for this, Go tell Mr. Carns that I am neither Traitor to Rebels. my Prince, nor Rebel to my Country, as J. S. is, it will lye for J. S. in this Case. Mich. 9. Jac.

So it is said, it will lye for saying of a Iustice of Peace, Deputy Lieu­tenant, a Servant of the Kings Person, or any such eminent person, that No true Sub­ject. hee is no true Subject. But otherwise it is if they be spoken of an ordinary person. See for this, Croo. 1. last publisht. 621. Croo. 2. 202. Walgraves Case. Bulstr. 3. 221. Yelvertons Rep. 104. Mich. 32. 33. Eliz. Co. B. Smiths Case. Goldsb. Rep. 441. But this, I am put out of the Parsonage house by Fowler, the Patron, who is neither the Queens friend, nor a true Subject, was held not actionable. Croo. 1. last publisht. 268.

So it is said to lye for this, Thou art an enemy to the State of this Rebel. Realm. Croo. 1. last publisht. 602. Hill. 40. Eliz. Co. B. Chambers Case. 38. Eliz. B. R. So for this, I was never a Traitor to the State, as you have been. Lamplews Case. See Stiles Rep. 435. But it will not lye Rebel. for saying of a man, Hee is a Rebel. 44. Eliz. Fountain and Grimes Case. Croo. 1. last publisht. 621.

So it séems it will lye for saying to one, Thou art a Rebel, and all that keep thee company are Rebels, and thou art not the Queens friend, for all this together. And yet it séems it will not lye for either part of these words alone. Croo. 1. part last publisht. 638. 876.

So it is said to lye for this, Thou dost harbour and maintain Rebels Maintain Re­bels. and Traitors. And this albeit hée do not say, Knowing them to be such. Goldsb. Rep. pl. 7. 48. See chap. 10. Sect. 10.

So it is held, it will lye for this, Thou wast partaker with the Re­bels Partake with Rebels. in the North in their Rebellion. But not for saying, Thou wast par­taker with the Rebels in the North, without more words; for this is alto­gether incertain. Bulstrode 2. part 109. Incertainty.

So for this, My Lord President in the North shewed Mr. Stapleton his hand set to a Book, whereby hee had consented to the late Rebels in the North, but by the means of Mr. Fairfax, my Lord President was perswa­ded, and the matter was suppressed. But if the words had béen thus, Hee [Page 34] consented to A. and B. (who were Rebels) and no more; perhaps they might not be actionable. As where it was said of one, Hee was confede­rate with Campian the Jesuite; these words (it is said) are not actionable, for hée might not know him to be a Jesuite. Croo. 1. last publisht. 251. 26. Eliz. inter Brown. & Lisle.

So it will lye for this, That John Peirse did say, that John Lewis [the Plaintiff] did say, that there is no Prince in England; with this Averment, By Report. Sect. 2. that John Peirse never spake any such words. Lewis Case. Croo. 2. 407. 413. 427. Bulstr. 3. 225. But to say, I have heard that A. B. is a Traitor. If he say by whom hée heard it, and re vera hée did hear it; it is not actionable. Croo. 2. 407.

So it will lye for a Master, for these words spoken to his Servant, Thou hast a Traitor to thy Master. Innuendo the Plaintiff. Croo. 1. part last publisht. 906. So for this, It is well known that I am a true Subject, but thou servest no true Subject. [Innuendo. W. W. Croo. 1. last publisht. No true Sub­ject. 191.

So it is held, it will lye for this, I am perswaded in my conscience Opinion only. Kill the King. Maintainest Rebels. [or I think in my conscience] thou wouldest, it thou couldest kill the King, and all his Subjects, and thou art a maintainer of Papists and Rebel­lious persons. Croo. 2. 407. Sydnhams Case. See Hobb. Rep. pl. 152. 180. Bulstr. 3. 260.

It is said in Godb. Rep. 147. to be adjudged not to lye for these words, Inclination. Thou art an arrant Papist, and it were no matter if such were hanged, and thou, and such as thou, wouldest pull the King out of his seat.

But this Action will not lye for such words as these, Hee is a seditious Adjective words. Knave, Nor as it hath béen said, for this, Hee is a Rebellious Knave, or he is a traiterous Knave. Coo. 4. 19. Bulstr. 2. part 210. And yet it is said, it will lye for saying of a man, Hee is a rebellious and traiterous Knave. See it. Croo. 1. part last publisht. 171.

Nor will this Action lye for this, Thou hast dealt treacherously with mee. But to say, Thou hast dealt treacherously with the King, are dangerous words, and may be actionable. Croo. 2. 80. Yelvertons Rep. 72.

Nor will it lye for these words, Thou art a Traitor, for I trusted thee Under qualifi­cation by other words. to buy Land for mee, and thou boughtest it for thy self. Coo. 4. 14. 15. 16. See in March. Rep. 20.

Nor for this, Thou art a Traitor, for thou didst affirm that the Kings Coin was faln a noble in the pound. In Bulstr. 265. Nor for this, Thou hast killed thy wife, and art a Traitor for it. Coo. 4. 13. 16.

It is said, that it will not lye for this, Hee is one that doth like of those Sedition. that do maintain sedition against the King. See Coo. 4. 13. 19. Croo. 2. 80. 81. And yet if it be of a great man, or the conference be about the great, publick, and violent Sedition, as the word doth most properly im­port; they may be actionable. Coo. 4. 13. Lord Cromwells Case. Nor will it lye for saying, One of the servants of A. B. (if hée have more than Incertainty in the person. one servant) or one that is néer to A. B. is a Traitor. For it is altogether incertain, who it is that is intended by this spéech. And no Innuendo can Innuendo. ascertain it. Coo. 4. 17.

This Action will lye for these words, Thou art a Coiner of false mony, About coining of mony. Sect. 3. and I have mony to shew which thou coynedst. Croo. 1. part last publisht. 629.

So for these words, Thou wast in Lancaster Gaol for coyning. To the which the party accused answered; I was there, and answered it well enough. And then hée replied, You were burnt in the hand for it. Croo. 2. 536.

But it will not lye for saying any such words as these, Thou art a coy­ner of Money, or, thou coynest gold, or, thou art a coyner of gold; or, thou mayest well be rich, for thou coynest thirty shillings in a day; for a man may coyn by authority, and it may be his trade. Mich. 9. Jac. Burnels Case. See the Cases reported in Godb. Rep. pl. 234, 375, 391.

It is said, this Action will lye for this, Thou hast forged a Privie Seal, About Forging the Kings Seal. Croo. 1. 157. But not for these words, Thou hast made the Great Seal. Hobb. Rep. pl. 48.

But upon this Head these things are to be known.

1 That in some of the Cases, and for some of the words said not to bée Actionable, if so it be that the Party of whom they are spoken have any special damage by them, he may perhaps in that Case have this Action for his damage.

2 In all the Cases before named, and in other Cases for words of the Averment. like nature, with the words before mentioned that doe bear Action, the Plaintiffe néed not shew any losse he hath sustained by them, for his Action will lye without this.

3 All the Actions that are brought for words of this nature, are and must be subject to the general Rules before laid down, viz. they must be malici­ous, false, particular, certain, positive, of a single, and clear intendment, under a capacity of Qualification, by the precedent and subsequen words spoken with them, and hold forth an Act done, and not an intent only; for albeit the words in themselves be Actionable, yet if they be incertain in the Person of whom they are spoken, or the like, they may not be Action­able.

CHAP. VII. Of words of Slander about matter of Murder.

FOr the opening of this particular about Slanderous words, that have Murder, what it is. Sect. 1. an import of any matter of Murder in them, wee are to know, That Murder is a great Crime, and the punishment appointed by the Law for it is great, the losse of the life, and the whole estate. If any man therefore doe by slanderous words charge another with this Crime, or any thing like unto it, he may have his remedy against him by this Action.

And therefore it is held that this Action will lye against a man for saying of another, That he is a Murtherer; Or for saying, that he hath committed Murtherer. Murther. Coo. 10. 130. and 4. 15. Dyer 236. Sée Owen. 33. So for this, Thou art a Murdering Knave. Croo. 1. 132, 133. So for this, Thou art a long shag-haired Murdring Rogue. Greenes Case, 9 Car. 1. B. R. So for this, He is a Man-slayer, and hath laine in wait to kill. 28 Eliz. B. R. Harris and Dixons Case. So for this, He is a maintainer of Murtherers. Coo. 4. 14. See Chap. 10. Sect. 10.

So it will lye for saying this, Thou hast killed J. S. Or, Thou hast Murdred J. S. or, Thou hast poysoned J. S. or, Thou hast killed thy Poyson. Husband, or the like. Croo. 2. 352. 438. Coo. 4. 16. And yet some have held it otherwise for the first words, Thou hast killed J. S. Croo. 2. 306. in Godb. 257. see after Sect. 3.

It is held it will lye for this, I will call him in question for the poyso­ning For the manner of utterance of the words. of my Aunt, and I make no question but to prove that hee hath poysoned her. In a Case cited in Noys Rep. 63. 39 Eliz. Webbs Case. Croo. 1. part last publisht. 169.

So for this, It will be proved by many vehement presumptions, that [Page 36] A. B. was the Plotter of the death of C. D. Pasche. 7. Jac. B. R. in Yel­vertons Rep. 153.

It is held it will lye for this, I have said that J. S. hath poysoned her Poyson. husband, and I will justifie it, and I have told her so much to her face. Croo. 2. 438.

It is held it will lye for these words said by a Servant, Thou hast kil­led Incertainty. my Masters Cook [with this in the Declaration, Innuendo, I. H. Servant to Mr. Dingley, who was murthered; and the Count was held Averment. good in this Case without any Averment who was his Master; or that Mr. Dingley was Master to him that was slaine. Croo. 2. 422. So for this, Sir Thomas Colt hath killed his Cook, without any Averment that his Cook is dead, Pasche. 1. Jac. B. R. Sir Tho. Holts Case. So for this, Thou Averment. didst kill a Woman great with childe, with this Addition in the Declara­tion. Innuendo, uxorem cujusdam. R. S. defunct. and this was held to be certaine enough. Mich. 2. Jac. B. R. Certainty.

It hath béen held it will lye for this, Hee took my Wife by the hand and said, Thou and I will be married shortly; and after that he dispatch't his Wife out of the way. Coo. 4. 16.

So for this said of A. A. [the Plaintiffe Innuendo] was with childe before she was married, and betwixt her Mother and her they murthered it, which childe was born alive, and heard cry; it is said the Action lies. Eyes Case in Bendloes Rep. 152.

So for this. Hee is infected with the Murther lately committed, and doth smell of it. Dyer 317.

So for this, Thou art a base Fellow, and didst kill thy first Wife. Bernards Case, B. R. in Stiles Rep. 227.

So for this, Thou art a Murtherer, for thou art the Fellow that didst kill Mr. Sydnhams Man. But then the Plaintiffe must be sure in his Declara­tion, Averment. one way or other to shew, that one of his Servants was flaine. Croo. 1. last publisht. 331.

It will lye for these words. Thou hast sought the blood of thy Hus­band, and wast his death, for if thou hadst been an honest Woman, hee had been alive yet, Croo. 1. part last publisht. 239. But in this Case in Averment. the Action brought, the Plaintiffe must aver that he is dead.

It is held it will lye for this, He came to such a house, where one lay sick upon his bed, and got upon the bed, and with his knee did break his bloud-bulk, and that thereby he had killed him. Sée Bulstr. 1. part 42.

So it is said it will lye for this, to say, A. is a Felon, and one standing by said, Take heed what you say, and then he saith, Is not hee a Felon that knew of a Murder and concealed it. And he knew of the Murder of Concealing Murder. Sect. 2. A. B. and did not reveal it till long after it was openly known. In Yel­vertons Rep. 154.

So for this, where two or three Colliers were burnt in a house, and some were executed for it, and one said of the Plaintiffe, Thou didst bring Faggots a mile and a halfe to the burning of the Colliers. It is said an Action will lye for this. In Huttons Rep. 122.

So for this, There was a man killed in the house of A. and she con­cealed the Murther. In Stiles Rep. 392. and yet it is said it will not lye Concealing Murder. for this, He is a Felon, for he knoweth of a Murder and concealeth it.

So it will lye for this, The Knave, the Apothecary that married my Sister hath poysoned my Unckle, and I will have him taken up againe to hang him. In Stiles Rep. 245.

So it is said to be held to lye for this, A. B. was found dead, and you kil­led him, In Hetleys Rep. 70.

[Page 37] It is said, it hath béen held to lye for this, One told mee that shee heard By Report. say, that Megs wife poisoned her Husband, in a Mesle of milk, with this Averment, that nullus dixit, &c. It is so reported by Goldsb. 139. Bend­loes Averment. Rep. 152. So for this, A. said that B. did report, that your Wife sa­crifized her childe to the Devil, to make away my mother. Pasche. 15. Jac. Locks Case.

It is said, it will not lye for this, Thou dost lead a life in manner of a Incertainty. Rogue, I doubt not but to see thee hanged for striking of Mr. Sydnhams man, who was murdered. Mich. 11. Jac. in Scaccario.

It is said, that it hath béen held to lye for this, Keynor is a base Gentle­man, hee hath four children by his servant Agnes, and hee hath killed them, or caused them to be killed. In Pophams Rep. 187.

It will not lye for this, A. struck his Cook on the head with a Cleaver, Incertainty. and cleaved his head, the one part lay on the one shoulder, and the other part lay on the other shoulder. Croo. 2. 184.

Nor for this, If two be speaking of the killing of Hares with Engines, Under qualifi­cation. and with reference to this; the one of them doth say to him that hath so done, Hee is a murtherer; in this case the subject matter of the discourse shews his meaning, and will qualifie the words, that they shall not be actionable. Coo. 4. 14.

It is said to have béen agréed to lye for this, That where two are talk­ing Certainty in the person charged. together of a Suit wherein the Plaintiff and others were Defendants; And in that discourse the Defendants used these words, These Defendants [Innuendo the Plaintiff and the other Defendants] are those that did help to murder H. Parrer. [Innuendo H. P. lately deceased] who was mur­dered by one T. H. who was hanged for it. In Hobb. Rep. pl. 118. And it was there held, that the words were certain enough as to the persons charged. But if there be thrée present, and one say to them, One of you Incertainty. three killed J. S. Or if one say, One of the servants of A. B. (who hath ma­ny servants) murdered J. S. this is altogether incertain, and not actionable. Fleetwoods Case in Hobb. Rep. 375. 351.

It is said, that it hath béen held to lye for this. Mris. Paffield did write a Attempt or in­deavour of Murder. Sect. 3. Letter to one to poison her Husband. In Bulstr. 1. part 2. Some doubt of this Case. Yet see Finches Law. 186.

It is said, it hath béen held to lye for this, thou didst place a woman in the house of J. S. to the intent to poison her. In Bulstr. 1. part 201. Finches Law. 186. So for this, Shee would have cut her husbands throat, and did attempt to do it. But that it will not lye for the first words. Lanes Rep. 98.

So for this, A. sent a Letter to my Master, and therein willed him to poison his wife. Croo. 1. part last publisht. 747.

So for this, thou didst lye in wait to assault mee, with an intent to kill [or to rob] mee. Mich. 4. Jac. and Pasche. 5. Jac. B. R. See in Bulstr. 2. part 206. Murreys Case.

So for this, thou didst procure one to lye in wait to murder mee. See Bulstr. 2. part 20. the contrary.

So for this, thou didst hire one to kill mee. Trin. 33. Eliz. B. R. Sut­tons Case. Yet see Croo. 3. 1. part last publisht. 191. where the Court séemed to hold the contrary to this. And yet there the Court agréed, that it will lye for this. Tabbot and Gough agreed to have hired a man to kill mee; And that Gough should shew mee to the hired man to kill mee. See the Report of one Murreys Case, in Bulstr. 2. part 206. which séems to op­pose this.

So for this, thou didst lye in wait to kill mee with a Pistol. Pasche. 5. [Page 38] Jac. B. R. So for this, thou didst send one to kill mee. Trin. 33. Eliz. B. R. Or thou didst send one to my house to kill mee. Yet see Murreys Case before named.

So for this, thou soughtest the life of J. S. If hée be dead. Mich. 7. Jac. Weblins Case. Yet see Coo. 4. 15. So for this, hee sought my innocent blood. Sir Edward Hertburyes Case. B. R. see Coo. 4. 15.

So for this, My Lord Lumley hath gone about to take away my life against all Christian dealing. Coo. 4. 16. 15. Hext Case. which seems in the case and reason of it to be against these cases.

So for this, My Lady Cockin offered to give poison to one to kill the childe in her body. 32. 33. Eliz. Coo. 4. 16. See in this Bulstr. 2. part 206.

So for this, If I had consented to Mr. Cardinal T. H. had not been a­live [or had been dispatcht out of the way.] Cardinals Case. Coo. 4. 16.

So for this. A. did prepare poison to kill mee. Yelvertons Rep. 90.

But it is said, it will not lye for this, Sir Francis Beamont did come to the house of Sir John Harper, and that hee and his servants went about to kill Sir John Harper, and that hee did maintain them, and that Sir John Harper may not have this Action for this. But if hée say hée did maintain them to that intent, or that any thing were done that way, it might happi­ly be actionable. Bulstr. 3. part 167.

And so generally in all cases, where the words do import an intent, joyn­ed with any overt Act of Attempt, or Endeavour, there the words will bée actionable. But, a Charge of an Inclination, or Purpose only to do a murder without any Act of endeavour or attempt, is not actionable. Coo. 4. Inclination or purpose only. 18. And therefore it would not lye for this, He gave his Champion coun­sel to make a Deed of Gift of his goods to kill mee, and then to fly out of the Country, but God preserved mee. Coo. 4. 18. Bulstr. 2. part 206.

And it is said, it hath béen held not to lye for this, Thou wouldest have killed mee. Trin. 4. Jac. B. R. for this is only punishable in case of Trea­son. Croo. 2. 407. Hobb. pl. 152. 180.

Nor for this, Shee would have cut her husbands throat. Lanes Rep. 98. Bulstr. 2. part 206.

Nor for this, Hee had a minde to have killed mee. Bulstr. 2. part. 206. Incertainty in words. General words.

Nor for this, Hee hath killed a man; For this hée may do as a Mini­ster of Iustice, or in the wars, or se defendendo, &c. Trin. 17. Car. B. R. And yet see the contrary before Sect. 1. Croo. 2. 352. 438. Coo. 4. 16.

Nor for this, Thou hast procured a perjured Knave to seek my blood. Words general, and incertain. 32. Eliz. B. R. Sir Edward Hastings Case. In Hobb. Rep. 196. 332.

Nor for this, Thou wert the death of J. S. or, thou wast the cause of his death; or, thou wast the cause that hee hanged himself, or cut his own throat. Croo. 1. last publisht. 239. See in Hetleys Rep. 70.

Nor will this Action lye for such words as these, Thou seekest my life. Coo. 4. 15. Yet see before some Cases, that séem to contradict this. Nor for this, Hee seeketh my blood. Sir Edward Hurtburies Case. See March of Slanders. part 2. 6. Nor for this, Thou wentest about to poison a childe. Eatons Case. Nor for this, Hee smells of the Murther of J. S. Dyer. 317. Nor for this, To say of one that is dead, J. S. was the cause of his death, and I will swear it on a Book. And yet if the discourse which occasioned the words, were about the Murther of him that is dead, the words are more dangerous. Bulstr. 2. part 10. 11.

For in all these latter Cases the words are too general and incertain to maintain the Action.

It is said, it will lye for these words, Thou hast poisoned J. S. And Sect. 4. [Page 39] this albeit hée be alive, or it appear hée is alive. For poison may break out upon him, and hée may escape. In Bulstr. 1. part 42. In Yelvertons Rep. 21.

So for this, Thou didst poison J. S. and it shall cost mee a hundred Poison. pound, or I will hang thee for it. New Book of Entries. 25. Yet see Hobb. Rep. pl. 11. And there it is held, that it must be said, that hée did it wil­lingly, or it is not actionable.

It is said, it will not lye for this, A. B. gave C. D. mony to shift him a­way as soon as he had killed R. T. Parrants Case. B. R. Quere of this.

But it is held, that the Action will not lye for these words, Thou hast Words of con­tradiction. killed my Wife, and art a Traitor for it. Nor for saying, thou hast killed thy Wife; for the words import that shée is alive at the time of the words spoken. But otherwise perhaps it may be if shée be re vera dead, and the Plaintiff do set it forth to be so in his Declaration. Coo. 4. 13. 16. Hill. 39. Eliz. Co. B. Bulstr. 3. part 167. Pasche. 5. Jac. B. R. Holt and Taylors Case. So it is in other Cases when it doth not appear in an Action brought for such words importing a Charge of killing another, that the party it is said hée killed was dead at the time of the words spoken. In Hobb. Rep. 8. Trin. 17. Car. 1. Co. B.

Nor for this; Thou art a blood-sucker, and seekest my blood. Nor this, Blood-sucker. Hee is a blood-sucker, not worthy to live in a Common-wealth, and his childe not born is bound to curse him. As it is reported by Noy 64. and in Popham. 177.

Nor for this, Thou art a cut-throat. In Bulstr. 3. part. 265. Cut-throat.

Nor for this, Thou art a companion of cut-throats. Croo. 1. last pub­lisht. 554.

But upon this head this also is to be known.

1 That in some of the Cases, and for some of the words herein said not to be actionable, if so it be, that the party of whom they are spoken, have any special damage by them, hée may perhaps in such a case have an Action for the words.

2 In all the Cases before named, and in other Cases of like nature with the words before mentioned, that are actionable words, the Plaintiff is not bound to set forth in his Declaration any special losse hée hath sustained by the words, for the Action is maintainable without it.

3. That in all the Cases of actionable words, they must be under the ge­neral Rules, viz. the words they must be false, malicious, particular, uni­vocal, positive, and certain, and such as import some Act done. For if they do not appear to be so, but they be true, or spoken in a way of Iustice, or the like, that they appear not to be malicious, or be altogether incertain, either in the person, or thing, or be under a qualification by other words spoken at the same time, or import only an intent to do something, but nothing is done, or the like, no Action will lye upon them.

4. That the Plaintiff in his Action brought for such words as these, is Averment. not bound to say, or set forth that the Charge by the words did import a malicious, voluntary, or willing Murder, or that the party said to be mur­thered, is dead, or died within the year. But this is certain, That where the Action is brought for words of import, to charge the Plaintiff with the kil­ling of a man, it will be the sure way for the Plaintiff in his Declaration, to shew that hée is dead, and was so when the words were spoken. Or if hée do not so, then it will be the wisdome of the Defendant in his pleading, to shew hée is yet alive, or was alive when the words were spoken; for then no Action will lye upon them. Coo. 4. 16. Croo. 2. 252. Yelverton. 20. 21. Croo. 1. part last publisht. 823. Croo. 2. 438. Bulstr. 1. part 42. Hobb. Rep. pl. 11. New Book of Entries. fol. 24.

CHAP. VIII. Of words of Slander, about Matter of Witchcraft.

THis offence of Witchcraft, by the use of Invocation, or Conjuration Witchcraft, what it is. Sect. 1. of evil Spirits, to take up any part of a dead person to bée used in any Witchcraft, and used to kill, or lame any person is Felony. To take upon one by Witchcraft, and such like waies, to discover any thing lost, or any treasure, to provoke to unlawful love, or to destroy, or hurt any person, cattle, or goods, is a great offence and very penal: If any man therefore shall by slanderous words, charge another with this Crime, or anything like unto it, hée may have this Action for his remedy. Stat. 1. Jac. chap. 12. Coo. 13. 59. And therefore it is held; that this Action will lye for the words as they are mentioned, in the Cases hereafter follow­ing.

Some of the Iudges have from time to time béen of opinion; that this Witch. Action will lye, for calling of a man or woman Witch; or saying, hée, [or shée] is a Witch, without the Addition of any other words to it: And some Iudgements are said to bée given accordingly. For which see, Croo. 2. 306. 150. 639. 531. 205. In Godb. pl. 435. But the main current of the Iudges opinions and judgements are the other way, and the Law (as it séems) is now taken to bée; that this Action will not lye for saying one is a Witch; without the addition of some other words, im­porting that hée hath bewitched some Person, or his goods, &c. For which see, Finches Law 126. Croo. 2. 399. 150. 205. 236 531. 660. Croo. 1. 233. 205. 236. 340. 233. In Godb. Rep. 257. 341. 17. Jac. Hawks Case M. 8. Jac. B. R. Shirdens Case. Brownl. 2. part. 14. Bend­loes Rep. 23. 127. Hellenas Case. Stiles Rep. 11. 47.

It is said, to be adjudged, to lye for the words in the Cases hereafter next following. That is to say, The Devil appeareth to thee every night in the likeness of a black man, [or a black horse] and thou con­ferrest with him, and hee giveth thee what thou askest, and therefore thou hast so much money. Marshals Case, by Hobb. pl. 137. 162.

But it is doubted whether it will lye for the words in the Case, next hereafter following, that is to say,

Thou art a Witch, and wert the death of such a mans childe, at whose birth thou wert Midwife. In Godb. Rep. 341. Bendloes Rep. 127.

And so whether it will lye for this; Thou art a hagg. in Hobb. Rep. 155. Hagg.

And so whether it will lye for this; Thou art a Witch, and hast be­witcht my wives milk. Croo. 2. 600.

And so whether it will lye for this; A. did bewitch my goodman, Incertainty. Innuendo my husband. Stiles Rep. 106.

And so whether it will lye for this; Thou hast bewitched one. Stiles Rep. 106.

But there it is the opinion of two Iudges, that it will lye for saying; Thou hast bewitched a man. Stiles Rep. 106.

And for these words it is said it will lye; thou art a Witch, and didst Sect. 2. bewitch my Mothers drink, and being asked after why shée did it, shée said: If I have called her Witch, wee will prove her a Witch, and an­swer Witch. what wee have done. Hughes Case, Croo. 1. part 100.

And for this, thou art a Witch, and hast bewitched J. S. to death. [Page 41] Croo. 1. 100. Godb. 341. Croo. 1. 341. And for this, hee is a Witch Witch and In­chanter▪ and an Inchanter, and hath bewitched the children of one Strong. Hut­ton Rep. 13. yet see Bendloes 127. And for this, thou art a Witch, and thou hast bewitched children that they are wasted and destroyed. Stones Case, Brownl. 1. part 2. 7. Croo. 1. part 341. Huttons Rep. 13. And for this, He is a Witch, and a strong Witch, and hath bewitched me and my Aunt A. S. Ceelies Case. Croo. 1. 341. Stiles Rep. 106.

And for this, Thou and thy VVife [Innuendo, the Plaintiffe and Ag­nes his Wife [are both VVitches. and have bewitched my Mare [In­nuendo, the Mare predict. Thome.] whereas it should have been, predict. Richardi. Tho. Smith versus Cooker. Croo. 1. 368.

And for this thou art a Witch and a Sorcerer. Croo. 1. last publisht. 571. And for this, Shee hath bewitched J. S. by VVitchfraft and Sorcery. Witch and Sor­cerer. Croo. 1. part 189. Goldsb. 341.

And for this, Thou art a VVitch, for thou hast bewitched my Cow. Savils Case. Stiles Rep. 59. 65.

And for this, I. S. is a VVitch, and hath bewitched two of the servants Averment. of I. S. to death, and there held that the Plaintiffe néed not to aver that any person is dead, or how she did bewitch. Croo. 2. 639.

And for this, Thou dost work by Nigromancy, and dost work by the Devil. Yelvertons Rep. 150.

And for this, Long is a Murtherer, and hath bewitched my childe, and was the death of my childe. Mich. 23. Car. B. R. in Stiles Rep. 65.

And for this, Thou art a VVitch, and dealest with VVitchery, and didst procure Mother Rale to bewitch the Cattle of I. S. Hill. 20. Jac. Sée in March of Slanders, 1. part 15.

And it is said it will lye for this, Thou hast killed a man by VVitch­craft, Certainty. and that this is certaine enough. Stiles Rep. 106.

But it is reported, and said to be held, that this Action will not lye for the words in the Cases hereafter following (that is to say) for saying of I. S. That he is a Sorcerer and Inchanter. Muttons Case. Coo. 13. 59. Sorcerer and Inchanter. Conjurer. Brownl. 2. part 276. Nor (as it séemes) for saying of a man, Hee is a Conjurer; but if he saith, He is a Conjurer of the Devil, or, of any evil or wicked spirit, the words are more dangerous. Godb. Rep. 341. and yet some have held the contrary, and that all these words are Actionable, because they doe, as the Witch doth, deal with the Devil, the one by a­gréement, the other by prayer, and such like means. Some would have it Hagge. for to lye for calling of one Hag, others doubt of it. Hobb. Rep. 155.

Nor for this, Thou art a Witch and Inchanter, and hast bewitched Witch and In­chanter. Witchcraft. Strongs children. Brown. 1. part 2. 7.

Nor for this, He hath bewitched my VVeare that I can catch no Fish.

Nor for this, Thou art a VVitch, and hast bewitched my childe. Mel­lon versus, Hern. Godb. 341. Stiles Rep. 11. 66. 59. Huttons Rep. 132.

Nor for this, Mary Yates is a Sorcerer and a Witch, and a White Sorcerer and Witch. Witch, she can bewitch and unbewitch. Stiles Rep. 47.

Nor for this, Shee is a Witch, and I will take my oath of it. Turners Case, Stiles Rep. 47.

Nor for this, Thou art a Conjuring Knave. Bulstr. 1. part 138. Nor Conjuring Knave. for this, Thou art a Witch, and a strong Witch, Croo. 1. 205. 236.

Nor for this, Thou art a Witch, and by thy means I have lost my Mare. Hawks Case, Croo. Rep. 2. 531.

Nor for this, Thou art a Witch, and I will make thee come and say. God save my Mare; I was forced to get my Mare charmed for thee Croo. Rep. 1. 233.

Nor for this, Mr. Lowes is a Witch, and I will prove it, for I have Sect. 3. seen him, and his imps, and evil spirits appear unto me in my chamber, and put me in fear of my life; and he said, Come, he will never bee at quiet till we have killed him, and he did bewitch a childe of mine. Lowes Case, Bulstr. 3. part 74.

But upon this Head, these things are also to be known.

1 That for these, and such like words before mentioned therein, that are not Actionable, that albeit the words in themselves are not Actionable, yet if any special damage shall come thereby to him of whom they are spo­ken, he may happily have this Action for them. Croo. 2. 202.

2 That for all the words herein before mentioned to be Actionable in themselves, and for all such like words, this Action will lye, without A­verment Averment. of any special losse sustained by the party of whom they are spo­ken. Croo. 1. 101. See March Rep. pl. 2. 93.

3 That such kind of slanderous words as these are, must bee under the general Rules before laid down, Malicious, false, certain, &c. For if they be true, or not malicious, too general, of a double intendment, or doubt­ful meaning, or not sufficiently positive, or altogether incertain in them­selves, either as to the person of whom they are spoken, or in the thing spoken of that person, or under a Qualification by the precedent or subse­quent words spoken at the same time, or import an intent only of doing an act, and no act done, they may not be Actionable.

CHAP. IX. Of words of Slander about Rape, Sodomy, Buggery, and House-burning.

THe Ravishment of a Woman is by the Law a very great Offence, and Rape. very penal, and therefore if any man shall charge another with this Of­fence, or any thing like unto it, the party slandered hereby shall have this Action for his Relief therein. Stat. 13 Eliz. chap. 6. 39 Eliz. chap. 9. and therefore it hath been held, That an Action will lye for the words in the Cases hereafter following (that is to say) for saying, Thou didst ravish I. S. and for this, He should have been hang'd for a Rape, and it cost him dear. M. 39, 40 Eliz. B. R. Redfernes Case. Croo. 1. part last pub­lisht, 589. And for this, He is ravishing of I. S. Croo. 1. 101. And for this, Thou [Innuendo the Plaintiffe] hast ravished a Woman twice, and I will make thee to stand in a white sheet for it. In Godb. Rep. 287.

Sodomy in the eye of Law is a great Crime, and very penal; and there­fore Sodomy. if any man shall slanderously charge another with this, or any thing like unto it, this may be actionable, 25 H. 8. cap. 6. 5. Eliz. cap. 17. Coo. 12. 37. and therefore this Action will lye for calling of one So­domite, or for saying, He hath committed Sodomy. Coo. 10. 130. Sodomite. and 4. 15, 16.

The like may be said of this offence of Buggery, and of words scanda­lous Buggery. about it; and therefore it is held that this Action will lye for calling of one Buggerer, or saying of one, That he hath committed Buggery. Buggerer. Coo. 10. 130. and 4. 15, 16.

The burning of any dwelling House, or Barn full of Corn, or any Out-house House-burning adjoyning to such dwelling House or Barn, is also by Law Felony, and very penal to the Offender; and therefore if any man shall slanderously charge another with this, or anything like unto it, this may be actiona­ble; this Action is therefore said to lye for saying, Thou didst burn a [Page 43] dwelling house, or thou didst burn a barn with corn: But it will not lye for saying, Thou didst burn a barn, or thou didst burn a barn with thine own hands. Nor may such words bée made Actionable by enforcing it with an Innuendo in the Declaration, Innuendo a barn full of corn. Adjudged New. B. of entries. fol. 25. Coo. 4. 14. 20. In Yelver­tons Rep. 21. Bulstr. 1. part 112. Croo. 2. 184. Hobb. Rep. 196. 332. 350. And yet it hath béen adjudged to lye for this, B. is a bad minded man, and none but hee did burn my fathers barn; and hee doth use to set fire of barns about Michaelmas, when they are full of corn. In Noys Rep. 155. And sée in a Case where two or thrée Colliers were burnt in a barn, and some were executed for it; where one said of J. S. Thou didst bring fag­gots a mile and a half, to the burning of the Colliers. Huttons Rep. 122. But it is said it will not lye for this, thou hast burnt my barn, for which thou wilt bee hanged. In Bulstr. 3. part. 267.

In an Action for these words, I am sure that A. B. did burn my Barn, In­nuendo a Barn full of Corn, and I will have a bout with him for it; If my Lord cheif Iustice would have done mée right, I would have hanged him for it; in this Case the Iudges did most incline, that the words were not Actionable. Croo. 1. part. last publisht 834.

It is said, it hath béen adjudged to lye for this, hee hath harboured About the re­ceiving of a Priest. and received his Son into his house, having notice of him before that hee was a Seminary priest; for this is Felony, see in Bulstr. 1. part 181.

And here this also is to bée added to all the Cases before laid down in this chapter, as in the former chapters; That in Cases where one shall slanderously charge another with any Crime, made Felony by any Sta­tute Law, or with any thing like unto it: As with the having of two wives, the Imbezeling or razing of Records, the wilful putting out of a mans eyes, or cutting out of his tongue, the Levying of a fine, or acknow­ledgment of a Statute in another mans name, conveying away of the Kings Ordnance, or Armour, or the like, this Action may bée main­tainable for it.

And in all such Actions, the Rule before laid down in the Actions for Slanders about matter of Murder, do held place here.

1 That if the words import any great slander, and bée not in themselves Actionable; yet if any special damage happen to the party of whom they are spoken, by them; they may by this become Actionable.

2 That in Actions for such words as these, there will not néed any Aver­ment of special damage by them.

3 That if the thing said bée true, or not malitiously said, or too general, of a double intendment, or of a doubtful meaning, or not sufficiently po­sitive, or altogether incertain in themselves, either as to the person slan­dered, or the slander it self, or under a qualification by the precedent or subsequent words spoken at the same time, or import an intent only of do­ing an Act; and no Act done, they may not bee Actionable.

CHAP. X. Of words of Slander about matter of Theft.

AS to Slanderous words that have an Import in them of any matter of Theft; we are to know, that Theft is the unlawful taking away of a­nother mans goods from him against his will, and this is a great offence and Theft, what it is. very Penal: For by the greater Felony, which is the stealing of any thing Sect. 1. above Twelve Pence in value, the offender doth in many cases loose his [Page 44] life, and all his estate by it. And by the lesser Felony, which is the feloni­ous Petit Larcenie. taking of any thing under the value of twelve pence (which is called Petit Larceny) by this hée will forfeit all his goods; and become liable to such corporal punishment of whipping, and the like, as the Iudges shall ap­point. If therefore any one shall charge another falsly with any crime of this nature, hée may have his remedy by this Action. It is therefore said to be agréed, that this Action will lye for these words, and as they are set forth in the Cases hereafter following, viz. for calling of a man Sacri­ledger, or Church-robbet; or for saying, Thou hast committed Sacriledge, Sacriledge and Sacriledger. Church-robber. or, thou hast robbed the Church of Dale. Pasche. 5. Jac. B. R.

So it is said, it hath béen held maintainable for these words, A. is robbing the Church of S. Or, Thou hast robbed the Church of S. Croo. 1. 301. Dr. Sibthorps Case. But for saying, Thou hast robbed the Church, without more words, it séems no Action will lye, for the incertainty of the words, what Church hée intended, a Visible, or Invisible Church. And Incertainty. yet to say of one, That hee hath robbed a Church, is conceived, may bée actionable, and that it shall be intended to be spoken of a material Church. See in March. of Slanders. 1. part 48.

It is said to be adjudged to lye for this, Thou hast robbed the Church of A. and thou hast stoln the Lead from off the Church [Innuendo the Church of A. M. 4. Jac. Benson and Morlyes Case. Croo. 2. 153. But that it will not lye for saying, Thou hast robbed the Church of Dale, for thou hast stoln away the Lead of it. Coo. 10. 130. 4. 15. Croo. 2. 153.

It is said, that this Action will lye for this, Hee hath robbed a Church, not saying what Church, as the Chuch of Dale, &c. and that an Innuendo Certainty. may make it certain. Croo. 1. 301. Croo. 2. 154.

This Action (it is said) will lye for calling of one Pirate. Or for say­ing of him, Hee hath committed Piracy. So for saying, Thou maintain­est Piracy. Pirate. Pirates, who rob upon the Seas. So for this, Thou art a Main­tainer of Pirates, and a procurer of piracies. Croo. 2. 629. Coo. 4. 14.

It is held to be out of question, That this Action will lye for calling of one Theef, Robber, or House-Robber. So for saying of one, Hee hath Other Theft. Theef. Robber. House-robber. committed a Robbery, or, hee hath committed a Burglary. Coo. 10. 130. 27. H. 8. 11. 14. Dyer. 112, 236. Croo. 1. 329. In Owens Rep. 33. 47. In Noys Rep. 10. 20. So for this, Thou art a Sheep-stealer. So for this, Thou art a Horse-stealer, In Bulstr. 3. part 303. 260. In Bendloes Sheep-stealer. Rep. 154. So for saying, Thou art a Welch-Theef. Croo. 1. 329. So for this, A. hath stoln my Sheep. In Huttons Rep. 8. So for this, A. Horse-stealer. hath stoln Sheep. So for this, A. hath stoln Sheep from B. C. 27. H. 8. 22. N. 26. H. 8. 9. pl. 11. So for this, Thou art a Roguish Knave and a Theef. Bulstr. 2. part 134. So for this, Thou didst steal the Horse of J. S. In Hobb. Rep. pl. 196. So for this, Thou art a cunning Theef. Bulstr. 1. part 146. 210. So for this, Hee is a Theef to you, and to mee, and hath stoln twenty pound from mee, and forty pound from you. Croo. 2. 676.

So for this, Thou didst meet mee on the way, and askedst my purse, and I gave thee five shillings for fear. Bonds Case.

So for this, A. did set on mee, and took my purse from mee, not say­ing in the high way.

So for this, Thou didst set upon mee in the high way, and didst take away from mee my purse, and I will be sworn to it. Stoners Case. B. R.

So for this, Thou didst set upon mee, and tookest away my purse, with twenty marks in it, go with mee before a Justice, and I will charge thee [Page 45] with Felony. Lewis Case in the Chequer Chamber.

So for this, Thou didst violently upon the high way take away my purse from mee, and four shiilings two pence in it, and didst threaten mee to cut mee off in the midst, but I was forced to run away to save my life. Lawrence Case. Croo. 1. 102. M. 8. Car. 1. B. R.

It is said, it will lye for this, Hee hath robbed J. S. And this albeit J. S. were never robbed. Mich. 9. Jac. B. R.

So for this, Hee is a Theef, and hath stoln my gold. Albeit hée do not say when hée did steal it. Croo. 2. 622.

So for this, Thou didst steal my Horse, and wast in Gaol for it. Hobb. Rep. 196.

So for this, Hee hath stoln a horse, and it will be proved by twenty witnesses. Hares Case.

And yet it is said, it will not lye for this, Thou didst take away my mony [or the mony of J. S.] Hobb. Rep. pl. 11. 106. 332. 350. Croo. 2. 184. Brownl. Rep. 1. 2. Coo. 4. 15. Nor for this, Thou hast stoln by the high way side. Davis Case. Pasche. 38. Eliz. Goldsb. 143. Bulstr. 1. part 112. Nor for this, Thou didst beat mee, and took away my purse from mee. 37. Eliz. Co. B. March. of Slanders. 1. part 47. Nor for this, Hee did assault mee, and take away my money. Bulstr. 1. part 112. Nor for this, Hee took away money from him with a strong hand. Mich. 15. Car. B. R. Nor for this, Thou didst take away my money with a strong hand. Bulstr. 1. part 112. March. Rep. pl. 91. And Innuendo Felony in the de­claration will not alter the Case. Godb. Rep. 181. Nor for this, Thou Innuendo. didst take away my purse, and twenty shillings in it. Hobb. Rep. pl. 268. So for this, Thou didst set upon mee in the high way, and take my purse from mee, and twenty marks in it, and I will be sworn to it. Croo. 2. 315. Holland and Stoner. Bulstr. 1. 112. for there is no certain charge of Felony in it. Hobb. Rep. pl. 268. 382. See in March. Rep. pl. 91.

Nor for this, I have a matter against A. who hath stoln by the high way side. Croo. 1. part last publisht. 459. See of this more upon the incertainty Sect. 2. of the charge. Afterwards in this chap.

It is said, the Action will lye for this, Thou hast stoln my goods, and I will have thy neck. In Brownl. 2. part 230. 280. So for this, Thou art a Theef, for thou hast stoln my Cock. In Brownl. 1. part 1. Or, thou hast stoln my two Cocks [or my two Hens. [or my other goods. Trin. 5. Jac. B. R. Bensers Case.

So for this, You, huswife, are a Theef, and have stoln my purse; and it Certainty. was said, that there was certainty enough in it. Stiles Rep. 150.

So for this, J. S. did load a Ship of my Masters with Barley, and did steal and couzen seven quarters thereof in measure. Mich. 20. Jac. Co. B. Winch. 41. See Winch. 202.

So for this, Thou hast stoln Plate in Cambridge, and wee will charge thee with Felony for it. Wilb. and Gunning. 2. H. 7. 16.

So for this, Thou hast stoln a Sack, and a Curry-comb, and I will make thee produce it. And thou didst steal my Fathers Wood, and give it to a Whore. Brownl. Rep. 2. Hobb. Rep. 192. Skarlets Case.

So for this, Thou art a Theef, and hast broken my Chest. In Stiles Rep. 115. Wainwrights Case. Trin. 24. Car. B. R.

So for this, Thou art a Theef, for thou hast stoln the Town-beam [In­nuendo the Town of W. per Serjeant Hutton. Brownl. 3.

So for this, Thou art a steal-gown, and the first Gown that thou didst wear thou stolest, and thou didst walk up and down in the stole Gown, and hadst no Gown till thou didst steal one. New Book of Entries. 23. D. Sect. 20.

So for this, A. hath stoln my Axe from my Wood-pan. Edwards Case, in Stiles Rep. 213.

So for this, That he stole two or three pound of Tobacco out of his Masters shop, and yet there it is said, That it will not lye for this, Hee Averment. stole the Tobacco out of his Masters shop, without a special Averment that there was Tobacco there, and what it was. Wotherlies Case in Win­ches. Rep. 6. 15.

So for this, Thou art a Thief, for thou hast cut off the Ear-mark of my sheep, and set on thine own. See in March of Slanders. 2 part 4.

So for this, Thou wouldst have stole a peice of cloath, or else thou wouldst have delivered it to my Wives daughter, thou art a thief, and an arrant thief, and I will prove it. In Goldsb. Rep. 85. So for this. A. is robbing of I. S. Croo. Rep. 1. 101.

So for this, A. is as very a Thief as any that robbeth by the High-way side. So for this, A. is a worse thief than any that robbeth by the high-way side. Croo. 1. last publisht. 224.

So for this, to say of one suspect, and proseeuted for stealing of a Horse, That he did steal him; for common fame of a man that he is a Thief, will not warrant any man to call him so, or to say, Hee is a thief. Mich. 13. Jac. Co. B. Cuddington against Wilkins. See Hobb. Rep. pl. 105. 112. 238. 381. So for this, There is a great nest of Theeves at Pinton, and Sir John Bridges is the maintainer of them, and hee is a Thief himself, Dyer 75.

So for this, I. S. was questioned for stealing of a gray Mare with a Manner of the speaking. snip in her ear, and Hue and Cry went out after him, and hee durst not shew his face hereabouts. Stiles Rep. 159.

So for this, I did meet J. S. and others, such a day in such a place, and they bid me deliver my Purse, and I being afraid, put my hand in my Pocket, and took out two shillings six pence, and gave it over my shoul­der Incertainty in the person slandered. Sect. 3. to one of them, I know not which, it will lye for J. S. but not for any of the rest. Yelvertons Rep. 158.

So for this, Take heed how you lodge J. S. for hee takes Purses. By two Judges. Bulstr. 1. part 112. So for this, Thou art a Rogueish knave and a thief. Bulstr. 134. So for this, Thou art a cunning thief. Bulstr. 2. part 146.

So it is said to lye for this, You doe not well that you doe not appre­hend J. S. for a Felon, and seize his goods, for he hath stole a sheep from A. B. Croo. 2. 126. So for this, Hee would have robbed me, and did rob me of my Dagger. Bulstr. 2. part 227.

It is said it will lye for this, There is not a Purse cut within twenty Cut-purse. miles but I. S. knowes of it. and hath a share in it. Balls Case.

So for this, Thou art a cunning Cut-purse Knave. Trevillians Case, B. R. But not for this, He is a Cut-purse; Nor for this, He is a cunning Knave, and acquainted with more Cut-purses than any man in Nor­thamptonshire. Bulstr. 1. 147. Croo. 2. 536. Godb. Rep. 181.

Nor for this, Thou hast cut my Purse, therefore I charge thee with Felony; but if he say, Thou hast cut my Purse feloniously, it may perhaps Pick-pocket. be otherwise. Croo. 1. part last publisht, 890.

It is said to lye for this, Thou hast taken out of my Pocket forty pound of my Mony, and I will cause thee to be indicted at the Sessions of the Peace, and to hold up thy hand at the Bar for it. But that it will not lye for this, He hath picked out of my pocket silver and gold. Croo. 1. part 238. Yelverton. 136. Dromants Case; or taken out of my pocket silver and gold, or picked my pocket, and taken away ten shillings. Stiles [Page 47] Rep. 127. Croo. 2. 498. And yet it is said it will lye for this, Thou hast Picked my Pocket, Quere thereof, and see Croo. 1. 238. In Godb. 287. pl. 413.

It is said it will not lye for this, Hee is a Pilfering fellow, and hath Pilferer, and Pilfering fel­low. Pilfered away my corn and goods from my wife and children. Huttons Rep. 14. Owens Rep. 56. Carters Case. M. 37. 38. Eliz. B. R. Croo. 1. last publisht 424. Nor for this, Hee is a Prigging Pilfering fellow. Nor A Prigging fellow. for this, Thou art suspected to bee a common Pilferer.

Nor for this, Thou art a Filching fellow, and hast Filched away Ten Filcher, and Filching fel­low. Pounds from mee. Hobb. Rep. pl. 323. Croo. 4. 15.

Nor for this, Thou art a common Filcher. Croo. 1. last publisht 554.

This Action will lye for these strange words, where the use and mean­ing of them is known; Thou art a healer of Felonies, and hast shewed such For strange words used in some Countries. a favour to a Horse stealer, that thereby both the Horse and Theef were conveyed away, and it is in my Power to hang thee. Yelvertons Rep. 153. Healer of Fe­lons. Hobb. Rep. 191. So for this, Thou art a healer of Felons. Hobb. Rep. 191. So for this, spoken before them that know the use of it; Thou art a Sheep-Theef. So for this, Thou art an Out-putter. So for this, Croo. Sheep-theef. Out-putter. 1. last publisht 250. Bulstr. 2. part 145. Brownl. 1. part 13. Hobb. Rep. 350.

And this also (as it séems) without any Averment in the Declaration, Strained a mare. that the sense of the words is so and so; for this may bée proved at the Tryal by witnesses. Mores Case. 6. Jac. R. B. Hughes Abridgement page Averment. 37. part 47. And yet some hold this Averment necessary. Brownl. 1. part 13. Croo. 1. 96. Benloes Rep. 134. Stiles Rep. 296. March. Rep. 1. 18.

So it is said it will lye for this for the Father, Barber and his wife bee false theeves, men cannot have their cattle go upon the Common, but they will kill them and eat them. Barbers Case.

So this Action (it is said) will lye for this, A. hath halfe my goods, and shall be hanged for it. 8. Jac. B. R. Long & Kings Case. Sed Quere of this. For it is said, it will not lye for this; I had Fourty Pounds worth of Plate, and A. hath it, and will bee hanged for it. Trin. 12. Jac. Kings Case.

So it will lye for this, Hee is not fit to be a Constable, for hee and his Incertainty in the person slandered▪ company, the last time hee was Constable, stole five of my Swine, and eat them: But it will lye only for him that is the Constable, and not for any others. Croo. 1. last publisht 861.

So it is said, it will lye against a husband and wife, for these words By improper words. Sect. 4. spoken by the wife, Mr. Plunket did Steal my Plate out of my chamber. And yet in propriety of spéech, it was not hers but her husbands Plate. Croo. 1. 38. and 2. 60.

So for this said by a wife, Thou art a theevish Quean, for thou hast stolen my Faggots, Innuendo five Faggots of the defendants husbands. Croo. 1. 88. and 2. 60. So for this spoken by the wife of another, Thou hast stoln my two Cocks. Mich. 9. Jac. B. R. See Croo. 1. part last publisht 279. Charnels Case. B. R.

It is said that this Action will lye for this said to a Father; I will take Certainty and Incertainty of the person slandered, Averment. my oath that your Son stole my Hens? So it bée with this Averment in the Declaration, that the Plaintiff is his Son, and that hée hath no other son, or that the words were intended of him that brings the Action by some other words spoken at the same time. Mich. 15. Car. B. R. Stiles Rep. 46. So for saying of J. S. That hee was one of those that Robbed J. S. Goldsb. 85.

So for saying to the Son, Thy Father is a Theef, and hath stolen more Averment. goods then I am worth; this will lye for the Father, and that without Averment of what hée is worth that spake the words. Bulstr. 2. part 141. Painters Case. Mich. 11. Jac. B. R.

So it is said, it will lye for a Boy that is present for these words said of him, This Boy is a Theef. Brownl. 1. part 2.

So if two be talking together of John Syms, and William Syms, and one of them saith, These Symses are Theeves, otherwise it is if hée say, The Symses are Theeves. In Haghes Rep. 39.

This Action (it is said) will lye for the Father, where these words are said to the Son, Thy Father hath stoln such goods. So it will lye for a Husband, where these words are said to the Wife, Thy Husband hath stoln Averment. such goods; and that without any Averment at all. But in Cases where it is said to a Father of a Son in general, no Action will lye for a Son, with­out some special Averment, that hée hath no other son, or that the son that brings the Action was intended in the words. Croo. 1. 127. and 2. 443.

It is said, it will lye for this, I have a Son in A. who had his Chest picked, and a hundred pound taken out of it in the house of one B. and I think I have found the Theef, who it is; it is one that dwelleth in the next house, called Robert Kingston; If there be such a man there, hée may per­haps Averment. have this Action, but then hée must averr that hée doth dwell in the next house. Pasche, 7. Jac. B. R.

So it is said, it will lye for these words, Pritchards man hath robbed Averment. mee. But then the Plaintiff must in his Action insert this Averment, that hée was Pritchards man, and that hée had no man but him, or that the con­ference was about him, &c.

But it will not lye for this, said of any one without any precedent Com­munication Incertainty of the person. of any person incertain, One that is mine Adversary is a Theef. Nor for this, One that is neer about J. S. is a theef. For the incertainty of the person standered. Coo. 4. 17. Hobb. Rep. 375. pl. 35. Nor for this, One of the Servants of J. S. is a theef, if hée have more servants than one. Hobb. Rep. 351. 371. Coo. 4. 17. Croo. 1. 127. Brownl. 1. part 1. 7. 9. 10. 13. Certainty and incertainty in the matter of the Slander. Innuendo. Sect. 5.

It will not lye for these words, You have committed Burglary in break­ing of his house [Innuendo the house of one Bennet] and stealing his goods; For this may be but trespasse. And it is not said, whose house hée brake, but by the Innuendo, which is not sufficient to make it certain. Croo. 1. part last publisht. 889.

Nor for this, Hee is as arrant a Theef as any in England, and broke up the chest of J. S. and took away forty pound out of it. Huttons Rep. 72. Yelverton 90. Croo. 2. 687. Foster and Browning.

Nor for this, Thou art drunk, and I never held up my hand at the Bar, as thou hast done. Nor for this, Thou wast arraigned for Felony &c. Nor for this, Thou didst hold up thy hand for Felony. Nor for this, Thou wast in the Gaol at G. for robbing, &c. Nor for this, Thou didst take away my mony. Nor for this, Thou didst beat mee, and take away my mony. Nor for this, Thou didst take away my mony with a strong hand. Bulstr. 1. part 112. March. Rep. pl. 91. Nor for this, Thou didst take away my purse, and twenty shillings in it. Hobb. Rep. Lynes Case. 268. Nor for this, I have an Action against J. S. who hath stoln by the high way side. Benizens Case. 37. Eliz. B. R. Quere of this. Yet see Hobb. Rep. pl. 382. a Case somewhat like to it. Nor for this, Thou Cut-purse. art a cut-purse; for so every Glover is. Godb. Rep. 181. Trin. 17. Jac. B. R. Croo. 2. 536. Bulstr. 1. part 147. Pophams Rep, 180. Buls Case.

Nor for this, A. was robbed of forty pound, and a hundred marks-worth of Plate, and B. and C. had it, and for that, by God, they will bee Hee will bee hanged. hanged for it. for it may be they did not steal it, but came lawfully by it; And the latter words, they will be hanged for it, are not actionable. Croo. 2. 302. 331. Bulstr. 1. part 147. Jenk. Cent. 8. Case 92. Bulstr. 1. part 147.

Nor for this, A. hath received again his peeces of cloth, and beareth with the Theef; Innuendo quendam malefactorem ignotum. Noys Rep. 57.

Nor for this, A. hath broken my shop, and taken away my goods. 29. Eliz. George against Parker. In Noys Rep. 57.

Nor for this, Thou art as bad as thy Wife, when she stole my Cushion, Averment. without some Averment, that there was such a Felony committed. Croo. 2. 331. Goldsb. Rep. 242.

Nor for this, J. S. deserves to be hanged. Nor for this, J. S. deserves Hee deserves to be hanged. hanging. Nor for this, It is in my power to hang thee. M. 4. Jac. B. R. Pasche. 38. Eliz. Hollands Case. 10. Jac. B. R. Pridhams Case. Trin. 16. I can hang thee. Car. 1. B. R.

Nor for this, Thy brother was whipt about Taunton Cross for stealing of sheep, or, burned in the hand, or shoulder. Croo. 1. 106. Mich, 8. Car. 1. B. R. Hills Case. And yet these words import something done, by which the party of whom they are spoken had deserved hanging, &c.

Nor for this, He hath stoln a Mare, or, J. S. is forsworn. Pasche. 17 Jac. B. R. Barhams Case. And albeit hée averr that J. S. did never swear any Incertainty. such thing, yet it will not lye. Croo. 2. 530.

Nor for this, Thou hast stoln, without more words; And yet if hée say, Thou hast stoln, for which thou wilt be hanged; these words are dange­rous. Bulstr. 3. 266.

Nor for this, Thou art a breaker of houses. Mich. 9. Jac. Slaughters Breaker of Houses. Case.

Nor for this, Thou didst steal my Peece [Innuendo, a Gun] and I do charge thee with Felony; for the word is incertain, and the Innuendo cannot Innuendo. ascertain it. Bendloes Rep. 126. Wheeler against Appleton.

Nor for this, Thou usest mee now, as thy Wife did when she stole my Cushions. Goldsb. Rep. 242. Croo. 2. 331. Quere if it lye not for the Wife upon these words, When shee stole my Cushions.

Nor for this, Thou hast stoln my Mare, or consentedst to the stealing of her. In the Disjunctive. Croo. 1. last publisht. 780.

Nor for this, Thou didst bear away my goods. Hobb. Rep. 236. Nor for this, Hee bore away mony. Hobb. Rep. 268. Nor for this, Thou didst take my mony from mee. Nor for this, Thou hast theevishly taken my mony out of my purse. Nor for this, Thou hast theevishly taken such goods. Croo. 2. 81. Yelvertons Rep. 82. Nor for this, J. S. was robbed of twenty pound. and A. had it, and will be hanged for it, by two Judges, Pasche. 9. Jac. Foord. versus King.

Nor for this, He is a Rogue, or a Theef, or some such like thing; for this is altogether incertain.

It is said, that this Action will not lye for this, said of a Jaylor, He hath let forth prisoners out of the Gaol, and had his part and shares with them; and by that means hee came to his goods. He had not a sheet on his bed before he let them out of the Goal, to steal them. Croo. 1. last publisht. 783.

This Action is said to lye also for the words in the following Cases, viz. Attempt of in­deavour of Theft. Sect. 6. for saying J. S. and W. S. knowing that A. did carry mony, did lye in wait to rob him, and set upon him, but he raising the Country, they did fly a-away, and J. S. lost his horse, and they both were driven to ride away with one horse. Croo. 1. 99. In Huttons Rep. 58.

So for this, He set upon mee to rob mee in the high way, and had done it, had not my horse the better escaped with mee. In Bulstr. 2. part 206.

So for this, Hee lay in wait to assault J. S. with an intent to rob [Page 50] him. Mich. 4. Jac. B. R. Lanes Rep. 98. Finches Law. 186. So for this, Hee say in the High-way to rob me. In Lanes Rep. 98. Yelver­tons Rep. 90.

So for this, Thou layest in wait to rob me. Croo. 1. part last pub­lisht, 888. Pasche. 5. Jac. B. R. 191. of Croo. 1. part last publisht.

So for this, A. is a false Knave, and was at my house the Sessions day at night, and would have robbed me, and did break my doors, and put me in jeopardy of my life. In Bulstr. 3. 200. Dyer 26.

And yet it is said it will not lye for this, Thou hast stoln by the High-way side. Goldsb. Rep. 143.

So it will lye (as it is said) for this, Thou hast hired one to rob me. Hill. 13. Jac. B. R. Bulstr. 3. 167. So for this, Thou hast been a setter of Theeves to rob me; and yet the contrary is affirmed.

And it is said by some that this Action will not lye for this, He would have robbed me; nor for this, Thou hast hired one to rob me; nor for this, Thou art a setter of Theeves to rob me; nor for this, Thou keep­est men to rob me; nor for this, Thou keepest men with intent to rob me; nor for this, Thou keepest men which doe rob me, or which have robbed me. Hill 13. Jac. B. R. But see the first Section of this Chapter, how the Law is in these things.

So for this, That nine persons did set upon me to rob me, and I. S. was one of them. Croo. 1. 99. Coo. 4. 16. Eatons Case.

An Action was brought for this, Bring me to the Constables house, for I am robbed this night, and bring me to the house of A. Bond to Ar­rest him, for old Bond doth set his Sons to rob me. Innuendo C. and D.] from time to time; In this Case it was adjudged that old Bond can have Innuendo. no Action for these words, and that an Innuendo cannot acertain it. Croo. 1. last publisht. 618.

It is said that this Action will lye for these words, A. doth, or will pre­pare to rob me. Mich. 14. Jac. Sydnham against May. But it is said that Inclination or purpose only, no Act done. it will not lye for this, Thou wouldst have taken my Purse from me on the High-way. Godb. Rep. 202. Nor for this, He had a mind to rob me, Bulstr. 2. part 206.

Nor will it lye for such words as these, He is a theevish fellow, sée more of this, Chap. 7. Sect. 3. or, Thou art a Theevish Knave; Or, Hee is Adjective words. a theevish Rogue; or, He is a Roguish Knave. For these Adjective words import only an inclination to doe something, but nothing done. Nor will it lye for this, Thou art a theevish Whore. Coo. 4. 16, 19. Bulstr. 1. part 134. 138. Croo. 2. 514. And yet it will lye for this, Thou art a cunning thief. Bulstr. 2. 146.

It is said this Action will lye for this, You are a Thief, for you have stoln a bushel of my Apples on the ground. Bulstr. 1. part 163. So, Thou art a Thief, for thou hast stoln a bushel of my Apples out of my loft, or, About stealing of Apples. Sect. 7. [out of my Cock-loft. So for this, Thou hast stoln the Apples out of my loft. Hobb. pl. 253.

But this Action will not lye for these words, Thou art a Thief, for thou hast stoln my Apples out of my Orchard. Nor for this, Thou art a thief, and that will be proved, by stealing my Apples in my Orchard. Bulstr. 1. part 163. Mich. 43. 44. Eliz. Co. B. Dobbins and Franklin. Coo. 4. 19. yet see the Cases following for this.

Nor for this, Thou hast stoln my Apples out of my Orchard. Bulstr. 1. part 163. Nor for this, Thou art a thief, for thou hast robbed my Or­chard, or, for thou hast stoln my Apples out of my Orchard. Huttons Rep. 65.

Nor for this (as some judgements are) Thou art a Theef, and thou hast Stoln my Apples out of my Orchard, or from my Trees in my Orchard, Hobb. Rep. pl. 98. 106. 404. Nor for this, Hee is a Theef, and it will be prov­ed by Stealing of my Apples out of my Orchard. Coo. 4. 19. Hobb. Rep. 97. 406. 381. See afterwards.

But other judgements are; that these words are Actionable where the words are coupled together by the word And, after Théef. See them af­ter, differing opinions about this, and Bulstr. 2. part 142. Hobb. Rep. 106. Coo. 4. 17.

But it is said it will not lye for this, Thou hast Stoln Apples out of my Or­chard, and art a Theef, for this is like the Case. Coo. 4. 15. Thou didst kill thy wife, and art a Traytor.

Nor for this, Thou hast robbed my Orchard of my Apples, and wilt bee hanged for this. Bulstr. 3. part 267. About Steal­ing of Trees, Wood, and Timber.

It is said by some that this Action will lye for these words, Thou art a Theef, and hast Stoln my Trees; Or [And thou hast Stoln my Trees.] Or [And thou hast Stoln Mr. Georges Trees.] Or [And thou hast Stoln my Apple Trees.] Brownl. 2. Cowl and Gilberts Case. Co. B. Hill. 3. Jac. B. R. Minors Case. Or [And thou hast Stoln the Apple Trees out of my Or­chard] Croo. 2. 114. 7. Jac. B. R. Hobb. Rep. 77. Brownl. 2. Brown and Gilberts Case. But there are other judgments, that it will not lye for these words. Goldsb. and Brownl. 2. Hobb. Rep 98. 404. Godb. 335. Ben­loes. 137.

It is agréed by all that it will not lye for these words, Thou art a Theef, Differing opi­nions and judgements a­bout this. for thou hast Stoln my Trees, or Mr. Georges Trees, &c. Croo. 2. 114. Hobb. Rep. pl. 19. 97. 106. 381. 406. 473.

And for the difference between [And] and For] and the Judgements that are contrary one to another about this. See Hobb. pl. 98. 191. 404. 106. 476. Godb. pl. 335. Bendloes 137. Coot. and Gilbert. Co. B. Coo. 4. 19. Hobb. Rep. 406. 381. Winch, Rep. 10. 113. Marsh. 211, 280. Bulstr. 1. 143. Croo. 2. part 39. 114. Yelverton 10. 34. Croo. 231. Noys Rep. 135. Hobb. Rep. 77. Brownl. 2. Godb. 335.

This Action will lye for this, Thou hast Stolne two armfulls of my wood, Bulstr, 2. part 82. and 1. 163.

So for this, Thou art a Theef, and hast feloniously taken my wood. Pasche. 38. Eliz. B. R.

So for this, Thou hast Feloniously Stoln my wood. Croo. 1. part last publisht. 471.

So for this, Thou hast Stoln my wood. Croo. 2. part 166. 138. Hobb. Rep. pl. 258. Loes Case. Bulstr. 1. part. 81. 2. part 81. Stiles Rep. 25.

So for this, Thou hast Stoln my wood, and I shall charge thee with Fe­lony. Pasche. 38. Eliz. Co. B. Stiles 25.

So for this, Thou hast Stoln my wood out of my Baxton. Popham. Rep. 129. Brownl. Rep. 2. Coo. 4. 19. Marsh. Rep. pl. 248.

So for this, Hee hath Stoln a tree formerly cut down, which is Felony, and I will cause him to bee indited for it. Croo. 1. 413.

So for this, Hee is a Theef, and Stole my timber. Huttons Rep. 38. And yet some will not agrée to this, but I know not the reasons of their doubt.

So for this, Thou hast Stoln as much wood and timber out of thy Land­lords ground, as is worth Twenty Pound. Yelvertons Rep. 152.

And yet it is doubted whether it will lye for this, A. did Steal my wood, and I will send him to Bridewel. Because of the last words. Stiles Rep. 25.

But it is said the Action will not lye for this; Thou hast Stoln my Trees [or my Tree] or [a Tree] Stiles Rep. 9. Hobb. Rep. pl. 77. Brownl. 2.

And yet some oppose this, Bulstr. 3. 267. Croo. 2. 136. Bulstr. 2 81. Howbeit it séems to bée clear, that no Action will lye for these words.

Nor will it lye for this, Thou hast Stoln my Wood growing in my Cop­pice. Nor for this, Thou hast Stoln an Acre of my Wood. Nor for this, Hee came in my Wood, and cut down ten load, and Stole it away.

It is said to bée Actionable to say of one, Hee hath Stoln a load of hop­poles, Croo. 1. last publisht. 225.

This Action will lye also for this, Thou art a Theef, for thou hast Stoln About Corn. my sheaf of corn. Bulstr. Rep. 1 part 163.

So for this, Thou art a Theef, for thou hast Stoln my corn out of my barn. Sect. 8. Stiles Rep. 135.

So for this, Thou hast Stoln my corn, and made mee no satisfaction Huttons Rep. 64, Winches. Rep. 6.

So for this; Thou art a Theef, and hast Stoln my corn. Croo. 2. 39. 424. Winch. 6. 10. Bulstr. 1. part. 81. Stiles Rep. 24. 73. Yet see Huttons Rep. 38. Hobb. Rep. 97. 406. 381. Coo. 4. 19. And yet in some of these also there is some Question. Hobb. Rep. 38.

So it will lye for this, Thou hast Stoln the corn, or [my corn] out of my barn. Hobb. pl. 258. Popham 129. Brownl. Rep. 2. So for this, Thou hast Stoln my corn and carried it to Market, Croo. 2. 422.

So for this, Thou art a false knave, and didst Steal my corn. Harris Case. Quere of this.

So for this, Thou art a Corn Stealer. Croo. 1. part last publisht 563. 39. Eliz. Cookes Case B. R.

So for this, J. S. hath Stoln so many loads, or [so many bushels] of my corn. Owens Rep. 57.

But it is doubted whether it will lye for this, Thou hast Stoln as much corn out of my fields as is worth, Nine or Ten Shillings. Croo. 2. 457.

Some question also is made of this, whether it will lye for saying, Hee hath Stoln my corn, or Stoln away my corn. Trin. 37. Eliz.

It is said, that it will not lye for this, Thou art a Theef, and hast Stoln my corn in the field. Winch. Rep. 6. Stiles Rep. 66. Croo: 2. 204. Nor for this, Thou art a Theef, and Stolest the corn out of my field. Winch. Rep. 6. Hobb. Rep. pl. 97. 106. 406. 473. And yet some judgements and resolutions séem to bée against these Cases. Nor will it lye for this, Thou art a Theef, for thou hast Stoln half an Acre of my corn, nor will an Innuendo corn se­vered, Innuendo. alter the Case, and make the words Actionable, Croo. 1. part last publisht 428. Owens Rep. 57. Hobb. pl. 97. 106. 406. 473.

It is said this Action will lye for this, Thou hast Stoln my Furzes out of About Furzes. my Barton. Hobb. Rep. 258. So for this, Thou art a Theef, and hast Stolen my Furze. Popham. 152.

But it will not lye for this, Thou art a Theef, and hast Stoln Ten Cart load of my Furzes; unlesse hée say out of my Yard, for otherwise it shall bée intended Furzes growing, Huttons Rep. 113. 13. Hobb. Rep. pl. 97, 165. 406. 476.

It is said, it will lye for this, Thou art a Theef and hast Stoln a About Fatches. bundle of Fatches. Huttons Rep. 65.

It is said, that it will lye for this, Thou hast Stoln Hay from Mr. Bells About Hay & Grass. Racks. Popham. 129. Yet see Winch. 6.

So for this, Hee is a Theef, and hath Stoln my Grass. Stiles Rep. 231.

It is said it will lye for this, Hee is a Theef, and hath Stoln my Hops: About Hops. But this is denyed by some Iudges to bée Law. Huttons Rep. 38. But it is said that it will not lye for this, Thou art a Theef, for thou hast rob­bed my Hop-ground. Coo. 4. 17. Nor for this, Thou art a Theef, and [Page 53] it will be proved by the robbing of my Hop-ground. Coo. 4. 17. 19.

It is said it will lye for this, He is a Thief, and hath stoln my Turnips. About Turnips. Stiles Rep. 231.

It will not lye for this, Thou art a theevish Rogue, and hast stoln About barres of Iron out of Windows. barres of Iron out of other mens windows; and yet if he shall say, Thou didst steal barres of Iron out of such a mans house, these words may bee more questionable.

Nor will this Action lye for this, He hath stoln forty pound of Lead About Lead from a house. from the house of I. S. [or of the house of I. S.] if the words were out of the house of I. S. it may be this may alter the Case. So to say, He hath stoln ten pound of Lead, it séems this is actionable. Brownl. 2 part 84.

It is said it will not lye for saying, He hath stoln the tile off my house. About the tile off a house. So likewise it is said it will not lye for saying, He hath stoln my Tiles. sed quere of this last Case, yet sée Stiles Rep. 231.

Now out of all these Cases, about slanderous words, for stealing of Sect. 9. Corn, Apples, Wood, Trées, Tile, Lead, and the like; some of which things as the Tile, Timber, barres of Windows and the like, in a house, the Law doth look upon as parcel of the house. And others, as Trées, Corn, Grasse, Turnips, Fatches, and the like, growing upon the ground, Apples, Hops, and the like fruit of Trees, the Law doth look upon as incident to, and parcel of the thing wherein they are, and whereon they grow, until they be severed, and till then no Felony can be committed by the taking of any such thing away; and therefore the Report of the doing of such a thing is Felony. not so dangerous; but in many of the Cases it cannot but bee observed, there is (at least séemingly) much contradiction, the summe of all being put together, séemes to be thus much. That it is agréed on all sides, that if the charge in the words be of such a Theft, as if true, may bring a man in peril of his life, or member of his body, as where it doth charge him with the stealing of any of these things severed from that to which it is an­nexed, the words will be actionable.

So likewise where the charge is thus, Thou art a Thief [For] Or, [And] thou hast stoln Corn out of my Barn, or the like, that for these, and such like words as these, the words wil be actionable.

So likewise where the charge is thus, Thou art a Thief, for thou hast stoln my Apples out of my Orchard, or stoln my Trees off my ground, or the like, the words will not be actionable; for a man cannot be in danger of life, or member, by the taking away of these things, for it is no Felony to cut and take away standing Corn out of the Field, Apples from the Trées in an Orchard, nor to cut and take away standing Trées, Wood, Furzes, and the like; or to take away the barres or Irons of a Window, Tiles from off the house, and the like, and therefore the charge of taking them away is no charge of Felony, or other great Crime.

But where the words of the Slander are thus. Thou art a Thief, and Words of qua­lification. hast stoln my Apples out of my Orchard, or the like, upon this Case the Iudges have béen divided in their opinions, some of them maintaining that the words subsequent to the actionable words may bee qualified by the word [And] as well as by the the word [For] others maintaining that the word [For] only, will enure, and work to explaine and qualifie; and that when the words are brought in by [And] they are, and shall bée cumulative, and an additional slander; as, Thou art a Thief, and hast stoln my Apples out of my Orchard, or the like, that in such Cases the Action shall lye for the word thief alone, and not be taken away by the sub­sequent words, as in case where the words be, Thou art a Thief, for thou hast stoln my Apples out of my Orchard. But that it shall be alike in both Cases.

Some of the Iudges also have put a difference betwéen words of qualifi­cation uttered at the same time with other words, and words of qualification, delivered at another time; as where one shall say, I. S. is a Thief, and a stander by say to him, Take heed what you say, and then he say, Is not he a Thief that hath stoln my Apples out of my Orchard? some think in this Case that the words doe not qualifie, others think that they have as much force herein as if they had béen spoken together at the same time. It be­hoves men therefore in these Cases, that have néed to know the Law, to take good advice herein.

It hath béen agréed that this Action will lye for these words, Thou maintainest theeves to steal my goods, Croo. 2. 629. So for this, Thou About the re­ceipt, keeping, and conceal­ment of Felons, and goods stoln. maintainest Pirates to rob upon the Seas. Sée Croo. 2. 629. So it is said to be adjudged to lye for this, Hee is a maintainer of Felons, albeit hée doth not say, that he knew them to be Felons, or, that he was a Justice of Peace. Sir Henry Leas Case, cited in Croo. 2. 268.

Some Reports have béen, of judgements in Cases for these, and such like Charge of a man, as an ac­cessary to a Felony. Sect. 10. words as these, Thou receivest theeves, thou keepest theeves, thou keepest theeves about thee, thou keepest theeves in thy house, thou main­tainest theeves in thy house. Let me say it with reverence, I cannot re­ceive them as Law, nor sée reason for them: for such kinds of spéeches have not an import of any foul aspersion, they are ambiguous, why and how a man doth receive and kéep such men about him, he may by occasion of businesse, relation, or other obligation, have cause to kéep such men about him, possibly he may not know them to be such; or if he doe, it is not a­gainst any Law to receive théeves, or stoln goods, unlesse it bee so as to countenance or cover the offence. or kéep the offender from punishment; nor is any man bound by the Law to discover any such offender (except he be a Traitor) but at his pleasure, for a man may doubtlesse, in many Ca­ses, knowingly receive a thief, or the goods stoln by a thief, and justifie it by Law; and therefore in 42 Eliz. in the Exchequer Chamber, a Iudge­ment upon a Writ of Error was reversed, in the Case of Ball and Bridges; and it was therein agréed by all the Iustices and Barons, That this Acti­on shall not lye for these words, He is a maintainer of theeves, and keep­eth none but theeves in his house, and I will prove it, &c. for one may Harbour or keep Traitors. have and maintaine théeves in his house, and not know them to bee such, and this is no offence. But there the Iudges did séeme to agrée all of them in this, that if the words be thus, That he did maintaine, and keep such in his house, knowing them to be such, that this would be Actionable. Croo. 1. last publisht. 746. 888. and it is reported by Goldsb. 48. That in Easter Tearm, 29 Eliz. Co. B.

It was there agreed by the Iudges, that this Action was maintaina­ble for these words, Thou dost maintaine traytors, or, thou dost main­taine theeves, see chap. 6. sect. 1, 2. But that no Action will lye for say­ing, Thou dost keep theeves. And that it hath béen agréed not to lye for this, He is a receiver of theeves, Mich. 40. 41 Eliz. Co. B. Nor for this, He kept men that did rob upon the High-way. Hobb. Rep. Nor for this, Thou keepest thieves, without saying, or knowing them to be such. Goldsb. pl. 7. Nor for this, Hee hath theeves in his house. Croo. 2. 331. Nor for this, Thou keepest none but theeves [or, Cut-purses] in thy house, and hast their goods. Mich. 17. Jac. B. R. Nor for this, Thou keepest men to rob on the High-way. Nor for this, Thou keepest men that rob me, for all this may be unawares to him. Croo. 1. last pub­lisht. 188.

It is said, it will not lye for this, of a man that had lost cloth stoln by un­known persons. A. hath received again his peeces of cloth, and beareth with the theef [Innuendo quendam malefactorem ignotum. Hall versus Hemsy. Trin. 38. Eliz. Noys Rep. 57. Nor for this, Hee hath three parcels of his cloth again of the theef that did steal it from him, and if I re­ceive any hurt henceforth, I will charge him with it. Goldsb. Rep. 119.

Nor for this, A. keepeth men to rob mee; albeit hée hath béen robbed by his men. But if hée say, Hee keepeth men to that intent to rob mee, and I was robbed by them; these words would be dangerous. Sir Harbert Croft against Brown. Pasche. 14. Jac. Bulstr. 3. part 167.

Nor for this, A. and his servants went about to rob mee, and hee did maintain them. But if hée say, that hée kept them to that intent, and that any thing was done, the words would be dangerous. Sir John Harpers Case. Bulstr. 3. 167.

This Action will lye for this, Thou hast hoistred Theeves, and stoln goods, and the theeves and goods were found in your house, and the theeves were had before such Justices, and committed by them to prison, and were hanged; and if the Justice had not been your friend, it had been hard with you. Bulstr. 2. part 109.

So for these words, spoken by a servant, whose Master had lost goods, thou art a maintainer of theeves to steal my Masters goods. Croo. 2. 629.

It will not lye for a Son for these words, A. hath stoln a horse, and his Son is consenting to it. Trin. 14. Jac. Lewkners Case.

Nor for this, I was robbed, and A. received part of the goods stoln, and I could hang him for it. Pasche. 7. Jac. Newlins Case.

Nor for this, Thou art a favourer of theeves. Dyer. 75.

Nor for this, Thou didst consent to the stealing of my Mare. Croo. 1. last publisht. 780.

Nor for this, Thou art a companion of theeves. Croo. 1. last publisht. 554.

Nor for this, Thou didst, and dost receive theef-stoln goods, witness a Feather-bed tick in thy house, and the cloth which thy mans Sute was made of, and thou knewest they were stoln. Stiles Rep. 91.

Nor for this, Thou art an arrant Knave, thou hast bought stoln Swine, and a stoln Cow, knowing them to be stoln. Yelverton. Rep. 5.

Nor for this, You have taken stoln goods, knowing them to be stoln. Yelverton. 5.

But it is thought it may lye for this, A. stole a Mare, and thou B. know­ing of the same, conveyedst her into the Fens to my Brother B. his house. And it may lye for A. and B. both. Goldsb. Rep. 132. Cut-purse.

And yet it is said, it will not lye for this, Thy Boy [Innuendo Ambrose La­tham, the Plaintiffs wives Son) hath cut my purse, and thou hast receiv­ed it, I charge thee with Felony. knowing it, and hast the Rings and Mony that were therein in thy hand; therefore I charge thee with Felony. Croo. 1. last publisht. 890.

Nor will it lye for saying, Thou art a Knave, and hast received stoln goods, and thou knewest they were stoln. For all this, though it be true, is not Felony, unless it be a Receipt to maintain the Felon, and a man may in divers cases receive such goods lawfully. Croo. 1. part last publisht. 888.

So for this, I was robbed, and you were privy thereunto, and had part of the mony. So it is said, it will lye for this, Thou hast been a setter of Theeves to rob mee. Hill. 3. Jac. B. R.

So where there is talk between two of A. and B. and one of them that Sect. 11. are talking together, say, A. hath stoln away such goods, and B. was pri­vy [Page 56] and consenting thereunto; in this case A. and B. both are slandered, and may have either of them this Action. Mot and his Wife against Butler. Mich. 7. Car. 1. B. R. Croo. 1. 171. So it is said, this Action will lye for this, I was robbed, and A. B. was privy to it, and had part of the mony. Godb. Rep. 138. pl. 32. 38. Eliz. Redfords Case.

So it is said, it will lye for this, Thou hast houstred [or received] goods that were stoln, knowing them to be stoln. But it séems these words are not actionable, except it be added, Ex scientia; And that the Action will not lye for saying of a man, Hee received stoln goods, for hée may justifie that in some cases. And if the Receipt be such as is not Felony, the Defen­dant is to set it forth for the clearing of himself. Mich. 17. Car. 1. B. R. Haws Case. Croo. 2. 331. Bulstr. 3. 167. Goldsb. pl. 7. But it will not lye for this, A. hath received three peeces of his cloth again of the theef, and beareth with the theef; and if I have any hurt hereafter, I will charge him with it. Croo. 1. part last publisht. 487.

So for this, Thou art a concealer of Felons, and hast shewed such fa­vour Concealment of felons and goods stoln. to a horse-stealer, that hee and the horse is conveyed away, and it is in my power to hang thee. Rewdam versus Tooker Pasche. 7. Jac. B. R.

So for this, if one say, A. is a Felon, and a stander by, saith, Take héed what you say, And then hée saith, Why, is not hee a felon, that knew of the stealing of a horse, and did not reveal it till long after, that it was openly known? Yelvertons Rep. 154.

So also (as it séems) for this only, Thou art a concealer of Felonies. Pendants Case. Bulstr. 1. part 48.

So for this, it is said it will lye, You have bought a Roan stoln horse, knowing him to be stoln. Godb. Rep. 212. 157. Briggs Case.

And it will lye for these words, Hee is a smotherer and maintainer of Felonies, especially when they be spoken of a Magistrate. Croo. 2. 268.

But it will not lye for this, A. hath picked five shillings out of the pocket of B. and her husband was consenting to it. Dromants Case. Yelver­ton. Pick-pocket. 136.

It is said, it will lye for this, A. is a theef, for he hath stoln a Lamb from B. and Geese from C. and killed them in my ground. So for this, Hee is a theef, for hee hath stoln a Lamb from A. and killed it in my ground. Hill. 3. Jac. B. R.

So it is thought it may lye for this, Thou hast taken my mony, and I will carry thee before a Justice of Peace, and lay felony to thy charge, in Godb. Rep. 202.

It is said, it will lye for this, Hee hath no sheets in his house, but what Averment. were stoln for him. But not without this Averment, that hée hath shéets in his house. Bulstr. 1. part 141. Sed Quere of this.

So for this, it will lye, Hee stole a Mare, and was in Gaol for it. Hobb. Rep. pl. 196.

So for this, Thou hast stoln horses in London. So for this, thou hast Averment. stoln as many horses, as I have fingers and toes. And in these cases there néeds no Averment, that horses were stoln in London, or how many fingers and toes hée had.

So it is said, to lye for this, Hee is a cunning Knave, and acquainted with more cut-purses, than any man in Northamptonshire, and there is not a purse cut within twenty miles of him, but hee hath his part of it. Cut-purse. Bulstr. 1. part 147, 36. 37. Eliz. Buts Case. But in this case it séems there must be an Averment, that there be cut-purses there, otherwise it Averment. will not lye. Popham. Rep. 180. Huttons Rep. 58.

This Action will lye for words spoken thus, You are no Theef, are The manner of the words spoken. Sect. 12. By way of In­terrogation. you? spoken by way of Irony. Apletons Case. B. R. Pasche. 15. Car. 1. Hill 4. Jac. Lady Morrisons Case. See March. Rep. pl. 18. So for this, What J. S. that Theef? Nelsons Case. Pasche. 15. Jac. B R. Hardwicks Case. 40. Eliz. Co. B.

So for this, I will justifie that Barns is a Theef. Trin. 9. Jac. B. R. So for this, Have you brought my Horse you have Stoln. Maines Case. Trin. 9. By way of In­terrogation. Jac B. R.

So for this, Hast thou been at London, to change the mony thou didst Steal from mee. Croo. 2. 569. So for this, Did you not hear that A. B. By way of O­pinion. is guilty of Theft. Coo. 12. 134.

So for this, I verily think him to bee a Horse Stealer, albeit hée say not hée is one. In Goldsb. Rep. 186.

So for this, Go follow suit against Willimore [Innuendo the Plaintiff] for Stealing the two Kine; and hang him, or I will hang thee, for this is as much as to say, hee Stole them. Croo. 1. last publisht 904.

So for this, Hee did better than many an honester man did, for there is Opinion. many an honester and truer man hanged. And there was a robbery commit­ted, whereof I think him to bee one; and I verily think him to bee a Horse-Stealer, Albeit hée do not say, Hee was one of the robbers. Goldsb. Rep. 186. Owens Rep. 18. Wisdomes Case.

So for this, Thou Mutton-munger Theef, bring home my Stoln Hay. Mutton-mun­ger-theef. In Stiles Rep. 70.

So for this, Hee is infected of the Robbery lately committed, and doth smell of the Robbery. Dyer. 317. 72. Godb. Rep. 91.

So for this, If thou hadst had thy right, thou hadst been hanged for breaking of Patches House. Brownl. Rep. 3. Harris Case. 2. part 280. So for this, If my Lord had done him right, hee had been hanged. 43, 44. Eliz. Royal and vertues. Bulstr. 3. 360.

So for this, I doubt not, but within two daies to Arrest J. S. for suspiti­on of Felony. Coo. 4. 15.

It is said this Action will lye for the words in the Cases following, viz I will prove that thou hast stoln, &c. I will prove that J. S. hath Stoln my Books. So for this, I will bring him before a Justice of Peace, for I will prove that hee hath Stoln my Books. And yet it is said the words, I will bring him before a Justice of Peace, alone are not Actionable. Pasch 15. Car. B. R. See in March. pl. 44.

So for this, I will prove thee a Theef, and a plotter of theeverie, and I will prove it by thine own Son, or I will send him to the Devil. Croo. 2. 214.

So for this, I will justifie that A. B. is accessary to the Burglary for Accessary. which C. D. was hanged. Barns and Hunts Case. Trin. 9. Jac. B. R.

So for this, Take charge of him, and carry him away, for I lay flat Fe­lony I charge thee with Fe­lony, &c. to him. And again afterwards for this, to the plaintiff himself, I will make you hold up your hand at the Bar. Stiles Rep. 235. Yet see Croo. 1. part last publisht 889.

So for this, A. was in Gaol for the Stealing of the Beasts of B. But it is Thou wast in Gaol for steal­ing, &c. said, it will not lye for these words, A. was in the Gaol for suspition of the Stealing of the Beasts of B Goldsb Rep. 130. Humfrey Parloes Case. Yet see Bulstr. 1. part 40. It was the opinion of most of the Iudges, that it will ly for this, Thou wert in the Gaol for Robbing such a one in the Highway. And it was said to bee adjudged for this, Thou wert in the Gaol for Steal­ing of a Pan. And yet, See Hobb. Rep. pl. 196. It is said to bee ad­judged not to lye for this, Hee is in Warwick Gaol, for Stealing of a Mare and other Beasts Hobb. Rep. 235. pl. 196.

So for this, A. was indicted for the stealing of a Horse at a Sessions Thou wast in­dicted, &c. for stealing, &c. holden, &c. So for this, Thou wast arraigned at Warwick Assizes for stealing of a Horse, and didst make good friends, or else thou hadst been hanged. So for this, Hee was arraigned for the stealing of twelve Hogs, and had hee not made good friends, it had gone hard with him. So for this, A. was indicted and convicted for the stealing of a Horse, &c. But Averment. in these Cases it séems the Plaintiff must, or it will be safe for him to avert in his Action, that, it is not true which is said, that hée was indicted, &c. for if it be true, the words be not actionable. But in this Case let the Defen­dant sée to it, hée do not plead not guilty, but justifie the speaking, and the truth of them. Croo. 2. 90. Hobb. Rep. 309. Croo. 1. 195. Bulstrode. 1. part 40. And yet it is said to be agréed, not to lye for this, Thou art a false Knave, and wast arraigned for two Bullocks. Nor for this, Thou wast arraigned for stealing of two Bullocks. Croo. 1. part last publisht. 279. See Brownl. 2. part 273. Huttons Rep. 2. Some oppositions are against some of these Cases. Hobb. pl. 289. 296.

Some Cases there are that say, that this Action will not lye for saying, that A. was indicted at such a Sessions for stealing a horse. Nor for this, Hee was impeached [or accused] for stealing of a horse. Nor for this, Hee was arrested, imprisoned, [or in a Gaol] or arraigned, or did hold up his hand at the Bar, for stealing of a horse. Hobb. Rep. pl. 289, 296. Goldsb. 30. Bulstr. 1. part 41, 34. Eliz. Baylyes Case. Co. B.

But in all these and such like Cases, if the thing said be true that is said, no Action will lye. But the Defendant must not plead not guilty, but justifie the words, or demur to the Declaration, whether the words bée actionable, or not, as his Case is.

So for this, Whosoever is the falsest theef, and strongest in the Coun­ty Averment. of Salop, whatsoever hee hath stoln, or done, A. is falser than hee. But then it must be averred, that there is some théef or other in the County of Salop, for if it may not appear there is a Felon there, the words are not actionable. Pasche. 1. Jac. B. R. Haselwood and Garrets Case. And yet it is said by some, that it will not lye for this, I can finde in the Parish a falser Knave than B. who was indicted for felony; And this Knave is J. S. In Haselwoods Case.

So for this, Thou art as very a theef as any in Warwick Goal, with an Averment. Averment, that there is one there. Bulstr. 1. part 40. Yelverton. 90. Po­pham. 180.

So it is said, it will lye for words thus spoken, Thou art a Theef, and a Words of qua­lification. stander by saith, Take héed what you say, and then hée saith, I will justifie hee is a theef, for hee stole away my evidences. But had they béen spoken together, uno halitu, it had béen otherwise. But here it shall be taken for an evasion, and so a double slander; and the last words shall increase the damages. Yelvertons Rep. 154. 155.

It is said that words slanderous about this matter of theft, will bee By way of Re­port. actionable, though they be uttered after this manner. A. saith that B. is a theef; Or A. told mee that B. is a theef; Or a woman told mee that B. is a theef; Or I have heard A. say, that B. is a Theef; Or I have heard it said that B. is a theef; Or B. is a theef, if the report of A. be true; Or I have heard it spoken, that B. was one of them, that was at the Robbery of A. and that four of the theeves went to his house the next morning.

But in all these and such like cases, the Plaintiff in his declaration must over, that the party mentioned did never say, or report any such thing; for if Avermen [...] it be true, hée said it indéed, the defendant may justifie the speaking of them. And if he report it is said by another, and can finde no author but himself, the [Page 59] Action will lye upon him. Croo. 2. 406. Goldsb. 139. pl. 5. See in March. Rep. 8. Croo. 2. 350. Coo. 12. 134. Read against Saul. 40. 41. Eliz. Co. B.

So it is said, it will lye for this, where one man doth charge another Sect. 13. with Felony, and the Constable being present, hée saith to him, I charge you to arrest him for Felony. Croo. 1. 201. Stiles Rep. 235. So for this said to a Constable, Take charge of him, and carry him away, for I do lay flat Felony to him, I will make him to hold up his hand at the Bar. And so for this, There hee is, take him, for I charge him with flat Felony; and then for saying further, Hee hath taken my Sheep with a felonious intent. Croo. 1. 201. Mich. 23. Car. 1. B. R. Nevils Case. Stiles Rep. 60. 235. And so for this. I do charge thee with the stealing of my horse. Croo. 2. 312.

So it is said, it will lye for this, I have served thee with the Queens Letter, for stealing goods out of my house. Croo. 1. last publisht. 234.

But it is said, it will not lye for this, I fear you will bee charged for I fear, or I doubt, you are a thief, &c. theft. Nor for this, I doubt you will be charged for theft. Nor for this, I fear [or I doubt] A. is a theef. Nor for this, I fear [or I doubt] you will be arrested for Felony. Hobb. Rep. 381. 286. 350. Croo. 1. 195. Nor for this, I have Articles against you for theft [or for felony, &c.] Nor for this, J. S. hath found felony in A. B. and can prove it. Hobb. pl. 3. 395.

Nor (as it is said) will it lye for this, A. was charged with a felony, for stealing, &c. Croo. 1. 195. Hobb. Rep. 381.

Nor for this, to go to a Iustice of Peace for a Warrant against A. and there to say to the Iustice, I will charge A. with flat felony for stealing my Hops from my shop. Ram. and Lumleys Case. Huttons Rep. 113. Words uttered by way of opi­nion, or per­swasion.

This Action it is said will lye for these words, I verily think J. S. to be a horse-stealer. Goldsb. 186.

So for this, I dreamed this night that J. S. did steal a horse. See in By way of dream. By way of threat. March. 58.

So for this, I can prove you a theef, and two men will justifie it. Pasch. 5. Jac. B. R.

It is said, it will not lye for these words, I can finde in this Parish a falser Knave than Brisco is, the which Brisco is indicted of felony, and Burglary, and is gone to Stafford Gaol. And that false Knave is A. B. Haselwood against Brisco. Pasche. 1. Jac. B. R.

And finally it is agréed, that to call a man Theef, onely; will bear an Sect. 14. Action, unlesse the word be coupled with some other words of qualification, to prove the thing to be no Felony, whereof the spéech was intended. Croo. 1. part last publisht. 857.

But this may be qualified by the precedent or subsequent words; and there­fore Words of qua­lification. it is held, that no Action will lye for calling of one Theef, in the Cases hereafter following, that is to say, Thou art a theef, and hast stoln my Maiden-head. Brownl. 2. Nor for this, thou hast robbed mee, and taken away my evidences, and a subpena. Godb. Rep. 89. Nor for this, thou art a theef, for thou hast couzened my couzen Baldwin of his Land. Huttons Rep. 113. Herbert. against Angel. Mich. 8. Car. 1. Nor for this, thou hast stoln the Lead from off my house, for which thou shalt be hanged. Bulstr. 3. part 265. Nor for this, thou art a theef, for thou hast stoln the Tiles off my house. Bulstr. 3. part 265. Nor for this, thou art a theef, for thou tookest away my Cattel upon an Execution, and I will hang thee. Mich. 7 Jac. Wilks Case. And the greater part of the Iudges séem to be of this opinion, That the words of qualification and explication [Page 60] may be brought in as well by the word And] as by the word For] See for And For. this. Bulstr. 2. part. 141. Croo. 2. 39. 114. Hobb. Rep. 98. 106. 404. 476. Godb. Rep. 335. Bendloes Rep. 137 Bulstr. 1. part 143. Yelverton Rep. 24. Winch. Rep. 113. Brownl. 2. part 3.

It is said, that this Action will lye for this, Thou art a Theef, for thou Dung. hast stoln my Dung. Stiles Rep. 68.

And here wée must add to all the Cases before, put of Slanders about matter of Theft, these following Rules.

1 That in many of the Cases, of words not actionable in themselves, if by the speaking of them, any special damage come to him of whom they are spoken by them, there the words may be actionable. Croo. 2. 202.

2 That for all the words herein before mentioned to be actionable in Averment. themselves, and such like, the Action will lye without any Averment of spe­cial damage by them, to the party of whom they are spoken. Croo. 1. 101. March. Rep. pl. 2. 93.

3 That these words in this chapter being such as bring a man in danger of his life, they that bring Actions upon them, or any such words, they must take care of these things.

1 The words (in the Action brought) must be laid to be spoken by the Defendant.

2 They must be laid to be spoken of the Plaintiff.

3 There must be a certainty in the description of the persons of the Plaintiff and Defendant.

4 All slanderous words of this nature must be (as other slanderous words are) under the rest of the general Rules for the Government of all sort of Actions of the Case for words; malicious, false, certain, &c. For if the words be true, or not true, but no malice appearing in them, too general, of a double intendment, or a doubtful meaning, or not sufficiently positive, or altogether incertain, either as to the persons, or to the thing it self, or un­der a qualification by the precedent or subsequent words, or import an in­tent only of doing something, but nothing is done; no Action may lye up­on them.

And so wée have done with Actions of the Case, for words of Slander, that bring a man in danger of his life, And in the next place shall come to Actions for such words as do not bring a man in any danger of his life, but of the losse of a Member, or some other corporal, or pecuniary punishment.

CHAP. XI. Of words of Slander that may bring a man in danger, of other corporal punishment besides death.

Of Petit Larceny.

THere are some words that do not bring a man in danger of his life, but Sect. 1. Petit Larceny what. they do, or may bring him in danger of the losse of his Liberty, or of some other corporal panishment, such as are Petit Larceny, Perjury, For­gery, Incontinency, and the like. And for this, these things are to bée known.

That Petit Larceny is the stealing of a thing under the value of twelve pence, or not above twelve pence. And the punishment appointed by the Law for this offence, is the losse of all a mans goods whatsoever, and also to be whipped, stocked, bound to the good behaviour, or imprisoned at the discre­tion of the Iudge. If any therefore shall slanderously charge another with [Page 61] this Crime, or any thing like to it, hée may have this Action for his reme­dy. Therefore this Action will lye for these words, J. S. hath stoln six pence, or J. S. hath stoln a Hen, or a Hen and two Cocks, or any goods whatsoever under the value of twelve pence. Hobb. Rep. pl. 258. 27. H. 8. 22. Brownl. pag. 2.

And the Actions of this nature will be maintainable, without Averment of any special damage by the words. But they are to be subject to the gene­ral Rules of Actions of the Case for other slanderous words.

CHAP. XII. Of Perjury.

PErjury is a great offence, and the punishment thereof great, for hée What it is. Sect. 1. that is convict thereof within the Statute, is to forfeit twenty pound, to have six months imprisonment, his testimony is to be invalid; and if hée cannot pay the twenty pound, hée is to be put in the Pillory, and his ears to be nailed. 5. Eliz. cap. 5.

Therefore it is said, this Action will lye for the speaking of these words, He is perjured. Thou art perjured. Coo. 4. 15. 19. Broo. Action of the Case. 104.

So for this, Thou art a perjured man. 25. Eliz. B. R.

So for this, Thou art a false perjured Knave; or the like. Broo. Action of the Case. 104.

So for this, Thou wast perjured. Mich. 25. Eliz. B. R. Owens Rep. 62. Croo. 1. 144. 234. Kitch. 173.

So this Action will lye for saying, J. S. is [or was] forsworn in such a Court before a Judge of Record. So it do appear to be intended in a ju­dicial procéeding in that Court. Coo. 4. 15. 19. Noys Rep. 34. Croo. 1. 307. But it will not lye for saying, thou art a false man. Nor for this, Thou art forsworn, or thou art a forsworn fellow. Croo. 1. part last pub­lisht. Hee is false forsworn. 572. Owens Rep. 62. Croo. 1. 144. Coo. 4. 15. 19. Nor for this, Thou art a false forsworn Knave. Croo. 1. part last publisht. 429. Coo. 4. 15. March of Slanders. 2. 13.

It will lye for this, I will prove J. S. to be a perjured Knave. Croo. 1. last publisht. Croo. 1. 209. Croo. 1. last publisht. 374. 500. Nor for this, Thou hast taken a false Oath. Nor for this, Thou hast forsworn thy self. Coo. 4. 15. Novs Rep. 3. 222. Or thus, I will prove him to be a perjured Knave, or I will bear his charges. Croo. 1. part last publisht. 429.

It is said, it will lye for this, Thou hast taken a false Oath at the Assizes, and art false forsworn. Stiles. Rep. 452.

So for this, Hee hath forsworn himself in the Common Pleas. Huttons Rep. 44. So for this, thou wast forsworn at the Common Pleas Barr.

So for this, Hee is forsworn and perjured in swearing at the Common Pleas Bar; Upon the deeds which hee had in his hand. Hill. 34. Eliz. B. R. Crews Cases Owens. Rep. 13. So for this, thou hast taken a false Oath, or thou hast forsworn thy self in the Kings Bench Court. Noys Rep. 34. Croo. 1. 307.

So for this, Thou wast forsworn, and I can prove thee forsworn when I will Bulstr. 1. part 40.

So for this, Thou art forsworn in a Court of Record, and that I will prove. Croo. 367. So for this, Hee hath forsworn himself in a Court Ba­ron. Huttons Rep. 44. March. 1. part 56. So for this, Hee is a perjured old Knave in the Court of J. S. Pasche. 40. Eliz. Co. B. Hutchman and Southcots Case. So hee hath forsworn himself in the Court of A. [Page 62] Coo. 4. 19. 15. Or in the Court Léet, or in the Court Baron of A. Noys Rep. 3. Hobb. Rep. 114. pl. 107.

It is agréed; to bee out of question; that the Action will lye for these Sect. 2. words, A. was forsworn, in such, or such a Court, as in the Common Pleas, in Hereford Assises, in the Quarter Sessions of G. or in the Leet of J. S. But some doubt of this, if the words bee, that A. was forsworn at such a Court, for this may bee in ordinary discourse, and extrajudicially; but others take the Law to bee alike in both. For both these opinions, see 38, 39. Eliz. B. R. Willis. Case. 38, 39. Eliz. Cockins Case.

It is said it will lye for this, Hee hath forsworn himself, and Ile teach him the price of an oath, for I will have his ears cropt. Hetleys Rep. 63.

So for this, Hee is falsly forsworn before the Justices of Assise, between A. and B. Hetleys Rep. 188.

So for this, Thou art a false forsworn knave, and art indicted by twelve men for Perjury, and thou hast compounded for the same. Bendloes Rep. 155. Bulstr. 3. part 304.

So for this, That Perjured knave I. S. stands Perjured upon Record, at Guild-Hall London, and I will prove it. Bulstr. 3. part 283.

So for this, Thou art a Perjured knave, and standst Perjured upon Re­cord for denying of thine own hand, and I will prove it. Bulstr. 3. 283.

So for this, Thou hast forsworn thy self at London, and there it appear­eth upon Record. Croo. 1, part last publisht 583.

So for this, Thou wert forsworn, and I can prove thee forsworn when I will. Bulstr. 1. part 40.

So for this, Hee is Perjured, and I will prove him so by two witnesses, without saying, in what Court hee is Perjured. Noys Rep. 61. Owens Rep. 62. So for this, I will prove thee [or I can prove thee] Perjured. M. 7. Jac. B. R. Roberts Case. So for this, I will prove thee a Perjured knave. Yelvertons Rep. 160.

So for this, Hee is a proper witness, hee will swear any thing; hee hath already forsworn himself in the Chancery, and was committed for it by the Lord keeper. Goldsb. Rep. 444.

So for this, said to al witnesse, presently after hee comes out of a Court of Record, wherein hee was sworn in a cause, Hee hath forsworn himself: And yet if it bee in a Cause, wherein the speaker of the words is a party; it may not bee Actionable. Hughes Rep. 42. March. 20. See Chap. 2. Sect. 9. Godb. Rep. 445.

It will lye for this, Thou Perjured Beast. 18. Jac. B. R. Bensons Case. So for this, Thou Perjured Beast, I will make thee to stand upon a scaf­fold in the Star-Chamber. Croo. 2. 613.

So for this, spoken of one that is to bée a witnesse before a Iustice of Peace; Thou hast been a contentious man this thirty years, and a breeder of strife, and hast taken a false oath against my Brother and Sister, in a matter of innocency, and hast taken twenty shillings for it, and I will shew it upon Record. Stiles Rep. 335.

So for this, when the Star-Chamber was, Thou wast Perjured in the Star-Chamber. So for this, Thou wast committed for Perjury in the Star-Chamber. Coo 4. 19. Hobb. Rep. pl. 107.

So for this, Thou hast forsworn thy self, or [thou hast taken a false oath] in the Leet of J. S. Harrisons Case B. R. Noys Rep. 34.

So for this, Thou wast forsworn, or [thou tookest a false oath] in the Bishops Court at Exceter. Hobb. Rep. 346. or in the Court of the Consistory of the Bishop of Exceter. Leonards Rep. 131. So for this, Thou wast for­sworn, or [thou tookest a false oath] in the Quarter Sessions at Glocester. 38. [Page 63] Eliz. Carlemains Case. Coo. 4. 15. Hobb. Rep. 346. 360.

So for this, Thou art a forsworn fellow, for by thy false oath thou hast hanged as true a man as thy self. 39. Eliz. Brooks Case. Croo. 1. part last publisht 572. So for this, Hee is a forsworn man, and hath taken a false oath in his deposition at T. where hee waged his Law against mee. Croo. 2. part 204.

So for this, spoken of a man that had preferred Articles against a man Sect. 3. to a Iustice of Peace, to have the good Behaviour against him, and taken his oath to them; Hee made a false oath before the Justice of Peace, and I have that in my house can prove it. Croo. 1. 275.

So for this, Hee was forsworn before the Bishop of S. upon examination by him, by vertue of a commission out of the Chancery. But it is said it will not lye for this, Hee was forsworn before the Bishop of S. Noys Rep. 3.

So for this, Thou art a Perjured person, and thou wast forsworn in the Court of Requests, and I will make thee to stand upon the Stage for it. Croo. 1. part last publisht 135. Leonard. Rep. 13. Foster and Thorns Case. Or thou hast forsworn thy self in the Court of Requests. Huttons Rep. 34.

So for this, Thou art a forsworn knave, and I will prove thee to bee for­sworn in the Spiritual Court. Croo. 1. part last publisht. 6. 9.

So for this, spoken of one that had taken his oath before a Iudge upon Articles in the Kings-Bench, Hee made a false oath before the Judge, and I have that in my house to prove it. Croo. 1. part 275.

It is said it will lye for this, Thou art a forsworn man in Westminster-Hall. Sed Quere of this. So for this, J. S. hath forsworn himself, and I will prove him Perjured, or else I will bear his charges. Croo. 1. part last pub­lisht 429. So (as it séems) for this, Hee was Perjured, and will swear one matter to day, and another matter to morrow. Bendloes Rep. 304.

This Action will lye in the North Countries, where the word main­sworn Mainsworn. is used and known, for such words as these; Thou art mainsworn, or thou art a mainsworn man; you are a mainsworn lad, hee is a mainsworn and forsworn fellow, or the like. But then they must bee spoken in the hearing of some body that doth understand them; but it néed not (as it séems) bee averred, that it was spoken in the hearing of such a one, nor Averment. that the meaning of the word is forsworn, &c. But it is the safest way for the Plaintiff in his Declaration, to aver the sense of the words in that Country. Brownl. Rep. 4. Hobb. Rep. 8. Brownl. Rep. 1. part. 9, 10, 14, 15.

So it wil lye for this, Hee hath forsworn himself before the councel of the Marches of Wales, in the Suit I had against him there for Perjury, and I will sue him for Perjury. Hobb. Rep. pl. 283. 560. Brownl. 2. part 272.

So for this, Thou art a forsworn Jack in the court of A. Thou didst swear away twenty shillings from B. if hee Aver that the Court of A. is a Court Baron. Croo. 1. part last publisht 348.

So it will lye for this, Hee was Perjured in the Kings Bench Court. Al­beit hee were never sworn there. Coo. 1. parr last publisht 569. But it will not lye for saying, Hee was forsworn in the Kings Bench, for this is doubt­ful whether to bee taken, of the Court, or of the Prison called the Kings Bench. 41, 42. Eliz. B. R,

This will lye for a Charge of Perjury, upon a voier dire, as well as up­on an Issue, for this is punishable by the common Law. Mich. 7. Car. 1. Lawdries Case.

But this Action will not lye for this, Hee is a proper witness, hee will swear any thing. Nor for this, Hee is a false man. But it will lye for saying, Hee is a false Perjured man. Godb. Rep. 88. 89.

Nor for this, Thou art a forsworn Knave, and that I will prove, for thou wast forsworn in the Hundred Court. Innuendo Staverton Hundred Court. Croo. 1. part last publisht. 209.

Nor for this, A. hath but one Mannor, and he hath gotten it by swear­ing and forswearing. Coo. 4. 15.

Nor for saying this to a man newly sworn in a Court, You are forsworn, without more words, as saying, in the testimony you have given, or oath you have taken, or the like. Mich. 7. Jac. B. R. Cawdries case.

Nor for this (as it séems) Thou wert detected of perjury in the Star-chamber. Croo. 1. part last publisht. 371.

It is said it will not lye for this, Thou art a false forsworn Knave; and General words and incertain. Sect. 4. that I will prove, for thou hast forsworn thy self against A B. in the Hun­dred Court. because it doth not appear by the words that it was in any Suit wherein he was a witnesse. Yelvertons Rep. 27. Croo. 1. 209. and yet this séems to be contrary to some of the fore-going Cases, where it is said to be adjudged to lye for saying, A man was forsworn in a Court Ba­ron. Huttons Rep. 44.

It is said that it will not lye for this, Thou art a forsworn Knave, and was forsworn at H. Court.

Nor for this, (as it is said) Thou art a false forsworn Knave, and didst take a false Oath against me at a Commission at E. [Innuendo, out of the High Commission, for an Innuendo may not enlarge the sense of Innuendo. the words. Huttons Rep. 44.

Nor for this, King is a false forsworn Knave, and took a false Oath a­gainst me at a Commission at Witham, because it did not appear whence the Commission came. Noys Rep. 2.

Nor for this said of the Side-man of a Parish, Thou hast most perju­redly presented me at the Visitation, before I. S. Official. Yelvertons Rep. 72. Croo. 2. 80. 120.

Nor for this, Thou wert forsworn in Canterbury Court, for no Court is so called. Huttons Rep. 34.

Nor for this, Thou wert forsworn in Whit-Church Court. Croo. 1 last publisht. 609. Nor for this, Thou art a forsworn man, thou wert forsworn in Whit-church Court. Croo. 1. 275.

Nor for this, Thou art perjured, for thou art forsworn in the Bishop of Glocester his Court. Croo. 2. 436. and yet in Croo. 2. 185. it is held to lye for saying of a woman, Thou hast taken a false Oath in the Consisto­ry Court of Exeter.

This Action will not lye for these words, Old Apthorp is a perjured General and incertain words. Knave, for he did swear that such wood was worth forty shilli [...]gs, where­as it was dear of a mark. Bulstr. 3. part 150.

Nor for this, A. is a perjured old Knave, and that is to be proved by a stake parting the Land of A. and B. Coo. 4. 19.

Nor for this, I marvaile you would marry your Daughter to such a forsworn man. Bulstr. 1. 150. Incertainty.

Nor for this, I know who spoke those words, Winitte and Bell, per­jured Rascalls, I mean to have their ears cut, and tongues cut out, for here being no Christian name, Non constat de persona. Bendlows Rep. 134. Nor for this, Thou art forsworn, and hast taken a false Oath at Hereford Assizes, for this might be out of a Court in an ordinary spéech. But if the words be, He took a false Oath in Hereford Assizes, it were more dangerous. Pasche. 15. Car. B. R. or it be averred to be in a Cause there, then the Action will be maintainable. Cro. 1. 209. March. Rep. pl. 17.

Nor will it lye for this, He is detected for perjury in the Starre Cham­ber. Coo. 4. 16.

Nor for this; Thou hast got thy living by swearing and forswearing, Mich. 9. Jac. B. R.

Some have said that it would have laine for this, He hath delivered an untruth in a material thing in the Starre Chamber. Croo. 1. part last pub­lisht. 583. And yet it is agreed not to lye for this, Hee hath delivered an untruth in his Answer in the Chancery. 38, 39 Eliz. Browns Case. Croo. 1. part last publisht. 375. 500. yet it was said to bee agréed to lye for this, He is forsworn in his Answer to Christmers Bill in the Chancery. Croo. 1. 234. Noys Rep. 36.

It hath béen held to lye for this, Thou art thrice perjured in thy An­swer in Chancery to my Bill. [Innuendo such a Bill, &c.] Croo. 1. last publisht. 907.

This generally is the Rule for these Actions of the Case for this kind of Sect [...]. Slander, That they must import a charge of a Perjury, in some judicial Court, and in an oath taken in the Court, and in such a Court that hath Conusance of the cause wherein it is taken, and judicially taken there in the cause, and in a thing material and pertinent, otherwise the perjury is not Innuendo. punishable as perjury; for every untruth, in an answer, or evidence, is not punishable; and therefore any charge of a Perjury, in any case wherein it is not punishable is not Actionable; nor will an Innuendo make a supply, or alter the case where the words are defective, as Innuendo a judicial Court, &c. Huttons Rep. 44.

It is said it will not lye for this, He hath forsworn himself at the Bar. Huttons Rep. 44. Nor for this, Thou art forsworn in Collet Court, not shewing what this Court is, and in what Action it was. Croo. 2. 190.

Nor for this, The Plaintiffe hath forsworn himself, Innuendo before the Justices of Assize, for the words not actionable, the Innuendo cannot make them actionable. Croo. 1. part last publisht, 609.

If one call another Whore, and she Sue in the Spiritual Court for this defamation, and the Defendant brings in witnesses to prove it, and to disparage the witnesse, she put in an exception into the Court, That hee had been perjured, this was admitted lawful, Trin. 15. Jac. B. R. Westovers Case against Davenet.

If a Cause be depending between Plaintiffe and Defendant, and the De­fendant upon the reading of an Affidavit of the Plaintiffs made in Court, said openly in the Court, There is not a word true in the Affidavit, which I will prove by forty Witnesses; in this Case the Action will not lye for the words, for it is in the defence of his title, Pasche 15. Car. B. R. Mutton against Clapham; nor for saying to one that hath newly given evidence against him in any Court, Thou art much forsworn as God is true. Goldsb. and Brownl. 7. March. Rep. pl. 45. Molton against Clapham.

It is said that it will lye for this, Thou art not so honest a man as thou For suborning and procuring of Perjury. takest thy self, for thou hast drawn I. S. into Perjury. Croo. 1. part last publisht. 899. 906.

So for this, He is a suborner of perjury. Croo. 1. part last publisht. 308. So for this, Thou art a procurer of perjury. 25. Eliz. B. R.

So for this, You have caused J. S. to perjure himself. Brownl. 1. part 2. and 2. 49.

So for this, Thou didst suborn, procure, and bring in false Witnesses in such a Court in Westminster, &c. Leonards Rep. 101.

So for this, Thou hast procured eight or ten of thy Neighbours to perjure themselves. Mich. 4. Jac. B. R. Fenner and Muttons Case.

So for this, Thou hast procured [or suborned] one Smith to come thirty miles to commit perjury, before my Lord of Winchester, and [Page 66] hast given him ten pound for that purpose. Croo. 2. part 158. Croo. 1. part 244. And yet if the words had such an import that he did not take the Oath when he came, it may be otherwise, Croo. 2. part 158.

So for this, Thou hast given A. ten pound for forswearing himself in Chancery, and thou hast hired him to forge a Deed. Croo. 2. part 244, 245.

Parson Prits Case in Suffolk was this, in Master Foxes Book there is a relation of one Greenwood of Suffolk, who is there reported to have perjured himself before the Bishop of Norwich in the giving of evidence against a Martyr, and that after by Gods Iudgement upon him his bow­els rotted away, and all this was false. And the Parson not knowing the truth of it, preached against Perjury, and cited this story of Gods Iudgement upon Greenwood, who brought his Action for this slander, but it was ad­judged against him, because it was not brought malitiose.

This Action for such like words as these, about matter of Perju­ry, is to be subject to the general Rules annexed to the rest of the Cases at the end of other chapters, that the words are actionable, without Averment of any special losse by them; so as they be false, malicious, direct, certain, &c. See for this. Croo. 1. last publisht. 169.

CHAP. XIII. Of Forgery.

FOrgery is also a great offence, and the punishment thereof great, by the Sect. 1. Statute of 5. Eliz. chap. 14. For the offender may for this be put in the Pillory, have one of his ears cut off, and be imprisoned for a year. If any one therefore shall charge another with this Crime, or any thing like unto it, the party wronged by it, may have his remedy by this Action.

It is therefore agréed, that this Action will lye for saying of another, Of a Deed. Thou hast forged a Deed. Owens Rep. 47.

That he hath forged a Lease, Obligation, Release, Acquittance, Feoff­ment, or other Deed. Croo. 1. part last publisht. 554. 607. Owens Rep. 47.

So for this, Thou art a forger of false Deeds.

So for this, Thou art a forger of false Writings.

So for this, Thou art a forger of Writings. Dyer. 285. Pasche. 39. Eliz. B. R. Wades Case. 39. Eliz. B. R. Goodalls Case. Croo. 1. last pub­lisht. 553.

But it will not lye for saying, One is a forging Knave. Goldsb. 25. pl. 5. Nor for this, Thou art a Knave of Record, and a forging Knave. Popham. Rep. 177. But it will lye for this, A. hath procured such a Deed (Innuendo, Adjective words. such a Déed given in evidence) to be forged.

So for this, Hee falsly procured such a deed to bee forged. Hetleys Rep. 31.

So for this, This is a forged deed, and you know it to be forged. So for this, You made this deed under a hedge, and forged it. Owens Rep. 47.

So for this, Thou hast forged the will of J. S. Pasche. 7. Car. 1. B. R Mackenists Case.

So (by one Iudge) for this, thou hast forged my Fathers will. Popham. 177. But in Winch. Rep. 40. It is said to be adjudged not to lye for this Mallard is a Knave, and forged my Husbands will against his mind. 10. Jac. for then it was not her Husbands will, if it were forged.

So for this, The deed which Sir George Reynel shewed forth to Sir [Page 67] John Tindal was forged, and made under a hedge. Bulstr. 2. part 132. 133.

So for this, Thou hast hired A. to forge a Deed [or to forge a Bond.] Croo. 1. part 244. 245.

So for this, Hee hath forged an Obligation, and I will prove it. Croo. 1. last. publisht. 603.

This Action (it is said) will lye for this, Thou hast forged my Fathers hand, whereby thou hast received my Rent. Bulstr. 3. 265.

But this Action will not lye for words thus uttered, I have matter e­nough against J. S. for Mr. Harley hath found Forgery, and can prove it against him. Hobb. Rep. 3. 467. pl. 395. 382.

Nor for this, I have found Forgery against thee, and can prove it. Hut­tons Rep. 39.

This Action (it is said) will lye for this, Thou hast forged a Record Of a Record. Sect. 2. in Abergaveni Court. Mich. 7. Car. 1. B. R. for this is punishable by the Common Law, though not by the Statute.

So for this, Thou hast forged a Recognizance taken before Fisher and others. Croo. 1. last publisht. 883.

So for this, Thou hast sued out a Writ against mee, and got a counter­feit Warrant of thine own making. Mich. 20. Jac. B. R. Stones Case. It lay for this.

So for this, Thou hast forged a Privy Seal, and a Commission, why dost not thou break open thy Commission. Croo. 1. part 237?

So for this, A. hath forged the last Queens Writ. Yelvertons Rep. 146.

So for this, Thou hast forged a Writ of Quare impedit. Croo. 1. part last publisht. 178.

So for this, Thou camest with a counterfeit Commission; when hée had a good Commission. Yorks Case.

So for this, said of a Warrant on a Latitat that comes under the She­riffs name, This is a counterfeit Warrant made by Mr. Stone, Innuendo, the Plaintiff had counterfeited it. Croo. 2. 648.

So for this, said of one that had got a License out of a Court to com­pound with an Informer, That hee forged it. Bulstr. 2. part 136.

So for this, Thou hast couzened the state of two thousand pound, and hast foisted in words into the order of composition. Stiles.

But this Action will not lye (as it is said) for this, Thou hast made a Of a Deed. Sect. 3. false Bond. Nor for this, Thou hast made a false Deed. Pasche. 39. E­liz. B. R.

Nor for this, This is the writing of J. S. hee hath forged this Warrant. Hobb. Rep. pl. 3.

Nor will it lye for this, A. shewed mee a Bill of forty pound [In­nuendo such a Bill as White had made him] unsealed, and after he shew­ed it him sealed, and that A. had forged a Seal to the said Writing. Hobb. Rep. pl. 8. 48.

Nor for this, This is John Thomas his writing, hee hath forged this Warrant [Innuendo, a Warrant made, &c.] for its incertainty in the Innuendo. word, warrant, and the Innuendo will not ascertain it. Hobb. Rep. pl. 4. Incertainty. 48. Thomas and Areworths Case.

Nor for this, Hee hath forged a Warrant, for it may be a warrant for a Buck.

It was the opinion of some Iudges, that it may lye for this, thou art a forger of Writings. But of others not. Croo. 1. last publisht. 553.

Nor for this, Thou art a couzening Knave, and shewedst forth a forged Deed. Bulstr. 2. part 132.

Nor for this, Hee hath forged a Writing; For this is altogether incer­tain. Hobb Rep pl. 3. 30. and an Innuendo such a writing, will not make it certain and actionable. Hobo. pl. 48. Harvey and Duckins Case. And yet it will lye for saying, Hee hath forged a Deed. Owens Rep. 47.

This Action will not lye for this, Hee hath made a false Bond. Croo. 1. last publisht. 607.

It is said to be adjudged not to lye for this, Thou art a forger of false Writings. Yet sée the contrary before said to be adjudged otherwise.

Nor (as it séems) for this, Thou hast made false writings, thereby to get my Land from mee. Croo. 1. part lost publisht. 855.

Nor for this, One of you forged a Subpena out of the Chancery, In­nuendo Of a Record. the Plaintiff, for this is incertain, and the Innuendo will not make it certain. Innuendo.

Nor for this, Thou hast made the great Seal.

Nor for this, Thou wast cubbed up for forging of Writs. Croo. 1. part last publisht. 234.

Nor for this, Hee hath made false Records, and verifies them. Stanhops Case.

Nor for this, Thou gettest thy living by false Writs.

But here wée must also annex the former Rules.

1 That for many of the words before named not actionable, if the party of whom they be spoken have any special losse by them, hée may have this Action for them.

2 In this Action hée néed not alledge any special damage by the words, where the words are in themselves actionable.

3 But the words must be malicious, false, certain, and under the Rule of qualification by other words, for by these things the words that other­wise in themselves may be actionable, may prove unactionable.

CHAP. XIV. Of Words of Slander about Matter of Incontinency.

AS to this, these things are to be known. Sect. 1.

1 That Slanders are Defamations of this nature being said to be spiritual, and properly to be heard and Determined in the Spiritual Court, and there the party grieved by them is to have his relief.

2 That a charge of Incontinency is notwithstanding (in the eye of the Common Law) a foul charge, and punishable in divers cases by corporal punishment, for if a woman have a Bastard, shée is by this made liable to such punishment as the Iudges in discretion shall inflict, and they alwaies inflict, whipping, imprisonment, or the like.

3 That generally this Action will not lye for Slanders of this nature, but in Cases where a man hath, or is like to have some special damage by the speaking of the words. And yet in some special Cases the Action is given, because it is necessarily intended to be a damage to the party of whom they are spoken, and that it cannot be otherwise.

4 That whiles there was a Law to punish more severely Adultery, For­nication, Baudry, and the like offences, the speaking of words of this na­ture might happily be more dangerous than now it is, that this Law is re­moved. See Stiles Rep. 424. 452. 455.

It hath therefore béen adjudged, resolved, or ruled by the Iudges. And it is said by them, that this Action will lye for this, You are a Whore, and have played the whore with so many men, you cannot number them. And [Page 69] that Iudgement was given in this Case for the Plaintiff without Aver­ment Averment. of any special losse by the words. Stiles Rep. 328.

So for this, This is the Whore that my man C. did beget a Bastard upon, and spent all my money upon, and the Qucan hath been too long in Town for my case. Stiles Rep. 274, 277.

So it will lye for this said of one about to be married, Shee is a Whore, and I will maintain it, and I will spoil her marriage. And it was said, it shall be actionable, albeit shée did not lose her marriage by it. Bendloes Rep. 148. Godb. Rep. 273.

So it is said it will lye for this, Thou art a Whore, and I will prove thee a VVhore, and thou hast made my house a Bawdy-house. VVilliams Case. B. R. Trin. 1655.

So for this said to a woman married, Thou art a common Bastard-bearing Whore, and hadst two Bastards by a Butcher, and I will prove it. Stiles Rep. 424.

So for this said to a Maid, or Woman, Thou art a Whore, and hast had a Bastard; or to a man, Thou art a Whore-master, and hast had a bastard. Bulstr. 2. part 90. And yet there in his 2. part 89. it is said to bée agréed that it will not lye for these words, Thou art a Whore.

Nor for these words, Thou art a Whore-master, or, thou didst lye Sect. 2. with such a woman, or, such a man did lye with thee, except hée have some special damage by the words. Coo. 4. 16, 17. Croo. 2. 163. Mich. 39. Eliz. B. R. and that without any Averment of any special losse, for they are by Law punishable for this. Coo. 4. 17.

So for this, He hath got Mary Nob with childe, and the childe is his, Averment. and I have tried it with a Sieve, and a pair of Sheeres; for the first words, although the latter words be insensible. Stiles Rep. 379.

So for this spoken of a Lady to whom the Earl of Kent was a Suitor, By report. A. hath reported that he had the use of her body [Innuendo, that he had carnal Copulation with her] whereas A. did never make any such Re­port. Croo. 2. 162.

So for this, She is a VVhore, and I will prove it, and her plying place is in Cheap-side, and she gets forty shillings a night by playing the whore. Hills Case, B. R. Stiles Rep. 394. but it séems it was for the last words.

So for this, said of a Bastard childe whereof A. B. was delivered, Hee, [Innuendo the Plaintiff] is the reputed Father of the Bastard. Innuendo Averment. the said bastard childe; if withall he aver, that hee lost a preferment in Marriage by it, or that it was the bastard of one not able to kéep it, or that it was some special losse by one way or other to him, and not other­wise. Croo. 1. 113.

So for this, Thou art a VVhore-master, and hast laine with Browns Wife, and hadst to doe with her against a chair; if thereby hee lose his marriage, &c. Croo. 2. 323.

It is said to be adjudged to lye for this, My VVife is a VVhore, and she was naught with VV. S. [Innuendo the Plaintiffe] and had I had a Averment. candle, I had taken them together doing the deed. VVith an Averment, that he did by this lose his preferment in marriage. Bulstr. 3. part 48.

So for this, where a rumour is abroad of a Bastard drowned, for this, I doe verily beleeve the bastard child was thine; and this Action was laid Averment. without any Averment that there was such a Bastard; and if there were none such, let the Defendant plead it, and save himself. Stiles Rep. 221.

It is said that this Action will not lye for this, Thou art a VVhore, and I. S. hath had the use of thy body, the Cart is too good for thee, with­out the averment of some special damage by the words. Croo. 1. last pub­lisht [Page 70] 582. 583. Goldsb. 172. So neither will it lye for this, A. is an ar­rant Whore, and would have lain with mee seven years since, and I would not unless shee would go to the hedge. For this is a spiritual slander only. Croo. 1. part last publisht 582. 587.

Nor for this, Shee is an arrant Whore, and hath had two bastards in Ire­land. Sect. 3. Brownl. and Goldsb. Rep. 16.

Nor for this, Hee is the reputed Father of that Bastards Childe, Innuen­do, &c. Vnlesse hée aver that some temporal losse that came unto him by it, as a losse of marriage, or that it is such a ones Bastard as is not able to kéep it, and so hée by this is charged to kéep it, or chargeable to the Parish, or the like. Croo. 1. 315.

Nor for this, Thou art a common Quean, a base Quean, a pipperly Quean: Winches. Rep. 14.

Nor for this, Thou art the hackny whereof J. S. Bodins Case. Nor for this, Thou art a Quean and a theevish Whore. Hill. 17. Jac. B. R. Nor for this, Thou wast rid up and down Stairs. M. 9. Jac. B. R. March. 2. part. 5. Noys Rep. 75. Stiles Regist. 8. Coo. 4. 18. And yet if these things were true, a man should bée punished for them with corporal punishment, as imprisonment, &c.

Nor will it lye for this, Thou art a forsworn Whore, and an old Baud. William Read and his Wives Case. Hill. 15. Jac. B. R. Croo. 462. Nor for this, Thou art Matcombes Hackny, thou art a theeving Whore, and a pocky Whore, &c. Croo. 2. 514. Godb. Rep. 278. Stiles Rep. 100. But perhaps these words spoken in London may lye.

Nor for this, Away you Pick-pocket, thou art a scurvy pocky Whore. Pick-pocket Albeit a special losse may bée averred by these words. Croo. 2. 499.

But it is generally held, that no Action will lye for calling of a woman (bee shée married or immarried) Quean, Harlot, Whore, common Whore, Adulteress, Pimpe, Baud, base Quean, common Quean, pipperly Quean, or the like. Nor for calling of a man, Whoremaster, common Whore­master, Whore-munger, Adulterer, Fornicator, Whorson, or the like. For any of these words alone, without other words with them. Croo. 1. 168. 189. 239. 288. 315. 27. H. 8. 17. Coo. 4. 15. 17. Noys Rep. 75. 85. Winches. Rep. 14. Croo. 2. 499.

And yet to call one Whore in London, it séems is Actionable. Stiles Rep. 229. 245. Coo. 4.

So also may any of the other words bée Actionable, if by the speaking of them, hee of whom they are spoken have any special damage, as that hee looseth his marriage, or a sparsonage, hee is like to have: And this hée must bée sure to aver in a Declaration, or the like, and not otherwise, Stiles Rep. 287. Coo. 4. 16. Bulstr. 2. part. 90. Croo. 1. 293. Godb. Rep. 275.

It is agréed, that this Action will lye for any man or woman, (espe­cially For calling one Baud, or saying he keepeth a Baudy-house. Sect.. 4. such a one as kéeps an Inne, Alehouse; Tabling-house, a common Victualling-house; for these words; Hee [or shee] keeps a Baudy house. So for this, Hee [or shee] keeps a house of Baudry. Bulstr. 1. part 138. Coo. 4. 14. 18. Stiles Rep. 322. 326. Croo. 1. 189. 166. 239. 255. Croo. 1. part last publisht 582. Brownl. 1. part 162. Kitch. 173. Noys Rep. 72. 73. &c. 117. March of Slanders 2. part 5. Stiles Regist. 8. Croo. 1. part last publisht 787.

And these words are most dangerous to bee spoken in London; for, for London. this offence a man may bee Indicted, Fined, and Imprisoned; and in Lon­don Ignominiously Carted also. Eliz. Thorns Case 24. Jac. B. R.

So for saying, A. the wife of B. is a Baud, and keeps a Baudy house. [Page 71] Croo. 1. 286. 350. March. Rep. pl. 249. Hughes Abridgement. 40. Trin. 16. Car. 1. B. R. Morgans Case. Trin. 18. Car. 1. B. R. Chambers Case.

And to speak such words of one that kéeps a Common house, Inn, &c. Averment. this will bear an Action without Averment of any special losse sustained by the words, but in other Cases it séems to be necessary. And yet it is said in some Books, that the Action will not lye for this, Hee keeps a Common Bawdy-house. See for these thing. Croo. 1. 168. 189. 239. 288. 27. H. 8. 17. Coo. 4. 17.

It séems that this Action will not lye at this day for saying of a man or woman, That hee [or shee] is a Bawd. And yet in London these words may happily be actionable. Stiles Rep. 322. 323. Croo. 1. 168. Noys Rep. 85. 27. H. 8. 14.

It is said to have béen adjudged to lye for this, Thou art a Whore and a Bawd to thy Daughters, and keepest a Bawdy-house. Stiles Rep. 326. Hill. 3. Car. 1. Elsey and Harrisons Case.

So for this, Hee is not sit to bear office in such a place, for hee keeps a Common Bawdy-house in London. Bulstr. 1. part 138. 27. H. 8. 15.

But it is said, it will not lye for this, Thou art a Pander to Sir H. Va­nyham. Noys Rep. 74.

But here also, as in the other heads of Actions of the Case, for Slande­rous words, this is to be added, That where the Action shall be maintain­able for words of this nature, they must be malicious, false, certain, and under the Rule of qualification by other words. For if the words be true, or without malice, incertain, or such as may be qualified by the rest of the words spoken with them; no Action will lye upon them.

CHAP. XV. Of other words importing some charge of transgression of a Penal Law.

THere are some other words that may sound to the hazard of a mans Sect. 1. losse of his liberty, or of the enduring of some corporal punishment, Speaking a­gainst the book of Com­mon-prayer. for which this Action may lye. And therefore it is held, that this Action will lye for saying of a man, That hee spake against the Book of Common-Prayer, and said it was not fit to be read in the Church, in case where hée Averment. can and doth aver in his Action, that hée hath any special damage by it, as that by this means hée was cited into the Ecclesiastical Court, and there put to trouble and expence, &c. otherwise not. Brownl. 1. part 10. 13. 2. part 100. 129. March. Rep. pl. 191.

It is said, that this Action may lye for calling of a great man Papist, or For saying of a man, hee is a Papist, or hath been at Mass, or hath said Mas­ses, or is a Priest. Recusant; or for saying, that hee hath a pardon from the Pope; or, that he can help any man to such a pardon. But otherwise it is of such words spoken of an ordinary man. Brownl. and Goldsb. 12. Brownl. 2. part 166. March. Rep. pl. 191. Leonards Rep. 335.

It will not lye therefore against a man for saying of another, That hee Papist. Recusant. Priest. is a Simonist, a Recusant. Croo. 2. 284.

Nor for this, Thou art an arrant Papist, and it were no matter if such were hanged, and thou, and such as thou wouldst pull the King out of his Seat if they durst. Hobb. Rep. pl. 187.

To say of one, Hee is a Mass-Priest, or hath said Mass, or hath heard Mass divers times, may be actionable. And to say of one, that hee received a Mass-Priest into his House, knowing him to be such a one, is dangerous. Bulstr. 1. part 181.

But to say of a man, Hee hath received a Recusant, without more [Page 72] words is not actionable. Godb. Rep. 106. Croo. 2. 484.

This Action will not lye for saying of a man, Hee hath erected a Cot­tage Erecting a Cot­tage. contrary to the Statute. Godb. pl. 125. 106. March. Rep. pl. 191.

Nor for saying, You did eat meat on a Friday. Nor for this, You did Eat Flesh Fish­daies. Sabbath-brea­ker. Strike in a Church eat flesh Fridaies. Godb. pl. 125. March. pl. 191.

Nor for this, Thou art a Saboath-breaker.

It may happily lye for saying, Thou didst strike another in a Church with a weapon. But not for this, Thou didst quarrel in the Church Godb. 125. March. Rep. pl. 191.

It hath béen said, that it will not lye for saying of one, Hee is a Cham­pertor, Champertor. Maintainer of Suits. Buyer of Tites. Slander of an Officer. Maintenance. or a Common Champertor, or a Common Maintainer of Suits, or a Common Buyer of Titles. And yet this said of a Iudge, Iustice of Peace, Attorney, or such like officer, may be actionable. Hobb. Rep. pl. 145. and Hares Case. And yet in a Case B. R. 35. Eliz It is said by Popham. Chief Justice, that it had béen adjudged to lye for this, Thou maintainest such a Sute. Croo. 1. part last publisht. 297. See Hobb. Rep. pl. 188. Hetleyes Rep. 139. 143. Rioter. Maker of for­cible Entry.

Nor for this, Thou hast made a forcible Entry into Lands. Nor for this, Thou art a common Rioter, or thou hast committed a Riot. And yet some think, that this may be actionable. Mich. 8. Car. 1. B. R. Stones Case.

Nor for this, Thou art a Forestaller, Regrator, and Ingrosser. Forestaller. Regrator. Ingrosser. Common Drunkard.

Nor for this, Thou art a common Drunkard, a Drunkard, or a drunken Fellow. And yet some say it may lye for the first of these words. Croo. 1. 207. March. 1. part of Slanders. 46. M. 8. Car. B. R. Finches Law. 186.

Nor for this, Thou art a common Swearer. Common swea­rer. Sect. 2.

Nor (as it séems) will it lye for any charge of an offence against a pe­nal Law, which doth not inflict Corporal punishment, save only in case of non-paiment of the penalty.

This Action will not lye for any of the words in the Cases Common Libeller. Slanderer. Quarreler. Breaker of the Peace. Affrayer. Night-walker. Eves-dropper. Hedge-breaker. Mis-feasor. following, viz. for saying, Thou art a common Libeller, or, a common Slanderer, or a common Quarreller, or, a common breaker of the Peace, or, a common Affrayer.

Nor for this, Thou art a common Night-walker; nor for this, Thou art a common Eves-dropper; nor for this, Thou art a common Hedge-breaker; Nor for this, Thou art a common Misfesor. Kitch. 173. 22. Ass. 31.

This Action is said will be maintaineable against any man that shall say Common Bar­retor. of another, hee is a convicted Barretor; and for saying of a great man, of a Iudge, Iustice of Peace, Attorney, or the like Officer, He is a Barre­tor, or, He is a Common Barretor.

But it will not lye for saying of a Common person, He is a Barretor, or, He is a common Barretor. Hob. Rep. pl. 188. Hetlies Rep. 139. 143. Croo. 3. 171. Croo. 1. part last publisht. 171. Kitch. 173. Goldsb. and Brownl. 11. Hobb. Rep. pl. 188. Yelvertons Rep. 90.

It is said that it will lye for this, Hee hath been indicted for Bar­retry, if it were true, he was Indicted, and upon the Indictment acquit­ted. But had he béen found guilty upon the Indictment, then the speaking of the words are justifiable. Stiles Rep. 49.

But it will not lye for this, Thou art a common Barretor, and I will Indict thee for it at the next Sessions. Hobb. Rep. pl. 188. Knave.

Nor will it lye for calling of one (that is an ordinary person) Knave, or false Knave, or cozening Knave, or cheating Knave, or crafty Knave, [Page 73] or the like, will not bear Action. But to call one Bankerupt-knave. Tray­tor-knave, or Perjuted knave, or the like, Huttons Rep. 13, 14. Bulstr. 2. part 218. Stiles Rep. 17. Finches Law. 186.

Nor will it lye for this, Thou art a Villainous Knave; nor for this Thou art an arrant Knave, Croo. 1. last publisht, 403. Finches Law. 186.

And yet it hath béen adjudged to lye for this, Thou art a Pillory-Knave. Remember Brown, thou shouldest have been set on the Pillory. Croo. 1. last publisht 11. Brown and Dawks and 26. Griffiths Case. Co. B. But in B. R. the Court séemed to bée of another opinion. Croo. 1. part last pub­lisht 31.

To have called a man Villain, when villenage was in force, would not Villain. have born Action; unless hée had said, Villain to such a man, or Regar­dant to such a Mannor. Finches Law 186.

It is said this Action will lye for this, You are a branded Rogue, and Rogue. have held up your hand at the bar, and deserve to bee hanged, and shall bee hanged, Stiles Rep. 49. 50. Bulstr. 1. part 138. Popham Rep. 177.

So for this, Thou, Sirrah, art a Rogue, and a runaway Rogue, and didst run away from Oxford, and art a Rogue upon Record at Oxford. Branded Rogue. For these last words only. Stiles Rep. 220.

But it is said, that this Action will not lye for this alone, Thou art a Vagabond Rogue. Rogue. Coo. 4. 15. Kitch. 173. Nor (as some have held) for this, Thou art a branded Rogue. M. 9. Jac. B. R. Harrisons Case. Nor will it lye for calling a man Vagabond and a Rogue. Croo. 1. last publisht. 843. 157. Finches Law. 186.

This Action will not lye for all these words spoken together, Thou art Villain. Rogue. Couzener. Blood-sucker. Vermine. False Brother. Liar. Conspirator. Railer. Sower of Dis­cord. Malefactor. Miscreant. Hypocrite. a Villain, Rogue, Couzener, Villainous Knave, and Blood-sucker, Varlet, Rascal, Vermine of the Earth, false Brother, Lyar, Conspirator, Railor, Sower of Discord, Malefactor, Miscreant, Hypocrite. And therefore a Fortiori, the Action will not lye for the speaking of any one, or of some of these words. Popham. Rep. 177. Bulstr. 1. part 138. Coo. 10. 131. Croo. 1. 352. Jenk. Cent. 7. Case 70. Kitch. 173. Croo. 2. 473. Huttons Rep. 13. 14.

And yet some of these words spoken of an eminent person, as a Péer of the Realm, may be actionable. Leonards Rep. 335.

Nor will it lye for this, to say, Thou art of ill Name; For the Law looks upon these but as hasty, passionate, and foolish words, not worthy of Action. But here it is to be observed, that for many of the words not actionable, they do notwithstanding import crimes subject to severe punishments, viz. Imprisonment, Pillory, Fine, to be bound to the good behaviour, and the like; And therefore it is granted, that some of these words, when spoken to eminent persons, or to ordinary men in Office, or Trade, with reference to their Offices, and Trades, or to any man whatsoever, that is specially damnified by them, they may be actionable. Coo. 4. 15. 17. 20. Mich. 19. Jac. B. R. Harrisons Case. March. Rep. 114, 115. Brownl. 1. part 9. 10. 12. Leonards Rep. 335.

And now that wée are fallen upon some words spiritual, whereof our Common Law taketh no notice to punish, and upon light, passionate, and vain words, not actionable, wée will give you the residue thereof in this place.

CHAP. XVI. Of words Spiritual, Passionate, and Vain, for which no Action is given.

THere are some other words, that have an import in them of Infamy Sect. 1. and discredit, but are said to be of a spiritual nature, and not under the Conusance of the Common, but of the Civil Law. And there are other words that are said to be only passionate, vain, and empty words, for ei­ther of which the Law gives no Action.

It is held therefore, that to call one Bastard, Whore, Whoremaster, Spiritual Slan­ders. Advowterer, Fornicator, and the like, these Slanders (if any be in them) are méerly spiritual, and are properly examinable and determinable in the Ecclesiastical Court. And therefore the Common Law doth not inter­meddle with them, but in Cases where they are intermingled with some temporal damage occasioned by them to any man; in which Cases the Law Averment. doth give him repair for his damage only by this Action. And therefore the Plaintiff in such Actions is alwaies to make in his Suit brought a special Averment of his damage. Otherwise the Temporal Courts have no Co­nusance of the Cause. For this see chap. 14, And therefore no Action will lye in any of our Temporal Courts, for any charge of Incontinency (as a Defamation only) for calling of one Whoremaster, or Whore, for saying, that one was naught with another, that hee or shee hath had children by another man, or by another mans wife, or the like. But for this, hée is to have his remedy in the Spiritual Court.

So if one man call another Heretick, Schismatick, Bastard, Miscreant, Heretick. Schismatick. Miscreant. Advowterer. Fornicator. or the like, no Action will lye for this simply in any of our Temporal Courts, except the Case be such, that there be withall some special damage a cerewed thereby to the party of whom the words are spoken. It hath béen therefore adjudged, that this Action will not lye for saying, that hee had two Bastards, and should have kept them; and that by reason thereof dis­cord did arise betwéen him and his wife, and they were like to have béen di­vorced. Croo. 2. 473. And 27. H. 8. 14. 17. Coo. 4. 16. 17. 20. Croo. 2. 163. 473. Bulstr. 2. 89. 12. H. 7. 22. Noys Rep. 85. Croo. 1. 107. 186. Goldsb. 36. Hobb. Rep. 376. 397. Coo. 5. 57. See chap. 3. chap. 14.

The words that follow are light and trivial, or hasty and passionate words; And therefore (as wée have shewed before) they give no Action, as for any of these words, Villain, Rogue, Knave, Bastard, Varlet, Cheater, Couzener, Railer, Liar, Miscreant, Vermine, Hypocrite, and the like; ex­cept it be in case where some special damage comes thereby to the party of whom the words are spoken. And it must be a real and considerable damage also; for an imagination, or suspition of damage only will not serve. Croo. 2. 473.

And these following words are looked upon as trivial words, for which no Vermine. False Brother. Rogue. Action [...] is given, viz. Thou art a Vermine of the Earth, a false Brother. 25. Eliz. B. R. Thou art a Rogue, and I will prove thee so. Goldsb. 2. part 272. I never held up my hand at the Bar as thou hast done. Goldsb. 2. part 272. Thou deservest to be hanged. Hobb. pl. 185. Yelverton. Thou deservest hanging. Varlet. Hypocrite. Rep. 90. Goldsb. and Brownl. 11. Hee doth trade with Pirates. Bulstr. 1. 216. Hee is a very Varlet, and seeketh to suppress his Brothers will. Hee makes shew of Religion, hee is a very Hypocrite. Popham. Rep. 148. That hee keeps such Dogs about him, that mens Cattel about him cannot go in peace, that his Cattel are in every mans ground, and the like. Bulstr. 1. [Page 75] 40. Dyer. 18. So neither will it lye for mée for this, My Master hath put mee away, because I would not be a Papist, for hee will keep no servants but Papists. Croo. 1. last publisht. 308. for this is a trivial charge that hath no weight in it.

CHAP. XVII. Of other words that have another import in them.

THere are yet other actionable words, that do not bring a man into the Sect. 1. danger of the losse of his life, liverty, or member, or other corporal punishment; but they are such as may bring him in danger of suffering in his Name, or Estate, or both. Some of these may be such as have rela­tion to an infectious disease, which hée is said to have. Some of them are such as may hinder him in a present preferment, that hée might otherwise have. Some of them charge him with deceit, and cheating. Some of them may reflect upon him in relation to his office, or profession. And some of them in relation to his Trade, and way of getting of his living. For that which doth concern words relating to an infections disease, take these Cases, That if a man be charged or reported to have any such great infectious dis­ease, as for which hée ought to separate himself, or to be separated by the Law, from the society of men, and this be not true that is reported of him, Words about an infections disease. hée may have his remedy for this wrong by this Action. It is held there­fore that this Action will lye for the words in the Cases hereafter fellow­ing, that is to say.

It séems it lyeth for this, Thou art a Bankrupt Knave, and a Pocky Knave, let them bear witness that stand by, and I will prove it. Croo. 1. Pocky Knave. part last publisht 99. But it must bée for the first, and not for the last words, and that it will not lye for the words, Pocky Knave.

This Action will lye for saying of another, That hee hath the French Sect. 3. French-Pox. Pox. But not for this, Hee hath had the French Pox. Stiles Rep. 64. Noys Rep. 151.

And yet it is adjudged to lye for this, of an Inne-keeper, A. had the Inne-keeper. French-Pox. and hath set it in the house [Innuendo the Plaintiffs house] and W. S. [Innuendo the Plantiff] and his wife have it, and all you, and that the husband alone may sue, Stiles Rep. 112. Plague.

So it is said it will lye for this, Thou wentst to the Wells to bee cured of the Pox. Stiles Rep. 219.

So for this, Thou art a Bastard getting Rogue, and hast a Bastard at Ox­ford, and art a Pocky Rogue, and for ought I know thou hast fild my bed full of the French Pox, and no such Pocky Rogue shall lye with mee. Stiles Rep. 283.

So for this, Hee hath caught the French-Pox and carryed them home to his wife. Hobb. Rep. 219. 290. Brownl. and Goldsb. 11.

So for this, Thou art an arrant Whore, and hadst the French-Pox. Ow­ens Rep. 34. So for this, Mrs. Miller is a Whore, and hath had the Pox, and hath holes one may turn ones finger in them, Mrs. King the Apothecary gave her a drink for it, and therefore take heed how you drink with her. Croo. 2. 430. 144.

So for this, A. B. is laid with the Pox, or the Pox doth haunt him twice a year. Croo. 2. 144. Coo. 4. 17. and Ludsains Case M. 2. Jac. Per Williams and Fenner Justices.

So for this, Thou art a Pocky Whore, and the Pox hath eat out the bottome of thy belly, that thy guts are ready to fall out. Mich. 7. Jac. Co. [Page 76] B. Miles Case. Trin. 15. Jac. B. R. Millards Case.

So for this, Thou art a Pocky Knave, get thee home to thy Pocky Wife, her nose is eaten with the Pox. Croo. 1. part last publisht 878.

So for this, Thou art burnt, and hast the Pox. Croo. 1. last publisht 2.

So for this, Thou art rotted with the Pox. Croo. 1. part last publisht 648.

And such kinde of words are then most dangerous, and out of question Actionable when they are spoken of an Inne-kéeper, Vintner, Tabler, Inne-keepers. Victuallers. Ale house-kéeper, or the like persons, whose life, and livelyhood doth de­pend upon their society with men; and therefore it is dangerous to say, that the Pox, or the Plague, or any such great and infectious disease is in such a common house, as Inne, Alehouse, or the like, when it is not so; for if thereby his Guests forbear to come to him, or hée suffer any other dam­age, hée may have this Action, but otherwise not. Coo. 4. 17.

And therefore to say to a man going to such a house, Go not thither, for the Plague hath lately been there, is Actionable. Hetleys Rep. 70.

So to say of a woman Inholder, Shee is a Pocky unwholsome Woman, doth wear a Skarfe about her neck to hide her Blanches there: it is a Pocky houshold, is thought to bée Actionable. Mich. 9. Jac. Ludmans Case.

So it is held that this Action will lye for this, Hee is infected with the French-Pox. So for this, Thou hast the Great Pox. 21 Jac. B. R.

So it is said, this Action will lye for this, Thou art not worthy to come into any honest mans company, thou art a Leaprous Knave, and a Leaper Thou art a Leaper. Coo. 4. 17. So for this, Thou art a Leaper. Trin. 4. Jac. B. R. Taylor and Perkins Case. Croo. 2. 144.

And for all these words in the precedent Cases, it séems this Action will Averment. Sect. 3. lye; And that (as some say) without any Averment of special losse su­stained by them; Sed Quere of this. But these kinde of slanderous words also are liable to all or some of the general Rules before named. And therefore they may for the incertainty, doubtfulnesse, or other matter in the words be rendred unactionable.

It hath therefore béen adjudged or resolved not to lye for the words in the Cases hereafter following, viz. for this, Thou art a scurvy pockey Whore, unlesse thereby shée have some special losse, by way of Trade, or by way of Marriage. Croo. 2. 498.

Nor for this, Hang him, hee is full of the Pox, I marvel that you will eat or drink with him. Coo. 4. 17.

Nor for this, J. S. hath the Pox. Coo. 4. 15. 17. Hobb. Rep. 196.

Nor for this, Hee hath had the French-Pox, or Plague, for hée may be well again. Noys Rep. 151.

Nor for this, Thou art a pocky Whore. 44. and 45. Eliz. and M. 7. Jac. Co. B.

Nor for this, Thou hast lyen in Fullers Tubb. 37. Eliz. Chappel and 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 [Page 78] 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; if by this report the Suitor fall off, and shée lose the match. Anne Davis Case. Coo. 4. 16. And there it was resolved, that if hée had charged her with bare Incontiuency, that this had béen actionable, if shée had lost her Suitor by it. And for this said in such a Case, A. hath reported that hee had the use of her body at his pleasure, ubi re vera, A. did not report it, and if upon this the Suitor fall off, the Action will lye. Dame Morrisons Case. Hill. 4. Jac. B. R. Croo. 2. 103. Jenk. Cent. 8. Case 7.

So for this, (as it séems) to say of a woman about Marriage, that shee is For a Servant that is hindred of his service. Couzening. mad, if shée lose her Marriage by it. Bendloes Rep. 155.

So this Action will lye for these words spoken of a servant and Bayliff, to J. S. who doth much trust him, and thereby hée had his livelihood. He is a couzening Knave, and hath couzened his Master [Innuendo the said J. S.] of a bushel of Corn. Croo. 1. 345.

So for this, spoken to a Deputy, Clerk of one B. a Register, who trust­ed Sect. 3. him much, and the Deputy Clerk got his living by him, hee is a base couzening Knave, hee is a Cheater, and hath couzened his Master, Innuen­do the said B. Croo. 1. 406.

So for this, said of a Shoomakers servant, that lives by the Trade un­der him, Hee will cut his Master out of doors. But then hée must aver, that Averment. by those words in that place is understood, hée will undo him. Bulstr. 2. part 146.

So this Action will lye for these words spoken of a Widdower, who was Hindrance of Marriage. like to have had a good match, Hee is a sharking fellow, and getteth his [Page 79] living by Deceit, and used himself violiently to his former wife, and deny­ed her necessaries, and is a needy fellow, and his conditions are wicked, and for his Religion, hee is a Brownist, &c. If by this hée lose his Match. But there it was agréed, that without an Averment of some special losse, the Action will not lye in this Case. Croo. Rep. 1. 110. 195. 234. March. Rep. pl. 2.

So for this spoken of a Maid that hath many Suitors, That A. Reading is with childe, and did take Physick to kill her childe, and that by this shée lost her Suitors. Hetleys Rep. 18.

So for this, Southold hath been in bed with Dorchesters wife; if by this Southold lose his Match hée is about. Croo. 1. 195.

So for this, Shee is a Whore, and her children [Innuendo, the children which shée had by B. her late Husband] are Frambishes Bastards, Innuen­do Nicholas Frambish; if by this shée lose her Marriage. Croo. Rep. 235. And so fo for any such like words spoken, by reason of which a man or wo­man doth lose his or her preferment in Marriage. Stiles Regist. 7. Coo. 4. 16.

But this Action will not lye, for saying of a man that is a Suitor to a Widdow, Thou didst couzen J. S. of her mony, in procuring false wit­nesses to couzen her; albeit hée lose the Widdow by the words spoken. Owens Rep. 47.

And for the words in the fore-mentioned Cases this Action will lye, with Averment of damage where it is necessary, as in most (if not in all) Cases it is. Coo. 4. 13. Croo. 1. 13. 100. Bulstr. 2. part 270. 277. March. Rep. 93. But all this kinde of Action of the Case for such words as these, are to be subject to the general Rules of the other actionable words; for if the words be doubtful, incertain, or the like, they may hereby become un­actionable. See more for this, chap. 14. ch. 21, ch. 22. And in some of the other chapters.

CHAP. XIX. Of words importing a charge of Deceit and Couzening.

THere are other Slanders, and Slanders in other Cases than these, Sect. 1. which are before named; some of them import something of fraud and couzening, for which this Action is given; It is therefore held, that this Action will lye for the words in the Cases hereafter following; That is to say, for saying, Thou Captain Greenfield hast received mony of the King About Couzen­ing and Deceit. Of a Captain. to buy new Saddles, and hast couzened the King, and bought old Saddles for the Troopers. Pasche. 17. Car. B. R. Sir Richard Greenfields Case. March. Rep. pl. 135. So to charge an Officer, or Tradesman with cou­zening is dangerous; and therefore it is held actionable, to say of an Ine­kéeper, There is no man comes to thy house, but thou dost couzen him. Of a Trades­man. Hetleys Rep. 123.

And yet it is said to be adjudged not to lye, for saying of a Butchers wife, that doth use to sell meat in her Husbands absence, Shee is a couzening woman, and hath couzened one of her neighbours of four pound, and I will prove it. Huttons Rep. 14.

To say of a Brasier, Thou hast couzened mee of a Pan, is actionable. Stiles Rep. 364.

It lieth also for one that hath the over-sight of a Gentlemans Farm, Of a Bayliff, or Servant. and sells his Corn, for these words, Thou art a couzening Knave, and thou hast couzened mee in selling false measures in my Barley, and the Coun­try [Page 80] is bound to curse thee for selling with false measures, and I will prove it; and thou hast changed my Barley which I bought of thee. Brownl. Rep. 1. part 4. Hobb. Rep. pl. 93.

So for this, said of a Servant and Bayliff to J. S. who doth much trust him, by which hee gets his living, thou art a cozening knave and hast cozened thy Master of a Busnel of corn. Croo. 1. 345.

So for this, said of a deputy Clark to one B. a Register, who trusted him much, and by which hee got his living, Hee is a base cozening knave, hee is a cheater, and hath cozened his Master A. B. Croo. 1, 406.

So for this, You have Cozened the State of two thousand pound, and I Of an Officer of the State. will prove it; for you have received twenty five thousand pounds profit of the Office, and not compounded for it, and have foisted in words in the order of your composition. Stiles Rep. 436.

So (as it is thought) for this, said of a Lord of a Mannor, Thou art Of the Lord of a Mannor. a cozening knave, and keepest cozening courts, to cozen men of their fines. 4. Jac. B. R.

So for saying of a Gold-smith, I will prove thee a cozener, for selling mee a Saphyr for a Diamond. Brownl. 2. part 100 Kitch. 173.

It hath lain for this, spoken in London, Thou art forsworn in the Car­penters-Hall, Of an Officer in London. and didst rob the Hall, and deceive the company of twenty pound. Croo. Rep. 1. last publisht 787.

So this Action will lye for a charge of cozening, imposed upon an e­minent Of an eminent person. person; as to say of a Gentleman of the Privy Chamber of the King, That hee is a cozener, and liveth by cozening. Croo. 2. part 427.

But in all, or most of these Cases to make such words as these Action­able, there must bee an Averment of some special damage to the Plaintiff by the words: and in all Cases, if the truth bee so, it is best so to set it Averment. forth in the Declaration.

But it is held, that this Action will not lye for the words in the Cases hereafter following; that is to say, it will not lye for calling of a com­mon Cozener. person, cozener, cozening knave, cheating knave, cheater, or the like. Finches Law 186. Bulstr. 1. 138. March. Rep. pl. 135. Cheater. Officer.

And yet perhaps to speak so of an eminent person, or of an officer in re­ference to his office, it may be Actionable. Croo. 1. 345. Croo. 2. 427. Eminent per­son. Godb. 284.

It will not lye (as it is said) for this said of a man that is a suiter to a Widdow, Thou didst cozen J. S. of her money in procuring false witnesses to cozen her. Albeit hee loose the Widdow by these words. Owens Rep. 47.

Nor for this, said of an ordinary Gentlewoman, Thou art a cozener and livest by cozening. Croo. 2. part 427. Coo. 4. 16.

Nor for this, Thou hastcozened J. S. in buying Saddles for him. Godb. Rep. 284. pasche. 27. Car. B. R.

Nor for this, Thou hast cozened mee and my two kinsmen, and art a false knave. 26. Eliz. Kerby and Wallers Case Godb. Rep. 284.

Nor for this, said of a Mayor, Hee hath cozened all his brethren, &c. See in March. Rep. pl. 135. B. R. Mayor of Tibbortons Case.

Nor for this, Thou wert a Suiter to a woman in Southwark, and didst cozen her of her goods, and procuredst certain false witnesses to bee forged. Croo. 1. last publisht 99.

Nor for this, Thou hast used Jugling with mee. Croo. 1. part last publisht Jugling. 178. Sect. 2.

Nor for this, Thy credit hath been called in question, and a Jewry be­ing to passe upon it, thou foistedst a Jewry early in the morning, and thy lands thou hast gotten by lewd practises. Croo. 1. part last publisht 348.

Nor for this, Mr. Crook came unto Cornwel with a blew coat on his back, Cozening in sale of Fish. and hath now gotten together a great quantity of Wealth, by trading with Pirates, cozening in the tale of Pilchers, and by extortion. Balstrod. 1. part 216.

Nor for this, He is a cozening knave, and cozened a poor man of one hundred pound, and all the Georges are cozening knaves. Huttons Rep. 14. Nor for this, Hee is a cozening knave, and hath cozened mee of forty pound. Incertainty. Huttons Rep. 14.

Nor for this, Hee is a false knave, and keeps a false debt book; for hee In a false debt book. chargeth mee with the receit of one peece of Velvet, which is false. Hut­tons Rep. 14.

Nor for this, Thou art a pilfering Merchant, and hast pilfered away my goods from my wife and children. Huttons Rep. 14. Owens Rep. 56.

Nor for this, spoken of a man that is no tradesman, A. is a cozening In selling a Sa­phir for a Dia­mond. knave, and so I have proved him before the Lord Mayor, for selling of a Sa­phire for a Diamond. Huttons Rep. 13. Nor for this, Thou art a cozening knave, and hast cozened mee of five hundred pound. Huttons Rep. 13. Nor for this, Thou art a cozening knave and shewedst forth a forged Deed. Bulst. 1. part 132. By shewing a false Deed. Cozened a Town.

Nor for this, Thou hast cozened the Town of B. of so much mony, albe­it hée were an Officer and to account. Bulstr. 2. 228. Nor for this, Hee hath cozened the Earl of H. of as much as hee, Innuendo the Plaintiff, is worth. Bulstr. 1. part 162, 163.

Nor for this, said of a Merchant, Thou art an arrant knave, for thou Of a Merchant. hast cozened all Coventry. Bulstr. 1. part 162, 163.

Nor for this, spoken of a Merchant, a Gentleman of the Kings Privy Chamber, or whosoever else hée bée, Hee is a cozening knave, and lives by cozening. Godb. Rep. 407. Goldsb. 3, 4, 5.

Nor for this, You bought land when you cozened the Town in your Ac­counts. Cozening of a Town. Bulstr. 2. 228.

Nor for this, Thou are a varlet, and hast suppressed thy Brothers will to In the suppres­sing of a Will. deceive others of Legacies. Trin. 17. Jac. B. R. Godfreys Case.

Nor for this, Thou hast cozened mee and all my kindred. 18. Eliz. B. R. Nor for this, Hee hath cozened all the Town of Coventry. Nor for this, Hee is a very bad fellow, for hee made A. drunk in the night, and Incertainty. cozened him of one thousand marks. Goldsb. 125. pl. 12. Nor for this, Thou getst thy living by cozening. Croo. 2. 427.

Nor for this, Hee is a cozening knave, for that hee hath sold mee a chain of Copper, for a chain of Gold, and that hee is a cozening knave upon Re­cord. Deceit in trade But if hée bée a Gold-smith, and got his living by buying and sel­ling of Chains and such wares, there perhaps it may lye. Croo. 3. 171. Croo. 1. last publisht 171.

See more in Chap. 18. Chap. 21. Chap. 22.

For all these last Cases of Vnactionable words, this is also to bee ad­ded; that if it bee so that the party of whom they are spoken; sustain any special damage by them, hee may perhaps have an Action of the Case upon them; but then hee must be sure in his Declaration to Aver it. See March. Averment. of Slanders 1. part 100.

This also is to bee known herein; that The Slanderous words of this kinde, are also liable to the general Rules of other Slanderous words, that is, they must bee false, malitious, certain, and the like, or they will not bee Actionable.

See more in Chap. 18. and 19. and in other Chapters.

CHAP. XX. Of scandalous words that relate to men in their Offices, Professions, and places of Trust.

THere are other scandalous words that reflect upon men in their Offices, Sect. 1. Professions, and places of Trust; and these are either such as charge them with corruption and dishonesty, or with ignorance and unskilfulnesse therein; and for this, it may go for a Rule, as to such Persons, generally that for any words that shall import a charge of unskilfulnesse, or dishonesty and corruption, in, and about their Offices, this Action will lye.

It is therefore agréed, that this Action will lye for a Bishop against him Of a Bishop. that shall say of him, Hee is a Papist, or Recusant; or that hee hath receiv­ed a pardon from the Pope, or the like. Brownl. and Goldsb. 12. and 2. Recusant. Papist. part 166. March. Rep. pl. 191.

This Action will lye also for a Iudge, Iustice of Peace, or such like Of­ficer, Of a Judge or Justice of Peace. for the words in the Cases hereafter following spoken of him viz. That hee is a corrupt Judge; or hee is a corrupt Justice of Peace; or hee is a cor­rupt Officer; or hee is a corrupt Man; if it be spoken with reference to For matter of corruption. his Office. Coo. 4. 14. 16. 19.

So for this, Hee gave a corrupt sentence in such a cause. Popham. Rep. 35. Popham. 177. Hobb. Rep. 35.

So for this, Hee doth not administer true Justice. Croo. 1. part last publisht. 358. So for this, He dealeth corruptly.

So for this, Hee is a false Judge, or hee is a false Justice of Peace, or hee taketh bribes. Coo. 4. 16. Broo. 112.

So for this, Hee is a lewd Justice of Peace. Croo. 1. part last publisht. 158.

So for saying of such a one, Hee is a Felon, or hee is a common Bar­retor; Fellon. Barretor. Champertor. Maintainer of Suits. Extortioner. or hee is a common Champertor, or hee is a common Maintainer of Suits; or hee is an Extortioner, or hee hath committed Extortion, or the like. Hobb. Rep. pl. 145. 188. Goldsb. and Brownl. 11. 30. Ass. 19. Popham. Rep. 35. Kitch. 173.

So for this, Hee is a Basket Justice, a partial Justice, I will give him five pound a year for his gifts about Justice matters; And yet it is said in this Case, that none of the words but partial Justice are actionable. Croo. 2. 90.

So for this, Hee took forty shillings for a bribe. Yelvertons Rep. 142.

So for this, You have extorted twenty shillings above your due fees. Stanleys Case. Pasche. 14. Jac. Coo. 10.

So for saying of such a Iudge [or Iustice] Hee covereth and hideth Fe­lonies, and is not worthy to be a Judge [or Justice of Peace.

So for this, you cover and hide felonies. Dyer. 72. Stuckleys Case. Pasche. 7. Jac. B. R. Coo. 4. 16.

So for this, There is a Nest of Theeves in Dale, and Sir John Bridges is the maintainer of them. Pophams Rep. 180.

So for this, You, out of malice and spleene have perverted Justice, and have wrested the Law many times, to serve your own turn. And in this Case there was no Averment made in the Action, that the words were spoken with reference to his office. Beamond versus. Sir Henry Hastings. Averment. Mich. 7. Jac. B. R. Bulstr. 1. part 96. Croo. 2. 241.

So for this, Hee is but a half-eared Justice, hee will hear but on the one side. Croo. 1. 162.

So for this, Hee can hear but with one ear. Chomleys Case. Hetley. Rep. 123.

So for this, You are a sweet Judge [or Justice of Peace] you sent your Warrant for J. S. to be brought before you for suspition of felony, and af­terwards sent J. D. to give him warning thereof, that hee might absent himself. Burton versus Tokin. Croo. 2. 143. 413.

So for saying these words, I have been often with him for Justice, but never could get any at his hand, but Injustice. Croo. 1. 9.

So for this, You are an Ambodexter, and you take mony on both sides. M. 2. Jac. B. R. Dawtries Case.

So for this, Sir William Buttons men have stoln sheep, and hee spoke to mee not to prosecute them. Popham. Rep. 180.

So for this, Hee hath been the cause of the over-throw of a hundred men by false and subtil means. In Brownl. 2. part 299. March. Rep. 8.

So for this, A. being arrested as accessary of Felony, Mr. Stafford [In­nuendo the Plaintiff] knowing thereof, discharged him by agreement of Sect. 2. three pound, to which Mr. Stafford was privy, whereof thirty shillings was to be paid to him, and was paid to his man by his appointment. Trin. 36. Eliz. B. R. Croo. 1. part last publisht. 536.

So for this, Hee hath received mony of a Theef, that was apprehend­ed and brought before him for the stealing of certain sheep, to let him escape, and to keep him from the Gaol. Pasche. 17. Eliz. B. R. Brownl. 1. part 11. Cottons Case.

So for this, said of a Iudge that had given his sentence in a Cause be­twéen the Defendant and another, That the same sentence given by the Plaintiff] Innuendo, &c. was corruptly given. Croo. 1. last. publisht. 305.

So for this, Mr. Gilbert hath done mee wrong, in returning the Re­cognisance of Podger in twenty pound where it was taken in ten pound, and the Sureties in ten pound a peece. Pasche. 4. Jac. Gilberts Case. B. R.

So for this, Thou hast forged a Recognisance, taken before Fisher and others. Croo. 1. part last publisht. 883.

So for this, said, where, upon Articles upon Oath before the Iudge or Iustice against mée, I say, By your means I had wrong at the Sessions, for you caused Hickman to swear against mee that which was not true [In­nuendo the said Oath. Croo. 2. 308. Yelvertons Rep. 221.

So for this, Mr. H. did put in of his own head these words into an exami­nation taken by him, viz. J. S. did steal twenty sheep of such a mans. And for saying this further of the Iustice, Hee is a debauched man, and not fit to be a Justice of Peace. But it was said, the Action did lye for the first, and not for the last words. Stiles Rep. 22.

So it séems for this, where one is arraigned, and acquitted of a Felony, and the prosecutor shall say, if A. and B. had done Justice, C. had been hanged for robbing mee. And that for this, A. B. and C. may have this Action. For Matter of Ignorance.

This Action will lye, for saying of a Iudge, Iustice of Peace, or such like Officer, He hath no skill in his office. Hill. 16. B. R.

But this Action will not lye for such a person, where a discourse is about For other Matters. him, as to his body, and health, and therein, one of them shall say, Hee is a corrupt man. Nor where the discourse is about his Estate, and therein one of them shall say, Hee is a Bankerupt; Nor where a discourse is about his Words of Qua­lification. Vsury, or his fraud, in an executorship, and therein one of them shall say, Hee is a corrupt man, or hee is a false man, or the like. And therefore in these and such like Cases, where the Plaintiff shall set forth but part of the [Page 84] words of the conference, the Defendant must set forth the occasion of the words by the rest of the conference, Coo. 4. 14. But if the words bee spoken without any such references, as in the Case before, they will bée Actionable, for they shall bée so intended, and taken in the worst part. Hob. Rep. pl. 351.

Nor will this Action lye for this, You do openly maintain and coun­tenance the worst people against Gods Laws and the Queens. Croo. 1. part last publisht, 297.

This Action also will lye for such an Officer for this, Hee is not wor­thy Hee keeps a Baudy house. to bee in such an Office, for hee keeps a common Baudy-house in London. Simpsons Case, Bulstr. 1 part 138.

So for this, said to such a one, You are no true Subject, Or for this said to his man, Thou servest a Master that is no true Subject Croo. 2. 202.

So for this, Hee and his Son sought to kill mee, and his Son threw a Dagger at mee, and run mee through the hose twice, and all this by the procurement of the Justice of peace, Croo. 2. 56. Yelvertons Rep. 57.

But this Action will not lye for this, Hee is a false Justice, vel his Incertainty similia, Broo. Action of the Case, 112.

And it séems it will not lye for this, I heard it spoken that Mr. Read was one that was at Burrels Roberie, and that four of them went to his house the next morning; ubi re vera, the Defendant never heard any such words. Sed quere, for the words have a sound of Actionable words. See Croo. 1. last publisht, 644. 645.

This Action will not lye for a Iudge, or Iustice of peace,, or such like Officer, for this. Hee is a base Rascal, Villain, and by unjust means Sect. 3. doth most villanously take other mens rights from them, and keeps a company of theeves and traitors to do mischief, and gives them nothing but base blew Liveries, and this all the Country reports. And other good hee doth not. And yet two of the Iudges were for the action in this Case. Croo. 2. part 58. Dyer 75. 158.

Nor for this, Hee hath delivered untruths upon his Oath, in his an­swer in Chancery, at the suit of I. S. Croo. 1 part last publisht, 374.

Nor for this, Hee hath but one Mannor, and hee hath gotten it by swearing and forswearing, Coo. 4. 15. Nor for this, Hee hath got­ten all that hee hath by swearing and forswearing, New Book of entries, 4. 22.

Nor for this, For my ground in D. hee seeks my life, Coo. 4. 15.

Nor for this, You have Couzened the Earl of Hertford, of as much Couzening. as I am worth, Bulstr. 1. part, 163.

Nor for this, Hee is a Recusant and a Simonist, &c. Croo. 2. 484.

Nor for this, Hee is a Blood-sucker, and sucketh blood, Croo. 1. last publisht, 306. 433. Blood-sucker.

Nor for this, said in a conference about him, and his Tenants of his Man­nor, When your Tenant took his Land, you couzened him of his fine, Couzening. and dealt corruptly, and I will make you appear where you dare not shew your face, for your base dealing, Trin. 4. Jac.

Nor for this, Hee is an Usurer, Nor for this, Hee hath not dealt Usurer. honestly about a Will. Coo. 4. 16. New Book of Entries, 22.

Nor (as it seems) for this, If any man will give him a Bribe, as a Inclination or Affection. Sheep, or a couple of Capons, hee will take them; And yet this séems to bée a foul Charge, Croo. 1. part last publisht, 306. 433.

But in these kinds of Actionable words these things must bee observed.

[Page 85] 1 That the Plaintif must bee sure to set forth, that hee was such a Iudge, Iustice, or Officer at the time when the words were spoken of him, or the words will not bear Action.

2 That hée is not bound to set forth, that hée had any special losse by the words.

3 That words of this nature are subject to the Rules laid down in other Cases before, for other Actionable words, they must be certain, false, ma­litious, and not liable to qualification, &c. For if the Case be so that they be true, or incertain, or not malitious, or subject to qualification by the occasion of speaking, or other words spoken at the same time, if so it be, they may by this bee unactionable. Croo. 1. part 97. 162. Bulstr. 1. part, 36. Yelvertons Rep. 153. 159.

This Action will lye for a Serjeant or Barrister at Law, that doth practise in the Law with words in the Cases hereafter following, spoken For a Serjeant, or a Barrister at Law. of him with reference to his Profession, viz. Hee hath undone many. Osberton and Stanleys Case Trin. 37. Eliz. Cam. Scaver. Sect. 4.

So for this (as some would have it) Go not to him, for hee will deceive For his disho­nesty. you, Hettleys Rep. 70. yet see the contrary by March. pl. 217. Brownl. 1. part. 11.

So for this, Hee hath been the cause of the overthrow of 100. men, by his subtill means, Yelverton Rep. 143. March 8.

So for this, You are a dishonest man in your profession, Trin. 37. Eliz.

So for this, you are a paultrie Lawyer, and use to play on both hands, Croo. 2. 267. So for this, Hee is a paultry fellow, for hee doth deal on both sides, and deceive them that put him in trust. Noys Rep. 11.

So for this, Hee hath done falsly with mee being his Clyent, and hath joyned with mine Adversary, Stiles Rep. 231. 283.

So for this, Hee is a Bribing knave, and hath twenty pound of J. S Bribing Knave. to couzen mee. Brownl. and Golsb. 6.

So for this, Go you to him to bee of your councel, hee will deceive you, hee was of councel with mee, and revealed the secrets of my Cause. Trin. 13. Eliz. B. R. Coo. Lib. Entries. 22.

So for this alone, Hee being of my Councel, revealed the secrets of my Cause.

So for this, Hee revealed the secrets of his Clyants Cause.

So for this, You did disclose my Councel to mine Advesary. Snags Case. Trin. 13. Eliz. B. R. So for this, Thou didst disclose my Councel, See Croo. 1. part last publisht. 358.

So for this, Thou didst deliver my evidence to mine adversary, see there for it.

So for this, Hee giveth bad Councel.

So for this, You are a couzening Knave, and shewed a counterfeit Couzening Knave. or forged Deed knowing it to bee so, Mich. 39. 40. Eliz.

So for this, You are a bribing Knave, or a Corrupted Knave, or Bartetor Champertor. Maintainer of Suits. you are a Corrupt man, or you are a common Barritor, or you are a common Champertor, or you are a common maintainer of Suits. Hobb. Rep. pl. 17. 177. 188. 145. Brownl. and Goldsb. 11.

So this Action will lye for such a man for this, He a Barrister? he is For his unskil­fulness. a Barretor and no Barrister, he was put from the Barre, &c. and durst not shew himself there, he hath as much wit as a Daw. Coo. 13. 71. Godb. Rep. 441. Hetley Rep. 71. Noys Rep. 98.

So for this, Thou hast no more Law than a Monkey; or, thou hast [Page 86] no more Law than a Jackanapes, or thou hast no more Law than a Jack-daw. Hetleys Rep. 71. Owens Rep. 17. Godb. Rep. 441. Nor for this, Hee hath as much Law as a Monkey, &c. March. Rep. pl. 93 Goldsb. 126. pl. 17. Croo. 13. 71. Mich. 36. 37. Eliz. Palmers Case B. R. Hetleys Rep. 71.

So for this, you a Counsellor, a fool, an asse, a hang-man, a Counsellor at Law, a fool in the profession. Popham Rep. 207. So for this, hee is a dunce, and will get little by the Law. Croo. 1. part 277. So for this, he is an Ignorant man in the Law. So for this, hee hath no skill in the Law. So for this, he is the simplest Lawyer towards the Law. 39. 40. Eliz. B. R. So for this, he is no Lawyer.

So for this, hee a councellor, hee is a concealer of the Law. Coxes Case. Trin. 2. Jac. B. R.

And yet it is held, the Action will not lye for these words, he is no Schol­lar, or thou wast never any Schollar, or thou art an ignorant man in general, without reference to his office. Or for this, he is an Asse. Cawdreys Case.

And yet it is said by some to have béen adjudged actionable to say of such a man, he is an ignorant man. Trin. 17. Car. 1. B. R. Sandersons Case. But without question it will lye for saying of such a man, hee is an ignorant man in the Law.

But it will not lye for this, to say, he hath no more Law than J. S. and J. S. is no Lawyer.

But it was said by Tanfield Iudge, it may lye for saying of such a man, For other Cases. Hee hath the falling Sickness.

So it may lye for saying, hee giveth bad council. Croo. 1. part last pub­lisht 403.

It will not lye for saying of a Lawyer, and Iudge of a Corporation Judge. Court, Hee is a Puritan knave, a Precise knave, a Bribing knave, and I will make him answer for what hee hath done. Popham. Rep. 139.

Nor for this, You have lost your Clyents cause. Hetleys Rep. 70.

Nor for this, you have send a counterfeit, [or a forged] Deed, Mic. 39, 40. Eliz.

Nor for this, Hee mis-enters the name of his Clyent in his book. Croo. 1. part last publisht 403.

Nor for this, Hee is a Drunkard, or a Drunken fellow.

Nor for this, Thou hast nothing, but what thou hast gotten by swearing, and forswearing. New book of entries 22.

Nor for this, He is a Bankerupt. March. Rep. 8.

But these things must bee added for the understanding of all these Cases Sect. 5. also:

1 That hee that brings an Action for such words as these, must set forth, that hee was a Lawyer at the time of the speaking of the words.

2 That in this Case, where the words are in themselves Actionable, there need not bee any Averment of any special losse by the speaking of them; but if in truth the Case bee so, it is best so to set it forth.

3 That for some of the words herein, set forth to bee Vnactionable, if the party of whom they are spoken, have any special damage by them, there perhaps an Action may lye for some of these words.

4 That such kinde of words as these, are to bee regulated by the same general Rules of other Slanderous words, that is, they must bee false, malicious, certain, and not lyable to qualification by other words spoken with them, and the like, or they will not bee Actionable.

It is said that this Action will lye for saying of a Sheriff, Hee is an Ex­tortioner, Of a Sheriff. Extortioner. or that hee hath by colour of his office extorted twenty shillings a­bove his due Fees.

But it will not lye for saying, to the servant of the present Sheriff, of the last years Sheriff, Your Master must not look to have such hudling and [Page 87] shufling of matters this year, as hee had the last year. Croo. 1. part last pub­lisht 849.

Nor against an under Sheriff for this. Thou art a cozening fellow, as any Cozening. in the country, the last time thou wert under Sheriff, as now thou art: thou d [...]dst serve an Execution for a neighbour of mine, and didst keep the money in thy hands. Croo. 1. part last publisht 854.

This Action will lye also for a Preacher, a Parson of a Church, for Of a Preacher, or a Parson of a Church. Sedition. these words said of him, Hee hath made a Seditious Sermon, and moved the people to Sedition this day. Coo. 4. 19. Pasche. 24. Eliz. B. R. Phillips versus Badby.

So it is said it will lye for him, for these words, Hee hath had two Incontinency. children by A. the wife of B. and I will cause him to bee deprived for it. Par­rets Case 38. 39. Eliz. Noys Rep. 64. Croo 1. part last publisht 502.

And yet it is held, that it will not lye for this, said of him, Hee is an Adulterer. Nor for this, Hee is a Whore-master. Nor for this, Hee is Drunkard. Swearer. Preach false Doctrine. a Drunkard. Nor for this, Hee is a common Swearer. Nor for this, Hee is a Preacher of false Doctrine. Stiles Rep. 49.

And yet in Hill. 1650. B. R. in the Case of Drake: the Court did incline to give an Action for these words, for saying of a Preacher, a Master of Arts, and an incumbent of a spiritual living, Thou hast Preached lyes in the Pulpit. Stiles Rep. 363. 364.

And if a Preacher have any special damage by any such like words spok­en against him, in that Case doubtlesse hee may have this Action for his remedy.

To say of a School-master, Put not your Son to him, for hee will come Of a School-Master. Of a Clarke of Assises. Bribing. away as very a dunce as hee went, this Action will lye. Hetleys Rep. 71.

This Action will lye also for a Clerk of Assizes, for saying of him, Hee hath taken a Bribe of fourty shillings. Yelvertons Rep. 142. 143.

This Action will lye for saying of a Coroner, Hee is an Extortioner, Of a Coroner. Extortioner. Cozener. and hath, colore officii, Extorted forty shillings.

But to say of such a one, Hee is a cozening knave, and hath cozened J. S. of his land, is not Actionable. See March. 2. part of Slanders 4.

This Action will lye for a Town-Clerk, that is an Attorney, and a Of a Town-Clarke. Bribing. Iudge in the Mayors Court, for saying of him, Hee took fourty shillings for a Bribe. Godb. Rep. pl. 211.

But not for this, Thou hast made many false certificates, for the Mayor and Burgesses in that court, and the more thou stirrest, the more it will stink. For that no spéech was about his office, when the words were spoken, nor did it appear that the making of the Certificates did belong to his office, nor Averment. was it averred that hée knew them to bee false, Huttons Rep. 123.

Nor for this, Hee is a common maintainer of Suits, and a Plague of God Maintainer of Suits. consume him; I hope to see his body rot upon the earth, like the carcass of a Dog, and I will have him thrown over the Bar the next Term, and I will give a Beech to hang him. Brownl. and Goldsb. 15.

It will lye for any Deputy of such officer as the King of Arms, that Of the King of Arms. hath a Patent for his office, and power by Commission to make a Deputy to inquire of matters about his office, when hée hath done it; to say of his Deputy: Hee came and sate by force of a forged Commission, and hee is a Forgery. Scrivener and no Herauld. Croo. 1. last publisht 329.

This Action would have lyen for a receiver of the Court of Wards, up­on Of a Receiver or auditor of the Court of Wards. these words, Mr. Deceiver hath deceived and cozened the King, and dealt falsly with him. Sir Miles Fleetwoods Case.

So to have said of an Auditor, Hee was a frauditor, and had deceived and cozened the King. Hobb. Rep. 375. So to have said this, You have Sect. 6. Cozening. received money for the Ingrossing of Foedaries, and I will prove that to bee [Page 88] cozening; and you are a cozener and live by cozening. Winches. Rep. 40.

This Action will lye for saying to a Steward of a Court, That he hath Of a Steward of a Court. been the cause of the overthrow of a hundred men by his subtil means. Yel­vertons Rep. 142. 143. So for this, Hee hath taken a bribe of forty sh [...]llings. Yelvertons Rep. 142. Taken Bribes.

But it will not lye for saying of a Steward to a great man of his Courts, and one that hath béen much trusted by him, Hee is a notorious lyer and couzoner, and hath deceived the Parishioners of H. of five hundred pound, Couzener. and I will teach him to couzen mee of my house. Croo. 2. 619.

This Action will lye, for saying of a Steward of a Court Léete, and Court Baron, Mr. Carve hath put a presentment into the Jewries Ver­dict against mee of three shillings four pence, for suing of Peter West forth Forgery. of the Court, without the consent of the Jewry. M. 4. Jac. B. R. Carves Case.

But this Action will not lye for an Arbitrator, chosen by consent to end a matter of difference betwéen men, That hee is a corrupt man, or that hee Of an Arbitra­tor. dealt corruptly in the making of such an award, or the like, by Williams Justice. But such words spoken to a Iudge or Iustice of Peace, will give an Action of an Action.

This Action will lye for an Attorney, or Clerk of the Court, or such like Officer, for saying of him at large, or in relation to his office, the Of an Attorny. words in the Cases hereafter following (that is to say) for this, Hee is a bribing Knave. Hobb. Rep. pl. 17. Coo. 4. 16. For corruption and dishonesty.

So for this, Hee hath taken a bribe of forty shillings. Yelverton Rep. 143. 412. Hobb. pl. 17. Golsdb. 6.

So for this, Hee is a bribing Knave, and hath taken twenty pound of Bribing. A. to couzen mee.

So for this, His credit is fallen, hee dealeth on both sides. Noys Rep. 10. Mich. 41. 42. Eliz. Co. B. Kings Case. Sect. 7.

So for this, Hee is an Ambodexter. Godb. Rep. 214. Finches Law. 186.

So for this, Hee hath taken mony on both sides in Suits.

So for this, Hee takes mony on both hands in Suits.

So for this, Hee took mony on both sides in a Cause between him and mee. M. 2. Jac. Dawtreys Case. B. R.

So for this, Hee is good Attorney, but hee will play on both sides. Brownl. 1. part Croo. 1. part 166.

So for this, Hee is a paultry fellow, his credit doth begin to crack, hee doth deal on both sides, and deceive many that trust him. But for the last words only, hee doth deal, &c. is the Action grounded. Croo. 1. part last publisht. 914. Noys Rep. 11.

So for this, in the North, Hee is a Daffidowndilly, which there is an Ambodexter. Hetleys Rep. 123.

So for this, Take heed and follow him well, for hee will make you throw your purse over your bosome. Winches. Rep. 40.

So for this, Hee is a base Rascal, and I say, I will make him to lose his ears, and I will teach him, or any Lawyer of them all, to have a Writ served on mee. Leys Rep. 170. 176.

So for this, Hee hath been the cause of the overthrow of a hundred men, by his subtil means. Yelvertons Rep. 142. 143.

So for this, Hee is a false practiser. Pasche. 17. Jac. Moores Case. So (as some say) for this, Hee is a false Attorney. So for this, Hee is a cou­zening Attorney. Hetleys Rep. 140. 141.

So for this, You are a dishonest man in your profession. Noys Rep. 11. 7.

[Page 89] So for this, Thou didst disclose thy Clients Counsel to his Adversary. Trin. 17. Jac. Andersons Case.

So for this, Hee revealed the secrets of my Cause. So for this, Hee did deliver my Evidence to my Adversary. So for this, Hee did disclose my Counsel. Croo. 1. part last publisht. 158.

So for this, You are well known to be a corrupt man, and to deal cor­ruptly. But in this case the words must have reference to his Calling, for if they were occasioned by spéech about him as a Vsurer, or about an Executorship, and his ill dealing therein, no Action will lye for such words. Coo. 4. 14. Finches Law. 186. Godb. 214 Croo. 1. part 196.

It is said, it will not lye for this, Hee is a forger of Writings, and de­serveth Forgery. to lose his ears. Nor for this, Hee is a forger of Writings, by which hee hath couzened fatherless children. Winches. Rep. 90. 91. Que­re of these Cases. For they import a very foul charge. But it is said, it will lye for this, Thou hast forged the Will of J. S. Huttons Rep. 29. And yet doubted whether it will lye for this, Thou hast forged Writings, for which thou shouldest lose thy ears. Bulstr. 3. part 265.

So for this, Hee hath forged a Sheriffs Warrant, shewing what it was. Brownl. Rep. 4.

But it will not lye for this, He made false Writings. Winches. Rep. 40.

Nor for this, You were cooped up for forging of Writs.

Nor for this, Hee gets his living by false Writs. Croo. 1. part 195. For this Quere. But this Action will lye for this; If a Suit be betwéen A. Couzening. and B. and B. say to A. Your Attorney is a bribing Knave, and hath twen­ty pound of you to couzen mee. Mich. 1. Jac. B. R. Yardlies Case.

So for this, Thou didst couzen J. S. of his fee, and I will sue thee for it in the Starr-Chamber. Brownl. 1. part 2. 3. 6. 7. part 2. 253.

So for this, Hee is a couzener, and couzens his Clients in the Sheriffs Court at London, where hee is an Attorney, and was for that cause dis­charged of that Court. Croo. 1. 190. 192.

So for this, Thou art a false couzening Knave, and hast gotten all that thou hast by couzenage, and thou hast couzened all those that have dealt with thee. Croo. 2. 586.

So for this, Hee is a base Rogue, and cheating Knave, and doth main­tain himself, his wife and children by cheating. Croo. 1. 171.

So for this, Hee is a couzener, and hath couzened mee of twenty shil­lings. Hetleys Rep. 123.

So for this, Thou art a couzener, and hast delivered couzening Bills. Hetleys Rep. 123.

But it will not lye, for saying, He is a Cheater. Hetleys Rep. 139. Croo. Cheater. 1. 139.

It will lye also for this, Thou art a couzening Knave, and gettest thy Sect. 8. living by extortion, and didst couzen one Pidgeon in a Bill of costs of ten pound. But for the last words only, and not for the first words. Croo. 1. part last publisht. 601. 602.

It will not lye for this, spoken to one that is speaking of retaining him, Go not to him, for hee will couzen you. Pasche. 18. Jac. Ratcleifs Case. Croo. 1. 29.

Nor for this, will it lye (as it is said) Thou art a false couzening Knave, Words of qua­lification. and hast couzened my two Kinsmen of their Land, and deservest the Pil­lory. 26. Eliz. B. R.

Nor for this, Hee couzened J. S. out of his Land. Nor for this, Thou hast couzened J. S. of his fee, and I will sue thee for it in thee Starr-Cham­ber. Brownl. 1. part 3. 5. 6. 16. 2. part. 253.

And it is said, it hath béen doubted whether it will lye for this, Hee is a base, cheating, couzening Knave, and hath cheated mee as never man was cheated. Croo. 1. 112. 367. But these words séem to others clearly to be actionable.

So it will lye also for this, Hee is a Champertor. Hobb. Rep. 117. Champertor. Barretor. Extortioner. Maintainer of Suits. 359. pl. 145. 351. Coo. 4. 16. Brownl. Rep. 17. Winches. Rep. 481.

So for this, Hee is a common Champertor, and I will have him turn­ed over the Barr. Hobb. Rep. 183.

So for this, Hee is an Extortioner. Hill. 40. Eliz. B. R.

So for this, Hee is a common Barretor. Brownl. and Goldsb. 11. Winchel. Rep. 166. Huttons Rep. 104. Croo. 1. 139. 406. Hobb. Rep. pl. 188. But it will not lye for saying of him, He is a common Maintainer of Suits. Hobb. Rep. pl. 145. Winch. Rep. 40. Forgery.

So it will lye for saying of him, Hee is a forging Knave. Brownl. 1. part 16. Hetleys Rep. 140.

Soalso it will lye for this, Hee is a suborning Knave, or hee is a suborn­ed Knave. So for this, Hee is a perjured Knave. Stiles Rep. 17. Paines Case.

So for this, Hee is an extorting Knave, and did suborn one to be for­sworn Subornation of Perjury. before the Lord Chief Justice. 20. Jac.

So for this, Take heed of him, for hee is the falsest Knave in England, and hee will cut your throat. Hetleys Rep. 140.

And so it will lye for calling of him Knave only, as hath béen adjudged Knave. after a Writ of Errour brought. Nichols Case. Stiles Regist. 8. 17. Trin. 12. Car. 1. B. R. Yardlies Case 18. Eliz. 2. B. R. And therefore a fortiori it must lye for saying, hee is a couzening, or a forging Knave, or the like. Yet see the whole Court. Co. B. against it. Croo. 1. last publisht. 601.

So for this, He is a common stirrer up of Suits, and a disturber of the Peace, and so a mover of unjust Actions. Hetleys Rep. 140.

So for this, Thou art a Knave, and stirrest up Suits between parties to their undoing, and 'tis pity such persons go unhanged. Croo. 1. 166.

So for this, said to a Client of the Attorney, I marvel you will imploy such a Knave as Nichols is, you will have but disgrace and discredit by im­ployment of him, for he is a proclaimed Knave in the Market. Croo. 1. part 331. 333.

So for this, He is a base Rascal, and I will make him to lose his ears. Leys. Rep. 70. Sect. 9.

But it will not lye for saying this, of an Attorney, or such like Officer, Cheater. Vipet. Villain. Judas. Brabler. Swaggerer. He is a Cheater, a Judas, a Destroyer, a Viper, a Villain, a common Brab­ler, a common Breaker of the Peace, and a Swaggerer, all together, or asunder. But if an actionable word be joyned with them, these will aggra­vate the slander, and so the damages. Hetleys Rep. 140. 139. 143. Huttons Rep. 104. Winches. Rep. 166.

Nor for this, I think thou art no Attorney, but an Attorneys Clerk, and if thou be, I shall have thee pickt over the Bar the next Term, and thy ears nailed to the Pillory. Hobb. Rep. pl. 159.

Nor will it lye for this, Thou art a Usurer; Nor for this, Thou hast Usurer. plaved the Knave with mee about a Will. Coo. 4. 16.

Nor for this, He is a Recusant. Hetleys Rep. 140. 141. Recusant.

Nor for this, Thou art a flagging Jack, and a Couzener, and wouldest have couzened mee. Hetleys Rep. 140.

Nor for this, I have matter enough against him, for M. H. hath found Forgery against him, and I can prove it against him. Hobb. Rep. 189. 395. Forgery. Incertainty.

Nor for this, spoken to an Attorneys Son, My Father was not cast over [Page 91] the Barre as thy father was Knightlies Case. Trin. 41. Eliz. B. R. Hobb. pl. 145.

Nor for this, Thou gettest thy living by extortion. Nor for this, Thou Extortion. gettest thy living by swearing and forswearing. Croo. 1. last pub­lisht. 603.

Nor for this, I will have him thrown over the Barre the next term. Hobb. Rep. 1. 59. Boxe and Barnabies Case.

Nor for this, He was, or will be picked over the Barre. And yet it is said to lye for this, He was picked over the Barre.

This Action will lye also for an Attorney, or such like kind of Officer, For lack of skill. for these words, viz. Thou art the simplest Attorney towards the Law. Mich. 39. 40 Eliz. B. R. Martins Case.

So for this, He is the foolishest Attorney towards the Law, and if he doth not overthrow your Cause I will give you my ears; he is a Fool, and an Asse, and so I will prove him. Croo. 1. part last publisht. 589. Goldsb Rep. 128. Hobb. Rep. pl. 117.

So for this, Thou hast no skill in thy office. But it will not lye for say­ing of him, That he hath no skill in Husbandry, or the like.

But it is said, that it hath béen doubted whether an Action will lye for these words, said of an Attorney, He is a Knave, and a couzening Knave, and did take fees on both hands in a Suit between me and Greene, and by knavery suffered me to be condemned at Ipswich at Greens Suit wil­fully, being Attorney for me. See March of Slanders, 1 part 78. But this Case séems to others to be out of doubt Actionable.

So it is said by some, that it will not lye for these words, Thou art the dishonestest Attorney in England, and if any bee more dishonest than thou, he deserves to be hanged, unlesse the words be spoken with reference to his office, or practise, and unlesse there bee an Averment made, that Averment. there is a dishonest Attorney in England. Croo. 1. 29.

And this also is here to be added:

1 That where the words in the Cases before named be Actionable, there will be no need of any special averment of losse. Averment.

2 That where the words be not Actionable in themselves, yet if the party, of whom they are spoken have any special losse by them, they may per­haps be Actionable.

3 These kinds of slanderous words are to bee subject to the Rules laid down in other Cases for other Actionable words, they must be certaine, false, malicious, and not subject to qualification, &c. For if the words bee true, or not malicious, nor subject to qualification by other words, they may not be Actionable.

4 The Attorney (it séemes) is to shew in his Suit, that hee was an Attorney at the time of the speaking of the words.

This Action will lye for saying of a Constable, Hee is a concealer of Of a Constable Sect. 10. Felons. Pridhams Case, Pasche. 7. Jac. B. R.

So for this, Thou hidest [or coverest] Felonies. So for this, Thou favourest Felons. Stuckleys Case, Pasche. 7. Jac. B. R. and Bondmans Case.

But it is doubted whether it will lye for this, said of such an Officer, Thou art a bribing Knave, and hast couzened the Parish of W. in Rates Couzening of thirty pound. Hetleys Rep. 36.

This Action will lye for over-séets of the poor of a Parish, for these Of Over-seers of the poor. words said of them, viz. of any such Officer, He hath couzened the poor of their bread. March. Rep. pl. 135. 9 Jac. B. R. but some deny this Case, to be Law, but the words have a verbal sound.

So for this spoken in relation to his office, That he is a cheating Knave, and hath couzened the Parish of forty pound. Stiles Rep. 388. Couzening.

So it is said to lye for this, Thou dost make Loanes, Taxes, or Asses­ments thy self, and makest five quarters in the year, and dost cheat and couzen the Parish. Stiles Rep. 394.

Some say it will lye against such an Officer for these words, He hath Couzened the poor of their money, others deny it, but certainly they have the import of a foule aspertion in them. 9 Jac. B. R.

It will not lye for saying of such a one, Hee is a notorious Lyer and Couzener, and hath deceived the Parishioners of H. of five hundred pound, and I will teach him to deceive me of my house. Croo. 2. 619.

It is said this Action will lye for saying of the Churchwardens of a Pa­rish, Of Church­wardens. such like words as these, of one of them, He hath couzened the poor of their Bread; or he hath couzened the poor of their Money. But others oppose this. 9 Jac. B. R.

It séemes it will lye for this, spoken of such an Officer in relation to his office, That he is a cheating Knave, and hath couzened the Parish of forty pound. Stiles Rep. 388. 394.

But it will not lye for saying of such an Officer, He is a notorious Lyer, and Couzener, and hath deceived the Parishioners of A. of five hundred pound, and I will teach him to couzen me of my house. Croo. 2. 619.

This Action will lye for a Churchwarden, for this said of him that had made his presentment at a Visitation, Thou hast perjuredly presented me at the Visitation before I. S. official. Croo. 2. 80, 81. 120.

It wil not lye for these words spoken of a Scrivener, Thou art a Rogue, For a Scrivener. Rogue. Couzener. Cut-purse. Of a Measurer, or Surveyor of Land. and a Cony-catching Rogue, a couzening Rogue, a Cut-purse. Croo. 2. 536.

Nor for this, He made false writings. Croo. 2. 536.

This Action will lye for a Mathematical Measurer, or Surveyor of Land, a Geometrician, or a Mathematician, for any words spoken of him to scandalize him in his Art, Faculty, or Profession, as to say of him, He hath no skill in his Trade, or that he is a cheater in his Trade, or that he is a couzener in his Trade, or that he is a cheating Knave, and that I can Cheater. prove. But this must be for a man that is learned, and doth his work by his Art, for if the words be spoken of one that doth measure by the poll only, it seems they are not Actionable. Goldsb. Rep. 278. Hill 16. Jac. B. R. Londons Case. Croo. 2. 504. It will lye also for a Surveyor or mea­surer Couzener. of Land, that gets his living by it, for these words said of him, Thou art a couzening and shifting Knave, and a cheating knave. Croo. 2. 504.

This Action will lye for saying of a Commissioner, that hath a Com­mission Of a Commis­sioner. Sect. 11. to examine Witnesses, and to hear and determine a matter in Chancery, That he is a corrupt man, or that he hath taken bribes of R. K. and for saying after, King hath set Sir George Moore on horse-back with bribes, whereby to defraud Equity, Justice, and good conscience; and Popham took no difference to bee, where the Commission is to one, and where to many, and where the Commissioners bee named by the Court, and where by the Parties, or either of them, Sir George Moore, and Fos­ters Case. So likewise for Commissioners that have a Commission to exa­mine witnesses out of the Exchequor.

And it is adjudged to lye for this said of a Commissioner, that had a Commission out of the Exchequer to examine Witnesses, That he had retur­ned as the Depositions of Witnesses into the Exchequer, the Examination of divers who were never sworn. Croo. 1. part last publisht. 623.

This Action will not lye for the Mayor of a Town, for saying of him, That he hath couzened all the Town. 8 Car. B. R. Mayor of Tivertons Of the Mayor of a Town. Case.

This Action will lye for a publick Weigher in a Market, Fair, or Town, Of a publick Weigher in a Town. that is a publick Officer there, for these words, That he hath done corrupt­ly; of that hee hath taken bribes to make false Weights, or the like, by Williams Justice.

This Action will not lye, for saying of a Bayliff, That hee had made no Of a Bayliff. true Accompt. Bulstr. 2. 218.

This Action will lye, for saying of A. B. Clerk to the Company of Mer­chant-Taylors Of a Clerk of a Company. in London, these words, Before A. B. came to the service of the Merchant-Tailors, hee dwelt in Shrewsbury, and setthe Town to­gether by the ears, and so long as hee was there, they were never in quiet, but afterwards they lived quietly, and he being Clerk to the Merchant-Tai­lors, was of consent and counsel with W. G. to deliver the Books of the Cor­poration which hee had in his keeping, to the intent that thereby some of the Lands of the same Corporation might be found concealed. Croo. 1. part last publisht. 358.

But if one shall say of another (that is an Officer) without any prece­dent Communication about his Office, Place, Trust, or Profession. That Couzening. Incertainty. hee is a couzening and cheating Knave; or that hee hath couzened and cheated any man thus, and thus; this is so general and incertain, that no Action will lye for it. March. of Slanders. 1. part 72. 73.

Out of all which Cases touching Officers, and such like persons imploy­ed as in the Cases before, That hée that will charge a man for words spoken against another, for any thing tending to defame him in his office or place of Trust, these things must be in the Case.

1 The words must be spoken of him generally, and then will be by con­struction of Law intendible, as spoken to, or of him in relation to it, or they must be spoken with expresse reference to his office, or place, and imploy­ment; for if they be spoken occasionally, about another subject, they may not be actionable.

2 The Plaintiff that sues, must set forth that hée was such an Officer at the time of the words spoken, or otherwise regularly the Action will not lye; for it will not be sufficient to say, that hée had béen such an Officer, &c. But it is not néedful for him to say, that the hearers of the words did at that time know him to be such an Officer.

3 The words must be subject to the general Rules of all other actionable words; they must be certain, false, malicious, &c. And yet if they fail to be actionable by any of these defects, if they occasion any special damage to him, of whom they are spoken; they may be actionable, albeit they be not so of themselves.

4 It is said, that in Actions for Slander, of this nature, that there must be a special Averment of some damage by the words, and that otherwise they will not be actionable: But it séems, the Law, and common practice is otherwise; and it shall be presumed to be a losse, and therefore néed not to be averred. Howbeit, it is doubtlesse the sure and safe way (if the Case will bear it) to alledge a particular damage, and it is usual so to do, for merease of damages. March. 59.

5 That the same actionable words, when spoken of a man in Office and Trust, &c. spoken of another man out of this Office, or place of Trust, or of a man in Office, without any reference to it, may not be actionable. Hobb. Rep. pl. 35. 93. 104. 351. Croo. 1. part 97. Bulstr. 1. part 36.

CHAP. XXI. Of Scandalous Words that relate to men in their Trade, and Way of Living.

THere are other scandalous words, that have reference to men in their Sect. 1. way of Trade, and that whereby they get their livelihood. And this lyeth especially in thrée things.

1 When any thing shall be said of them to disparage their credit, as to their estate, as when they shall be said to be Bankerupts, or the like.

2 When any thing is said against their honesty, and Iustice in their Trading, as when they shall be said to cheat in things, or in weight, or measure in their buying, and selling.

3 When any thing shall be said to disparage their skill in their Trade. But it may be in some other particulars, and wherein soever it is, that any man is damnified by such talk, hée must have his remedy by this Action.

It is therefore agréed, that this Action will lye, for saying of a Merchant, 1 To disparage the estate. Mercer, Grocer, Shoomaker, Dyer, Weaver, one that doth buy and sell Wooll by Retail, a Grasier, one that doth trade for Lead in any County, and gets a living by it, a Corn-Master, or Baker in London, a Country Farmer, that doth buy and sell, and live by it, a Millener in London. Or to say of any other Tradesman that liveth by buying and selling at present. or did so very lately, and doth so usually. To say of any such kind of man, That he is a Bankerupt. Noys Rep. 158. Huttons Rep. 49. Bulstr. 1. Bankerupt. part 267. Coo. 4. 19. Stiles Rep. 75. Croo. 1. part last publisht. 268.

Or, Hee is a Bankerupt Knave. Bulstr. 2. part 210. Dyer 72. Croo. 1. part last publisht. 911. Bulstr. 1. part 110. And yet some have doubted of this. Hutton. Rep. 13. 14.

Or, He is a Bankerupt Rogue. Godb. Rep. 152. Croo. 1. 21. Huttons Rep. 52.

Or, hee is a Bankerupt Scrub. Stiles Rep. 75.

Or, hee is a Bankerupt Slave. Croo. 2. 58. Popham. 184. Hutton. 13. 14. March. of Slanders. 2. part 2.

Or, hee will be a Bankerupt within two daies. Dyer. 72. Coo. 4. 19.

And yet it is said, it will not lye for these words spoken to a Tradesman, Thou art a Bankerupt Knave, or a Bankerupt Rogue, where they have re­lation to something else besides his Trade. Stiles Rep. 420.

So it is said, that this Action will lye for this, Hee is a Bankeruptly Knave, and cannot be trusted in London for a Groat. Godb. Rep. 151. But for calling of one Bankeruptly Knave alone, this is doubted. Croo. 2. 345. 578.

So it will lye for this, I will prove that hee hath been Bankerupt, and hath agreed with his Creditors for a Noble in the pound, and I will prove it. Hill. 3. Jac. B. R. Edmonds Case.

So for this, I will prove thee a Bankerupt.

So for this, I shall prove thee a Bankerupt by such a time. Croo. 1. 193.

So for this, Hee is gone, and dares not shew himself for Debt, and hee is a Bankerupt for ought that I know. Stiles Rep. 130.

So for this, Hee is a Bankerupt, and fled beyond the Sea for mony, Trin. 9. Jac. B. R. Trulocks Case.

So for this, Hee is not worth a Groat, hee is a hundred pound worse than nought. Croo. 1. 193. 231. Huttons Rep. 125. Bulstr. 2. part 267. Croo. 2. 578. yet this is doubted by some. See afterwards.

So for this. Hee came a broken Merchant from Dale.

But it will not lye for saying, Hee was a poor man within this seven years, for hée may be sufficient now, notwithstanding this. Croo. 1. 123.

So it will lye for this, Hee is a Bankerupt, and not able to pay his Sect. 2. Debts, but will run the Country. Huttons Rep. 46.

So for this, He is a Bankerupt, and I will drive him out of the Country.

So for this, What art thou? a Bankerupt, and wast a Bankerupt. Croo. 1. part last publisht. 273.

So for this, Thou dost owe more than thou art worth, and art not able to pay thy Debts. Stiles Rep. 213.

So for this said of a Merchant, or the like. Hee is broken. Hill. 17. Jac. B. R. Johnsons Case.

So for this, Hee is a poor fellow, and not able to pay eleven shillings in the pound, and not able to pay his debts. Stiles Rep. 273.

So for this, Thou art a base beggerly Rogue; and not able to pay thy debts. Stiles Rep. 217.

So to say of such a one as doth merchandize for Lead in any County, and get his living by it, hee is a Bankerupt, and beggerly Gentleman. Bulstr. 1. part 41. Huttons Rep. 40.

So for this, said to a Corn-Master and Baker in London, Thou art a broken fellow, and hast cheated mee of two hundred pound. Stiles Rep. 429.

So for this, said of a Farmer in the Country, that doth buy and sell, and get his living by it, You are a begger and bankeruptly fellow, and if every one had his own, you are not worth a groat; with an Averment, that thereupon his Landlord turned him out of his bargain, or hée had any special losse.

So for this, said of a Millener in London, Thou art in a breaking and de­cayed condition, and I will prove it; and if you question mee, I will prove it to your disgrace. Stiles Rep. 425.

So for this, said of a Merchant, that is to have a Trial at Guildhall, Hee is broken [Innuendo hée is not able to pay for the wares hée bought] and I warrant you hee dares not be at the Trial at Guildhall. Croo. 2. 562.

So for this, said of a Merchant, Thou art a Rogue, and a beggerly fel­low, and I shall prove thee a Bankerupt before the next Term. Croo. 1. 171.

So for this, said of a Grocer, He is a beggerly fellow, and not able to pay his debts. Croo. 1. 339. Croo. 1. last publisht. 643.

And yet it is said, it will not lye for this, Hee is a base broken Rascal, and hath broken twice, and I will make him break the third time. But to say, hee will break the third time, may be more dangerous. Noys Rep. 77. Bendloes Rep. 170.

Nor will this Action lye for saying of an Attorney, Farmer, or other man that is no Merchant, or other Tradesman, that lives by buying and selling, hee is a Bankerupt. March. 8. Croo. 2. 424. Goldsb. 84. Finches Law. 186. Bulstr. 1. part 40. Jenk. Cent. 7. Case 70. Huttons Rep. 13. 14.

Nor for this, said of a Merchant, or Tradesman, Trust him not, for hee will be thy undoing. Nor for this, said of a Tradesman, hee is a beggerly fellow. Croo. 1. 171. Nor for this, I will sue out a Commission of Ban­kerupts against J. S. Nor for this, said to a Wooll-winder in London, or elsewhere; Nor of a Tailor, or Fuller, hee is a Bankerupt. Popham. 185.

Nor for this, Thou art an arrant Knave, for thou hast couzened all Co­ventry. Cozening. Bulstr. 1. part 162. 163. Nor for this said of a Merchant.

This Action will lye for saying of a Shoomaker, Hee is a Bankerupt, and [Page 96] hée did set forth, that hee was a Shoomaker, and did use buying and selling of Leather. Croo. 1. part last publisht. 208.

Nor for this said of a Merchant, Doth hee owe you money? get it quickly, and take heed how you trust him. Croo. 1. part last publisht. 541. Trin. 36. Eliz. Vaspicks Case.

Nor will it lye (as it is said) for this, said of a Dyer, Thou art not worth a great; Albeit hée aver, that the spéech in the Country where it was spo­ken, be as much in the sense thereof there, as, thou art a Bankerupt. Pasche. 15. Car. B. R. Axe & Moodes Case. For his credit may be good, albeit hée be worth nothing. And yet if a man have any special damage by such words, with an Averment of it, hée may maintain the Action. Yea, it séems there are some Iudgements, that the words themselves, Thou art not worth a groat, are actionable. See before. Croo. 1. 193.

If one be but a Merchants Apprentice, and hée doth Merchandize for a­nother man, and be called Bankerupt; or if one have béen a Merchant, and hath given it over, and a man call him Bankerupt; in either of these Ca­ses the Action will not lye. And yet if in the last Case, hée have resumed his Trade again, and then be called so; in this Case the Action will lye. Noys Rep. 33. Bulstr. 1. part 267.

This Action will lye for saying of a Merchant, Mercer, Grocer, or any 2 To disparage his honesty. such like Tradesman, That hee doth buy and sell by false weights and mea­sures; or by false weights, or measures. But to charge another man so, that is no Tradesman, is not actionable. Mich. 15. C [...]r. 1. Co. B. March. Rep. Sect. 3. pl. 119. 197. Hobb. Rep. 93. Pasche. 17. Car. 1. Pains Case.

Nor to say of a Tradesman, That he keepeth false weights and measures in his house; this is not actionable, for perhaps hée doth never use them, nor know of them. March. Rep. pl. 197. Hill. 6. Eliz. Co. B.

And yet to say, Hee keeps false weights and measures, by which he Deceit. doth couzen the Country, it séems, will be actionable. So it will lye for this, Thou dost keep, and sell by false weights, and in four and twenty shillings bestowing, thy weights were false two ounces, and I will prove it. Brownl. 1 part 4. 5.

So it will lye for this, said of a Merchant, Hee is a cheating Knave, and hath cheated his Father, by returning twenty pound for wares, &c. Croo. 1. 398. Stiles Rep. 388.

And yet it hath béen said to be resolved not to lye for a Whéelwright, for these words said to him, Thou art a Couzener, and hast couzened mee of a pair of Wheels. Hetleys Rep. 123.

This Action will lye for saying of a Goldsmith, and one that gets his li­ving Couzening. by buying and selling of Chains, and the like wares, Thou art a couzen­ing Knave, for thou hast sold mee a Saphyr for a Diamond. Croo. 3. 171. Hill. 32. Eliz. B. R. But it will not lye for saying these words of a Tailor, He is a couzening Knave, for he hath sold mee a Chain for Gold, that is but Copper, and he is a couzening Knave upon Record, and hath been im­prisoned for couzening. Croo. 2. 171. March. of Slanders. 2. part 2.

So it will lye for this, for saying of a Farmer, that doth use to sow his Land, and sell the Corn upon it, and by this to maintain his family, he keeps Couzening. a false bushel, by which he doth couzen and cheat the poor, and that by this he lost his custome, &c. Pasche. 17. Car. 1. Co. B. Mirch. Rep. pl. 192.

To say of a Brewer, he maketh and selleth bad Béer, or of a Baker, hée selleth naughty Bread, is actionable, if the partie of whom it is said hath any losse by it. Mich. 15. Car. 1. B. R.

So to say of a Brewer, My Mare doth piss as good Beer as hee doth brew; this is said to be actionable, if hée suffer any losse by it. March. 60. [Page 97] Dykes Case. But otherwise not, for the words are insensible and impos­sible, and therefore not actionable, but by reason of the especial damage. Mich. 15 Car. 1. B. R.

Nor will this Action lye for these words, said of a Merchant, Hee is a couzening Knave, March. 8. 9. and yet if it be spoken with reference to his Couzening. trade, it is questionable. Palche. 15. Car. B. R.

Nor for this, He came to D. with a blew Coat on his back, but hath now gotten much wealth by trading with Pirats, couzening in the trade of Pilchars, and by extortion. Bulstr. 2. part 216.

Nor for this, said of an Alderman and Merchant, Hee is a false Knave, and keepeth a false Debt-book, and chargeth me with the receipt of a peece of Velvit, which is false. Croo. 1. part last publisht. 403. Hill 37 Eliz. B. R. Brooks Case.

If I have a Bayliff on my Farm, that doth buy and sell my Corn there, Sect. 4. and by my service herein he hath his livelihood, and any one shall charge him with any deceipt herein, whiles he is in the office and imployment, he may Servant to de­ceive his Ma­ster. have this Action, but not after he is out of the imployment. Hobb. Rep. pl. 9. Winches-Rep. 40. March Rep. 190. 197.

This Action will lye for any servant that shall bee by such words Servant. charged to couzen or deceive his Master; as to say, A. doth defraud [co­zen, or cheat] his Master, and will undoe him. If the servant have any spe­cial losse by it. Pasche. 15 Car. 1. B. R. March of Slanders. 1. part 99.

This Action will lye for saying of an Inne-kéeper, No man cometh to Inne-keeper, Alehouse-kee­per, &c. his house but he couzeneth him. Hetleys Rep. 123.

And yet it is said to be adjudged not to lye for these words, spoken of a Butchers Wife, who doth use to sell meat in her Husbands absence. That shee is a couzening Woman, and hath couzened one of her Neighbours Couzening. of four pound, and I will prove it. Huttons Rep. 14.

So for this, said of a Co-partner in Trade, You are a couzening Knave, and did couzen me of one thousand two hundred pound at one time, and that was in making an Accompt in the year one thousand six hundred for­ty eight. Stiles Rep. 388.

So for this, said of a Brasier, Thou hast couzened me in a Pan. Stiles Rep. 364. Pasche. 7. Jac. B. R. And so by the same reason it séemes it will lye against any man, that shall charge any other Tradesman with couzening another in his Trade.

This Action will not lye for saying of a Merchant, He is a very Varlet, Varlet. Hypocrite. and seeks to suppresse his brothers will, hee makes a shew of Religion, hee is a very hypocrite. Pophams Rep. 148.

Nor for this, Thou art a Cheater, and hast cheated my husband of Cheater. five hundred pounds. For the words doe not refer to his trade. Croo. 1. 301. Brownl. 1. part 4. 16.

Nor for saying of any Trades-man in London, Thou art a Cheater, and hast cheated I. S. of five hundred pounds, unlesse it be spoken of, and applied to a cheating in his Trade. Croo. 1. 101.

Nor for this said of any Trades-man, He hath deceived me in a reckon­ing for Wares, and his Debt-book which hee keepeth in his Shop is a Deceit. false book, and I will make him ashamed of his calling. Brownl. 4. Gold. Rep. 242.

Nor for saying of a Merchant, He keeps a false Debt-book. Winches. Rep. 40. Croo. 1. part last publisht. 403. But to say of him, He deceives men by buying and selling, may be actionable. Winches. Rep. 40.

Nor will this Action lye for this, said to a Merchant, Trust him not, he will be thy undoing. Croo. 1. 171.

Nor for this, said of such a man, He is a Couzener. Croo. 2. 204.

This Action will lye for this, said of a Trades-man, to one that is about to place his Son with him, Put not your Son to him, for hee will starve him to death. Hetleys Rep. 71.

So for this, said of a Taylor, and frée-man of a City, He hath chea­ted in his Trade. Irelands Case, Trin. 15 Car. 1. B. R. Hetleys Rep. 123.

This Action will lye for saying of some Trades-men, They have no 3 To disparage the skill. Sect. 5. skill or understanding in their Trades, as to say of a Taylor, Carpenter, or such like trades-man, He hath no skill in his trade, it séemeth clearly to be actionable. But this said of a Mercer, or some such like Trades-man, that may use his trade by one that hath skill, may not be actionable.

So to say of a Baker, He knoweth not how to bake, or hee doth not make good bread; or of a Brewer. He cannot, or doth not brew good Drink, and the like, this must needs bee Actionable; so to say of such a Trade-sman, Hee wants skill, or care about his trade. And yet to say of any such man, He had no skill within this few years, may not bee actiona­ble, for he may have enough at this time. Croo. 1. 231.

If one shall say of an Inne-kéeper, Victualing man, or such like man 4 Or otherwise to prejudice him of whom they are spoken. Inne-keeper, &c. Infectious dis­case. Averment. or woman, that kéepeth a common house, That hee [or she] hath in his, [or her] house, any great or infectious Disease, as the Plague, Pox, or the like, and thereby he or shée lose their Guests, or suffer any special da­mage, they may have this Action, otherwise not; and yet it séems the Acti­on is maintainable without Averment of any special losse. Coo. 4. 14. 17. Pophams Rep. 36.

So to say of such a woman, Inne-kéeper, &c. Shee is a pockey Drab, doth wear a Scarf to hide her blanches in her neck, it is a pockey houshold; it séems is actionable. Trin. 9. Jac. Ludmans Case. Stiles Rep. 112. Hetleys Rep. 70.

But this Action will not lye for such words spoken of another that is no Inne-kéeper, That pockey Drab doth wear a Scarf about her neck to hide her blanches, I will not eat with her for ten pound. And yet it there be spéech of the French Pox, and therein the words be spoken, they may be the more dangerous.

So it will lye for this, said of such a man, He doth keep a Bawdy-house, Coo. 4. 14. 17. Bulstr. 1. part 138. 27 H. 8. 15. Keep a Bawdy-house.

So to say of an Alehouse-kéeping Woman, Hang thee Bawd, thou art worse than a Bawd, thou keepest a house worse than a Bawdy-house, and thou keepest a Whore in thy house to pull out my throat. Hughes Rep. 40.

So to say of an Inne-holder, That he hath buried divers in his Garden, that dyed in his house of the Plague. Regist. orig. 173.

But this Action will not lye, for saying of a Carrier, He is a common Barretor. Barretor.

Nor for saying of a Cooper, He is a Varlet, and a Knave, and a false knave. Hobb. Rep. pl. 188. Croo. 2. 104. 1. part last publisht. 403. Varlet.

Nor for this, Thou art a branded Rogue, and a Rogue by the Statute. Branded Rogue Croo. 2. 204.

This Action will lye for saying of a Physitian in reference to his Of a Physicia or Dhirurgion. profession, He is a Mountebank, a base fellow, and an Emperike. Hughs Rep. 441. Pasche. 12, Car. B. R.

So for saying, He hath no learning nor skill in Physick, 7, & 8. Car. Sect. 6. B. R. So for this, He is a drunken fellow, a fool, and an asse, and was never a Scholar, nor able to speak like a Scholar, is no Scholar, or hath [Page 99] no learning, in general without referring it to his office; But if the words be spoken with reference to his office, they are the more unquestionably Actionable, Croo. 1. 196. 197. Godb. Rep. 441. So to say, Goe not to such a one for Chyturgery, for hee hath no skill in Surgery. Hetleys Rep 70.

So it séemes to lye for this, spoken of a Chyrurgion, and of one Mat­thews he lately had in cure, Thou didst kill Mr. Matthews, thou didst kill him, and if he say for lack of skill, then is the Case more clear. Hetleys Rep. 69.

But say of him, He hath killed A. (now dead) with Physick, a Pill, Of a Midwife. and the Vomit was found in his mouth, and Doctor A. and Doctor B. found it; so, and it is true, is not Actionable, albeit it bee averred the Doctors never found it so. Croo. 1. part last publisht. 620.

This Action will lye for saying of a Midwife, Many have perished for her want of skill. Croo. 1. part 153.

So for this, Thou art a Witch, and wert the death of the child of I. S. at whose birth thou wert Midwife. Trin. 21. Jac. B. R.

And to all this, wee have said of these last kinde of Slanders, wée must Sect. 7. add these things.

1 That hée that brings an Action for this Slander, he must in his Acti­on brought, set forth himselfe to bée a Merchant, Mercer, Baker, or of some one Trade or other in certain; and it will not bée sufficient for him to say hée was a Tradesman in general, for no other man can have this Action, Stiles Rep. 420. 426.

2 That hée must set forth, that hée is a common Tradesman, as a common Baker, or the like, and not a Baker for a time only. Huttons Rep. 49.

3 That hée must set forth, hee was such a Tradesman at the time of the speaking of the words; and yet a Declaration saying that the Plaintiff, fuit Mercator per magnum tempus, not saying hee was so at the time was held good. Croo. 1. part last publisht 273. Bulstr. 1. part 36.

4 That a man may not justifie the calling of another Bankrupt, because hée was once a Bankrupt, unless hee bee a Bankrupt at the time hee calls him so. Croo. 2. 578. Coo. 4. 17. 18.

5 That the words bée spoken with reference to the Trade, or that bee general and relative words to the Trade, that must bée so understood, as Bankrupt, or the like, for being spoken of another thing, they will not bée Actionable.

That in many of the Cases before, for words that are not Actionable, yet if the party of whom they are spoken, have any special losse by them, the words may happily bear an Action.

6 That in Cases of words Actionable, there must bée (as some say) in the Declaration an Averment of some special losse, that the party of Averment. whom the words are spoken, hath sustained by them: But it séems the Law, and the Common practise (at least) in some of the Cases, is otherwise, howsoever if the Case will bear it, it is best so to do. March. Rep. 96. Brownl. 1. part 10. 13. 2. part 100. 129. Croo. 1. 100.

7 That this Action for such kinde of words as these, is to bee subjected to the general Rules of other Actions for Slanderous words, viz. they must bee false, malitious, certain, &c. For if they bee true, or not malici­ous, or subject to such a Qualification by other words, as they may possi­bly bee, they will not bee Actionable at all.

CHAP. XXII. Of an Action of the Case for a Conspiracy.

A Conspiracy (strictly taken) is where two or more persons do purpos­ly and maliciously, conspire and labour together falsly, and unjustly, What it is Sect. 1. without any ground at all, to indict another for some Treason, Felony, or other offence; and after hée which is so Indicted, is upon that Indict­ment after a lawful tryal, purged and acquitted; in this Case, and for this wrong, as hee may have other remedy, so hee may have remedy by an Action of the Case, wherein the Plaintiff shall recover damages accor­ding to his harm. Coo. 9. 56. F. N. B. 114, 115, 116.

The word Conspiracy, and the writ of Conspiracy, is sometimes taken more largely (to wit) for any agréement, or combination betwéen others, to vex and molest mée in any vexations Suit whatsoever; in which Case the Law gives mée a remedy by this Action, to which wee may happily say more hereafter.

It two, or more, do falsly, and maliciously, Conspire to indict, or ap­peal Where, and in what Case this Action will lye for a Conspira­cy, or not. And how. another of any offence against any Law, as Treason, Felony, Bar­retry, or the like; and after hée that is so indicted is acquitted, this writ lyes for him. Coo 5. 56. F. N. B. 114. Bendloes Rep. 152. Yelvertons Rep. 161. Bulstr. 3. part 271. Bendloes Rep. 138.

And this Action is given to the party indicted, as well for the scandal that both grow to him thereby, as for the trouble which may befal him, by reason of the preferring of the Bill of Indictment against him. Stiles Rep. 10. 11. Croo. 1. part last publisht 564. 724. 725.

But for the opening of this point, these things are to bee known, that in all Cases where this Writ of Conspiracy shall bée maintainable, there must bee these things in the Case.

1 This lyeth as well upon an Indictment for Treason, as upon an In­dictment for Felony; and other matters. Bulstr. 2. part 271. 272.

But it will not lye for an Indictment of Trespas. Stiles Rep. 157. 424.

2 There must bee two or more in the Plot, for the Writ of Conspira­cy will not lye against one man alone, nor against a man and his wife (who are but one person in Law) unless the Writ say that they Simulcum It must bee by two or more persons. others did the thing. And hence it is that if the Suit be begun against di­vers, and all but one of them are discharged of it to all intents, as be­ing acquit by verdict, hereby hee is discharged also. F. N. B. 114. 116. 18. Ed. 1. Broo. Consp. 21 Bendloes 138.

But if the Writ bee brought against two, and one of them doth barr the Plaintiff by a Demurre in Law, or one doth appear and plead, and his plea is found against him: in these Cases the other is not discharged but the Plaintiff shall recover, though the other be not attainted: And yet in this Case hee may perhaps refuse to answer without the other; Or if all the Conspirators but one bee dead; there the Writ may bee had against him alone. F. N. B. 116. 114. 40. Ed. 3. 19. 38. Ed. 3. 3. 35. H. 6. 14. 24. H. 6. 25.

But an Action of the Case in the nature of the writ of Conspiracy will lye against one. Croo. 1. part 173. Bulstr. 3. part 271. and 1. part 185. Godb. 76. Croo. 1. part 173.

3 The party that brings this Writ of Conspiracy, must be indicted, ar­raigned, [Page 101] and acquitted, for a purpose, or intent without the Act, (however in some cases it was punishable in the Starre-Chamber) yet it is not punish­able by our Law. And therefore this Action will not lye for a Plot, or Pre­paration, without an execution of it. Non officit conatus, nisi sequatur ef­fectus. Coo. 9. 56. F. N. B. 114.

4 The proceeding, and prosecution in question, must be voluntary, and not compulsory. And therefore neither this Action, nor an Action of the Case Sect. 2. in general, will lye against a man that doth prosecute another upon an In­dictment by constraint, or compulsion in a Court, as where men are obliged to it by their Oath, or Office, as Iustices of Peace, or Iurors, sworn to present such offences, or witnesses called to testifie their knowledge of such things; or one that doth come into a Court voluntarily, and there discover one that is a Felon indeed; and yet if it be voluntary at the first, and after compulsory, it may be unlawful and actionable.

And yet if one shall come into a Court voluntarily, and discover Felonies, and it be true, which hee doth discover, and this be without any malice pre­cedent, no Action will lye for this. So, if one come into a Court, and by the command of all, or one of the Iustices, draw, or procure to be drawn an Indictment; or if, being bound to prosecute, hee do so, and cause an Indict­ment, &c. Or if hee be bound to give in evidence, and hee do so; or hee do give false evidence, this will not make him liable to this Action. 27. H. 6. 12. 35. H. 6. 14. 27. H. 8. 2. Fitz. 115. Leonard Rep. 107.

For if this Writ should lye against one that comes in, only to swear to the truth of an Indictment, then would no man come in to do it. Coo. 4. 14. Bulstr. 1. part 185. Porter and Griffins Case. B. R.

This Action lieth not against a Iuror, or witnesse that comes into a Court to be sworn. Coo. 9. 55. And if a Witnesse, or Iuror had conspired out of Court, and the Witnesse had sworn, or the Iuror had given a corrupt verdict, upon a Conspiracy before out of Court, they might have been punish­ed in the Starr-Chamber. Coo. 2. 23. 24. And so also of the Iudge, or Iustice of Peace. But neither Iudge, nor Iury, nor Witnesse, will bee liable to this Action, by our Law, in such a Case. Coo. 12. 23. 24. 12. Ed. 4, 18. 21. Ed. 3. 17. 7. H. 4. 31. 35. H. 6. 14. 20. H. 6. 5. F. N. B. [...]15.

And yet, if there be just cause, as that in truth there is a Felony commit­ted, and any man whatsoever, shall complain to a Iustice of Peace of it, and thereupon, hée that doth complain, is bound over to prosecute (which is the ordinary course) and thereupon hée doth prefer an Indictment, and prose­cute, &c. this is not actionable. Croo. 2. 32. 130. 191. Bulstr. 1. part 150.

5 The procéeding, and prosecution must be malicious, for an unjust revenge, as well as voluntary. For if one man do prosecute another in this way, up­on good ground; as where a Felony is done, and there is some cause of suspi­tion of that person, more than another, either by the common fame, or o­therwise; as where a man is robbed, and the next Village, upon Hue and Cry, doth make pursuit, and take a man whom they have in suspition, and thereupon the party robbed, doth indict that man, and upon the Indictment, in his Trial he is acquitted. Or a Coroner, after a murder, sitting super visum corpor [...]s, cannot finde out the murder; and then enquiring of the first finders of the body, they present, that J. S. killed him, and thereupon hée is indicted, and acquitted; these proceedings shall not be said to be ma­licious, nor are they as punishable, by any Action, as in case where it appears he doth begin and prosecute his work maliciously. And whether there be ma­lice, or not in such a prosecution, must be iudged by Circumstances, as his [Page 102] manner of prosecution, speeches, and the like; and a Iury only must deter­mine it. Bulstr. 2. part 2. 84. Broo. Cou [...]p. 4. Coo. 9. 55. Croo. 2. part 191. 194. Bulltr. 2. part 269 Leonard Rep. 107. pl. 146. Bulstr. 1. part 149. Croo 1. part 96. Croo. 1, part last publisht. 724.

6 It hath been held by some Iudges, that it ought not only to be mali­ciously contrived, but it must be false; and that if the party be guilty of the Crime, whereof hee is accused, and for which hee is prosecuted, that this Writ will not lye. By the two Chief Justices, and Lord Chancelour. Sed Quere, if this may not admit of some exception. Huttons Rep. 73.

If one be robbed, by persons unknown, and one of the Theeves had a white Horse and brown Cloak, and was like to the Plaintiff, and upon this was apprehended and prosecuted; this was held lawful, and that this Action did not lye for it. So where the Daughter complained to the Father, shee was ravished by J. S. but was not so, and thereupon hee did prosecute him; that no Action lay for this. So in like cases where there are good and seeming probabilities a man may prosecute another after this manner, and justifie it, albeit the party accused be innocent, and the thing false.

But if there be no probabilities in the Case, or the Iustice, in his exami­nation, finde no cause to binde over, and yet hee proceeds. Bulstr. 1. part 149. 150. 185. Godb. Rep. 203. Huttons Rep. 73. Bulstr. 3. part 331.

And in this, it is said, that if the Charge and Accusation be true but in part, as where the Writ doth suppose a man to indict him for murder, and it was upon his Arraignment found, that hee did kill the man, but that the killing was per infortunium, or se defendendo, in this case the Writ will not lye. Fitz. Consp. 21. Stamf. lib. 3. cap. 12.

7 The party indicted, or appealed, must be legittimo modo acquietatus, Sect. 3. Acquittal by pardon. (that is) he must be acquitted upon his Trial by the Petit Iury after an In­dictment found by the Grand Iury; or if hee bring an Appeal, be non-suit, or the like. And therefore if the Acquital be by a general, or particular par­don; or hee is discharged for the insufficiency of the Indictment, and no Iudgement be given upon it; or the party is indicted, and an Ignoramus is found upon the Bill; in all these Cases, this Writ of Conspiracy will not lye. Croo. 2. 131. Bendloes Rep. 152. Yelvertons Rep. 161. Brownl. and Goldsb. 10. 9. Ed. 4. 12. F. N. B. 114. Coo. 7. 45. 41. And yet the last of these Cases, upon an Ignoramus found, is doubted of by some, and the con­trary said to be twice adjudged. 41. Eliz. B. R. 20. Jac.

And for the general Pardon, hée is to plead it, and the Iustices are to allow of it. Brownl. 1. part 9. Bulstr. 1. part 150. 151. Croo. 1. 208. Dyer. 28. 85. Goldsb. 51.

8 The Prosecution must be about some criminal matter, that may bring a scandal upon him; for if it be but a matter of Trespasse only, no Action will lye for this. Stiles Rep. 157.

9 This Action may lye, for procuring one to be indicted, although the party himself do it not, for one may exhibit a Bill to the Grand Iury with­out oath. Stiles Rep.

10 To encourage one that is robbed to cause the suspected Felon to be indicted: and to accompany him to the Assizes, is lawful to do, and will not bring one in danger of this Action. But if when hée shall so do, hée knows there was no Robbery done, it is dangerous. Goldsb. and Brownl. 9.

11 The Iudictment must be preferred before the Iudge that hath power to take it, or else no Action will lye for it. Croo. 1. part last publisht. 125.

But upon all this, there may séem to arise a Question; If in any Case [Page 103] where the party prosecuted is guilty of the offence for which hée is prosecu­ted, be there never so much of malice in it. Whether for this, this Action may lye, or not against the Prosecutor?

If the offence about which the Prosecution is, be Treason, or Felony, it should séem no malice shall be said to be in this, to make the Prosecutor liable to Action, if the party be guilty of the offence. But if the offence be only Barretry, or some small matter, and the party be guilty, there may haply be so much of malice in the Prosecution, as to make him liable to this Action. Yet see Bulstr. 3. part 331. Just. Crooks opinion otherwise in this. Bulstr. 1. 185.

In all Cases, where the practise, or procurement, being by two, or more, Where, and in what case the general Action of the Case in the nature of a Writ of Con­spiracy will lye against one man. Or not. And how. Sect. 4. will give cause or ground for a Writ of Conspiracy, there, if the same thing be done by one alone, a general Action of the Case, in the nature of a Writ of Conspiracy, will lye for it; so that if one man only do falsly and maliciously cause another to be indicted for Felony, Barretry, or the like, who is thereupon acquitted, as Action of the Case, in the nature of a Writ of Conspiracy, lieth for it. Hobb. Rep. pl. 11. 350. March. 130. Pasche. 7. Jac. B. R. Marsham versus Pescod. 41. 42. Eliz Co. B. Sheringtons Case. Croo. 2. 193. 32. Bulstr. 3. part 331. Croo. 1. part 123. Croo. 1. part last publisht. 563.

And for the opening hereof, these things are to be known; That in all Cases where this general Action of the Case against one man shall be main­tainable, there must be these things in the Case.

1 There must be somewhat done and acted, for the Action will not lye upon a plot, or purpose only. And yet it is not néedful in this Case, that there be so much done, as there must be in the Writ of Conspiracy. For in this case, if one do but procure another to be arrested, brought before Iustices, examined, or imprisoned for a Felony, and hée be never indicted for the Felony; it séems that for this only without more, this Action will lye in this Case. Coo. 9. 56. 57. Coo. 4. 14. 15. F. N. B. 114. 116.

2 It must be false, and malicious; For if the thing be true, for which the Prosecution is, and there were probabilis causa, for what was done; no Action will lye for this. And therefore it is held, That no Action will lye for prosecuting another in a legal way and course of Iustice; as for giving of evidence in any Court against an offender, or for petitioning of a Iudge to have the Good Behaviour, or the like. Bulstr. 2. part 269. Croo. 2. 193. And so, as it is in the Cases before of a Conspiracy, it is in most things in this Action also.

3 In this Case the Plaintiff hath not néed to set forth in his Writ, that hée was legittimo modo acquietatus, as hée must in the Writ of Conspira­cy. Pasche. 3. Jac. B. R. Marshams Case.

Nor is it necessary in this Case, that the Prosecution be to an Acquital by verdict. For if the party do only charge him with a crime, and cause him to be arrested upon it, and go no further, hée may have this Action for the do­ing of so much, and no more. Coo. 9. 55. Croo. 1. 223. And yet see Godb. 76. Croo. 1. 173. Hughes page 52. Where it is said, that this Action will not lye, no more than the Writ of Conspiracy, unlesse hée shew in his Declaration, that hée was upon a Trial legittimo modo acquietatus. But the contrary hereof séems to be the Law herein. Croo. 1. 197. 201. Coo. 9. 55. And in 3. Jac. B. R. Markam and Pescods Case.

It is said to be agréed, that a Writ of Conspiracy will not lye, but where the Plaintiff is legittimo modo acquietatus. And yet that if one prosecute another to Indictment, and Imprisonment, falso & malitiose, and go no further, that for this, the party prosecuted may have this Action, both for [Page 104] the Slander and vexation both; for hee is legittimo modo acquietatus, by the not prosecution. Goldsb. 51. Hughes Rep. 54. Croo. 1. 223.

4 But in this Case, there need not bee, as there must bee in the Writ of Conspirary, two or more in the Conspiracy, for this general Action of the Case, in the nature of a Conspiracy, will lye against one only. Godb. Rep. 76. Croo. 1. 173.

5 It may, out of this, appear to bee a safer way in these Cases, for a man that hath suffered such an injury, rather to bring the general Action of the Case, than the Writ of Conspiracy for his releif herein.

It will be a good Plea in Barre of this Action, to Plead an accord with Execution, betwéen the parties. 21. H. 6. 28. What shall bee said a good plea in Barr [...], in this Action. Sect. 5.

So to shew that the Iudictment, upon which the acquittal was, was erronious, notwithstanding that the party indicted did not take advantage of it. Croo. 9. 26. 9. Ed. 4. 12. Bridgmans Rep. 132. Dyer. 286. 34. H. 6. 9.

So to say, that there is no such Record as the Plaintiff doth set forth. 9 H. 6, 26. Croo. 2. 32.

So to shew any of the things before set down, that it was done by compulsion, in pursuance of their oath, as Iudges, Iurors, and the like. 20. H. 6. 5. Croo. 1. part last publisht 724. 725.

So that one hath had his goods stoln, and found them in the Plaintiffs pos­session, and that hee had other causes to suspect him, complained to a Iustice, who bound over the Plaintiff to appear, and the Defendant to prosecute. Bulstr. 2. part 284. 285. Croo. 2. 193.

And if the Defendant hath any of these or such like thing in his Case, Caution to a Defendant. it will bee his wisdome to plead it specially, and not to plead, not guilty. Leonards Rep. 107.

But it is no good plea to say, that the Plaintiff was guilty of the Felo­ny whereof hee was so acquitted, or that one of the Defendants is dead since the Writ brought; or that the Record on which the Action is ground­ed, is, that the Plaintiff and divers others besides him were indicted there­in. 18. Ed. 4. 1. 9. Ed. 4. 23.

CHAP. XXIII. Of Pleadings in Actions of the Case for words.

AS to the Pleadings in all Actions of the Case for words, this is first to bée known. Of the Decla­ration to main­tain this Acti­on, and what is requisite there­in.

1 That the pleadings of the parties to their Action, are in this Action much to be héeded, for the Plaintiff or Defendant, either of them in this may, by his Omission, or Commission, very quickly advantage or prejudice himself, and therefore they must be very careful herein. Sect. 1.

2 If there be any thing in the truth of the Case, that may make to the Plaintiffs advantage, it doth concern him to insert it into his Count, and if there be any thing that will make to the advantage of the Defendant, to defend himself against the Action, and the Plaintiff omit it, the Defendant must be sure to take hold of it, and to mention it in his plea.

As to Declarations in Actions of the Case for words, these general things are to be known.

1 That the Declaration is good without the word [Malitiose. Noys Rep. 35. yet some say, if falso, or malitiose be omitted in the Declaration, [Page 107] that it is not good. Trin. 7. Car. 1. B. R. Norman and Simons Case, yet sée the contrary in Stiles Rep. 59.

2 That if it be, dixit the words, and [de Querente] is left out, it is good. Stiles Rep. 69. Bendloes Rep. 143. if there bee any thing to supply it. Croo. 2. 39. but if the words be not recited, to be spoken of the Plain­tiff in the Writ, or in the Declaration, and where he reciteth the words he saith, Innuendo the Plaintiff, this is defective. Croo. 2. 126. Brownl. &c. part 4.

3 That where these words [in Auditu cum plurimorum ligeorum,] &c. be left out, it is held good enough, and yet if these, or other words of usual form be omitted in the Declaration, there perhaps the Defendant may take some advantage by it, and avoyd the Action for that time, if hée take exception to it before he Plead, and before the Trial, for by his Plea, and the Verdict, many defects in the Declaration may be cured Croo. 2. 33. 39. Croo. 1. 144. Hobb. Rep. 63.

4 That the words of the Declaration with in presentia diversorum. without in Auditu is good enough, for that will be intended. Croo. 1. last publisht, 486, 487.

5 If a man sue, and declare of the losse of a Marriage, by words spoken, it is not sufficient to say, He intended and endeavoured to have a Wife, but he must say, that there was a communication of Marriage, &c. Bulstr. 1. part 276.

6 If the Declaration set forth, that he spake the words of the Plaintiff, and in truth, they were spoken to the Plaintiff, it will be good enough, and that Dixit de praefato, and dixit ad praefatum is all one. Croo. 56. and 2. 39.

7 The Declaration was laid thus, That B. that serves Mistris Shelly, hath murdered Adams his Childe [Eliz. Addams filiam Johannis Addams modo defunct. Innuendo] in this Case the Count was adjudged naught, for modo defunct. referreth only to the time of the Action. Coo. part 13 71. so if for these words that the Count be, for saying, That the Defen­dant hath poysoned I. S. Modo defuncto, which referres to the time of the Count, this is not good, for he is to averre him to be dead at the time of speaking of the words. Croo. 2. part 343. Jenk. Century. 8. Case 58, 59. Cent. 7. Case 40.

8 Where the Action is laid for speaking of the Plaintiff, Hee verba, &c. without saying, that there was any spéech of the Plaintiffe, or any Innuendo, &c. it séems good enough. Croo. 2. 230. 241.

9 To say in the Count, Palam & publice promulgavit, is good without in presentia & auditu, &c. Croo. 1. part last publisht. 861.

10 It matters not whether the Plaintiff doe in his Count set forth all the circumstantial words, as they were spoken, so as he set forth the very words truly that are actionable, and that he must bée sure of, for a lit­tle variance may marre all. And therefore it is wisely done of those, that where they doubt they charge the Defendant with speaking of various words at several times, and several waies, and by that are sure in one of them to hit upon the very words themselves, or the substance thereof. But then he must take care that the Iury doe assesse damages only for the words that are spoken. Croo. 1. 238.

11 The Count was Quod propalavit quaedam verba scandalosa, prout in his Anglicanis verbis sequend. and ruled to be good. Croo. 1. last pub­lisht. 573.

12 If the Count be thus, That the Defendant Colloquium habens cum querent, in the presence of others dixit [meaning the Plaintiff] Thou art a Thief, &c. and this was ruled good. Stiles Rep. 298.

[Page 108] 13 That where the Declaration is laid thus, that the Defendant said of the Plaintiff, Thy Father is a Theef [Innuendo the Plaintiff] that this is not good, unlesse hee alledge it to be said to be spoken to the Son of the Plaintiff, &c. Croo. Rep. 1. 65.

These things are to be known about an Innuendo in a Declaration. Of the Innu­endo in the De­claration. Sect. 2.

1 That the same may in many cases make certain, that which will o­therwise be incertain.

2 That the use and office of an Averment, by an Innuendo, in a Decla­ration, is either to contain and design the same person, which was named before incertainly. As thus, two are speaking together of B. and one of them saith, Hee is a Theef, in this case B. may say in his Count, that they had spéech of him, and one of them said, Hee [Innuendo] the Plaintiff, is a Theef. Or to declare the matter, or sense of the words themselves, which were certainly exprest before, thus, A. and B. speaking of C. A. said, that B. was a Traitor, to whom B. said, that hee was so too: In this case, if A. bring Action for these words, hée may shew in the Declaration, that there was a speech betwéen him and the Defendant of C. And that the Plaintiff said to the Defendant, that C. was a Traitor, and that the De­fendant said thereupon to him, that hee [Innuendo the Plaintiff] was so too. In both these cases it is good. M. 20. Jac. B. R. Croo. 1. last publisht. 192. 193. But an Innuendo will never make words actionable, which of themselves are unactionable. Brownl. and Goldsb. 7. Coo. 4. 17. 20. Croo. Rep. 1. 303.

3 That this Averment by Innuendo, cannot change the nature of the words, and make a person, or matter certain in particular, which in it self is so general, that it is altogether incertain. Nor can it alter the matter or sense of the words themselves. As where the words are, Hee did burn my Barn; hée cannot by an Innuendo a Barn full of Corn, make the words actionable. So where the words are, Hee is forsworn, by adding Innuen­do in a Court of Record. So where the words are, hee hath the Pox, by adding, Innuendo the French-Pox. So where the words are, hee took my mony from mee with a strong hand, Innuendo Feloniously. So where the words are, the servant of J. S. (who hath many servants) is a Theef, [Innuendo his servant J. S. So, one neer about J. S. is a Traitor, Innuen­do, J. S. In these cases, the Innuendo will not make these words, other­wise unactionable, thereby actionable. Coo. 4. 17. 20. Owens Rep. 58. Hobb. Rep. pl. 3. 48. Goldsb. and Brownl. 7. 9. So if the words be of a double and indifferent meaning, and in the one sense actionable, and in the other not actionable, this will not make them actionable; or if the words be incertain of themselves, or in the person of whom they are intended, an Innuendo will not make them certain, and actionable. Mich. 6. Car. 1. B. R. Hobb. Rep. pl. 4. 48. Croo. 1. part last publisht. 496. 497.