A parallele or conference of the ciuill law, the canon law, and the common law of this realme of England VVherein the agreement and disagreement of these three lawes, and the causes and reasons of the said agreement and disagreement, are opened and discussed. Digested in sundry dialogues by William Fulbecke. At the end of these dialogues is annexed a table of the sections ...

The eleuenth Dialogue of common wrongs and Trespasses. (Book 11)

NOmomath.

Now that ye must treate of* 1.1 common wrōgs & trespasses, I doubt not but you wil be lesse troubled with my questions, because such matters ar more plaine to you, and to me not very difficult. Notwithstanding for learning sake, & because I would ground my selfe vpon some certaintie of knowledge, I will mooue some doubts of these matters: first how many sorts or wrōgs are there?

Codicg.

Iniurie as we say is two folde, for either* 1.2 it is done re or verbis: re, when a man is assaulted

or beaten: verbis, when a man is slaundered and by tearmes disgraced or discredited a 1.3.

Nomomath.

I pray you Anglonomophylax illu∣strate and explaine the members of this diuision by some conuenient cases.

Anglonomoph.

Very willingly, and to beginne* 1.4 with the first: an assault is made when one man menaceth an other with a weapon or staffe, though neuer a blow bestroken, yet this is an as∣sault b 1.5, and 43. E. 3. the writte was Quare insultum fecit vulnerauit, verberauit & maihemauit, and it was allowed though the wrong did sound to be mayhem c 1.6, and as it was held per Curiam, where a man maketh an assault it is not lawfull for any to beate him, if the partie assaulted may escape with his life d 1.7, yet the opinion of M. Brooke is that he may beate him if he cannot otherwise escape without stripes or wounds or mayming e 1.8, yet the opinion of 9. E. 4. is, that I may beate a man if he will take my goods from me: and a seruant may iustifie a batterie in the defence of his maister f 1.9, but the assembling of people in a warlike māner is no assault, but he that is the ringleader of such assemblies, before hee may be impeached of as∣sault must doe something els, as namely by vtte∣ring contumelious speeches, or stretching out his armes, or some other token whereby his in∣tent may be knowen g 1.10, and he that commeth in companie of them that make the assault, or hee which commeth to ayd them, is a principal tres∣passor h 1.11, and if a Iustice of Peace see a man doing an assault, he may presently arrest him by com∣mandement

or worde, to the intent that he may finde suretie of the peace i 1.12, and it is lawfull for one mā to beate an other in defense of his goods and chattels or of his wife k 1.13, and a man may like∣wise haue an action of trespasse for the entring into his house l 1.14, but if a man licence one to come into his house, & he doth a trespasse there he shal be punished for the trespasse but not for the en∣tre which was graūted vnto him m 1.15, and nothing* 1.16 is more vsuall then a man to bring an actiō vpon the case for a slaunder, and therefore if one man call an other bankerupt an action vpon the case will lie n 1.17, or if one say to an other that he is infe∣cted of the robberie and murder lately commit∣ted and smelles of the murder, an action vpon the case will lie for these wordes o 1.18, and the Duke of Buckingham brought an action de scandalis ma∣gnatū against one Lucas, because he said that the said Duke had no more conscience thē a dogge, and so he had goods he cared not how he came by them p 1.19, infinite other cases might be brought tending to this purpose.

Nomomath.

I wil trouble you no further here∣in,* 1.20 but tell me Codicgnostes, whether by your law may the husband haue an action for the wrong doneto his wife, the father for a wrong done to his sonne, and the maister for an iniurie done to* 1.21 his seruant?

Codicgn.

They may, and the Praetors edict in our Law to that intent is very manifest and no∣torious q 1.22.

Anglonomoph.

To that our law accordeth: and

first to shew, that the husbād may haue an action* 1.23 for a wrōg done to his wife, it seemeth that these words: & cam cūbonis & catallis praedicti A. (ma∣riti) ad valentiā &c. abduxit, are necessarie in the writ, for as to the taking and deteining onely of the woman, it seemeth that the suit will onely lie in the spirituall Court, where things any waie touching matrimonie or to be decided: yet I wil not be peremptorie herein, because M. Fitzherh. opiniō is r 1.24, that the suit for the taking of the wo∣man onely, without mentioning any other thing in the writ, is maintenable at the Common lawe, howbeit he putteth this case, that if a man sue in court Christian for the taking and deteining of his wife, which was lawfully maried to him, if the other sue a prohibition hereupon, hee may haue a consultation quatenus pro restitutione vxo∣ris suae duntaxat prosequitur s 1.25, and if the woman do lie asunder from her husband the suit will lie in the spiritual Court to haue againe the fellow∣ship of mariage and to dwell together as may ap∣peare by these wordes of the statute t 1.26: (vnlesse he wil receiue her without ecclesiastical cōpulsiō u 1.27) but where a man bringeth an actiō at the cōmon Law de muliere abduct a cum bonis viri: he must be sure that his wife hath atteined to age of consent, & that she hath actually cōsēted to the mariage: for where a mā marrieth a wife before she be of the age of 12. yeares, & after she commeth to the age of 12. yeares, & before she assent or disassent one taketh or carieth her away, the husband in this case cānot haue a writ of trespasse cū muliere

abduct a cū bonis viri by some authority, because it is not properly a mariage till she assent x 1.28: yet M. Brooke doubteth hereof & rather thinketh vpon very good reason the contrary, because it shall be intēded a good mariage vntill the womā do dis∣assēt a 1.29: but where the mariage is cōplete, & with∣out all daunger of contradiction, though the wife be dead or diuorced at the time of the actiō brought, yet the action is maintenable for the husband b 1.30, but the worde (rapuit) must be in the writ as well as the word (abduxit) and therefore it will not lie against a woman, because one wo∣man cannot rauish an other c 1.31, and if a man do ca∣rie* 1.32 away a woman by the licence of her husband this writte will not lie d 1.33, for it is vi & armis, and as to the bringing of an action by the maister for some hurt done to his seruant, it is frequēt in our bookes: for by the beating, or maiming or woū∣ding of the seruant, the maister hath the losse of his seruice e 1.34: & therefore if any man take the ser∣uāt of an other mā out of his seruice, an action of trespas wil lieagainst him that taketh him f 1.35, but if a mā find an other mās seruant wādring abroad, and reteyne him, this is lawfull, if he knew no∣thing of the fist reteiner. But though by the com∣mon law an action of trespasse quare vi & armis did lie against him that tooke an other mans ser∣uant out of his seruice: yet if he did only procure him to go out of seruice, & thē reteined him, the maister could haue had by the Common law no action, but only an action vpō the case, but now by parliamēt an action is giuē vpon the statute of

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labourers g 1.36: Lastly it is plaine by our law, that the* 1.37 father may haue an action for the taking away of his sonne and heire, but in the writte he must say cuius maritagium ad ipsum pertinet: for this writte is giuen vnto the father, because the mariage of his sonne and heire or of his daughter and heire doth of right appertaine vnto him, and if the fa∣ther haue maried his heire before, so that he hath once enioyed the fruite and benefite of the ma∣riage, which the law allotted vnto him, he shall not haue this writte h 1.38, and if a man take away an other mans sonne and heire apparāt and bestow vpon him good apparell, and the father seiseth his sonne as he lawfully may, he shall not be im∣peached for the taking of the apparell; for in that he may make a good iustification for the taking of the body, the iustificatiō must needs extēd to the apparell of the bodie, because the law con∣sidereth not bare and elementall bodies, but bo∣dies apparelled: And Haukf. with others resoneth well, that if a man put an other into apparell, and speaketh nothing of the loane of it, neither by ex∣presse acte reserueth the propertie to himselfe, this is a gift in law: and if an aduowterer do take a woman from her husband, and apparelleth her with good attire, the husband may take the wife againe, and with her the apparell i 1.39, and as the fa∣ther may haue this remedie for his sonne & heire apparant, so may the mother, likewise if shee be an inheritrix k 1.40: so that I meruaile at M. Catesbies opinion 9. E. 4. that this writte lieth not for the wife l 1.41.

Nomomath.

I will require no more at your hands Anglonomoph. of this matter, now I pray you Codicgnostes resolue me in this, whether whē any mans beasts do any hurt vnto an other mā, if this be not done by the owners acte, default, or procurement, shall the maister make good the dammage susteined by such wrong.

Codicgn.

Surely brute beastes, because they* 1.42 want vnderstanding and reason, cannot be said properly to bind their owner (noxaliter, so that the fault should be accompted his) for any rauin, hurt, or dammage whatsoeuer, neither do such wrongs bind the owner of the beasts ex quasi de∣licto, for a matter like vnto a wrong: yet notwith∣standing for preuenting of hurt, that may in such sort happē, the law doth prouide, that if the ow∣ner wil not voluntarily yeeld vp the beast as a re∣compence to him that is endāmaged, he must rē∣der the dāmages, or els by the authoritie of the iudge be awarded & compelled to yeeld vp the beast m 1.43, and therfore if any man do keepe or nou∣rish a Mastife, or Boare, or Foxe, or Beare, or Lion or Wolfe, or some like beast which doth hurt or damnifie an other mā, he that receiueth the hurt shall recouer dāmages against the owner of the beast n 1.44, but if such a beast do escape away frō me,* 1.45 or goeth so farre from my pasture or warde that I cannot by pursuing recouer it, neither doe I know whether it is fledde, and so being esca∣ped from me it doe hurt an other man, in this case I am not to susteyne any dammage, because in this case, I am free from fault: for the beast by

such escape ceaseth to be mine, and may become his that shall take, or seise, or kill it o 1.46.

Anglonomoph.

To this our Lawe agreeth: for we haue a writ of Trespasse which saith, Qua∣re vi & armis centum oues ipsius A. cum quibus∣dam canibus fugauit canes illos ad mordendum oues praedictas intantùm incitando quòd per fugationem illam & morsus canum praedictorum oues praedictae multiplititer deterioratae fuerunt & magna pars o∣uium illarum faetus abortiuos fecit &c. per quod* 1.47 &c. p 1.48 But if a Dogge doe kill or hurte any mans beastes, the Maister being ignorant of his mis∣chieuous property, he is not punishable q 1.49, wher∣by I gather that if hee know of his propertie (though he do not set on his dogge or mainteine him to doe hurt to others) hee shall be punished by action of trespasse, and if a man doe driue his beastes thorough the Queenes highe way, to which way my land that is sowne with corne is adioining, and the beasts doe enter & spoile my corne, the owner shall bee punished for this, though hee did driue them out presently, or ear∣nestly endeuour to chase them out of the corne r 1.50, so if a man chase his beastes in the highe way, and they doe escape into land, which is not in∣closed, ond the owner doth freshly pursue them, and chaseth them out, yet this is no good plea in barre without shewing that the tenant of the lande, and all those whose estate hee hath in the lande, haue vsed to inclose the said land toward the high way s 1.51.

Nomomath.

I craue no more of this matter:

now I would haue you to transferre your inuen∣tiō to the discourse of other offences against the peace, which I doe thus dispose and distribute to your handling: because all offences against the peace are either in an inferior degree, as these whereof ye haue lastly spoken, or in a middle de∣gree, as vnlawfull assemblies, riots, routes, and forcible entres, or in a higher degree, and they be of three sortes, namely such as be committed against the dignitie of man as treason and rebel∣lion: or against the life of man, as murder, man∣slaughter, and homicide by chaunce, or against the good estate of man, as thefte, burglarie and robberie: I would therefore haue you first to begin to treate of vnlawfull assemblies, riots &c. and then to goe on with the rest, accordinglie as I haue set them downe.

Codignostes, Canonologus, Anglonomophylax, we are willing to pleasure you in anie thing that we can, and as you propose doubtes of euerie of these titles seuerallie, we will endeuour to satis∣fie and resolue you to our power.

Notes

• * 1.1

  1. Diuision.
• * 1.2

  1. The diuerse kinds of iniu∣ries in the Ci∣uill lawe.
• a 1.3

  L. 1. ff. de in∣iut••••s.
• * 1.4

  2. What an assault is ac∣cording to the Commo law.
• b 1.5

  22. Assis. pl. 60.
• c 1.6

  43. Assis. 39.
• d 1.7

  2. H. 4. 8.
• e 1.8

  Br. Trespasse 71.
• f 1.9

  9. E. 4. 28. & 48.
• g 1.10

  17. E. 4. 4.
• h 1.11

  22. Assis. pl. 43.
• i 1.12

  9. E. 4. 3.
• k 1.13

  19. H. 6. 31. 35. H. 6. 51.
• l 1.14

  Fitzh. N. B. 88. l.
• m 1.15

  3. H. 7. 15. p Townes.
• * 1.16

  3. That the Common law giueth an acti∣on vpon the case for a slaunder.
• n 1.17

  6. E. 6. 72. Dy.
• o 1.18

  15. Elizab. 317. Dy.
• p 1.19

  4. H. 8. rotul. 659.
• * 1.20

  2 Diuision.
• * 1.21

  1. That by the Ciuill law, an action of tres∣passe lieth by the father, husband, mai∣ster, for a wrōg done to the sonne, wife, seruant.
• q 1.22

  L. 1. ff. de in∣iur:
• * 1.23

  2. That by the Common law the husband may haue an action for a wrong done to his wife.
• r 1.24

  Fitzh. N. B. 52. K.
• s 1.25

  Fitzh. ibid.
• t 1.26

  D. Cosins in li. de iurisdict. ecclesiastic.
• u 1.27

  13. E. 1. c. 34 Westminst. 2.
• x 1.28

  47. E. 3. Br. Trespasse 420.
• a 1.29

  Brooke ibid.
• b 1.30

  43. E. 3. 22.
• c 1.31

  43. E. 3. 23.
• * 1.32

  3. In wh•• ca∣ses by the Cō∣mon lawe an action will lie for the mai∣ster for a wrong done to his seruant.
• d 1.33

  1. E. 4. 1.
• e 1.34

  3. H. 6. 53.
• f 1.35

  39. E. 3 38. Fitzh. N. B 91. I. 21. H. 6. 31.
• g 1.36

  11. H. 4. 23. Br. Trespasse. 92.
• * 1.37

  4. In what ca∣ses by the Cō∣mon law an action will lie for the father for a wrong done to the sonne.
• h 1.38

  12. H. 4. 16. 8. E. 2. Trespas 235. 32. E. 3. Garde. 32.
• i 1.39

  11. H. 4. 31. Br. Trespas 93.
• k 1.40

  30. E. 3: Brief 300.
• l 1.41

  9. E. 4. 53.
• * 1.42

  1. How the owner shal be punished by the Ciuill law for a trespasse done by his beasts.
• m 1.43

  L. 1. ff. si quadrup: paup: fec: dic.
• n 1.44

  §. Caeterùm Instit. si qua∣dru: pauperiē fecisse dicatur.
• * 1.45

  2. In what case he shall not be punish∣ed though his beasts do hurt to an other man.
• o 1.46

  d. l. 1. §. in bestijs & §. Caeterù••, ver∣sic. Denique si vrsus.
• * 1.47

  3. That by the Common law a man shal be punished for a trespasse done by his beasts.
• p 1.48

  Fitzh. N. B. 89. L.
• q 1.49

  28. H. 8. 25. Dy. & 29. Dy.
• r 1.50

  10. E. 4. 7.
• s 1.51

  15. H. 7. 17.