The common law epitomiz'd with directions how to prosecute and defend personal actions, very useful for all lawyers, justices of peace, and gentlemen : to which is annexed the nature of a writ of error, and the general proceedings there upon : with a plain table for the easie finding out of every particular / by William Glisson and Anthony Gulston ...

For doing a thing to the damage of another touching his Name, which is Slander; for it turns to his prejudice.

Dicitur quod scandalosum est generale verbum,* 1.1 and signifies that which one does to the overthrow of anothers credit and repute; therefore it is con∣ceived, that if the words are spoken to the wrong of another, an Action lies, Kitchin 173. for the intended injury.

Fit autem injuria non solum cum quis pugno per∣cussus fuit, verberatus, vulneratus, vel fustibus cesus, verum cum ei convitium dictum fuit, vel de eo fa∣ctum crimen famosum, & hujusmodi. Bracton, lib. 3. fol. 155. A.

There are two kinds of defamations, Spiritual and Temporal, Nat. br. 55.

Note, when words are not spoken adjectively, if they touch one in his Profession or Trade they are actionable, otherwise not, Coke 4. part. 19. case 15. Q. Adjective words are incertain, and signifie nothing positively or directly affirmative.

Also if they imply or presume an illoyal act, viz. against the publick Peace, then an Action lies although they are spoken adjectively; but if they imply an intention only, then an Action lies not, Coke 4. part. 19. B. case 15. for the Law puni∣sheth not Intentions, except it be in cases of Trea∣son.

It lies not for calling one Adulterer,* 1.2 because it belongs to the Spiritual Court, 27 Hen. 8.17. Coke 4. part. 17. case 11. but now it doth, because Adul∣tery is made death by a late Statute.

1. For calling a man Bankrupt it lies not,* 1.3 unless a man be a Merchant, or use a Trade, or get his living by buying and selling, Pasch. 40 Eliz. B••c∣kard & Constable; it was there doubted, then one Case was cited in Ban. Regis, that it did not lie.

2. For saying that B will be a Bankrupt within two days, it lies, 6 Edw. 6. Dyer 72. pl. 6. Coke 4. part. fol. 19. for he is impaired in his credit, for none will trust one that is likely to break.

3. A shews that he was a Shoemaker, and did use to buy and sell per 10 years; the Defendant said that he was a Bankrupt, and this was good al∣though he did not shew that he was a Shoemaker for 10 years, for it is implied in that he said, he used to buy and sell per 10 years, Mich. 9 Jac. Ban. Regis, Dayet, Chandler.

4. For calling a Merchant Bankrupt-Knave it lies, because it toucheth him in his Profession, Coke 4. part. 19. A, & B. in both the words.

1. For calling one Bastard, if he be an Heir,* 1.4 No. Lib. Intr. 28. sect. 25. Trin. 25 Eliz. Ban. Regis. Q. if he be not an Heir, and no special damage laid.

2. A intends to present B to a Church, and C says that he is a Bastard, by which he is not pre∣sented, B shall have an Action, Coke 4. part. 17. case 11. for here is a particular damage laid.

For calling one Bawd it lies not,* 1.5 27 Hen. 8. Kitchin 173. because it belongs to the Spiritual Court. —if it be spoken in London it lies;

And me seems the same Law, if it be in the Coun∣trey.

A said to B your Attorney is a bribing Knave,* 1.6 Action lies because it toucheth him in his Pro∣fession, Mich. 11 Jac. Com. Ban. Yardly & Ellil. Q. For a bribing Knave is one properly that gives bribes, and not a taker of bribes; but that is not fair practise.

A said of an Attorney, you are well known to be a corrupt man, and to deal corruptly, Action lies, Coke 4. part. 16. case 6. for he is scandalized in his profession.

For calling a man Common Misseasor or Bare∣ctor,* 1.7 it lies not, Kitchin 173. A. vide 22 Assiz. 43. Q. tamen of the word Barector.

1. For calling a man Cousener it lies not,* 1.8 Coke 4. part. 15. B. Q.

2. Thou art a Cousening Knave, and hast cou∣sened my two kinsmen of Land worth 6000 l. and I will bring thee to stand upon the Pillory for it, the Action lies not, Kitchin 173. B. Q. tamen, for for calling one Cheater lately adjudged actionable in B. S. in Parkhurst and Bramptons case, by Glon. Chief Justice.

3. A is a Cousening Knave, and I have proved him a Cousening Knave for selling me a Saphir for a Diamond, it lies not, Kitchin 174. A. Q. if the words were spoken of a Goldsmith or Jeweller.

4. If Sir John S. might have his will, he would kill all true Subjects and the King, and he is a maintainer of Papists and Rebellious persons; up∣on Not guilty the Jury found that he said, I think in my Conscience ut supra, &c. 1. the words are actionable, for scandalum dicitur quod parit rui∣nam

vel occasionem ruinae, 2. the Jury found the substance and no variance, Mich. 14 Jac. Regis, Sydenham & May; one must not tell his thoughts to prejudice another.

Thou art an Enemy to the State of this Realm, an Action lies, Hill. 40 Eliz. Com. Ban. Hooknell & Smith. Q. tamen, for the words seem very du∣bious.

It lies for writing a Libel in a paper,* 1.9 and affix∣ing it to the Church-door, by which I am to enter, 17 Edw. 4.3. Lib. Intr. 13 B. sect. 4. for it is in effect speaking of Scandalous words.

* 1.10For calling one false Justice of Peace it lies, 4 Edw. 6.22. if spoken in relation to his Of∣fice.

* 1.11It lies not for calling a man false Knave, Kitchin 173. B. for the word Knave is a general word, and a word of heat.

* 1.121. It lies not for suing a man for Forgery, 11 Eliz. Dyer 245.

Because for false Action sequitur nulla poena, 2 Rich. 3.9. for if the Action be false the Defendant shall have his damage pro falso clamore.

For this is in course of Justice, Coke 4. part. 14. B. And if it would lie, men would be terrified from punishing Vice.

2. But if one be sued in the Star-chamber for a thing not examinable, there an Action lies, Coke 4. part. 14. B. case 3. No. Lib. Intr. 23. B. sect. 21. For Actions are to be brought in the Courts proper to try them, and not in Arbitrary Courts. Ergo Q. whether an Action upon the Case doth not lie for suing in Chancery, where a plain Action lies at the Common Law.

3. But if one bring an Appeal in Com. Ban. it lies not, because this is in the nature of a Legal suit, though brought in a wrong Court.

1. For calling a Judge a Felon,* 1.13 30 Assize 19. Kitchin 173. A. for Felony is Capital.

It lies for saying that one had forged a Deed,* 1.14 11 Eliz. Dyer 285. for Forgery is indictable.

1. For calling one Heretick it lies not,* 1.15 because it properly belongs to the Spiritual Court, 27 Hen. 4.17. Regist. orig. 54. Coke 5. part. 57. B. Specotts case. And the Common Law Courts ought not to entrench upon the Spiritual Courts; nec i contra.

2. But if one said of a Divine that he is a He∣retick, by which he loseth his Benefice or Presen∣tation, Action lies, Coke 4. part. 17. case 11. for there is a temporal loss.

1. For calling one Thief an Action lies, 27 Hen. 8. 14 Eliz. Dyer. 236.* 1.16 pl. 26. Lib. Intr. 12. D. sect. 2. Hill. 4 Eliz. Com. Ban. Reques case, Dyer 9. pl. 112.

Common voice and same is not sufficient to call a man Thief, 26 Hen. 8.9. Dyer 236. pl. 26. for it may be false.

But he may justifie that the Plaintiff stole sheep, Mich. 13 Jac. Com. Ban. Cuddinston & Wilkins, or any other thing; the stealing whereof is Felony, or pety Larceny.

For calling one Thief, and causing him to be indicted where he was acquitted, 27 Hen. 8.11. Lib. Intr. 12. D. Sect. 2. Q. if the matter was su∣spicious.

For saying that A had stole sheep, 27 Hen. 8.22.

For saying that A stole Sheep of B, 26 Hen. 8.9. pl. 11.

A is a false Knave, and was at my house on the Sessions day at night, and would have robbed me, and did break my doors, and did put me in jeo∣pardy of my life, 28 Hen. 8. Dyer pl. 171. for the words are very scandalous, though they seem very general.

A is infected with such a Robbery that he doth smell of it, 14 Eliz. Dyer 317. pl. 8. 6 Edw. 6. Dyer 72. pl. 6. for it implies that he was accessory to it.

There is a nest of Thieves at B, and C is the maintainer of them, and is a strong Thief, Dyer 75. pl. 2. Q. if the first words alone are actiona∣ble.

Men cannot have their Cattel go up and down the Common, but B and his Children will kill them with Barbers Dog, no Action lies, Dyer 118. pl. 79. for the words are not scandalous, and they are general and incertain.

Thou art a Steal-gown, and the first Gown that thou diddest wear thou stollest, and then did∣dest walk up and down in thy stollen Gown, and haddest no Gown until thou diddest steal one, Action lies, No. Lib. Intr. 22. D. sect. 20. because there is a particular act of Theft set forth.

Thou art a Thief, for thou stollest my Sons goods, Action lies without averring that he had goods, Pasch. 38 Eliz. Com. Ban. Elin. & Moore; for it shall be intended he had goods without an averment.

My Master B hath robbed me of all my goods, Action lies without averring that he was his Ser∣vant,

for this is Assets certain, Mich. 15 Jac. Bun. Regis, Brown & Low; for Master and Servant are relata, posito uno ponitur alterum.

B burned my Barn, (innuendo) a Barn of Corn, Action lies not; for it is not shewed a Barn with Corn, nor that it was parcel of the Mansion-house, and the innuendo cannot aid it, Coke 4. part. 20. case 16. No. Lib. Intra. 24. D. sect. 22. for a Bar•• may be without Corn, and not be parcel of 〈◊〉〈◊〉 Mansion-house.

A hath stollen my Wood, Action lies, for wool cannot be intended Trees growing, Pasch. 38 Elit. Com. Ban. Arbor dum crescit, lignum dum cresce••∣nescit.

A doth or will prepare to Rob me, Action lie•• for this tends to the ruine of A, Mich. 14 Jac. Re•• Sydenham & May. Q. tamen, for the words a•• very incertain.

A calls B Thief, and justifies that he stole sheet B pleads the General pardon after the words spo∣ken, the Action lies, for by the Pardon the wo•••• Thief is taken away, Mich. 13 Jac. Com. B•••• Cuddingtons case, and Wilkens. Q. for it see•••• hard Law, there being good cause to justifie at the time of the words spoken.

Thou didst sert on me on the High-way, and didst take away from me my Purse, and I will be sworn to it, Action lies, Pasch. 9 Jac. Ban. Regi•• Stoner & Holland; for it implies Felony, que•• tamen.

1. For calling one Leper or Leprous Knave Action lies,* 1.17 Intr. Taylor & Baggs; for thereb men will avoid his company, & homo est anims sociabile.

For Leprosus extra communionem positus petere non potest, Bracton, lib. 2. fol. 12. A.

1. For calling one Murtherer, Action lies,* 1.18 6 E∣liz. Dyer 236. pl. 26. Q.

2. Thou hast killed my Wife, no Action lies, because it appears to the Court that she is alive, Coke 4. part. 16. A. and so no damage can be by speaking of the words.

3. Thou didst poyson thy Husband, Action lies; and yet it was objected, 1. that she ought to shew that he was dead, 2. that he died within the year, 3. that it was voluntary, Mich. 15 Jac. Ban. Regis, Gardiners case. Q

4. Thou didst poyson S, and it shall cost me a 100 l. but I will hang thee for it, Action lies, No. Lib. Intr. 25. C. sect. 23. The latter words enforce the former.

5. A said, that C gave counsel to B to kill me, it lies not, because a man is not punishable without an action done in pursuance of the Counsel given, Coke 4. part. 16. case 10.

1. For calling one perjured,* 1.19 2 Hen. 8.22. Kitch∣in 173. yet an Indictment lies for Perjury.

2. But for saying that he had Forsworn him∣self, it lies not; for it might be against his will, or not in a Court of Record, Coke 4. part. 15. A, & B.

Unless he had said in such a Court of Record, Coke 4. part. 15. B. and then it implies he is per∣jured, and the words amount to as much.

3. A hath gotten a Mannor by Swearing and Forswearing, Action lies not, because the words are too general, and fix no offence upon the party, Coke 4. part. 15. A, & B. No. Lib. Intr. 21. B. Sect. 18.

4. W is forsworn and perjured in Swearing at the Common Pleas bar, upon the Deed which he then had in his hand; this shall not be intended that he swore upon the Deed, but upon the Book, ergo the Action lies, Hill. 35 Eliz. Ban. Regis, Rot. 56. Crowe; for words must have a reasonable construction, according to occasion of the speaking of them.

H is a perjured old Knave in the Court of T, Action lies, for perjury in a Court Baron is pu∣nishable per the Statute of 5 Eliz. for the right comes in debate there, & perjurium est jus alie. num pervertere, Pasch. 40 Eliz. Com. Ban. Hatch∣man & Southcotte. But before the Statute quaere whether the words were Actionable or not.

A says to B, thou hast an old Creeple whore to thy Mother; for which words he sued him in the Spiritual Court, and produced B for a Witness; A takes exception to him because he was perjured at the Assizes of D in such a cause; W for this brought his Action against A, which justifies as aforesaid, 1. this was a legal course, viz. to take exception to a Witness; ergo the Action lies not; 2. the Ecclesiastical Court may punish perjury, therefore it lies not here, Trin. 15 Jac. Ban. Regis, Westover versus Dabener.

Thou art perjured, and I will prove it, Action lies, No. Lib. Intr. 26. A. Sect. 24.

For saying that A was detected of perjury in the Star-chamber, it lies not, because an honest ma•• may be detected, but not convicted, Coke 4. part. 16. case 8. Note the difference.

1. For saying of an Innholder,* 1.20 that he had bu∣ried divers of the Plague that died in his house in

his Garden, Action lies, Regist. orig. 173. B. for by the speaking such words he is in danger to lose his Guests. But quaere if he ought to alledge, that he is damnified thereby.

M is a Whore and hath the Pox,* 1.21 and they have made such holes in her that you may turn your finger in them, and K the Chirurgion hath given her a Diet drink to heal them, take heed how you drink with her, Action lies; 1. for calling her Whore, and this is the cause of the Pox, 2. the cure is published, to wit the Chirurgion and the Drink, 3. the contagion, take heed how you drink with her: Ergo it shall be intended the French Pox, and not the Small Pox, Trin. 15 Jac. Ban. Regis Milner and his Wife against Reeve.

1. A said of B,* 1.22 being a Barrester, that he had no more Law than a Jack-an-Apes, an Action lies, because it is an unreasonable Creature not having any Law, and it scandals him in his profession, Mich 36, & 37 Eliz. Ban. Regis, Palmers case, and it is as much as if he had said, he hath no Law.

For saying of a Counsellor, he will deceive you,* 1.23 he was of my Counsel and revealed my Cause, No. Lib. Intra. 22. B. sect. 19. for this may hinder him from Clients.

For calling a man Rogue it lies not,* 1.24 Kitchin 173. B. But quaere if he call him branded Rogue.

A says of a Preacher,* 1.25 thou hast made a sediti∣ous Sermon to day and moved the people to it, Action lies, because he is scandalized in his pro∣fession, Coke 4. part. 19. case 15. and he might then have been punished for preaching Sedition.

An Action. de scandalis magnatum was brought for saying, you like of those that maintain Sedi∣tion

against the•• Queens proceedings, Coke 4. part. 12. B. Cromwells case. Q. if it lie, for the words are general, and it may be he did not know it.

L said E did report,* 1.26 that your wife sacrificed her Child to the Devil to make away my Mother, Action lies, because sorcery is felony, per 11 Jac. Regis, and there is an evil intention and an act joyned together, Pasch. 15 Jac. Locke versus Locke.

It lies for calling one Traytor,* 1.27 27 Hen. 8.14.30 Assize 29. Coke 10. part. 130. B. Osburns case.

Thou diddest speak Treason, Action lies, 9 Jac. Brereford & Preston; for speaking of Treason is Treason, and punishable.

Walter said P did say, that Mr. Lewis did say there was no Prince in England, an Action lies, for it cannot be intended but that he meant Prince Charles was not Prince; and because it toucheth the Plaintiff in his Alleageance it shall be taken in the favourablest sense as is, Fama, fides, oculus non patiuntur ludum, Hill. 14 Jac. Ban. Regis, Lewis & Walter; for it is not lawful for me to say what I hear another say, if it tends to a third persons prejudice.

For calling one Usurer it lies not,* 1.28 because it meerly belongs to the Spiritual Court, 27 Hen. 8.17. and Usury is tolerated by the Law. But Q. if one call another Extortioner.

It lies not for calling one Whore,* 1.29 Mich. 9 Jac. Ban. Regis, Hudsons case, Coke 4. part. 18. A. but it doth by the late Act.

But in London by customes it did lie before, but if it be removed to Westm. no Procedendo shall be granted, for such customes to maintain actions for

brabling words is against the Law, Coke 4. part. 18. A. case 13. Q. tamen, for Roll Chief Justice held it ought to be granted; but Bacon Justice to the contrary, 23 Car. B. R. Izack against Green, & 24 Car. B. R. Kings case.

For saying of a Maid that she had a Bastard, an Action lies, 1. because it is punishable by our Law, viz. the Statute; 2. if she be to be married it hin∣ders her preferment, Coke 4. part. 16. case 11. Da∣vies & Gardiner.

Notes

• * 1.1

  Slander.
• * 1.2

  Adulterer.
• * 1.3

  Bankrupt.
• * 1.4

  Bastard.
• * 1.5

  Bawd.
• * 1.6

  Bribery.
• * 1.7

  Barector.
• * 1.8

  Cousener.
• * 1.9

  Slander in writing.
• * 1.10

  False Ju∣stice.
• * 1.11

  False Knave.
• * 1.12

  False suit.
• * 1.13

  Felon.
• * 1.14

  Forger.
• * 1.15

  Heretick.
• * 1.16

  Thief.
• * 1.17

  Leper.
• * 1.18

  Murtherer.
• * 1.19

  Perjured.
• * 1.20

  Plague.
• * 1.21

  Pox.
• * 1.22

  Profession.
• * 1.23

  Revealer of a cause.
• * 1.24

  Rogue.
• * 1.25

  Sedition.
• * 1.26

  Sorcery.
• * 1.27

  Traytor.
• * 1.28

  Usurer.
• * 1.29

  Whore.