Law, or a Discourse therof in four books. Written in French by Sir Hen. Finch Kt. His Majesties Serjeant at Law. And done into English by the same author

CHAP. II. Of Trespasses upon the Case.

OFfences without force are trespasses upon the Case, or Real wrongs.

Trespass upon the case is such an of∣fence, whereby any thing is endamaged. And is a misuser or deceit.

Misuser, when by meer wrong it is endamaged. Of which kind there be many, and those of divers sorts. As if a man ma∣liciously utter any false slander to the in∣dangering of one in Law. As to say, he hath reported that money is fallen, for he shall be punished for such a report, if it be false. The touching of him with some hai∣nous

crime, as that he hath gone about to get poison to kill the child that such a woman goeth with (yet it is no felony;) lien(a) in wait to rob him; procured(b) ano∣ther or agreed(c) with another to murder him (though he were not murthered in Deed)(a) sought his life for his land, &c. or the impairing his trade of life; as to call a merchant(b) bankrupt (for it is his living, but so it is not of a Gentleman;) an At∣torney(c) Ambodexter, or to say that he dealeth(d) corruptly. But in all such cases words of choler and heat, as to call one Cosener(e) and Crafty knave, com∣mon extortioner, and drunkard, witch, rogue, Pillory-knave, Villain (unless he say villain to such a man, or regardant to such a mannor;) words uttered in a suit of law, as to bring a Writ of forger of false deeds against a nobleman, or any other (though it be false) will bear no Action; for these are not malici∣ously. So if he be able to justifie the words, for then it is not falsly. As that he called him perjured, by reason of a perjury com∣mitted in the star-chamber, murderer, thief, or such like, upon a conjunction(f); but not upon an Enditement or common voice and fame, though the defendant himself suspect him:(g) If one having another mans goods(h) convert them to his own use: if a(i) Sheriff suffer one

in execution for debt to go at large: if a Smith(k) cloy my horse: but not if he take him to cure (without warranting of him) and doing all he can, yet the horse impair. If being committed to the Goal, the Goaler of malice put upon me so many Irons, or otherwise use me so hardly that I become lame thereby, &c.

Statutes.

West. 1. cap. 33. He that publisheth any false news and tales, whereby discord or occasion of discord and stander may grow between the King and his people, or the Nobles, shall be kept in prison until he hath brought him forth into the court, that did speak the same.

2 R. 2 c. 11. The like for him that telleth false lies of Nobles and great Officers of the Realm, whereby discord may arise be∣tween the said Lords and Commons.

12 R. 2. c. 11. In the case of these for∣mer Statutes, if the party cannot bring forth him that spake the same, he shall be punished by the advice of the Councel.

But two above the rest do here require more special consideration; that is to say, disturbance and nusance.

Disturbance is the hindering of that which in right belongeth un∣to one to do. As for a man to use his common, to reduce a Water-course that is

misturned, to present unto a Church, &c.

Nusance is annoyance done to ones he∣reditament. As levying a fair or market to the Nusance of anotherr Fair, or Mark∣et; building a house so near mine, that the rain which falleth from that house falleth upon mine, &c.

All manner of nusances are to be remo∣ved, and common nusances. As a wall(a) &c. built upon the Highway, trees(b) growing upon the river bank, whereby a water-course is stopped, any man may pull down.

Deceit When the dammage groweth by an undue sleight. As if a man purchase a writ in my name out of the Chancery, I not knowing of it, whereby I am to pay a fine; or if one (whom I make my Attorney in a plea of land against finee) make default, whereby the land is lost: Or if in a Praecipe against divers Tenant••, a man purchaseth a protection for one of them, supposing him to be beyond sea in the Kings service, where indeed he is & al∣ways hath been in England, by means whereof the demandant is delayed: or if in a Praecipe quod reddat, the Sheriff return the Tenant summoned, where indeed he was not, whereby he loseth the land: or if in play one win anothers money with false dice, or if he that selleth any thing do up∣on the sale, warrant it to be thus and thus, whereby the other is de∣ceived.

So that the warranty must be par∣cel of the contract: for if it be(a) after, (at another place) or(b) a servant make the warranty upon the sale of his masters goods (which in law is the masters sale, and warranty of the servant) it is a void Warranty, and no action of deceit lieth upon it. Also the Warranty can reach but to things in being at the time, not to things to come: as that a horse (c) will car∣ry you xxx. miles a day: nor to things which may be discerned by my five senses to be otherwise, as clothes of murry colour to be blew, unless the buyer in this case be blind. But where they are warranted to be of such a length, and are not, there an action of deceit lieth: for that cannot be discerned by sight, but by a colateral proof, the measuring of them.

Notes

• 9 El. Ʋttings case.
• Sir Tho. Co∣kains case.
• (a)

  So i•• hath been adjudged.
• (b)

  26 El. C••a••knel 5 c.
• (c)

  34 El. Cebot against Haines adjudged.
• (a)

  27 El. Hack's case.
• (b)

  27 El. Bar∣rons case.
• (c)

  26 El.
• (d)

  27 El. Burc. case.
• (e)

  All these ca∣ses have so been adjudged or commonly re∣ceived for Law. 13 H. 7. per 11. El. Dy. 285. 30 H. 8. Br. Act. sur case 104.
• (f)

  31 El. No∣wels case.
• (g)

  7 El. Dy. 236.
• (h)

  It hath been oftentimes adjudged that in such case•• the reversion is tra∣versible.
• (i)

  7 H. 6. 5. & 17 El. in Mansers case no action of debt lieth upon it (at the Common Law) but an action of Tres∣pass upon the case.
• (k)

  48 F. 3. b. F.N.B. 93. H.
• F.N.B. 184. a. F.N.B. 184. d.
• (a)

  33 H. 6. 26.
• (b)

  42 Ass. pl. 5.
• F.N.B. in his Writ of deceit.
• (a)

  5. 7. 41.
• (b)

  11 E. 4. 6.