The second part of the Parallele, or conference of the ciuill law, the canon law, and the common law of this realme of England Wherein the agreement and disagreement of these three lawes touching diuers matters not before conferred, is at large debated and discussed. Whereunto is annexed a table ... Handled in seauen dialogues, by William Fulbecke.

The second Dialogue. (Book 2)

Of Actions vpon the Case. (Book 2)

NOnomath.

I haue some time mer∣uailed Codicgn. wherefore an Acti∣on vpon the case, which you tearme actionem iniuriarum, should not haue a speciall name, aswell as other actions, when as at the Common Law euery action beside this hath his speciall name: As an action of Dette, of Accompt, of Wast, of Detinue, of Couenant, &c. And in your Law there is* 1.1 Actio ex stipulatu, actio empti, actio depositi, ac∣tio de pauperie &c. I pray you therefore let me know the reason hereof.

Codicgn.

What is more ebbing and flowing then mans inuention: for some things it hath wordes too many, for some it wanteth names: Therefore Iuuenal, when he sought for an apt name for that age which ensued the fower fa∣mous ages, being this last age of the world, and worse thē the yron age, he nameth it by giuing it no name, (for his inuētion could not find out any proper appellation) and thus resolueth:

—quorum sceleri non inuenit ipsa Nomen, et a nullo posuit natura metallo.

And because our sage Maisters of the Law could not deuise as manie seuerall names, as there be seuerall iniuries: for what Dictio∣narie could conteine so many names? and be∣cause the name of the signe should be ample,

and large enough for the thing named or sig∣nified:* 1.2 therefore they deuised that actio iniu∣riarum might serue for all wrongs, for which they could not frame particular names.

Anglonomoph.

Indeede as D. Stephens his water was fit for manie diseases, and yet had neuer any speciall name, but was generallie* 1.3 tearmed Doctor Stephens his water: so likewise an Action vpon the case stretcheth as a remedy against manie offences: Yet it hath no other name then an Action vpon the case. And it is therefore so tearmed, because euerie mans case must be in that action speciallie and at large set downe: for in that action the writ ought to comprehend the speciall matter, as well as the declaration a 1.4: Wherfore in an Action vpon the case brought against one who was reteined to buie a Manor for the plaintife, which he after purchased for himselfe, in deceit of the plain∣tife: and the plaintife did not shew of whom the Manor should be bought in the writ, but onelie in the declaration, the writ was aba∣ted b 1.5.

Nomomath.

I pray you satisfie me in this: If* 1.6 a man be enterteined, or lodged in an Inne, and some of his goodes be taken from him out of the Inne by a straunger, whether may he haue an Action vpon the case against the Inne-keeper.

Anglonomoph.

Doubtles he may, if it were

a common Inne in which hee was lodged c 1.7. And if the partie so preiudiced doe bring an* 1.8 Action vpon the case against the hoast, it is no plea for him to saie that the plaintife did not deliuer any goodes vnto him: or that the plain∣tife himselfe had the key of the chamber. And an Elegit hath been awarded in such case of the land, which the defendant had the daie of the iudgement giuen, and not the daie of the writ brought. And a Capias ad satisfaciendum lieth not, because it was a laches, and no wrong d 1.9: And therefore the wordes of the writ be pro defectu ipsius B. e 1.10: But the opinion of Hill, is 11. H. 4. that if the Inne-keeper in such case doe notifie vnto the guest, that he can not attende vpon him, and notwithstanding he will needes be harboured there at his perill, the Inne-kee∣per is discharged f 1.11. And 22. H. 6. the difference* 1.12 is taken, that if a man doe lodge in chamber with me by my consent meerlie, and not by the appointment of the hoast, and he robbeth me, the hoast shall not be charged: Otherwise is it if he be harboured there by the hoast. And if my seruant robbe me, the hoast shall not bee* 1.13 charged g 1.14. And 39. H. 6. it is said, that an Action vpon the case lieth against the Inne-keeper, if he will not lodge a man; and the Constable may enforce him thereunto. But Danby there holdeth, that he is not bound to giue bread (or prouander) to his horse without present mo∣ney

paied in hand h 1.15.

Codign.

By our Law, if thorough the neg∣ligence* 1.16 of the seruants which waite, or attende in the Inne, if any thing be stolne out of the chamber of the guest by any such seruants, the Master or Inne-keeper himselfe is to be impea∣ched by waie of action, and he whose goodes are stolne may recouer double dammages a∣gainst him i 1.17: because the receit of such goodes into the Inne is an implicatiue promise, that the goodes shall be safe k 1.18. So likewise if a man haue* 1.19 a Ship wherin he vseth to transport & conuey men or goodes into foreine nations, and hath appointed a Master of the said ship, by whose default or wilfull offence the goodes of some that are in the ship are imbeasiled or impaired, an action in this case will lie against the owner of the ship l 1.20: for the Master of the ship is he cui totius nauis, anchora, et cura commissa est m 1.21. And in the Tertorike or Almaine language, such a person is called by the name of Stir-man: and the owner of the ship is therefore in this case charged, because he prefected him, and made him Master of his ship n 1.22, and because to him the dailie profites, rents, and gaines of the ship doe appertaine and come o 1.23.

Canonolog.

I doe not remember any thing in our Law contrarie to that which you haue said.

Nomomath.

I would be resolued of this Co∣dignostes,* 1.24

whether according to your Law in all contractes there must be a mutuall conside∣ration on both sides.

Codicgn.

It is not necessarie, that there be* 1.25 mutuall consideration, but so there be a mu∣tuall consent, it is sufficient in our Law, and it is therfore called a contract: because by coue∣nanting diuersae voluntates in vnum contrahun∣tur p 1.26. D. Baldus noteth, that there is a triple kind* 1.27 of contract. A proper contract, an improper contract, and a most improper contract. The proper contract, is when both parties are vltro* 1.28 citró{que} bound q 1.29: As if I buy of you a Horse for fiue pound, I am bound to giue you the mo∣ney, and you are bound to giue the horse vnto me. An improper contract, is when one of the* 1.30 parties onelie is bound by the contract: As in a gift of goodes, or chattels, the donour onlie is bound to deliuer the thinges giuen r 1.31. And so when one lendeth to an other, he which bo∣roweth is only bound ad tantundem reddendū s 1.32. The most improper contract, is when neither* 1.33 of the parties is bound, but a bond or contract is dissolued and defeated: As when a man sel∣leth to an other a siluer Cup for three poundes, to be paied at such a day, & the vendour deliue∣reth the cup to the seruant of the vendee, who presently runneth from his Master: so that the vendee sueth the vendor for the cup, & the ven∣dor sueth him for the money, if depēding these

two seuerall suites, both the parties doe after friendlie agree, that suites shall surcease betwixt them, and that the one of them shall be quite against the other, this transaction as we tearme it is a contract, though most improper t 1.34. Like∣wise when a man will acquite one of money which he oweth vnto him vpon a contract, which in our Law is called acceptilatio: as when I saie vnto one with whom I haue bargained: Haue not you receyued of me all the money which I did owe vnto you by way of contract? and he aunsweareth: I haue receyued it all, whereas in truth he hath not receiued a penie of it: this is a good acquitall, and one of the most impro∣per contractes u 1.35.

Anglonomoph.

Our Law medleth with no contractes, but such as you haue tearmed pro∣per contractes: For our Law requireth in all* 1.36 contractes a mutuall consideration, and one part of the contract challengeth and begetteth the other. And therefore the case was thus: The seruant of A. was arrested in London vp∣on a trespasse, and two which did know his Master did baile him: and after A. promised them for their friendship to saue them harme∣lesse of damages and costes, if afterward they were charged: And so it befell, that after∣warde they were charged: yet it was helde that the Action vpon the case would not lie vppon the promise, because there was no

consideration, for the bayling was of their owne head, and was executed before the assumpsit: But if the Master had requested before, and assured afterward then perhaps the law would haue beene otherwise: as in con∣sideration that you haue married my daughter at my request I will giue you an hundred pound. This is a good consideration because the marriage did ensue my request, and in like sort land may be giuen in frankemarriage after the espousals x 1.37. And so wheras Oneley brought an action vpon the case against the Earle of Kent and his Ladie, and declared vpon an as∣sumpsit of the Ladie, whilest she was sole, that in consideration that he had taken great paines and had expended 1500. li. about her businesse and suites, that she would repay the 1500. li. and beside that twentie pound more. This was held a good consideration a 1.38: and 29. Eliz. the case was such: A man being found in arrera∣ges vpon his account did promise to the dettee that if he wold forbeare him per paruū tempus, that hee would pay him the money without further delay, and the dettee did forbeare him accordingly, and after vpon this assumpsit brought an action vpon the case: and it see∣med to three of the Iustices of the common pleas, that the action would not lie, because that paruū tempus was no good consideration, neither could it be beneficiall to the partie: but

one of the Iustices saide, that if the dettee had brought an action vpon the case without any consideration alleadged, and had proued the dette, that would haue sufficed for that had beene an assumpsit in law: and that there must be a reciprocall consideration in such case may most clearely and euidently be proued, by 44. E. 3. A writte of dette was brought, and the plaintife declared that the defendant did owe vnto him fiue poundes for a house which hee had sold vnto him: the defendant said, that there was a couenant betwixt the plaintife & the defendant, that the pr shold remoue the same house at his owne costs & charges within a certaine day to a certaine place, and when he had so remoued it, that then the defendant would pay him his money, and that the house (or the frame of the house) was not as yet re∣moued: and this was held a good plea b 1.39. And where two considerations are to be accompli∣shed, the performance of them both is to bee auerred: Wherefore the case was, that in an action of trespasse the defendant pleaded a concord, that he before a certaine day should make certayne windowes, and should paye certaine money, and he said that he payed the money by vertue of the concord before the day, and demaunded iudgement si actio &c. But hee spoke nothing of the making of the windowes, and the plaintife replyed, Nul tiel

accorde, and it was for the plaintife, and it was held by all the court a ieofaile. For when they accorded that the defendant should doe two things, the concord is not performed, vnlesse both be done, and so the matter of the plea is not good, and therefore the replication can∣not make it good c 1.40: And if I buy a horse of you for sixe pound, you may deteine the horse till I haue payed you d 1.41: and so if one buy an horse of an other in Smithfield and do not pay to the vendor money presently, but doth one∣ly promise it, the vendor may sell it to another immediately, and the other can haue no reme∣die against him: for otherwise he may be com∣pelled to keepe his horse in perpetuum against his will e 1.42: And to this agreeth the booke of 21. H. 7. where it is said, that in the bargaine it is implyed, that the bargainee shall pay the money presently, otherwise hee shall not haue the thing solde; but if it were for a certaine day, the money were not to bee payed before the daye, because the bargainor hath giuen vnto him expresse libertie to pay at any time within the time prefixed f 1.43: And so is the booke of 28. H. 8. that a contract or bargaine is not good without present payment, vn∣lesse there bee a certayne day limited, so that one of the parties may haue an action of dette for the money, and the other a writte of Detinue for the wares g 1.44: and if a man

assure and promise to one that he will make for him certaine waines for carriage &c. and hee taketh parcell of the money before hand to do it, and after he doth it not according to his as∣sumpsit, the other may haue an action of tres∣passe vpon his case h 1.45: so an action vpon the case was brought because the defendant pro∣mised to the plaintife, that if the plaintife wold discharge I. S. of execution, in which hee was at the suite of the plaintife, that then he would pay vnto him his dette, and in truth the pro∣mise was made to the wife of the plaintife, to which the husband agreed, and thereupon he discharged the partie, and it was ruled by the court, that the action was maintenable because a feoffement of lands or gift of goods is auaile∣able to the wife if the husbande doe not disa∣gree, so it is of an assumpsit i 1.46.

Nomomath.

Trouble your selfe no further Anglonomoph. let me aske this one question of Codicgn. whilest it resteth in my mind. Sup∣pose that I haue hyred a ship or gallie to trans∣port my family, and some of my houshold* 1.47 goodes, by lawfull permission, and I agree to pay for the carriage of euerie poll or person of them a certaine summe of money, admit that three or foure of them die in the ship, whether shall the owner of the shippe haue the entire summe of money, or shall it bee apporcioned for them, that be dead before they be brought

to the land k 1.48.

Codicgn.

To cleare your doubt this diuersi∣tie must bee vnderstood: if the owner of the* 1.49 shippe did make a couenant with you, that he would bring them safe to such a place, then surely you ought to pay no fare for them that bee dead l 1.50: but if the couenant were to take them into the ship, and to carrie them to such a place, thē the law wil be otherwise: and so if a* 1.51 child be borne in the ship whilest it is vpon the sea, there is nothing due in respect of that child m 1.52.

Canonolog.

All contractes are bonae fidei, and what is a contract but stipulatio verborum? so that it is to be taken as the words doe sound, no violence being offered to apparant equitie. n 1.53

Anglonomoph.

In our law there is a case not much swaruing from this purpose, if we stand not too much vpon the common and verball way to go to the end of a question, I. B. did* 1.54 declare by bill that A. at a certaine day and yeare vpon Humber did assume to carrie his horse being taken into his barge ouer the wa∣ter of Humber sound and safe, and the said A. did surcharge his barge with other things, by which meane his horse perished in the water, and this was held a good cause of action o 1.55: but surely in this case without ferrying ouer the horse there was nothing due vnto the barge∣man by reason of the couenant.

Nomomath. Canonologus, you haue yet spo∣ken nothing concerning the necessitie of mu∣tuall consideration in bargaines, I pray you let vs heare the determination of your law here∣upon, & then we will insist no more vpon this point of contractes.

Canonol.

Our law doth not refuse or abiudi∣cate* 1.56 the kinds of improper contractes, as by the report of Anglonomoph. the common law doth, for if two should contend for an ecclesiasticall benefice, as namely for the aduowson of a par∣sonage or prebend, and one of them agreeth with the other, that he shall haue one turne of presenting, and the other an other turne, and so successiuè per alternas vices, heere though there bee no consideration properly: yet in our lawe this is a good contract and a good consideration: but if one of them should haue giuen to the other twentie pounde to haue had the presentation wholy, & solely to him∣self,* 1.57 this had bin void in law and symoniacall p 1.58.

Nomomath.

How doth your law Anglonom. punish defaultes for want of skill, as suppose that I do hire one for a certaine summe of mo∣ney to make for mee a frame or fabricke of an house of good timber, well seasoned, and in a certain forme, and he maketh it of verie weake timber, ill seasoned, and very rudely in forme, whether in such a case will an action vpon the case lye against him or no.

Anglonomoph.

I doubt not but it will, for

where a man vndertaketh to do a thing well & perfectly, and through ignorance and default of skill hee faileth, remedie is giuen by an acti∣on vpon the case: for the case was 11. R. 2. that in an action vpon the case, the plaintif declared that at a certaine day and yeare in London there was a couenant made betwixt the plaintife & the defendant, that the defendant should cure the pr of a certaine maladie, & he tooke of him for it a certain summe of mony before hand, in* 1.59 consideration whereof the said def. did vnder∣take to cure the pr of his maladie, who mini∣stred vnto him medicines contrary to his di∣sease, whereby hee was empeired and became worse then he was before q 1.60: so 19. H. 6. an actiō vpon the case was brought because the def. did assume to cure the plaintifes horse, and that he adeo negligenter, & improuidè imposuit medicinā, quòd equum &c. And it was there said by New∣ton, that if I giue counsaile to a man to giue his horse certaine medicines, who doth it, & there∣upon the horse dieth he shal not haue an actiō, vnlesse I had vndertaken to heale him, which must be trauersed: And Paston granted this, & said, that if I haue a disease in my hand, and a man applieth a medicin to my arme, by which negligence my hand is empeired, yet no action wil lie vnles he had vndertaken to cure it r 1.61; & as I take it, so is that case to be vnderstood which M. Fitzh. hath: if a smith doe hurte my horse with a naile, I may haue an action vpō the case

though he did not warrant the well shooeing of him: but he saith not (though he did not as∣sume) for in deed the shooing of him is an im∣plicatiue assumpsit, & if there were no conside∣ration, but the smith did it of meere good will, I do not thinke, that any action will lie s 1.62: so that the action lyeth not meerely and directly for want of skill, but because the assumpsit was not accomplished for want of skill.

Codign.

But by our law the want of skill is a* 1.63 sufficient ground of action: for if in the case proposed of the making a frame of a house, it be not done well and artificially, our law is that the artificer shall render damages in toto, but if some part be well done, and some ill, so that it is euident that if the workeman had vsed con∣uenient diligence, all of it might haue beene well consummated, so that there is no default in skilfulnes but in carefulnes, then the worke∣man shall not bee condemned in toto, but in tanto that is for so much, as is not well done t 1.64.

Canonolog.

The rule of our law is, that crassa* 1.65 & supina ignorantia non excusat u 1.66.

Nomomath.

Let mee know this of you Co∣dicgnost. when one man through fraud and de∣ceit ouereacheth another, whether is this puni∣shable in your law as a thing iniuriously done.* 1.67

Codicgnost.

Yes if hee doe circumuent him* 1.68 dolo malo.

Nomomath. It must needes be so intended: for I am sure your Law reputeth no deceit to be good.

Codicgnost.

Yes, there is a distinction in our Law of Dolus bonus, and Dolus malus. Dolus* 1.69 bonus, is when a man doth machinate or deuise anie thing to entrap a thiefe, or a traytour a 1.70, and such deceit may not properlie be tearmed fraude, but it may more fitlie be tearmed by the name of Solertia, or cunning. Such a kind of cunning is much vsed in war-fare, by which more victories are atchieued then by strength of hand. To which purpose I remember cer∣taine verses of an vncertaine authour, that may well be accommodated to this purpose:

Nil refert Armis conting at palma dolóue, Nam dolus, an virtus fuerit quis in hoste requiret.

But Dolus malus is a craft or subtill deuise vsed to the deceiuing of an other b 1.71, or to frustrate the Law c 1.72: As the Law prohibiteth a man to giue anie thing to his wife. And Titius giueth a horse to Sempronius, who giueth it to the wife of Titius by the secreat compact of her hus∣band d 1.73, this is done in fraudem legis, because the purpose of the giuer at the first was to giue to his wife. But if there be a Statute, that euery one which guideth any wayne ouer such a bridge being fraught with carriage, shall paie iiij. d', and the partie causeth all the thinges in the wayne, when he commeth to the bridge,

to be caried ouer the bridge on mens backes, here is no defraudation of the Law: But if he should giue iiij. pence for the cariage ouer the bridge, but not currant money, now the Law should be defrauded e 1.74. And when a man is pre∣iudiced by the fraudulent dealing of an other man, he may by our Law haue an action a∣gainst him, which is called actio doli, an action of Deceit.

Canonolog.

Indeede the difference of Dolus is vsed likewise in our Law. And we haue a rule of that which you haue tearmed dolum bo∣num:* 1.75 Frangenti fidem, fides frangatur eidem f 1.76. And likewise an example of it vsed in our law: namelie of Salomon, who did vse such cunning betwixt the two harlots, in searching out who was the true, and naturall mother of the child. But the deceit, which of you hath ben tearmed dolus malus, is in our Law nomen reatus, which it doth punish, as being done against the Law: for qui peccat, non peccat de legis authoritate g 1.77.

Anglonomoph.

That deceit which of ye both* 1.78 hath been tearmed dolus malus, doth not in our Law escape punishment: but for the more strong inhibiting and repressing of it, it doth afforde a double remedie against such as en∣dammage others by deceit: namelie, either a writ of Deceit, or an Action vpon the case. For if a man plaie with an other at dice, and he hath false dice, with which he plaieth, and winneth

the other mans money, he that loseth his mo∣ney in such sort may haue an Action vpon the case for this deceit. And in other like cases an Action vpon the case, or a writ of Deceit will lie, at the pleasure, and election of the plaintife. And if I present one to a Church, whereof I am Patron, to the Ordinarie, and one T. distur∣beth me: wherefore an other man purchaseth a Quare impedit in my name, retournable in the Common place (I not knowing thereof) a∣gainst the said T. and after causeth the writ to be abated, or me to be nonsuit in the action, I may haue a writ of Deceit against him h 1.79. And in euery case an action vpon the case is mainte∣nable against him which sueth an originall in the name of the plaintife against his will i 1.80. So if a man forge a statute merchant in my name, & sue a Capias therupon, whereby I am arrested, and had in execution, I may haue a writ of De∣ceit against him that forged it k 1.81. So if the War∣den of an Infant vouch one by couin, who is not sufficient, or pleadeth some bad plea, wher∣as he might haue pleaded a better plea, the In∣fant shall haue a writ of Deceit against him, and shall recouer the full value in dammages l 1.82. And 11. H. 6. a writ of Deceit was brought against an Attourney for acknowledging a satisfaction, whereas his master was not in truth satisfied m 1.83. And in a Praecipe quod red∣dat, if the Shirife retorne the tenant of the land

to be summoned, whereas in truth he was ne∣uer summoned, whereupon the tenant loseth by default vpon the Graund cape retourned: Now the tenant may haue a writ of Deceit a∣gainst him that recouered, and against the Shi∣rife for his false retourne n 1.84: But the writ of De∣ceit in this case doth not determine the right of the land, but doth only defeat the iudgement o 1.85. And 5. E. 4. is that no dammages in this case shall be recouered against the Shirife, but he shall be onelie fined p 1.86. And if a man recouer in a writ of Wast by default, whereas the defen∣dant was neuer summoned, the defendant in this case may haue a writ of Deceit q 1.87. And if a man bargaine with an other, and assume vpon consideration to enfeoffe him of certaine land, and he enfeoffeth an other: he to whom the assumpsit was made may haue a writ of Deceit r 1.88, or an Action vpon the case at his pleasure s 1.89. And if one sell to an other a Horse which he know∣eth to haue a secreat disease in his bodie: or sel∣leth certaine quarters of Graine, which is full of grauell, a writ of Deceit lieth t 1.90. So 13. H. 4. a writ of Deceit was brought for selling a cer∣taine quantitie of wooll, and warranting it to be 50. sackes, whereas it wanted of that mea∣sure: the defendant pleaded in barre that it was weyed before the sale, and that the seruants of the plaintife being his factors did accepr it, and caried it beyond the sea, whereupon the plain∣tife

demurred u 1.91. And if a man lose his land by default in a Praecipe quod reddat, whereas he was neuer summoned, and die, his heire may haue an action of Deceit, and shall haue restitution of the land uu 1.92. And 1. E. 3. in the booke of Assises it is said, that if a recouerie in such case be had against the father by default, whereas in truth the father was dead at the time of the recoue∣rie, the heire may auoide this by writ of Dis∣ceit, or Error a 1.93. And whereas there be two te∣nants for life, the remainder to the heires of one of them, and they both lose by default be∣ing not summoned, and the tenant for life di∣eth, the suruiuor shall haue a writ of Disceit for the whole: Otherwise it had been if the reco∣uerie had been against the tenant for life onelie by default b 1.94.

Nomomath.

You haue sufficientlie discussed* 1.95 the point of deceit; Now I would craue your opinions of an other matter. Suppose that a man by slaunderous and opprobrious speeches is impeached, and his good name impaired, this being but a verball iniurie: whether doe your Lawes inflict punishment vpon such as offend by contumelious and reprochfull speeches or no? and what punishment doe they inflict?

Codicgn.

Such outragious speeches either pro∣ceede* 1.96 of pride, and tend to contempt, & against such the Law alloweth no remedie, because the partie himselfe may frustrate them by contēpt:

Therefore the saying of the Rhodians in the se∣nate did argue wisedom: Superbiam, verborum praesertim, iracundi oderunt, prudentis irrident: vti{que} si inferior is aduersus superiorem est, capitali paena nemo vnquam dignum iudicauit: etiam Deos aliqui verbis ferocioribus increpant, nec ob id quen∣quam fulmine ictum audimus c 1.97. The disgrace, espe∣cially of wordes, irefull men reuenge with hatred, wisemen with laughter: yea though it happen that the iniurie be done by an inferior person to his supe∣rior, and no man euer thought such iniury worthy of capitall punishment: euen the Goddes haue of some been reuiled by insolent tearmes, yet we do not heare that any man hath been striken with thunder bolt for that fault. But if the contumelie do rather flow* 1.98 from malice then from pride, & tend rather to discredit then to contēpt, the case is altered, and then a capital punishment hath in ancient time been inflicted, if the fault were publike. For of the Romanes S. Augustine saith thus: Romani probris et iniurijs Poetarum subiectam vitam fa∣mam{que} habere noluerunt, capite etiā puniri sancien∣tes tale carmen condere si quis auderet d 1.99: The Ro∣manes would not haue their life & credit subiect to the reproches & iniuries of Poets, making it capital for any to deuise a slanderous libell. And he citeth the words of Scipio in another place: Nostrae duo∣decim tabulae cum perpaucas res capite sanxissent, in his hanc quo{que} sanciendā patauerunt, si quis actita∣uisset siue carmen condidisset, quod infamiam face∣ret, flagitiumue alteri e 1.100.

Nomomath. Yet the Graecians did allow such* 1.101 taunts and biting sarcasmicall speeches, as the same S. Augustine reporteth f 1.102. And Socrates did not take it grieuously to be noted of Comoedi∣ans, for which he giueth this reason: Si merito reprehenderint, emendabimur: sin falso, tum illa nihil ad nos attinebunt. And it seemeth to keepe men in awe, and to restraine them from offen∣ding, when as wicked men well deseruing infa∣mie, are touched by such reprochful inuētions.

Codicgn.

Your three arguments against my as∣sertion are but three words, Graecians, Socrates, Terror; to which by your permission I will par∣ticularly aunswere. The Graecians did manie times sleep, when the Romanes did awake, & in matter of ambiguitie the Romanes were by ma∣ny degrees more to be imitated then the Graeci∣ans: Yet the Graecians did not alwaies suffer this licentious rage & inuectiue of Poets. For when Aristophanes in one of his comedies wold make known vnto the people the extorcious & tyran∣nous spoiles of Cleon, a man of high estate g 1.103, he was so inflamed with rancour against him, that whē he could hire none for mony to personate Cleon, he performed the part himself, & did with such indignity & disgraceful termes abuse Cleō, that Cleon pursuing the matter against him, he was fined 5. talents: and as himselfe confesseth, though he gained much by his acted Come∣die, yet he lost fully as much by his fine: And as himselfe further confesseth (to expresse it in Latin) reuomuit quantum hauserat h 1.104, being

a tart-tounged detractor, whose workes are scarselie to be read, vnlesse a man would taste the gall of bitternes, much lesse to be imitated, and (as Viues censureth him well) multa per ebri∣etatem conscripsit i 1.105. And whereas he was cor∣rupted* 1.106 by money receiued of Anitus and Meli∣tus, the enemies of Socrates, to scourge and lash Socrates in his comedie called Nebulae, (which the same Viues pretilie tearmeth fabulam nebulo∣nicam) with contumelious speeches, Socrates in this should not haue been pacient, because it was crimen facto non leue, exemplo admodū graue: But Plato, who was more exercised then Socra∣tes in matters of common weale, did banish out of his common weale such railing Poets k 1.107. And wheras you think it conuenient to salt the cor∣rupt maners of men by such piercing speeches, that they may feare to offend: the truth is, such salt is very vnsauorie, and such courses very cor∣rupt: for if they be suffered to taunt Hyperbolus a lewd fellow, they wil not spare Pericles an ex∣cellent man, (as Cicero well affirmeth in the per∣son of Scipio l 1.108:) for he was likewise more then nipped of Aristophanes, and Eupolis. And S. Au∣gustine reproueth such meanes of reprouing, saying grauely, wisely, and diuinely: Iudicijs ac Magistratuum disceptationibus legitimis pro∣positam vitam, non poetarum ingenijs habere debemus m 1.109: And disorderlie persons, as Cicero saith well, a censore melius est quàm a poeta notari:

rather of a Censor which is Magister morum: then of a soure Satyrist or gibing comical-poet, which is Corruptor morum, & such faults are ra∣ther to be rebuked of a preacher curing with his zeale, then scurrilously touched of a prater wounding with his stile: for such carpers ought to take religious heed least tincta Lycambeo san∣guine* 1.110 telagerant: But that I may shew what our lawes haue ratified touching this abuse: if any mā do deuise any slanderous libell against one, & it happeneth that another findeth it, and he doth not cancel it & teare it in peeces, but doth publish it to others, he is punished with capital punishment n 1.111, and so is the author likewise pu∣nished o 1.112.

Canonol.

Wee account in our law such de∣traction to be summam iniquitatem, & the cen∣sure of our law is that omnis qui detrahit fratri suo homicida est p 1.113.

Anglonomoph.

Our law is too charitable dea∣ling a mother, and therefore it alloweth the ad∣ministration of goods circafuneralia, though it be done by a stranger, who hath no authoritie to intermeddle q 1.114: because it is a worke of cha∣ritie* 1.115 r 1.116: but slaunder and diffamation, which blemisheth the good name of others it dete∣steth and vtterly disfauoureth, condemneth, & punisheth as a stepdame vnto rancor & violent speeches the abortiue children of malice. Wherefore an action vpon the case will lye at

our law for calling the plaintife theefe s 1.117: and for calling the pr a false and periured man t 1.118: so an action vpon the case lyeth for calling the pr false iustice of peace u 1.119. But to publish one for his villaine, who in truth is his villain is no slan∣der nor actionable x 1.120: nor to publish one to be a bastard, who is in deed a bastard, if the defen∣dant doe make title to the bastardes lande, and did therefore tearme him bastard that the mat∣ter might bee produced into question and triall y 1.121.

Nomomath.

Enough of this, wee will passe now to other matters.

Notes

• * 1.1

  1. Diuision.
• * 1.2

  1. The rea∣son is shewed wherefore ac∣tio iniuriarum hath so gene∣rall a name at the ciuill Law.
• * 1.3

  2. The Barri∣ster compa∣reth an Ac∣tion vpon the case at the common Law to D. Stephens his water.
• a 1.4

  7. H. 6. 47.
• b 1.5

  16. H. 6. Ac∣tion sur le case 44. 48. E. 3. 6. Brief 627. 33. H. 6. 26. 11. H. 6. 2. 22. H. 6. 53.
• * 1.6

  2. Diuision.
• c 1.7

  2. H. 4. 7. 5. Mar. 158. Dyer.
• * 1.8

  1. An Action vpon the case lieth against the keeper of a cōmon Inne if goodes be imbeasiled.
• d 1.9

  42. E. 3. 11.
• e 1.10

  Fitzh. nat. bre. 94. B.
• f 1.11

  11. H. 4. 45. per Hill.
• * 1.12

  2. If a stranger lodge with me by my consent, and do imbea∣sill goodes, the Inne-keeper shall not be charged.
• * 1.13

  3. If my ser∣uant imbesill my goods, the Inne-keeper shall not be charged by the common Law.
• g 1.14

  22. H. 6. 21. per Curiam.
• h 1.15

  39. H. 6. 18.
• * 1.16

  4. By the Ciuil Law the Inne-keeper is to be charged with action, if his seruants steale goodes.
• i 1.17

  ff. si ad vers. nan. l. 1▪
• k 1.18

  ff. furt. adu. nan. can. sta. l. 1.
• * 1.19

  5. If through the default of the Master of the ship goods be stolne, the owner of the ship is to make recompence.
• l 1.20

  ff. de exercit. act••. l. 1.
• m 1.21

  ea. l. 1. §. Magistrum.
• n 1.22

  ea. l. 1. §. non autem.
• o 1.23

  ea. l. §. ex∣ercitatorem.
• * 1.24

  3. Diuision.
• * 1.25

  1. By the Ci∣uill Law it is not necessarie that there be mutuall con∣sideration in contractes.
• p 1.26

  Instit. de actio. §. 1. Gazal. verbo contractus.
• * 1.27

  2. Three sorts of contractes by the Ciuill Law.
• * 1.28

  3. What is a proper con∣tract by the Ciuill Law.
• q 1.29

  l. Labeo. § contrac. ff. de verb. signif.
• * 1.30

  4. What an improper con∣tract is by the ciuill Law.
• r 1.31

  l. Aristo. ff. de donat. can∣mor.
• s 1.32

  ff. si cer. pe. l. 2.
• * 1.33

  5. What a most impro∣per contract is by the same Law.
• t 1.34

  Saly. in lib. siue apud acta. C. de trans∣act.
• u 1.35

  Instit. qui. mo. tol. ob∣lig. et in l. vbi pactum. C. de transact. per Bar.
• * 1.36

  6. The Com∣mon Law ad∣mitteth no con∣tracts, but such as be proper.
• x 1.37

  10. Eliz. 272. Dy.
• a 1.38

  19. Eliz. 356▪ Dy. Oneleys case.
• b 1.39

  44. E▪ 3. 28.
• c 1.40

  6. H. 7. 10.
• d 1.41

  10. E. 4▪ 1••.
• e 1.42

  17. E. 4. 1. per Choke.
• f 1.43

  21. H. 7. 6.
• g 1.44

  28. H. 8. 30▪ Dy.
• h 1.45

  Fitz. N. B. 94. A.
• i 1.46

  27. H. 8. 24. 25.
• * 1.47

  4. Diuision.
• k 1.48

  Ludou••c. de Rom. in sin∣gulari.
• * 1.49

  1 That no fare ought to be payed for them that die in a ship, if the master of the ship did as∣sume to bring them safe to shoare.
• l 1.50

  Id. in d. sin∣gu. ad regu. praedict.
• * 1.51

  2 If a child be borne in sea∣faring nothing is to be paied for that child.
• m 1.52

  ff. locat. l. si adest. §. si quis mulier.
• n 1.53

  Pecki. ad reg. iur.
• * 1.54

  3 The barri∣ster putteth a case of carry∣ing a horse safe and sound ouer Humber.
• o 1.55

  22. Assis. pl. 41.
• * 1.56

  4 The cannon law agreeth with the ciuill in cases of im∣proper con∣tracts.
• * 1.57

  5 Diuision.
• p 1.58

  c. si quando cleric. de offi. de leg. &c. statui∣mus de trāsac. nisi effet de preben.
• * 1.59

  1 That by the common law want of skill is to be punished by an action vpon the case if there be an assumpsit ey∣ther implica∣tiue or ex∣pressed.
• q 1.60

  11. R. 2. Act▪ sur le case 37.
• r 1.61

  19. H. 6. 49.
• s 1.62

  Fitz. N. B. 94 D. 14. H. 6. 18. 46. E. 3. 19. 48. E. 3. 6. 21. H. 6. 55.
• * 1.63

  2 That by the ciuill law want of skill onely is pu∣nishable.
• t 1.64

  Gazalup. in ver. ignorat.
• * 1.65

  3 By the can∣non law Crassa & su∣pina ignoran∣tia non excu∣sat.
• u 1.66

  Ber. in c. regni. fiuit. de ordi ab epi. qui resig. epi.
• * 1.67

  6. Diuision.
• * 1.68

  1 Circumuen∣tion dolo malo punishable at the ciuill law.
• * 1.69

  2. A difference at the ciuil law betwixt dolus malus▪ and do∣lus bonus.
• a 1.70

  ff. de leg. 2. lib. cum pater §. Titia.
• b 1.71

  ff. de do. mal. l. 1. §. 1.
• c 1.72

  ff. de leg. l. contra legem.
• d 1.73

  l. si sponsus in pr. ff. de do∣na. inter virum et vxor.
• e 1.74

  Io. in §. pe∣nult. Insti. de ••dop.
• * 1.75

  3. The same difference the common Law obserueth.
• f 1.76

  23. q. 1. noli existimare C. de pac. l. cum proponas in glo. Accur.
• g 1.77

  23. q. 4. qui peccat.
• * 1.78

  4. Dolus malus punishable at the common Law by an ac∣tion vpon the case, or a writ of Deceit.
• h 1.79

  5. 5. E. 3. Quare impe∣dit 37. 20. H. 6. 20. Fitzh. nat. bro. 96. A.
• i 1.80

  7. H. 6. 45.
• k 1.81

  19. H. 6. 44. 58. 34. H. 6. 19. Fitzh. Nat. be. 96. B.
• l 1.82

  9. E. 4. 34.
• m 1.83

  11. H. 6. 34.
• n 1.84

  Fitzh. Nat. bre. 97. C.
• o 1.85

  35. H. 6. 44. 18. E. 4. 11. 33. H. 6. 43. 41. E. 3. 2. 43. E. 3. 31. 50 E. 3. 18.
• p 1.86

  5. E. 4. 49.
• q 1.87

  20. E. 3. Dis∣ceit 5. 29. E. 3. 54. 48. E. 3. 59. 19. E. 2. Disceit 56. 19. E. 3. Disceit 3.
• r 1.88

  20. H. 6. 36. 16. E. 4. 9. Fitzh. Nat. br. 98. F.
• s 1.89

  3. H. 7. 14. 2. H 7. 11.
• t 1.90

  20. H. 6. 36.
• u 1.91

  13. H. 4. 1.
• uu 1.92

  8. H. 6. 5. per Rolfe. 15. E. 3. Dis∣ceit 43. 18. R. 2. Dis∣ceit 50. Fitzh. Nat. bre. 98. Q.
• a 1.93

  1. Ass. p. 16.
• b 1.94

  8. E. 3. Dis∣ceit 7.
• * 1.95

  7. Diuision.
• * 1.96

  1. Contemp∣tuous speeches are not punish∣able by the Ci∣uill Law.
• c 1.97

  Liui. lib. 45.
• * 1.98

  2. Oppropri∣ous speeches which proceed of malice are punished.
• d 1.99

  D. Augusti. lib. 2. de ciuit. dei c. 12.
• e 1.100

  D. Augusti. lib. de ciuit. dei 2. c. 9. Cicer. lib. 4. de rep.
• * 1.101

  3. It is obie∣cted that the Graecians did tollerate sar∣casmicall spee∣ches against wicked men.
• f 1.102

  D. August. ibidem c. 9.
• g 1.103

  Aristoph. in Equit.
• h 1.104

  Aristoph. in Acharnens.
• i 1.105

  Ludouic. Vi. in comment. ad lib. 2. de ciu. de. c 9.
• * 1.106

  4. Aristopha∣nes is condem∣ned for his bit∣ter detractions.
• k 1.107

  Plat. lib. 2. de rep.
• l 1.108

  Cicer. lib. 4. de rep.
• m 1.109

  D. August. d. li. 2. c. 9.
• * 1.110

  5 The deuisors and publishers of libels pu∣nishable by the ciuill law. 6 The canon law is seuere a∣gainst such.
• n 1.111

  ff. de iniur••••. lex torm. ent. §. si quis libe∣rum.
• o 1.112

  Azo. in sum. C. de iniuri.
• p 1.113

  c. 1. de ma∣ledi. 6.
• q 1.114

  21. H. 6. 28.
• * 1.115

  7 Reprooach∣full speeches punishable at the common law by an ac∣tion vpon the case.
• r 1.116

  21. E. 4. 5.
• s 1.117

  27. H. 8. 22.
• t 1.118

  28. H. 8. Br. Acti. sur le case. 3. 30. H. 8. Br. Acti. sur le case. 104.
• u 1.119

  4. E. 6. Br. Acti. sur le case. 112.
• x 1.120

  2. E. 4. 5.
• y 1.121

  25. Eliz. Ba∣••isters case.