Plaintiffe It was moved by Hobart Atturney Generâ—ll that the words were not actionable for this reason amongst others all ruled against him â— because that the words had the use of her Body were incertain and of a double intendmenâ— and therfore should bee taken in the best sence to have the use of her body as a Tailor in measuring or a Phisitian in giving Phisick or the like and not in any worse â—ence But by Popham chiefe Iustice the words are actionable when words are spoken that may have a double intent or meaning they shall bee expounded according to common intent for otherwise he which intends to slander another may speak slanderous words which by common intendment shaâ—l be expounded a slander and yet no Action lie And here the words hath had the use of her body at his pleasure shall not be intended in any lawfull manner but licentiously and dishonestly for this is the common intent with whom all the other Justices agreed Thirdly where the words are doubtful in sence or meaning there likewise they will not be actioâ—able To say that a man smells of a murder lately committed will not beare an Action because the words are of a dubious sence and intendment Bradshaw brought an Action against VValker for these words thou art a filching fellow and dâ—ddest â—â—lch from VVilliam Parson a 100. l. adjudged that the words were not actionable because that they are of incertaine sence and meaning So to call one Harlot will not beare an action And upon this ground I conceive as I have said before that to call a Woman Hagge will not be Actionable So to say of a man that he is a Healer of Felons or that he strained a Mare as the cases are before put will not be actinable because of their doubtfull sence and meaning without the words be â— spoken to such who knows the meaning and intendment of them Fourthly where the words themselves are incertaine or the persons of whom they are spoken in such case they will not be Actionable Aâ—d first for the incertainty of the words that is when the scandall is not certaine and apparent in the words themselves Note Reader that all the cases put before upon the double or indifferent meaning of words are apt to this purpose As those thou hast stollen my Apples or my Corne or so many load of my Furres or a Tree or the like the words in these cases are not Actionable because the scandall is not apparent and certaine by the words for in every of these cases â—for ought appeares by the words the thing said to be stollen might be growing and then it is a Trespasse only and no felony and to charge a man with a Trespasse will not be actionable But if the words were thou hast stollen my Apples out of my Loft my Corne out of my Barne or my Fuâ—z or Wood out of my Yeard in such case the words would be actionable because the scandall is apparent for that it is evident by the words they were not growing Edward Miles brought an Action against Francis Iacob for these words thou hast poysoned Smith c. upon a Writ of Error in the Chequer Chamber it was adjudged that the Action would not lie because it did not appeare by the words that it was done wittingly Gibs and Ienkins case to say of a man that he boare away money or the like will not be Actionable A. said of B. that he tooke away money from him with a strong hand for which B. brought an Action adjudged that it would not lie Bramstan chiefâ— Iustice in the argueing of Hawes Case Mich. 1â— of this King in the Kings Bench remembred this case he did assault me and tooke away my purse from me and hee said that it was adjudged that the words were not Actionable The reason of these cases is because that for ought appeares by the words which are of them selves uncertaine these might be Trespasses only and no Felony Againe where the person scandalized is uncertaine no Action will lie If one say without any precedent communication of any person incertaine that one of the Servants of B. he having divers is a notorious Felon or Traytor c. here fore the incertainety of the person no action lyes neither can it be made good by an innuendo So if one say generally I know one neere about B. that is a notorious theefe or the like no action will lie for the same reason So as it is in Fleetwoods case in Hobarts Reports if a man say lookeing upon three persons one of these murdered a man no action will lie for these words by reason of the incertainety of the person neither can an innuendo helpe the incertainety and note Reader that these cases are not like Wisemans Case Wiseman of Grayes-Inne brought an Action against Wiseman of Lincollins-Inne his Brother for these words my Brother meaning the plaintiffe is perjured and I will justifie it upon not guilty pleaded it was found for the Plaintiffe and it was moved in arrest of judgement that the words were not certaine enough to ground an Action upon because the Plaintiffe might have more Brothers and it doth not appeare of which of them the words were spoaken but it was resolved that the action would well lie because it is alledged that they were spoken of the Plaintiffe and the Jury have found accordingly and here Tanfield Iustice tooke this difference where the words themselves are incertaine as to say one of my Brothers is perjured there they can never be made good by any averrement but where the words are certaine in themselves so that it may appeare that the Speaker intended a person certaine there they may bee made certaine by such a Declaration and the finding of the Iury. And it was said that if it were true that there were divers Brothers the Defendant should have pleaded it and then issue should have beene taken whether the words were spoken of the Plaintiffe or no. Nor are the former cases like a case which I cited before Mich. 2. Iac. where an action was brought for these words Thou diddest kill a Woman great with Childe innuend Iocosam Vxorem cujusdam R. S. defunct where it was ruled that though the Woman were utterly incertaine yet because the Offence and the party intended to commit it were certaine the Action would well lie Foxcroft brought an Action against Lacy and declared that a communication was moved betweene Iohn VValter and Richard Guyn Esquiers concerning a certaine Suit wherein the Plaintiffe and certaine others were Defendants and that the Defendant Lacy upon the said communication in their presence spake these words these Defendants meaning the Plaintiffe and the others are those that helped to murder Henry Farrar meaning one Hen. Farrer deceased who was murdered by one T. Guldfield who was hangd for it adjudged the words were actionable and that
beâ— onely against a penall law for the Statute of 1. of the Queen cap. 2. gives a penalty only for speaking against the Booke of Common Prayer but in default of payment thereof imprisonment And hee held that all scandalous words which if they were true would make a man lyable either to a pecuniary or a corporal punishment would beare an action But Mallet Iustice and Bramston Chiefe Iustice were of a contrary judgment and their reason was because that if this should be law it would be a great occasion to increase and multiply actions for words which the Law labours to suppresse as much as may be for then all words spoken of any man which if they were true would subject him to a penalty either by the Common or the Statute Law would beare an action as to say of a man that hee hath erected a Cottage or committed a Ryot or the like would be actionable which the Law will not suffer for the reason aforesaid and judgment was given accordingly Mallet Justice in the arguing of this case said that there was an action then pending in the Common-Pleas for calling of a man Recusant and hee said that his opinion was the action was not maintainable I never heard what became of that case but I conceive the Law to bee with Justice Mallet for though there bee many penalties and forfeitures provided by Statutes against Recusants yet no corporall punishment is given by any of them no not after conviction Thorneton brought an action against Iobson and layed that he was a Carrier and of good same and that the defendant said of him that hee was a common Barretor In this case the booke sayes that the Court was of opinion that if these words were spoken of a Justice of Peace or publike Officer or of an Attorney or the like that they would beare an action by which it is evident the Court did incline against the action in this case In an action upon the case for words the words were I am sorry for thy Wife and children thou art a common Barretor and I will indict thee for it aâ— the next Assizes c. adjudged the words were not actionable and by Yelverton Justice the action will not lye for saying that hee is a Barretor no more then for saying that he is a Riotor a peace breaker or the like and an action will not lye for saying that a man is a Rogue To say of an Attorney that hee is a Champertor will beare an action But I conceive upon the case aforesaid that to say of one who is no Attorney Justice of Peace nor other publike Officer that he is a Champertor or a common maintainer of suites will not be actionable nor is it actionable in case of the Atorney to say that he is a common maintainer of suites The reason of these cases may bee because that though any man may bee indicted for being a common Barretor Champertor or maintainer of suites and thereupon fined and imprisoned yet the punishment is only the Fine and the imprisonment as a consequent or incident thereunto And as it is said before in Hawes case if an action should lye in these cases then in all cases where a man shall charge a man with a crime or offence for which a man might be indicted and fined an action would lye which would occasion multitudes of suites of this nature that the law labours so much to suppresse And now I have shewn you what words which touch or concerne a man in member or any corporell punishment will beare an action I shall in the next place shew you what words in such case will not be actionable and that may be in these cases either by reason of the doubtfull or indifferent meaning of them or of the incertainty of the words themselves or of the persons of whom they are spoken or of the subsequent qualification of them or upon the other grounds and reasons which I have layd downe before For we must know that I may speak once for all that all those grounds which are before set downe whâ—re words shall not be actionable which touch or concerne a mans life will agree with all actions for words whatsoever whether that the words touch or concerne a man in corporall punishment as before or in his Office or place of trust or in his calling or function by which he gaines his living or the like as is manifested likewise in part before and shall bee more fully hereafter but to the point what words in this case wil not be actionable Box and Barnabies case cited before to say of an Attorny that he is a Champertor will beare an action But to say that he is a common maintainer of suites will not bâ—are an action for there is maintainance lawfull and unlawfull an Attorney may and ought to maintaine his Clyents cause and an Attorney may well bee said a common maintainer because he is common to as many as will retaine him thus you see words of a double intendment shall be taken best for the Speaker for the words in this case shall not bee intended of any unlawfull maintenance but of a lawfull maintaining of his Clyents causes Stanhope brought an action for these words Master Stanhope hath but one Mannor and that hee hath gotten by swearing and forswearing adjudged the words were not actionable for this reason amongst others because that for ought appeares hee might bee forsworne in ordinary communication and not in any juditiall proceeding which is not punishable by the Law and where the words are of an indifferent meaning the Law will as is said before take them the best for the Speaker Smith brought an action for these words Thou art forsworne and hast taken a false oath at Hereford Assizes by the opinion of Iones and Bartley Iustices the other Justices absent the action will not lie because that hee might be forsworne in ordinary communication otherwise if hee had said that he had taken a false Oath in the Assises for there it shall be intended that he forsworne himselfe in a juditiall proceeding In a case that I have cited before which was Mich. 41. 42. of the Queene in the Common Pleas this case was remembred by Williâ—ms thou art c. thou wert forsworne in the Kings Bench he said that in this case the Plaintiffe could have no judgement because of the double intendment of the words for they may bee taken that he was forsworne either in the Court or the Prison and the best shall be taken for the Speaker viz. that he was forsworne in the Prison Weaver brought an Action against Cariden for these words he is detected for perjury in the Starchamber adjudged that the Action would not lie because that an honest man may be detected but not convicted and every one who hath a Bill of perjury exhibited there against him is detected here the words do not positively affirme him to be
perjured and therefore not Actionable Thomas brought an Action against Axworth for these words this is Iohn Thomas his writing he hath forged this VVarrant adjudged the Action would not lie Harvy brought an Action against Duckin for saying that the Plaintiffe had forged a Writing adjudged that the words were not Actionable the reason of these cases is because of the incertainty of the words VVarrant and Writing and as I have given you the rule before the scandall must bee certaine and apparent in the words themselves otherwise they will not be Actionable By Tanfield Iustice in Wisemans case cited before if a man say that one of his Brothers is perjured no Action will lie because of the incertainty In the case which I put you before moved by Williams Mich. 41. 42. of the Queene in the Common Pleas this case was remembred by Walmseley Iustice one of you forged a Sub-pâ—na out of the Chancery innuendo the Plaintiffe he saith that judgement was stayed in this case because he which is greeved ought to be certainly defamed and the innuendo cannot make the words more certaine here likewise you have examples that where the person is incertaine that is scandalised no Action will lie Powell brought an Action against Winde for these words I have matter enough against him for Mr. Harley hath found Porgery and can prove it against him Resolved the words were not Actionable because they were too generall and utterly incertaine Britteridges case cited before Britteridge is a perjured old knave and that is to be proved by a stake parting the land of H. Martin and Master Wright adjudged the words were not actionble because of the subsequent words which extenuate the former and explaine his intent that he did not intend any juditiall perjury and because that it is impossible that a Stake should prove him perjured here you have words that are not Actionable by reason of the qualification of the subsequent words thus you may see that the grounds formerly laid downe may serve as a Touchstone for all cases of scandalous words The third part of that rule or ground which I have laid downe before and which I am now to handle is this That scandalous words spoaken of a man which touch or concerne a man in his Office or Place of Trust will beare an action Skinner a Manchant of London said of Manwood chiefe Baron that hee was a corrupt Judge adjudged the words were actionable Stucley a Justice of Peace brought an Action for these words Mr. Stucley covereth and hideth Felonies and is not worthy to be a Iustice of Peace adjudged the Action would lie because it is against his Oath and the Office of a Iustice of Peace and good cause to put him out of Commission and for this he may be indicted and fined Pridham and Tuckers case to say of a Constable that he is a concealer of Fellons adjudged actionable Stafford Iustice of Peace brought an Action against Poler for these words William Web being Arrested as accessory for stealing his own Goods Master Stafford knowing thereof discharged the said VVeb by and agreement of 3. l. 10 which Master Stafford was party whereof 30. s. was to be paid to Master Stafford and was paid to his man by his appointment upon a VVrit of Error brought in the Chequer Chamber it was holden the words were Actionable Cotton Iustice of Peace brought an action against Morgaâ— for these words Hee hath received money of a Theefe that was apprehended and brought before him for stealing of certaine sheep to let him escape and to keepe him from the Goale adjudged the Action would lie Morris Gilbert Iustice of Peace brought an Action against Adams for these words Mr. Gilbert hath done me wrong in returning the Recognizance of Podger in 20. l. where it was taken in tenne and the suerties in 10. l. a peece by the whole Court the words are Actionable If a man say of a Iustice of Peace that he is a common Barret or Champertor or maintainer of Suites the words are Actionable Carre brought an Action against Rande for words and declared that hee was Steward to divers great Lords of their Court Barrons and of the Leetes with in their Mannots and that he was Steward of one A. of his Court Barron and of the Leete within his Mannor the Defendant of this not ignorant said these words Mr. Carre hath put a presentment into the Iuries verdict against me of 3s 4d for sueing of Peter VVest forth of the Court contrary c. without the consent of the Iury by the whole Court the Action lies because he doth accuse him of falsity in his Office but by the better opinion if he had not alledged in his Count that he was Steward the Action would not have layen Sir George Moore brought an Action against Foster for scandalous words and sets forth that he was a Iustice of Peace in the County of Surrey and that there was a Suit depending in Chancery betwixt the Defendant and one Richard King and that a Commission was awarded to Sir George Moore and others to examine Witnesses in the said cause and also to heare and determine it and that he with the others dealt in the execution of the said Commission and that the Defendant said of the Plaintiffe these words Sir George is a corrupt man and hath taken bribes of Richard King and at another time King hath set Sir George Moore on horseback with bribes where by to defrande equity Iustice and good conscience resolved that the words were Actionable because that though the Plaintiffe bee neither Officer â—or Iudge nor is sworne yet because it is a place of great Trust reposed by the King in the Plaintiffe and for that he is punishable for bribary or corruption in the execution of the said Commission in the Court out of which it issues not deserving if the words were true to be imployed in the like Commission or any other for these causes the words were held to be Actionable and Popham Chiefe Iustice in this case made no difference where the Commission issues to one and where to many nor where they are nominated by the Court where by the party for in the first case he said the confidence of the Court is all one and in the last though that they be nominated to the Court by the party yet they shal not be Commissioners without the approbation of the Court. Sir Richard Greenefield brought an Action against Furnace for these words thou innuendo Captaine Greenfield hast received money of the King to buy new Saddles and hast cousened the King and bought old Saddles for the Troopers It was objected that the Action would not lie and it was likened to these cases which I will cite because they are worth the knowing 8. Car. the Major of Tivertons case one said of him that the Major had cousened all his Brethren c.
you may see that where a man is falsly and malitiously procured to be indicted if he be acquitted a Writ of conspiracy or an action upon the case in nature of a conspiracy as the case shall be will lie and though he be not acquitted yet an action upon the case will lie for the slander and vexation Yet in all these cases there is a prosecution in course of justice but because this prosecution was malitious tending much to the slander and scandall of the plantiffe therefore the action lies But here I would have you observe Reader that the plaintiffe ought in these actions to declare that the defendant falso malitiose procured him to bee indicted because the malice is the ground of the Action and if upon the Tryall it doe appeare that there was Probabilis causa for the indictment and prosecution therevpon the Action will not lie Thus much shall suffice to shewe you in what case a legall prosecution in course of Iustice shall Subject a man to an Action in what not In the next place I shall shew you which I cannot omit For what scandall of a Noble man or great Officer c. an action de scandalis Magnatum will lie upon the Statutes of 3. E. 1. cap. 33. or 2. R. 2. cap. 5. For a Suit or other legall prosecution in course of justice against a Noble man or great Officer no Action lies as is adjudged in the case of Forger of false deeds cited before so that as to this there is no difference betwixt a Noble man and another person but what scandalous words may be Actionable in case of a Nobleman for which an action de scandalâ—â— Magnatum will lie and what not may bee very considerable I shall cite only one case to this purpose which will be as a light to all cases of this nature and therefore give me leave to give it you wholly without dissection or abbreviation as I find reported The Earle of Lincolne brought an Action de scandalis Magnatum upon the Statute of Westm. 1. cap. 33. against one Iohn Righton and recited the Statute and said that the Defendant said of him my Lord is a base Earle and a paltry Lord and keepes none but Rogues and raseals like himselfe Vpon not guilty pleaded it was found for the Plaintiffe and it was moved in arrest of judgement that the words were not actionable for though they were unseemely immodest yet they were not such defamaâ—ory words upon which to ground an Action for though they were true the Earle could not incurre any prejudice by them Crook cont this action de scandalis magnatum is not to be compaâ—ed to other actions upon the case for words spoken of any other persons for this is inhibited by Act of Parliament and if the words bee such that any diâ—cord may arise by them betwixt the King and his Subjects or his Nobles or any slander to them to bring them into contempt this action lies and I have seene a Record of a case in 4. H. 8. of such an action brought by the Duke of Buckingham for such words which might cause him to be in contempt which were holden sufficient upon which to ground an action Hobart Attorney Generall for the Plaintiffe also who said that though an Action doth not lie for words betwixt common persons but in case where they are touched in life or Member or much in reputation yet if one speake any scandalous words of an Earle or other Peere of the Realme which impeaches their credit because that they are of the great Counsell of the King and State and a principall part of the body politique so that their discredit or disparagement is a disparagement to all the Realme therefore every thing which trenches only to their discredit is a cause of action and this was the cause of the judgement in the case of the Ducke of Buckingham in 4 H. 8. Feâ—ner Iust. it seemes to me that the action lies for they are words of great slander to the Earle But where the Statute of Marleb is that Lord shall not distraine the Beasts of the subject of the King and carry them into Castles so that they cannot be replevied and if one say that a Lord hath so done yet an Action will not lie Tanfield Iustice concesset but he saith if one say of a Lord that he used to distraine and put the Beasts in his Castle ut supra an action lies for one act against Law wil not bring him into contempt but if it be usuall for him so to do this is a cause to make him contemptible In the case of the Earle of Arundell who had made Commissions to his Servants to make Leases and improve Rents one said of him My Lord hath sent his Commissioners to spoyle the Country it was adjudged that this action would lie and yet in case of a common person it would not lie without doubt yet because that it may cause the Lord to be in contempt with the King and the People this action lay and so it seemes to me that it will here Williams Iustice to the same purpose and that the Earle is conservator Pacis at common Law and Comes Regis and if any one speake of them any thing which may make them to bee contemned of the King or his people an action lies upon this STATVTE Yelverton Iustice was absent judgement was respited to the intent that the Defendant by his submission might give satisfaction to the Earle Here you see the difference between words actionable in case of a Noble man and of a common person For words only of descredit to a Nobleman and which may bring him to contempt with the King or his People are sufficient to maintaine an action de scandalit magnatum otherwise in case of a common person I have now Reader quite finished my labour of shewing you for what scandals an action will lie for what not But before I conclude there are two things yet in all Actions for words worthy the knowing which I cannot omit The first is to declare unto you the use or office of an innuendo And the next is to shew you where an Averrement will be necessary and where not For the first you may take this for a certaine and infallible rule That an innuendo shall never make words actionable which of themselves are not Actionable And therefore if words be of a double or indifferent meaning and in the one sence actionable in the other not in such case an innuendo shall never make them actionable As if a man bring an Action against another for saying that he hath the Pox innuendo the French Pox or for saying that the Plaintiffe burnt his Barne innuendo a Barne with Corne. In these cases the innuendo where the words are of an indifferent meaning and may be taken so as not to be Actionable shall not straine them to such an intendement as to make them
words spoken which such a mans life which are by way of interrogation or by way of hearesay or relatiâ—n or lastly by way of negation only and yet will beare an Action It was said at the Kings Bench Barre which I heard and observed that it had bin adjudged in this Court in one Appletons case that where a man said to another where is my Peece thou stoâ—lest from me that these words were Actionable And Iones Iustice then said that he remembred this case to be adjudged A. said that B. told him that C. stole a Horse but he did not beleeve him that these words with an averrement that B. did not say any such thing to A. were actionable Agreeing with this case is the Lady Morrisons case Widdow who brought an action for words against VVilliam Câ—de Esquier and declares that she was of good fame c. and that Henry Earle of Kent was in speech and communication with her concerning Marriage the Defendant preâ—â—issorum non ignarus said these words Arsoot hath reported that he hath had the use of the Lady Morrisons body at his pleasure ubi revera Arscot did never report it and alledges that the Earle of Kent upon the hearing of these words surceased his suit by which she lost her advancement c. adjudged that the words were Actionable though spoken upon the report of another for otherwise a man might malitiously raise slanderous Reports of another and should never bee punished for it But in this case Tanfield Iustice said that if it had beene expressely alledged that in truth it was so reported by Arscot then an action would not lie against Cade for saying that Arscot reported it because it is true that he did so And Bartley Iustice said that an action had bin brought for these words You are no Theefe In which there was an averrement which implied an affirmative and agreed to be Actionable and Appletons case was then agreed for Law A. said to Is. hast thou beene at London to change the money thou stollest from me In this case it was objected that these words were not actionable because that they are spoken onely by way of interrogation and are no direct affirmative But Iones and Barily Iustices the others being absent both said that the words were actionable for the first words Hast thou been at London c. are the only words of interrogation and the subsequent words viz. The mony thou stollest from mee is a positive affirmation and Baâ—tley Iust. then said that it had beene oftentimes adjudged that words of interrogation should be taken as a direct affirmation which Iones Just. also agreed and further said that this case had bin adjudged One said to another I dreamt this night that you stole a horse these words were adjudged actionable And he said that if these and the like words should not beare an action a man might bee as abusive as he pleased and by such subtill words as these always avoyd an action And how I will put you a case or two where words which imply an affirmative shall be actionable One said of another he would prove he had stollen his books In this case the opinion of the Court was that the words were actionable because they imply an affirmative and are as much as if hee had said that he had stollen his Books And so if I will say of another that I will bring him before a Justice of Peace for I will prove that he hath stollen c. though the first words are not actionable yet the last are Whitaerâ—s brought an action against Lavington for these words I will prove that Whytacre is for sworne and that ten men can justifie and I could prove him perjured if I would adjudged that the words were actionable for that it is a great slander to be reported that it is in the power of any one to prove one perjured and it is as a direct affirmance It will be proved by many vehement presumptions that Welby was a plotter and contriver of Thomas Powels death because hee would not sell his Land to the said Welby adjudged the words were actionable And now I have shewne you the affirmative part where words which touch or concerne a mans life shall bee actionable I shall now shew unto you the negative part where words in such case shall not be actionable Words that touch or concern a mans life may not be actionable in these cases Where they are too generall or not positively affirmative or of a double or indifferent meaning or doubtefull in sence or for that they are incertaine in themselves or the person of whom they are spoken or else by reason of the subsequent qualification of the words or because they doe not import an Act but an intent or inclination only to it or for that they are impossible or lastly because it doth appeare that the speaking of them could be no dammage to the plaâ—ntiffe in all these cases the words will not be actionable And first words that are too generall or not positively affirmative will not bee actionable To say of a man that he deserves to be hanged adjudged not actionable because they are too generall for that hee doth not shew any thing that hee hath done to deserve it and bâ— Yelverton Iustice hee may deserve it for unnaturall using of his Parents and the like where he shall not bee punished by the Law Cooke lib. 4. f. 15. b. Yeomans and Hexts case for my ground in Allerton Hext seekes my life adjudged not actionable because seeking his life is to generall for which there is no punishment So if I say of another that it is in my power to hang him adjudged not actionable in Prâ—dham and Tuckers case cited before because the words are too generall Iames Steward brought an action against Bâ—shop for saying of him that hee waâ— in Warwicke Gaoâ—e for stealing of a Mare and other Beasts and adjudged that the words would not beare an action because they doe not affirme directly that he did steale them as if he had said that he stole them and was in Goale for it but onely make report of his imprisonment and the supposed reason of it and it may very well be that the Warrant of Mittimus was for stealing expressely as is the common forme of making of the Kalender of the Prisoners for the Justices of Assize and the like Georg Blaâ—d brought an action against A. B. for saying that he was Indicted for Felony at such a Sessions it was said that it was questioned whether an action would lie because an Indictment is but a surmise But I conceave that it is without question that no action wilâ— lie in such case because that to say a man was indicted of Felony is no more then to say hee was impeached or accused for Felony which an honest man may bee and is no positive affirmation
appeare that he did it wittingly Stanhop brought an action against Blith for these words Mr. Stanhop hath but one Mannor and that he hath got by swearing and forswearing resolved that the words were not actionable for this reason amongst others for that hee might recover or obtaine a Mannor by swearing and forswaring and yet he not procuring or assenting to it And now I am come to the second part or clause of that generall rule layed downe before where I am to shew you That scandalous words which touch or concerne a man in his Liberty will beare an Action By the Bookes in the Margent the Law is plaine that if I publish and claime B. to be my Villeine that in such case no action will lie because I my selfe claime an interest in him and the Law will not in such case punish a man for then no man durst claime his owne for feare of an action But upon these Bookes I conceive the Law is evident that if a man had published another to be the Villein of I. N. that in such case an action would have layne because these words tend to the inslaving of him and his posterity and to the utter deprivation of his Libertys which the Law so much favours for as it is well knowne he that was a Villaine he was subject both in person and estate to the will of the Lord soâ— that he might seize all his Estate reall and personall and vassalise his person at pleasure so that he did not kil or maime him But I conceive that at this day an action in such case will not lie because that time and inconvenience hath quite abolished and worne out this Bondage our Books have little upon this ground therefore I shall thus passe it over Scandalous words which touch or concerne a man in Member or in any corporall punishment will beare an Action A man brought an Action for calling him Theefe and that he had stollen 2. Sheepe from B. the Defendant justifies the calling of him Theefe for that the Plaintiffe did steale the Sheepe and it was good by the whole Court without expressing the value of the Sheepe for if they be not worth twelve pence so that it is but petty Larceny and not capitall yet it is Fellony in its nature By this it is evident that to say a man hath stollen six-pence from B. will beare an Action though it be but petty Larceny because the Offender by Law may be imprisoned and whipt for it If a man say of another that he is perjured or that he hath forsworne himselfe in such a Court an action will lie for these words For by the Statute of 5. Eliz. cap. 9. A man convict of perjury forfeits 20. l. and is to have six Moneths imprisonment and his testimony taken away while that conviction stands and if hee have not Goods and Chattels to the value of 20. l. then he is to be put in the Pillary and his Eares to be nailed so that you see here is an immediate corporall punishment given by this Statute which is imprisonment And if a man say of another that hee can prove him perjured an action will lie though it be but an implied affirmative Hearle against Tresham thou hast taken a false Oath in the Session of c. resolved the words were actionable for the Court shall intend this to bee a Court of Record as Records of which they ought to take conusance Adams against Flemming he hath forsworne himselfe before the Counsell of the Marches of VVales in the suit I had against him there for perjury adjudged actionable In Lelicke and VVrinskemores case Mich. 7. of King Iames in the Kings Bench one Cossimans Case was cited which was thus thou wast forsworne in such a Bishops Court it was said that these words were adjudged actionable so it was agreed by the Court. It was moved by Williams in Arrest of Judgement for these words thou art a forsworne knave thou wast forsworne in Ilcon Court innuendo the Court Leete there holden it was agreed that the innuendo should not stretch the words further then they were spoaken And VVilliams put this case which was in the Kings Bench thou art a forsworne man thou wert forsworne in White Church Court which was affirmed by all the Serjeants to be adjudged not actionable Which case I conceive cannot bee Law because it is adjudged as I have put the case before that if one say of another that he hath forsworne himselfe in such a Court that the words are Actionable and in this case judgement was given accordingly If a man say of a Woman that shee hath a Bastard an action wil lie for these words because that shee is punishable by the Statute of 18. of the Queen cap. 3. at the discretion of the Iustices who alwayes inflict a corporall punishment upon them as imprisonment whipping or the like Morgan and Rookes case Morgan said of the Wife of Rookes shee is a Bawde and keepes a Bawdy house adjudged that the words were Actionable upon a writ of Error brought by Morgan to reverse the judgement given in the Common Pleas and judgement was affirmed Chambers and his Wife against Ryly for the same words Chambers his wife is a Bawd and keepes a Bawdy house Adjuded the words were Actonable and in this case it was agreed that to say of a Woman shee is a Bawde will not beare an Action because shee is not punishable by the Law for it but to say of her that shee keepes a Bawdy house will be Actionable for that shee is punishable by the Law for keeping a house of Bawdry A Prohibition was prayed because that Elizabeth Thorne had Libelled in Court Christian against Turnam for defamation for these words thou art a Bawde and dost keepe a bawdy house and it was granted by the whole Court because that an Action lies at Common Law for these words The reason why an Action lies in these cases is because the party may be indicted for keeping of a Bawdy house and if shee be thereupon convicted shee shall be imprisoned and most ignominiously Carted which are corporall punishments If a man say of another that hee hath forged a Leafe Obligation Release or Accquitrance or the like an Action will lie for these words Because that by the Statute of 5. of the Queene cap. 14. there are great and grievous corporall punishments inflicted upon such offenders if it bee to disturbe a Title the punishment is the greater but if onely in the cases aforesaid the Offender is to be put in the Pillory one of his Eares to be cut off and to bee Imprisoned for a yeare Hawes brought an Action for these words my Cousen Hawes hath spoken against the Booke of Common Prayer and said it is not fit to bee read in the Church Heath Iustice was of opinion that the words were actionable though the offence
adjudged not Actionable 9. Iac. in the Kings Bench the Overseer of the poore hath cousened the poore of all their bread this was likewise said to be adjudged not Actionable but I doe some what doubt of this case because the words doe scandall the Plaintiffe in his office of Overseer but to this it may be said that this is an Office of burden and trouble and not of profit 26. Of the Queene in the Kings Bench Kerby and VValters case thou art a false knave and hast cousened my two Kinsmen adjudged the words were not Actionable 18. Of the Queene in the Kings Bench Serjeant Fenner hath cousened me and all my kindred adjudged the words would not beare an Action Out of which cases wee may by the way observe this for Law that if a man say of an other without any precedent communication of his Office place of Trust or profession that he is accusening or a cheating knaveâ— or that he hath cousened any man thus and thus that no Action will lie for such words generally spoken otherwise if they be spoken in reference to a mans Office place of trust or profession And in the principall case it was resolved by Heath Iustice and Bramston chiefe Iustice the other Iustices being absent that the Action would lie because the words did scandall him in his place of Trust and they said it was not materiall what imployment the Plaintiffe had under the King if by the speaking of these words he might be in danger of loosing his Trust or imployment Bray brought an Action against Hayne and declared that where he had beene Bayly to Sir VVilliam M. Kt. for three yeares last past of his Land in C. and had the selling of his Corne and Graine the Defendant said these words unto him thou art a cousening knave and thou hast cousened me in selling false measure in my Barley and the Country is bound to curse thee for selling with false measures and I will prove it c. adjudged the words were not Actionable for every falsehood charged upon a man in his private dealing will not be Actionable And in this case it doth not appeare that these words were spoken of any sale of Corn whilest he was in his Office of Bayliffe nor of his Masters Corne nor to the damage of his Master But it was agreed in this case that if he had beene a common Rider or Badger and had beene charged with selling false measure it would have borne an Action which is evident because it is a slander to him in his function by which he gaines his living And my Lord Hobart puts this case if a man saith he have a Bayliffe to whom he commits the buying and selling of his Corne and graine and gives him the greater wages in respect of that trust and imployment and charges him to have deceived him in his Office by buying and selling of false measure to his losse or damage this will beare an Action because this discredits him in his Office and may not only because to put him out of that service but to be refused of all others this case is evident Reader because the words doe charge him with selling with false measure whilst he was in his Office In the debate of Sir George Moore and Fosters case before cited these cases were put by VVilliams Iustice if one say of an Arbitrator that he hath done corruptly and hath taken bribes no Action will lie the reason may be because being chosen by the parties themselves and not being sworne such corruption is not puniâ—hable by Law nor can the countermaunding of his power be any damage to him But if a man say of a Wayer in a Market or Faire appointed to way betwixt the buyer and seller that he hath done corruptly and hath taken bribes to make false waite an Action lies for these words because hee is an Officer Miles Fleetwood Generall Receiver of the Court of Wardes for the King brought an Action against Curbey for these words Mr. Deceiver hath deceived and cousened the King and dealt falsâ—y with him adjudged the words were Actionable The like case where one said of an Auditor that he was a Frauditor was adjudged Actionable An Action was â—rought for calling of the Plaintiffe false Justice of Peace vil his similia I do conceve that thesewords are not Actionable because though they doe reâ—â—ect upon his Office yet they are too generall But the Booke saith that these words his similia were ordered to be expunged or drawne ouâ— of the Booke for the incertainty and well they might indeed for certainly if a man shall bring an Action against another and shall declare that the Defendant said of the Plaintiffe that hee was a Rogue and a Theese or words like these or to this effect the Action will not lie because the words upon the very face of the Declaration are utterly incertaine The Law affords very few Cases Reader where words shall not be actionable that scandall a man in his office or place of trust upon those grounds which I have formerly layd downe But note this that all those grounds as I have said before are as a touchstone for all Actions for words whatsoever and therefore if you meet with scandalous words which touch a man in his Office or place of trust examine them by those rules if they be too generall or not sâ—fficiently possitive or if of a double intendment or doubtfull in meaning or incertaine in themselves or the person of whom they are spoken or the like in such cases they will not be actionable and therefore those Rules ought especially to be observed The fourth part of that generall rule which I have laid downe before and which in course I must now speake of is this That words spoken of a man which scandall him in his profession or function by which he gaines his living will beare an Action Yardleys case there being a communication or discourse of him in his profession of Attorney one said that hee was a bribing knave Boxes case one said of him being an Attorney that he was a Champertor Byrchlyes case an Attorney there being speech of his dealing in his profession one said to him you are well knowne to be a corrupt man and to deale corruptly adjudged in all these cases that the words because they scandall a man in his profession by which he doth acquire his living were Actionable So by the opinion of the Court in Thornton and Iobsons case cited before to say of an Attorney that he is a common Barretor will beare an action Dawtry an Attorney in the Court of Ipswich brought an action against Miles for these words Dawtry is a knave and a cousening knave and hee did take Fees of both hands in a suit betweene me and Greene and by knavery suffered me to be condemned at Ipswich at Greens suit willfully being Attorney for me The only words
case will beate it and it is usuall so to doe in these cases for the increase of damages Bramston chiefe Iustice in the arguing of Hawes case which I remembred before tooke this for a Rule that if words did import a scandall of themselves by which damage might accrue in such case the words would beare an Action without alledgeing of a particular damage But now on the other side words which doe not touch or concerne a man in any of the cases aforesaid will not beare an Action without alledgeing of a particular damage Words spoken in scandall of a mans Title will not beare an Action without averring of a particular damage as appeares by the cases before cited upon that ground There are many words which are words of passion and choler only as to say of a man that he is forsworne Generally or that he is a villain or a rogue or a varlet or the like these words are not Actionable of themselves yet I doe conceive that in these cases an Action will lie with an Averrement of a particular damage by reason of the speaking of them There are other words which concerne matter meerely Spirituall and determinable in the Ecclesiasticall Court only as for calling of a man a Bastard a Heretique a Scismatique an Advoâ—vterer a Forniâ—atoâ— or for calling of a Woman a Whore or charging her witâ— any particular act of incontinency or the like yet in these cases with an averrement of a particular damage an Action will lie at the Common Law as it is adjudged in Anne Davies case cited before By Popham Chiefe Iustice if one say of a Woman that is an Inholder that she hath a great infectious disease by which she loses her guests an Action will lie this must bee taken with an averrement of that particular damage otherwise an Action will not lie unlesse the disease be such for which shee ought to separate her selfe or to be seperated by the Law from common society as I shall shew you hereafter Axe and Moods case cited before the Plaintiffe being a Dyer brought an Action for these words thou art not worth a Groate adjudged that the words were not Actionable because that many man in his beginning is not worth a Groat and yet hath good credit with the world But in this case it was agreed that if the Plaintiffe had averred specially that he was thereby damnified and had lost his credit so that none would trust him with such an averrement the Action would have layen In the case of the Foreman of a Shoomakers Shop cited before for these words it is no matter who hath him for he will cut him out of doores the Plaintiffe averred that the Common acceptation of these words inter Calâ—eareos is that he will begger his Master and make him run away and shewed a speciall damage by the speaking of these words and it was adjuged that the Action would â—ie which I conceive was only for the particular damage for to say of a Servant that he doth Cheaâ—e Cousen or defraud or that he will begger his Master or the like will not beare an Action without an averrement of a particular damage And in this case it was said by the Court that for some words an Action will lie without an averrement of any particular damage as for calling of a man Theefe Traytor or the like and some words will noâ— beare an Action without an averrement of a particular damage As if a man shall say of another that he kept his Wife basely and starved her these words of themselves will not beare an Action but if the party of whom they were spoken were to bee maried to another and by these words is hindered in such case with an averrement of the particular damage an Action will lie So likewise in the case of Dickes and Fenne which I also cited before where one said of the Plaintiffe being a Bâ—ewer that he would give a peck of Malte to his Mare and â—ead her to the water to drink and she should pisse as good Beere as the Plaintiffe brewed it was resolved that the words themselves were not Actionable because of the impossibility of them But it was agreed by the Court that if there had beene a speciall damage alledged as losse of Custome or the like the Action would have laien Hawes case cited likewise before one said of him that he had spoaken against the Booke of Common Prayer and said that it was not fit to bee read in the Church for which he brought his action and shewed how that by reason of the speaking of these words by the Defendant he was cited in to the Ecclesiasticall Court and had paid and expended severall summes c. adjudged that the words themselves were not Actionable because if they had beene true they charge him only with an offence against a penall Law which doth not inflict corporall pâ—nishment but for non payment of the penalty But it was resolved that for the particular damage the Action would lie and of this opinion were Heath and Mallet Iustices But Bramston Chiefe Iustice the other Justice being absent was of a contrary judgement and hee tooke this for a Rule that if the words did not import a scandall in themselves as Hee conceived they did not in this case in such case the averrement of a particular damage should not make them Actionable But with all due respect to the judgement of this learned Judge I doe conceive that the words are in themselves scandalous because that they do charge a Man with faction and opposition to established Law and settled Government But if they were not in themselves scandalous yet I conceive according to the judgement of those reverent Jâ—dges that for the dammage only the Action will lie for otherwise the Plaintiffe shall suffer through the default of the Defendant and be without remedy which I conceive the Law will not permit but I submit this to the judgement of the learned Reader Lastly words which charge a man with any dangerous infectious diseasâ— by reason of which he ought to seperate himselfe or to be seperated by the Law from the society of men will beare an Action If a man say of another that hee hath the French Pox an Action will lie Taylor brought an Action against Packins for these words thou art not worthy to come into any honest mans company thou art a Leaprous knave and a Leaper Adjudged that the words are Actionable because that it is cause of seperation by the Law of God and Man So by Tanfield Iustice to say that one is infected with the French Pox will beare an Action but to say that one hâ—th the falling Sicknesse is not Actionable except that it disables him in his profession as to say that a Lawyer hath the falling Sicknesse an Action lieth because that it disableth him for his businesse Vpon this ground I conceive to
which no Action will lie I have sufficiently proved the ground laid downe before and therefore I shal now proceed to the second thing which I have touched before very considerable in all Actions for words and that is Quo animo with what affection the words are spoken whether ex malitia or not for if it do appeare that they were not spoken out of malice they will not be actionable Ralph Brook York Harrauld brought an Action against Henry Mountague Knight Recorder of London for saying of the Plaintiffe that he had committed Felony The Defendant pâ—eaded how that he was a Counseller and earned in the Law and that he was retained of Counsell against the Plaintiffe at such a Tryall and set forth all the matter in certaine and that hee in giving evidence to the Jury spoake the words in the Count which words were pertinent to the matter in issue in this case it was resolved that the Action would not lie because that the words were not spoken out of malice for that they were spoken to the purpose and being to the purpose though the words were false no Action will lie against the Defendant As in an Appeale of Murder if the Counsell with the Plaintiffe saith that the Defendant committed the murder though it be not true yet he shall not he punished for it because that what he said was pertinent so that it cannot be taken to be spoken out of malice but only as of Counsell for the Plaintiffe But if that which he saith be impertinent in scandall of him against whom he speaks it as in Trespasse of battery to say that the Defendant is a Felon there an Action will lie for that they cannot be otherwise taken but to bee spoken out of malice And in this case it was further said that if a Counseller be informed of any matter of slander apt to be given in evidence and hee speakes it at other places and at another time then in evidence an Action lies for it for the same reason In confirmation of the former case there was this case put and agreed for Law which was the case of Parson Prit in Suffolke the case was thus In the Acts and Monuments of Mr. Fox there is a relation of one Greenwood of Suffolke who is there reported to have perjured himselfe before the Bishop of Norwich in the testifying against a Martyr in the time of Queene Mary and that afterwards by the judgement of God as an exemplary punishment for his great offence his bowels rotted out of his belly And the said Parson Prit being newly come to his benefice in Suffolke and not well knowing his Parishoners preaching against perjury cited this story for an example of the justice of God and it chanced that the same Greenwood of whom the story was written was in life and in the Church at that time and after for this slander brought an Action to which the Defendant pleaded not guilty c. and upon evidence all the matter appeared and by the rule of Anderson Justice of Assise he was acquitted because it did appeare the Defendant spoak the words without malice and this rule was approved by the Kings Bench in this case In the arguing of Sanderson and Rudds case which I remembred before these cases following were cited by Gotbolt Serjeant who was of Counsell with the Defendant and agreed by the Court for Law Iames and Rudlies case the Defendant spoake by way of advise to his friend telling him that the Plaintiffe was full of the French Pox and therefore advised him not to keepe him company adjudged he said that no Action would lie for these words of advise the reason is because that these words were not spoken out of any malice to the Plaintiffe but meerely cut of good will to his friend Norman and Simons case remembred before the Plaintiffe brought an Action for words and declared that they were spoaken falso malitiose the Jury find the words and that they were spoken falsâ— injuriose judgement was given that the Action would not lie because that they did not find the malice for if the words were not spoaken malitiously no Action will lie And therefore I conceive that if a man bring an Action for words and do not declare that the words were spoken malitiose as well as falso that the Action will not lie In the case of the Lady Morrison that I have cited before this case was put by Popham chiefe Iustice If one say in Counsell and good will to his friend that it is reported that he hath done such or such an ill Act and advises him to purge himselfe and avoid such occasion afterwards it se mes saith he that an Action will lie for such counsell but quaere saith the Reporter for it is without malice And truly for my part I conceive an Action will not lie for that reason but I submit it to the judgement of the Reader And now I have finished my labour of shewing you what words are Actionable in the Law and what not It will in the next place be very necessary to be knowne where a mans Suit or prosecution at Law shall subject a man to an Action and where not and here I shall lay downe this as a rule That for any Suit or other legall prosecution in course of Iustice if not out of malice and touching a mans life no action will Lie A Man brougâ—t a Writ of Forger of false deeds against a Lord pending which Writ the Lord for the slander of the said Forgery by the said Suit brought his Action de scandalis Magnatum the Defendant justifies the said flander by bringing of the said Writ by the better opinion there which is also agreed for Law in Bucklies case in my L. Cokes 4. Booke the justification was good for saith the Booke no punishment was ever appointed for a Suit in Law though that it were false and for vexation Cutler and Dixons case adjudged that if one exhibit Articles to a Justice of Peace against a certaine person containing divers great abuses and misdemeanours not only touching the Petitioners themselves but many others and all this to the intent that he should be bound to his good behaviour in this case the party abused shal not have for any matter contained in such Articles an Action upon the Case because that they have pursued the ordinary course of Justice in such case and if actions should be permitted in such cases those which have good cause of complaint will not dare to complaine for feare of infinit vexation Oâ—en Wood exhibited a Bill in the Starchamber against Sir Richardâ— Buckley and charged him with divers matters examinable in the same Court and further that he was a maintainer of Pirates and Murderers and a procurer of Murders and Pyracies which offences were not determinable in the said Court upon which Sir Richard Buckley brought an Action In this case it was adjudged
that so the said words not examinable in the said Court an action would lie because this could not be in course of Justice for that the Court hath not power or jurisdiction to do that which belonges to justice nor to punish the said offences c. Also by the Law no Murder or Pyracy can be punished upon any Bill exhibited in English but the offender ought to be indicted of it and upon this to have his tryall so that he that preferred this Bill hath not onely mistaken the proper Court but the manner and nature of prosecution so that it hath not any appearance of an ordinary Suit in course of justice But if a man bring an Appeale of murder returnable in the Common bench for this no action lies for though the Writ is not returnable before competent Judges which may doe justice yet it is in nature of a lawfull Suit namely by writ of appeale Scarlet brought an Action against Stiles for these words thou didst steale a Sack The Defendant pleaded that there was a Sack of a mans unknowne stolen and that the common fame was that the Plaintiffe had stolen it whereupon the Defendant did informe Thomas Kempe a Iustice of Peace that hee had stolen it and in complaining and informing the said Iustice thereof hee did there in the presence of Kempe and of the Plaintiffe say unto the Plaintiffe of him thou diddest steale c. whereupon the Plaintiffe demurred in Law There is nothing spoken to the case in the Booke but I conceive the Law will be somewhat strong for the Plaintiffe that the demurrer is good and that the Action notwithstanding the Defendants justification will well lie For though common fame as it is agreed in Câ—udington and Wilkins case be a sufficient warrant to arrest for felony though the same be not true as also to charge a man with felony as it is agreed in Bland and Masons case because these tend to the advancement of Iustice yet it doth not warrant any man to say he is a Felon or a Theefe or though common fame be such yet â—he party suspected may be innocent Nor doth it any way difference the case that the words were spoken before a Iustice of Peace because though common fame may as I have said warrant him to charge him with felony before a Iustice of Peace yet it cannot warrant him to call him felon A man brought an Action against another for caâ—ling of him Theefe The defendant pleaded that there was a Robbery done c. communis vox fama patriae was that the Plaintiffe was guilty of it and so justifies but the justification was held nought for common fame that a man is a Theefe wiâ—l nor justifie any man in the calling of him so But there it is agreed that it would defend a man in arresting and imprisoning another for it Cuddington and Wilkins case adjudged that to call a man a Theefe after a generall or speciall Pardon though the Defendant knew it not will beare an an Action but there it is agreed that to arrest a man for Felony after pardon if he knew it not may bee justifiable because it is a legall course and an Act of justice In Iustice Crooks case it was agreed by the Court that though it be lawful for a man to preferre a Bill in the Star-chamber against a Judge for corruption or any other for any grand misdemeanour because it is a proceeding in an ordinary course of justice Yet if the plaintiffe will publish the effect of his Bill in a Taverne or other place openly by this meanes to scandall the defendant this is punishable in another Court notwithstanding the Bill pending in the Star-Chamber because this tends meerely to scandall and not to a pursuing of the ordinary course of justice and so Iones Justice said it had bin adjudged Owen Wood and Buckleys case cited before doth in effect make good that which Justice Iones said the case was thus Owen Wood exhibited a Bill in the Star-Chamber against Sir Richard Buckley and charged him with very great misdemeanours afterwards Buckley brought an action against Owen Wood for publishing that the said Bill and matters in that contained were true and had judgment which was afterwards reversed in the Chequer Chamber because that the plaintiffe layed that the defendant published the Bill to be true without expressing the matters in particular conteyned in the Bill upon which the action was intended to bee founded so that those which heard only the said words that his Bill was true cannot without further saying know the clauses which were slanderous to the plaintiffe So that it is in this case plainely admitted that if hee had published the particular matters contained in the Bill and this had beene shewen by the plaintiffe there the action would have layen Note Reader I have inserted this clause in the rule before layd downe where the prosecution in course of justice is not out of malice and touching a mans life for this reason Because I doe conceave That in case where a man is scandaled in his reputation and his life in question by a malitions prosecution in course of justice that in such case an Action will lye If two falsly and malitiously conspire to indict another and after hee that is so indicted is acquitted a Writ of conspiracy lyes So if one only falsly and malitiously cause another to bee indicted who is therupon acquitted an action upon the case in nature of a conspiracy lyes against him for it and so it hath bin often adjudged I shall only remember one case in point Marsham brought an action against Pescod and declares how that he was of good fame and report and that the defendant intending to defame him falsâ— malitiose procured the plaintiffe to be indicted of Felony to be arrested and imprisoned quousque fuit acquietatus so that the alleaging of the acquittall was insufficient for that hee ought to have said that he was legitimo modo acquiâ—tatus the defendant pleaded not guilty and it was found for the plaintiffe and Richardson said in arrest of judgment that this action will not lie if it bee not alledged that hee was lawfully acquitted and said that F. N. B. had the like Writ and there it is alledged expresly that hee was lawfully acquitted and so it ought here Tanfield Iustice A conspiracy nor an action in nature of a conspiracy wil not lie if the plaintiffe bee not legittimo modo acquietatus but if one procure another to be indâ—cted arrested and imprisoned falso malitiose nee shall have an action upon the case for the slander and vexation though that hee be never acquitted and he said that the like action upon the case had beene adjudged to lie well though that the Plaintiffe were never acquitted and the Justices relied much upon the words falso malitiose and after judgement was given for the Plaintiffe Thus