Abridgment of Ecclesiastical Laws, Treatise · Chapter 37
CHAP. XXXVII.
Of Defamation.
1. What Defamation is; how many ways it may be; and where Cognizable.
2. Two ways of proſecution at the Civil Law in Cauſes of Defamation.
3. Prohibition for ſuing in the Eccleſiaſtical Court upon the words [Drunkard and Drunken Fellow.]
4. Several differences in reference to the Cognizance of the Temporal and Spiritual Courts in point of Slander.
5. Whether Action lies for calling one Quean?
6. Prohibition for ſuing in the Eccleſiaſtical Court for words tending to the obſtruction of a Marriage.
7. Matters determinable at Common Law, not Cognizable in the Eccleſiaſtical Courts.
8. Whether theſe words [Thou haſt taken a falſe Oath] be Actionable, and in what Court?
9. Whether Action lies at Common Law, for ſaying Thou art a Whore, &c.
10. Words of Slander to the …inderance of Marriage, are Actionable at the Common Law.
11. Defamatory words [Thou art a Bawd and keepeſt a Bawdy houſe] whether and where Actionable?
12. To ſay A. is a Cuckold, and that B. had layen with the Wife of A. is a Defamation ſuable in the Spiritual Court.
13. The Difference as to Cognizance between the words [Thou art a Bawd, and I will prove thee a Bawd] and the words [Thou keepeſt a Houſe of Bawdry.]
14. To ſay [Thou art a Drunkard or a Drunken Fellow] whether ſuch words are ſuable in the Eccleſiaſtical Court?
15. The words [he is a Cuckoldly knave] are ſuable not in the Temporal, but in the Eccleſiaſtical Court.
16. Whether the calling of Pimp, Common Pimp, be Actionable, and in what Court.
17. Welch J…de, expounded to be Welch whore, and cognizable in the Eccleſiaſtical Court.
18. Whether the words Quean or Baſe Quean be Actionable in the Eccleſiaſtical Court?
19. Action in that Court for Scandalizing a Parſon.
20. Whether Action lies in the Eccleſiaſtical Court, for ſaying of one that kept a Victualling houſe, that ſhe kept a Houſe of Bawdry.
21. Whether the words [Thou art a Pander] be Actionable at the Common Law?
22. Church-wardens preſentment of a Feme Covert upon a Common Report for Adultery, and Action of Defamation brought in the Eccleſiaſtical Court thereon.
23. Whether Action upon the Caſe for words lies againſt an Infant of Seventeen years of age?
24. Several other Caſes at the Common Law pertinent to this Subject of Defamation; what of them cognizable in the Eccleſiaſtical Court; and wherein the Prohibition lies or not.
(1.) DEFAMATION, properly ſo called, is the utterance of Reproachful Speeches, with intent of raiſing an ill Fame of the Party ſo reproached; Defamare, eſt in mala Fama ponere: Bart. l. turpia. ff. de Legat. 3. This extends it ſelf to Writing, as by defamatory Libels; as alſo to Deeds, as by Reproachful Poſtures, Signs and Geſtures; Lindw. c. authoritate. verb. quacunque. in gloſs. de Sent. Excommunicat. And as for the moſt part it proceeds of malice, implying matters either of Crime or Defect; ſo it generally aims at ſome prejudice or dammage to the Party defamed. All Actions of Defamation ſuppoſe in additu quam plupalavit, &c. Caſe Barrew againſt Lew…lling. Hob. rep.Whatever Cognizance the Temporal Laws of this Realm do take of Defamations by vertue of Prohibitions and Actions upon the Caſe; yet it will not be denied, but that the Cognizance of Defamations, where they are duly proſecuted, doth properly belong to the Spiritual Law, ſpecially where the matter of the Defamation is only Eccleſiaſtical.
(2.) In all cauſes of Defamation the Party defamed had his Election by the Civil Law, whether he would proſecute the Defamer ad Vindictam publicam, or ad privatum intereſſe; the former whereof was made choice of, where the Defamed aimed more at the Defamers ſhame, than his own Intereſt; and choſe rather to reduce him to a Recantation, than augment his Caſh by his own Credit's diminution; l. in conſtitutionib. §. ult. ff. L. Cornel. The other, viz. ad privatum intereſſe, was choſen by ſuch Defamed ones as valued their Credit at a certain Rate, and choſe rather a Pecuniary Compenſation, than an unprofitable Recantation; aiming more at their own private ſatisfaction, than at the Defamers publick Diſgrace. l. ſtipulationum. §. plane. ff. de verbor. obligat. & l. ſi quis ab alio. ff. de re judic. But both of theſe the Defamed could not have; for having determined his Election, he was therewith to reſt ſatisfied; only having obtained a Sentence againſt the Defamer, for his Recantation or publick Diſgrace by proſecuting him ad publicam vindictam, he might poſſibly have in Lieu thereof a pecuniary Recompence by way of Commutation. The Proſecution ad publicam vindictam was left to the determination of the Eccleſiaſtical Jurisdiction, the other to the Cognizance of the Secular: Much in conformity to what the Laws of this Realm in Caſes of Defamation ſeem to ſay, viz. where the Proſecution is meerly for the Puniſhment of Sin, and Money not demanded, there the Spiritual Court ſhall have the Cognizance: But where Money is demanded in ſatisfaction of the Wrong, there the Temporal, ſpecially if the Defamer undertake to juſtifie the matter, or the words expreſs or imply a Crime belonging to the Cognizance of the Common Law.Vid. Stat. 2. E. 3. c. 11. Theſe Actions of Defamation are of a higher Nature, than they ſeem primo intuitu to be (a mans good Name being Equilibrious with his Life;) and therefore the Law calls them Actiones praejudiciales, that is, ſuch as draw leſſer Cauſes to them, but themſelves are drawn of none.
(3.) One Libelled againſt another in the Eccleſiaſtical Court, for ſaying That he was a Drunkad, or a Drunken Fellow, and an addle Drunken Fellow, and by the opinion of the whole Court a Prohibition was granted, and for ſuch words a Prohibition was granted in C. B. in the Caſe of Martin Calthorp eMich. 8. Car. B. R. Cuckowes Caſe Jones Rep..
(4.) One moved at the Barr for a Prohibition to the Eccleſiaſtical Court on a Suit there depending for calling one Bawd; Jones Juſtice conceived, that theſe Differences ought to be obſerved, where a Man calls a Woman Whore, or ſuch like Slander, for which Suit lies in the Eccleſiaſtical Court againſt the Party (if the matter appear) in that Caſe Suit lies for Slander there, and no Prohibition lies; è contra, if a man be called Thief, Traytor▪ or the like, whereon no Suit lies for the Principal in the Eccleſiaſtical Court, but at the Common Law, if one be ſued for ſuch Slander in the Eccleſiaſtical Court, a Prohibition lies. If a man call one Bawd, for which Suit lies at the Spiritual Court and alſo at the Common Law; there if the Suit be for Slander in the Eccleſiaſtical Court, in that caſe no Prohibition lies, for the Party hath Election to ſue in which Court ſhe pleaſe: So if a Woman be Slandered in her Reputation, whereby ſhe is hindered in her Marriage, ſhe may ſue either at the Common Law or in the Spiritual Court for Slander. And laſtly, if a man ſpeak any words, for which no Suit lies at Common Law, nor are ſuch as concern any thing whereof the Eccleſiaſtical Court takes Cognizance, it ſeems that in ſuch Caſe if Suit be in the Spiritual Court for Slander, as for Convitia, a Prohibition lies, as for calling one Knave, Drunkard, or the like. Quaere of that, the Chief Juſtice agreed to that, the others ſaid nothing thereinfTrin. 7. Car. B. R. Anonymus. Jones. Rep..
(5.) A Suit was commenced in the Eccleſiaſtical Court, where the Lilbel was, that he called the Plaintiff Quean, or words to that effect, or importing the ſame Senſe; in this Caſe a Prohibition was granted: (1) Becauſe no Action lies for that Word Quean. (2) For the uncertainty thereofgAnonymus. Latch. Rep..
(6.) The Defendant ſaid to one Anthony Elcock (who was a Suiter to the Plaintiff, and with whom there was near an Agreement of Marriage) I know Davies Daughter, well, ſhe did dwel in Cheapſide, and a Grocer did get her with child, and the Plaintff declared, that by reaſon of theſe Words, Elcock refuſed to take her to Wife. Adjudged, that the Action would lie at the Common Law, and the Suit was not to be in the Spiritual Court for Defamation; but at the Common Law, for that ſhe is prejudiced in that which ſhould be her Temporal advancement; and the ground of the Action is Temporal. The truth of the Caſe was this; an Action upon the Caſe for a Slander was brought by Anne Davies againſt John Gardiner: That whereas there was a Communication of a Marriage to be had between the Plaintiff and one Anthony Elcock; the Defendant to the intent to hinder the ſaid Marriage, ſaid and publiſhed, that there was a Grocer in London that did get her with Child, and that ſhe had the Child by the ſaid Grocer, whereby ſhe loſt her Marriage. To which the Defendant pleaded Not guilty, and was found guilty at the Aſſizes at Aylesbury to the dammages of Two hundred Marks, and now it was alledged in Arreſt of Judgment, that this matter appeareth to be meerly Spiritual, and therefore not determinable at Common Law, but to be proſecuted in the Spiritual Court. But per Curiam, the Action lies here, for a Woman not Married cannot by intendment have ſo great advancement as by her Marriage, whereby ſhe is ſure of maintenance for her life, or during her Marriage, and Dower and other benefits which the Temporal Laws give by reaſon of her Marriage; and therefore by this Slander ſhe is greatly prejudiced in that which is to be her Temporal advancement, for which it is reaſon to give her remedy by way of Action at Common Law: As if a Woman keep a Victualling houſe, to which divers of great credit repair, whereby ſhe hath her livelyhood, and one will ſay to her Gueſts, that as they reſpect their Credits, they take care how they uſe ſuch a Houſe, for there the Woman is known to be a Bawd, whereby the Gueſts avoid the Houſe, to the loſs of her Husband: ſhall not ſhe in this Caſe have an Action at Common Law for ſuch a Slander? It is clear that ſhe ſhall. So if one ſa…th, that a Woman is a Common Strumpet, and that it is a Slander to them to come to her Houſe, whereby ſhe loſeth the advantage that ſhe was wont to have by her Gueſts, ſhe ſhall have her Action for this at Common Law. So here upon theſe collateral circumſtances, whereby it may appear that ſhe hath more prejudice than can be by calling of one Harlot, and the like. And judgment was given for the PlaintiffhDavies verſ. Gardner. Poph. Rep. Vid. did. Caſ. Coo. lib. 4. 16. 3…. Eliz.
(7.) Touching Defamation, for which Suit is in the Eccleſiaſtical Court. Reſolved, the matter muſt be meer Spiritual and determinable only there; for if it concern any matter which is determinable at the Common Law, the Eccleſiaſtical Judge hath not the cognizance thereofi25. Eliz. Palmer and Thorp's Caſe. Co. 4. par. 20..
(8.) Action was for theſe words, Pierce hath taken a falſe Oath in the Court of Conſiſtory of Exeter. It was objected, that for matters in the Spiritual Court, an Action will not lye: And the Stat. of 5 Eliz. of Perjury, doth not extend to thoſe Courts, but it was reſolved, that the Action did lye for theſe words, and that the Statute doth extend to ſuch and the like Courts; as the Court of Star-chamber, &c. And the words, that he hath taken a falſe Oath, ſhall be intended actively, and ſhall amount to theſe words, He is forſworn. In this Caſe it was ſaid by Prideoux, that theſe words are Actionable, although the Perjury be ſuppoſed to be committed in the Spiritual Court; for he ſhall be Excommunicated if he will not appear, and he ſhall do penance in a white ſheet, which is as great a diſgrace as to be ſet upon the Pillory. And it was ruled in an Action upon the Caſe betwixt Dorrington and Dorrington, upon theſe words, Thou art a Baſtard, that an Action lieth, and yet Baſtardy is a Spiritual matter, and there determinable; ſo for theſe words, Thou art a Pirate, an Action lieth, and yet Piracy is not puniſhable by the Common Law, but in the Court of Admiralty. And theſe words, He hath taken a falſe Oath, do amount to theſe words, He is forſworn. Wray conceived, that the words are not Actionable, for there is a Proviſo in the Statute of Eliz. cap. 9. that the ſaid Act ſhall not extend to any Eccleſiaſtical Court, but that every ſuch Offender ſhall be and may be puniſhed by ſuch uſual and ordinary Laws as heretofore have been, and are yet uſed, and frequent in the ſaid Eccleſiaſtical Court. Gaudy, upon theſe words, an Action doth not lye, for they are not pregnant of any Perjury in the Plaintiff, for he may be meer paſſive in it: for if one of the Maſters of the Chancery Miniſter an Oath to any perſon, or any Commiſſioners, &c. and the Plaintiff ſweareth falſly, a Man may ſay that the Maſter of the Chancery, or the Commiſſioners have taken a falſe Oath: and yet he is not guilty of falſity. And afterwards Mutata Opinione Wray, that the Proviſo in the ſaid Statute is to this intent, ſuch an offence may be enquirable and examined in the Eccleſiaſtical Court in ſuch manner as was before, but the ſame doth not take away or reſtrain the Authority of the Common Law, but that ſuch an Offence may be here examined, &c. And as to the latter exception upon theſe words (he hath taken a falſe Oath) it ſhall be intended Actively, and not Paſſively; And if ſo, the Defendant ought to have ſo pleaded it: And afterwards Judgement was given for the PlaintiffkHill. 32. Eliz. Rot. 434. B. R. Pierce verſ. Howe Leon. Rep..
(9.) Pollard and his Wife brought an Action againſt Armſhaw, for theſe words, viz. Thou art a Whore, for I. S. Goldſmith hath the uſe of thy Body, and the Cart is too good for thee. Per Curiam, the Action will not lie; for the Common Law cannot define, who is a Whore; but where if one keep a Victualling Houſe, it be ſaid ſhe keeps a houſe of Bawdry, an Action will liel40. Eliz. B. R. …ollard and his wife againſt Armſhaw. Gold. 172..
(10.) Action upon the Caſe for words of Defamation. Whereas the Plaintiff was a Perſon of good Fame, and always free from Adultery and Fornication, &c. And after the death of Brian her late Husband, was in Communication with one Cowley for a Marriage betwixt them; That the Defendant to deprive her of her Fame, and to hinder her from the ſaid Marrige, ſpake of the Plaintiff theſe words, viz. ſhe is a Whore, and her Children (innuendo her Children which ſhe had by the ſaid Brian late her Husband) are Frambiſhes Baſtards (innuendo one Nicholas Frambiſh.) After Verdict upon Not Guilty, & found for the Plaintiff, it was moved in Arreſt of Judgment by Grimſton, that theſe words are not Actionable: For, for calling Whore, there lies not any Action; and to ſay that her Children by her former Husband, are Frambiſhes Baſtards, is repugnant in it ſelf; for they cannot be Baſtards, which were born in the time of her former Husband: But all the Court held that the Action well lies. For to ſay of a Widow who is in Comnunication of Marriage with another, that ſhe plaid the Whore in her former Husbands time, is a great Diſcredit: And to ſay that her Children are Baſtards (although in truth they cannot be Baſtards in Law, yet in Reputation they may be ſo) is cauſe of loſs of her Marriage, and that none will marry with her; wherefore it was adjudged for the PlaintiffmMich. 9. Car. B. R. Dorothy Brian verſ. Cockman. Cro. Rep..
(11.) Action upon the Caſe. Whereas he keepeth an Alehouſe Licenced by Juſtices of the Peace, that the Defendant to ſcandalize the Plaintiffs Wife, ſpake theſe words of her, Hang thee Bawd, Thou art worſe than a Bawd: Thou keepeſt a Houſe worſe than a Bawdy houſe, And thou keepeſt a Whore in thy Houſe to pull out my Throat. Upon not guilty pleaded, found for the Plaintiff. Stone moved in Arreſt of Judgment, that theſe words are not Actionable; but agreed, that for ſaying One is a Bawd, and keeps a Bawdy houſe, Action lies, becauſe it is a temporal Offence, for which the Common Law inflicts puniſhment. But to call one Bawd without further ſpeaking, an Action lies not, no more than to call one Whore. But it is a Defamation puniſhable in the Spiritual Court. And to ſay That be keeps a Houſe worſe tha… a Bawdy houſe hath not any intendment what he means thereby; wherefore the Action lies not: And if it be intended, that ſuch words ſhould hinder Gueſts from coming thither, being an Alehouſe, the Husband only ought to have brought the Action. And as to that, the Court (abſente Richardſon) agreed. But for the other words, they held, the Action lies by the Husband and Wife, for the ſlander to his Wife; and it is as much as if he had ſaid, that ſhe keepeth a Bawdy houſe; wherefore it was adjudged for the PlaintiffnTrin. 9. Car. Perſon and his Wife againſt G…oday. Cro. Rep..
(12.) A prohibition was prayed, b…cauſe A. and his Wife ſued in the Eccleſiaſtical Court for Defamation, and ſpeaking theſe words of the Plaintiff, He was a Cuckold and a Wittal, which is worſe than a Cuckold, and that Aylsworth had layen with Ayloffs Wife; And for theſe Defamatory words he ſued there; and becauſe it was alledged, that for theſe words, being but words of Spleen, Prohibitions had been uſually granted, day was thereupon given until this Term, to ſhew cauſe why a Prohibition ſhould not be granted, and divers preſidents were ſhewd, that for calling one Cuckold or Whore, Prohibitions have been granted: But now upon advertiſement all the Court agreed, that no Prohibition ſhould be granted, but that the Eccleſiaſtical Court ſhould have Juriſdiction thereof: For although they agreed, that there ought not to have been any Suit for the firſt words, they being too general; yet being coupled with a particular, ſhewing that the Wife committed ſuch an Offence with ſuch a particular perſon, they be not now general words of ſpleen in common and uſual diſcourſe and parlance; But they held it was a Defamation ſuable in the Spiritual Court; whereupon the Prohibition was deniedoPaſch. 4. Car. C. B. Eaton verſ. Ayloff and his Wife. Cro. Rep..—Brownlow chief Protonotary produced on that occaſion ſeveral preſidents, where Prohibitions had been granted to ſtay Suits for ſuch words, viz. Trin. 15. Jac. rot. 2260. Purchas verſ. Birrel, for that he was preſented at ſeveral enqueſts within his Pariſh for being a Drunkard, and a Barretor. And Paſch. 6. Jac. rot. 397. Prohibition to ſtay a Suit for calling a Parſon Hedge-Prieſt. And Mich. 21. Jac. Barker verſ. Paſmore: She is a Quean, and a tainted Quean. Prohibition granted.
13. H. Prays a Prohibition to ſtay a Suit in the Spiritual Court of Defamation for ſpeaking theſe words, Thou art a Bawd, and I will prove thee a Bawd. And becauſe theſe are words properly dererminable in the Spiritual Court, and for which no Action lies at the Common Law, a prohibition was denied. But for ſaying, Thou keepeſt a houſe of Bawdry, this being matter determinable at Common Law by Indictment, Suit ſhall not be in the Spiritual Court pMich. 7. Car. B. R. Hollingſheads Caſe. Cro. Rep.. vid. 27 H. 8. and Co. lib. 4. fo. 20.
(14.) Prohibition was prayed to the Eccleſiaſtical Court to ſtay a Suit there for Defamation, for theſe words, Thou art a Drunkard or drunken fellow. And by the opinion of Croke, Jones and Berkley, a Prohibition was granted: For theſe words do not concern any Spiritual matter, but meerly Temporal, and they be but Convitium Temporale, and a common phraſe of brawling, for which there ought not to be a Suit in the Spiritual Court; and ſo it was held in Martin Calthorp's Caſe, in C. B. but Richardſon doubted thereof, becauſe the Spiritual Court as well as the Temporal may meddle with the puniſhment of drunkenneſs; ſo it is not meerly Temporal: But he aſſented to the grant of a Prohibition, and the Party may (if he will) demurr thereto; whereupon a Prohibition was granted qMich. 8. Car. B. R. Cucko verſ. Starre. Cro. Rep..
(15.) Prohibition was prayed by Bulſtrod for Gobbet, to ſtay a Suit in the Spiritual Court for Defamation, in ſpeaking theſe words, He is a Cuckoldly Knave, and cited preſidents, that for ſaying, He is a Knave and a cheating Knave, Suit being in the Spiritual Court, a Prohibition was granted upon good adviſement; and the Court ſaid, that preſident is not like to this Caſe, for there was not any offence wherewith the Spiritual Court ought to meddle, but in this Caſe for theſe words, it is properly to be examined and puniſhed there pro reformatione morum; for it is a diſgrace to the Husband as well as to the Wife, becauſe he ſuffers and connives at it, whereupon (abſente Richardſon) the Prohibition was denied. Again, it was moved, that this ſhould be granted upon the Statute of 23 H. 8. becauſe he was ſued in the Court of the Arches, which is in the Archbiſhops Juriſdiction, and the words were ſpoken at Thiſtleworth in London Dioceſs, as appeared by the Libel. But Jones ſaid, that he was informed by Dr. Duck. Chancellor of London, that there hath been for long time a compoſition betwixt the Biſhop of London and the Archbiſhop of Canterbury, that if any Suit be begun before the Archbiſhop, it ſhall be always permitted by the Biſhop of London; ſo as it is quaſi a general Licenſe, and ſo not ſued there but with the Biſhops aſſent; and for that reaſon the Archbiſhop never makes any Viſitation in London Dioceſs. And hereupon alſo the Prohibition was deniedrHill. 9. Car. B. R. Gobbets Caſe. Cro. Rep. par. 3..
(16.) Action, for that the Defendant had ſaid of and to the Plaintiff, being of good ſame, and one who had ſerved as Captain in the Wars, haec verba in London, Thou art a Pimp, averring that in London that word was known to be intended a Bawd; and further ſaid, that he was a common Pimp, and notorious, which he would juſtifie. After Verdict for the Plaintiff, Littleton (the King's Sollicitor) moved in Arreſt of Judgment, that theſe words are not Actionable; for it is a meer Spiritual Slander, as Whore or Heretick, and puniſhable in the Spiritual Court, and not at the Common Law; and he ſaid, that divers times Suits have been in the Spiritual Court for ſuch words, and Prohibitions prayed and never granted. vid. 27. H. 8. 14. But to ſay that he keeps a Bawdy houſe, is preſentable in the Leet, and puniſhable at the Common Law. Ward, è Contra, becauſe it is ſpoken of one of an honourable profeſſion, viz. a Souldier, and trenches on his reputation to be taxed with ſuch a baſe Offence; and he ſaid, that ſuch offences have been divers times puniſhed in London by corporal puniſhment, but it was anſwered, that was by Cuſtom; and there the calling one Where is Actionable. Jones Juſtice held that the Action lay not; and all the Juſtices agreed, that the expoſition and averment (that Pimp is known to be a Name for a common Bawd) is good. Croke and Berkley agreed, that the words are very ſlanderous, and more than if he had call'd him Adulterer or Whoremonger, &c. aud may be indicted and puniſhed for it corporally, as tending to the breach of the Peace; and rule was given that Judgement ſhould be entred, &c. But was afterwards ſtayed sMich. 10. Car. rot. 148. Dymmock verſ. Faweett. Cro. Rep..
(17.) Suit being in the Eccleſiaſtical Court for calling a mans Wife Welch Jade and Welch Rogue, Sentence being there in the Arches, the Defendant appealed to the Court of Audience; and in the Appeal mentioned the former words, and in the libel was interlined [and a Welch Thief:] and hereupon a Prohibition was prayed and granted, unleſs cauſe were ſhewn by ſuch a day to the contrary: For it was held clearly, that for the word [Welch Thief] Action lies at the Common Law, and they ought not to ſue in the Spiritual Court: And for the other words, it was conceived upon the firſt Motion, they ought not to ſue in the Spiritual Court, for they be words only of Heat and no Slander. But it was afterwards moved and ſhewn, that the ſaid words [A Welch Thief] were not in the firſt Libel, nor in the Appeal at the time of the Appeal; but were interlined by a falſe Hand without the privity of the Plaintiff in the Eccleſiaſtical Court, and that upon Examination in that Court, it was found to be falſly inſerted, and ordered to be expunged. And that the words Welch Jade were ſhewn in the Libel to be expounded and ſo known to be a Welch Whore; which being a Spiritual Cauſe and examinable there, it was therefore prayed that no Prohibition ſhould be granted; and if it were granted, that a Conſultation ſhould be awarded. And of this Opinion was all the Court, that the words [and a Welch Thief] being unduly interlined, and by Authority of the Eccleſiaſtical Court expunged, and in that Court Jade is known and ſo expounded for a Whore, our Law gives Credence to them therein, and eſpecially being after two Sentences in the Spiritual Court. This Court will not meddle therewith. Wherefore Conſultation was granted, if any Prohibition was iſſued forth quia improvide; And Rule given, that if a Prohibition was not paſſed, that none ſhould be grantedtPaſch. 12. Car. C. R. Pew and his Wife ver. Jefferyes. Cro. Rep..
(18.) It was moved for a Prohibition by Harris Serjeant to the Court of Audience, becauſe that the Plaintiff was ſued there for ſaying to one, Thou art a common Whore and a baſe Quean, and Harris ſaid, that a Prohibition had been granted in this Court, for ſaying to one that ſhe was a pimperly Quean: And it was the Caſe of Man againſt Huckſler: And Finch ſaid, though the words are not Actionable in our Law, yet they are puniſhable in the Spiritual Court, For the word Quean in their Law implies as much as Whore: But Hobart ſaid, that this word Quean is not a word of any certain Senſe, and is to all intents and purpoſes an Individuum Vagum, and ſo incertainuTrin. 19. Jac. C. B. Winch. Rep..
(19.) In an Action upon the Caſe; that whereas he is Parſon of D. and a Preacher, the Defendant Slandered him in haec verba, Parrett is a lewd Adulterer, and hath had two Children by the Wife of I. S. I will cauſe him to be deprived for it. By the Court the Action doth not lie: For the Slander is to be puniſhed in the Eccleſiaſtical Court. And ſo awarded Quod Quer. nil. cap. per. bill. xCaſe Parrett verſ. Carpenter. Noy. Rep..
(20.) D. had ſued T. in the Eccleſiaſtical Court for this, viz. That whereas ſhe was of good fame, and kept a Victualling Houſe in good Order; that the ſaid T. had publiſhed that D. kept an houſe of Bawdry. T. now brought a Prohibition, and by the Court well; for D. might have an Action for that at the Common Law, eſpecially where ſhe kept a Victualling houſe as her Trade. Note, 27. H. 8. 14. And by the Juſtices, that the keeping of a Brothel-houſe is enquirable at the Leet; and ſo a temporal Offence. And ſo was the opinion of the Court; Tr. 7. Car. B. R. Mrs. Holland's CaſeyThorne againſt Alice Du…ham. Noy. Rep..
(21.) W. ſued L in the Eccleſiaſtical Court for a Defamation, and had Sentence; L. appeals, and depending the Appeal comes a Pardon, which relates to the Offence, and pardons it; then L. deferrs his Appeal, and for that W. had coſts taxed him: And now L. prayed a Prohibition, becauſe he deferr'd his Appeal becauſe of the Pardon, which had taken away the Offence. And by the Court in that Caſe, after the pardon the inferiour Court cannot tax Coſts; but it was urged that the ſuperiour Courts might tax Coſts upon the deſertion of the Appeal, which is an Offence after the Pardon. But it was anſwered on the other ſide, that it was in vain to proſecute the Appeal, when the Offence it ſelf is pardoned. The words were, Thou art a Pander, to Sr. Hen. Vaughan: And there was much debate if they were actionable at Common Law; yet it was agreed, that a Suit may be brought for them in the Spiritual Court, as for calling one Whore, Bawd, or Drunkard: But otherwiſe by Jones, if he had ſaid, That he was Drunk; for then a Prohibition lies. And it was ruled in 6. Jac. B. R. in the Caſe of Cradock againſt Thomas; a Prohibition was granted in a Suit for calling one Whoreſon. And in Weeks Caſe, a Prohibition in a Suit for calling one Knave zCaſe Lewes againſt Whitton. Noy Rep..
(22.) E. and M. being reputed Church-wardens (but they never took any Oath, as the Office requires) preſent a Feme Covert upon a common report for Adultery, &c. And the Husband and Wife libel againſt them in the Eccleſiaſtical Court for that Defamation. And when Sentence was ready to be given for them, the Church-wardens appeal to the Arches, where the preſentment was proved but by one Witneſs; they ſentenced the Baron and Feme. But now Ward Serjeant, moved for a Prohibition, but it was denied by the Court; for they were Plaintiffs firſt. And alſo it is a Cauſe, which this Court had not any Cognizance ofaEaten and Morris's Caſe. Hetley's Rep..
(23.) Note, upon evidence to the Jury, Reſolved by the Court that an Action upon the Caſe for words, lies againſt an Infant of Seventeen years of age. For malitia ſupplet aetatem bSir Chriſtoph Hod… man verſ. John Griſell. Noy's Rep.. And it is ſaid at the Common Law, that if a Man Libel in the Eccleſiaſtical Court againſt one for ſaying certain words of him, which he will maintain in an Action upon the Caſe at Common Law, a Prohibition liescHill. 4. Jac. B. R. inter Turnain and Thorne per Cur. & Mich. 38, 39. Eliz. B. R. Butler and Bartlett. Adjudgd..
(24.) If a Man Libels in the Eccleſiaſtical Court againſt one for ſaying that he is a Witch or the Son of a Witch; although no Action lies for that at the Common Law, yet no Prohibition ſhall be granted, for peradventure he may have ſome Spiritual prejudice thereby, if he ſhould be the Son of a Witch, as that he cannot be a Prieſt or the like: (for it ſeems all the force of the words conſiſts in the laſt words, they being ſpoken in the disjunctive)dRep. 14. Jac. B. Adjudg. vid. Rol. Abr. pag. 295. nu. 2..
If a Parſon of a Church call A. B. Drunkard, upon which A. B. anſwers thou lyeſt; if the Parſon ſue A. B. in the Eccleſiaſtical Court for giving him the lye, a Prohibition lies, for that the Cauſe for which he gave him the lye, is not Spiritual, but depending on a Temporal thing precedenteMich. 7. Jac. B. inter Simpſon and Water… per. Cur.. But if a Man call a Miniſter Knave, he may be ſued for that in the Eccleſiaſtical Court, and no Prohibition liesfHill 7. Jac. B. per Coke.. If one Man ſays of another, that he will not hear Sermons made by thoſe who have been made Miniſters by Biſhops; he may be ſued for that in the Eccleſiaſtical Court, and no Prohibition ſhall be grantedgHill. 7. Jac. per Cu…iam Adjudg..
If a Man ſays of another, that he keeps a Bawdy houſe, and is ſued for it in the Eccleſiaſtical Court, although he might have an Action at Common Law, yet the Eccleſiaſtical Law hath a concurrent Juriſdiction in this, and the words are mixt, for which reaſon no Prohibition liesh27 H. 8. 14. b. per Fitzherbert And if one ſays of another, that he is a Pander, he may be ſued in the Eccleſiaſtical Court, for that the ſignification of that word is well known, and ſounds to a Spiritual Defamation iMich. 2. Car. inter Lewes and Whitley. per Dederidge and Jones contra Whi…l…ok., Or if a Man ſays to another, Thou art a Cuckoldly Knave, and for that he and his Wife ſue him in the Eccleſiaſtical Court for a Defamation, no Prohibition lies, for that theſe words amount to a Spiritual Defamation, viz. that his Wife was incontinent; in this Caſe a Prohibition was deniedkHill. 9. Car. B. R. inter Iſles and Cobbet per Curiam..
Husband and Wife were Divorced for Adultery à menſa & thoro, & mutua cohabitatione (and as one of the Counſel ſaid, de omnibus Matrimonialibus obſequiis, but the Counſel of the other party denied that) and after the Wife ſued in the Eccleſiaſtical Court a Stranger for Defamation, and Sentence there given for her, and penance enjoyn'd to the party Defendant, and coſts of Suit aſſeſſed for the Plaintiff; and afterwards the Defendant appeals, and after the Husband of the Wife releaſes all Actions, and that Suit and all appertaining thereunto, and the Defendant pleaded that Releaſe, and they remitted back the Suit to the inferiour Court again; and now Coventry Recorder of London prayed a Prohibition, for that notwithſtanding the Divorce they continued Husband and Wife, and therefore the Releaſe of the Husband ſhould barr the Wife from having Execution of the Sentence, and of the Coſts 44 El. In this Court between Steevens Adminiſtrator of one Steevens, and Totte, the Caſe was, That after a Divorce for Adultery of the Husband à Menſa & Thoro, the Woman ſued in the Eccleſiaſtical Court for a Legacy, deviſed to her by the Teſtator, and the Defendant pleaded a Releaſe thereof from the Husband, and thereupon a Prohibition was granted, and he ſhew'd that preſident in Court, but the Preſident did not comprehend the Divorce; But Doderidge ſaid, he well remembred when that Caſe was argued, and the parlance then was about the Divorce. Wentworth, it ſeems that no Prohibition ſhall be granted, Hill. 7. Jac. in this Court. A Suit was commenced in the Eccleſiaſtical Court by two Church-wardens, and the Defendant there pleaded the Releaſe of one of them, and thereupon a Prohibition was here granted, and after a conſultation was granted, for that they ſhall try that, having cognizance of the Principal, and in this Caſe the Releaſe is after the appeal, and therefore it may not be pleaded upon the appeal, for the Judges in the appeal have no power but to examine the former Sentence, and not any collateral matter. Coventrie, I agree the Caſe of the Church-wardens, for that the Releaſe of one is not any Barr in Law, for 38. El…z. it was here reſolved between Methon and Winns, that a gift by the Church-wardens without the Aſſent of the Sidemen or Veſtry is void; but it is otherwiſe here, for here the Releaſe of the Husband is ſufficient to diſcharge the Execution of that Sentence, the which is all that we demand, 10. l…. 3. ſuch Divorce is not any Barr of Dower. The Court ſeemed to incline that no Prohibition ſhould be granted, for that the Wife in ſuch Caſe may be ſued alone without the Husband by the Eccleſiaſtical Law, and this is matter meerly Spiritual viz. Defamation, and therefore we have nothing to do therewith, and the Releaſe of the Husband ſhall not diſcharge the Suit of the Wife, which is only to reſtore her to her Credit and Reputation which was impeached by the other, and the Coſts of Suit is not for any Dammage, but meerly for the Charge of the Suit, and therefore the Suit being not diſcharged, the Coſts ſhall remain alſo; and this Caſe is not like the fore-cited Caſe of Stephens, for the thing for which that Suit was, was originally a Legacy due to Husband and Wife, and therefore there the Releaſe of the Husband was a good diſcharge, but here was no duty in the Husband originally, Ergo, &c. Curia adviſare vult hMich. 14. Jac. B R. Motam verſ. Motam. Rol. …. Coke. 4. Palmer and Thorps Caſe. 25. El. f. 20..
In Palmer and Thorps Caſe it was reſolved, that Defamation in the Eccleſiaſtical Court ought to have three Incidents. (1) That the matter be meerly Spiritual and determinable in the Eccleſiaſtical Court, as for calling one Heretick, Schiſmatick, Advowterer, Fornicator. (2) It ought to concern matter meerly Spiritual only; for if it concern any thing determinable at common Law, the Eccleſiaſtical Judge ſhall not have Cognizance of it. See for this 22. E. 4. 20 the Abbot of St. Albons Caſe. (3) Though the thing be meerly Spiritual, yet he which is defamed, cannot ſue there for amends or dammages, but the Suit there ought to be for puniſhment of the offender, Pro ſalute animae: For this ſee Articulis cleri, & Circumſpecte agatis, and Fitz. 51, 52, 53. but yet the Plainſhall recover Coſts there, and there if the Defendant to redeem his Penance agree to pay a certain ſum, the Party may ſue for this there, and no Prohibition lies in that Caſe.
In a Caſe of Prohibition between M. and M. in the Eccleſiaſtical Court; the Caſe was, a Suit was there for Defamation, by the Wife of the party, a Sentence there given, and Coſts pro expenſis litis, the Husband did releaſe theſe Coſts, which they would not there allow of; upon a ſuggeſtion here that the Husband was divorced cauſa Adulterii, a Prohibition was prayed; and for which it was urged, that the Releaſe by the Husband was good, the Suit being there for Defamation, Sentence there given, the Wife divorced à Menſa & Thoro, which doth not diſſolve Vinculum Matrimonii, but that this notwithſtanding they may come together again when they will; and ſuch a Divorce is no Barr of Dower. Doderidge, They are only to reſtore the Party to her good Name, in Caſe of Defamation: The point here only is, the Husband and Wife are divorced, Cauſa Adulterii, the Wife ſues in the Eccleſiaſtical Court for Defamation, and there recovers, and Coſts are given, the which the Husband did releaſe; whether this Releaſe thus made by the Husband, ſhall barr the Wife of her Coſts. And if they will not allow of this Releaſe there, whether a Prohibition ſhall be granted or not. The Whole Court clear of opinion, that no Prohibition in this Caſe is to be granted. And ſo by the whole Court, the Prohibition was denied.