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Taxed with, the search. Yet all
costs. these expences are consi-
dered to be
be contumacy

charges, and by that name
are brought into court, and
subject to taxation'.

LIBEL.

TITLE LXVIII.

WHAT A LIBEL IS: INTO HOW MANY PARTS DIVIDED: AND

HOW MANY SORTS OF LIBELS THERE ARE 2.

I. A LIBEL is said to be a diminutive a libro from a book, What a whence formerly a paper was offered. In this argument a libel libel is. is taken for the writing which contains the action; or a libel is nothing else but a fit conception of words, setting forth a specimen of the future suit. According to Lanfranc it is defined the lawyer's argument.

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a libel.

II. It is said to consist of three parts, viz. 1st, The major What are proposition, which shows a just cause of the petition. 2d, The the parts of narration, or the minor proposition; whereby is inferred, in the species of the fact propounded, that there is just cause for the petition. 3rd, The conclusion, or the conclusive petition, which conjoins both the propositions, and includes the minor in the major. A libel, therefore, is a practical and judicial syllogism, as it were. Though Speculator recites its parts somewhat otherwise, for in the first place he puts the cause of the libel, which is the major proposition: in the second place the obligation, which

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1 Touching the taxation and allotment of expences by the judge, under the name of contumacy costs, see observations on tit. 46.-Oughton.

2 This title is copied from Conset's Brief Discourse, showing the order and structure of a libel.-Ed.

3 Alciat. in Prax. fol. 18. de Libelli obla. fol. 103. Speculator de Libell. Conf. § 1. Hostiens. in Rubric. d. Libelli obla. sect. 1. d. 11. Socin. de Libell. Contest. in Rub. Wesembecy, Parat. ff. tit. de edendo.-Conset. 4 Lanfranc. chap. Quoniam de petition. n. 7. Ummius, disp. 6. ch. 8. n. 38.-Conset.

5 Speculater de Libelli Confectione, sect. Quid Libellus, n. 3. Alciat, ubi supra. Jason, Zasius, et alii in Princ. inst. de Action.-Conset.

What

things are

proper to a

libel.

Properties

of a libel.

Efficient

libel.

is the minor proposition: and in the third place, the action, which is the conclusion; for the petition itself is said to be the action: the conclusion consists in the petition, and not in the words related. And this is the chief part of the libel, which ought especially to be regarded in civil actions; not so in criminal actions or causes, because in them there needs no conclusion. By this the plaintiff' concludes, justly desiring from the premises and the things propounded, that the defendant may be condemned both in the principal and in the charges'.

III. In respect of the subject matter of the libel, there are only two sorts in use; the one of which is conventional or civil, a conveniendo, from convening, the other criminal, a crimine, seu querimonia. In respect of its form it is either simple, which absolves or declares the action, as it were, in a continued speech or oration; or articulate, in which the merits of the cause are propounded by articles 3.

IV. The properties of a libel, or those things which are said to be particularly proper to a libel, are these, viz. that it be round, as the civilians term it, dilucid, concluding, not obscure, uncertain, nor general, or alternative *.

V. The efficient cause of a libel is the law, which deposeth a cause of a libel to be offered. But it commands principally that it be offered to the judge, seeing his office is implored upon this petition, and then also to the adverse party.

libel.

Matter of a VI. As to what respects the matter of a libel: it is to be offered in all causes, about which judgment is stirred up, and a suit is commenced between two. And that as well in civil as criminal causes, &c. but not always in summary causes, viz. in executions, for in these any manner of petition is sufficient, though it be without writing: like as when it is proceeded by way of inquisition, or when the office of the judge is implored in an extraordinary

libel.

manner.

Form of a VII. The form of a libel, although it ought especially to be drawn, according to the style and custom of every court, yet where there is no special custom extant, it ought to be drawn in

1 Alciat. ut supra.-Conset.

2 Speculator ubi supra, sect. Species Gloss. in d. c. 1. Lanfranc, c. Quoniam ad verb. Petition. de prob. n. 1. Alciat. in Prax. fol. 103. Ummius, disput. 6. th. 8. Rosbach, pros. tit. 33.-Conset.

3 Oldondor, de forma Lib.-Conset.

✦ Ferrar, in forma Lib. cont. opp. lib. &c.-Conset.

writing; and in such manner, as that it may contain these five things, comprehended in these following verses:

Quis, quid, coram quo, quo jure petatur, et a quo,
Recte compositus quique libellus habet 1.

Each plaintiff's and defendant's name,
And eke the judge who tries the same;
The thing demanded, and the right whereby
You urge to have it granted instantly:
He doth a libel right and well compose,

Who forms the same, omitting none of those.

But the particular form of a libel' consists in the conclusion,
which, what it ought to be, Jason3 copiously disputes, so also
Mynsinger*. At this day such respect is had to the conclusion,
that it is sufficient to gather from its form of what nature the
action is, though no name be expressed. Which seems to have
been otherwise formerly, at least by the law of the codices.
make this form the more dilucid and clear, we will dispose it into
an argument, or a syllogism', which shall in short comprehend
the whole matter, and all the parts of a libel.

To

"Every one who defames an honest man ought to be ecclesias- Syllogistic tically punished.

A. G. hath defamed a certain honest man, J. G.

Therefore the said A. G. ought to be ecclesiastically punished." VIII. Civil actions are either singular, general, or universal, as was shown in the practice. Those actions which are singular, are also either real, personal, or mixt, as has been shown. Now in a real action, the next cause, and not the remote, ought to be expressed'; as for example, I demand ten pounds of Titius which I lent him, and I desire he may be condemned to pay me that sum. Here now the contract, or the lending money, is the next cause in a real action, and it is the remote cause in a personal action, for the obligation or bond arising from the contract is the

1 Hostiensis de Libell. obla. Alciat. ubi sup. fol. 18.-Conset.

2 Ita formari debet ut ex narratis sufficiat jus agendi impliciti resultare, et in postea explicite in probationibus declarari. Wesemb. ubi s. n. 8. Anchor. cosil. 148. n. 6.-Conset.

3 Jason in sect. huic autem n. 13. Institut. de Action.-Conset.

+ Mynsinger in Inst. de action.-Conset.

5 Lanfr. c. Quoniam de prob. ad verb. Petition, n. 8.-Conset.

6 Lanfr. ubi s. n. 3. Myns. Inst. de Act. in Rub. n. 15. et. sect. Omnium autem, n. 14, 15.-Conset.

argument.

End of a

libel.

Preamble

of a libel.

Major proposition.

Minor proposition.

next, or nearest cause in a personal action, and the remote cause in a real action. Wherefore, in a real action, if you say in your libel, "I ask ten pounds of Titius, which he owes me upon bond;" here your libel is so general that it is in danger of being voided, if the defendant excepts against it. But if in this action you say on this manner, "I ask ten pounds of Titius which I lent him," your libel is dilucid by your making mention of the next cause. And so observe the quite contrary in a personal action'. But in a general or universal judgment or action, there is no need of mentioning any cause.

IX. The end of the libel is, that it may propound the plaintiff's desire, and instruct the judge and the adversary, as to the nature of the future suit, and be the foundation of judgment. For both the articles of the proofs are to be accommodated to the form of the libel, and the sentence is to be pronounced according to the same. Wherefore to the intent that the judgment may be begun in due order, and be founded upon a certain thing, it is necessary that a libel be given by the plaintiff, though not admonished thereto. The omission whereof doth vitiate the proceedings. Whence a libel is deservedly ranked among the substantial acts of the proceedings: for no libel existing, the proceedings are rendered null.

X. Conset adds, " Agreeable to what has been said, I will here give the form of a libel, as it is offered before the judge of an ecclesiastical court. And, in the first place, it must be drawn in the name and style of the judge, as Alciatus has also observed in his form, set down in his practice, at fol. 18, viz.

"In the name of God, amen, before you, the worshipful H. W., doctor of laws, principal official of the beautiful consistory court of York, &c., the party of J. G. against A. G., &c. allegeth, and complaineth, and propoundeth, &c.

"Imprimis, he doth propound and article, that the said J. G. was and is a man very honest, just, and upright, of good fame, life, and honest conversation, aspersed, and defamed, with no crime, at least, such as is notorious, (except what is afterwards mentioned), and is commonly reputed, had, named, and esteemed as such, &c."

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Item, that notwithstanding the premises, the said A. G. out of a malign spirit, in the months of A. M. T. &c. in this present year, 1630, in one or other of the said months, within the parish

1 Lanfr. ubi supra n. 3, 4, 5, 6.—Conset.

of D.' aforesaid, or some other place within the said parish, maliciously, and out of an intent of defaming and injuring the said J. G., hath defamed and injured him, and hath said, uttered, &c. some reproachful and defamatory words of and against the said J. G., and especially these words following, or the like in effect, viz. the said J. G. said and reported, though falsely, diverse and sundry times, or at least once, speaking of the said J. G., thou hast got a woman with child, &c. The party doth propound and article as to such a time and manner of speaking the words, &c."

"Wherefore, proof being made upon the premises, the party of The con.. the said J. G. doth request or petition that the said A. G. for clusion. such excessive rashness in the premises and concerning the same, may be corrected and punished according to your pleasure, and also that he may be condemned in charges made and to be made in this cause, on the behalf of the said J. G. &c." (Mynsinger, in Inst. de Injuriis, sect. in Summa, concludes thus :) Wherefore the plaintiff desires, that in order to repair his fame and good name, the defendant aforenamed may be compelled by you, and your definitive sentence, to disown, confess, and declare publicly, that the said defamatory and injurious words were unadvisedly and against the truth, spoken and uttered by him, &c. or otherwise, that right and justice may be administered."

TITLE LXIX.

THE PETITION OF THE PROCTOR OF THE DEFENDANT, WHEN
THE PLAINTIFF HAS CITED THE DEFENDANT TO APPEAR,
AND PROCEEDS NO FURTHER IN THE SUIT.

I. THE proctor of the defendant should say, "I exhibit my Dismissal proxy for N., and make myself a party for him; and allege, that of the client was and is cited to appear on this day, at this place, to want of pro

my

cause, for

secution.

1 Ratio hujus apud Myns. Inst. de Action, sect. Malif. et sect. Curante autem.-Conset.

2 That is, if the plaintiff, or his proctor, does not appear, nor make any return into court of the original mandate, after its execution on the defendant, the proctor of the defendant says, "I exhibit," &c. as above, § 1.Oughton.

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