116      Provincial Court Proceedings, 1663-64.

               Liber B B  they are not, & then conceaues under the submission aforesd a Jury
                      ought not, nor can haue cognizance thereof, for Ad questionem Legis
                      Judices, ad questionem facti Juratores.
                       The promises considered yor Petr humbly cranes such releife for
                      his uniust molestaon as yor honrs thinke meete And as in duty bownd
                      hee shall pray &c:

                          The Charge.
                       That Luke Barber did call Elionor the now Wife of Henry Spink
                      whoare, That hee did diuers times affirme tht shee was a whore And
                      tht hee had taken her her coates up, & tht Rogue Thomas Hewes
                      wth his Breeches downe, And tht hee brought none but Rogues &
                      whoares out of England, some out of Bridewell, some out of New
                      gate, & some from the whipping Post, And allsoe tht her oath was
                      false & malicious wch hee would proue.
                       This being the Charge my Aduersary accuses mee tis his duty
                      to proue it actionable. Yett for satisfaction of this honble Court,
                 [P. 159] I shall for once endeauor to proue the negatiue (Vizt) That none
                      of all the Charge is actionable, & tht out of Shephard & his authori
                      ties, Being the uery Booke the honble Leiut GraIl, Chancelor & this
                      honble Court the other day made use of, in a Case of the like nature
                       ffirst then as to the words (whore) the sd Shephard fol. 76, af
                      firmes posituely tht the accon will not lye for saying a woman is a
                      whore or Bawd (albeit they bee marryed) And then for the gesture
                      I fownd her in, Wth that Rogue Tom Hewes as I am charged, The
                      sd Shephard declares himself e in fol. 8o, ut infra, If any words be
                      spoake in themselues not actionable of a yowng woman or man,
                      charging them wth incontinency or otherwise by wch they loose their
                      match, the Losse of the match must bee auerred specially it is not
                      good Patch, 15 Car. B. R. Ayres Case, Sandersons Case, Trin. 17
                      Car. B. C. Soe if any words of passion only not actionable be
                      spoaken as to say a man is forsworne, hee is a Rogue, Vallaine or
                      the like, If any accon bee brought uppon them, it must bee main
                      tayned by a speciall auermt of losse. Coo-4-15. 15.
                       Now for the last part of his Charge (Vizt) and allso tht her oath
                      was false & malitious, wch hee would proue. this I likewise conceaue
                      is not actionable, ffor the sd Shephard sayth fol. 77 soe, in a case
                      depending betweene A & B in the Kings Bench Certaine affidauitts
                      being openly read in the Court, the defendt sayth openly there is not
                      a word true in them as I can proue by twenty wittnesses this is not
                      actionable Patch. 15 Car. B. R. Moltons Case.
                       Besides may it please yor honrs when I spoake the words it was not
                      soe much as an affidauitt, Vntill sworne to, noe affidauitt, & it was
                      some space of time before shee had deposed.