Actions for Slaunder, OR, A Methodicall Collection under certain Grounds and Heads, of what words are actionable in the LAW, and what not?

A Treatise of very great use and consequence to all men, especially in these times, wherein Actions for Slaunder are more common, and do much more abound then in times past: And when the malice of men so much increases, well may their tongue want a Directory.

To which is added, AWARDS or ARBITREMENTS,

Methodised under severall Grounds and Heads, colle­cted out of our Year-Books and other pirvate authen­tick Authorities: wherein is principally shewed, what Arbitrements are good in Law, and what not.

A learning of no lesse use and consequence to all men, then the former: for that submissions to Arbitre­ments were never more in use then in these times. And this learning well observed, would avoid multi­tudes of suits and contentions which daily arise through the defects of Arbitrements.

By JO. MARCH of Grayes-Inne, Barister.

LONDON, Printed by F. L. for M. Walbank and R. Best, and are to be sold at Grayes-Inne-Gate. 1647.

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Actions for Slaunder. OR A methodicall Collection, un­der certaine Grounds and heads, of what words are actionable in the Law, and what not?

THE first part of my labour is, to shew what words are acti­onable in the Law, and what not? In the prosecution of which, ti's not my purpose to run over all the cases that have bin adjudged, neither can I if I would; my intent is only to lay downe a certaine rule or ground, upon which to go (which will indeed be as a light to all Cases of this nature) and having done so, to fol­low every particular thereof, with the most pertinent cases that I finde ad­judged in the Law; which done there [Page 2] will be very few cases of consequence hitherto adjudged omitted.

But before I enter upon this part of my labour give me leave to premise this, that I do not undertake this work, with an intent [...]o incourage men in giving [...]ll and unworthy language, or to teac [...] them a lawlesse Dyalect, but (as my Lord Cook speakes) to direct and in­struct them rightly to manage that,Cooke, l. 4 fol. 20. b. which [though but a little member] proves often the greatest good, or the greatest evill to most men. And with­all to deterre men from words, which are but winde (as hee further speakes) which subject men to actions, in which dammages and costs are to bee recovered, which usually trench to the great hinderance and impoverishment of the speakers.

And in truth that which caused mee to enter upon this labour, was the fre­quency of these actions; for I may with confidence affirme, that they doe at this day bring as much Gryse to the Mill, if not more, then any one branch of the Law whatsoever. And it were to bee wished and certainly never in a better time then now) that the greatest part of [Page 3] them were suppressed, that words only of brangle, heate and choler, might not he so much as mentioned in those high and honourable Courts of Justice. For I professe for my part, I judge of them as a great dishonour to the Law, and the professors thereof; especially when I consider that they are used only as in­struments to promote the malice, and vent the spleene of private jarres and discontents amongst men.

The Apostle calling in question the wisdome of men,1 Cor. c. [...] verse 5. for going to Law one with another, is not to bee intended [as the learned observe upon that place ge­nerally to condemne all legall prosecu­tions, be ause a man may without que­stion maintaine his just rights & privi­ledges b [...] Law, but onely to reprehend the folly of such, who upon every slight and triviail occasion (like many in these contention times) care not to intayle a suite upon them and their posterity; though in Fine they docke their owne intayles without recovery: and justly may actions for words come within the compasse of the Apostles exprobra­tion.

I doe not condemne all actions for [Page 4] words neither, for it is but equall, that where a mans life, liveliehood; or repu­tation (which is dearer to him then the former) is much endangered by scanda­lous words, that in such case the offen­der should bee inforced by action to make compensation. But that a man should flee to the Law out of malice, and make the Courts of Justice main­tainers of every small and vaine brab­ble, this seemes to me utterly unlawfull and intolerable amongst Christians.

I cannot but take notice of that which Wray Chiefe Iustice, Cooke, lib. 4. f. 15. b. saith in Cookes 4th Booke, That though slanders and false imputations are to be repressed because that oftentimes a verbis ad verbera per­ventum est; which [...]confes tends much to the disturbance of the common peace, and therefore by all meanes possible to bee prevented. Yet he saith, that the Judges have resolved, that actions for scandalls should not bee maintained by any strained construction or argument, nor any favour extended for supportati­on of them. And he addes the reason of it, because they doe abound more in these dayes; then in times past, and the intemperance and malice of men in­creases; [Page 5] Et malitijs hominum est obvian­dum; and further addes, that in our old bookes, actions for scandalls are very rare, and such as are brought, are for words of eminent slander, and of great importance.

I is true that the Law doth in some cases discountenance these actions, and therefore we have a rule, that words if they admit of a double construction, shall alwayes be taken in the best sence for him that speakes them (as I shall make evident hereafter) because usual­ly they are spoken in chollar and pas­sion.

This I say the Law doth, where the words are amphibolus; but if the words are clearely actionable, in such case the Law will never ayde a man, though they were spoken in the distemper of passi­on which seemeth very hard and unrea­sonable.

Nay which is yet more extreame, if counsell shall but informe the Jury of the quality and reputation of the Plain­tiffe and also make them understand [if they be capable the true sence and mea­ning of the words, and the hainousnes of them; such words, against such a per­son; [Page 6] this inforced and prest on by emi­nent Councell, shall make a Jury give a hundred pounds dammages, whereas it doth not appeare to them, that the Plaintiffe by the speaking of the words was prejudiced one farthing, a case of very great extremity, and worthy of re­liefe.

And can any man deny, but that this is a countenancing of these frivolous Actions: But give mee leave Reader, and I will in a word informe you how this may be remedied: and though the malice of men cannot bee stopped, yet their Actions may.

Let no words be actionable which do appeare to have beene spoken in chollar and passion, or if actionable, yet let the Plaintiffe recover no more in damage, then hee can upon Oath make appeare, that hee was actually damnified by the speaking of them; and if this were pro­vided by Act of Parliament, our new bookes would bee as little infested with these frivolous actions, as the old ones are. But I cannot thus baulke that ob­servation of that learned Chiefe Justice who [...]ses that in our old books Actions for scandalls are very rare, and such as [Page 7] are brought, are for words of eminent slanders and of great importance.

This must needs bee acknowledged to be a most exact and true observation, for in searching of the Books, I cannot finde that any Action for scandalous words was brought before E. 3. time, and so rare then▪ that I finde but one in 50. yeares of E. 3. and that is Sir Thomas Setons case of Justice,30. Ass. fol: 19. for calling of him Traytor. Felon; and Robber, no frivolous cause of action.

And I finde but three Actions for words brought in 22. yeares of E. 4. and those for one and the same words,2 E. 4, 5, 15. E. 4. 32 & 4. 3. for publishing one to bee the Pilleine of I. S. a slaunder of no small importance, neither; for so long as that base and slavish Tenure of Pilleinage held; hee that was a Pilleine, was subject both in person and estate, to the will of his Lord, so that he might seize all his estate reall, and personall, and Vassalize his person at his pleasure, so that he did not kill or mayme him

In all the 21. yeares of H. 7. there is not one action that I can find brought for scandalous words.

And in 38. yeares of H. 8. our books [Page 8] tell us but of five actions brought for scandalous words;27. H. 8. 14 & 22. 30. H. 8. Br. Acton upon the case 104. 28. H. 8. Dr. fo. 19 fol. 112 & fol. 26. fol. 1 [...]. two whereof were in 27. H. 8. so that I find none before that time neither. The other were in 30. H. 8. and 28. H. Dyer. And these for no trifling words; for you shall finde that one of them was for calling a man Heretike, another for saying a man was perjured; and the other three for cal­ling of one Thiefe all of which are high scandals to a mans reputation and most of them tending to the losse of life and fortunes; so that it is very true that that Reverend Chiefe Justice observed, that these Actions were very rare in our old bookes, and such as were brought were for words of emminent slander, and of great importance.

But these few have now got such a numerous progeny that I feare we can­not turne over many leaves in our new books, but wee shall finde one of these Actions. They began thus to multiply in the Queenes time, as wee finde in my Lord Cockes 4. book, where there is no lesse then 17. adjudged cases together upon these Actions.

And you may easily judge, they did not abate in King Iamses his time; for [Page 9] (if I mistake not) there is no lesse then two and twenty adjudged cases upon these Actions in my LORD Hobarts Book.

And I am certaine they are not fallen in His Majesties Raigne that now is; for I my selfe have reported no lesse then three and twenty judgments upon these Actions but from Easter Tearme in the sixteenth yeare of the King, to Trinity Tearme in the eighteenth.

Well therefore might Wray Chiefe Iustice say, that the malice of men doth more increase in these times, then in times past; and as he saith, the malice of men ought to be with stood as much as may be; which I am sure the too fre­quent tollerating of Actions of this na­ture wil not effect,Psal. 37. ver. 1. 2. no more then fire can be extinguished by adding fewell un­to it. You have heard my advise and di­rection before, therfore I will here close this with one word, though the tongues of men be set on fire, I know no reason wherefore the Law should bee used as Bellowes to bow the Coles.

It is the saying of the Prophet Da­vid; I will take heed to my ways, that I of­fend not with my tongue, I will keepe my [Page 10] mouth as it were with a Bridle. It were happy for all men if they could make the like resolution, and keep it. But see­ing that wee are but men; whilest wee carry this lump of flesh and masse of corruption about us, we shall be subject to the like passions and affections that o [...]er [...] have beene before us, and the flesh will rebell against the spirit. And therefore I have provided this Treatise upon Actions of slander, as a Bridle for all rash and inconsiderate [...]ongues; that seeing the mischiefe they may the bet­ter know how to avoyd it.

And here I shall lay downe this as a generall rule, which I shall by the way as I goe, make good in every perti­cular.

That all scandalous words which touch or concerne a man in his life, Liberty, or Member or any corporall punishment; or which scandall a man in his Office or place of Trust; or in his Call [...]ng or function by which he gaines his living; or which tend to the slandering of his Title or his disin­heritance; or to the losse of his advance, me it, or preferment, or any other particu­lar damage; or lastly which charge a man to have any dangerous infectious disease, [Page 11] by reason of which he ought to seperate himselfe, or to be seperated by the Law from the society of men: all such words are actionable.

And first for the first part of this Rule viz. Scandalous words which touch or concerne a man in his life; such words are actionable.

If a man call another Traitor,30. Ass fol 19. 27. H. 8. 14. & 22. Felon Theefe, or Murderer, an Action lies for these words, because they call a mans life in question.Cooke lib. 4. fol. 16.

So it is all one if one shall say of ano­ther that he killed or murdered I. S. Dyer. fol. 26. [...]. 171 & 236. fol 26. Heb. Rep: fol. 8 Pl. 11. & 247. pl. 196. or that he stole his good [...], or that he poy­soned him, if it appeare to be intended to be wittingly done, or the like, these words likewise are Actionable, as ap­peares by the Bookes in the Margent.

So if one shall say of another he hath burnt my B [...]ne with Corne,Cooke. l. 4. fol. 20. which is Felony, this likewise will beare an Action.

I have a Report of a case which was thus: a Servant of one Mr. Roger Brook said of one Mis. Margaret Passey that she sent a Letter to his Master, and in the said letter willed his Master to poy­son his Wife Bridget Brooke, and in this [Page 12] case it is, said that upon a Writ of Er­ror brought in the Cnequer Chamber it was resolved,Cooke, l. 4. fol. 16. b. the words were actionnable, and the judgement affirmed, which case I confesse I much doubt, be­cause here was but bare advise, and no­thing appearing to be done; like Eatons▪ case in Cooks 4 Booke.

Where the Defendant said of the Plaintiffe that Hee gave his Champion Councell to make a D [...]ed of gift of his goods to kill him, &c. adjudged that the words were not Actionable, because that the purpose or intent of a man without act, is not punishable by the Law.

And I conceive it will not be like the case,Pasch. 5. Iac. in the Kings Bench. put by Tanfi [...]ld Iust. in Harris and Hixons case, where he saith that to say of another, that he lay in wait to Rob or to murder I. S. will beare an Action, because that he accuses him of an act viz. The preparation and lying in wait, which is punishable by the Law; but in the former case there is nothing but bare advise,Mich. 1 5. Eli [...] Dyer fo. 317. fol. 8. which is not punishable by the Law.

Hawly brought an Action upon the case against Sydnam for these words; h [...] [Page 13] is infected of the Robery and Murder lately-committed, and smels of the murder, adjudged that the words were actionable, by reason of the word in­fected.

One said of another thou diddest kill a Woman great with Child,Mich 2 Iac. in the Kings Bench. innuendo Iocosam Vxocem cuiusdam R. S. defunct. and rules by the Court that the Action wold lie, though that the woman were ut­terly incertain, because that the offence, and the party intended to commit it, is certaine, and tis not like the case, where one said that there is one in this com­pany; who hath committed a murder, there it is incertain of whom the words were spoken, and cannot possibly bee ayded by an (innuendo) but here the words are Actionable without an (in­nuendo) but quaere whether the Action would lie or no because there is no ex­presse averrement that the Woman was dead for the (innuendo) will not be suffi­tient.Pasch. 1. Iac. in Rs. Rs. Rot. 107.

Hassellwood brought an Action against Garr [...]t for these words (amongst others agreed not to be actionable) whosoever is he that is falsest Theefe, and strong­est in the County of Salop, whatsoever [Page 14] he hath stollen, or whatsoever he hath done.Averment Thomas Hasselwood is falser then hee resolved that these words are actio­nable, with an averrement that there are Felons within the County of Salop, but for defan [...]t of such averrement, the judgement being given in the Common Pleas was reve [...]ed in this Court.Pasch. 5. Jac. in the Kings Bench.

Stoner brought an Action for words against Gambell, and declares that the De [...]endant dixit deprefato: the Plaintiffe thou innuendo, &c. hast stollen my Goods; and upon not guilty pleaded, the Iury found for the Plaintiffe, and in arrest of judgement it was said, that the Count was nought for the words are in the second person,Words in the second person, though the party be not present, actionable and it is not all adged that the Plaintiffe was pre­sent at the speaking of them. Et Tota Curia contra, for dixit deprefato, is as much as Dixit ad prefatum, for can­not he say thou hast of the Plaintiffe, except that it were spoken to him? and rule was given for judgement.Cook lib. 4. fol. 5. b

One [...]mans said of Hext, I do not doubt but within two dayes to Arrest Hext [...]or suspition of Fellony: adjudged that the words were Actionable, be­cause [Page 15] that for suspition of Felony, hee shall be imprisoned and his life drawne in question.

Hill. 20. Iac. in the Kings Bench, Winch came to the Barre and shewed a Libell against another in Court Chri­stian for these words, thou art a Witch and dealest with Witchery, and diddest procure Mother Bale to witch the Cat­tell of I. S. and upon this prayed a pro­hibition, because that the Plaintiffe had remedy at Law, and by Fenner and Gaw­dy Iustices the others ab [...]ent and Pro­hibition lies, because she hath remedy at Law. So that their opinion was that an Action would lie at the Common Law for calling of one Witch.

And in one Edwards his case Hill. 40 Iac, Hill. 4 [...] lac: in the Kings Benche: it was said to have been three [...] adjudged that to call one Witch would beare an action and also that an action would lie for calling [...] one Hagge but I doubt of the latter because I take Hag to be a doubtfull word. But why Witch should not beare an Action, I know no reason,Hob. Rep: pa: 155. being t [...]e life may be thereby drawne in question, though I know it hath beene doubted.

Marshall brought an Action against [Page 16] Steward for saying the Devill appeares to thee every night in the likenesse of a black man riding upon a black Horse, and thou conferrest with him, and what­soever thou dost aske he gives it thee, and that is the reason thou hast so much money, adjudged the words were Actionable. Note Reader, that by the Statute of 10 of King Iames cap. 12. Conjuration or consultation with the Devill, is Felony.

In the case of Hawes Mich. 17. of the King that now is,Mich. 17 this case was put and agreed by the Iudges;Car. in the Kings Bench. one said of ano­ther that hee had received a [...], Priest, adjudged actionable, because it is Felony, he might receive a Romish Priest and yet not know him to be so, (like the cases I have put you after­wards, therefore Quere.

Sir Iohn Sydenham against Timothy Man Clark I think in my conscience that if Sir Iohn Sydenham might have his will,Hob. Rep. pa: 15 [...] he would kill all the Subjects in England▪ and the King too, and he is a maintainer of Papistry and Rebellious Persons. These words upon a Writ of Error in the Exchequer Chamber were adjudged actionable.

[Page 17] It seemes somewhat hard to me Rea­der that words of thoug [...]t or opinion only should beare an Action as here in the former words. [...] so 32. b. And for the latter words, that he is a maintainer of Re­bellious Persons; they are Adjective only,Cooke lib. 4. fo 1 9. a. b. and do not import any Act of re­bellion in those Persons, but only an in­clination to it, but of this more here­after.

If a man say of another that he doth like or approve of those that maintaine sedition against the King.Coke lib. 4. fo 13 I conceive that these words are actionable and se­dition is a violent and publique thing, of which he cannot but have notice.

This Rule was agreed by the Iudges in the debate of a case in the Kings Bench,Pasch. 15. Car. in the Kings Bench. that many words (though of themselves they be not actionable yet being equivolent to words that are actionable, will beare on Action.

And it was said by Iones Iustice, that in Yorkshire strayning of a Mare is all one with Buggering of a Mare and therefore he said that an action will sie for these words, with an averrement that they tantamount to Buggering of a Mare. Note by his opinion in such [Page 16] [...] [Page 17] [...] [Page 18] case there must be an averrement of the m [...]ning or importance of the words.Averre­ment.

Yet my Lord Hobart hath severall cases adjudged where a man brought an action for Welch words,Hob. Rep. pa: 165. & 263 pl. 236. Gibs and Gin kins case. and did not a­verre what the words did import in English, and yet judgement was given for the Plaintiffe, and the Court tooke information upon Oath by VVelchmen what the words meant in English.Averre­ment:

And in one of the cases Serjeant Iohn Moore then informed t [...] Court that judgement had bin given in the Kings Bench in the case of Tu [...]h upon these words▪ 6. Iac. in the Kings Bench. Thou art a healer of Fellons with­out any aver [...]ement, how the words were taken; because the Court was in­formed and tooke knowledge that in some Counties it was taken for a smo­therer of Felons.

The ca [...] intended by Serjeant Moore was I conceive the case of Pridham and Tucker in the Kings Bench,Pasch. 7. Iac. in the Kings Bench. where the words were adjudged actionable, with­out an averrement and in this case [...]t was agreed that words may be slande­rons in one County and not in another for in Norf they know not what healer signifieth,Words slanderous in one County and not in another. but this being in De [...]nshire [Page 19] where this word is used for concealer of Theeves, will be actionable.

And I take this to be generally true that in all cases where a mans life may be [...] drawne in question by scandalous words, that such words are Actionable.

And now I shall cite a case or two, where words spoken which such a mans life, which are by way of interrogation, or by way of hearesay or relati [...]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,Pasch. 15. Car. that where a man said to another where is my Peece thou sto [...]lest from me,VVords spoken by way of in­terrogati­on. that these words were Actio­nable.By way of report or Relation.

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.Hill. 4. lac. in the Kings Bench Rot. 1153▪

Agreeing with this case is the Lady Morrisons case Widdow, who brought an action for words against VVilliam [Page 20] C [...]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 pre [...]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,Pasch. 15 C [...]r. nega­tive words actionable. You are no Theefe. In which there was an averrement, which implied an affirma­tive, and agreed to be Actionable, and [Page 21] Appletons case was then agreed for Law.

A. said to Is. hast thou beene at Lon­don to change the money thou stollest from me? Mich. 15▪ Car. in th [...] Kings Bench. In this case it was objected, that these words were not actionable,Words of Interroga­tion. 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 Ba [...]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 dream [...] you stole a horse, actionable 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, [Page 22] where words which imply an affirmative shall be actionable.

One said of another,Pasch. 15. Car. in the Kings Bench. 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.

Whitaer [...]s brought an action against Lavington for these words;Pasch. 5. Iac. in the Kings Bench. 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,Pasch. 7. Jac. in the Kings Bench. 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 [Page 23] 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 pla [...]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;Mich. 4. Jac. in the Kings Bench. adjudged not actionable, be­cause they are too generall, for that hee doth not shew any thing that hee hath done to deserve it: and b [...] Yelverton Iustice, hee may deserve it for unnatu­rall [Page 24] 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,Pasch. 7. Jac. in the Kings Bench. adjudged not acti­onable, in Pr [...]dham and Tuckers case cited before, because the words are too generall.

Iames Steward brought an action a­gainst B [...]shop for saying of him,Hob: Rep. p. 247. pl. 196. that hee wa [...] in Warwicke Gao [...]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.

[Page 25] Georg Bla [...]d brought an action against A. B. for saying that he was Indicted for Felony at such a Sessions;Hob: Rep. p. 309. pl. 289. 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 wil [...] 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 that hee had committed Felony, and so it hath bin often adjudged, I will only cite one case in the point.

Hasselwood brought an action against Garret for these words;Pasch. 1. Jac. in the Kings Bench. Rot. 107. I can finde in this Parish a falser knave then Briscoe is the which Briscoe is indicted of Felony & burglary, and is gone to Stafford Goale; and that false kn [...]ve is Thomas Hassel­wood, &c. it was adjudged that these words are not actionable because that Briscoe might be indicted and yet be an honest man.

Thou hast laye [...] in Fullers Tubbe, 37▪ Eliz. Chappell and Bur­roughes case. in which none come, but those that have the Pox adjudged the words were nor acti­onable, because this is no direct affi [...]ma­tion [Page 26] that the Plaintiffe had the Pox.

Poland brought an Action against Ma­son, Hob: Rep: p. 425 pl. 381. for saying, I charge him (meaning the P [...]aint [...]ffe) with Felony, &c. adjud­ged the words were not actionable, be­cause that he doth not affirme that he is a Felon, but doth onl [...] say, that he doth charge him with Felony, which he may do in some cases▪ though he did not the fact▪ as if a Felony were done▪ and the common fame were▪ that he did it any one that suspects him may charge him with it.

Hen [...]y brought an Action against Fit [...]h for these words;H [...]b: Rep: p. 308. pl. 286. I arrest you for Felony: agreed that the words were not actionab [...]e for this is no positive charge that hee was a Felon, and this may bee lawfully done upon a common fame as is said before, thus you see that words that are not directly affirmative wil not beare an action.

Yet you may see before fol. 7. where words which imply an affirmative only shall be actionable, as to say, that I will prove that you stole my Books, or the like, but of this sufficient.

Secondly, fol. 1 [...]. [...]. & 11. [...] Words that are of a double or indiff [...]rent meaning, The Law wil take [Page 27] in the best sence for the Speaker, and s [...] adjudge them actionable, for the rule of Law is (as I have said before) that verba accipienda sunt in mitiori sensu:

Yeomans and Hexts case cited before, Cooke l. 4. fol. 15. b. for my land in Allerton, Hext seekes my life, &c. adjudged these words were not actionable, because he may seeke his life lawfully upon just cause; and his Land may be holden of him, and so in mitiori s [...]nsu.

Barham brought an Action upon the case against Nethersall, Cooke l. 4. fol. 20. [...] and the words were Master B [...]rham did burn my barne, (innuendo a Barue with Corne] with his owne hands, and none but he: and after verdict it was moved in arrest of judg­ment, that the words were not actiona­ble, for it is not felony to burn a Barne, if it be not parcell of a Mansion house, nor full of Corne; And in such case agitur civiliter, and not criminaliter: and words must be taken in mitiori sen­su; and the innuendo will not serve when the words themselves are not slanderous.

Ieams his case,C [...]ke, l. 4. fol. 17. hang him he is full of the Pox, I marvaile that you will eate or drinke with him, &c. adjudged that the [Page 28] words wer [...] no [...] actionable, because they shall bee taken in mitiori sensu for the small Pox and not the French Pox.

But no [...]e that in Hawtry and Miles case cited afterwards it was said by Fenner Iust: Mich: 20 Iac. in the Kings Bench. that to say that a man is layd of the Pox, will beare an Action; because that is the phrase for the French Pox.

Adrian Coote brought an Action a­gainst Adrian Gilbert for these words;Hob: Rep: p. 106. pl. 97. Thou art a Thi [...]fe and hast stollen a Tree adjudged that the words were not acti­onable▪ and agreed that there is no dif­ference betweene▪ and thou hast stollen, and for thou hast stollen; for in common acceptation (and) is to bee understood to be but a verifying and making good of the generall word (Theefe) and then a Tree shall bee understood rather of a Tree standing then felled; which can bee no Felony or Theft for that a man cannot steale a mans inheritance.

So Clarke brought an Action against Gilbert for these words;Hob: Rep▪ p. 473. pl. 406. thou art a Theefe and hast stollen twenty load of my Furz adjudged that the action would not lie for the reasons given in the for­mer case.

[Page 29] The like Law is,Cook▪ l. [...]. 4. so 19. [...]. if a man say of ano­ther that he hath stollen his Apples, or his Corne, or robbed his Hoppe ground, or the like, the Law in these cases will adjudge them rather growing, then ga­thered or cut downe, and so the words not Actionable.

Thus it is evident, that where the words may be taken in a double or an indifferent meaning that the Law will ever take them best for the Speaker. I shall only put one case more upon this ground and so passe it over.

Pawlin brought an Action against Ford for these words,T [...]in. 18. Car. in the K [...]ngs B [...]nch. thou art a Thee­vish rogue, and hast stollen my Wood. It was in this case said at Barre the Action would not lie, because it should be construed rather to be wood stan­ding then cut downe, like those cases put before.

But Bramston chiefe Iustice seemed to incline that the words were actionable▪ because that [wood] cannot be other­wise intended then of Wood cut down according to the old verse; Arbor du [...] crescit▪ lignum dum crescere nescu, and so it was adjourned without more say­ing.

[Page 30] Note Reader, Trin. 4. Iac. in the Kings Bench, Rot. 1366. according to the opi­nion of Bramston Chiefe Iustice, betwixt Litchfield and Saunders for the same words, hee hath stollen my wood, to which the defendant demurred, it was adjudged that the Action would lie, for Tanfield Iustice said that the words shall be intended according to the most usuall sence,VVords must be taken ac­cording to common int [...]nt. viz. That it was Lignum, and not Arbor, as if one say that the Plaintiffe hath committed a murder▪ it shall not be intended that he hath mu [...] ­dered a Hare, but a man.

You may here observe (Reader) that though words of a double or indifferent meaning ought to be taken in the best in­tendment for the speaker as I have suffici­ently cleared it unto you yet they ought not to be taken contrary to common intend­ment.

For as you shall not straine words to an intent not apparent, to make them actionable, so you must not wr [...]st them contrary to common intent, to make them no [...] actionable this is apparent by Sanders his case immediatly before, where it is adjudged that to say of ano­ther you have stollen my Wood, shal [...] be intended to be Lignum, and not Arbor, [Page 31] and so actionable, so to say of a man that he hath committed a murder, shall not be understood murdering of a Har [...], but a Man.

Dame Morrison brought an Action against VVilliam Cade Esquier a [...]d de­clared that she was of good same,Hill. [...] Iac. in the Kings Bench Rot. 115 [...] &c. and that Henry Earle of Kent was in speech and communication with her for mariage, the defendant pr [...]misso um non ignarus said these words Arscot hath reported that he hath had the use of the Lady Morrisons body at his plea­sure; ubi revera Arscot never reported it. And further alledges that the E. of Kent upon the hearing of these words surceased his suit by which she lost her advancement, the Defendant pleaded not guilty, and it was found for the Plaintiffe. It was moved by Hobart Atturney Gener [...]ll that the words were not actionable for this reason amongst others all ruled against him [...] because that the words had the use of her Body were incertain and of a double intend­men [...], 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 [...]ence.

[Page 34] But by Popham chiefe Iustice the words are actionable,Words ta­ken accor­ding unto common intent. 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 sha [...]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,Mich: 15. Eliz. Dyer fo. 317 Pl. 8▪ where the words are doubtful in sence or meaning, there likewise they will not be actio [...]able.

To say that a man smells of a murder lately committed, will not beare an Action,Hob: Rep. p [...]. 350. pl. 323. Coke lib. [...]. 15: b. 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 d [...]ddest [...]lch from VVilliam Parson a 100. l. adjudged that the words were not actionable, because that they are of incertaine sence and meaning.

[Page 35] So to call one Harlot will not beare an action.Coke▪ lib. 4. 15. b. 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 [...] 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.

A [...]d first for the incertainty of the words;ve. fo. 8. [...] fo. 9. 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▪ [...]for ought appeares by the [Page 36] 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 Fu [...]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,Hob. Rep. p [...]. 8. Pl. 11. 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.Hob. Rep. pa. 268. pl. 236.

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,Mich. 15. Car. in the Kings Bench. for which, B. brought an Action, adjudged that it would not lie.

Bramstan chief [...] Iustice in the argue­ing of Hawes Case, Mich. 1 [...]. of this [Page 37] 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.37. Eliz. in the Common. Pl [...]as. 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,Coke lib. 4. fo. 17. b. &c. here fore the incer­tainety of the person no action lyes; neither can it be made good by an (in­nuendo.)

So,Coke ibi. 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;Hob. Rep. pa. 375. pl. 351. 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, [Page 38] 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,Mich. 3: in the Kings Bench. 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.

[Page 39] 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;Mich. 2. Iac. in the Kings Bench. 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, Hob. Rep. pa. 122. pl. 118. 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,Words certain by relation. spake these words; these De­fendants [meaning the Plaintiffe, and the others] are those that helped to murder Henry Farrar (meaning one [Page 40] Hen. Farrer deceased who was murde­red by one T. Guldfield, who was hangd for it, adjudged the words were actio­nable, and that they were as sufficient­ly layed to entitle every of the defen­dants to a severall Action, as if they had beene specially named, here you see the words may be sufficiently certaine by relation.

Fifthly, where former words actionable are qualified with subsequent words not Actionable, there though the former words spoaken generally, aud by themselves would have maintained an Action, yet now, taking altogether, they will not bee Actionable.

Thou art a Theefe, for thou hast sto­len my Apples out of my Orchard; or, for thou hast robbed my Hopground, or, for thou hast stollen a Tree; or, for thou hast stollen my Furzes; as I have put you the cases before. Or, thou art a Theefe, and thou hast stollen my aples out of my Orchard; or, and thou hast robbed my Hop ground, &c. [aud] and [for] have both one and the same signi­fication in these cases, as I have cleered it to you before to be adjudged; and in all these cases no Action will lie.

[Page 41] For [as I have said before] the latter words do qualifie the former, for the former words say him to be a Theefe, but the latter prove him to be no [...]e. I have given the reason before, because that in all these cases, the Law which will alwayes construe words the best for the Speaker, will take the Apples, Hopes &c. to be growing, and then it is Trespasse only and not fellony to take them away because felony as I have told you before] cannot bee committed of that wch is parce▪ of a mans inheritance as these are whilst they are growing.

Britteridge brought an Action for these words;Cook lib. 4. fo. 19. [...] b. Britteridge is a perjured old knave, and that is to be proved by a Stake, parting the land of H. Martin, and M. VVright, adjudged that the words are not actionable, because though the former words would beare an Action, the latter do so qualifie and extenuate them, that taking altogether they are not actionable for the latter words do explaine his intent, that hee did not intend any judiciall perjury; al­so it was impossible, that a Stake could prove him perjured, and therefore for the impossibility, and insensibility of [Page 42] the words the action would not lie.

Sixtly, where the words doe not im­port an Act, but an intent only, or an in­clination to it, there such words [except where they s [...]and all a man in his function or profession] will not beare an Action.

If a man say of another that he is a seditious knave,Coke lib. 4. fo. 19. [...]. b. or a theevish knave; or a traiterous knave; these words will not beare an Action; because that the words do not import that he hath done or is guilty of Sedition, Felony, or Treason, but are Adjective words, which import an inclination to it only.

But if a man say of another that hee is a parjured knave, an Action will lie for these words, because that the Ad­jective [perjured] presumeth an Act committed, or otherwise hee cannot be perjured.

Besides,Coke ibi. Adjective words will beare an Action▪ when they scandall a man in his office, Function or Trade, by which he doth acquire his living, though they do not import an Act done.

My Lord Cooke cites this case ad­judged, 24. Eliz. between Philips Par­son of D. and Badby, in an action brought for these words, thou hast [Page 43] a seditious Sermon, and moved the people to sedition this day: resolved that the words were actionable, notwithstand­ing that the first part of the words were utter adjective, and the last words were but a motive to sedition, and it doth not appeare that any thing ensu­ed; yet because that they scandall the Plaintiffe in his function, they were ad­judged actionable.

So,Mich. 43. & 44. Eliz in the common Pleas, Mittons case. 6. E. 6. Dyer, f. 72. if a man say of a Merchant, that hee is a Bankruptly Knave, or a Bank­rupt Knave, these words will beare an action, though that the Bankrupt bee adjective.

Or if one say of a Merchant, that he will be Bankrupt within two dayes, which imports but an inclination, [...]y [...]t an acti­on will lie; for these scandalls reach to the profession.

So if a man say of an Officer or Judge,Cooke, lib. 4 fol. 16. a▪ & 19. a that hee is a corrupt Officer or Iudge, though the words be adjective yet an action lyeth for both causes; first because the words touch him in his Of­fice, and then because they doe import an act done.

Hob. Kep. pag. 12. pl. 17. Yardly, and Ellill [...] case, to say of an Atorney, that [Page 44] he is a bribing knave, will beare an acti­on, though the words be adjective.

Words likewise that import an intent only, will not beare an action.

The defendant said of the [...]laintiffe for he is a brabler & a quarreller he gave his Champion counsell to make a Deed of gift of his goods to kill me▪ &c. but God pre­served mee; Cooke, lib. 4. fol. 16. b. Eatons case. The book saith, that it was strongly urged, that the action should be maintainable, and divers cases cited, which I will remember unto you.

My Lady Cockeins case for these words; Mic. 32. & 33. Eliz. in the Kings Bench. My Lady Cockein offered to give poyson to one to kill the Child in her body.

Another betwixt Tibets and Heyne in Glocester for these words: Tibots and another did agree to hire one to kill B.

Also Cardinalls case for these words, if I had consented to Master Cardinall, T. H. had not beene alive.

And the Lord Lumlyes case; My Lord Lumley hath gone about to take away my life, against all Christian dealing

But notwithstanding these cases, the book saith, that upon great deliberati­on and advisement, it was adjudged, that in the principall case the words [Page 45] were not actionable, because that the purpose or intent of a man, without act is not punishable by the Law. My L. Cooke in the close of this case sayes, Note well this case, and the casue and reason of the judgment.

Certainly Reader there is somwhat more than ordinary in this (Nota be­ [...]e) of my Lord Cookes; and the reason of the case seemes to intimate as much unto us; which is, that the purpose or intent of a man, without act, is not punishable by the law, which is a certain truth.

But I conceive it is as true, that where that purpose or intent is mani­fested by an overt act or attempt that that is punishable.

Mich. 4. of King Iames in a case in the Kings Bench,Mich. 4. Jac. in the Kings Bench. this was agreed for law; to say of a man, that hee lay in waite to assault I. S. with an intent to robbe him, or to murder him, an action lyes, because that hee doth accuse him of an act, viz. the preparation and ly­ing in waite to assault him, but if hee had said that he would have murdered, or would have robbed I. S. an action would not lye, because hee only guesses at his imagination.

[Page 46] And in Harris and Dixo [...]s case in the Kings Bench,Pasch. 5. Jac. in the Kings Bench. that case was allowed for law by Tanfield Iustice, where hee sayd that if one say of another, that hee lay in waite to murder I. S. an action lyes, because such lying in waite is punish­able by the law.

By this case it should seeme, that to charge a man with an attempt only to commit Felony, as to say of a man that hee offered to rob, or to poyson, or to murder I. S. that these should be actio­nable; for I think the like punishment is in these cases, as in the former, which I conceive is only the good behaviour, or at most indictable for it, and there­upon fined.

And if an action should lye in such case; by the same reason, to say of a man, that he is a common Quarreller, breaker, or perturber of the Peace, or that hee is a Riotter or the like would beare an action, because that for these likewise the good behaviour is granta­ble, and likewise a man may bee in­dicted for them, therefore quaere of the former cases.

Seventhly, words which are apparently impossible, will not be actionable.

[Page 47] Benson brought an action against Mor­ley for these words;Pasch. 5. Jac. in the Kings Bench. Thou hast robed the Church (innuendo Ecclesiam sic Al­hagi extra, Creplegate London) and hast stollen the Leads of the Church; Upon not guilty pleaded it was found for the plaintiffe and it was moved in arrest of judgement▪ that the words were not actionable, because the Church shall be intended the Universall Church, and not any materiall Church, and the Church Militant cannot bee robbed, and so the words are impossible, but by Popham, Chiefe Iustice, and Tanfield Iustice, the action will well lie, and so it was adjudged, because the words in this case cannot be intended of an in­visible Church, as is objected, but of a materiall Church, as is explained by the subsequent words; and hast stollen the leade of the Church: which can­not bee understood of the invisible Church.

In this case Reader you may observe that it is admitted, that to say of a man that hee ha [...]h robbed the Church▪ gene­rally will not bee actionable; because that it shall be understood of the invi­sible Universall Church, and so the [Page 48] words impossible, because that cannot be robbed.

So, I conceive to say of a man, that he hath robbed a Church will be actio­nable▪ because this must of necessity be understood of some perticular ma­teriall Church.

Dickes a Brewer brought an action against F [...]nne for these words; Mich. 15. Car. in the Kings Bench. I will give a picke of Malt to my Mar [...], and leade her to the water to drinke, and shee shall pisse as good beere as Dickes doth br [...]w; adjudged the words were not actionable, because impossible, and therefore they could be no scandall to the plaintiffe.

Britteridge brought an action for these words, Cooke lib. 4. f. 19. a. b. Britteridge is a perjured old Knave, and that is to bee proved by a stake parting the land of H. Martin, and M. Wright, adjudged the words were not actionable because that it was im­possible that a stake could prove him perjured.

Lastly, where it doth appeare that the speaking of the words could bee no dam­mage to the plaintiffe, there likewise no action will lye.

The Plaintiffe shewes in his Count,Cooke, l. 4. fol. 16. a [Page 49] that the defendant hath a wife yet in life, and that the defendant said of the plaintiffe, Thou hast killed my VVife; adjudged that the words were not a­ctionable, because that it doth appeare by the plaintiffes Declaration, that the Wife of the defendant was in life, so that by these words the Plaintiffe could not bee in any jeopardy nor scandaled, or damnified by them.

The like case was put in [...] Thomas H [...]lt and Taylors case Pasch. Pasch. 5. Iac. in the Kings Bench. 5. of King Iames; if one say of a woman. That she hath murdered her husband; and shee and her husband bring the action, it will not lye, because it doth appeare by the Record, that the slander is not prejuditiall.

And as when it doth appeare by the Record that the speaking of the words could be no dammage to the plaintiffe, no action will lye. So where the speaking of the words might bee a dammage to the plaintiffe yet if the ground of t [...]at dam­nification doe not sufficiently appeare by the Record, the action will not lye.

A br [...]ught an action against B. for saying That hee kept false waytes by which he did cousen, Mick. 17. Car. in the Common Pl. a. &c. and declared [Page 50] that hee gained his living by buying and sel [...]ing, but did not shew of what profession he was; adjudged that the action would not lye, because it cannot appeare (without shewing of his pro­fession) that the speaking of the words could bee any dammage to the Plain­tiffe.

A. Brought an action against B. for these words;Trin. 17. Car. in the Common Pleas. Thou hast killed my bro­ther [innuendo G. &c. fratrem, &c. nuper mortuum) adjudged that the words were not actionable, because the Plaintiffe did not averre, that hee was dead at the time when the words were spoken, and if hee were living, then the speaking of the words could be no slander or damage to the Plaintif▪

So where a man brings an action for Welsh words or the like which are scan­delous,Hob. Rep. pag. 159. a pl. 145. pa. 165. a pl. 154. & pa. 261. pl. 236. and doth not aver, or set forth that they were spoken to one who un­derstood the meaning of them, the a­ction will not lye, because it doth not appeare by the Record, that the speak­ing of the words could be any damage to the Plaintiffe. For if they were spo­ken to one that did not understand the meaning of them, no action would [Page 51] lie, because they could bee no scandall to the Plaintiffe.

And now I shall adde to the rest, on­ly this one ground where words shall not be actionable, and that is in this case.

VVhen a man is charged with a crime or offence by scandalous words, where it doth not appeare by the words, that he had notice or knowledge of the ground or oc­casion of the crime or offence in such case no Action will lie for such words.

Bridges brought an Action for those words he (prefat Bridges innuendo) is a maintainer of T'heeves and he keepeth none but Theeves in his [...]ouse, and I will prove it, upon a writte of Error in the Chequer Chamber, it was holden the words were not actionable, because he might maintaine Theeves without notice, and therefore the first Judge­ment was reversed.

Like the case in my Lord Hobarts Booke where an Action was brought against another, for saying that the Plaintiffe kept men which did robbe upon the Highway, adjudged that the words would not beare an action, be­cause that he might keepe them and [Page 52] not know them to be such persons.

In the case of Reade and Saule which was Mich. 40. e [...] 41. of the Queene,Mich. 40. & 41. of the Queene in the Com­mon Plea▪ this case was remembred by Walmesley Iustice▪ a man brought an action in that Court for these words he [meaning the Plaintiffe] is a receiver of Theeves, and he said that in this case the Plaintiffe could have no judgement, because that he might receive Theeves, and yet not know them to be so.

A. said of B. that he kept false waites for which B. brought his action;Mich. 57. Car. in the Common Pleas. ad­judged that the action would not lie, because that it did not appeare that he did use them; and besides, for that hee might keepe false waites, and not know them to be so.

The case of Miles and Iacob cited be­fore is likewise to this purpose,Hob. Rep. pa. 8. pl. 11. where an action was brought for these words, thou hast poysoned Smith, adjudged that the words would not beare an acti­on, because that it did not appeare that he did it wittingly.

Stanhop brought an action against Blith for these words;Coke lib. 4. fo. 25. Mr. Stanhop hath but one Mannor, and that he hath got by swearing and forswearing, resolved [Page 53] 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,2. E. 4. 5. 15 E. 4. 38 17. E. 4. 3. 13. H. 7 K [...]ilway fo. 26. b. 27. a. 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 [Page 54] Villaine, he was subject both in person and estate to the will of the Lord, so [...] 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,Hob. Rep. pa. 258. Male &. Ret [...] case, & 27 H. 8. 22. 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 [Page 55] 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,Cook lib. fo. 15. & 19. Br. an action will lie for these words.Action up­on the case 104. Hob. Rep. pa. 114. pl. 107▪ 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,See fo. 7. a. b. an action will lie, though it be but an implied affirma­tive.

Hearle against Tresham thou hast ta­ken a false Oath in the Session of,Hil. 1. Iac. in the Kings Bench. &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.Hob. Rep. pa. 396. pl. 360.

Adams against Flemming, he hath for­sworne himselfe before the Counsell of the Marches of VVales in the suit I had [Page 56] against him there for perjury; adjudged actionable.

In Lelicke and VVrinskemores case Mich. 7. of King Iames in the Kings Bench,34. of the Queene Cossimans case. 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,Mich. 41. & 42. of the Queen in the Common Pleas. 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,Coke lib. 4 fo. 15. b. cannot bee Law,Yet quaere whether the Iudges can intend this a Court of Record [...] 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.

[Page 57] If a man say of a Woman that shee hath a Bastard,Cooke lib. 4. fo. 17. Anne Da­ni [...]s case. 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,Trin. 16 Car. in the Kings Bench. 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;Trin: 18 Car in the Kings Bench [...] 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 [Page 58] that Elizabeth Thorne had Libelled in Court Christian against Turnam for defamation for these words, [...]ill▪ 4. Iac. in the Kings Bench. 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.Mic. 17. Car. in the Kings Bench.

Hawes brought an Action for these words; my Cousen Hawes hath spoken [Page 59] 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 be [...] 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 [Page 60] 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, Heb. Rep. pa. 183. pl. 188. 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,Mich. 4. Iac. in the Ki [...]g [...] Bench. the words were, I am sorry for thy Wife [Page 61] and children, thou art a common Barre­tor, and I will indict thee for it a [...] 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,Hob. Rep. pa, 159. pl: 145. Box and Barnabies case▪ 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 [Page 62] 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 wch are before set downe, wh [...]re words shall not be actionable, which touch or concerne a mans life; will agree with all actions for words whatsoever, whe­ther [Page 63] 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,Hob. Rep. pa. 159. pl. 245. 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 b [...]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 [Page 64] 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;Pasch: 15 Car. in the Kings Bench. 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 Willi [...]ms, thou art, &c. thou wert forsworne in the Kings Bench, he said that in this case [Page 65] 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,Cooke lib▪ 4. fo, 16 a 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; Hob, Rep pa, 3, pl: 4 this is Iohn Thomas his writing, he hath forged this VVarrant; adjudged the Action would not lie.

Harvy brought an Action against Duckin, Hob. Rep. pa. 36, pl. 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 [Page 66] 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 Sub­p [...]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,Hob. Rep. pa. 467. pl. 395. 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 [Page 67] generall and utterly incertaine.

Britteridges case cited before,Coke lib. 4. fo. 19. 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,Coke lib. 4. fo. 19. a. and 16. a. Cooke, lib. 4 fol. 16. a adjudged the words were actionable.

Stucley a Justice of Peace brought [Page 68] 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,Pasch. 7 Iac: in the Kings Bench. 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;Trin. 36. of the Queene Rot: 223. in the Kings Bench. 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.Pasch. 37. of the Queene in the Kings Bench. Rot 147:

Cotton Iustice of Peace brought an action against Morga [...] for these words. Hee hath received money of a Theefe that was apprehended and brought be­fore him for stealing of certaine sheep▪ [Page 69] 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;Pasch. 4. Iac. in the Kings Bench. this case commen­ced Trin. 3: 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.See fo. 18. a.

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,Mic. 4. Iac in the Kings Bench. 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 [Page 70] 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,Sir George Moore & Fosters case. 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 [...]or Iudge, nor is sworne yet because it is a place of great Trust reposed by the [Page 71] 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,Pasch. [...] 17▪ Car in the Kings Bench. 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.

[Page 72] 8. Car. the Major of Tivertons case▪ 8. Car. in the Kings Bench. one said of him that the Major had cousened all his Brethren, &c. adjud­ged not Actionable.

9. Iac. in the Kings Bench,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,26. of the Queene in the Kings Bench. 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;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;See fo. 23. b. 24. a. 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 knave [...], or [Page 73] 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,Hob. Rep. pa. 104. pl. 93. 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 [Page 74] 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,Note Rea­der this case agrees with the cases im­mediatly before. 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 [Page 75] 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 puni [...]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,Hob. Rep. pa. 375. pl. 351. brought an Action against Curbey for these words; Mr. Deceiver hath decei­ved and cousened the King, and dealt fals [...]y with him, adjudged the words were Actionable.

The like case, where one said of an [Page 76] Auditor, that he was a Frauditor, was adjudged Actionable.

An Action was [...]rought for calling of the Plaintiffe false Justice of Peace vil his similia. 4. E. 6. Br. Action upon the case 112 [...] I do conceve that thesewords are not Actionable because, though they doe re [...]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 ou [...] 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 [Page 77] 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 s [...]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,Hab. Rep. pa. 13. pl. 17. there being a commu­nication or discourse of him in his pro­fession of Attorney, one said that hee was a bribing knave.

Boxes case,Hob. Rep. pa. 359. pl. 145. one said of him, being an Attorney, that he was a Champertor.

Byrchlyes case an Attorney;Coke. lib. 4. fo. 16. a. there being speech of his dealing in his pro­fession one said to him, you are well knowne to be a corrupt man, and to [Page 78] 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.Hob. Rep. pa. 183. pl. 188.

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;Mic [...]. 2. [...] Iac. in the Kings Bench. 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 held considerable in this case were these; the Defendants saying that the Plain­tiffe tooke Fees of both hands, and whether this would amount to as much as if he had said the Plaintiffe was an ambidexter was the question.

Popham and Yelverton, Iustices that the action would not lie, because that the words in this case may have a double intendment, for it may be in­tended that hee tooke Fees with both [Page 79] hands lawfully, but if he had said that he was an ambidexter, an action would lie, for this is vox artis, and cannot bee otherwise intended.

Fenner and Williams Iustice▪ that the Action would lie, for that the words a­mount to as much as ambidexter, and are the english of it & a direct affirm [...] ­tion and no Metaphor, if a man say of another that he hath the Pox, no Acti­on will lie, because it shall be intended the small Pox; but if a man say of a­nother that he hath beene laid of the Pox, there an Action will lie, because it is the phrase for the French Pox.

I do rather incline to the latter opi­nion, because (as hath beene said) these words are but the English and proper meaning of Ambidextery; and to con­strue them to a taking Fees with both hands would be to make a constructi­on against the expresse meaning of the words; which I conceive the Law will not permit; and the rather as this case is, because that hee doth charge him with knavery in suffering of him wil­fully to be condemned in a suit, being his Attorney: I do not find any judge­ment in the case, therefore I shall [Page 80] leave it to the Juditious Reader.

Philips Parson of D. brought an acti­on against Badby for these words thou hast made a seditious Sermon, and mo­ved the people to sedition this day:P [...]sch. 24 of the Queene in the Kings Bench. in this case, notwithstanding the first part of the words were utterly Adjective, and the latter were but a motive to sedition, and it doth not appeare that any thing ensued thereof; yet because they scandaled the Plaintiffe in his function, it was resolved that they were Actionable.

If a man say of a Merchant that he is a Bankrupt,Cook lib. 4. fo. 19. 6 [...]i. 6. Dyer 72. or that he will be a Bank­rupt within two dayes, the words are actionable.

Edmunds a Marchant brought an acti­on against Whetston for these;Hitt. 3. Iac. in the Kings Bench. Rot. 855. words He would prove that Master Edmunds had beene a Bankrupt, and had agreed with his Cred [...]itors for a Noble in the pound. It was moved in Arrest of judgement by Hucham that the acti­on would not lie, because that the speech referres to a time past, and though that he were once a Bankrupt, yet it may be now that he is of credit. But it was resolved that the Action [Page 81] would lie, because that it was an im­peachment of his credit for if he were once a Bankrupt, every man will be the more suspitious and feareful [...] of him.

A Marchant brought an Action for calling of him cousening knave;Pasch. 15. Car in the Kings Bench. this agrees with the former ca­ses see fol: 21. a. b by Iones and Barkley, Iustices [the other Justices absent] the Action will not lie because that the words are too general. But if they had touched him in his pro­fession they would have borne an acti­on. And therefore to call a Marchant Bankrupt, will beare an Action; but to say of a Lawyer that he is a Bankrupt, will not be Actionable the reason may be, because that a Lawyer cannot bee a Bankrupt, for that he doth not acquire, his living by buying and selling as the Statutes speake.

Iones Iestice in the former case put this case. there being a communicati­on of Serjant Heale in his profession one said of him these words,Tri [...]: 37 of the Queene in Cam. Ica­ce. Osbe­ston and Stanleys case. He hath undone many, adiudged that the words were actionable, because they touch him in his Profession.

A. Shoomaker brought an Action against one for calling of him Bankrupt adjudged upon a Writ of Error in the [Page 82] Chequer Chamber, that the Action would lie.Pasch. 15. Car. in the Kings Beech.

Axe a Dyer brought an Action a­gainst Moode for these words, thou art not worth a Groat, and averres that in such a place, where they were spoken they have the common acceptation, and are equivalent to the calling of a man a Bankrupt, resolved that the words of themselves were not Actio­nable,Averre­ment. because that many men in their beginnings are not worth a Groat, and yet their credits are good in the world. And that the averrement was idle and could not make them actionable, be­cause that the words have a plaine and proper significant meaning of their owne, and therefore cannot be taken in another sence or meaning.

A Journeman and Foreman of a Shoomakers Shop brought an Action for these words,Pasch. 15. Car. in the Kings Bench. it is no matter who hath him, for he will cut him out of Doores; and averres that the common acceptation and intendment of these words,Averre­ment. inter Calceareos, is that he will begger his Master, and make him run away; and averres a perticular damage by the speaking of them, resolved that the Action would lie,

[Page 83] Note Reader, here the averrement is good, because the words cutting out of Doores, are of a doubtfull meaning and intendment, and so may be aided by an averrement, so that the difference betweene this and Axes case cited be­fore, is evident.Trin. 41. of the Queen [...] in the Common Pleas.

Knightly an Attorney brought an Action against Childoner for these words spoken to his Sonne; my Father was not cast over the Barre as thy Father was; the parties were at issue, and in this case Walmesley Iustice said that he conceived the words were not actio­nable.

Box and Bar [...]abies case before, the de­fendant said of the plaintiffe being an Attorney these words (amongst others which were held actionable) that hee would have him throwne over the barr the next Tearme:H [...]b. Rep. pa. 159. in this case (agree­ing with the opinion of Walmesley be­fore) the opinion of the Court was, that these words were not Actionable, because of the incertaine sence and meaning of them.

Dickes a Brewer brought an Action against Fenne, and declares that the De­fendant having communication with [Page 84] some of the Customers of the Plain­tiffe concerning him in his profession, said these words of him; I will give a peck of Malt to my Mare, and lead her to the VVater to drink, and shee shall pisse as good Beere as Dicks doth brew; adjudge­ed the words were n [...]t Actionable, be­cause that they are Comparative only; and besides they are impossible, and therefore, they can bee no scandall to the Plaintiffe.

In this case, it was said by Rolls Ser­jeant that it had beene adjudged Acti­onable, to say of a Brewer that hee brewes naughty Beere; which was a­greed by the Court, because that he is presentable in a Leete for it.

And likewise in this case it was said by Bartley Iustice that where one said of a Lawyer, that hee had as much Law as a Munkey, that these words were adjudged not actionable because that he hath as much Law & more also then the Monkey hath, but if hee had said that he had more Law then a Mon­key, these words would be actionable.

One said of a Counseller at Law, that he was a Concealer of the Law ad­judged actionable.

[Page 85] Sanderson and Rudds case the Plain­tiffe being a Lawyer and standing for the Stuardship of a Corporation,Trin. 17. Car. in the Common Pleas. the Defendant said of him that he was an ignorant man; the Court in this case inclined that the words were Actio­nable.

Snag a Counceller at Law brought an Action against Peter Gray for these words;Trin. 13 of the Queen [...] in the Knig [...] Bench. Rot. 114. Co [...]es En­tries fo. 22. a. b. Goe yee to him to be of your coun­sell, he will deceive you, he was of Coun­sell with me, and revealed the secrets of my Cause. Adjudged the words were actionable, because that this cannot be intended of a Lawfull revealing to the Iudge by way of motion before whom it was tried, for this were a commen­dation for him, but the words are to be taken as they were spoken, that is, conjunctim, and uno halitu, and then his intention appeares contrary, for he said before, He will deceive you, &c. Also the Plaintiffe declared that they were spoken Malitiose: And these words revealed the secrets, &c. are to be intended revealed to those from whom they ought to be concealed, and every man is to make the best of his cause, and therefore secreta sua non sunt revelanda; [Page 86] and also the words touch the Plain­tiffe in his Art and Science, which re­quiers men of great trust & confidence, and so the words before being spoken in derogation of the confidence and fi­delity of the Plaintiffe, are a great slander to him; for these causes judge­ment was given for the Plaintiffe.

Vpon this case I do conce [...]ve, that to say of a Lawyer generally that hee revealed the secrets of his Clyents cause will beare an Action.

One said of a Doctor of Phisick that he was a Monntebanke an Empericke,Pasch. 12. Car. in the Kings Bench. and a base fellow; adjudged the words were Actionable.Pasch. 17. Car. in the Common Pleas.

Paine brought an Action upon the case for words and shewed how that he was a Farmer and used to sow his land, and to tell the Corne upon it, and by this per majorem partem he maintained his Family: and that the Defendant said these words of him, He keepes a false Bushell by which hee doth cheat and cousen the poore, and averres the losse of his custome by the speaking of these words. In this case it was mo­ved by Gotbolt Serjeant in Arrest of Judgement that the words were not [Page 87] Actionable, because it doth not appeare that the Plaintiffe kept a false Bushell S [...]ienter, knowing it to be false.

But it was resolved that the words were Actionable, for (as this case is) it must of necessity be taken that hee kept a false Bushell, knowing it to bee false, for otherwise it could be no co [...] ­senedge.

And this case plainly differs from the case where an Action was brought for saying that the Plaintiffe kept false Waites generally, without further say­ing in this case the words were adjud­ged not Actionable,Hill. [...]. of the Queene in the Com­mon Pleas adjudged and after affirmed in a Write of Error, Mich. 26. & 27. of the Queene in the Kings Bench. Rot. 35. because that it doth not appeare that he used them, or knew them to be false.

The fifte part of that Generall Rule, which I have laid downe before, and which now I am in course to speake of, is this. That words spoken in scandall of a mans Title, or which tend to a mans di­sinheritance, will beare an Action.

Henry Mildmay brought an Action against Roger Standish for saying and publishing that certaine Land was law­fully assured to one Iohn Talbot & Oliffe his Wife for a 1000. yeares, and that they of the interest of the tearme were [Page 88] lawfully possessed, whereas in truth there was no such matter, and so for slandring of the Estate and Title con­veyed to his Wife by certaine Inden­tures, and shewed all in certaine, and how hee was prejudiced by the said words, he brought the said action.

The defendant pleaded a Proviso in the same Indentures and the said li­mitation for 1000 yeares, according to the said Proviso, as he pretended (whereas in trueth the said limitation was void in Law) by force of which he saith that the said Oliffe had an interest for a 1000 yeares, and so justified the words, upon which the plaintiffe de­murred: adjudged that the action would well lie; though that the said Iohn Talbot and Oliffe his wife had such a limitation de facto for a 1000 yeares, which occasioned the defendant being unlearned in the lawe so to pub­lish it, yet for that he hath taken upon himselfe notice of the lawe, and med­led in that which did not concerne him, and hath affirmed and published that Oliffe had a good estate for a 1000 yeares in slander of the Title of the plaintiffe and to his preiudice, for this [Page 89] cause judgment was given for the plaintiffe.

Sir Thomas Gresham Knight brought an action against Robert Gunsley Clark, and shewes how his father was seised of divers Mannors and lands.Hill. 3. Iac Rot. 519. B. R. Cookes Ent [...]ies [...] 35. a. and a­mongst them of the Mannor of Titte­sey, which he did by his will amongst other lands devise to Beatrice his wife for life, the remainder to the plaintiffe and the heires males of his body begot­ten, and had issue William Gr [...]sham his eldest sonne, and the plaintiffe the younger, and dyed, and that William after this death confirmed to Thomas his estate, and that Beatrice died, and the plaintiffe entred into the said Ma­nour of Tittesey. and further shewes that William had issue Elizabeth his heire apparent, and that the plaintiffe had a wife and sonnes and daughters; and that he had an intent to conveye some of his lands to his wife for her ioynture, and some to his sonnes and daughters for their advancement and to exchange parcell with others, and to make a lease of another parte, but doth not shew to whom, and that the de­fendant premissorum non ignarus in de­rogation [Page 90] of the Title and estate of the plaintiffe, said these words to the plain­tiffe. As I before said to your Wife, I say now that your brother was afoole and never borne to doe himselfe any good, for that he could not hould his hands from ratefying and subscribing to his Fathers will: bnt yet notwith­standing I have that to shew in my house that if his heire doe not any such Act as hee hath done, it shall bring her to inherit Tittesey, by which words he saith, that hee was hindred in the conveyances aforesaid.

In this case it was resolved that the Action would not lie, first because that the words themselves are not scanda­lous to the Title of the plaintiffe: the words considerable are onely these, that he had that in his house, &c. that shall bring her [that is the Daughter and Heire of William] to inherit Titte­sey; which is apparently feasible, for the Plaintiffe being Donee in Taile of the guift of his Father, the Daughter and Heire of the eldest Brother is inheri­table to the Revertion in Fee; and so no prejudice to the Plaintiffe, to say he hath that which shall bring her to inherit.

[Page 91] Besides the action will not lie be­cause that he doth not shew any special damnification by the speakeing of these words as that he was upon a sale of these lands to I. S. who by reason of the speaking of these words refused to buy them, or the like; and in this case, here was nothing but a purpose or in­tent of conveying some of these lands.

And Popham Iustice said, that there is a difference when a man declares his opinion of the Title of another to land this is nothing, and he shall not be pu­nished for it, but if he doth so publish it, that it comes to the hearing of any one that intended to buy the Land in such case an Action lies, but he must shew specially in his Count in what he was damnified, otherwise the Action will not lie.

Banister brought an Action against Banister for that the Defendant said of the Plaintiffe (being Sonne and Heire to his Father) that he was a Bastard,Trin. 25. of the Queene in the Kings Bench. re­solved that the Action would lie, for this tends to his disinherision of the Land which discends to him from his Father.

But in this case it was resolved, that [Page 92] if the Defendant pretend that the plaintiffe was a Bastard, and that he himselfe was next heire, there no Action lies.

So if a man say that another hath noe right to land, an Action lies; but if a Counseller say that his Client hath the better right, this will not beare an Action.

Mich. 3. Jac. in the Kings Bench per Curiam, if one say to me that I am a Bastard, if I have Land by discent, I shall have an Action upon the case, and thought that I have Land by discent, and this tends to my disinheritance, if I sue in Court Christian for it, a Prohibition lies, because that the tryall there may be to my disinheritance.

And if one say to another that hee is base borne, an action will not lie, for the words shall be taken in meliori sen­su. And if one say to his Sonne that he is a Bastard, or a Leaper, hee shal not have an action neither in Court Chri­stian, nor at Common Law.

Sir Gilbert Gerrard brought an acti­on against Mary Dickinson, Coke lib. 4. fo. 18. and de­clares how that he was seised of cer­taine lands in Fee, and that hee was in communication to demise them to [Page 93] Ralph Egerton fot 22. yeares for 200. l. Fine and a 100. l. rent per annum, and that the Defendant (premissorum non ig­nara) said, I have a Lease of the Mannor and Castle of H. (which was the same lands) for ninety yeares, and shewed and published it, &c. by reason of which words (he saith) the said Ralph Eger­ton did not proceed to accept the Lease &c.

In this case it was resolved, that no Action would lie for the said words, though they were false, because that the Defendant pretended an interest in the said land.

So if the Defendant had affirmed and published that the Plaintiffe had not any right to the said Land, but that she her selfe had right to it, in this case because that the Defendant pretends title to it though, that in truth, shee hath not any, yet no Action lies. For if in such case an Action should lie, how could any one make claime or title to any land, or commence any suit or seeke advise and Counsell, but hee should be subject to an Action; which would be very inconvenient.

Agreeing with these cases,2. E. 4. 5. 15. E. 4. 32 in 2. E. 4. [Page 94] and 15. E. 4. it is resolved that no acti­on upon the case lies against one for publishing another to be his Villeine.

The sixt part of that generall Rule which I have laid downe before; and am now to speake of is this.

That scandalous words which tend to the hinderance or losse of a mans ad­vancement or preferrement, or which cause any particular damage, will beare an Action.

Anne Davies brought an Action a­gainst Gardiner for these words,Coke lib. 4. fo. 16. b. spoken to one B. a Suiter to the Plaintiffe and with whom a marriage wss almost' concluded. I know Davies Daughter well, shee did dwell in Cheape side and a Grocer did get her with Childe, &c. and shee saith that by reason of the speaking of these words, the said B. utterly refused to take her to Wife, so that thereby she lost her advancement, &c. adjudged that the Action would lie, because that if shee had a Bastard she was punishable by the Statute of 18. of the Queene cap. 3.

But it was in this case further resol­ved, that if the defendant had charged the Plaintiffe with bare incontinency [Page 95] only yet the Action would have laine, by reason that by the said slander shee was defeated of her advancement in Marriage.

And it was in this case likewise re­solved, that if a Divine be to bee pre­sented to a Benefice, and one, to defeat him of it, saith to the Patron that he is a Heretique or a Bastard, or that he is excommunicated, by which the Patron refuses to present him (as he well might, if those imputations were true) and he loses his preferrement, that in this case an Action will lie.Hil: 4. Iac. in the Kings Bench.

Dame Morrison Widdow brought an Action against William Cade Esquier and dec [...]ares that shee was of good fame,Rot. 11 53 &c. And that Henry Earle of Kent was in speech and communica­tion with her for marriage, the Defen­dant premissorum non ignarus, said these words, Arscot hath reported that hee had the use of the Lady Morrisons body at his pleasure; ubi rever [...], A [...]scot never reported it, and alledged that the Earle of Kent upon the hearing of the words surceased his suit by which she lost her advancement, &c. upon not guilty plea­ded it was found for the Plaintiffe, & in [Page 96] this case it was resolved, that though the words charge the Plaintiffe with bare incontinency only, which is an offence Ecclesiasticall, and not civill; nor punishable by our Law, yet because of the temporall damage, viz. the losse of her advancement in marriage the Action would well lie, which agrees with the judgement in An Davies case.

Sanderson and Rudds case cited be­fore;Trin. 17. C [...]r. in the Common Pleas. the Plaintiffe being a Lawyer, stood for the Stew [...]r [...]ship of a Corpo­ration, and the Corporation being as­sembled to elect a Steward, the plain­tiffe was motioned to them▪ whereup­on the Defendant being one of the cor­poration [...] to his Brothers, he is an ignoran [...] [...], and not fit for the place; and [...] that by reason of these words▪ they did refuse to elect him St [...]ward, so that he th [...]reby lost his pre [...]errement, &c. the Court in this case inclined that the Action would lie.

And now I am fal [...]en upon a question very necessary to be resolved, and that is.

What words are Actionable of them­selves only? and what are not Actionable, [Page 97] without alledgeing of a particular damage; I take this for a Rule, that scandalous words which touch or concerne a man in life, liberty, or Member, or any corporall punishment, or which scandall a man in his office or place of trust, or in his calling or function, by which he gaines his living, or which charge him with any great in­fectious disease, by reason of which hee ought to seperate himselfe or to be sepera­ted by the Law from the society of Men; all such words will beare an Action, with­out averring or alledging of any particu­lar damage by the speaking of them.

Yet I do not deny, but that it is best to alledge a particular damage, if the 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,Mic. 17. Car. in the Kings Bench. 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 [Page 98] 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,Cook lib. 4. 10. 15. b 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,Averre­ment. 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,Cooke, lib. 4 fol. 17. a & fo. 20. [...]. 27. H. 8. 14 the Regi­ster fo. 54. and determinable in the Ecclesiasticall Court only; as for calling of a man a Bastard a Heretique a Scismatique, an Advo [...]vterer, a Forni [...]ato [...] or for calling of a Woman a Whore or charging her wit [...] 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 [Page 99] as it is adjudged in Anne Davies case cited before.

By Popham Chiefe Iustice if one say of a Woman that is an Inholder,Cook lib. 4. fo. 17. [...] 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,Pasch. 15. Car. in the Kings Bench. 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.Pasch. 15. Car. in the Kings Bench.

In the case of the Foreman of a Shoomakers Shop cited before, for [Page] 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 Cal [...]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 [...]ie, which I conceive was only for the particular damage, for to say of a Servant that he doth Chea [...]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 no [...] 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 [Page 101] 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,Mic. 15. Ca [...] in the Kings Bench. where one said of the Plaintiffe being a B [...]ew­er, that he would give a peck of Malte to his Mare, and [...]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,Mich. 17 [...] Car. in the Knigs Bench. 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▪ [Page 102] they charge him only with an offence against a penall Law, which doth not inflict corporall p [...]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 J [...]dges) that for the dammage only the Action will lie▪ for otherwise the Plain­tiffe [Page 103] 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 diseas [...], 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,Coke lib. 4. fo. 17. an Action will lie.

Taylor brought an Action against Packins for these words, thou art not worthy to come into any honest mans company,Hill. 4. Iac. in the Kings Bench. 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 h [...]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.

[Page 104] Vpon this ground I conceive, to say of a man that hee is infected with the Plague, will beare an Action, because this also is a dangerous infectious dis­ease, and a cause of separation.

I have now finished my task of shew­ing you what words are Actionable in the Law, and what not▪ And yet Rea­der I shall not end this Treatise here, for there are many things not worthy the knowing (which I could not aptly introduce before) and therefore not to be omitted.

There are two things or grounds very remarkable in all Actions upon the case for words.

First Causa dicendi, the ground or oc­casion of the speaking of the words: And that must be collected out of the prece­dent discourse or communication con­cerning the Plaintiffe; or else out of the relation that the words themselves have to the Defendant, or otherwise, as the case shall fall out to be.

The next thing is the affection of the Speaker, that is to say whether the words were spoken Ex malitia, or not?

First, for the first, Causa dicendi, the ground or occasion of speaking of the words.

[Page 106] And here I shall lay downe this as a ground, that scandalous words which of themselves singly would beare an acti­on yet being joyned to other words or dis­course, and so Causa dicendi, or the sub­ject matter being considered, they will not beare an Action. For Sensus verborum ex causa dicendi accipiendus est, &c. And words must ever be construed accor­ding to the subject matter. Coke lib. 4. fo. 13. b

Henry Lord Cromwell brought an Action de Scandalis Magnatum against Edmund Denny, Coke ubi supra. Vicar of N. in the County of Norfolke, &c. for these words: It is no marvill that you like not of me, for you like of those that maintaine sedition against the Queens proceedings; the Defendant pleaded a speciall justification, in effect thus; that the Defendant being Vicar of N. the Plaintiffe procured I. T. and I. P. to preach there, who in their Sermons enveyed against the Booke of Com­mon Prayer, and affirmed it to bee su­perstitious; wherefore the Defendant inhibited them, for they had no licence nor authority to preach, yet they pro­ceeded through the encouragement of the Plaintiffe, and the Plaintiffe said [Page 106] to the Defendant, Thou art a false varle [...] I like not of thee; to whom the De­fendant said, It is no marvill though you like not of me, for you like of those (meaning the aforesaid I. T. and I. D.) that maintaine sedition [meaning that seditious Doctrin] against the Queens proceedings.

In this case it was adjudged that the justification was good. For though that in this case, taking the words sing­ly of themselves as the Plaintiffe hath declared, they might have beene Actio­nable; because that then they could not be construed otherwise then of a pub­like and violent sedition, as the word it selfe doth import.

Yet now the ground and occasion of the words appearing, by which it is e­vident, that the defendant did not in­tend any publike or violent sedition, but only that seditions Doctrine a­gainst the proceedings of the Queene, viz. the Statute de anno primo, by which the Common Prayer was established, and God forbid [saith the Booke] that words by a strict and Grammaticall construction should be taken contrary to the manifest intent of the Speaker, [Page 107] therefore it was ruled upon the cohe­rence of all the words, that the justifi­cation was good▪ and so the words not Actionable.

And in this case it was ruled, that if a man bring an Action against another, for calling of him murderer, and the Defendant will say that hee was spea­king with the Plaintiffe of unlawfull hunting, and that the Plaintiffe confes­sed that he had killed divers Hares with certaine Engines, to whom the De­fendant answered and said, Thou art a murtherer [meaning the killing of the said Hares] that this was a good justi­fication, and so upon the whole matter the words not Actionable.

Byrchley an Attorney brought an Action against one for these words;Coke lib. 4. fo. 16. 1. you are well knowne to bee a corrupt man, and to deale corruptly: resolved that the words were Actionable, but in this case it was ruled that if the prece­dent speech had beene that Byrchley was a Vsurer, or that he was Executor of another, and would not performe the testament, and upon this the De­fendant had said these words, upon a speciall justificatio [...] as aforesaid [...], they [Page 108] would not beare an Action.

Banister and Banisters case resolved that if I call an heire a Bastard,Coke lib. 4. 10 l 17. a. an acti­on will lie▪ but if the defendant pretend that the plaintiffe is a Bastard and that he is next heire, there no Action will lie. The reason of this is plaine, because causa dicendi, or the occasion of spea­king of these words, is not to defame the Title of the plaintiffe, but only to justifie the Title of defendant, and it is lawfull for any one to speak in ju­stification of his owne Title, though hee do thereby seeme to slander the Title of another man, agreeing with this case is Gilbert Gerrards case cited before.

Molton brought an Action against Clapham and declares how that there being a cause pending in this Court betwixt the plaintiffe and defendant,See fo. 26: b. 27. a Pasch. 15. Car. in the Kings Bench. upon reading of certaine Affidavids of the plaintiffes in Court, the Defendant said openly in present [...] & auditu Iusticiariorum & juris peritorum, &c. There is not a word true in the Affidavids, which I wil prove by forty witnesses: and alledges that the words were spoken malitiose. [Page 109] yet it was resolved by the Court that they were not Actionable, because as they are usuall words upon the like occasion; so they are spoken in the de­fence of the defendants cause, and this case was likened to the case of the Ba­stard immediatly before.

And Bartley Iustice said that there are two things mainely considerable in words, the words themselves, and causa dicendi; and therefore somtimes though the words themselves would beare an Action yet causa dicendi being consi­dered, they will not be Actionable, as in this case.

Now as my Lord Cooke ses in Crom­wels case before remembred,Coke lib. 4. fo. 14. a. so I say to you. In these cases, Reader, you may take notice of an excellent point of learning in Actions for slander; to ob­serve the cause and occasion of spea­king of them, and how this may bee pleaded in excuse of the Defendant.

But before I passe this,Coke lib. 4. fo. 13. b. 14. a Reader, I shall observe unto you that the defendant in these cases might take the generall issue, if he would, viz. that he is not guilty modo & forma, as the Plaintiffe hath alledged, and so give in evidence [Page 110] the coherence and connection of the words, and the occasion of speaking of them, and have them specially found, if it be conceived to be necessary.

Or the defendant may [as the case shall require] justifie the speaking of o­ther words, and traverse the speaking of the words in question; and so likewise upon the evidence have the words spe­cially found.

And hereupon; where the speciall fin­ding of the Iury will warrant the Decla­ration of the Plaintiffe, and maintaine the action, and where not? may be very que­stionable, and worthy the knowing.

The Defendants plea is that wch must guid us in these cases, if hee plead not guilty▪ the words are [as I have said be­fore] modo & forma as the plaintiffe hath alledged, and if the justifie the spea­king of other words, and traverse the words in question, he doth it thus, abs­que hoc, that he spake the words in the Declaration modo & forma as the plain­tiffe hath alledged.

Now where the words that are founde by the Iury shall bee said to a­gree modo & forma with the words in the Declaration, this is the question, [Page 111] here I shall lay down this as a ground.

That where the words that are found do not agree with the Declaration in the substantiall and essentiall forme, that in such case, they do not warrant the Decla­ration. But if they do agree in the sub­stantiall and essentiall form [...], though they agree not in every word, yet they doe well warrant the Declaration, and by conse­quence maintaine the Action.

Sydenham against Man for these words;Hob. Rep. pa. 252. pl. 213. If Sir Iohn Sydenham might have his will, he would kill all the true Subjects in England, and the King too, and he is a maintainer of Papistry and rebellious persons. The defendant plea­ded other words, and traversed the speaking of the words modo & forma, &c. the Iury found that he speak these words, viz. I think in my conscience, that if Sir Iohn Sydenham might have his will, he would kill, &c. and find all the subsequent words before Alled­ged, and whether the Defendant were Guilty of speaking of the words in the manner and forme as they are Alleadged by the Plaintiffe in his Declaration, was the Question resolved against the Defendant.

[Page 112] And upon a Writ of Error in the Che­quer Chamber, the Court also inclined against the defendant, for the matter is in effect the same, and the forme must be understood the essentiall forme, not according to every word, here you have the ground laid downe before.

Yet the Booke saith that Pasch. 16. though the Court inclined that either of the words would beare an Action, yet it was agreed that the words were not found so absolute as the Declarati­on, neither moved credit in the eare so fully, which is the force of a slander; and then they are not the same words in force and effect, as if the words were laid, I know him to be a Theefe, and it were found, I thinke him to bee a Theefe.

For my part Reader, I doubt in this case whether the finding of the Jury do warrant the Declaration, because they are not the same words in force and effect (as is said before) And I con­ceive they are not the same in the es­sentiall forme of them, for I question, ( [...]as I have don before) if a man should say of another, that he doth think if he might have his will, he would kill all [Page 113] the Kings true Subjects, and the King too; or that he doth think such a one to be a Theefe, whether these words be Actionable or no, because the words are no positive charge out only the thought or opinion of the Defendant.

But to this it may bee said that if such words as these should not be acti­onable, this would open a gap for scan­dalous Tongues to slander a man at pleasure▪ and yet no Action lie, which were very mischievous▪ therefore I shall leave it to the judgement of the Reader.

Fenner against Mutton in an action upon the case for words,Mich. 4. Iac. in the Kings Bench. which were thus; Nicholas Fenner procured 8. or 10. of his neighbours to perjure them­selves, the defendant pleaded not guil­ty; and the Iury find that the defendant said that Nicholas Fenner had caused 8. or 10. of his Neighbours to prejure themselves, and if this Verdict were found for the Plaintiffe, or the defen­dant▪ was the question, and the doubt was whether this word (cause) amount to as much as procure. Tanfield Iustice seemeth that it doth not, for hee might be a remote cause, as causa fine qua non, [Page 114] and yet no procurer, as if a Notary writ a writing, and put to this a seale, and a­nother take it and forge and publish it, the writer was the cause that this was forged, and yet no procurer of it. I find no judgement in this case, therefore quaere of it.

Chipsam against Ieeke for these words Chipsam is a Theefe,Hil: 3. Iac in the Kings Bench. for he hath stollen a Lambe from A. and Geese from B. and killed them in my ground, issue was joyned whether the Defendant spoake the words modo & forma, &c. the Jury find that the defendant said that the plaintiffe was a Theefe, for hee hath stollen a Lambe from A. and killed it in my ground, but they find that hee spoake nothing of the Geese, yet it was resolved that the finding of the Jury did well warrant the Declaration of the plaintiffe, because that the substance of the words is, that he is a Theefe, and thee for hee hath, &c. only a demon­stration in what he is a Theefe, which is as well in stealing of the Lambe, as of the Geese; and then if it bee found that he said any of them, it sufficeth, and judgement was given for the plain­tiffe.

[Page 117] Norman and Symons case,Tri [...]. 7. Car. in the Kings Bench. the plain­tiffe brought an Action for words and declared that they were spoaken false & malitiose; the Iury find the words spoaken falso & injuriose and it was ad­judged that the Action would not lie, because the finding of the Jury doth not warrant the Declaration in the substantiall forme of it, for if the words were not spoaken out of malice, they will not be Actionable, as I shall shew you hereafter.

Brugis brought in Action for these words,6. [...]. 6. Dy­er fo. 75. fol: 21. Brugis is a maintainer of theevs and a strong Theefe himselfe, issue was joyned whether the Defendant spoake the words modo & forma, and the Iury found all the words except the word [strong] and in this case the Plaintiffe had judgement.

Here we may observe that though every word alledged in the Declara­tion, be not found, yet the essentiall and substantiall forme of the words be­ing found, that is sufficient to main­taine the Declaration. This I say you may observe not only by this case, but the cases also before put.

Barbar brought an Action against [Page 118] Hawley for these words Iohn Barbar and his Children be False Theeves, men cannot have their Cattell going upon the Common, but they will kill them, and eat them, &c. issue was joyned whether the Defendant spoake the words modo & forma, and the Iury fonnd that he spoak these words, viz. Men cannot have their Cattell going upon the Common, but Iohn Barbar and his Children will kill them with Barbars Doggs in this case it was ad­judged for the Defendant.

The reason is plaine, because the words found by the Iury do vary in the essentiall and substantiall forme, from the words in the Declaration. For the words in the Declaration do charge the Plaintiffe with Tneft, for which an Action would lie, but the words found by the Iury charg him only with tres­passe, for 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 [Page 119] 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, Michl▪ 3. Iac. [...]n the Kings Bench▪ York Harrauld brought an Action against Henry Mountague, Knight, Recorder of London for saying of the Plaintiffe that he had commit­ted Felony. The Defendant p [...]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 [Page 120] 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 [Page 121] 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,40. & 41 of the Queene in Common Pleas. the Defen­dant spoake by way of advise to his friend, telling him that the Plaintiffe [Page 122] 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,Trin. 7. Car. in the Kings Bench. 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 fals [...] & 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: sil. 4 Iac in the Kings Bench. If one say in Counsell and good will to his friend, [Page 123] 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.13. H. 7. Keilway fo. 26. 11. of the Queene Dyer. fo. 2

A Man broug [...]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 [Page 124] 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.Cok [...] lib. [...]. fo. 14 [...].

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.

O [...]en Wood exhibited a Bill in the Starchamber against Sir Richard [...] Buck­ley, and charged him with divers mat­ters examinable in the same Court and further that he was a maintainer of Pi­rates [Page 125] 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.

[Page] Scarlet brought an Action against Stiles for these words;Hob. Rep. pa: 268 pl. 238 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 C [...]udington and Wilkins case be a sufficient warrant to arrest for felony,Hob. Rep. pa 112, pl 105 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▪ Heb Rep pa 425 pl 381 yet it doth not warrant any man to say he is a Felon, or a Theefe; [Page 127] or though common fame be such yet [...]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 ca [...]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, wi [...]l nor justifie any man in the calling of him so.Hob Re [...] page 93 pl 71 cr pa 112 pl 105 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.

[Page 128] In Iustice Crooks case it was agreed by the Court,Trin: 16. Car: in the Kings Bench. that though it be lawful for a man to preferre a Bill in the Star­chamber 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 [Page 129] 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.F. N. B 114. D. Cook lib. 9 fol. 56. The Poulterer [...] case.

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 [Page 130] 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, Pasch. 3. Iac: in the Kings Bench Rot. 372. and declares how that he was of good fame and report, and that the de­fendant intending to defame him, fals [...] & malitiose procured the plaintiffe to be indicted of Felony, & to be arrested and imprisoned, quous (que) fuit acquietatus; so that the alleaging of the acquittall was insufficient, for that hee ought to have said that he was legitimo modo acqui [...] 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 [Page 131] another to be ind [...]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 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 [Page 132] 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 StatutesCoke lib. 4. fo. 1 [...]. b. 13. a. 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 scandal [...] 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 [Page 135] 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. Trin. 5. Iac. in th [...] Kings Bench. 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 defama [...]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 compa [...]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 di [...]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, [Page 136] 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. Fe [...]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 [Page 137] 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 [Page 138] 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.

[Page 139] 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.]Coke lib. 4▪ fo. 17. b. & 20.. a.

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 Actionable; and therefore the [innuen­do] in these cases is idle and to no pur­pose.

So if the words be incertaine of them­selves, or the person of whom they are spo­ken, an [innuendo] shall never make them actionable.

If a man bring an action against a­nother for saying that the Plaintiffe tooke away money from him with a strong hand [innuendo felonice] here the words being incertaine in the intend­ment,Mich. 15. Car. in the Kings Bench. cited be­fore. whether of a Trespas, or Felony the (innuendo) cannot extend them to [Page 140] an intendment of felony, thereby to make them actionable, and so it was adjudged.

So if a man bring an action against another,Hob. Rep: pa: 3 pl. 4 for saying that hee forged a warrant [innuendo quoddam Warrantum, &c. as Thomas and Axworths case is cited before,Hob. Rep: pa 63, pl 48. or for saying that he for­ged a writing innuendo such a writing] as Harvy and Duckins case is likewise cited before. In these cases, because the words themselves are utterly incertain, adjudged that the [innuendo] shall ne­ver make them actionable.

A Servant of B. brings an action a­gainst one for these words;Coke lib. 4. fo. 17 b. One of the Servants of B. (innuendo the Plaintiffe. is a notorious Felon, or Traytor, &c) And if an Action be brought for these words, I know one neere about B. that is a notorious Theefe, (innuendo the Plaintiffe:) In these cases, because of the incertainty of the persons inten­ded by the words the [innuendo] shall not make them actionable.

I could multiply cases upon this ground, but because these will bee suf­ficient; I will adde onely the Office of an (imnuendo.)

[Page 141] The office of an [innuendo] is onely to containe and designe the same person, Cook. lib. 4 fol. 17. b which was named in certaine before: as thus, two are speaking together of B. and one of them saith, hee is a Thiefe; there B. in his Count may shew that there was a speech of him betwixt those two, and that one of them said of him, hee (innuendo the plaintiffe) is a thiefe.

Or else to declare the matter or sence of the words themselves, which was cer­tainly expressed before; as thus, A. and B. speaking of C. A. said that C. was a Traytor, to whom B. said that he was so too; in this case if A. bring an acti­on for these words, he may shew in his Count, that there was a speech betwixt him and the defendant of C. and that the plaintiffe said to the defendant that C. was a Traytor, and that the defen­dant said then to the plaintiffe, that hee (innuendo the plaintiffe) was so too [innuendo a Traytor.]

In both these cases the (innuendo) is good, becuase it doth its Office, in de­signing of the person, as also in declar­ing of the matter or sence of the words which was certaine before.

But an [innuendo] Cooke lib. fol. 17. b cannot make a per­son [Page 142] certaine, which was incertaine before, nor alter the matter or sence of the words themselves; for it would be inconvenient, that actions should bee maintained by imagination of an in­tent, which doth not appeare by the words, upon which the action is foun­ded; but is utterly incertaine, and subject to deceaveable conjecture.

For by this meanes, if I should bee suffered to be the declarer of the mean­ing or intendment of the incertain and doubtfull speeches of another man; I might judge him to speake that, hee never thought or intended, and so pu­nish him for that wherein he never of­fended.

The next and last thing to be considered is where an averrement will be necessary in these actions, and where not: and here I shall lay downe this as a ground.

That in all cases for words where there is any thing that is the cause or ground of the action, or tends necessarily to the maintenance of it, in such case the action will not lie, without that thing be expresly averred to be, or not to be, as the case re­quireth.Hob Rep pag. 8.

Miles brought an action against Ia­cob [Page 143] for these words; Thou (innuendo &c.) hast poysoned Smith (quendam, Sam. Smith ad tuuc defunct. innuendo) adjudged the action would not lie for this reason [amongst others] because that did it not appeare that Smith was dead at the time of the words spoken; and the (innuendo) for that purpose is no sufficient averrement.

The li [...]e case was Trin. 17. of this King;Trin. 17. Car. in the Common-Plea [...]. A. brought an action against B. for these words, Thou hast killed my brother (innuendo C. &c. fratrem, &c. nuper mortuum) adjudged the action would not lie, because the plaintiffe did not averre that he was dead at the time when the words were spoken, and it was ruled that the innuendo was not a sufficient averrement.

The reason of these cases, is, because the death of the party is the ground of the action, and if hee were not dead (which shall the rather bee intended, without the plaintiffe do expresly aver him to bee dead) then the plaintiffe could not bee indamaged by the speak­ing of the words, and by consequence no action will lye for them.

I must confesse that I have a report of [Page 144] a case which was 5. of King Iames ad­judged against the former cases,Pasch. 1. Jac. in the Kings Bench Sir Tho. Holt brought an action against Taylor for these words, Sir Thomas Holt hath killed his Cooke,Rot. 107. &c. and did not averre that he had a Cooke, nor that the Cook was dead, and this was moved in arrest of judgment; and by the whole Court the Declaration was moved good, because it shall not bee intended, that there is any such purgation of the slander as this is, except it doth appeare in the Record; as the life of a man, which is reported to be dead. But if it were ex­pressed in the Record, that the party reported to be dead, was in life, it were otherwise.

As it words were spoken of a woman, that she had murdered her husband, and she and her husband bring the action, in this case the action will not lye, be­cause that it doth appeare by the Re­cord, that the slander is not prejuditi­all, but is purged notoriously, by the apparent being of the husband in life, like Snags case in my Lord Cookes 4. Booke Quaere tamen, Cooke lib. 4 fol. 16. a for I doubt Rea­der the Law of this case, because of the cases before adjudged.

[Page 145] A. saith that B. told him that C. stole a Horse, these words with an aver­rement that B. did not say any such thing to A. will beare an action, like the Lady Morrisons case which I have formerly cited, fo. 6. b.

Whether Welsh words, or words in English doubtfull in sense, yet equipol­lent, and of a common intendment and acceptation iu some certaine place with words Actionable, will beare an Action, without an expresse averre­ment of the importance of them, or no? quare & vide fo. 6. a.

Hasselwood and Garrets case cited be­fore,Pasch. 1. Iac. in the Kings Bench. whosoever is hee that is falsest Theefe and strongest in the Country of Salop, Rot. 107. whatsoever he hath stollen, or whatsoever he hath done, Thomas Has­sellwood is faller then he resolved that the words were actionable, with an a­verrement that there were felons with­in the Count [...] of Salop; but for default of such averrement the judgement gi­ven in the Common Pleas was rever­sed in this Court.

Note Reader, if there were no felons in that County (which will rather bee intended, if it be not averred that there were some] then the speaking of the [Page 146] words could be no slander to the Plain­tiffe,Hob Rep page 309 and so no Action can lie.

Blands case cited before, hee brought an action against A. B. for saying that he was indicted for Felony at a Sessions holden, &c. and did not averre that he was not indicted, and after a Verdict for the Plaintiffe, judgement was stay­ed, because there was no Avetrement, ut supra. Note if hee were indicted, which he doth tacitly admit, then no cause of action.

Iohnson against Dyer, Mich. 15. Car: in the Kings Bench. the Defendant having communication with the Fa­ther of the Plaintiffe, said to him, I will take my Oath that your Son stole my Henns; and the Plaintiffe did not a­verre that he was his Sonne or that hee had but one Sonne, and therefore adju­ged that the action would not lie. In this case if he were not his Sonne, then no cause of action.

One Clarke said that he had a Sonne in Nottinghamshire who had his Chest picked,Pasch. 7. lac. in the Kings Bench. and a hundred pounds taken out of it, in one Lock. Smiths house; and I thank God I have found the Theefe who it is, it is one that dwelleth in the next house called Robert Kinston: [Page 147] upon which Kinston brought an Action and had a verdict, and it was moved in arrest of Iudgement, because that he did not averre that hee dwelt in the next house, Crooke one said that Pri­chards man robbed him, who brought an Action; and did not averre that he was Prichards man, and therefore it was held that the Action would not lie. Aud the Iustices in this case would not give judgment.

Non constat in this case that the Plain­tiffe was the party of whom the words were spoken; for there might be ano­ther of the same name dwelling else where: and therefore hee ought to a­verre that he dwelt in the next house, that he may be certainly intended to be the same person of whom the words were spoken.

Where words shall not be Actio­nable without an averrement of a spe­ciall dammage See fo. 28.

I have cleerely proved the ground before laid downe, and by these cases you may bee sufficiently instructed, where an averrement will be necessary and where not. And so I have quite finished this small Treatise.

[Page 148] May the Reader find as much profit and delight in the rea­ding of it, as the Anthor had in composing of it, such is the ardent desire of

Your affectionate friend IOHN MARCH.

Arbitrement.

THe next thing Reader, that I have undertaken to discourse of, is, Arbitrements, the learning whereof will be very usefull to all men; in re­gard that Compremises or Arbitre­ments were never more in use then now. And most men either have been or may be Arbitrators, or at teast have done, or may submit themselves to the Arbitration of others. And as long as differences and contentions arise among men, which will bee to the worlds end, certainly the lear­ning of Arbitrements will well deserve our knowledge. Which being well observed and learnt by all men, will be a good meanes to prevent ma­ny Suits and contentions in the Law for the future which are now daily oc­casioned through the defects of Ar­bitrements which rather beget and raise new controversies amongst the [Page 150] parties, then determine the ould. The only cause whereof is the ignorance of men in this learning. The Composer hereof, Reader, tooke this paines, only out of a desire of the Common good, that none might bee ignorant of that which concernes all. And if it shall ef­fect that for which it was made, the in­strvcting of the ignorant, and the good of the publike; the Author hath his ends, and abundant recompence for his labour. Which that it may accomplish is the earnest and affectionate desire of the true Servant to the publike.

IO MARCH.

In my Lord Dyer it is said that to e­very Award,Trin. 4. of the Queen Dyer. fo. a 17. pl. 6 [...]. there are five things in­cident.

  • 1. Matter of Controversie.
  • 2. Submission.
  • 3. Parties to the submission.
  • 4. Arbitrators.
  • 5. Rendring up of an Arbitre­ment.

Reader, my purpose is (God willing) to prosecute every one of these parts or incidents of an Award [though parad­venture not in the order before set downe] conceiving them to be as exact a discription or delineation of those things that are requisit to every award, as possibly can be made: And indeed teaching to all the cases in the Law, which do principally or chiefely con­cerne Awards or Arbitrements.

First then there must be a matter of debate, question and controversie.

Secondly, this matter of debate question and controversie must bee submitted.

Thirdly, there must be Parties to the submission.

[Page 152] Fourthly, there must be Arbitra­tors, to w [...]om the matter in contro­versie must be submitted. And lastly the Arbitrators must make an award or an Arbitrement.

Vpon these severall branches, I shall raise severall questions, and debate and cleare them as I goe, and first.

Who may submit to an Arbitrement and who not?

I Take this to be regularly true, that no person, which is not of ability in judgement of Law to make a grant, &c can submit himelfe to an Arbitrement

As men Attainted of Treason, Fe­lony, or a Praemunire, Ideots, mad men, a man deafe dumbe, and blind from his Nativity; a Feme Covert an Infant, a man by Duress [...]e for a submission to an Arbitrement must be Spontanea vo­luntate. Persons Ontlawed; for they have no Goods: a Dean without the Chapter, a Major without the Com­monalty; the Master of a Colledge or Hospitall without his Fellowes, or the like. All these as they are incapble to [Page 153] graut, so I conceive, that they are not of capability to submit to an Arbitre­ment, but that the submission will bee absolutely void in these cases.

The reason of these cases may be, be­cause that they have not power of them selves to dispose of their interest or property, and therefore they cannot transferre such power over to another; for the rule is, quod [...]er me non Possum, necper alinns.

And Hill 15. of this King in the Kings Bench,Hill. 15. Car. in the Kings Bench, Rot. 313. see 14. H. 4. 12. 10. H. 6. 14. betwixt Rudsten and Yates, it was adjudged, that the sub­mission of an Infant to an Arbitrement was absolutely voyd.

But now on the other side, I con­ceive that all persons whatsoever that are not fettered with these naturall or legall disabilities; but are of capacity to make a grant, that such persons may submit themselves to an Arbitremen, as persons not attainted, compos mentis, deafe dumbe, or blinde, Femes sole, men of full age; and the like, the sub­mission of such persons to an Arbitre­ment is good; but enough of this; in the next place I shall consider.

What things may be submitted to an Arbitrement, and what not?

THat is to say, what things are in Law arbitrable, and what not? Things and Actions which are meere­ly personall, and incertaine,22. H. 6. 39 4. H 6. 17. 14. H. 4. 2. 4. H. 16. 17. 2 H. 5. 2. as Tres­passe, a Ward taken away, and the like, are arbitrable.

But things which are of themselves certaine, are not arbitrable, except the submission be by Deed, or that they be joyned with others incertaine, as Debt with Trespasse, or the like.

The reason that is given in 4. H. 6. is, because the nature of an Arbitrement is, to reduce things to a certainety, which are in themselves incertaine, and not to make things more certaine, which are certaine already.

And the reason likewise that is there given, why a thing certaine, which is joyned with a thing incertaine should be arbitrable, is because that the arbi­trement is intire, and therefore cannot be good as to that which is arbitrable, and voyd for the residue; (which you [Page 155] must understand being of things with­in the submission) but being good for the part which is incertaine, it will make the rest also arbitrable.

Cha [...]tels reals or mixt,g. H. 6. 60. 14. H. 4. 24 19. H. 6. 37. are not of themselves alone arbitrable, as Char­ters of Lands, Leases, or the like, with­out the submissien be by specialty.

Debt upon the arrerages of account before Auditors,4 H. 6. 17. 3. H 4, 5, 6, H. 4. 9. 9. H. 6. 60. 14 H. 4. 18 3. H. 4. 6. 11. H. 4. 12 14. H. 4. 19. & 24. 54. E. 3. 16 12 Ass. pl. 26. 21. E. 3 15. 23. H. 7. Keilway. 99. pl. 6. 21. E. 3. 26. because such Debt is due by Record; Annuities, nor Free­holdes, none of these are of themselves arbitrable, without the snbmission bee by specialty.

I must confesse that some of these Bookes say, that Arbitrators may award a Freehold without Deed. Others say that the submission must be by specialty [as you may observe before) and some say that the Arbitrement in these ca­ses must be by Deed and that then the arbitrement may be pleaded in Barre of an action.

Bnt I take this as a generall rule, that no Chattels reals, or mixt, no Debts by Deed, or Record no Annuities nor Free­holds are of themselves arbitrable though that the submission bee by Deed; and I shall prove it thus.

[Page 156] If they were arbitrable of themselves, then upon an action brought in any of these cases, an arbitrement were a good plea in Barre of the action but an Arbi­trement in such case is no plea in Barre of the action as appears by the books before cited therfore I conceive that the argument is plaine & evident that these are not of themselves arbitrable.

But for further proofe of this ground that I have laid downe; it is taken as a generall rule in Blaks case in my L. Coke 6. Coke lib. 6. fo. 43. b. 44. 2. Book, that an arbitrement is no plea when an action is founded upon a deed, when it is in the Realty, or mixt with the realty, but in such cases only, or at least, regularly, where Damages alone are to be recovered.

I shall conclude this with the Booke of 21. E. 3 cited before,21. E. 3. 26 that an arbi­trement that the one party shall have the land our of the possession of the o­ther, doth not give a Freehold; and if hee refuse to permit him to have the Land, he hath no remedy, if hee hath not an Obligation to stand to the Ar­bitrement.

By this case wee may learne, as also by that which I have told you before, [Page 157] that though these thing are not of themselves arbitrable; & so the arbitre­ment not pleadable in Barre of an acti­on. Yet a man may in such cases bind himselfe by Obligation to stand to an award [as it is usuall so to do] and for the non performance of the awrd, the Bond will be forfeited. And this is the submission by specialty so often spoa­ken of in the Bookes before.

And therefore I conceive that the opinion of Greuill and Pollard in 23. H. 7. is no Law,23. H. 7. Keilway fo 99. pl. 6. who say that where there is a submission of the right, Title, and possession of land, [without any o­ther parsonall difference] to an award, that an arbitrement in such case is void; and that an Obligation to obey such an arbitrement is void.

It is true, the Booke makes a quaere of it; because that others were, (as the Booke saith) cleere of another opinion. And certainely the Bond is good; as common experience teaches; I shall put a case like it, which I conceive will plainely prove it.

A man makes a Feoffement upon condition that the Feostee shall not take the profits,Coke up­on Little­ton fo. 206. b. the condition is abso­lutely [Page 158] repugnant and void. But a Bond in such case conditioned that the Feof­fee shall not take the profits, is good.

So I say in this case, though the thing it selfe be not arbitrable; yet if a man in such case, will bind himselfe to stand to an award, the Bond is good.

Lastly, causes matrimoniall are not arbitrable; neither are Offences crimi­nall as Treasons, Felonies, &c. be­cause it concerns the Commonwealth that such offenders be punished. But of this sufficient; the nature or kindes of submissions is now to bee conside­red.

  • Submission to an Award may be either
    • Generall, or Speciall.
    • Absolute. or Conditio­nall.

A Generall Submission.Coke lib. 8. fo. 97. 98 Baspoles case.

A generall Submission is of all mat­ters, Suits, Debts, Duties, Actions, and demands whatsoever.Coke ubi supra Trin. 4. of Queen yer fo [...]. b.

A speciall Submission.

A speciall Submission is only of [Page 159] some certaine matters in controversy, as such land then in question; or all actions of Debt, Trespasse, or the like, here I could observe unto you the di­fference betwixt a generall submission conditionall, and a speciall submission conditionall; but because it will be more apt and agreeable in case where I shall shew you, what will be a good arbitre­ment and what not. I shall referre it thether without further saying.

An absolute submission.

An absolute submission,Coke. & Dyer ubi supra. where the circumstance of time, when; the man­ner of the arbitrement, howe; whe­ther Sealed or unsealed or the matter of the arbitrament; viz: to arbitrate part or all or the like, are wholy left to the Arbitrators.

A conditionall submission.

A conditionall submission, is, where the submission is with an ita quod or Proviso &c. Coke & Dyer. ubi supra. the award be made and delivered under in hands and seals of the arbitrators, before such a time; [Page] in such case, if the time manner and matter, are not all exactly obserued, the arbitrement will be void; but of this more fully hereafter.

Note Reader, Dyel fo. 216. b. pl. 59. & 242. pl. 52. that a submission may be by word onely as well as by Deed or specealty but the submission by deed is better, for then though the submission be of things not arbitrable, the party forfeites his Bond if he doe not ob­serue it whereas if the submission were by word onely there were no remedy in such case to inforce the party to performe the award

Who may be arbitrators and who not?

I conceive it most fit, that such onely should be Arbitrators who, as they are indifferently chosen (as it is said in the Condition of the Obliga­tion) are men indifferent, just and up­right, swayed neither with favoure feare or affection to either party men likewise hauing sufficient parts, and competent understanding and know­ledg in the matter or busines referred to Arbitrement having neither legall [Page 161] (as persons Attainted, convicted of perjury &c.) nor naturall impedi­ments, as Infants, Ideots, madmen, or the like.

These qualifications in arbitrators be­ing duly observed a man need not dout of a iust and upright sentence the want of the obseruation of which, causes many vnjust and undue sentences in Arbitrations.

But I doe not find in our Law that either leg [...]ll ar naturall disabili­ties, doe hinder any man from being an Arbitrator; or avoide his sentence and certainely they doe not for this differs much from a submission to an Arbitration for in such case a man ties his interest and binds his person which every one is not of capacity to doe; but in this case what he doth as an arbitrator, is onely to charge or discharge others. And besides they are chosen by the parties themselves, and if they they be not competent Jvdges, the fault is theirs that chose them.

And now I shall proceed to shew you what Arbitrators are and their power by which you will easily perceiue, of [Page 162] what high concernement it is to men, to have a speciall care of the choise of Arbitrators.

What arbitrators are and there power.

An Arbitrator is as our bookes say, a Judge indiff [...]rently chosen by the parties,Pasch. 91. of the Queene Dyer fo. 356: pl. 39 19. H. 6. 36. 37. to end the matter in con­troversy betweene them, Ad Arbitri­um and therefore they are said to be Arbitrators because they have an Ar­bitrary power, and may judge ac­cording to there will aud pleasure, so that their judgment be according to the submission & these Judges are not tied to any formalities,Coke lib. 5. fo. 78. a. 8. E. 4. 1. & 2. or punctualli­ties in Law neither are they s [...]orne, as other Judges established by publike authority are.

Besides, their power is farre grea­ter, for as they may judge as they please keeping themselves to the sub­mission, so their sentence is absolutely definitive and conclusive from which there lies no Appeale; as it was ex­cellently well said by Heath Iustice, in arguing of the case of Rudston and [Page 163] Yates cited before the judgement of Arbitrators said he (provided that they keepe themselves to their juris­diction) is higher then any judge­ment given in any Court for if they erre,Mith. 17. Car. in Kings Bench. no Writt of Error lies to re­verse their judgement, no, not so much as Equity against them.

This is true where they keep them­selves close to the submission; but if they do not, in such case (though no Writt of Error lies to reverse their judgement) upon an Action brought upon a Bond or promise for not per­forming an awa [...]d, if the Defendant plead that the Arbitrators made no award, and the Plaintiffe replies that they did make an award and sets it forth in speciall, if it do appeare that the award is void (as it may be in ma­ny cases which I shall set forth here­after) the Action in such case will not lie as every dayes experience teaches, and in which our Bookes are plenti­full. By that which I have said be­fore, it is manifest, how it concerns every man to have a care what Arbi­trators hee makes choice of; but of this sufficient. The next thing consi­derable, is,

Whether the power of Arbitrators be Assigenable or not?

The Law is cleere that Arbitrators cannot assigne over their power, the reason is, because that it is but a nude power or Authority (which is evident in that it is revocable, as I shall shew you hereafter) and therefore by the Law not assignable. To which may be added, that it is a power coupled with a great trust and confidence, and there­fore not assignable.

I confesse that the Booke in 47. E. 3 doth tacitely admit this power to bee assignable where the case is thus,47. E. 3. 20 In Debt, the Defendant pleaded that they submmitted themselves to the Arbitrement of two persons, who did award that they should stand to the award of W. P. which W. P. made an award which he hath perfor­med, &c. here it is tacitely admitted that the Arbitrators might award that they should stand to the Arbitre­ment of another, but Brooke in a­bridging this case saith, the Law see­meth contrary.

In 8. E. 4. prototam Curiam except Yelverton, where a man is bound to [Page 165] stand to the award &c. who award that an Action shall be commenced betwixt the parties by the advise of VV. and P. this is a good award for by this W: & P. are not Arbitrators,8. E. 4. 1. & 10. but onely executors of the Arbitrement. And in this case the Arbitrators jud­ged the Title to bee tryed betwixt them; but know not what action should be brought.

But if they had awarded, that the parties should stand to the Arbitre­ment of W and P. this had beene void, because that they cannot assigne ouer their power.

Yelverton held in the first case, that the award was void for the incertainty because that W. and P. are to give their advise, which is not certaine vntill it be notified, and in this case he hath made them Judges.

I confesse that I doe somewhat doubt of the case, because the judgment of the arbitrators ought to be finall, and this is no concluding of the mat­ter in controversy; but a trans [...]erting of their power over to the Lawe, to determine it.

Besides, W. and P. may never give [Page 166] their advise, or may refuse to doe it, and in such case the arbitrement will prove idle.

And I do not conceive this case to be like the case in 19. E. 4. where the Arbitrators awarded a certaine sume,19. E. 4. [...]. and in surety of payment thereof, to be bound by the advise of Counsell, for here their judgement of the mat­ter in controversie is certaine, and fi­nall, and here is a some certaine awar­ded for which an Action will lie, only the security is to be advised by Coun­sell; which is no assignement of their power, but of this more hereafter.

Emery, and Emerys case the chiefe point whereof was thus;Mich. 41. & 42. of the Queen in the Common Pleas. the arbitrators award that the plaintiffe should make such a Release as one of the Arbitra­tors should like of; in this case the arbitrement was held to be void, be­cause this was an appointing of an au­thority committed to them all, unto one which they cannot do.

I shall conclude this point with Sa­mons case in Co [...]kes. 5. Booke, where the case is [...]hus: Arbitrators award that the defendant should enter into an Obligation to the plaintiffe, and doe [Page 167] not judge of what some the Bond shall be adjudged the Arbitrement was void for the incertainety, and that the Ar­bitrators could not assigne over their power but that themselves ought to determine it; and therefore neither the plaintiffe nor the defendant could assesse the some [...] the next thing consid­derable is.

VVhether the authority of Arbytrators be coun­termandable or not?

In his case also the Law will bee strong and evident,28. H. 6. [...]. 21. H. 6. 30. 49. E. 3. 9. 18. E. 4. 9. 8. E. 4. 10. 5. E. 4. 3. Br. Ar­bitrement 35. 6. H. 7. 1a. b. that this authori­tie is countermandable at any time before the award made; but not after, because then the authoritie is execu­ted, and cannot be countermanded, and so are all our Bookes but 5. E 4. where it is said that if a man be bound to stand to the Arbitrement of I N he cannot discharge the Arbitrator, contrary if he were not bound to stand to his arbitrement, yet Brooke upon this case saith, that it is cleere that he may discharge the arbitrator in both cases? but in the one case he shall for­feit his Bond in the other he shal loose nothing, because that ex nuda submissio­ne [Page 168] non oritur actio, so likewise it is resolved in Vinyors case which I shall put you presently.

In 28. H 6. by Ashton Iustice if there be two plaintiffs and one defendant or two defendants and one plaintiffe put themselves to the award of other neither the one plaintiffe with out th [...] other,28. H. 6. 6. nor the one defendant without the other, may discharge the arbitra­tors, the reason is obvious, because that they were chosen by the joynt authori­ty of both, and therefore cannot be countermanded by one alone.

But that which is the last and best authority,Coke lib. 8. fo. 82. is Vinyors case; where it is resolved that though a man be bound to stand to the Arbitrement, &c. yet he may countermand the Arbitrators; the reason that is given is, because a man cannot by his own act make such an au­thority, powr, or warrant; not counte­mandable which by the law, & its ow [...] proper nature is countermandable, a [...] I make a Letter of Attorney to ma [...] livery or to sue an Action in my [...] or if I assigne Auditors to take an ac­count, or if I make one my factor, o [...] submit my selfe to an Arbitrement [Page 169] though that these are done by expresse words irrevocable, or that I grant, or unbound that al these shal stand irre­vocable, yet they may be revoked; so if I make my testament or last with irre­vocable, yet I may revoke it.

But in this case it was further re­solved that by the countermand or re­vocation of the power of the Arbitra­tor, the Bond (according to the opini­on of Brooke before cited) is forfi­ted, because he was bound to stand to his award, which he doth not doe when he discharges the Arbitrator. I have sufficiently cleered it, that the au­thority of Arbitrators is counter­mandable; but hence arises two que­stions more, the first is.

Whether the Authority of Arbitrators be countermandable without Deed, or not?

The resolving of which doubt I conceive will stand upon this diffe­rence, where the submission is by deed▪ and where without deed; where it is by deed, in such case I conceive the authority cannot be counterman­ded [Page 170] but by deed and so is 49. E [...] 3. but where it is without deed,49. 1. 3. 9. there the authority may be countermanded without deed and this I ground upon that rule of law codom modo qu [...] [...] creatur dissolvitur. It is but agreeable to naturall equity, that every thing should be dissolved by the same me [...] ­nes or power that it was created.

And in Vinyors case which I have [...]i­ted before, there the submission [...] by deed, and the countermand pleade [...] by deed, the second, and last do [...] or question considerable in this coun­termand of the authority of Arbitra­tors i [...]

Whether there ought to be notice of the coun­termand or no?

There must be notice of the coun­termand,8. E. 4. 10. b. et 11. a. 21. H. 6. 30. 28. H. 6. 6. et 6. H. 7. 10. Coke lib. 8. fo. 81. b. 82. a. fer without notice, it [...] no revocation or abrogation of the authority and so it is resolved in the Bookes which you: have in the Ma [...] ­gent.

Vinyors case cited before was th [...] he brought an Action of debt upon [Page 171] Bond against Wilde, conditioned for [...]he standing to an award, to which the defendant pleaded that the Ar­bitrator made no award, the plaintiffe replied, that after the making of the said writing obligatory, and before the Feast of &c, the defendant by his deed &c. rovocavit & abrogavit [...] authoritatem &c. which he had given by his writing obligatory to the arbitrator, upon which the de­fendant demurred.

Tis true, that in this case it was resolved that the plaintiffe need not averre that the arbitrator had notice of the countermand; but the reason that is given, is not because that no notice is requisite, but because notice is implied in these words, revoca [...]n & abrogavit, is in the words feoffavit, dedit & dimisit, a livery is implied.

But it was, resolved that without notice, it is no revocation of the au­thority; and therefore if there were no notice in this case (saith the Booke) the defendant ought to have taken issue quod non revocavit &c, and if there were no notice it shall be found for the defendant. I have done with [Page 172] the countermand of the authority the next thing to be considered is.

What an arbitrement is.

An award or an Arbitrement, is nothing else but the order judg­ment and decree of the Arbitrators upon the matter or thing in con­trovercy referred or submitted unto them by the parties for their deter­mination, thus in short you see what an Arbitrement is, the next and maine seruple or question will be.

What Arbitrement is good in Law and what nor?

An award or an Arbitrement may be void in Law in severall respects, and first.

Where the award is not according to the submission.

  • And this threefould either in respect of the
    • persons things submit­ted, or
    • the circum­stances of the submi­ssion.

[Page 173] And first, an award may be void where it is not according to the submission in respect of the persons; that is where it doth award a thing to be done by or to a stranger who is not party to the sub­mission.

In 22. H. 6.22. H. 6. 46. 8. E. 4. 1. & 9. 36. H. 6. 8. acc. the case is thus; in debt upon a bond to stand to an award the defendant pleaded that the Arbi­trators did award him to pay 20 shil­lings to R. a stranger, which he paid, in this case by the opinion of the whole Court, the award was void.

So in 17. E. 4 two submitted them­selves to the Arbitrement of I S of all Trespasses &c.17. E. 4. 5. 19. E. 4. 1. 18. E. 4. 21. b. & 17. [...]. 7. Keilway fo. 45. pl. 2 who awarded that the one should pay to the other 40 l. 10 l. in hand, and that he should find three severall sverties, every one of them to be bound with him in 10 l. to pay the 30. l. residue at a certain day, by the whole Court, the award was void, as to the finding of the suerties which were strangers to the submis­sion.

And therefore certainely that op­pinion in 5. H. 7. cannot be Law, where it is admitted that an award to make a feoffement to a stranger is good

[Page 174] Moore and Bedels case was thus,Mich. 28. & 29. of the Queen in the Kings Bench, Rot. 476. Bedel recovered by default in an Action of Wast against Moore 45 l. damages, after which judgment, they submitted themselves to an award, the arbitra­tors award that Moore should pay to Bedel 10 l at certaine daies, and 15 l. at certaine other dayes, and that for the payment of the 15 l. one William Salter should be ready to seal [...] and deliver 15 obligations &c. and that the said William Salter should doe other things, not within submission.

In this case it was adjudged that as to all that was to be done by William Salter, Pasch. 24 [...] at the Queen in the Kings Bench. Rot. 2417. being a stranger to the sub­mission, the award was void, for they are not bound to performe any award but that which is within the submissi­on, so likewise it was adjudged be­twixt Ecclessield and Maliard in the Kings Bench.

Two submit themselves to the Arbi­trement of A. who Arbitrates thus,Trin. 4. of the Queen Dyer. fo. [...]16, b. the award of A. indifferently chosen by I. for the behalfe of the obligor of one parte, and the oblige of the other parte, &c. the doubt was whether the [Page 175] award were betwixt the parties o [...] no, but it was ruled that it was, be­cause that I. was not party to the award, but a deputy or factor &c.

A. and B. were bound to stand to the arbitrement of I. S. concerning a mat­ter in controversie which did arise of the part of the wife of B. before co­vertute, I. S. awarded that A. should pay so much to B. and his wife. In this case it was moved by Seriant Rolls that the award of paiment of mony to the wife was out of the submission, and therefore nought.

But by the whole Court the award was held good, because it doth appeare upon the submission that the contro­versy did arise on the part of the wife.

Secondly, an award may be void, where it is not according to the sub­mission, in respect of the things or mat­ters submitted.

If one be chosen arbitrator to make an Arbitrement upon one thing,Pl. Com. fo. 396. [...] and he makes an Arbitrement upon another thing, the Abitrement is void.

In the case of Moore and Bedel cited [Page 176] before, who submitted themselves to an Arbitrement of all matters in varience betwixt them; the Arbitra­tors award (amongst other things) that whereas Bedle being possessed of a certaine coppy hould [...]oulden of the Mann [...]r of L. in the Country of B. had made a Lease for years of the said Co­pihould by Indenture contrary to the Custome, that one William Salter Pro Posse suo should cause that no advan­tage should be taken of the forfei­ture, in this case it was adjudged that the award concerning this Coppi­hould not being within the submissi­on was void.

Two submitted themselves by re­cognisance to an Arbitrement,7. et 8. of the Q [...]een Dyer fo. 242. pl. 52 of the right and interest of 200. Acres of Land, &c. the Arbitrators award that the Defendant should have Brakes during his life in the land, re­solved that the award was not accor­ding to the submission, because that, that was of the right and interest in the land;2. R. 3. 12. b. 12. E. 4. 25. b. Coke lib: 5. fo. 8. a and the award is only of par­cell of the profits out of it.

If I. N. and three others put them­selves upon an award of I. S. of all [Page 177] Actions and demands betwixt them. In this case the Arbitrator hath good authority to make an award of all joynt matters betwixt them, and of all severall matters also: but he can­not arbitrate any matter betwixt the three only, because they are one party against the fourth, but he may deter­mine betwixt any of the three and the fourth.

In 9. E. 4.9. E. [...]4. 43. b. 44. e. 36 H. 6. 8. et 11. acc. two submitted themselves to the arbitrement of one I. L. de omnibus actionibus personalibus sectis & querelis, &c. betwixt them, &c. who awarded that, because the De­fendant had committed divers offen­ces to the Plaintiffe, and that the Plaintiffe was seised of such a house in Fee, that the Defendant should re­lease to the Plaintiffe, all the right which he hath in this house, &c

In this case I conceive the better opinion to be, that the Arbitrement is void, because that the power of the Arbitrator who is a Judge privatly chosen by the parties, shall be taken stricti juris, in that thing onely of which the compremise is, and not in another thing; and here the compre­mise [Page 178] was but of a thing personall, and the Arbitrator hath awarded a satis­faction reall, to wit, a [...]release of a right to a house, which was not com­prised within the submission.

And Littleton in this case said, that if he had awarded that the Defendant should serve the Plaintiffe two yeares, this would be void.

And by Choke if we put our selves in Arbitrement de jure, titulo, & pos­session [...] Manerij de Dale, and the Ar­bitrator makes an award of the Man­nor of Sale,Trin. 3 [...] Iac. in the Kings Bench, Rot. 216. this is void.

Haynes against A [...]nsteed in Debt upon an obligation to stand to an Ar­bitrement in all causes that have bin depending betwixt the parties ab ini­tio mundi, the award is that the De­fendant shall release all causes to the Plaintiffe from the beginning of the world, usque &c. Tanfield Iustice that the award is void for it is, that the Defendant shall release all causes ge­nerally; and the submission is of all causes depending then, and so the a­ward void, and then the obligation not forfeited, quod Curia concessit; and judgement was given for the De­fendant.

[Page 179] In a Writ of Error upon a judge­ment given in the Common Bench in debt upon an obligation to stand to the award of I. S. concerning an action of account pending,Mich. 7. Iac. in the Kings Bench, Cornelius Lawrence & Carres Case. the arbi­trator made an award touching the account; and further awards that e­very of the parties should release to the other all Actions; the error in point of Law was that the award was void, for though the Arbitrement may be good in part and void in part, yet if it be void in any part, the obli­gation is void;An award made for more then is submit­ted, is good for that which is submitted and void for the re­sidue. quod non allocatur; for per curiam when the award is made for more then is submitted (as in this case) it is good for the thing submitted; and void for the surplu­sage, but if the award bee made of lesse then is submitted, then it is void for the whole.

If divers Covenants be, and a man is bound in an obligation to performe them, and some of the Covenants are void and against Law, and the residue good, yet he ought to performe those that are good, otherwise the obliga­tion is forfeited, and this was one Al­derman Lees case, vide 14. H. 8. [Page 180] wherefore judgement in this case was affirmed.

Goffe against Browne upon an Obli­gation dated the 23 of February to performe an award of all causes untill the day of the Date of the Bond.Hob. Rep. pa. 267. pl. 233. The Defendant pleaded that the Arbitra­tors made no award. The Plaintiffe replyed that the 28 of March follow­ing, they made an award▪ de & super premissis, that the Defendant should pay the Plaintiffe 20. l. at Midsummer following, in full satisfaction of all matters between them, and that they then should make the one to the o­ther generall releases of all matters betweene them, and assigned the breach for the non-payment of the 20. l. The Defendant demurred; be­cause the award did seeme to exceed the submission, being for discharge and satisfaction of all matters to the day of the award, which was more then was submitted, for it may bee that the Arbitrators might meane some part of the 20. l. in discharge of the causes that might arise betweene the 23. of February, and the 28. of March, which were not within [Page 181] their power, and so for the release.

Yet judgment was given for the Plaintiffe either because de & super Premissis may import a restraint to the thing submitted, or else that no new causes shall be supposed except they were alledged.Coke lib. 8. fo. 98. Basp [...] ­les case. as in pleading of awards of causes they neede not a­verre that these were all, &c.

There was a case which was be­twixt Robert Tiderby the Father and Robert Tiderby the sonne,Mich. 9▪ Iac. in the Kings Bench. which was thus; they bound themselves to stand to the award of I. S. concerning all controversies, quarrels, and debates right title, and possession of, or con­cerning the Mannor of Dale. I. S. a­warded a convayance of the Mannor of Dale to certaine uses, and that Robert Tiderby the Father should de­liver all evidences, and charters con­cerning the Mannor.

In this case it was objected that the delivery of the evidences was not within the submission; for they are neither the right nor title, nor possession of the land. To which it was said that the chart [...]rs are the nerves and sinewes of the land, and [Page 182] therefore with in the words right and Title, for without the charters, nei­ther of these can be maintained also by 8 H. 6 & 16 E. 4. Where Arbitrators have power over the principall, they have power over the accessory; and therefore the right and Title of the Land being put to the award of I. S. which is the Principall, he hath pow­er to make an award of the Charters which are the accessory.

Againe, an award may in some cases be void, where it is made of parte onely of things or matters contained in the submission and not of the whole.

In 19. H. 6 two submitted them­selves to an award upon the right ti­tle and possession of Land; the Ar­bitrator made an award of the possessi­on only; which was objected by Yel­verton to be nought, because it was of part of the thing in submission onely. But by Newton if two submit themselves to an avvard of al Actions reals and personals, and an award is made of all Actions personals onely, this is good and so was the opinion of the whole Court.

In 39. H. 6. by Prisot where two [Page 183] or three things are put in arbitre­ment joyntly,39 H. 6. 9. and an Award is made of part, and not of the whole, this is a void award.

And in 22 E. 4. where the submissi­on is of all trespasses,22 E. 4. 25 [...] R. 3. 18. b. ac. betwixt A. of the one part, and C. and D. of the o­ther part; and an award is made, that A. shall pay 10 l. to C. and saith no­thing of D. yet it is a good award: for it may be that A. hath offended C. and hath not offended D.

Which books,Coke lib. 8. fo. 98. Baspoles case. and all others to this purpose, must hee understood with these differences: First, where the submission is by Deed,Trin. 4. of the Queen Dyer. fo. 216. b. & 7 & 8. of the Queen. Dyer fo. 242. pl. 52. and where without Deed: where it is without Deed, there the award may be made of part only, and good.

Again, where the submission is by Deed, there is this difference to be observed; where the submission is generall of all matters, &c. or in spe­ciall, of some particular things only, with an Ita quod, or Proviso, the a­ward be made de premissis; or that the said award be made and given up by such a time: and where the sub­mission is general or special, without [Page 184] such a conditional conclusion. For in the first case the award must be made of all the matters submitted, because of the conditionall reference, and in the last the award may be made of part only, and good.

So it is (where the submission is not conditionall) in case of divers particular persons (as the case is put before) if two of one part, and one of another part submit themselves, the arbitrator may make an arbitrement, betwixt the one of the two of the one part, and the other of the other part, and good.

But note Reader, that there is this difference to be observed betweene pleading of an award upon a submis­sion general conditional, and plead­ing of an award upon a submission special conditional.

For in the first case,Baspoles case, ubi supra. if an award be pleaded de premissis modo & forma se­quentibus; and alledged to be upon one single matter in controversie, this is good; because it is shown that the award was made de premissis, which doth import an award of all that which was referred to the arbitra­tors; [Page 185] and so it shall be intended, un­till the contrary be shewn by the o­ther party: for when the submission is generall, Generale nihil certi im­plicat; and it may well stand with the generality of the words, that there was but one cause depending in con­troversie betwixt them.

But in pleading of an award upon a submission special conditional, there the award must be expresly alleaged to be made of all things within the submission, or otherwise it is nought, because upon the very face of the award it will appear, whether it were made of all things in the submission or no. For if the submission be of se­veral things in special, and an award pleaded only of one, it is apparent that the award is not of all matters contained in the submission.

Again, if upon the pleading of an award upon a submission general con­ditional it doth appear either upon the shewing of the other party (as hath been said) or by the award it self, that it was not of all matters in con­troversie in such case also, the award will be void, though the submission [Page 186] were general, because that it was conditional.

Mote and Menerels case in my Lord Dyer was thus,Trin. 4. of the Queen Dyer, fo. 216. b. they were bound to stand to the award of A. for Dila­pidations, &c. and all other suits, quarrels &c. Ita quod, the said award were made, &c. who made an award of the Delapidations, with a prote­station that hee would not meddle with the rest. In this case the opini­on of the book is, that the award is nought, for that it did not extend to all the points in the submission, for he made no arbitrement of the suits and quarrels, &c. but made an expresse protestation that he would not med­dle with them; by which he hath dis­abled himself to be an arbitrator in the premises, because that he refused to make an arbitrement according to the submission of the parties, who chose him for to arbitrate, conditio­nally ut supra: viz. So that the same award, &c. which is as well of suits and quarrels, &c. as of dilapidations.

In this case▪ though the latter part of the submission were generall, yet because it was conditional, and it did [Page 187] appear by the award it self, that it was not made of all things submitted, therefore the award was not held void.

But in this case I conceive, that if the award had been of the dilapidati­ons generally, without the protesta­tion, that it had been good enough, because that the latter part of the sub­mission is general: and therefore if the award had been pleaded de premis­sis, and aleage the award of the dela­pidations, it shall be intended that this was all the matter in controver­sie betwixt them, untill the contrary be shewed.

There is one thing yet in Baspoles case worth the noting,Coke lib. [...] fo. 98. a which I can­not omit: where it is adjudged, that though there are many matters in controversie, yet if one only be noti­fied to the Arbitrator, he may make an award of this; for the Arbitrator is in place of a Judge, and his office is to determine secundum allegata & probata; and the duty of the parties which are grieved, and know their particular griefs, is, to give notice of the causes of controversie to the Ar­bitrator, [Page 188] An arbi­trator may make an award of one mat­ter only, if he have notice of no more. for they are privy to them, and the Arbitrator a stranger, and every one ought to do that which lies in his notice.

And if other construction should be made, most arbitrements might be avoided: for the one might con­ceale a trespasse done, or other secret cause of action given him, & so avoid the arbitrement, & expedit▪ r [...]ipub. ut sit finis litium. I shall cite, but one case more upon the former ground, and so passe this, which is thus.

Barnes brought debt upon an Obli­gation against Greenly, Hob. Kep. p. 267. pl. 234. dated the 4 of September,An arbi­trement seeming not so large as the sub­mission. to performe an award of all causes, till the day of the date: the Plaintiffe pleaded the award de pre­missis, viz. of all causes till the 3 of December, and assignes a breach: the Defendant maintained the Bar, that the Arbitrator made no award, and verdict for the Plaintiff & judge­ment: here the award was a day short of the submission. Upon this a Writ of Error was brought, but what issue it had, that my Lord Ho­bart saith, he doth not know.

I doe conceive, Reader, that the [Page 189] difference formerly taken, will re­solve this case; for if the submission were conditional, then I think the award is nought, being not so large as the submission; but if it were ab­solute, in such case I think it good.

But to this it may be said, that the Law will not intend any other mat­ter of controversie to arise betwixt the third of September & the fourth, without it be shewn; and for ought appears, the award is of all causes to the fourth of September, because no other cause appeares then what is a­warded: therefore quaere.

Thirdly and lastly, an award may be void, where it is not according to the submission in respect of the circumstan­tes of it.

Page and Parkers case was thus,Page and Parkers case in the Kin. Bench. in debt upon a bond conditioned for the performance of an award, so that it be delivered in writing sub manibus & sigillis, &c. the defendant pleaded the delivery of it in writing, and doth not say sub manibus & sigillis, and a performance, the plaintiffe alleaged a breach, and judgement given for him, which was reversed in the Che­quer [Page 190] chamber, because the Defendant did not plead the award sub manibus & sigillis; for if an arbitrement bee not made according to the submissi­on, it is no arbi [...]rement; if no arbi­trement, no cause of action.

So in this case I conceive,1 H. 7. 5. 7 & 8. of the Queen Dyer, fo. 243. pl. 56 31. H. 8. Br. arbitr. 42. if the a­ward had been pleaded sub manibus, and not sub manibus & sigillis, it had been nought.

So likewise, if it had not been plea­ded that it was delived in writing, it had been void.

And where there is a submission to an award,2 R. 3. 13. pl. 32. & 8 E. 4. 11 a. so that it be made and delivered to the parties in writing, at or before such a day: in such case, if it have not all the circumstances, that is, though it be made, yet if it be not delivered; and though it bee made and delivered, yet if it be not delivered to the parties, and though it be made and delivered to the par­ties, yet if it be not in writing; and though it have all these circumstan­ces, yet if they be not all done, at or before the day, in any of these cases the award will be void, as appears by the books in the margent.

[Page 191] And if the Arbitrators award any thing after the time limited,8 H. 6. f. 18 it is void.

Two of one part,Coke li. 5. fo. 103. Hungates case. and two of ano­ther submit themselves to an award, so that the award be made and deli­vered to both parties, &c. A delivery in this case to one of either party is not sufficient, but it must be to both the entire parties.

The reason of all these cases may be because (as I have formerly said) that it is but a bare power or authority which is giveu to an Arbitrator, and therefore it must be strictly executed according to the qualifications and conditions annexed to it.

But the reason that comes more close is, because that the submission is condit [...]onal; Ita quod, or Proviso, the award of the premises, or the said award, &c. now it cannot be an a­ward of the premises, or the said a­ward, if it be not in every thing mat­ter, and circumstance, agreeable to the submission. And now I have done this part, of shewing you where an award shall be void, in regard that it is not according to the submission. [Page 192] I shall now shew you before I go any further, what I intend by saying that the arbitrement is void, and hereup­on I shall makes this qua [...]re.

In what case an Arbitrement shall be totally void, and where in part only.

And here I shall lay down these three several grounds or differences, all warranted by our books.

First,22 H. 6. 46 36. H. 6. 1 17. E. 4 5 19. E. 4. 1. pl. com. fo. 396. a. Coke lib: 8 fo. 98. where the award is of one single matter only, or of many things, all out of the submission, in such case the award is totally void.

Secondly,Baspoles case 4. of the Queen Dyer fo. 226. b. Coke lib. 5. fo. 77. Salmons case. where the award is of one single matter only, or of many things, all within the submission; yet if it be not lf all submitted, where the award is conditional, or not a­greeing in circumstances (as I have shewed you before) or if it be uncer­tain, impossible, &c. though but in part (as I shall shew you hereafter) in such cases likewise the award will be totally void.Rudston & Ya [...]e [...] case cited afterward:

Thirdly, and lastly, where the a­ward is of one thing onely, or of se­verall [Page 193] things,17. E. 4. 5. 18 E. 4. 22. b. part within the submis­sion, and part out, there the award is void onely as to that which is out of the submission,19 E. 4. 1. 21 E. 4. 75 17 H. 7. and good for the residue.

To these cases that I have cited,Keilway 43 & 45. Moore & Bedels case before I shall only adde one case remembred before, and that is▪ Cornelius Law­rence and Carres case, which was thus: They submitted themselves to the a­ward of I. S. concerning an Action of account pending; the Arbitrator made an award touching the ac­count, and further award, that every of the parties should release to the other all actions. In this case it was adjudged that the award was good, as to the account, which was submitted, and void for the surplusage. See fol. 9. b.

But note, Reader, that though an arbitrement may be void in part, and good in part as in the cases aforesaid, yet it cannot be totally void,An award voide a­gainst one of the parties, i [...] voide a­gainst both. as to one of the parties to the submission, and good against the o [...]her; for as the award must be on both sides (as I shall shew you hereafter) so I con­ceive the award must be equally and [Page 194] reciprocally obligatory to both par­ties, and if it be void against one, it will be void against both.

And I conceive that Moore and Bedels case cited before,In Osburns case. Coke l. 10. f. 131 will warrant this: The case was thus, Bedel re­covered by default in an action of Waste, against Moore 45. l. damages, and had judgement, after they sub­mitted themselvs to an arbitrement, and an award is made that Moore should pay to Bedel 10 l. at certain dayes, & 15 l. at certain other dayes; and that for payment of the 15 l. one William Salter should bee ready to seal and deliver 15 Obligations, and the award was of other things also out of the submission: and in consi­deration thereof, that Bedel should discharge Moore of 20 l. parcel of the said 45 l. recovered in the said Writ of Waste, and that upon the readines of William Salter to seale and deliver the said 15 Obligations, Bedel should release to Moore all actions and de­mands, &c.

In this case Moore brought an acti­on against Bedel, & shewed how that he payed the 10 l. &c. and assigned [Page 195] a breach of the award, that the De­fendant had not made the release up­on request.

It was resolved, that though that many things are awarded to be done in satisfaction of another, (as in this case) and some are within the submis­sion (as here the payment of the mo­ny) and some out (as in this case, all to be done by Salter being a stran­ger) and so void; and though that all were intended by the Arbitrators to be one full and entire recompence, for the things that the other should doe in consideration of this (as here the discharge of the 20 l. and the re­lease by the Defendant) notwithstand­ing if any to be done or to be given to the party, though that it be of small value be within the submission, the award is good; so in this case judgement was given for the Plain­tiffe.

In this case it is apparent, that if what was awarded on the Plaintiffes part, had been all out of the submis­sion, and by consequence void, that then the Defendant in such case had not been tyed to perform what was [Page 196] awarded on his part, for an arbi­trement void against one, is void a­gainst both.

Rudston and Yates [...], case cited be­fore:Hil. 15. Car. in the Kings Bench. Rot. 113. an Infant and one of full age submitted themselves to an award, it was adjudged that the submission, and by consequence the award, were absolutely void as to the Infant; and being void as to the Infant, that it was likewise void as to the man of full age; for that the award ought to be equally binding.

And now I have showne you where an arbitrement shall be void in the whole, and where in part on­ly: It will be necessary that I shew you, where a bond for not abiding such an award shall be forfeited, and where not.

Where an Obligation shall be forfeited for not performing of an Award, which is void in part or in the whole, and where not?

The Law as to this, takes this dif­ference, betwixt an award void in [Page 197] the whole, and an award void in part only. Where the award is totally void▪ there the bond can never be for­feited or the non-performance of it: because, that a void arbitrement and no arbitrement, are both one in the judgement of Law.

And therefore no more then a bond can be forfeited,Coke lib. 10. f. 131. b 7 H. 8. Keilway, fo. 175 a. where there is no award made can it be forfeited where there is a void award made. For as in the first case, he cannot observe tha [...] which is not; so in the last, the Law requires not the observation of that which is void.

As for the book in 22 Hen. 6. where there was a submission by bond, and an award to pay 20 s. to a stranger; and it is there said, that the judgement of the Court was, that though the award were void, yet it ought to be performed by reason of the bond; for otherwise the bond is forfeited: and therefore saith the book, the Plaintiffe traversed the award, quod mirum, sayes Brooke for this is no award between the Plain­tiffe and the Defendant.

[Page 189] Well might he wonder at it in­deed, for certainly this cannot bee Law: but because it is sufficiently re­fused by my Lord Coke in his tenth book, the place cited before, I shall thus passe it. But now on the other side, where the award is void in part only, there the bond may be farfeited for not observing the award, for as much as is within the submission, though not for that which is not contained in the submission: and therefore if a breach be assigned in that part which is void▪ the action will not lye.

In Emery and Emerys case cited before,Mich. 41. & 42. of the Queen in the Common-Pleas. 18. E. 4. fo. 22. b. 23. a. Stiles case 41. & 42. of the Qu. in the Common Pleas, ac. Glanvile cited a case betwixt Hellier and Rendals in the Kings Bench in which he said, he was of Counsel, where the Plaintiffe assig­ned his breach at a void matter, and after verdict for the Plaintiffe this was spoken in arrest of judgement; and judgement quod quer. nihil capi­at per billam. But now a breach may be assigned as to that which is within the submission, and the bond forfei­ted for it.

In 18 E. 4. it was [...]awarded that one of the parties should pay 40 l. [Page 199] to the other, 10 l. in hand: and that he and three others should be bound for the payment of the thirty pound residue. In this case by Brian, Neale, and Choke, though that the award be void, as to the strangers, yet it is not, void as to the party which submitted, but he must plead the award verba­tim, as the arbitrators gave it, and in performance of it he must say, that he himself was bound for the payment of the 30 l. rest at a day, and shall not speak of the sureties.

So in Cornelius Lawrence and Carres case cited before▪ Mich. 7. Ioc. in the Kings B. it was adjudged, that where there is an award of more then is submitted, it is good for that which is submitted, and void for the surplusage, and that the bond is for­feited for not performance of that which is within the submission. See fo. 9. b.

In 17 H. 7. by Vavisor and Fro­nick. 17 H. 7. Keilway, f. 43. pl 10 & 45. pl▪ [...] If A. B. be bound to stand to the award of certain persons of, &c. who award that the said A. B. and E. his wife shall levie a fine of the same lands to the other party, though that the award be void as to the wife of [Page 200] A. B. yet the said A. B. is bound up­on pain of forfeiture of his bond,In Oshorns case. Coke lib. 10. 131. b. to do it. And agreeing with these cases, is Moor [...] and Bedels case so often re­membred before.

And we must observe, that where a man is tyed by promise to stand to an award, it wil be the same with the Obligation, as to those things before laid down, as you may see in Moor [...] and, Bedels case.

And now having declared unto you in what case a bond shall be forfeited for not performing of an award, and in what not. It will be necessary in the next place (before I proceed) to clear the point of notice of the arbi­trement; that is,

Whether the Compromittors which have bound themselves to stand to an Award, are bound to take notice of it at their own peril or not?

This very point is as much contro­verted and debated in 8 Edw. 4. the Dutches of Suffolks case, [...] E. 4. 1. 10. 13. & 21. by all the Judges in the Chequer chamber, as [Page 201] it is possible for a case to be: and thee [...]s as much variety of judgement and opinion in it, as ever I met with in [...]ny one case of the Law.

And though I do conceive the bet­ter opinion in that case to be (for it is not resolved) that the party who [...] bound himself to stand to the [...]ward, must take notice of it at his own perill: Because as Catesby saith [...]cellently well, though that a man by reason shall not be compelled to [...] a thing without having notice of [...], yet a man may binde himself by his deed to do a thing, the which by reason he should not be bound to do.

Yet I conceive the judgement of these learned men, viz. Fairfax, Star­key, Yelverton, and others, ought not to be so undervalued, especially upon no lesse then four severall debates of the point,Coke lib: 8 fo. 92. b as to be called a sudden o­pinion, as it is in Fraunces case in my Lord Cokes 8 book. But for the Law in this point, certainly it is now set­let and in peace, that the Compro­mittor must take notice of it at his own perill, having bound himself to stand to and observe the award.

[Page 202] In 1 Hen. 7. the opinion was clear (saith the book) that the Obligor [...] ought to take notice of the award at his own peril,1 H. 7. f. 5. because he hath bound himself so to do.

And in 18 E. 4. by Brian, 18 E. 4. 18 a. Vavisor, and Catesby, Justices; where an award is made, the party ought to take no­tice of it at his own perill, and they say, that so it was adjudged in the time of the same King, in the Kings Bench.

Which cases are agreed for Law in my Lord Cokes 4 book,Coke lib. 4. fo. 82. & li. 8. fo. 9 [...]. b. as also in his 8 book Fraunces case, where it is said, that so is the Law without que­stion.

And the reason given there is, be­cause when a man bindes himself to do or performe any thing awarded by a stranger, he doth by this, take notice at his perill, of all things inci­dent to this, for the saving of his obligation.

And therefore wee may safely con­clude the Booke in 7. H. 8. where there is an opinion to the contrary,7 H. 8. Keilway [...]. 175. pl. 8 to be no Law: but of this sufficient. I shall now proceede to shew you in [Page 203] what respects or for what other rea­ [...]ons an award may be saide to be void in Law: the first ground I layde downe, was where the award is not according to the submission, the next shall be the incertainety,

Where an award shall be voide in Lawe for the incertainety;

In all cases where the award is un­certaine, it is void: for the arbitra­tors (as I have shewed before) are Iudges, and their judgement must be certain; for judicium debet esse cer­ [...]. And the Law doth in all cases abhorre uncertainty, because it is the mother of confusion.

Samons case;Coke lib. 5. fo. 77. b. & 78. a. the Arbitrator awar­ded, that the one of the parties should enter into a bond to the other, and doth not award in what summe the bond shall be, adjudged void for the incertainty.

For, as the book saith, the arbitra­tors are judges of the case, and their judgement awarded, ought to be cer­tain, so that by this the controversie be decided, that it may not bee the [Page 204] cause, through the uncertainty of new controversie.

Martham and Iennings's case,Mich. 4. Jac. in the Kings Bench. Rot. 32. in debt upon an Obligation to stand to the arbitrement of Poly of Grayes Inne, for the title of Coppy hold in question betwixt the parties; Poly awarded, that Iennings should pay to the Plaintiffe 20 marks, viz. 6 l. 131. 4d. super vicesimum primum diem Maii; and 6 l. 13 s. 4d. at the Feast of St. Michael next following: and that the plaintiffe should release to the defendant all his right in the Cop­pyhold, super predictum primum diem Maii (omitting vicesimum) where there was no first day named before.

The Defendant pleaded, that there was no award made: the Plaintiffe replyed, that there was an award made, and sets it forth; and that the Defendant hath not paid the 6 l. 131. 4d. upon the first day of May: the Defendant demurred, intending that the arbitrement was void for the un­certainty, viz. in that it was to be paid super predict. primum diem Mitij, where there was no first day named before. Tanfield Justice, the arbi­trement [Page 205] is void in the whole, be­cause that the day to which the re­lease is referred to be made it uncer­tain, and so it doth not appear when it shall be made: and for that it doth appear, that the intent of the arbitra­tor was, that it should be made at a day certain, and this is not certainly expressed, it is void. And though that the arbitrement consists upon divers parts, and some are certain, yet if any part be uncertain, all is void, if it be materiall and concern a party to the submission, as here it doth. And it is not like the case of 19 E. 4. 1. for there the award which was void for part, that part concer­ned a stranger not party to the arbi­trement, but here it concerns both parties to the arbitrement. And though that there be another clause, that the Plaintiffe shall make further assurance; yet his intent was, that the other should be also done: and because that that is void for the un­certainty, all is void: for an award is like a judgement, which if it be im­perfect in any part, it is void for the whole; and after, judgement was given for the Defendant.

[Page 206] Note here Reader, that if an award be made of severall things, all within the submission; if it be uncertain in part onely, it is totally void, which doth agree with the differences which I have formerly layd down.

In 8 E. 4. cited before, [...] E. 4. 11. [...] by Yelverton: if an award be made, that an action shal be conceived betwixt the parties, by the advice of S, and F, the award is void: because saith he, every arbi­trement ought to be full and certain, and so it is not here, untill the said S, and F. limit the action.

I must confesse the greater opini­on in this case is, that the award is good: but I conceive the opinion of Yelverton (as I formerly said) to bee the better opinion; because the judgement of Arbitrators ought to bee finall (as I shall shew you here­after) and nothing ought to be re­ferred to the judgement of other per­sons or to the law: for by the submis­sion (which must be their rule) they themselves are to end al suits & con­troversies betwixt the parties; and if they do not, their award is not accor­ding to the submission, and therefore void.

[Page 207] Rudston and Yates's case (which I have put often before,Hil. 15. Car. in the Kings B. Rot. 313. 8 E. 4. 1. though to o­ther purposes) was thus: an Infant and a man of ful age submitted them­selves to an award; the Arbitrators award, that the Infant should pay. 5 l. to the other party, for quite rents and other small things, &c. Tis true, that in this case it was adjudged (as I have formerly said) that the submissi­on of the Infant was absolutely void. But it was also adjudged, that the award in this case was void, because of the uncertainty of those words, other small things, it not appearing what those other things were: and it may bee they were such things, for which an Infant by the Law may not be chargeable: and by the same reason they have assessed 5 l. they might have assessed 20 l.

Here likewise note Reader, that the award being of things within the sub­mission, was adjudged totally void for the uncertainty of part only.

Two submit themselves to the a­ward of I. S. who awards,Pasch. 15 Car in the Kings B. that one of the parties should pay a certaine sum to the other, and that the other [Page 208] in consideration of this, should dis­charge him of a bond in which they two were bound to a third person in an 100. l. out t [...] circit [...]r.

In this case it was objected, that the arbitrement is void, because the Ar­bitrators have arbitrated a thing un­certain; by reason that it doth not certainly appear of what summe the bond was in which they were bound, and the [...]o circiter is utterly uncer­tain.

But the opinion of the whole Court was, that there was a sufficient cer­tainty; because that lyes not in the power of the Arbitrators to know the direct sum, and a small variation is not materiall, and therefore the a­ward was held good.

Nichols and Grummons case▪ Hob. Kep. p. 68. pl. 54 there the Arbitrators award, that one of the parties should pay 3 l. 101. to the other, and doth not say for what; so that it may appear whether it concer­ned him or no, it was held void for the uncertainty. And if this should not be void, it might be very mischie­vous to the party; for by this means he might be doubly charged. For in [Page 209] an action brought for the same thing, for which this money is awarded to be paid, I doubt the arbitrement could beTamen quare, be-because Hob. Kep. ubi supra seemeth contrary. An aver­ment of the parties cannot de­clare the intent of the arbi­trators. Mic. 7 & 8 of the Queen, Dyer fo. 242. pl. 52 Pasch. 4. Jac. in the Kings B. This case commen­ced Pasch. 3 Jac. Rot. 478. no plea in bar of the acti­on; because it cannot appear, whe­ther it were for the same thing or no. And the avertement of the par­ty can never declare the intent of the Arbitrators, and so help the uncer­tainty or other imperfection in the arbitrement, as it is agreed in this case, and resolved also in 7 and 8 of the Queen, Dyer: and in Girling and Gosnolds case, here immediately fol­lowing.

Girling and Gosuolds case in the Kings Bench was thus: Debt was brought upon a bond for not obser­ving of an award; which was, that the Defendant should pay to the Plaintiffe 20 l. per annum, during the continuance of two leases for yeares in being of the Parsonage impro­priate of Yarmouth, &c. and it was not showne in the award for what tearm the leases were; but the Plain­tiffe shewed for what tearme they were, and the continuance of them; and alleaged a breach for non pay­ment of the 20 l. &c.

[Page 210] In this case it was objected, that the award was void for the uncer­tainty, because that it did not ex­presse for what time or tearme the leases for yeares were, and that it could not bee aided by the averre­ment of the party: and for the uncer­tainty Samons case was cited; for the averment my L. Dyers case which I put you before.

But by Popham Chief Justice the award is good: he agreed that where the award is uncertaine, it is void: and that the parties can never aid it by an averrement; to shew the in­tent of the Arbitrators, if it be not expressed in the award, either direct­ly, or by circumstance.

Bu [...] he said that if Samons case in Cokes 5. book had been,An award which doth refer, or may be re­duced to a certainty, is good. tha [...] the par­ty should be bound in such a sum, as hee was bound in to stand to the award, or by other reference, so that it might be reduced to a certainty, and this infallibly; in such case the award had been good.

And in this case the payment of the 20 l. per annum is referred to the continuance of the leafes, which is [Page 211] certain; and therefo [...]e he conceived the award to be good. Of the same opinion were Williams, Yelverton, and Tanfield, Justices.

Here Reader you may observe that an award which is referred or may be reduc'd to a certainty, is good enough, agreeing with that rule in law, certum est quod certum reddi potest.

This shall suffice, to shew you in what case an award shall be void for uncertainty. The next thing consi­derable is,

Where an Award shall be void in Law for impossibility.

Wheresoever the Arbitrators a­ward a thing impossible to be done, in such case the award is void, and by consequence the bond not forfeit­able for the non-performance of it (as I have shewed before) for it were a most unjust and unreasonable thing for to make a man incurre a penalty for the not doing of that which is in it self impossible to be done.

In 8 E. 4. by Yelverton: 8 E. 4. 10. a. if an arbi­trement be made to do a thing im­possible, [Page 212] the party for the nonperfor­mance of this shall not lose his Obli­gation, notwithstanding that hee bee bound to stand to the arbitrement, because he cannot by any possibility do it.

As if they award that I shall make the Thames to run over the seller of Westminster within a day: or that I shall pull down Pauls steeple with my hands within an hour, or the like im­possibilities; because I cannot per­forme it, I am excused of my Obli­gation.

So in 8 E. 4. by Moile: 8. E. 4. 1. b & 12. b 9 H. 6. 16. by Keble. 19. E. 4. 1. by Nele. & 22 H. 6 46. ac. if the arbi­trators award a thing impossible, as if I put my self upon an arbitrement this day, and they award, that I shall pay a sum certain at a day which was before the submission; I shall not forfeit my Obligation for the non­performance of this arbitrement, be­cause that it was impossible to be per­formed.

In 21 E. 4. by Genney: if an award be,21 E. 4. 40 a. that I shall release all the right which I have in the Mannor of I, S. in the County of M. to Pigot, or levie a fine to him, and in truth there is no [Page 213] such Mannor; this award is void, be­cause it is impossible.

So if the award be,21 E. 4. 31 39. that he shall release his suit against B. and he hath no suit against him, this is a void a­ward.

But note Reader. Where the thing awarded is in it self feasable and possible to be done, though in relation to him that is to do it, it may not be possible; yet because it carries with it no apparent impossibility, the award in such case is good.

If the Arbitrators award,8. E. 4. 1. by Moile. that hee shall pay a 1000 Marks presently, he is bound to do it: and it is the folly of the party to put such confidence in the parties that are chosen arbitra­tors.

So they may arbitrate things,19 E. 4. 4. by Nele & Choke. the party cannot do (which are the very words of the book) as that the De­fendant shall pay 10 l. in money, where peradventure hee never had 10 d. Or that he shall pay 20 Tunnes of wine, or the like; where he hath not one: in these cases the award is good.

In debt upon a bond,9 H. 7. 15. b. to stand to an [Page 214] award; the Defendant pleaded, that the Arbitrators did award that the Defendant within eight-dayes after the award should go to the house of Sir Henry Collet, and that he should bring a bale of Woad, &c. and the Defendant saith that there was not any bale of Woad in the house of the said Henry Collet, within eight dayes after the said award.

By Keble this plea is not good; be­cause he hath bound himself to stand to the award, and to perform it, which he must do, otherwise his obligation is forfeited. Besides this is a thing feasable, for though Sir Hen, Collet had not any bales in his house, if he would have performed the condition, he ought to have bought certain bails, and to have brought them to the house of Sir Henry Collet, &c. and then departed &c. and because he hath tyed himself to perform the ar­bitrement, he ought to do it, if it may be by any possibility done.

The reason of all these cases is, be­cause it is the folly of the parties to make choice of, and to put so great confidence in such persons, whom [Page 215] they chose to be their arbitrators, and it is no newes that a man should suf­fer through his owne folly.

Againe, where the thing awarded is in it selfe possible, and possible al­so as to the party who is to do it, yet,

Where the thing awarded lies not in the power of the party himselfe, without the aide of a third per­son, in such case the award is void.

Two submit themselves to an arbi­trement,8. E. 4. fo 2 a by Yelverton 22 H. 6. 46. [...]c the arbitrators. award that one of them shall make I. S. to pay 20. l to the other the award is void: because in this case▪ it lies in the will of I.S. whether he will do it, or no and the party hath no meanes to en­force him.

Two submit themselves to the award of I.S. who doth award one of the parties to pay to the other 40 l. 10. l. in hand,17. E 4 fo 5. b 19 E. 4 fo 1. and for the 30 l. residue that he finde three severall persons to be bound every one in 10. l. to the party.

In this case by the opinion of all the Iustices, the: award was void. [Page 216] And there it is said that in an arbi­trement the Law intends, that the arbitrators should be indifferent and equall judges betwixt the parties: bu [...] what indifferency is this, to cause a man to make such a thing to bee done, which lies in the will of a stranger whether he will do it or n [...].

As put the case (saith the book) that an arbitrator wil award that I must cause the King to giue the tower of London to the other, such an a­ward is clearely void.

And by Brian in 19 E. 4. an arbi­trement that the party before such a day shall19 E. 4. [...] H. 7. [...]. b. ac. Where I may do the thing awarded my [...]lfe, or inforce it to be don, the award, is good. 5 H 7. ubi sup [...]a. 21 E. 436 ac. levie a fine before us, is good; but if the arbitrement be, that he shall command us to sit here, and to make him levie a fine this is void for he hath not power to do it.

So in 5 H 7. an award that the par­ties shall discontinue and make Re­traxits of their suits, is good: the reason of these cases, I conceive may be, because that though these things cannot be done without the act of Court, yet heere is concurrence of the act of the party also, which doth produce the act of the Court.

[Page 217] And [...] Cheife Justice in 21 E. 4. takes the true difference,21. E. 4 fo 4 [...] sayes he there, where the act may be done by my selfe, without the aid of a third person, in such case I ought to do it; but where it cannot be done without the aid of a third person, there it is otherwise.

There was a case which was 15 of this King,Pasch 15 Car. in the Kings Bench. which I cited before to another purpose, which was thus; an award was made, that one of the parties should pay a certaine summe to the other, and that the other in consideration of this, should acquit him of a bond, in which they were both bound to a third person in a 100 l. &c.

In this case, the award was held good, and this diversity was taken by the Court: where the arbitrators arbitrate a party to do a thing which lies in his power without the aid of a third person there the award is good, otherwise, where it lies not in his power without the aid of a third per­son.

And here it was agreed that the thing awarded was feasable by the [Page 218] party himself, without the aid of the oblig [...]e, and this difference was tak­en by the Court, where the bond was forfited, and the penalty incurred and where [...] where the day of pay­ment was not incurred; there the payment of the [...] money, at the day would bee a good discharge of the bond, and by consequence a good acquit [...] of the party, but where the bond was forfeited, there it could not.

And Ion [...] Iustice said that he might compell the oblige [...] upon payment of the money, though the bond were forfeited, to de [...]iver the bond by subpoen [...] in Chancery; or that he might suffer an action to be brought against him, and then discharge and pay it.

According to the opinion of Iustice Iones in his former case it was ru­led,17 E. 4. fo 5. b. that where arbitrators doe a­ward, that whereas such a one was seised to my use, that I should cause him to make a release to the other being in possession, that the award was good; because that I have such an interest & power that▪ I may com­pell my feoffees to do it by subpoena in the Chancery.

[Page 219] Thus you see; that where I may do the thing awarded my self, without the aid of another, or may inforce it to be done, in such case the award will be good: the next thing to be considered is,

Where an Award shall be void by rea­son of the not indifferency of it, or because it is made of out side only.

As Arbitrator [...] are indifferently elected, so the law intends (as it is said in 17 E. 4.) that the arbitrators should bee indifferent and equall Iudges between the parties, which they cannot be, if they do not giue satisfaction to both sides, and there­fore in such case, where the award is not mutually satisfactory, it is voide.

It was an ingenious saying of Hearu an Emery & Emerys case cited before; arbitrators, saith he, are indifferent­ly chosen, so that both the parties may have recompence in regard of their Bond, which is equale pondus to both; and an arbitrement, saith [Page 220] he, is like a fine, wherein the Iudg­es are arbitrators, one hath the land, & pro hac concordia the other hath money.

If the defendant plead an arbitre­ment made betwixt him and the plaintiffe of all quarels between them,7 H. 6 fo. 40. by Strang. [...]0 H. 6. 19 a. ac. &c. who award that the de­fendant should goe quit of all actions and quarrels had by the plaintiffe a­gainst him; aud nothing is spoken of the quarels which the defendant hath against the plaintiffe, the arbi­trement, is void.

So,39 H. 6 by dris [...] if two submit them selves to an award of all Trespasses, and an a­ward is made, that the one shall make amends to the other, and no­thing is awarded that he shall do to him againe, this is a void award, because all is for the one party, & no­thing for the other.

In Trespesse for taking away of goods,12 H. 7. 14 15 the defendant pleaded an ar­bitrement, which awarded, that because the defendant had taken away the goods of the plaintiffe, that he should re-deliver them in satisfacti­on of the Trespasse, which he did [Page 221] and [...]here by the better opinion the plea is nought, because that re-deli­very of his owne goods, can be no satisfaction for the taking and detai­ning of them.

An Arbitrement is no plea in tres­passe,43. E. 3. 28 if the defendant doe not say that the arbitrators awarded that he should giue something to the plain­tiffe more, or lesse, in satisfaction for that is a satisfaction to neither side; the plaintiffe is not satisfied for the trespasse done him, nor the defendant discharged thereof with­out some satisfaction for the wrong done by him.

In trespasse for goods,45 E 3. 16 the defen­dant pleaded an Arbitrement that he should retaine part of the goods, and should deliver the rest, which hee hath been alwaies ready to deliver and demands judgment; this is, conceived to be no plea: and this case was put, in debt of 10 l. the de­fendant pleads an arbitrement that he should pay part, and not the rest; or to pay the moity and retain the other moity, this no plea.

[...]Tis true,B. R, Arbitrement [...]. that Brooke makes a quere [Page 222] of the case, because it was not ad­judged; but withall concludes, that it seems it is no plea: and certainly so is the Law. For if an award for the re-delivery of all the goods could be no plea, because no satisfaction (as the case is in 12 H. 7. cited before) much lesse an award for the re-deli­very of party only: for this is no o­ther then to endeavour to satisfie one wrong with another.

For the latter case,9. H. 716. a. as it is said by Keble, in 9 H. 7. that it is against the Law for the arbitrators to award the party to pay more then of right hee ought to pay. So certainly it is as much against the Law, to award the party to pay lesse then of right hee ought to pay, for there is no equali­ty nor satisfaction for that which is more or lesse in either case.

Nichols and Grummons case, cited before:Hob: Rep pa. 68 l. p. 44. there was an award, that the defendant should depart from his house, wherein he dwelt, &c. and should pay 3 l. 10 s, to the plaintiffe, and it doth not appear for what, &c. In this case it was adjudged, that the award was void, because it was of [Page 223] one side only. But now, where there is either an acquittall or an expresse satisfaction on both sides, or of one side only, with an implyed discharge of the other; in such case the award will be good.

It is a good award,19. H. 6. 37. 20. H. 6. 19. 22 H. 6 39. 9. E. 4. 44. a. that because that the one party hath done more trespasse to the other, then the other to him, that he shall give a penny in satisfaction, and that the other shall be quit against him.

An arbitrement,22. H. 6. 39 19. E. 4. 8. a 10. H. 6. 14 19. of the Queene. Dyer. fo. 3 56. a. pl. 39 that the one hath done trespasse to the other, and that the other hath likewise done tres­passe to him; and therefore that the one shall be quit against the other, and that the other likewise shall be quit against him, is a good arbitre­ment.

In trespasse for the taking away of goods,12. H 7. 14 b. 15. a. though an award that he shall re-deliver the goods to the plain­tiffe in satisfaction, be no good award; yet by Keble and Tremaile, if the a­ward had been that he should carry them from such a place to such a place at his own costs, this had been good.

[Page 224] And by Keble, Dyer, u [...]i supta, if a man take my horse from me, and we put our selves upon Arbitrement: in this case, if the arbitrators award that he shall keepe the horse untill the Feast of Easter, and then to deliver the horse; this is a good award, for he shall be charged with the meat of the horse which is a profit and availe to me: and I am discharged of the keeping and the meat of the horse, which is my proffit.

Thus you see, That a small or seem­ing satisfaction only, so the award be on both sides, may be good enough. So in Dyer it is said, that there must be something done by either party to the other, commodious in apparance at the least.

The reason of these cases, may be, because that the arbitrators are made judges of the matters in controversie betweene the parties: and therefore where the submission is of things uncertaine, as trespasse▪ or the like; in such case if the arbitrators shall adjudge the offences to be equall where they are not so, and so a mu­tuall discharge on both sides: or shall award the payment of 10 l. where [Page 225] there was not 5. s. damage; or but a pe­ny, where peradventure there might be 10 l: damage. In such case there is no remedy because you have made them your judges, and tied your selfe to stand to their judgment. Other­wise it may be where things certaine are submitted, as debt; or the like, as I have shown you before.

And now I shall put you a case or two to the former, where there is an expresse satisfastion of the one part, and an implied discharge of the other only, and yet the award good.

An arbitrement,22 H. 6. 3 [...] by Moile. that the defen­dant shall pay a penny to the plain­tiffe in satisfaction of all manner of actions, which he hath paid, is a good harre.

Nichols and Grummons case cited before,Hob. Rep. p. 68. pl. 54 If an award be, that an obli­gor in a single obligation shall pay the debt▪ this is a void award with­out there bee a provision for his discharge; because payment is no discharge in that case without an ac­quittance.

But if the award be,22 E. 4. 25 ac. that he shall pay 10 l. for a trespasse, it is good▪ [Page 226] because a satisfaction implyes a dis­charge.

So an award,Coke lib [...] fo 68. a. B [...]ashpoles▪ case that the defendant shall pay a debt that was due to the plaintiffe, which he also promised to pay, is good; for there the award is as well of the one side as the other; because the one receives the money, and the other is discharged of the debt, and of his promise to pay it.

Thus you see, that where an award is expresly of one side, and implyedly only on the other, that in such case the award is good. The next thing to be considered is, that though the award be on both sides, yet,

Where there is no means by Law for either party to attain unto that which is awarded him, the award is void.

In trespasse,22 H 6, 12 18 b. ac 19. a. the defendant plea­ded an award, that the plaintiffe should pay to the defendant 10 l▪ and release to him all actions of trespasse, & after the defendant should release to the plaintiffe all trespasses, which he was alwayes ready to doe, and is [Page 227] yet, if the plaintiffe had paid the 10 l and released. In this case this was held no good plea; because, that if the plaintiffe had paid the money and released, he could have had no reme­dy to inforce the defendant to have released; and therefore this award is no bar of the action.

So in a Writ of forger of false Deeds,19. H. 6 37 b. 38. a. the Defendant pleaded an arbitrement, that the plaintiffe should be non-suited in that Writ; and that the defendant who hath an assize a­gainst the plaintiffe should be non-suit in this, and saith, the day is not yet come, and demanded judgement: in this case the plea was held nought, because, that if he had bin not-suited in this action, he had no remedy by specialty, or otherwise to inforce the defendant to be non-suit in the assize.

And here Newton said, should this be a good plea in a Writ of forger of false Deeds for the defendant, to say that there was an award, that the plaintiffe should have an acre of land of the defendant in amends: I say (saith he) that it could not, if he doth not say, The which he hath convey­ed [Page 228] to him; for there is no remedy in this case to constraine him to con­vey it to him.

If an arbitrement be that the de­fendant shall be bound by such a day,5 E. 4. 7. [...]. 45. E. 3. 16 which is not come; he shall not plead this in an action of trespasse, for then the plaintiffe should be barred, and should have no action to compell the defendant to make the Obligation. Note Reader, that these cases must be entended where the submission is without specialty, otherwise he were not without remedy,

In this case,28. H 6. 12 2. H. 4. 4. 5 E. 4. 7. 19. E. 4. 8. 20, H. 6. 12 Keilway 121 a there are these three grounds observable, and warranted by the books.

First, where the award is for pay­ment of money at a day to come, there the award is good, because an action of debt will lye for the money upon the ar­bitrement if it be not paid,19. H. 6. 38. a by Nuton p, 5. 28. or the party may resort to his action againe, if he please.

Secondly, 19. A. 6. 37, by As­cue, & Nut [...]on. 9 E, 4. 44, a. qy. Ned­ahm. though the award be of a collaterall thing for which there is no remedy, yet if it be executed, it is good.

Thirdly, and lastly, where the award [Page 229] is of a collaterall thing not executed; yet if the submission be by speciallty, the award is good.

Upon these grounds you may ob­serve these four rules to direct you where an arbitement shall be a good plea in barre of an action in these cases.

First, 20. H 6 18 19 28 H. 6. 12. 2. H 4. 4. 9. E. 4 51. 5. E. 4. 7. 19. E. 4. 8. 45. E. 3. 16 et. 20. H. 6 12. where the award is for the payment of money, for which you have remedy, and the day of payment not past; in such case the award is a good plea in barre of the action.

Secondly, where the day of payment is past▪ it is no plea in barre of the acti­on without pleading of payment.

Thirdly, where the day of payment is past,20. H. 6. 18 Br. Arbi­trement. 3. 2. H. 4. 4. yet if there be no default in the defendant; in such case, I conceive, the arbitrement not executed, is a good plea in barre of the Action.

Fourthly, 19. H. 6. 37. 5. E. 4, 7. a 7. H. 4 31. and lastly, where the a­ward is of a thing for which the party hath no remedy, though the day be not yet come, in which the thing ought to be done or delivered, in this case the a­ward is no plea in bar of the action. Ac­cording to these differences it▪ hath been ruled in a case in the K. Bench, which was thus.

[Page 330] The defendant in trespasse pleaded an award that he should instantly pay 20 s. to the plaintiffe,Mich. 9. Iac in the Kings Bench and so de­manded judgement of the action: by Flemming Chiefe Iustice, Williams and Crooke Iustices it was holden, that the plea was nought, because that he did not shew the money was paid, and these differences agreed.

An arbitrement pleaded in bar of an action, where the defendant hath not performed the thing, and the day past, is no good plea. But where the day of the performance of the thing awarded is to come, and the doing of the thing awarded may be compelled by action, there the arbi­trement is a good plea in barre of the action.

And by Flemming if the arbitre­ment be [...]o make a release, or such other collaterall matter, which the defendant cannot be enforced by a­ction to do, in such case the arbi­trement is no good plea in barre of the action, though the day of per­formance be not yet come.

And you must know Reader, that where the arbitrement is to make a [Page 231] Release, or such other collaterall thing, and the day to come, though the sumission were by specialty, yet the award would be no plea in barre of an action; because that cannot in­force the doing of it, though it may be forfeited for the thing not done.

And so saith Nedham in 9 E. 4. though the arbitrement be void to this intent that the plaintiffe hath no action to compell the defendant to make the release;9 E. 4. 44. a yet it is good to this intent, if the party do not per­forme it, that he shall forfeit the penalty of the obligation. But e­nough of this, the next thing consi­derable, is,

Where an award shall be void because it is not finall?

The arbitrators (as I have often told you) are Iudges of the matters in controversy referred vnto them, and their award is a judgement: now [...]udicium, must not only be certum (as is said before) but determinatum also, it must determine the matter in controversy.

[Page 232] Tis true,19 H. 6. 36 an award may in some ca­ses (as I have shewed before) be good of part of the things only submited, but we must vnderstand this so that the award must be finall as to that parte, or else it will be void.

An award that either party shall be Non-suit against the other in actions commenced by them is void, be­cause it makes no end of the matters in controversy.

And every arbitrement, saith the Booke, ought to make an end and fi­nall determination of the things in dispute and controversy; which it doth not in this case, because that notwithstanding the Nonsuits, they may commence their Suites, de nove.

And vpon this ground, as also the former authority,5 H. 7. fo. 13. I conceive that the Booke in 5. H. 7. is no Law; where there is an opinion that an award of a Nonsuit may be good, but it is vp­on this reason, because it is not only the act of the Court, but the act of the party also. But if it were wholy the act of the party, yet for the reason be­fore given▪ because it is no final con­clusion, I conceive it cannot be good [Page 233] for this is but like blowing out of a candell, which a man may at his own pleasure light againe.

So, in all those cases that I have put you before, where the award is of one side only, it is void also for this reason; because it doth not de­termine the controversies between them, and the controversies cannot be ended, without they be ended in respect of both parties.

So likewise in the cases that I have put you before,Coke li. 5. fo. 78. a. Samons case. where the award is uncertain, it is also voide for this cause, for that it is not finall. For an uncertaine award cannot decide the matter in controversie, but is more apt to beget new strifes and varian­ces, then to conclude the old.

In 8 E. 4. an award is made,8 E. 4. 11. a that an action shall be conceived betwixt the parties by the advice of S. and F. I do conceive in this case the award is void, because it is not finall: for this concludes not the controversie, but leaves it to the judgement of law: See fo. 16. b.

Warley and Beckwiths case, in debt upon a bond to stand to an arbitre­ment: [Page 234] the arbitrators award that the defendant shall pay severall sums to the plaintiffe,Hob. Rep. p. 306. pl. 281. which were aleaged by the plaintiffe to be done unto him. And further, that if the defen­dant at, or before the Feast of S. An­drew the Apostle, then next follow­ing▪ should before the said arbitra­tors disprove the debt, or any part thereof▪ then so much should be de­ducted out of the payment of the se­verall summes aforesaid, &c.

Tis true, I finde no judgement in this case, yet I conceive the Law will be somewhat strong in it, that the arbitrement is void because it leaves the matter in suspence and undeci­ded, whereas it ought to be finall and conclusive. And besides, this is upon the matter a reserving of pow­er to make a second arbitrement, which I conceive they cannot do.

I shall conclude this point with that ingenious conceit of Herne, 41 & 42 of the Qu. in the Com­mon pleas in E­mery and Emeryes case, remembred before▪ only a word or two more of his added.

An arbitrement, saith he, is like a fine, wherein the Judges are arbi­trators: [Page 235] one hath land, & pro hac concordia, the other hath mony; ther­fore fines upon condition are refu­sed▪ because not finall.

So the Law doth reject all arbitre­ments that are conditionall, or wch leave the matters in controversie in suspence, or unconcluded. For as a fine is so called because that it doth finem li [...]bus imponere: so the proper work or office of an arbitrement, is to put an end to controversie.

So Yelverton in 8 E. 4. An arbitre­ment,8 E. 4. 12. [...] saith he, is used for the Com­mon weale, for to decide debates and wrongs amongst the people, as fines are; here hee likewise joynes them both together.

And the very words of the condi­tion in every bond to stand to an a­ward, will sufficiently instruct the ar­bitrators what they are to do in this behalfe (which certainly prudent Antiquity put in to that very pur­pose) where the parties doe submit themselves to the arbitrement; sen­tence, and finall determination of the arbitrators: and therefore the award is not according to the submission, if [Page 236] it be not finall: the next thing to be considered, is,

Where an award against law shall be void.

It may be aptly demanded, what I intend by an award against law: for every award that is not according to law; as where it is uncertaine, im­possible, or the like (as I have shown before) may bee truly said to bee a­gainst law: and therefore this will be but actum agere, to shew, that an award against law shall be void.

By Billing in 8 E. 4. an award which is impossible is against the law:8 E. 4. 12. b for (saies he) the law is upon possibility and reason, therefore that which is impossible is against law.

So by Nele and Choke, 19 E. 4. 1. a an award which is made in parcels, or which enjoynes a thing not in the power of the party, is against law.

By Keble also in 9 H. 7. an award that a man shall pay more then of right he ought to pay,9. H. 716. a. b. is against law.

Tis true, that all these, or the like, in a general acceptation of the words [Page 237] may be said to be against law, because they do not agree with the law.

But in a more particular and re­strained acceptation of the words,Coke, Lit­tleton, fo. 206. b. 42 E. 3. 6. 2 H. 4. 9. 19 H. 6. 55 that is properly said to hee against law; which is either malum in se, or malum prohibitum; that is, either a­gainst the Commandements of God, or the Decrees Maxims and Princi­ples of the Law, as appeares by the books in the margine. And in this sense properly I conceive the Law is to be understood, where it speaks of an award against law.

And therefore if an award be, that the defendant shall kill or rob I. S. or that he shall maintain the plain­tiffe in such a suit: or that he shall be bound to the plaintiffe, being a She­riffe, to save him harmelesse if hee shall imbesi [...]l a Writ, or suffer an e­scape; or that he shall forge such a deed or writing for the plaintiffe, or the like: in such cases, I conceive, the award will bee void, because it en­joynes things against the law. But of this sufficient. The next and last thing to be considered is,

Where an award made at several times, or by parcels shall be void?

An award,19 E. 4 1. [...] by Choke. that the defendant shall pay a certaine sum of money to the plaintiffe, and that the surety for payment thereof should be by the ad­vice of the arbitrators: this by Choke is a void award, because that the ar­bitrators cannot make their▪ award twice; for every arbitrement ought to be made entirely, and not by par­cels. And here is first an award for the payment of the money: and then here is another part of the award for the sufficiency of the security, and these at severall times, which cannot be.

By Danby Justice,39. H 6. 9. if the arbitra­tors arbitrate part one day, and part another day, and give their judge­ment, there the second is void; but they may commune upon one point one day, and another, another day: so that they do not give their judgment nisi unica vice for all.

And by Yaxley, 17 H. 7. Keilway. f. 43. pl. 10. an arbitrement told in part, is void in the whole; [Page 239] for an arbitrement cannot be made, by parcels.

I conceive Reader, that this point will stand upon this difference, where there are several awards made▪ and where but one award made at seve­rall times or by parcels. I conceive they cannot make severall a vards: First, because that were not agreeable to the submission; in which the par­ties binde themselves to stand to the award and arbitrement of the arbi­trators; and by these words in the submission, they have no power to make severall awards or arbitre­ments: and when they have made one arbitrement, they have executed their power and authority, and ther­fore a second arbitrement will bee void. And again▪ by the same rea­son that they might make two a­wards, they might make twenty, which were very inconvenient.

But now on the other side, I con­ceive that an award may be made at severall times or by parcells▪ so that it be not delivered vnder their hands according to the submission untill the whole be made.

[Page 240] And certainly that which is prin­cipaly required in every arbitrement is, that it be agreeable in substance and circumstance to the submission; which it may well be, though it be made at severall times or by par­cells, so that it be made and delive­red according to the submission, at the time appointed.

And I conceive all that is done by the arbitrators, is but as a comuning or discourse concerning the matters in controversy submited unto them; for that they may vary in their iudg­ments, as they shall see occasion, for they have liberty to arbitrate ac­cording to their discretions, so they have an eye to the submission. I say, I conceive all as nothing untill they have finished, and delivered the ar­bitrement, which is the comple­ment and perfection of it.

Besides, where the submission is▪ of many things, and those of great difficulty, if the Law should be that the arbitrators might not make their arbitrement by parcells, it might be very mischeivous to the parties, especially considering that submissi­ons [Page 241] are most commonly to illite­rate men.

Neither is my opinion groundless or without authority;39 H. 6. 9. for by Moile in 39. H. 6. an arbitrement may well be made in parcells, so that all be made before any day assigned.

I have now finished this poore in­deavour of mine of shewing you what arbitrements are good in Law and what not. I shall only adde this one Rule concerning the vnderstan­ding or exposition of arbitrements, which will be very vsefull in that particular, and [...]o conclude all; and that is,21. E. 4. 39 a.

That an award or an arbitrement shall be construed according to the intent or meaning of the arbitra­tors▪ and not according to the words only,19 H. 6. 36 37. as you shall find by the Bookes quoted in the Margine.Coke li. 10 fo. 57. b.

FINIS.

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