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 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 Henry Lord Cromwell brought an Action de Scandalis Magnatum against Edmund Denny 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 to the Defendant Thou art a false varleâ— 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 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 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 justificatioâ—â— as aforesaidâ— they would not beare an Action Banister and Banisters case resolved that if I call an heire a Bastard 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 upon reading of certaine Affidavids of the plaintiffes in Court the Defendant said openly in presentâ—â— 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 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 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 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 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
perjured and therefore not Actionable Thomas brought an Action against Axworth for these words this is Iohn Thomas his writing he hath forged this VVarrant adjudged the Action would not lie Harvy brought an Action against Duckin for saying that the Plaintiffe had forged a Writing adjudged that the words were not Actionable the reason of these cases is because of the incertainty of the words VVarrant and Writing and as I have given you the rule before the scandall must bee certaine and apparent in the words themselves otherwise they will not be Actionable By Tanfield Iustice in Wisemans case cited before if a man say that one of his Brothers is perjured no Action will lie because of the incertainty In the case which I put you before moved by Williams Mich. 41. 42. of the Queene in the Common Pleas this case was remembred by Walmseley Iustice one of you forged a Sub-pâ—na out of the Chancery innuendo the Plaintiffe he saith that judgement was stayed in this case because he which is greeved ought to be certainly defamed and the innuendo cannot make the words more certaine here likewise you have examples that where the person is incertaine that is scandalised no Action will lie Powell brought an Action against Winde for these words I have matter enough against him for Mr. Harley hath found Porgery and can prove it against him Resolved the words were not Actionable because they were too generall and utterly incertaine Britteridges case cited before Britteridge is a perjured old knave and that is to be proved by a stake parting the land of H. Martin and Master Wright adjudged the words were not actionble because of the subsequent words which extenuate the former and explaine his intent that he did not intend any juditiall perjury and because that it is impossible that a Stake should prove him perjured here you have words that are not Actionable by reason of the qualification of the subsequent words thus you may see that the grounds formerly laid downe may serve as a Touchstone for all cases of scandalous words The third part of that rule or ground which I have laid downe before and which I am now to handle is this That scandalous words spoaken of a man which touch or concerne a man in his Office or Place of Trust will beare an action Skinner a Manchant of London said of Manwood chiefe Baron that hee was a corrupt Judge adjudged the words were actionable Stucley a Justice of Peace brought an Action for these words Mr. Stucley covereth and hideth Felonies and is not worthy to be a Iustice of Peace adjudged the Action would lie because it is against his Oath and the Office of a Iustice of Peace and good cause to put him out of Commission and for this he may be indicted and fined Pridham and Tuckers case to say of a Constable that he is a concealer of Fellons adjudged actionable Stafford Iustice of Peace brought an Action against Poler for these words William Web being Arrested as accessory for stealing his own Goods Master Stafford knowing thereof discharged the said VVeb by and agreement of 3. l. 10 which Master Stafford was party whereof 30. s. was to be paid to Master Stafford and was paid to his man by his appointment upon a VVrit of Error brought in the Chequer Chamber it was holden the words were Actionable Cotton Iustice of Peace brought an action against Morgaâ— for these words Hee hath received money of a Theefe that was apprehended and brought before him for stealing of certaine sheep to let him escape and to keepe him from the Goale adjudged the Action would lie Morris Gilbert Iustice of Peace brought an Action against Adams for these words Mr. Gilbert hath done me wrong in returning the Recognizance of Podger in 20. l. where it was taken in tenne and the suerties in 10. l. a peece by the whole Court the words are Actionable If a man say of a Iustice of Peace that he is a common Barret or Champertor or maintainer of Suites the words are Actionable Carre brought an Action against Rande for words and declared that hee was Steward to divers great Lords of their Court Barrons and of the Leetes with in their Mannots and that he was Steward of one A. of his Court Barron and of the Leete within his Mannor the Defendant of this not ignorant said these words Mr. Carre hath put a presentment into the Iuries verdict against me of 3s 4d for sueing of Peter VVest forth of the Court contrary c. without the consent of the Iury by the whole Court the Action lies because he doth accuse him of falsity in his Office but by the better opinion if he had not alledged in his Count that he was Steward the Action would not have layen Sir George Moore brought an Action against Foster for scandalous words and sets forth that he was a Iustice of Peace in the County of Surrey and that there was a Suit depending in Chancery betwixt the Defendant and one Richard King and that a Commission was awarded to Sir George Moore and others to examine Witnesses in the said cause and also to heare and determine it and that he with the others dealt in the execution of the said Commission and that the Defendant said of the Plaintiffe these words Sir George is a corrupt man and hath taken bribes of Richard King and at another time King hath set Sir George Moore on horseback with bribes where by to defrande equity Iustice and good conscience resolved that the words were Actionable because that though the Plaintiffe bee neither Officer â—or Iudge nor is sworne yet because it is a place of great Trust reposed by the King in the Plaintiffe and for that he is punishable for bribary or corruption in the execution of the said Commission in the Court out of which it issues not deserving if the words were true to be imployed in the like Commission or any other for these causes the words were held to be Actionable and Popham Chiefe Iustice in this case made no difference where the Commission issues to one and where to many nor where they are nominated by the Court where by the party for in the first case he said the confidence of the Court is all one and in the last though that they be nominated to the Court by the party yet they shal not be Commissioners without the approbation of the Court. Sir Richard Greenefield brought an Action against Furnace for these words thou innuendo Captaine Greenfield hast received money of the King to buy new Saddles and hast cousened the King and bought old Saddles for the Troopers It was objected that the Action would not lie and it was likened to these cases which I will cite because they are worth the knowing 8. Car. the Major of Tivertons case one said of him that the Major had cousened all his Brethren c.
standing for the Stuardship of a Corporation 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 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 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 conceâ—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 and a base fellow adjudged the words were Actionable 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 Actionable because it doth not appeare that the Plaintiffe kept a false Bushell Sâ—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 coâ—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 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 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 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 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 Grâ—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 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 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
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 words could be no slander to the Plaintiffe 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 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 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 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 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 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 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 Fourthly there must be Arbitrators to wâ—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 Duressâ—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 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 â—er me non Possum necper alinns And Hill 15. of this King in the Kings Bench 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 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
But I cannot thus baulke that observation of that learned Chiefe Justice whoâ—ses that in our old books Actions for scandalls are very rare and such as 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 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 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 tell us but of five actions brought for scandalous words 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 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 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 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 oâ—â—erâ— 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 â—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 Callâ—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 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 Felon Theefe or Murderer an Action lies for these words because they call a mans life in question So it is all one if one shall say of another that he killed or murdered I. S. or that he stole his goodâ— 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 Bâ—â—ne with Corne 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 case it is said that upon a Writ of Error brought in the Cnequer Chamber it was resolved 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 Dâ—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 put by Tanfiâ—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 which is not punishable by the Law Hawly
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 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 noâ—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 which is parce of a mans inheritance as these are whilst they are growing Britteridge brought an Action for these words 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 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 sâ—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 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 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 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 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 â—yâ—t an action will lie for these scandalls reach to the profession So if a man say of an Officer or Judge 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 Ellillâ— case to say of an Atorney that 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 â—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 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 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 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 beâ—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 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 And in Harris and Dixoâ—s case 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
beâ— onely against a penall law for the Statute of 1. of the Queen cap. 2. gives a penalty only for speaking against the Booke of Common Prayer but in default of payment thereof imprisonment And hee held that all scandalous words which if they were true would make a man lyable either to a pecuniary or a corporal punishment would beare an action But Mallet Iustice and Bramston Chiefe Iustice were of a contrary judgment and their reason was because that if this should be law it would be a great occasion to increase and multiply actions for words which the Law labours to suppresse as much as may be for then all words spoken of any man which if they were true would subject him to a penalty either by the Common or the Statute Law would beare an action as to say of a man that hee hath erected a Cottage or committed a Ryot or the like would be actionable which the Law will not suffer for the reason aforesaid and judgment was given accordingly Mallet Justice in the arguing of this case said that there was an action then pending in the Common-Pleas for calling of a man Recusant and hee said that his opinion was the action was not maintainable I never heard what became of that case but I conceive the Law to bee with Justice Mallet for though there bee many penalties and forfeitures provided by Statutes against Recusants yet no corporall punishment is given by any of them no not after conviction Thorneton brought an action against Iobson and layed that he was a Carrier and of good same and that the defendant said of him that hee was a common Barretor In this case the booke sayes that the Court was of opinion that if these words were spoken of a Justice of Peace or publike Officer or of an Attorney or the like that they would beare an action by which it is evident the Court did incline against the action in this case In an action upon the case for words the words were I am sorry for thy Wife and children thou art a common Barretor and I will indict thee for it aâ— the next Assizes c. adjudged the words were not actionable and by Yelverton Justice the action will not lye for saying that hee is a Barretor no more then for saying that he is a Riotor a peace breaker or the like and an action will not lye for saying that a man is a Rogue To say of an Attorney that hee is a Champertor will beare an action But I conceive upon the case aforesaid that to say of one who is no Attorney Justice of Peace nor other publike Officer that he is a Champertor or a common maintainer of suites will not be actionable nor is it actionable in case of the Atorney to say that he is a common maintainer of suites The reason of these cases may bee because that though any man may bee indicted for being a common Barretor Champertor or maintainer of suites and thereupon fined and imprisoned yet the punishment is only the Fine and the imprisonment as a consequent or incident thereunto And as it is said before in Hawes case if an action should lye in these cases then in all cases where a man shall charge a man with a crime or offence for which a man might be indicted and fined an action would lye which would occasion multitudes of suites of this nature that the law labours so much to suppresse And now I have shewn you what words which touch or concerne a man in member or any corporell punishment will beare an action I shall in the next place shew you what words in such case will not be actionable and that may be in these cases either by reason of the doubtfull or indifferent meaning of them or of the incertainty of the words themselves or of the persons of whom they are spoken or of the subsequent qualification of them or upon the other grounds and reasons which I have layd downe before For we must know that I may speak once for all that all those grounds which are before set downe whâ—re words shall not be actionable which touch or concerne a mans life will agree with all actions for words whatsoever whether that the words touch or concerne a man in corporall punishment as before or in his Office or place of trust or in his calling or function by which he gaines his living or the like as is manifested likewise in part before and shall bee more fully hereafter but to the point what words in this case wil not be actionable Box and Barnabies case cited before to say of an Attorny that he is a Champertor will beare an action But to say that he is a common maintainer of suites will not bâ—are an action for there is maintainance lawfull and unlawfull an Attorney may and ought to maintaine his Clyents cause and an Attorney may well bee said a common maintainer because he is common to as many as will retaine him thus you see words of a double intendment shall be taken best for the Speaker for the words in this case shall not bee intended of any unlawfull maintenance but of a lawfull maintaining of his Clyents causes Stanhope brought an action for these words Master Stanhope hath but one Mannor and that hee hath gotten by swearing and forswearing adjudged the words were not actionable for this reason amongst others because that for ought appeares hee might bee forsworne in ordinary communication and not in any juditiall proceeding which is not punishable by the Law and where the words are of an indifferent meaning the Law will as is said before take them the best for the Speaker Smith brought an action for these words Thou art forsworne and hast taken a false oath at Hereford Assizes by the opinion of Iones and Bartley Iustices the other Justices absent the action will not lie because that hee might be forsworne in ordinary communication otherwise if hee had said that he had taken a false Oath in the Assises for there it shall be intended that he forsworne himselfe in a juditiall proceeding In a case that I have cited before which was Mich. 41. 42. of the Queene in the Common Pleas this case was remembred by Williâ—ms thou art c. thou wert forsworne in the Kings Bench he said that in this case the Plaintiffe could have no judgement because of the double intendment of the words for they may bee taken that he was forsworne either in the Court or the Prison and the best shall be taken for the Speaker viz. that he was forsworne in the Prison Weaver brought an Action against Cariden for these words he is detected for perjury in the Starchamber adjudged that the Action would not lie because that an honest man may be detected but not convicted and every one who hath a Bill of perjury exhibited there against him is detected here the words do not positively affirme him to be
case will beate it and it is usuall so to doe in these cases for the increase of damages Bramston chiefe Iustice in the arguing of Hawes case which I remembred before tooke this for a Rule that if words did import a scandall of themselves by which damage might accrue in such case the words would beare an Action without alledgeing of a particular damage But now on the other side words which doe not touch or concerne a man in any of the cases aforesaid will not beare an Action without alledgeing of a particular damage Words spoken in scandall of a mans Title will not beare an Action without averring of a particular damage as appeares by the cases before cited upon that ground There are many words which are words of passion and choler only as to say of a man that he is forsworne Generally or that he is a villain or a rogue or a varlet or the like these words are not Actionable of themselves yet I doe conceive that in these cases an Action will lie with an Averrement of a particular damage by reason of the speaking of them There are other words which concerne matter meerely Spirituall and determinable in the Ecclesiasticall Court only as for calling of a man a Bastard a Heretique a Scismatique an Advoâ—vterer a Forniâ—atoâ— or for calling of a Woman a Whore or charging her witâ— any particular act of incontinency or the like yet in these cases with an averrement of a particular damage an Action will lie at the Common Law as it is adjudged in Anne Davies case cited before By Popham Chiefe Iustice if one say of a Woman that is an Inholder that she hath a great infectious disease by which she loses her guests an Action will lie this must bee taken with an averrement of that particular damage otherwise an Action will not lie unlesse the disease be such for which shee ought to separate her selfe or to be seperated by the Law from common society as I shall shew you hereafter Axe and Moods case cited before the Plaintiffe being a Dyer brought an Action for these words thou art not worth a Groate adjudged that the words were not Actionable because that many man in his beginning is not worth a Groat and yet hath good credit with the world But in this case it was agreed that if the Plaintiffe had averred specially that he was thereby damnified and had lost his credit so that none would trust him with such an averrement the Action would have layen In the case of the Foreman of a Shoomakers Shop cited before for these words it is no matter who hath him for he will cut him out of doores the Plaintiffe averred that the Common acceptation of these words inter Calâ—eareos is that he will begger his Master and make him run away and shewed a speciall damage by the speaking of these words and it was adjuged that the Action would â—ie which I conceive was only for the particular damage for to say of a Servant that he doth Cheaâ—e Cousen or defraud or that he will begger his Master or the like will not beare an Action without an averrement of a particular damage And in this case it was said by the Court that for some words an Action will lie without an averrement of any particular damage as for calling of a man Theefe Traytor or the like and some words will noâ— beare an Action without an averrement of a particular damage As if a man shall say of another that he kept his Wife basely and starved her these words of themselves will not beare an Action but if the party of whom they were spoken were to bee maried to another and by these words is hindered in such case with an averrement of the particular damage an Action will lie So likewise in the case of Dickes and Fenne which I also cited before where one said of the Plaintiffe being a Bâ—ewer that he would give a peck of Malte to his Mare and â—ead her to the water to drink and she should pisse as good Beere as the Plaintiffe brewed it was resolved that the words themselves were not Actionable because of the impossibility of them But it was agreed by the Court that if there had beene a speciall damage alledged as losse of Custome or the like the Action would have laien Hawes case cited likewise before one said of him that he had spoaken against the Booke of Common Prayer and said that it was not fit to bee read in the Church for which he brought his action and shewed how that by reason of the speaking of these words by the Defendant he was cited in to the Ecclesiasticall Court and had paid and expended severall summes c. adjudged that the words themselves were not Actionable because if they had beene true they charge him only with an offence against a penall Law which doth not inflict corporall pâ—nishment but for non payment of the penalty But it was resolved that for the particular damage the Action would lie and of this opinion were Heath and Mallet Iustices But Bramston Chiefe Iustice the other Justice being absent was of a contrary judgement and hee tooke this for a Rule that if the words did not import a scandall in themselves as Hee conceived they did not in this case in such case the averrement of a particular damage should not make them Actionable But with all due respect to the judgement of this learned Judge I doe conceive that the words are in themselves scandalous because that they do charge a Man with faction and opposition to established Law and settled Government But if they were not in themselves scandalous yet I conceive according to the judgement of those reverent Jâ—dges that for the dammage only the Action will lie for otherwise the Plaintiffe shall suffer through the default of the Defendant and be without remedy which I conceive the Law will not permit but I submit this to the judgement of the learned Reader Lastly words which charge a man with any dangerous infectious diseasâ— by reason of which he ought to seperate himselfe or to be seperated by the Law from the society of men will beare an Action If a man say of another that hee hath the French Pox an Action will lie Taylor brought an Action against Packins for these words thou art not worthy to come into any honest mans company thou art a Leaprous knave and a Leaper Adjudged that the words are Actionable because that it is cause of seperation by the Law of God and Man So by Tanfield Iustice to say that one is infected with the French Pox will beare an Action but to say that one hâ—th the falling Sicknesse is not Actionable except that it disables him in his profession as to say that a Lawyer hath the falling Sicknesse an Action lieth because that it disableth him for his businesse Vpon this ground I conceive to
which no Action will lie I have sufficiently proved the ground laid downe before and therefore I shal now proceed to the second thing which I have touched before very considerable in all Actions for words and that is Quo animo with what affection the words are spoken whether ex malitia or not for if it do appeare that they were not spoken out of malice they will not be actionable Ralph Brook York Harrauld brought an Action against Henry Mountague Knight Recorder of London for saying of the Plaintiffe that he had committed Felony The Defendant pâ—eaded how that he was a Counseller and earned in the Law and that he was retained of Counsell against the Plaintiffe at such a Tryall and set forth all the matter in certaine and that hee in giving evidence to the Jury spoake the words in the Count which words were pertinent to the matter in issue in this case it was resolved that the Action would not lie because that the words were not spoken out of malice for that they were spoken to the purpose and being to the purpose though the words were false no Action will lie against the Defendant As in an Appeale of Murder if the Counsell with the Plaintiffe saith that the Defendant committed the murder though it be not true yet he shall not he punished for it because that what he said was pertinent so that it cannot be taken to be spoken out of malice but only as of Counsell for the Plaintiffe But if that which he saith be impertinent in scandall of him against whom he speaks it as in Trespasse of battery to say that the Defendant is a Felon there an Action will lie for that they cannot be otherwise taken but to bee spoken out of malice And in this case it was further said that if a Counseller be informed of any matter of slander apt to be given in evidence and hee speakes it at other places and at another time then in evidence an Action lies for it for the same reason In confirmation of the former case there was this case put and agreed for Law which was the case of Parson Prit in Suffolke the case was thus In the Acts and Monuments of Mr. Fox there is a relation of one Greenwood of Suffolke who is there reported to have perjured himselfe before the Bishop of Norwich in the testifying against a Martyr in the time of Queene Mary and that afterwards by the judgement of God as an exemplary punishment for his great offence his bowels rotted out of his belly And the said Parson Prit being newly come to his benefice in Suffolke and not well knowing his Parishoners preaching against perjury cited this story for an example of the justice of God and it chanced that the same Greenwood of whom the story was written was in life and in the Church at that time and after for this slander brought an Action to which the Defendant pleaded not guilty c. and upon evidence all the matter appeared and by the rule of Anderson Justice of Assise he was acquitted because it did appeare the Defendant spoak the words without malice and this rule was approved by the Kings Bench in this case In the arguing of Sanderson and Rudds case which I remembred before these cases following were cited by Gotbolt Serjeant who was of Counsell with the Defendant and agreed by the Court for Law Iames and Rudlies case the Defendant spoake by way of advise to his friend telling him that the Plaintiffe was full of the French Pox and therefore advised him not to keepe him company adjudged he said that no Action would lie for these words of advise the reason is because that these words were not spoken out of any malice to the Plaintiffe but meerely cut of good will to his friend Norman and Simons case remembred before the Plaintiffe brought an Action for words and declared that they were spoaken falso malitiose the Jury find the words and that they were spoken falsâ— injuriose judgement was given that the Action would not lie because that they did not find the malice for if the words were not spoaken malitiously no Action will lie And therefore I conceive that if a man bring an Action for words and do not declare that the words were spoken malitiose as well as falso that the Action will not lie In the case of the Lady Morrison that I have cited before this case was put by Popham chiefe Iustice If one say in Counsell and good will to his friend that it is reported that he hath done such or such an ill Act and advises him to purge himselfe and avoid such occasion afterwards it se mes saith he that an Action will lie for such counsell but quaere saith the Reporter for it is without malice And truly for my part I conceive an Action will not lie for that reason but I submit it to the judgement of the Reader And now I have finished my labour of shewing you what words are Actionable in the Law and what not It will in the next place be very necessary to be knowne where a mans Suit or prosecution at Law shall subject a man to an Action and where not and here I shall lay downe this as a rule That for any Suit or other legall prosecution in course of Iustice if not out of malice and touching a mans life no action will Lie A Man brougâ—t a Writ of Forger of false deeds against a Lord pending which Writ the Lord for the slander of the said Forgery by the said Suit brought his Action de scandalis Magnatum the Defendant justifies the said flander by bringing of the said Writ by the better opinion there which is also agreed for Law in Bucklies case in my L. Cokes 4. Booke the justification was good for saith the Booke no punishment was ever appointed for a Suit in Law though that it were false and for vexation Cutler and Dixons case adjudged that if one exhibit Articles to a Justice of Peace against a certaine person containing divers great abuses and misdemeanours not only touching the Petitioners themselves but many others and all this to the intent that he should be bound to his good behaviour in this case the party abused shal not have for any matter contained in such Articles an Action upon the Case because that they have pursued the ordinary course of Justice in such case and if actions should be permitted in such cases those which have good cause of complaint will not dare to complaine for feare of infinit vexation Oâ—en Wood exhibited a Bill in the Starchamber against Sir Richardâ— Buckley and charged him with divers matters examinable in the same Court and further that he was a maintainer of Pirates and Murderers and a procurer of Murders and Pyracies which offences were not determinable in the said Court upon which Sir Richard Buckley brought an Action In this case it was adjudged
you may see that where a man is falsly and malitiously procured to be indicted if he be acquitted a Writ of conspiracy or an action upon the case in nature of a conspiracy as the case shall be will lie and though he be not acquitted yet an action upon the case will lie for the slander and vexation Yet in all these cases there is a prosecution in course of justice but because this prosecution was malitious tending much to the slander and scandall of the plantiffe therefore the action lies But here I would have you observe Reader that the plaintiffe ought in these actions to declare that the defendant falso malitiose procured him to bee indicted because the malice is the ground of the Action and if upon the Tryall it doe appeare that there was Probabilis causa for the indictment and prosecution therevpon the Action will not lie Thus much shall suffice to shewe you in what case a legall prosecution in course of Iustice shall Subject a man to an Action in what not In the next place I shall shew you which I cannot omit For what scandall of a Noble man or great Officer c. an action de scandalis Magnatum will lie upon the Statutes of 3. E. 1. cap. 33. or 2. R. 2. cap. 5. For a Suit or other legall prosecution in course of justice against a Noble man or great Officer no Action lies as is adjudged in the case of Forger of false deeds cited before so that as to this there is no difference betwixt a Noble man and another person but what scandalous words may be Actionable in case of a Nobleman for which an action de scandalâ—â— Magnatum will lie and what not may bee very considerable I shall cite only one case to this purpose which will be as a light to all cases of this nature and therefore give me leave to give it you wholly without dissection or abbreviation as I find reported The Earle of Lincolne brought an Action de scandalis Magnatum upon the Statute of Westm. 1. cap. 33. against one Iohn Righton and recited the Statute and said that the Defendant said of him my Lord is a base Earle and a paltry Lord and keepes none but Rogues and raseals like himselfe Vpon not guilty pleaded it was found for the Plaintiffe and it was moved in arrest of judgement that the words were not actionable for though they were unseemely immodest yet they were not such defamaâ—ory words upon which to ground an Action for though they were true the Earle could not incurre any prejudice by them Crook cont this action de scandalis magnatum is not to be compaâ—ed to other actions upon the case for words spoken of any other persons for this is inhibited by Act of Parliament and if the words bee such that any diâ—cord may arise by them betwixt the King and his Subjects or his Nobles or any slander to them to bring them into contempt this action lies and I have seene a Record of a case in 4. H. 8. of such an action brought by the Duke of Buckingham for such words which might cause him to be in contempt which were holden sufficient upon which to ground an action Hobart Attorney Generall for the Plaintiffe also who said that though an Action doth not lie for words betwixt common persons but in case where they are touched in life or Member or much in reputation yet if one speake any scandalous words of an Earle or other Peere of the Realme which impeaches their credit because that they are of the great Counsell of the King and State and a principall part of the body politique so that their discredit or disparagement is a disparagement to all the Realme therefore every thing which trenches only to their discredit is a cause of action and this was the cause of the judgement in the case of the Ducke of Buckingham in 4 H. 8. Feâ—ner Iust. it seemes to me that the action lies for they are words of great slander to the Earle But where the Statute of Marleb is that Lord shall not distraine the Beasts of the subject of the King and carry them into Castles so that they cannot be replevied and if one say that a Lord hath so done yet an Action will not lie Tanfield Iustice concesset but he saith if one say of a Lord that he used to distraine and put the Beasts in his Castle ut supra an action lies for one act against Law wil not bring him into contempt but if it be usuall for him so to do this is a cause to make him contemptible In the case of the Earle of Arundell who had made Commissions to his Servants to make Leases and improve Rents one said of him My Lord hath sent his Commissioners to spoyle the Country it was adjudged that this action would lie and yet in case of a common person it would not lie without doubt yet because that it may cause the Lord to be in contempt with the King and the People this action lay and so it seemes to me that it will here Williams Iustice to the same purpose and that the Earle is conservator Pacis at common Law and Comes Regis and if any one speake of them any thing which may make them to bee contemned of the King or his people an action lies upon this STATVTE Yelverton Iustice was absent judgement was respited to the intent that the Defendant by his submission might give satisfaction to the Earle Here you see the difference between words actionable in case of a Noble man and of a common person For words only of descredit to a Nobleman and which may bring him to contempt with the King or his People are sufficient to maintaine an action de scandalit magnatum otherwise in case of a common person I have now Reader quite finished my labour of shewing you for what scandals an action will lie for what not But before I conclude there are two things yet in all Actions for words worthy the knowing which I cannot omit The first is to declare unto you the use or office of an innuendo And the next is to shew you where an Averrement will be necessary and where not For the first you may take this for a certaine and infallible rule That an innuendo shall never make words actionable which of themselves are not Actionable And therefore if words be of a double or indifferent meaning and in the one sence actionable in the other not in such case an innuendo shall never make them actionable As if a man bring an Action against another for saying that he hath the Pox innuendo the French Pox or for saying that the Plaintiffe burnt his Barne innuendo a Barne with Corne. In these cases the innuendo where the words are of an indifferent meaning and may be taken so as not to be Actionable shall not straine them to such an intendement as to make them
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 whether of a Trespas or Felony the innuendo cannot extend them to an intendment of felony thereby to make them actionable and so it was adjudged So if a man bring an action against another for saying that hee forged a warrant innuendo quoddam Warrantum c. as Thomas and Axworths case is cited before 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 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 The office of an innuendo is onely to containe and designe the same person 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 cannot make a person 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 Miles brought an action against Iacob 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 liâ—e case was Trin. 17. of this King 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 a case which was 5. of King Iames adjudged against the former cases Sir Tho. Holt brought an action against Taylor for these words Sir Thomas Holt hath killed his Cooke 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 for I doubt Reader the Law of this case because of the cases before adjudged 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 whosoever is hee that is falsest Theefe and strongest in the Country of Salop 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 Countâ— of Salop but for default of such averrement the judgement
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 and he makes an Arbitrement upon another thing the Abitrement is void In the case of Moore and Bedel cited 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 â—oulden of the Mannâ—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 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 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 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. 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 was but of a thing personall and the Arbitrator hath awarded a satisfaction reall to wit aâ—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 possessionâ— Manerij de Dale and the Arbitrator makes an award of the Mannor of Sale this is void Haynes against Aâ—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 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 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 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. 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. 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 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 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 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
of action given him so avoid the arbitrement expedit râ—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 dated the 4 of September 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 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 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 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 arbiâ—rement if no arbitrement no cause of action So in this case I conceive 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 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 And if the Arbitrators award any thing after the time limited it is void Two of one part 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 conditâ—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 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 quaâ—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 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 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 Thirdly and lastly where the award is of one thing onely or of severall things part within the submission and part out there the award is void onely as to that which is out of the submission and good for the residue To these cases that I have cited 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 as to one of the parties to the submission and good against the oâ—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 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 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