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
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.
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
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
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
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
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 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 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 and declares how that he was seised of certaine lands in Fee and that hee was in communication to demise them to 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 in 2. E. 4. 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 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 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 Dame Morrison Widdow brought an Action against William Cade Esquier and decâ—ares that shee was of good fame 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 reverâ— Aâ—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 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 the Plaintiffe being a Lawyer stood for the Stewâ—râ—â—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 Stâ—ward so that he thâ—reby lost his preâ—errement c. the Court in this case inclined that the Action would lie And now I am falâ—en upon a question very necessary to be resolved and that is What words are Actionable of themselves only and what are not Actionable 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
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 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 In 1 Hen. 7. the opinion was clear saith the book that the Obligorâ— ought to take notice of the award at his own peril because he hath bound himself so to do And in 18 E. 4. by Brian 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 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 to be no Law but of this sufficient I shall now proceede to shew you in what respects or for what other reaâ—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 cerâ—â—â— And the Law doth in all cases abhorre uncertainty because it is the mother of confusion Samons case 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 cause through the uncertainty of new controversie Martham and Iennings's case 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 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 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 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 Rudston and Yates's case which I have put often before 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. T is 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 that one of the parties should pay a certaine sum to the other and that the other in consideration of this should discharge him of a bond in which they two were bound