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
or avoide his sentence and certainely they doe not for this differs much from a submission to an Arbitration for in such case a man ties his interest and binds his person which every one is not of capacity to doe but in this case what he doth as an arbitrator is onely to charge or discharge others And besides they are chosen by the parties themselves and if they they be not competent Jvdges the fault is theirs that chose them And now I shall proceed to shew you what Arbitrators are and their power by which you will easily perceiue of what high concernement it is to men to have a speciall care of the choise of Arbitrators What arbitrators are and there power An Arbitrator is as our bookes say a Judge indiffâ—rently chosen by the parties to end the matter in controversy betweene them Ad Arbitrium and therefore they are said to be Arbitrators because they have an Arbitrary power and may judge according to there will aud pleasure so that their judgment be according to the submission these Judges are not tied to any formalities or punctuallities in Law neither are they sâ—orne as other Judges established by publike authority are Besides their power is farre greater for as they may judge as they please keeping themselves to the submission so their sentence is absolutely definitive and conclusive from which there lies no Appeale as it was excellently well said by Heath Iustice in arguing of the case of Rudston and Yates cited before the judgement of Arbitrators said he provided that they keepe themselves to their jurisdiction is higher then any judgement given in any Court for if they erre no Writt of Error lies to reverse their judgement no not so much as Equity against them This is true where they keep themselves close to the submission but if they do not in such case though no Writt of Error lies to reverse their judgement upon an Action brought upon a Bond or promise for not performing an awaâ—d if the Defendant plead that the Arbitrators made no award and the Plaintiffe replies that they did make an award and sets it forth in speciall if it do appeare that the award is void as it may be in many cases which I shall set forth hereafter the Action in such case will not lie as every dayes experience teaches and in which our Bookes are plentifull By that which I have said before it is manifest how it concerns every man to have a care what Arbitrators hee makes choice of but of this sufficient The next thing considerable is Whether the power of Arbitrators be Assigenable or not The Law is cleere that Arbitrators cannot assigne over their power the reason is because that it is but a nude power or Authority which is evident in that it is revocable as I shall shew you hereafter and therefore by the Law not assignable To which may be added that it is a power coupled with a great trust and confidence and therefore not assignable I confesse that the Booke in 47. E. 3 doth tacitely admit this power to bee assignable where the case is thus In Debt the Defendant pleaded that they submmitted themselves to the Arbitrement of two persons who did award that they should stand to the award of W. P. which W. P. made an award which he hath performed c. here it is tacitely admitted that the Arbitrators might award that they should stand to the Arbitrement of another but Brooke in abridging this case saith the Law seemeth contrary In 8. E. 4. prototam Curiam except Yelverton where a man is bound to stand to the award c. who award that an Action shall be commenced betwixt the parties by the advise of VV. and P. this is a good award for by this W P. are not Arbitrators but onely executors of the Arbitrement And in this case the Arbitrators judged the Title to bee tryed betwixt them but know not what action should be brought But if they had awarded that the parties should stand to the Arbitrement of W and P. this had beene void because that they cannot assigne ouer their power Yelverton held in the first case that the award was void for the incertainty because that W. and P. are to give their advise which is not certaine vntill it be notified and in this case he hath made them Judges I confesse that I doe somewhat doubt of the case because the judgment of the arbitrators ought to be finall and this is no concluding of the matter in controversy but a transâ—erting of their power over to the Lawe to determine it Besides W. and P. may never give their advise or may refuse to doe it and in such case the arbitrement will prove idle And I do not conceive this case to be like the case in 19. E. 4. where the Arbitrators awarded a certaine sume and in surety of payment thereof to be bound by the advise of Counsell for here their judgement of the matter in controversie is certaine and finall and here is a some certaine awarded for which an Action will lie only the security is to be advised by Counsell which is no assignement of their power but of this more hereafter Emery and Emerys case the chiefe point whereof was thus the arbitrators award that the plaintiffe should make such a Release as one of the Arbitrators should like of in this case the arbitrement was held to be void because this was an appointing of an authority committed to them all unto one which they cannot do I shall conclude this point with Samons case in Coâ—kes 5. Booke where the case is â—hus Arbitrators award that the defendant should enter into an Obligation to the plaintiffe and doe not judge of what some the Bond shall be adjudged the Arbitrement was void for the incertainety and that the Arbitrators could not assigne over their power but that themselves ought to determine it and therefore neither the plaintiffe nor the defendant could assesse the someâ— the next thing considderable is VVhether the authority of Arbytrators be countermandable or not In his case also the Law will bee strong and evident that this authoritie is countermandable at any time before the award made but not after because then the authoritie is executed and cannot be countermanded and so are all our Bookes but 5. E 4. where it is said that if a man be bound to stand to the Arbitrement of I N he cannot discharge the Arbitrator contrary if he were not bound to stand to his arbitrement yet Brooke upon this case saith that it is cleere that he may discharge the arbitrator in both cases but in the one case he shall forfeit his Bond in the other he shal loose nothing because that ex nuda submissione non oritur actio so likewise it is resolved in Vinyors case which I shall put you presently In 28. H 6. by Ashton Iustice if there be two plaintiffs and one
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
appeare that he did it wittingly Stanhop brought an action against Blith for these words Mr. Stanhop hath but one Mannor and that he hath got by swearing and forswearing resolved that the words were not actionable for this reason amongst others for that hee might recover or obtaine a Mannor by swearing and forswaring and yet he not procuring or assenting to it And now I am come to the second part or clause of that generall rule layed downe before where I am to shew you That scandalous words which touch or concerne a man in his Liberty will beare an Action By the Bookes in the Margent the Law is plaine that if I publish and claime B. to be my Villeine that in such case no action will lie because I my selfe claime an interest in him and the Law will not in such case punish a man for then no man durst claime his owne for feare of an action But upon these Bookes I conceive the Law is evident that if a man had published another to be the Villein of I. N. that in such case an action would have layne because these words tend to the inslaving of him and his posterity and to the utter deprivation of his Libertys which the Law so much favours for as it is well knowne he that was a Villaine he was subject both in person and estate to the will of the Lord soâ— that he might seize all his Estate reall and personall and vassalise his person at pleasure so that he did not kil or maime him But I conceive that at this day an action in such case will not lie because that time and inconvenience hath quite abolished and worne out this Bondage our Books have little upon this ground therefore I shall thus passe it over Scandalous words which touch or concerne a man in Member or in any corporall punishment will beare an Action A man brought an Action for calling him Theefe and that he had stollen 2. Sheepe from B. the Defendant justifies the calling of him Theefe for that the Plaintiffe did steale the Sheepe and it was good by the whole Court without expressing the value of the Sheepe for if they be not worth twelve pence so that it is but petty Larceny and not capitall yet it is Fellony in its nature By this it is evident that to say a man hath stollen six-pence from B. will beare an Action though it be but petty Larceny because the Offender by Law may be imprisoned and whipt for it If a man say of another that he is perjured or that he hath forsworne himselfe in such a Court an action will lie for these words For by the Statute of 5. Eliz. cap. 9. A man convict of perjury forfeits 20. l. and is to have six Moneths imprisonment and his testimony taken away while that conviction stands and if hee have not Goods and Chattels to the value of 20. l. then he is to be put in the Pillary and his Eares to be nailed so that you see here is an immediate corporall punishment given by this Statute which is imprisonment And if a man say of another that hee can prove him perjured an action will lie though it be but an implied affirmative Hearle against Tresham thou hast taken a false Oath in the Session of c. resolved the words were actionable for the Court shall intend this to bee a Court of Record as Records of which they ought to take conusance Adams against Flemming he hath forsworne himselfe before the Counsell of the Marches of VVales in the suit I had against him there for perjury adjudged actionable In Lelicke and VVrinskemores case Mich. 7. of King Iames in the Kings Bench one Cossimans Case was cited which was thus thou wast forsworne in such a Bishops Court it was said that these words were adjudged actionable so it was agreed by the Court. It was moved by Williams in Arrest of Judgement for these words thou art a forsworne knave thou wast forsworne in Ilcon Court innuendo the Court Leete there holden it was agreed that the innuendo should not stretch the words further then they were spoaken And VVilliams put this case which was in the Kings Bench thou art a forsworne man thou wert forsworne in White Church Court which was affirmed by all the Serjeants to be adjudged not actionable Which case I conceive cannot bee Law because it is adjudged as I have put the case before that if one say of another that he hath forsworne himselfe in such a Court that the words are Actionable and in this case judgement was given accordingly If a man say of a Woman that shee hath a Bastard an action wil lie for these words because that shee is punishable by the Statute of 18. of the Queen cap. 3. at the discretion of the Iustices who alwayes inflict a corporall punishment upon them as imprisonment whipping or the like Morgan and Rookes case Morgan said of the Wife of Rookes shee is a Bawde and keepes a Bawdy house adjudged that the words were Actionable upon a writ of Error brought by Morgan to reverse the judgement given in the Common Pleas and judgement was affirmed Chambers and his Wife against Ryly for the same words Chambers his wife is a Bawd and keepes a Bawdy house Adjuded the words were Actonable and in this case it was agreed that to say of a Woman shee is a Bawde will not beare an Action because shee is not punishable by the Law for it but to say of her that shee keepes a Bawdy house will be Actionable for that shee is punishable by the Law for keeping a house of Bawdry A Prohibition was prayed because that Elizabeth Thorne had Libelled in Court Christian against Turnam for defamation for these words thou art a Bawde and dost keepe a bawdy house and it was granted by the whole Court because that an Action lies at Common Law for these words The reason why an Action lies in these cases is because the party may be indicted for keeping of a Bawdy house and if shee be thereupon convicted shee shall be imprisoned and most ignominiously Carted which are corporall punishments If a man say of another that hee hath forged a Leafe Obligation Release or Accquitrance or the like an Action will lie for these words Because that by the Statute of 5. of the Queene cap. 14. there are great and grievous corporall punishments inflicted upon such offenders if it bee to disturbe a Title the punishment is the greater but if onely in the cases aforesaid the Offender is to be put in the Pillory one of his Eares to be cut off and to bee Imprisoned for a yeare Hawes brought an Action for these words my Cousen Hawes hath spoken against the Booke of Common Prayer and said it is not fit to bee read in the Church Heath Iustice was of opinion that the words were actionable though the offence
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
that so the said words not examinable in the said Court an action would lie because this could not be in course of Justice for that the Court hath not power or jurisdiction to do that which belonges to justice nor to punish the said offences c. Also by the Law no Murder or Pyracy can be punished upon any Bill exhibited in English but the offender ought to be indicted of it and upon this to have his tryall so that he that preferred this Bill hath not onely mistaken the proper Court but the manner and nature of prosecution so that it hath not any appearance of an ordinary Suit in course of justice But if a man bring an Appeale of murder returnable in the Common bench for this no action lies for though the Writ is not returnable before competent Judges which may doe justice yet it is in nature of a lawfull Suit namely by writ of appeale Scarlet brought an Action against Stiles for these words thou didst steale a Sack The Defendant pleaded that there was a Sack of a mans unknowne stolen and that the common fame was that the Plaintiffe had stolen it whereupon the Defendant did informe Thomas Kempe a Iustice of Peace that hee had stolen it and in complaining and informing the said Iustice thereof hee did there in the presence of Kempe and of the Plaintiffe say unto the Plaintiffe of him thou diddest steale c. whereupon the Plaintiffe demurred in Law There is nothing spoken to the case in the Booke but I conceive the Law will be somewhat strong for the Plaintiffe that the demurrer is good and that the Action notwithstanding the Defendants justification will well lie For though common fame as it is agreed in Câ—udington and Wilkins case be a sufficient warrant to arrest for felony though the same be not true as also to charge a man with felony as it is agreed in Bland and Masons case because these tend to the advancement of Iustice yet it doth not warrant any man to say he is a Felon or a Theefe or though common fame be such yet â—he party suspected may be innocent Nor doth it any way difference the case that the words were spoken before a Iustice of Peace because though common fame may as I have said warrant him to charge him with felony before a Iustice of Peace yet it cannot warrant him to call him felon A man brought an Action against another for caâ—ling of him Theefe The defendant pleaded that there was a Robbery done c. communis vox fama patriae was that the Plaintiffe was guilty of it and so justifies but the justification was held nought for common fame that a man is a Theefe wiâ—l nor justifie any man in the calling of him so But there it is agreed that it would defend a man in arresting and imprisoning another for it Cuddington and Wilkins case adjudged that to call a man a Theefe after a generall or speciall Pardon though the Defendant knew it not will beare an an Action but there it is agreed that to arrest a man for Felony after pardon if he knew it not may bee justifiable because it is a legall course and an Act of justice In Iustice Crooks case it was agreed by the Court that though it be lawful for a man to preferre a Bill in the Star-chamber against a Judge for corruption or any other for any grand misdemeanour because it is a proceeding in an ordinary course of justice Yet if the plaintiffe will publish the effect of his Bill in a Taverne or other place openly by this meanes to scandall the defendant this is punishable in another Court notwithstanding the Bill pending in the Star-Chamber because this tends meerely to scandall and not to a pursuing of the ordinary course of justice and so Iones Justice said it had bin adjudged Owen Wood and Buckleys case cited before doth in effect make good that which Justice Iones said the case was thus Owen Wood exhibited a Bill in the Star-Chamber against Sir Richard Buckley and charged him with very great misdemeanours afterwards Buckley brought an action against Owen Wood for publishing that the said Bill and matters in that contained were true and had judgment which was afterwards reversed in the Chequer Chamber because that the plaintiffe layed that the defendant published the Bill to be true without expressing the matters in particular conteyned in the Bill upon which the action was intended to bee founded so that those which heard only the said words that his Bill was true cannot without further saying know the clauses which were slanderous to the plaintiffe So that it is in this case plainely admitted that if hee had published the particular matters contained in the Bill and this had beene shewen by the plaintiffe there the action would have layen Note Reader I have inserted this clause in the rule before layd downe where the prosecution in course of justice is not out of malice and touching a mans life for this reason Because I doe conceave That in case where a man is scandaled in his reputation and his life in question by a malitions prosecution in course of justice that in such case an Action will lye If two falsly and malitiously conspire to indict another and after hee that is so indicted is acquitted a Writ of conspiracy lyes So if one only falsly and malitiously cause another to bee indicted who is therupon acquitted an action upon the case in nature of a conspiracy lyes against him for it and so it hath bin often adjudged I shall only remember one case in point Marsham brought an action against Pescod and declares how that he was of good fame and report and that the defendant intending to defame him falsâ— malitiose procured the plaintiffe to be indicted of Felony to be arrested and imprisoned quousque fuit acquietatus so that the alleaging of the acquittall was insufficient for that hee ought to have said that he was legitimo modo acquiâ—tatus the defendant pleaded not guilty and it was found for the plaintiffe and Richardson said in arrest of judgment that this action will not lie if it bee not alledged that hee was lawfully acquitted and said that F. N. B. had the like Writ and there it is alledged expresly that hee was lawfully acquitted and so it ought here Tanfield Iustice A conspiracy nor an action in nature of a conspiracy wil not lie if the plaintiffe bee not legittimo modo acquietatus but if one procure another to be indâ—cted arrested and imprisoned falso malitiose nee shall have an action upon the case for the slander and vexation though that hee be never acquitted and he said that the like action upon the case had beene adjudged to lie well though that the Plaintiffe were never acquitted and the Justices relied much upon the words falso malitiose and after judgement was given for the Plaintiffe Thus
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
and demands c. In this case Moore brought an action against Bedel shewed how that he payed the 10 l. c. and assigned a breach of the award that the Defendant had not made the release upon request It was resolved that though that many things are awarded to be done in satisfaction of another as in this case and some are within the submission as here the payment of the mony and some out as in this case all to be done by Salter being a stranger and so void and though that all were intended by the Arbitrators to be one full and entire recompence for the things that the other should doe in consideration of this as here the discharge of the 20 l. and the release by the Defendant notwithstanding if any to be done or to be given to the party though that it be of small value be within the submission the award is good so in this case judgement was given for the Plaintiffe In this case it is apparent that if what was awarded on the Plaintiffes part had been all out of the submission and by consequence void that then the Defendant in such case had not been tyed to perform what was awarded on his part for an arbitrement void against one is void against both Rudston and Yatesâ— case cited before an Infant and one of full age submitted themselves to an award it was adjudged that the submission and by consequence the award were absolutely void as to the Infant and being void as to the Infant that it was likewise void as to the man of full age for that the award ought to be equally binding And now I have showne you where an arbitrement shall be void in the whole and where in part only It will be necessary that I shew you where a bond for not abiding such an award shall be forfeited and where not Where an Obligation shall be forfeited for not performing of an Award which is void in part or in the whole and where not The Law as to this takes this difference betwixt an award void in the whole and an award void in part only Where the award is totally void there the bond can never be forfeited or the non-performance of it because that a void arbitrement and no arbitrement are both one in the judgement of Law And therefore no more then a bond can be forfeited where there is no award made can it be forfeited where there is a void award made For as in the first case he cannot observe thaâ— which is not so in the last the Law requires not the observation of that which is void As for the book in 22 Hen. 6. where there was a submission by bond and an award to pay 20 s. to a stranger and it is there said that the judgement of the Court was that though the award were void yet it ought to be performed by reason of the bond for otherwise the bond is forfeited and therefore saith the book the Plaintiffe traversed the award quod mirum sayes Brooke for this is no award between the Plaintiffe and the Defendant Well might he wonder at it indeed for certainly this cannot bee Law but because it is sufficiently refused by my Lord Coke in his tenth book the place cited before I shall thus passe it But now on the other side where the award is void in part only there the bond may be farfeited for not observing the award for as much as is within the submission though not for that which is not contained in the submission and therefore if a breach be assigned in that part which is void the action will not lye In Emery and Emerys case cited before Glanvile cited a case betwixt Hellier and Rendals in the Kings Bench in which he said he was of Counsel where the Plaintiffe assigned his breach at a void matter and after verdict for the Plaintiffe this was spoken in arrest of judgement and judgement quod quer nihil capiat per billam But now a breach may be assigned as to that which is within the submission and the bond forfeited for it In 18 E. 4. it was â—awarded that one of the parties should pay 40 l. to the other 10 l. in hand and that he and three others should be bound for the payment of the thirty pound residue In this case by Brian Neale and Choke though that the award be void as to the strangers yet it is not void as to the party which submitted but he must plead the award verbatim as the arbitrators gave it and in performance of it he must say that he himself was bound for the payment of the 30 l. rest at a day and shall not speak of the sureties So in Cornelius Lawrence and Carres case cited before it was adjudged that where there is an award of more then is submitted it is good for that which is submitted and void for the surplusage and that the bond is forfeited for not performance of that which is within the submission See fo 9. b. In 17 H. 7. by Vavisor and Fronick If A. B. be bound to stand to the award of certain persons of c. who award that the said A. B. and E. his wife shall levie a fine of the same lands to the other party though that the award be void as to the wife of A. B. yet the said A. B. is bound upon pain of forfeiture of his bond to do it And agreeing with these cases is Moorâ— and Bedels case so often remembred before And we must observe that where a man is tyed by promise to stand to an award it wil be the same with the Obligation as to those things before laid down as you may see in Moorâ— and Bedels case And now having declared unto you in what case a bond shall be forfeited for not performing of an award and in what not It will be necessary in the next place before I proceed to clear the point of notice of the arbitrement that is Whether the Compromittors which have bound themselves to stand to an Award are bound to take notice of it at their own peril or not This very point is as much controverted and debated in 8 Edw. 4. the Dutches of Suffolks case by all the Judges in the Chequer chamber as it is possible for a case to be and thee â—s as much variety of judgement and opinion in it as ever I met with in â—ny one case of the Law And though I do conceive the better opinion in that case to be for it is not resolved that the party who 〈◊〉 bound himself to stand to the â—ward must take notice of it at his own perill Because as Catesby saith â—â—cellently well though that a man by reason shall not be compelled to 〈◊〉 a thing without having notice of 〈◊〉 yet a man may binde himself by his deed to do a thing the which by reason he should not be bound to do Yet I
wrong done by him In trespasse for goods the defendant pleaded an Arbitrement that he should retaine part of the goods and should deliver the rest which hee hath been alwaies ready to deliver and demands judgment this is conceived to be no plea and this case was put in debt of 10 l. the defendant pleads an arbitrement that he should pay part and not the rest or to pay the moity and retain the other moity this no plea. â—Tis true that Brooke makes a quere of the case because it was not adjudged but withall concludes that it seems it is no plea and certainly so is the Law For if an award for the re-delivery of all the goods could be no plea because no satisfaction as the case is in 12 H. 7. cited before much lesse an award for the re-delivery of party only for this is no other then to endeavour to satisfie one wrong with another For the latter case as it is said by Keble in 9 H. 7. that it is against the Law for the arbitrators to award the party to pay more then of right hee ought to pay So certainly it is as much against the Law to award the party to pay lesse then of right hee ought to pay for there is no equality nor satisfaction for that which is more or lesse in either case Nichols and Grummons case cited before there was an award that the defendant should depart from his house wherein he dwelt c. and should pay 3 l. 10 s to the plaintiffe and it doth not appear for what c. In this case it was adjudged that the award was void because it was of one side only But now where there is either an acquittall or an expresse satisfaction on both sides or of one side only with an implyed discharge of the other in such case the award will be good It is a good award that because that the one party hath done more trespasse to the other then the other to him that he shall give a penny in satisfaction and that the other shall be quit against him An arbitrement that the one hath done trespasse to the other and that the other hath likewise done trespasse to him and therefore that the one shall be quit against the other and that the other likewise shall be quit against him is a good arbitrement In trespasse for the taking away of goods though an award that he shall re-deliver the goods to the plaintiffe in satisfaction be no good award yet by Keble and Tremaile if the award had been that he should carry them from such a place to such a place at his own costs this had been good And by Keble if a man take my horse from me and we put our selves upon Arbitrement in this case if the arbitrators award that he shall keepe the horse untill the Feast of Easter and then to deliver the horse this is a good award for he shall be charged with the meat of the horse which is a profit and availe to me and I am discharged of the keeping and the meat of the horse which is my proffit Thus you see That a small or seeming satisfaction only so the award be on both sides may be good enough So in Dyer it is said that there must be something done by either party to the other commodious in apparance at the least The reason of these cases may be because that the arbitrators are made judges of the matters in controversie betweene the parties and therefore where the submission is of things uncertaine as trespasse or the like in such case if the arbitrators shall adjudge the offences to be equall where they are not so and so a mutuall discharge on both sides or shall award the payment of 10 l. where there was not 5. s. damage or but a peny where peradventure there might be 10 l damage In such case there is no remedy because you have made them your judges and tied your selfe to stand to their judgment Otherwise it may be where things certaine are submitted as debt or the like as I have shown you before And now I shall put you a case or two to the former where there is an expresse satisfastion of the one part and an implied discharge of the other only and yet the award good An arbitrement that the defendant shall pay a penny to the plaintiffe in satisfaction of all manner of actions which he hath paid is a good harre Nichols and Grummons case cited before If an award be that an obligor in a single obligation shall pay the debt this is a void award without there bee a provision for his discharge because payment is no discharge in that case without an acquittance But if the award be that he shall pay 10 l. for a trespasse it is good because a satisfaction implyes a discharge So an award that the defendant shall pay a debt that was due to the plaintiffe which he also promised to pay is good for there the award is as well of the one side as the other because the one receives the money and the other is discharged of the debt and of his promise to pay it Thus you see that where an award is expresly of one side and implyedly only on the other that in such case the award is good The next thing to be considered is that though the award be on both sides yet Where there is no means by Law for either party to attain unto that which is awarded him the award is void In trespasse the defendant pleaded an award that the plaintiffe should pay to the defendant 10 l and release to him all actions of trespasse after the defendant should release to the plaintiffe all trespasses which he was alwayes ready to doe and is yet if the plaintiffe had paid the 10 l and released In this case this was held no good plea because that if the plaintiffe had paid the money and released he could have had no remedy to inforce the defendant to have released and therefore this award is no bar of the action So in a Writ of forger of false Deeds the Defendant pleaded an arbitrement that the plaintiffe should be non-suited in that Writ and that the defendant who hath an assize against the plaintiffe should be non-suit in this and saith the day is not yet come and demanded judgement in this case the plea was held nought because that if he had bin not-suited in this action he had no remedy by specialty or otherwise to inforce the defendant to be non-suit in the assize And here Newton said should this be a good plea in a Writ of forger of false Deeds for the defendant to say that there was an award that the plaintiffe should have an acre of land of the defendant in amends I say saith he that it could not if he doth not say The which he hath conveyed to him for there is
no remedy in this case to constraine him to convey it to him If an arbitrement be that the defendant shall be bound by such a day which is not come he shall not plead this in an action of trespasse for then the plaintiffe should be barred and should have no action to compell the defendant to make the Obligation Note Reader that these cases must be entended where the submission is without specialty otherwise he were not without remedy In this case there are these three grounds observable and warranted by the books First where the award is for payment of money at a day to come there the award is good because an action of debt will lye for the money upon the arbitrement if it be not paid or the party may resort to his action againe if he please Secondly though the award be of a collaterall thing for which there is no remedy yet if it be executed it is good Thirdly and lastly where the award is of a collaterall thing not executed yet if the submission be by speciallty the award is good Upon these grounds you may observe these four rules to direct you where an arbitement shall be a good plea in barre of an action in these cases First where the award is for the payment of money for which you have remedy and the day of payment not past in such case the award is a good plea in barre of the action Secondly where the day of payment is past it is no plea in barre of the action without pleading of payment Thirdly where the day of payment is past yet if there be no default in the defendant in such case I conceive the arbitrement not executed is a good plea in barre of the Action Fourthly and lastly where the award is of a thing for which the party hath no remedy though the day be not yet come in which the thing ought to be done or delivered in this case the award is no plea in bar of the action According to these differences it hath been ruled in a case in the K. Bench which was thus The defendant in trespasse pleaded an award that he should instantly pay 20 s. to the plaintiffe and so demanded judgement of the action by Flemming Chiefe Iustice Williams and Crooke Iustices it was holden that the plea was nought because that he did not shew the money was paid and these differences agreed An arbitrement pleaded in bar of an action where the defendant hath not performed the thing and the day past is no good plea. But where the day of the performance of the thing awarded is to come and the doing of the thing awarded may be compelled by action there the arbitrement is a good plea in barre of the action And by Flemming if the arbitrement be â—o make a release or such other collaterall matter which the defendant cannot be enforced by action to do in such case the arbitrement is no good plea in barre of the action though the day of performance be not yet come And you must know Reader that where the arbitrement is to make a Release or such other collaterall thing and the day to come though the sumission were by specialty yet the award would be no plea in barre of an action because that cannot inforce the doing of it though it may be forfeited for the thing not done And so saith Nedham in 9 E. 4. though the arbitrement be void to this intent that the plaintiffe hath no action to compell the defendant to make the release yet it is good to this intent if the party do not performe it that he shall forfeit the penalty of the obligation But enough of this the next thing considerable is Where an award shall be void because it is not finall The arbitrators as I have often told you are Iudges of the matters in controversy referred vnto them and their award is a judgement now â—udicium must not only be certum as is said before but determinatum also it must determine the matter in controversy T is true an award may in some cases as I have shewed before be good of part of the things only submited but we must vnderstand this so that the award must be finall as to that parte or else it will be void An award that either party shall be Non-suit against the other in actions commenced by them is void because it makes no end of the matters in controversy And every arbitrement saith the Booke ought to make an end and finall determination of the things in dispute and controversy which it doth not in this case because that notwithstanding the Nonsuits they may commence their Suites de nove And vpon this ground as also the former authority I conceive that the Booke in 5. H. 7. is no Law where there is an opinion that an award of a Nonsuit may be good but it is vpon this reason because it is not only the act of the Court but the act of the party also But if it were wholy the act of the party yet for the reason before given because it is no final conclusion I conceive it cannot be good for this is but like blowing out of a candell which a man may at his own pleasure light againe So in all those cases that I have put you before where the award is of one side only it is void also for this reason because it doth not determine the controversies between them and the controversies cannot be ended without they be ended in respect of both parties So likewise in the cases that I have put you before where the award is uncertain it is also voide for this cause for that it is not finall For an uncertaine award cannot decide the matter in controversie but is more apt to beget new strifes and variances then to conclude the old In 8 E. 4. an award is made that an action shall be conceived betwixt the parties by the advice of S. and F. I do conceive in this case the award is void because it is not finall for this concludes not the controversie but leaves it to the judgement of law See fo 16. b. Warley and Beckwiths case in debt upon a bond to stand to an arbitrement the arbitrators award that the defendant shall pay severall sums to the plaintiffe which were aleaged by the plaintiffe to be done unto him And further that if the defendant at or before the Feast of S. Andrew the Apostle then next following should before the said arbitrators disprove the debt or any part thereof then so much should be deducted out of the payment of the severall summes aforesaid c. T is true I finde no judgement in this case yet I conceive the Law will be somewhat strong in it that the arbitrement is void because it leaves the matter in suspence and undecided whereas it ought to be finall and conclusive And besides this is upon the
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