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
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
But I cannot thus baulke that observation of that learned Chiefe Justice whoâ—ses that in our old books Actions for scandalls are very rare and such as are brought are for words of eminent slanders and of great importance This must needs bee acknowledged to be a most exact and true observation for in searching of the Books I cannot finde that any Action for scandalous words was brought before E. 3. time and so rare then that I finde but one in 50. yeares of E. 3. and that is Sir Thomas Setons case of Justice for calling of him Traytor Felon and Robber no frivolous cause of action And I finde but three Actions for words brought in 22. yeares of E. 4. and those for one and the same words for publishing one to bee the Pilleine of I. S. a slaunder of no small importance neither for so long as that base and slavish Tenure of Pilleinage held hee that was a Pilleine was subject both in person and estate to the will of his Lord so that he might seize all his estate reall and personall and Vassalize his person at his pleasure so that he did not kill or mayme him In all the 21. yeares of H. 7. there is not one action that I can find brought for scandalous words And in 38. yeares of H. 8. our books tell us but of five actions brought for scandalous words two whereof were in 27. H. 8. so that I find none before that time neither The other were in 30. H. 8. and 28. H. Dyer And these for no trifling words for you shall finde that one of them was for calling a man Heretike another for saying a man was perjured and the other three for calling of one Thiefe all of which are high scandals to a mans reputation and most of them tending to the losse of life and fortunes so that it is very true that that Reverend Chiefe Justice observed that these Actions were very rare in our old bookes and such as were brought were for words of emminent slander and of great importance But these few have now got such a numerous progeny that I feare we cannot turne over many leaves in our new books but wee shall finde one of these Actions They began thus to multiply in the Queenes time as wee finde in my Lord Cockes 4. book where there is no lesse then 17. adjudged cases together upon these Actions And you may easily judge they did not abate in King Iamses his time for if I mistake not there is no lesse then two and twenty adjudged cases upon these Actions in my LORD Hobarts Book And I am certaine they are not fallen in His Majesties Raigne that now is for I my selfe have reported no lesse then three and twenty judgments upon these Actions but from Easter Tearme in the sixteenth yeare of the King to Trinity Tearme in the eighteenth Well therefore might Wray Chiefe Iustice say that the malice of men doth more increase in these times then in times past and as he saith the malice of men ought to be with stood as much as may be which I am sure the too frequent tollerating of Actions of this nature wil not effect no more then fire can be extinguished by adding fewell unto it You have heard my advise and direction before therfore I will here close this with one word though the tongues of men be set on fire I know no reason wherefore the Law should bee used as Bellowes to bow the Coles It is the saying of the Prophet David I will take heed to my ways that I offend not with my tongue I will keepe my mouth as it were with a Bridle It were happy for all men if they could make the like resolution and keep it But seeing that wee are but men whilest wee carry this lump of flesh and masse of corruption about us we shall be subject to the like passions and affections that oâ—â—erâ— have beene before us and the flesh will rebell against the spirit And therefore I have provided this Treatise upon Actions of slander as a Bridle for all rash and inconsiderate â—ongues that seeing the mischiefe they may the better know how to avoyd it And here I shall lay downe this as a generall rule which I shall by the way as I goe make good in every perticular That all scandalous words which touch or concerne a man in his life Liberty or Member or any corporall punishment or which scandall a man in his Office or place of Trust or in his Callâ—ng or function by which he gaines his living or which tend to the slandering of his Title or his disinheritance or to the losse of his advance me it or preferment or any other particular damage or lastly which charge a man to have any dangerous infectious disease by reason of which he ought to seperate himselfe or to be seperated by the Law from the society of men all such words are actionable And first for the first part of this Rule viz. Scandalous words which touch or concerne a man in his life such words are actionable If a man call another Traitor Felon Theefe or Murderer an Action lies for these words because they call a mans life in question So it is all one if one shall say of another that he killed or murdered I. S. or that he stole his goodâ— or that he poysoned him if it appeare to be intended to be wittingly done or the like these words likewise are Actionable as appeares by the Bookes in the Margent So if one shall say of another he hath burnt my Bâ—â—ne with Corne which is Felony this likewise will beare an Action I have a Report of a case which was thus a Servant of one Mr. Roger Brook said of one Mis. Margaret Passey that she sent a Letter to his Master and in the said letter willed his Master to poyson his Wife Bridget Brooke and in this case it is said that upon a Writ of Error brought in the Cnequer Chamber it was resolved the words were actionnable and the judgement affirmed which case I confesse I much doubt because here was but bare advise and nothing appearing to be done like Eatons case in Cooks 4 Booke Where the Defendant said of the Plaintiffe that Hee gave his Champion Councell to make a Dâ—ed of gift of his goods to kill him c. adjudged that the words were not Actionable because that the purpose or intent of a man without act is not punishable by the Law And I conceive it will not be like the case put by Tanfiâ—ld Iust. in Harris and Hixons case where he saith that to say of another that he lay in wait to Rob or to murder I. S. will beare an Action because that he accuses him of an act viz. The preparation and lying in wait which is punishable by the Law but in the former case there is nothing but bare advise which is not punishable by the Law Hawly
to poyson or to murder I. S. that these should be actionable for I think the like punishment is in these cases as in the former which I conceive is only the good behaviour or at most indictable for it and thereupon fined And if an action should lye in such case by the same reason to say of a man that he is a common Quarreller breaker or perturber of the Peace or that hee is a Riotter or the like would beare an action because that for these likewise the good behaviour is grantable and likewise a man may bee indicted for them therefore quaere of the former cases Seventhly words which are apparently impossible will not be actionable Benson brought an action against Morley for these words Thou hast robed the Church innuendo Ecclesiam sic Alhagi extra Creplegate London and hast stollen the Leads of the Church Upon not guilty pleaded it was found for the plaintiffe and it was moved in arrest of judgement that the words were not actionable because the Church shall be intended the Universall Church and not any materiall Church and the Church Militant cannot bee robbed and so the words are impossible but by Popham Chiefe Iustice and Tanfield Iustice the action will well lie and so it was adjudged because the words in this case cannot be intended of an invisible Church as is objected but of a materiall Church as is explained by the subsequent words and hast stollen the leade of the Church which cannot bee understood of the invisible Church In this case Reader you may observe that it is admitted that to say of a man that hee haâ—h robbed the Church generally will not bee actionable because that it shall be understood of the invisible Universall Church and so the words impossible because that cannot be robbed So I conceive to say of a man that he hath robbed a Church will be actionable because this must of necessity be understood of some perticular materiall Church Dickes a Brewer brought an action against Fâ—nne for these words I will give a picke of Malt to my Marâ— and leade her to the water to drinke and shee shall pisse as good beere as Dickes doth brâ—w adjudged the words were not actionable because impossible and therefore they could be no scandall to the plaintiffe Britteridge brought an action for these words Britteridge is a perjured old Knave and that is to bee proved by a stake parting the land of H. Martin and M. Wright adjudged the words were not actionable because that it was impossible that a stake could prove him perjured Lastly where it doth appeare that the speaking of the words could bee no dammage to the plaintiffe there likewise no action will lye The Plaintiffe shewes in his Count that the defendant hath a wife yet in life and that the defendant said of the plaintiffe Thou hast killed my VVife adjudged that the words were not actionable because that it doth appeare by the plaintiffes Declaration that the Wife of the defendant was in life so that by these words the Plaintiffe could not bee in any jeopardy nor scandaled or damnified by them The like case was put in 〈◊〉 Thomas Hâ—lt and Taylors case Pasch. 5. of King Iames if one say of a woman That she hath murdered her husband and shee and her husband bring the action it will not lye because it doth appeare by the Record that the slander is not prejuditiall And as when it doth appeare by the Record that the speaking of the words could be no dammage to the plaintiffe no action will lye So where the speaking of the words might bee a dammage to the plaintiffe yet if the ground of tâ—at damnification doe not sufficiently appeare by the Record the action will not lye A brâ—ught an action against B. for saying That hee kept false waytes by which he did cousen c. and declared that hee gained his living by buying and selâ—ing but did not shew of what profession he was adjudged that the action would not lye because it cannot appeare without shewing of his profession that the speaking of the words could bee any dammage to the Plaintiffe A. Brought an action against B. for these words Thou hast killed my brother innuendo G. c. fratrem c. nuper mortuum adjudged that the words were not actionable because the Plaintiffe did not averre that hee was dead at the time when the words were spoken and if hee were living then the speaking of the words could be no slander or damage to the Plaintif So where a man brings an action for Welsh words or the like which are scandelous and doth not aver or set forth that they were spoken to one who understood the meaning of them the action will not lye because it doth not appeare by the Record that the speaking of the words could be any damage to the Plaintiffe For if they were spoken to one that did not understand the meaning of them no action would lie because they could bee no scandall to the Plaintiffe And now I shall adde to the rest only this one ground where words shall not be actionable and that is in this case VVhen a man is charged with a crime or offence by scandalous words where it doth not appeare by the words that he had notice or knowledge of the ground or occasion of the crime or offence in such case no Action will lie for such words Bridges brought an Action for those words he prefat Bridges innuendo is a maintainer of T'heeves and he keepeth none but Theeves in his â—ouse and I will prove it upon a writte of Error in the Chequer Chamber it was holden the words were not actionable because he might maintaine Theeves without notice and therefore the first Judgement was reversed Like the case in my Lord Hobarts Booke where an Action was brought against another for saying that the Plaintiffe kept men which did robbe upon the Highway adjudged that the words would not beare an action because that he might keepe them and not know them to be such persons In the case of Reade and Saule which was Mich. 40. eâ— 41. of the Queene this case was remembred by Walmesley Iustice a man brought an action in that Court for these words he meaning the Plaintiffe is a receiver of Theeves and he said that in this case the Plaintiffe could have no judgement because that he might receive Theeves and yet not know them to be so A. said of B. that he kept false waites for which B. brought his action adjudged that the action would not lie because that it did not appeare that he did use them and besides for that hee might keepe false waites and not know them to be so The case of Miles and Iacob cited before is likewise to this purpose where an action was brought for these words thou hast poysoned Smith adjudged that the words would not beare an action because that it did not
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
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
brought an Action upon the case against Sydnam for these words hâ— is infected of the Robery and Murder lately-committed and smels of the murder adjudged that the words were actionable by reason of the word infected One said of another thou diddest kill a Woman great with Child innuendo Iocosam Vxocem cuiusdam R. S. defunct and rules by the Court that the Action wold lie though that the woman were utterly incertain because that the offence and the party intended to commit it is certaine and t is not like the case where one said that there is one in this company who hath committed a murder there it is incertain of whom the words were spoken and cannot possibly bee ayded by an innuendo but here the words are Actionable without an innuendo but quaere whether the Action would lie or no because there is no expresse averrement that the Woman was dead for the innuendo will not be suffitient Hassellwood brought an Action against Garrâ—t for these words amongst others agreed not to be actionable whosoever is he that is falsest Theefe and strongest in the County of Salop whatsoever he hath stollen or whatsoever he hath done Thomas Hasselwood is falser then hee resolved that these words are actionable with an averrement that there are Felons within the County of Salop but for defanâ—t of such averrement the judgement being given in the Common Pleas was reveâ—ed in this Court Stoner brought an Action for words against Gambell and declares that the Deâ—endant dixit deprefato the Plaintiffe thou innuendo c. hast stollen my Goods and upon not guilty pleaded the Iury found for the Plaintiffe and in arrest of judgement it was said that the Count was nought for the words are in the second person and it is not all adged that the Plaintiffe was present at the speaking of them Et Tota Curia contra for dixit deprefato is as much as Dixit ad prefatum for cannot he say thou hast of the Plaintiffe except that it were spoken to him and rule was given for judgement One â—â—â—mans said of Hext I do not doubt but within two dayes to Arrest Hextâ—or â—or suspition of Fellony adjudged that the words were Actionable because that for suspition of Felony hee shall be imprisoned and his life drawne in question Hill 20. Iac. in the Kings Bench Winch came to the Barre and shewed a Libell against another in Court Christian for these words thou art a Witch and dealest with Witchery and diddest procure Mother Bale to witch the Cattell of I. S. and upon this prayed a prohibition because that the Plaintiffe had remedy at Law and by Fenner and Gawdy Iustices the others abâ—ent and Prohibition lies because she hath remedy at Law So that their opinion was that an Action would lie at the Common Law for calling of one Witch And in one Edwards his case Hill 40 Iac it was said to have been three 〈◊〉 adjudged that to call one Witch would beare an action and also that an action would lie for calling â— one Hagge but I doubt of the latter because I take Hag to be a doubtfull word But why Witch should not beare an Action I know no reason being tâ—e life may be thereby drawne in question though I know it hath beene doubted Marshall brought an Action against Steward for saying the Devill appeares to thee every night in the likenesse of a black man riding upon a black Horse and thou conferrest with him and whatsoever thou dost aske he gives it thee and that is the reason thou hast so much money adjudged the words were Actionable Note Reader that by the Statute of 10 of King Iames cap. 12. Conjuration or consultation with the Devill is Felony In the case of Hawes Mich. 17. of the King that now is this case was put and agreed by the Iudges one said of another that hee had received a 〈◊〉 Priest adjudged actionable because it is Felony he might receive a Romish Priest and yet not know him to be so like the cases I have put you afterwards therefore Quere Sir Iohn Sydenham against Timothy Man Clark I think in my conscience that if Sir Iohn Sydenham might have his will he would kill all the Subjects in England and the King too and he is a maintainer of Papistry and Rebellious Persons These words upon a Writ of Error in the Exchequer Chamber were adjudged actionable It seemes somewhat hard to me Reader that words of thougâ—t or opinion only should beare an Action as here in the former words And for the latter words that he is a maintainer of Rebellious Persons they are Adjective only and do not import any Act of rebellion in those Persons but only an inclination to it but of this more hereafter If a man say of another that he doth like or approve of those that maintaine sedition against the King I conceive that these words are actionable and sedition is a violent and publique thing of which he cannot but have notice This Rule was agreed by the Iudges in the debate of a case in the Kings Bench that many words though of themselves they be not actionable yet being equivolent to words that are actionable will beare on Action And it was said by Iones Iustice that in Yorkshire strayning of a Mare is all one with Buggering of a Mare and therefore he said that an action will sie for these words with an averrement that they tantamount to Buggering of a Mare Note by his opinion in such case there must be an averrement of the mâ—â—â—ning or importance of the words Yet my Lord Hobart hath severall cases adjudged where a man brought an action for Welch words and did not averre what the words did import in English and yet judgement was given for the Plaintiffe and the Court tooke information upon Oath by VVelchmen what the words meant in English And in one of the cases Serjeant Iohn Moore then informed tâ—â— Court that judgement had bin given in the Kings Bench in the case of Tuâ—h upon these words Thou art a healer of Fellons without any averâ—ement how the words were taken because the Court was informed and tooke knowledge that in some Counties it was taken for a smotherer of Felons The caâ— intended by Serjeant Moore was I conceive the case of Pridham and Tucker in the Kings Bench where the words were adjudged actionable without an averrement and in this case â—t was agreed that words may be slanderons in one County and not in another for in Norf they know not what healer signifieth but this being in Deâ—â—nshire where this word is used for concealer of Theeves will be actionable And I take this to be generally true that in all cases where a mans life may beâ— drawne in question by scandalous words that such words are Actionable And now I shall cite a case or two where
that hee had committed Felony and so it hath bin often adjudged I will only cite one case in the point Hasselwood brought an action against Garret for these words I can finde in this Parish a falser knave then Briscoe is the which Briscoe is indicted of Felony burglary and is gone to Stafford Goale and that false knâ—ve is Thomas Hasselwood c. it was adjudged that these words are not actionable because that Briscoe might be indicted and yet be an honest man Thou hast layeâ— in Fullers Tubbe in which none come but those that have the Pox adjudged the words were nor actionable because this is no direct affiâ—mation that the Plaintiffe had the Pox. Poland brought an Action against Mason for saying I charge him meaning the Pâ—aintâ—ffe with Felony c. adjudged the words were not actionable because that he doth not affirme that he is a Felon but doth onlâ— say that he doth charge him with Felony which he may do in some cases though he did not the fact as if a Felony were done and the common fame were that he did it any one that suspects him may charge him with it Henâ—y brought an Action against Fitâ—h for these words I arrest you for Felony agreed that the words were not actionabâ—e for this is no positive charge that hee was a Felon and this may bee lawfully done upon a common fame as is said before thus you see that words that are not directly affirmative wil not beare an action Yet you may see before fol. 7. where words which imply an affirmative only shall be actionable as to say that I will prove that you stole my Books or the like but of this sufficient Secondly Words that are of a double or indiffâ—rent meaning The Law wil take in the best sence for the Speaker and sâ— adjudge them actionable for the rule of Law is as I have said before that verba accipienda sunt in mitiori sensu Yeomans and Hexts case cited before for my land in Allerton Hext seekes my life c. adjudged these words were not actionable because he may seeke his life lawfully upon just cause and his Land may be holden of him and so in mitiori sâ—nsu Barham brought an Action upon the case against Nethersall and the words were Master Bâ—rham did burn my barne innuendo a Barue with Corne with his owne hands and none but he and after verdict it was moved in arrest of judgment that the words were not actionable for it is not felony to burn a Barne if it be not parcell of a Mansion house nor full of Corne And in such case agitur civiliter and not criminaliter and words must be taken in mitiori sensu and the innuendo will not serve when the words themselves are not slanderous Ieams his case hang him he is full of the Pox I marvaile that you will eate or drinke with him c. adjudged that the words werâ— noâ— actionable because they shall bee taken in mitiori sensu for the small Pox and not the French Pox. But noâ—e that in Hawtry and Miles case cited afterwards it was said by Fenner Iust that to say that a man is layd of the Pox will beare an Action because that is the phrase for the French Pox. Adrian Coote brought an Action against Adrian Gilbert for these words Thou art a Thiâ—fe and hast stollen a Tree adjudged that the words were not actionable and agreed that there is no difference betweene and thou hast stollen and for thou hast stollen for in common acceptation and is to bee understood to be but a verifying and making good of the generall word Theefe and then a Tree shall bee understood rather of a Tree standing then felled which can bee no Felony or Theft for that a man cannot steale a mans inheritance So Clarke brought an Action against Gilbert for these words thou art a Theefe and hast stollen twenty load of my Furz adjudged that the action would not lie for the reasons given in the former case The like Law is if a man say of another that he hath stollen his Apples or his Corne or robbed his Hoppe ground or the like the Law in these cases will adjudge them rather growing then gathered or cut downe and so the words not Actionable Thus it is evident that where the words may be taken in a double or an indifferent meaning that the Law will ever take them best for the Speaker I shall only put one case more upon this ground and so passe it over Pawlin brought an Action against Ford for these words thou art a Theevish rogue and hast stollen my Wood. It was in this case said at Barre the Action would not lie because it should be construed rather to be wood standing then cut downe like those cases put before But Bramston chiefe Iustice seemed to incline that the words were actionable because that wood cannot be otherwise intended then of Wood cut down according to the old verse Arbor duâ— crescit lignum dum crescere nescu and so it was adjourned without more saying Note Reader according to the opinion of Bramston Chiefe Iustice betwixt Litchfield and Saunders for the same words hee hath stollen my wood to which the defendant demurred it was adjudged that the Action would lie for Tanfield Iustice said that the words shall be intended according to the most usuall sence viz. That it was Lignum and not Arbor as if one say that the Plaintiffe hath committed a murder it shall not be intended that he hath muâ—dered a Hare but a man You may here observe Reader that though words of a double or indifferent meaning ought to be taken in the best intendment for the speaker as I have sufficiently cleared it unto you yet they ought not to be taken contrary to common intendment For as you shall not straine words to an intent not apparent to make them actionable so you must not wrâ—st them contrary to common intent to make them noâ— actionable this is apparent by Sanders his case immediatly before where it is adjudged that to say of another you have stollen my Wood shalâ— be intended to be Lignum and not Arbor and so actionable so to say of a man that he hath committed a murder shall not be understood murdering of a Harâ— but a Man Dame Morrison brought an Action against VVilliam Cade Esquier aâ—d declared that she was of good same c. and that Henry Earle of Kent was in speech and communication with her for mariage the defendant prâ—misso um non ignarus said these words Arscot hath reported that he hath had the use of the Lady Morrisons body at his pleasure ubi revera Arscot never reported it And further alledges that the E. of Kent upon the hearing of these words surceased his suit by which she lost her advancement the Defendant pleaded not guilty and it was found for the
Plaintiffe It was moved by Hobart Atturney Generâ—ll that the words were not actionable for this reason amongst others all ruled against him â— because that the words had the use of her Body were incertain and of a double intendmenâ— and therfore should bee taken in the best sence to have the use of her body as a Tailor in measuring or a Phisitian in giving Phisick or the like and not in any worse â—ence But by Popham chiefe Iustice the words are actionable when words are spoken that may have a double intent or meaning they shall bee expounded according to common intent for otherwise he which intends to slander another may speak slanderous words which by common intendment shaâ—l be expounded a slander and yet no Action lie And here the words hath had the use of her body at his pleasure shall not be intended in any lawfull manner but licentiously and dishonestly for this is the common intent with whom all the other Justices agreed Thirdly where the words are doubtful in sence or meaning there likewise they will not be actioâ—able To say that a man smells of a murder lately committed will not beare an Action because the words are of a dubious sence and intendment Bradshaw brought an Action against VValker for these words thou art a filching fellow and dâ—ddest â—â—lch from VVilliam Parson a 100. l. adjudged that the words were not actionable because that they are of incertaine sence and meaning So to call one Harlot will not beare an action And upon this ground I conceive as I have said before that to call a Woman Hagge will not be Actionable So to say of a man that he is a Healer of Felons or that he strained a Mare as the cases are before put will not be actinable because of their doubtfull sence and meaning without the words be â— spoken to such who knows the meaning and intendment of them Fourthly where the words themselves are incertaine or the persons of whom they are spoken in such case they will not be Actionable Aâ—d first for the incertainty of the words that is when the scandall is not certaine and apparent in the words themselves Note Reader that all the cases put before upon the double or indifferent meaning of words are apt to this purpose As those thou hast stollen my Apples or my Corne or so many load of my Furres or a Tree or the like the words in these cases are not Actionable because the scandall is not apparent and certaine by the words for in every of these cases â—for ought appeares by the words the thing said to be stollen might be growing and then it is a Trespasse only and no felony and to charge a man with a Trespasse will not be actionable But if the words were thou hast stollen my Apples out of my Loft my Corne out of my Barne or my Fuâ—z or Wood out of my Yeard in such case the words would be actionable because the scandall is apparent for that it is evident by the words they were not growing Edward Miles brought an Action against Francis Iacob for these words thou hast poysoned Smith c. upon a Writ of Error in the Chequer Chamber it was adjudged that the Action would not lie because it did not appeare by the words that it was done wittingly Gibs and Ienkins case to say of a man that he boare away money or the like will not be Actionable A. said of B. that he tooke away money from him with a strong hand for which B. brought an Action adjudged that it would not lie Bramstan chiefâ— Iustice in the argueing of Hawes Case Mich. 1â— of this King in the Kings Bench remembred this case he did assault me and tooke away my purse from me and hee said that it was adjudged that the words were not Actionable The reason of these cases is because that for ought appeares by the words which are of them selves uncertaine these might be Trespasses only and no Felony Againe where the person scandalized is uncertaine no Action will lie If one say without any precedent communication of any person incertaine that one of the Servants of B. he having divers is a notorious Felon or Traytor c. here fore the incertainety of the person no action lyes neither can it be made good by an innuendo So if one say generally I know one neere about B. that is a notorious theefe or the like no action will lie for the same reason So as it is in Fleetwoods case in Hobarts Reports if a man say lookeing upon three persons one of these murdered a man no action will lie for these words by reason of the incertainety of the person neither can an innuendo helpe the incertainety and note Reader that these cases are not like Wisemans Case Wiseman of Grayes-Inne brought an Action against Wiseman of Lincollins-Inne his Brother for these words my Brother meaning the plaintiffe is perjured and I will justifie it upon not guilty pleaded it was found for the Plaintiffe and it was moved in arrest of judgement that the words were not certaine enough to ground an Action upon because the Plaintiffe might have more Brothers and it doth not appeare of which of them the words were spoaken but it was resolved that the action would well lie because it is alledged that they were spoken of the Plaintiffe and the Jury have found accordingly and here Tanfield Iustice tooke this difference where the words themselves are incertaine as to say one of my Brothers is perjured there they can never be made good by any averrement but where the words are certaine in themselves so that it may appeare that the Speaker intended a person certaine there they may bee made certaine by such a Declaration and the finding of the Iury. And it was said that if it were true that there were divers Brothers the Defendant should have pleaded it and then issue should have beene taken whether the words were spoken of the Plaintiffe or no. Nor are the former cases like a case which I cited before Mich. 2. Iac. where an action was brought for these words Thou diddest kill a Woman great with Childe innuend Iocosam Vxorem cujusdam R. S. defunct where it was ruled that though the Woman were utterly incertaine yet because the Offence and the party intended to commit it were certaine the Action would well lie Foxcroft brought an Action against Lacy and declared that a communication was moved betweene Iohn VValter and Richard Guyn Esquiers concerning a certaine Suit wherein the Plaintiffe and certaine others were Defendants and that the Defendant Lacy upon the said communication in their presence spake these words these Defendants meaning the Plaintiffe and the others are those that helped to murder Henry Farrar meaning one Hen. Farrer deceased who was murdered by one T. Guldfield who was hangd for it adjudged the words were actionable and that
held considerable in this case were these the Defendants saying that the Plaintiffe tooke Fees of both hands and whether this would amount to as much as if he had said the Plaintiffe was an ambidexter was the question Popham and Yelverton Iustices that the action would not lie because that the words in this case may have a double intendment for it may be intended that hee tooke Fees with both hands lawfully but if he had said that he was an ambidexter an action would lie for this is vox artis and cannot bee otherwise intended Fenner and Williams Iustice that the Action would lie for that the words amount to as much as ambidexter and are the english of it a direct affirmâ—tion and no Metaphor if a man say of another that he hath the Pox no Action will lie because it shall be intended the small Pox but if a man say of another that he hath beene laid of the Pox there an Action will lie because it is the phrase for the French Pox. I do rather incline to the latter opinion because as hath beene said these words are but the English and proper meaning of Ambidextery and to construe them to a taking Fees with both hands would be to make a construction against the expresse meaning of the words which I conceive the Law will not permit and the rather as this case is because that hee doth charge him with knavery in suffering of him wilfully to be condemned in a suit being his Attorney I do not find any judgement in the case therefore I shall leave it to the Juditious Reader Philips Parson of D. brought an action against Badby for these words thou hast made a seditious Sermon and moved the people to sedition this day in this case notwithstanding the first part of the words were utterly Adjective and the latter were but a motive to sedition and it doth not appeare that any thing ensued thereof yet because they scandaled the Plaintiffe in his function it was resolved that they were Actionable If a man say of a Merchant that he is a Bankrupt or that he will be a Bankrupt within two dayes the words are actionable Edmunds a Marchant brought an action against Whetston for these words He would prove that Master Edmunds had beene a Bankrupt and had agreed with his Credâ—itors for a Noble in the pound It was moved in Arrest of judgement by Hucham that the action would not lie because that the speech referres to a time past and though that he were once a Bankrupt yet it may be now that he is of credit But it was resolved that the Action would lie because that it was an impeachment of his credit for if he were once a Bankrupt every man will be the more suspitious and fearefulâ— of him A Marchant brought an Action for calling of him cousening knave by Iones and Barkley Iustices the other Justices absent the Action will not lie because that the words are too general But if they had touched him in his profession they would have borne an action And therefore to call a Marchant Bankrupt will beare an Action but to say of a Lawyer that he is a Bankrupt will not be Actionable the reason may be because that a Lawyer cannot bee a Bankrupt for that he doth not acquire his living by buying and selling as the Statutes speake Iones Iestice in the former case put this case there being a communication of Serjant Heale in his profession one said of him these words He hath undone many adiudged that the words were actionable because they touch him in his Profession A. Shoomaker brought an Action against one for calling of him Bankrupt adjudged upon a Writ of Error in the Chequer Chamber that the Action would lie Axe a Dyer brought an Action against Moode for these words thou art not worth a Groat and averres that in such a place where they were spoken they have the common acceptation and are equivalent to the calling of a man a Bankrupt resolved that the words of themselves were not Actionable because that many men in their beginnings are not worth a Groat and yet their credits are good in the world And that the averrement was idle and could not make them actionable because that the words have a plaine and proper significant meaning of their owne and therefore cannot be taken in another sence or meaning A Journeman and Foreman of a Shoomakers Shop brought an Action for these words it is no matter who hath him for he will cut him out of Doores and averres that the common acceptation and intendment of these words inter Calceareos is that he will begger his Master and make him run away and averres a perticular damage by the speaking of them resolved that the Action would lie Note Reader here the averrement is good because the words cutting out of Doores are of a doubtfull meaning and intendment and so may be aided by an averrement so that the difference betweene this and Axes case cited before is evident Knightly an Attorney brought an Action against Childoner for these words spoken to his Sonne my Father was not cast over the Barre as thy Father was the parties were at issue and in this case Walmesley Iustice said that he conceived the words were not actionable Box and Barâ—abies case before the defendant said of the plaintiffe being an Attorney these words amongst others which were held actionable that hee would have him throwne over the barr the next Tearme in this case agreeing with the opinion of Walmesley before the opinion of the Court was that these words were not Actionable because of the incertaine sence and meaning of them Dickes a Brewer brought an Action against Fenne and declares that the Defendant having communication with some of the Customers of the Plaintiffe concerning him in his profession said these words of him I will give a peck of Malt to my Mare and lead her to the VVater to drink and shee shall pisse as good Beere as Dicks doth brew adjudgeed the words were nâ—t Actionable because that they are Comparative only and besides they are impossible and therefore they can bee no scandall to the Plaintiffe In this case it was said by Rolls Serjeant that it had beene adjudged Actionable to say of a Brewer that hee brewes naughty Beere which was agreed by the Court because that he is presentable in a Leete for it And likewise in this case it was said by Bartley Iustice that where one said of a Lawyer that hee had as much Law as a Munkey that these words were adjudged not actionable because that he hath as much Law more also then the Monkey hath but if hee had said that he had more Law then a Monkey these words would be actionable One said of a Counseller at Law that he was a Concealer of the Law adjudged actionable Sanderson and Rudds case the Plaintiffe being a Lawyer and
the knowing The Defendants plea is that which must guid us in these cases if hee plead not guilty the words are as I have said before modo forma as the plaintiffe hath alledged and if the justifie the speaking of other words and traverse the words in question he doth it thus absque hoc that he spake the words in the Declaration modo forma as the plaintiffe hath alledged Now where the words that are founde by the Iury shall bee said to agree modo forma with the words in the Declaration this is the question here I shall lay down this as a ground That where the words that are found do not agree with the Declaration in the substantiall and essentiall forme that in such case they do not warrant the Declaration But if they do agree in the substantiall and essentiall formâ— though they agree not in every word yet they doe well warrant the Declaration and by consequence maintaine the Action Sydenham against Man for these words If Sir Iohn Sydenham might have his will he would kill all the true Subjects in England and the King too and he is a maintainer of Papistry and rebellious persons The defendant pleaded other words and traversed the speaking of the words modo forma c. the Iury found that he speak these words viz. I think in my conscience that if Sir Iohn Sydenham might have his will he would kill c. and find all the subsequent words before Alledged and whether the Defendant were Guilty of speaking of the words in the manner and forme as they are Alleadged by the Plaintiffe in his Declaration was the Question resolved against the Defendant And upon a Writ of Error in the Chequer Chamber the Court also inclined against the defendant for the matter is in effect the same and the forme must be understood the essentiall forme not according to every word here you have the ground laid downe before Yet the Booke saith that Pasch. 16. though the Court inclined that either of the words would beare an Action yet it was agreed that the words were not found so absolute as the Declaration neither moved credit in the eare so fully which is the force of a slander and then they are not the same words in force and effect as if the words were laid I know him to be a Theefe and it were found I thinke him to bee a Theefe For my part Reader I doubt in this case whether the finding of the Jury do warrant the Declaration because they are not the same words in force and effect as is said before And I conceive they are not the same in the essentiall forme of them for I question â—as I have don before if a man should say of another that he doth think if he might have his will he would kill all the Kings true Subjects and the King too or that he doth think such a one to be a Theefe whether these words be Actionable or no because the words are no positive charge out only the thought or opinion of the Defendant But to this it may bee said that if such words as these should not be actionable this would open a gap for scandalous Tongues to slander a man at pleasure and yet no Action lie which were very mischievous therefore I shall leave it to the judgement of the Reader Fenner against Mutton in an action upon the case for words which were thus Nicholas Fenner procured 8. or 10. of his neighbours to perjure themselves the defendant pleaded not guilty and the Iury find that the defendant said that Nicholas Fenner had caused 8. or 10. of his Neighbours to prejure themselves and if this Verdict were found for the Plaintiffe or the defendant was the question and the doubt was whether this word cause amount to as much as procure Tanfield Iustice seemeth that it doth not for hee might be a remote cause as causa fine qua non and yet no procurer as if a Notary writ a writing and put to this a seale and another take it and forge and publish it the writer was the cause that this was forged and yet no procurer of it I find no judgement in this case therefore quaere of it Chipsam against Ieeke for these words Chipsam is a Theefe for he hath stollen a Lambe from A. and Geese from B. and killed them in my ground issue was joyned whether the Defendant spoake the words modo forma c. the Jury find that the defendant said that the plaintiffe was a Theefe for hee hath stollen a Lambe from A. and killed it in my ground but they find that hee spoake nothing of the Geese yet it was resolved that the finding of the Jury did well warrant the Declaration of the plaintiffe because that the substance of the words is that he is a Theefe and thee for hee hath c. only a demonstration in what he is a Theefe which is as well in stealing of the Lambe as of the Geese and then if it bee found that he said any of them it sufficeth and judgement was given for the plaintiffe Norman and Symons case the plaintiffe brought an Action for words and declared that they were spoaken false malitiose the Iury find the words spoaken falso injuriose and it was adjudged that the Action would not lie because the finding of the Jury doth not warrant the Declaration in the substantiall forme of it for if the words were not spoaken out of malice they will not be Actionable as I shall shew you hereafter Brugis brought in Action for these words Brugis is a maintainer of theevs and a strong Theefe himselfe issue was joyned whether the Defendant spoake the words modo forma and the Iury found all the words except the word strong and in this case the Plaintiffe had judgement Here we may observe that though every word alledged in the Declaration be not found yet the essentiall and substantiall forme of the words being found that is sufficient to maintaine the Declaration This I say you may observe not only by this case but the cases also before put Barbar brought an Action against Hawley for these words Iohn Barbar and his Children be False Theeves men cannot have their Cattell going upon the Common but they will kill them and eat them c. issue was joyned whether the Defendant spoake the words modo forma and the Iury fonnd that he spoak these words viz. Men cannot have their Cattell going upon the Common but Iohn Barbar and his Children will kill them with Barbars Doggs in this case it was adjudged for the Defendant The reason is plaine because the words found by the Iury do vary in the essentiall and substantiall forme from the words in the Declaration For the words in the Declaration do charge the Plaintiffe with Tneft for which an Action would lie but the words found by the Iury charg him only with trespasse for
which no Action will lie I have sufficiently proved the ground laid downe before and therefore I shal now proceed to the second thing which I have touched before very considerable in all Actions for words and that is Quo animo with what affection the words are spoken whether ex malitia or not for if it do appeare that they were not spoken out of malice they will not be actionable Ralph Brook York Harrauld brought an Action against Henry Mountague Knight Recorder of London for saying of the Plaintiffe that he had committed Felony The Defendant pâ—eaded how that he was a Counseller and earned in the Law and that he was retained of Counsell against the Plaintiffe at such a Tryall and set forth all the matter in certaine and that hee in giving evidence to the Jury spoake the words in the Count which words were pertinent to the matter in issue in this case it was resolved that the Action would not lie because that the words were not spoken out of malice for that they were spoken to the purpose and being to the purpose though the words were false no Action will lie against the Defendant As in an Appeale of Murder if the Counsell with the Plaintiffe saith that the Defendant committed the murder though it be not true yet he shall not he punished for it because that what he said was pertinent so that it cannot be taken to be spoken out of malice but only as of Counsell for the Plaintiffe But if that which he saith be impertinent in scandall of him against whom he speaks it as in Trespasse of battery to say that the Defendant is a Felon there an Action will lie for that they cannot be otherwise taken but to bee spoken out of malice And in this case it was further said that if a Counseller be informed of any matter of slander apt to be given in evidence and hee speakes it at other places and at another time then in evidence an Action lies for it for the same reason In confirmation of the former case there was this case put and agreed for Law which was the case of Parson Prit in Suffolke the case was thus In the Acts and Monuments of Mr. Fox there is a relation of one Greenwood of Suffolke who is there reported to have perjured himselfe before the Bishop of Norwich in the testifying against a Martyr in the time of Queene Mary and that afterwards by the judgement of God as an exemplary punishment for his great offence his bowels rotted out of his belly And the said Parson Prit being newly come to his benefice in Suffolke and not well knowing his Parishoners preaching against perjury cited this story for an example of the justice of God and it chanced that the same Greenwood of whom the story was written was in life and in the Church at that time and after for this slander brought an Action to which the Defendant pleaded not guilty c. and upon evidence all the matter appeared and by the rule of Anderson Justice of Assise he was acquitted because it did appeare the Defendant spoak the words without malice and this rule was approved by the Kings Bench in this case In the arguing of Sanderson and Rudds case which I remembred before these cases following were cited by Gotbolt Serjeant who was of Counsell with the Defendant and agreed by the Court for Law Iames and Rudlies case the Defendant spoake by way of advise to his friend telling him that the Plaintiffe was full of the French Pox and therefore advised him not to keepe him company adjudged he said that no Action would lie for these words of advise the reason is because that these words were not spoken out of any malice to the Plaintiffe but meerely cut of good will to his friend Norman and Simons case remembred before the Plaintiffe brought an Action for words and declared that they were spoaken falso malitiose the Jury find the words and that they were spoken falsâ— injuriose judgement was given that the Action would not lie because that they did not find the malice for if the words were not spoaken malitiously no Action will lie And therefore I conceive that if a man bring an Action for words and do not declare that the words were spoken malitiose as well as falso that the Action will not lie In the case of the Lady Morrison that I have cited before this case was put by Popham chiefe Iustice If one say in Counsell and good will to his friend that it is reported that he hath done such or such an ill Act and advises him to purge himselfe and avoid such occasion afterwards it se mes saith he that an Action will lie for such counsell but quaere saith the Reporter for it is without malice And truly for my part I conceive an Action will not lie for that reason but I submit it to the judgement of the Reader And now I have finished my labour of shewing you what words are Actionable in the Law and what not It will in the next place be very necessary to be knowne where a mans Suit or prosecution at Law shall subject a man to an Action and where not and here I shall lay downe this as a rule That for any Suit or other legall prosecution in course of Iustice if not out of malice and touching a mans life no action will Lie A Man brougâ—t a Writ of Forger of false deeds against a Lord pending which Writ the Lord for the slander of the said Forgery by the said Suit brought his Action de scandalis Magnatum the Defendant justifies the said flander by bringing of the said Writ by the better opinion there which is also agreed for Law in Bucklies case in my L. Cokes 4. Booke the justification was good for saith the Booke no punishment was ever appointed for a Suit in Law though that it were false and for vexation Cutler and Dixons case adjudged that if one exhibit Articles to a Justice of Peace against a certaine person containing divers great abuses and misdemeanours not only touching the Petitioners themselves but many others and all this to the intent that he should be bound to his good behaviour in this case the party abused shal not have for any matter contained in such Articles an Action upon the Case because that they have pursued the ordinary course of Justice in such case and if actions should be permitted in such cases those which have good cause of complaint will not dare to complaine for feare of infinit vexation Oâ—en Wood exhibited a Bill in the Starchamber against Sir Richardâ— Buckley and charged him with divers matters examinable in the same Court and further that he was a maintainer of Pirates and Murderers and a procurer of Murders and Pyracies which offences were not determinable in the said Court upon which Sir Richard Buckley brought an Action In this case it was adjudged
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
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