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
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
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
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-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
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
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
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