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
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
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
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
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
to the arbitrement of I. S. concerning a matter in controversie which did arise of the part of the wife of B. before covertute I. S. awarded that A. should pay so much to B. and his wife In this case it was moved by Seriant Rolls that the award of paiment of mony to the wife was out of the submission and therefore nought But by the whole Court the award was held good because it doth appeare upon the submission that the controversy did arise on the part of the wife Secondly an award may be void where it is not according to the submission in respect of the things or matters submitted If one be chosen arbitrator to make an Arbitrement upon one thing and he makes an Arbitrement upon another thing the Abitrement is void In the case of Moore and Bedel cited before who submitted themselves to an Arbitrement of all matters in varience betwixt them the Arbitrators award amongst other things that whereas Bedle being possessed of a certaine coppy hould â—oulden of the Mannâ—r of L. in the Country of B. had made a Lease for years of the said Copihould by Indenture contrary to the Custome that one William Salter Pro Posse suo should cause that no advantage should be taken of the forfeiture in this case it was adjudged that the award concerning this Coppihould not being within the submission was void Two submitted themselves by recognisance to an Arbitrement of the right and interest of 200. Acres of Land c. the Arbitrators award that the Defendant should have Brakes during his life in the land resolved that the award was not according to the submission because that that was of the right and interest in the land and the award is only of parcell of the profits out of it If I. N. and three others put themselves upon an award of I. S. of all Actions and demands betwixt them In this case the Arbitrator hath good authority to make an award of all joynt matters betwixt them and of all severall matters also but he cannot arbitrate any matter betwixt the three only because they are one party against the fourth but he may determine betwixt any of the three and the fourth In 9. E. 4. two submitted themselves to the arbitrement of one I. L. de omnibus actionibus personalibus sectis querelis c. betwixt them c. who awarded that because the Defendant had committed divers offences to the Plaintiffe and that the Plaintiffe was seised of such a house in Fee that the Defendant should release to the Plaintiffe all the right which he hath in this house c In this case I conceive the better opinion to be that the Arbitrement is void because that the power of the Arbitrator who is a Judge privatly chosen by the parties shall be taken stricti juris in that thing onely of which the compremise is and not in another thing and here the compremise was but of a thing personall and the Arbitrator hath awarded a satisfaction reall to wit aâ—release of a right to a house which was not comprised within the submission And Littleton in this case said that if he had awarded that the Defendant should serve the Plaintiffe two yeares this would be void And by Choke if we put our selves in Arbitrement de jure titulo possessionâ— Manerij de Dale and the Arbitrator makes an award of the Mannor of Sale this is void Haynes against Aâ—nsteed in Debt upon an obligation to stand to an Arbitrement in all causes that have bin depending betwixt the parties ab initio mundi the award is that the Defendant shall release all causes to the Plaintiffe from the beginning of the world usque c. Tanfield Iustice that the award is void for it is that the Defendant shall release all causes generally and the submission is of all causes depending then and so the award void and then the obligation not forfeited quod Curia concessit and judgement was given for the Defendant In a Writ of Error upon a judgement given in the Common Bench in debt upon an obligation to stand to the award of I. S. concerning an action of account pending the arbitrator made an award touching the account and further awards that every of the parties should release to the other all Actions the error in point of Law was that the award was void for though the Arbitrement may be good in part and void in part yet if it be void in any part the obligation is void quod non allocatur for per curiam when the award is made for more then is submitted as in this case it is good for the thing submitted and void for the surplusage but if the award bee made of lesse then is submitted then it is void for the whole If divers Covenants be and a man is bound in an obligation to performe them and some of the Covenants are void and against Law and the residue good yet he ought to performe those that are good otherwise the obligation is forfeited and this was one Alderman Lees case vide 14. H. 8. wherefore judgement in this case was affirmed Goffe against Browne upon an Obligation dated the 23 of February to performe an award of all causes untill the day of the Date of the Bond. The Defendant pleaded that the Arbitrators made no award The Plaintiffe replyed that the 28 of March following they made an award de super premissis that the Defendant should pay the Plaintiffe 20. l. at Midsummer following in full satisfaction of all matters between them and that they then should make the one to the other generall releases of all matters betweene them and assigned the breach for the non-payment of the 20. l. The Defendant demurred because the award did seeme to exceed the submission being for discharge and satisfaction of all matters to the day of the award which was more then was submitted for it may bee that the Arbitrators might meane some part of the 20. l. in discharge of the causes that might arise betweene the 23. of February and the 28. of March which were not within their power and so for the release Yet judgment was given for the Plaintiffe either because de super Premissis may import a restraint to the thing submitted or else that no new causes shall be supposed except they were alledged as in pleading of awards of causes they neede not averre that these were all c. There was a case which was betwixt Robert Tiderby the Father and Robert Tiderby the sonne which was thus they bound themselves to stand to the award of I. S. concerning all controversies quarrels and debates right title and possession of or concerning the Mannor of Dale I. S. awarded a convayance of the Mannor of Dale to certaine uses and that Robert Tiderby the Father should deliver all evidences and charters concerning the Mannor In this case it was objected that
of action given him so avoid the arbitrement expedit râ—ipub ut sit finis litium I shall cite but one case more upon the former ground and so passe this which is thus Barnes brought debt upon an Obligation against Greenly dated the 4 of September to performe an award of all causes till the day of the date the Plaintiffe pleaded the award de premissis viz. of all causes till the 3 of December and assignes a breach the Defendant maintained the Bar that the Arbitrator made no award and verdict for the Plaintiff judgement here the award was a day short of the submission Upon this a Writ of Error was brought but what issue it had that my Lord Hobart saith he doth not know I doe conceive Reader that the difference formerly taken will resolve this case for if the submission were conditional then I think the award is nought being not so large as the submission but if it were absolute in such case I think it good But to this it may be said that the Law will not intend any other matter of controversie to arise betwixt the third of September the fourth without it be shewn and for ought appears the award is of all causes to the fourth of September because no other cause appeares then what is awarded therefore quaere Thirdly and lastly an award may be void where it is not according to the submission in respect of the circumstantes of it Page and Parkers case was thus in debt upon a bond conditioned for the performance of an award so that it be delivered in writing sub manibus sigillis c. the defendant pleaded the delivery of it in writing and doth not say sub manibus sigillis and a performance the plaintiffe alleaged a breach and judgement given for him which was reversed in the Chequer chamber because the Defendant did not plead the award sub manibus sigillis for if an arbitrement bee not made according to the submission it is no arbiâ—rement if no arbitrement no cause of action So in this case I conceive if the award had been pleaded sub manibus and not sub manibus sigillis it had been nought So likewise if it had not been pleaded that it was delived in writing it had been void And where there is a submission to an award so that it be made and delivered to the parties in writing at or before such a day in such case if it have not all the circumstances that is though it be made yet if it be not delivered and though it bee made and delivered yet if it be not delivered to the parties and though it be made and delivered to the parties yet if it be not in writing and though it have all these circumstances yet if they be not all done at or before the day in any of these cases the award will be void as appears by the books in the margent And if the Arbitrators award any thing after the time limited it is void Two of one part and two of another submit themselves to an award so that the award be made and delivered to both parties c. A delivery in this case to one of either party is not sufficient but it must be to both the entire parties The reason of all these cases may be because as I have formerly said that it is but a bare power or authority which is giveu to an Arbitrator and therefore it must be strictly executed according to the qualifications and conditions annexed to it But the reason that comes more close is because that the submission is conditâ—onal Ita quod or Proviso the award of the premises or the said award c. now it cannot be an award of the premises or the said award if it be not in every thing matter and circumstance agreeable to the submission And now I have done this part of shewing you where an award shall be void in regard that it is not according to the submission I shall now shew you before I go any further what I intend by saying that the arbitrement is void and hereupon I shall makes this quaâ—re In what case an Arbitrement shall be totally void and where in part only And here I shall lay down these three several grounds or differences all warranted by our books First where the award is of one single matter only or of many things all out of the submission in such case the award is totally void Secondly where the award is of one single matter only or of many things all within the submission yet if it be not lf all submitted where the award is conditional or not agreeing in circumstances as I have shewed you before or if it be uncertain impossible c. though but in part as I shall shew you hereafter in such cases likewise the award will be totally void Thirdly and lastly where the award is of one thing onely or of severall things part within the submission and part out there the award is void onely as to that which is out of the submission and good for the residue To these cases that I have cited I shall only adde one case remembred before and that is Cornelius Lawrence and Carres case which was thus They submitted themselves to the award of I. S. concerning an Action of account pending the Arbitrator made an award touching the account and further award that every of the parties should release to the other all actions In this case it was adjudged that the award was good as to the account which was submitted and void for the surplusage See fol. 9. b. But note Reader that though an arbitrement may be void in part and good in part as in the cases aforesaid yet it cannot be totally void as to one of the parties to the submission and good against the oâ—her for as the award must be on both sides as I shall shew you hereafter so I conceive the award must be equally and reciprocally obligatory to both parties and if it be void against one it will be void against both And I conceive that Moore and Bedels case cited before will warrant this The case was thus Bedel recovered by default in an action of Waste against Moore 45. l. damages and had judgement after they submitted themselvs to an arbitrement and an award is made that Moore should pay to Bedel 10 l. at certain dayes 15 l. at certain other dayes and that for payment of the 15 l. one William Salter should bee ready to seal and deliver 15 Obligations and the award was of other things also out of the submission and in consideration thereof that Bedel should discharge Moore of 20 l. parcel of the said 45 l. recovered in the said Writ of Waste and that upon the readines of William Salter to seale and deliver the said 15 Obligations Bedel should release to Moore all actions
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
you may see that where a man is falsly and malitiously procured to be indicted if he be acquitted a Writ of conspiracy or an action upon the case in nature of a conspiracy as the case shall be will lie and though he be not acquitted yet an action upon the case will lie for the slander and vexation Yet in all these cases there is a prosecution in course of justice but because this prosecution was malitious tending much to the slander and scandall of the plantiffe therefore the action lies But here I would have you observe Reader that the plaintiffe ought in these actions to declare that the defendant falso malitiose procured him to bee indicted because the malice is the ground of the Action and if upon the Tryall it doe appeare that there was Probabilis causa for the indictment and prosecution therevpon the Action will not lie Thus much shall suffice to shewe you in what case a legall prosecution in course of Iustice shall Subject a man to an Action in what not In the next place I shall shew you which I cannot omit For what scandall of a Noble man or great Officer c. an action de scandalis Magnatum will lie upon the Statutes of 3. E. 1. cap. 33. or 2. R. 2. cap. 5. For a Suit or other legall prosecution in course of justice against a Noble man or great Officer no Action lies as is adjudged in the case of Forger of false deeds cited before so that as to this there is no difference betwixt a Noble man and another person but what scandalous words may be Actionable in case of a Nobleman for which an action de scandalâ—â— Magnatum will lie and what not may bee very considerable I shall cite only one case to this purpose which will be as a light to all cases of this nature and therefore give me leave to give it you wholly without dissection or abbreviation as I find reported The Earle of Lincolne brought an Action de scandalis Magnatum upon the Statute of Westm. 1. cap. 33. against one Iohn Righton and recited the Statute and said that the Defendant said of him my Lord is a base Earle and a paltry Lord and keepes none but Rogues and raseals like himselfe Vpon not guilty pleaded it was found for the Plaintiffe and it was moved in arrest of judgement that the words were not actionable for though they were unseemely immodest yet they were not such defamaâ—ory words upon which to ground an Action for though they were true the Earle could not incurre any prejudice by them Crook cont this action de scandalis magnatum is not to be compaâ—ed to other actions upon the case for words spoken of any other persons for this is inhibited by Act of Parliament and if the words bee such that any diâ—cord may arise by them betwixt the King and his Subjects or his Nobles or any slander to them to bring them into contempt this action lies and I have seene a Record of a case in 4. H. 8. of such an action brought by the Duke of Buckingham for such words which might cause him to be in contempt which were holden sufficient upon which to ground an action Hobart Attorney Generall for the Plaintiffe also who said that though an Action doth not lie for words betwixt common persons but in case where they are touched in life or Member or much in reputation yet if one speake any scandalous words of an Earle or other Peere of the Realme which impeaches their credit because that they are of the great Counsell of the King and State and a principall part of the body politique so that their discredit or disparagement is a disparagement to all the Realme therefore every thing which trenches only to their discredit is a cause of action and this was the cause of the judgement in the case of the Ducke of Buckingham in 4 H. 8. Feâ—ner Iust. it seemes to me that the action lies for they are words of great slander to the Earle But where the Statute of Marleb is that Lord shall not distraine the Beasts of the subject of the King and carry them into Castles so that they cannot be replevied and if one say that a Lord hath so done yet an Action will not lie Tanfield Iustice concesset but he saith if one say of a Lord that he used to distraine and put the Beasts in his Castle ut supra an action lies for one act against Law wil not bring him into contempt but if it be usuall for him so to do this is a cause to make him contemptible In the case of the Earle of Arundell who had made Commissions to his Servants to make Leases and improve Rents one said of him My Lord hath sent his Commissioners to spoyle the Country it was adjudged that this action would lie and yet in case of a common person it would not lie without doubt yet because that it may cause the Lord to be in contempt with the King and the People this action lay and so it seemes to me that it will here Williams Iustice to the same purpose and that the Earle is conservator Pacis at common Law and Comes Regis and if any one speake of them any thing which may make them to bee contemned of the King or his people an action lies upon this STATVTE Yelverton Iustice was absent judgement was respited to the intent that the Defendant by his submission might give satisfaction to the Earle Here you see the difference between words actionable in case of a Noble man and of a common person For words only of descredit to a Nobleman and which may bring him to contempt with the King or his People are sufficient to maintaine an action de scandalit magnatum otherwise in case of a common person I have now Reader quite finished my labour of shewing you for what scandals an action will lie for what not But before I conclude there are two things yet in all Actions for words worthy the knowing which I cannot omit The first is to declare unto you the use or office of an innuendo And the next is to shew you where an Averrement will be necessary and where not For the first you may take this for a certaine and infallible rule That an innuendo shall never make words actionable which of themselves are not Actionable And therefore if words be of a double or indifferent meaning and in the one sence actionable in the other not in such case an innuendo shall never make them actionable As if a man bring an Action against another for saying that he hath the Pox innuendo the French Pox or for saying that the Plaintiffe burnt his Barne innuendo a Barne with Corne. In these cases the innuendo where the words are of an indifferent meaning and may be taken so as not to be Actionable shall not straine them to such an intendement as to make them