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
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 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
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
held considerable in this case were these the Defendants saying that the Plaintiffe tooke Fees of both hands and whether this would amount to as much as if he had said the Plaintiffe was an ambidexter was the question Popham and Yelverton Iustices that the action would not lie because that the words in this case may have a double intendment for it may be intended that hee tooke Fees with both hands lawfully but if he had said that he was an ambidexter an action would lie for this is vox artis and cannot bee otherwise intended Fenner and Williams Iustice that the Action would lie for that the words amount to as much as ambidexter and are the english of it a direct affirmâ—tion and no Metaphor if a man say of another that he hath the Pox no Action will lie because it shall be intended the small Pox but if a man say of another that he hath beene laid of the Pox there an Action will lie because it is the phrase for the French Pox. I do rather incline to the latter opinion because as hath beene said these words are but the English and proper meaning of Ambidextery and to construe them to a taking Fees with both hands would be to make a construction against the expresse meaning of the words which I conceive the Law will not permit and the rather as this case is because that hee doth charge him with knavery in suffering of him wilfully to be condemned in a suit being his Attorney I do not find any judgement in the case therefore I shall leave it to the Juditious Reader Philips Parson of D. brought an action against Badby for these words thou hast made a seditious Sermon and moved the people to sedition this day in this case notwithstanding the first part of the words were utterly Adjective and the latter were but a motive to sedition and it doth not appeare that any thing ensued thereof yet because they scandaled the Plaintiffe in his function it was resolved that they were Actionable If a man say of a Merchant that he is a Bankrupt or that he will be a Bankrupt within two dayes the words are actionable Edmunds a Marchant brought an action against Whetston for these words He would prove that Master Edmunds had beene a Bankrupt and had agreed with his Credâ—itors for a Noble in the pound It was moved in Arrest of judgement by Hucham that the action would not lie because that the speech referres to a time past and though that he were once a Bankrupt yet it may be now that he is of credit But it was resolved that the Action would lie because that it was an impeachment of his credit for if he were once a Bankrupt every man will be the more suspitious and fearefulâ— of him A Marchant brought an Action for calling of him cousening knave by Iones and Barkley Iustices the other Justices absent the Action will not lie because that the words are too general But if they had touched him in his profession they would have borne an action And therefore to call a Marchant Bankrupt will beare an Action but to say of a Lawyer that he is a Bankrupt will not be Actionable the reason may be because that a Lawyer cannot bee a Bankrupt for that he doth not acquire his living by buying and selling as the Statutes speake Iones Iestice in the former case put this case there being a communication of Serjant Heale in his profession one said of him these words He hath undone many adiudged that the words were actionable because they touch him in his Profession A. Shoomaker brought an Action against one for calling of him Bankrupt adjudged upon a Writ of Error in the Chequer Chamber that the Action would lie Axe a Dyer brought an Action against Moode for these words thou art not worth a Groat and averres that in such a place where they were spoken they have the common acceptation and are equivalent to the calling of a man a Bankrupt resolved that the words of themselves were not Actionable because that many men in their beginnings are not worth a Groat and yet their credits are good in the world And that the averrement was idle and could not make them actionable because that the words have a plaine and proper significant meaning of their owne and therefore cannot be taken in another sence or meaning A Journeman and Foreman of a Shoomakers Shop brought an Action for these words it is no matter who hath him for he will cut him out of Doores and averres that the common acceptation and intendment of these words inter Calceareos is that he will begger his Master and make him run away and averres a perticular damage by the speaking of them resolved that the Action would lie Note Reader here the averrement is good because the words cutting out of Doores are of a doubtfull meaning and intendment and so may be aided by an averrement so that the difference betweene this and Axes case cited before is evident Knightly an Attorney brought an Action against Childoner for these words spoken to his Sonne my Father was not cast over the Barre as thy Father was the parties were at issue and in this case Walmesley Iustice said that he conceived the words were not actionable Box and Barâ—abies case before the defendant said of the plaintiffe being an Attorney these words amongst others which were held actionable that hee would have him throwne over the barr the next Tearme in this case agreeing with the opinion of Walmesley before the opinion of the Court was that these words were not Actionable because of the incertaine sence and meaning of them Dickes a Brewer brought an Action against Fenne and declares that the Defendant having communication with some of the Customers of the Plaintiffe concerning him in his profession said these words of him I will give a peck of Malt to my Mare and lead her to the VVater to drink and shee shall pisse as good Beere as Dicks doth brew adjudgeed the words were nâ—t Actionable because that they are Comparative only and besides they are impossible and therefore they can bee no scandall to the Plaintiffe In this case it was said by Rolls Serjeant that it had beene adjudged Actionable to say of a Brewer that hee brewes naughty Beere which was agreed by the Court because that he is presentable in a Leete for it And likewise in this case it was said by Bartley Iustice that where one said of a Lawyer that hee had as much Law as a Munkey that these words were adjudged not actionable because that he hath as much Law more also then the Monkey hath but if hee had said that he had more Law then a Monkey these words would be actionable One said of a Counseller at Law that he was a Concealer of the Law adjudged actionable Sanderson and Rudds case the Plaintiffe being a Lawyer and
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
matter a reserving of power to make a second arbitrement which I conceive they cannot do I shall conclude this point with that ingenious conceit of Herne in Emery and Emeryes case remembred before only a word or two more of his added An arbitrement saith he is like a fine wherein the Judges are arbitrators one hath land pro hac concordia the other hath mony therfore fines upon condition are refused because not finall So the Law doth reject all arbitrements that are conditionall or which leave the matters in controversie in suspence or unconcluded For as a fine is so called because that it doth finem liâ—â—bus imponere so the proper work or office of an arbitrement is to put an end to controversie So Yelverton in 8 E. 4. An arbitrement saith he is used for the Common weale for to decide debates and wrongs amongst the people as fines are here hee likewise joynes them both together And the very words of the condition in every bond to stand to an award will sufficiently instruct the arbitrators what they are to do in this behalfe which certainly prudent Antiquity put in to that very purpose where the parties doe submit themselves to the arbitrement sentence and finall determination of the arbitrators and therefore the award is not according to the submission if it be not finall the next thing to be considered is Where an award against law shall be void It may be aptly demanded what I intend by an award against law for every award that is not according to law as where it is uncertaine impossible or the like as I have shown before may bee truly said to bee against law and therefore this will be but actum agere to shew that an award against law shall be void By Billing in 8 E. 4. an award which is impossible is against the law for saies he the law is upon possibility and reason therefore that which is impossible is against law So by Nele and Choke an award which is made in parcels or which enjoynes a thing not in the power of the party is against law By Keble also in 9 H. 7. an award that a man shall pay more then of right he ought to pay is against law T is true that all these or the like in a general acceptation of the words may be said to be against law because they do not agree with the law But in a more particular and restrained acceptation of the words that is properly said to hee against law which is either malum in se or malum prohibitum that is either against the Commandements of God or the Decrees Maxims and Principles of the Law as appeares by the books in the margine And in this sense properly I conceive the Law is to be understood where it speaks of an award against law And therefore if an award be that the defendant shall kill or rob I. S. or that he shall maintain the plaintiffe in such a suit or that he shall be bound to the plaintiffe being a Sheriffe to save him harmelesse if hee shall imbesiâ—l a Writ or suffer an escape or that he shall forge such a deed or writing for the plaintiffe or the like in such cases I conceive the award will bee void because it enjoynes things against the law But of this sufficient The next and last thing to be considered is Where an award made at several times or by parcels shall be void An award that the defendant shall pay a certaine sum of money to the plaintiffe and that the surety for payment thereof should be by the advice of the arbitrators this by Choke is a void award because that the arbitrators cannot make their award twice for every arbitrement ought to be made entirely and not by parcels And here is first an award for the payment of the money and then here is another part of the award for the sufficiency of the security and these at severall times which cannot be By Danby Justice if the arbitrators arbitrate part one day and part another day and give their judgement there the second is void but they may commune upon one point one day and another another day so that they do not give their judgment nisi unica vice for all And by Yaxley an arbitrement told in part is void in the whole for an arbitrement cannot be made by parcels I conceive Reader that this point will stand upon this difference where there are several awards made and where but one award made at severall times or by parcels I conceive they cannot make severall a vards First because that were not agreeable to the submission in which the parties binde themselves to stand to the award and arbitrement of the arbitrators and by these words in the submission they have no power to make severall awards or arbitrements and when they have made one arbitrement they have executed their power and authority and therfore a second arbitrement will bee void And again by the same reason that they might make two awards they might make twenty which were very inconvenient But now on the other side I conceive that an award may be made at severall times or by parcells so that it be not delivered vnder their hands according to the submission untill the whole be made And certainly that which is principaly required in every arbitrement is that it be agreeable in substance and circumstance to the submission which it may well be though it be made at severall times or by parcells so that it be made and delivered according to the submission at the time appointed And I conceive all that is done by the arbitrators is but as a comuning or discourse concerning the matters in controversy submited unto them for that they may vary in their iudgments as they shall see occasion for they have liberty to arbitrate according to their discretions so they have an eye to the submission I say I conceive all as nothing untill they have finished and delivered the arbitrement which is the complement and perfection of it Besides where the submission is of many things and those of great difficulty if the Law should be that the arbitrators might not make their arbitrement by parcells it might be very mischeivous to the parties especially considering that submissions are most commonly to illiterate men Neither is my opinion groundless or without authority for by Moile in 39. H. 6. an arbitrement may well be made in parcells so that all be made before any day assigned I have now finished this poore indeavour of mine of shewing you what arbitrements are good in Law and what not I shall only adde this one Rule concerning the vnderstanding or exposition of arbitrements which will be very vsefull in that particular and â—o conclude all and that is That an award or an arbitrement shall be construed according to the intent or meaning of the arbitrators and not according to the words
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