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
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
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
standing for the Stuardship of a Corporation the Defendant said of him that he was an ignorant man the Court in this case inclined that the words were Actionable Snag a Counceller at Law brought an Action against Peter Gray for these words Goe yee to him to be of your counsell he will deceive you he was of Counsell with me and revealed the secrets of my Cause Adjudged the words were actionable because that this cannot be intended of a Lawfull revealing to the Iudge by way of motion before whom it was tried for this were a commendation for him but the words are to be taken as they were spoken that is conjunctim and uno halitu and then his intention appeares contrary for he said before He will deceive you c. Also the Plaintiffe declared that they were spoken Malitiose And these words revealed the secrets c. are to be intended revealed to those from whom they ought to be concealed and every man is to make the best of his cause and therefore secreta sua non sunt revelanda and also the words touch the Plaintiffe in his Art and Science which requiers men of great trust confidence and so the words before being spoken in derogation of the confidence and fidelity of the Plaintiffe are a great slander to him for these causes judgement was given for the Plaintiffe Vpon this case I do conceâ—ve that to say of a Lawyer generally that hee revealed the secrets of his Clyents cause will beare an Action One said of a Doctor of Phisick that he was a Monntebanke an Empericke and a base fellow adjudged the words were Actionable Paine brought an Action upon the case for words and shewed how that he was a Farmer and used to sow his land and to tell the Corne upon it and by this per majorem partem he maintained his Family and that the Defendant said these words of him He keepes a false Bushell by which hee doth cheat and cousen the poore and averres the losse of his custome by the speaking of these words In this case it was moved by Gotbolt Serjeant in Arrest of Judgement that the words were not Actionable because it doth not appeare that the Plaintiffe kept a false Bushell Sâ—ienter knowing it to be false But it was resolved that the words were Actionable for as this case is it must of necessity be taken that hee kept a false Bushell knowing it to bee false for otherwise it could be no coâ—senedge And this case plainly differs from the case where an Action was brought for saying that the Plaintiffe kept false Waites generally without further saying in this case the words were adjudged not Actionable because that it doth not appeare that he used them or knew them to be false The fifte part of that Generall Rule which I have laid downe before and which now I am in course to speake of is this That words spoken in scandall of a mans Title or which tend to a mans disinheritance will beare an Action Henry Mildmay brought an Action against Roger Standish for saying and publishing that certaine Land was lawfully assured to one Iohn Talbot Oliffe his Wife for a 1000. yeares and that they of the interest of the tearme were lawfully possessed whereas in truth there was no such matter and so for slandring of the Estate and Title conveyed to his Wife by certaine Indentures and shewed all in certaine and how hee was prejudiced by the said words he brought the said action The defendant pleaded a Proviso in the same Indentures and the said limitation for 1000 yeares according to the said Proviso as he pretended whereas in trueth the said limitation was void in Law by force of which he saith that the said Oliffe had an interest for a 1000 yeares and so justified the words upon which the plaintiffe demurred adjudged that the action would well lie though that the said Iohn Talbot and Oliffe his wife had such a limitation de facto for a 1000 yeares which occasioned the defendant being unlearned in the lawe so to publish it yet for that he hath taken upon himselfe notice of the lawe and medled in that which did not concerne him and hath affirmed and published that Oliffe had a good estate for a 1000 yeares in slander of the Title of the plaintiffe and to his preiudice for this cause judgment was given for the plaintiffe Sir Thomas Gresham Knight brought an action against Robert Gunsley Clark and shewes how his father was seised of divers Mannors and lands and amongst them of the Mannor of Tittesey which he did by his will amongst other lands devise to Beatrice his wife for life the remainder to the plaintiffe and the heires males of his body begotten and had issue William Grâ—sham his eldest sonne and the plaintiffe the younger and dyed and that William after this death confirmed to Thomas his estate and that Beatrice died and the plaintiffe entred into the said Manour of Tittesey and further shewes that William had issue Elizabeth his heire apparent and that the plaintiffe had a wife and sonnes and daughters and that he had an intent to conveye some of his lands to his wife for her ioynture and some to his sonnes and daughters for their advancement and to exchange parcell with others and to make a lease of another parte but doth not shew to whom and that the defendant premissorum non ignarus in derogation of the Title and estate of the plaintiffe said these words to the plaintiffe As I before said to your Wife I say now that your brother was afoole and never borne to doe himselfe any good for that he could not hould his hands from ratefying and subscribing to his Fathers will bnt yet notwithstanding I have that to shew in my house that if his heire doe not any such Act as hee hath done it shall bring her to inherit Tittesey by which words he saith that hee was hindred in the conveyances aforesaid In this case it was resolved that the Action would not lie first because that the words themselves are not scandalous to the Title of the plaintiffe the words considerable are onely these that he had that in his house c. that shall bring her that is the Daughter and Heire of William to inherit Tittesey which is apparently feasible for the Plaintiffe being Donee in Taile of the guift of his Father the Daughter and Heire of the eldest Brother is inheritable to the Revertion in Fee and so no prejudice to the Plaintiffe to say he hath that which shall bring her to inherit Besides the action will not lie because that he doth not shew any special damnification by the speakeing of these words as that he was upon a sale of these lands to I. S. who by reason of the speaking of these words refused to buy them or the like and in this case here was nothing but a purpose or intent of conveying some of these lands
case will beate it and it is usuall so to doe in these cases for the increase of damages Bramston chiefe Iustice in the arguing of Hawes case which I remembred before tooke this for a Rule that if words did import a scandall of themselves by which damage might accrue in such case the words would beare an Action without alledgeing of a particular damage But now on the other side words which doe not touch or concerne a man in any of the cases aforesaid will not beare an Action without alledgeing of a particular damage Words spoken in scandall of a mans Title will not beare an Action without averring of a particular damage as appeares by the cases before cited upon that ground There are many words which are words of passion and choler only as to say of a man that he is forsworne Generally or that he is a villain or a rogue or a varlet or the like these words are not Actionable of themselves yet I doe conceive that in these cases an Action will lie with an Averrement of a particular damage by reason of the speaking of them There are other words which concerne matter meerely Spirituall and determinable in the Ecclesiasticall Court only as for calling of a man a Bastard a Heretique a Scismatique an Advoâ—vterer a Forniâ—atoâ— or for calling of a Woman a Whore or charging her witâ— any particular act of incontinency or the like yet in these cases with an averrement of a particular damage an Action will lie at the Common Law as it is adjudged in Anne Davies case cited before By Popham Chiefe Iustice if one say of a Woman that is an Inholder that she hath a great infectious disease by which she loses her guests an Action will lie this must bee taken with an averrement of that particular damage otherwise an Action will not lie unlesse the disease be such for which shee ought to separate her selfe or to be seperated by the Law from common society as I shall shew you hereafter Axe and Moods case cited before the Plaintiffe being a Dyer brought an Action for these words thou art not worth a Groate adjudged that the words were not Actionable because that many man in his beginning is not worth a Groat and yet hath good credit with the world But in this case it was agreed that if the Plaintiffe had averred specially that he was thereby damnified and had lost his credit so that none would trust him with such an averrement the Action would have layen In the case of the Foreman of a Shoomakers Shop cited before for these words it is no matter who hath him for he will cut him out of doores the Plaintiffe averred that the Common acceptation of these words inter Calâ—eareos is that he will begger his Master and make him run away and shewed a speciall damage by the speaking of these words and it was adjuged that the Action would â—ie which I conceive was only for the particular damage for to say of a Servant that he doth Cheaâ—e Cousen or defraud or that he will begger his Master or the like will not beare an Action without an averrement of a particular damage And in this case it was said by the Court that for some words an Action will lie without an averrement of any particular damage as for calling of a man Theefe Traytor or the like and some words will noâ— beare an Action without an averrement of a particular damage As if a man shall say of another that he kept his Wife basely and starved her these words of themselves will not beare an Action but if the party of whom they were spoken were to bee maried to another and by these words is hindered in such case with an averrement of the particular damage an Action will lie So likewise in the case of Dickes and Fenne which I also cited before where one said of the Plaintiffe being a Bâ—ewer that he would give a peck of Malte to his Mare and â—ead her to the water to drink and she should pisse as good Beere as the Plaintiffe brewed it was resolved that the words themselves were not Actionable because of the impossibility of them But it was agreed by the Court that if there had beene a speciall damage alledged as losse of Custome or the like the Action would have laien Hawes case cited likewise before one said of him that he had spoaken against the Booke of Common Prayer and said that it was not fit to bee read in the Church for which he brought his action and shewed how that by reason of the speaking of these words by the Defendant he was cited in to the Ecclesiasticall Court and had paid and expended severall summes c. adjudged that the words themselves were not Actionable because if they had beene true they charge him only with an offence against a penall Law which doth not inflict corporall pâ—nishment but for non payment of the penalty But it was resolved that for the particular damage the Action would lie and of this opinion were Heath and Mallet Iustices But Bramston Chiefe Iustice the other Justice being absent was of a contrary judgement and hee tooke this for a Rule that if the words did not import a scandall in themselves as Hee conceived they did not in this case in such case the averrement of a particular damage should not make them Actionable But with all due respect to the judgement of this learned Judge I doe conceive that the words are in themselves scandalous because that they do charge a Man with faction and opposition to established Law and settled Government But if they were not in themselves scandalous yet I conceive according to the judgement of those reverent Jâ—dges that for the dammage only the Action will lie for otherwise the Plaintiffe shall suffer through the default of the Defendant and be without remedy which I conceive the Law will not permit but I submit this to the judgement of the learned Reader Lastly words which charge a man with any dangerous infectious diseasâ— by reason of which he ought to seperate himselfe or to be seperated by the Law from the society of men will beare an Action If a man say of another that hee hath the French Pox an Action will lie Taylor brought an Action against Packins for these words thou art not worthy to come into any honest mans company thou art a Leaprous knave and a Leaper Adjudged that the words are Actionable because that it is cause of seperation by the Law of God and Man So by Tanfield Iustice to say that one is infected with the French Pox will beare an Action but to say that one hâ—th the falling Sicknesse is not Actionable except that it disables him in his profession as to say that a Lawyer hath the falling Sicknesse an Action lieth because that it disableth him for his businesse Vpon this ground I conceive to
the knowing The Defendants plea is that which must guid us in these cases if hee plead not guilty the words are as I have said before modo forma as the plaintiffe hath alledged and if the justifie the speaking of other words and traverse the words in question he doth it thus absque hoc that he spake the words in the Declaration modo forma as the plaintiffe hath alledged Now where the words that are founde by the Iury shall bee said to agree modo forma with the words in the Declaration this is the question here I shall lay down this as a ground That where the words that are found do not agree with the Declaration in the substantiall and essentiall forme that in such case they do not warrant the Declaration But if they do agree in the substantiall and essentiall formâ— though they agree not in every word yet they doe well warrant the Declaration and by consequence maintaine the Action Sydenham against Man for these words If Sir Iohn Sydenham might have his will he would kill all the true Subjects in England and the King too and he is a maintainer of Papistry and rebellious persons The defendant pleaded other words and traversed the speaking of the words modo forma c. the Iury found that he speak these words viz. I think in my conscience that if Sir Iohn Sydenham might have his will he would kill c. and find all the subsequent words before Alledged and whether the Defendant were Guilty of speaking of the words in the manner and forme as they are Alleadged by the Plaintiffe in his Declaration was the Question resolved against the Defendant And upon a Writ of Error in the Chequer Chamber the Court also inclined against the defendant for the matter is in effect the same and the forme must be understood the essentiall forme not according to every word here you have the ground laid downe before Yet the Booke saith that Pasch. 16. though the Court inclined that either of the words would beare an Action yet it was agreed that the words were not found so absolute as the Declaration neither moved credit in the eare so fully which is the force of a slander and then they are not the same words in force and effect as if the words were laid I know him to be a Theefe and it were found I thinke him to bee a Theefe For my part Reader I doubt in this case whether the finding of the Jury do warrant the Declaration because they are not the same words in force and effect as is said before And I conceive they are not the same in the essentiall forme of them for I question â—as I have don before if a man should say of another that he doth think if he might have his will he would kill all the Kings true Subjects and the King too or that he doth think such a one to be a Theefe whether these words be Actionable or no because the words are no positive charge out only the thought or opinion of the Defendant But to this it may bee said that if such words as these should not be actionable this would open a gap for scandalous Tongues to slander a man at pleasure and yet no Action lie which were very mischievous therefore I shall leave it to the judgement of the Reader Fenner against Mutton in an action upon the case for words which were thus Nicholas Fenner procured 8. or 10. of his neighbours to perjure themselves the defendant pleaded not guilty and the Iury find that the defendant said that Nicholas Fenner had caused 8. or 10. of his Neighbours to prejure themselves and if this Verdict were found for the Plaintiffe or the defendant was the question and the doubt was whether this word cause amount to as much as procure Tanfield Iustice seemeth that it doth not for hee might be a remote cause as causa fine qua non and yet no procurer as if a Notary writ a writing and put to this a seale and another take it and forge and publish it the writer was the cause that this was forged and yet no procurer of it I find no judgement in this case therefore quaere of it Chipsam against Ieeke for these words Chipsam is a Theefe for he hath stollen a Lambe from A. and Geese from B. and killed them in my ground issue was joyned whether the Defendant spoake the words modo forma c. the Jury find that the defendant said that the plaintiffe was a Theefe for hee hath stollen a Lambe from A. and killed it in my ground but they find that hee spoake nothing of the Geese yet it was resolved that the finding of the Jury did well warrant the Declaration of the plaintiffe because that the substance of the words is that he is a Theefe and thee for hee hath c. only a demonstration in what he is a Theefe which is as well in stealing of the Lambe as of the Geese and then if it bee found that he said any of them it sufficeth and judgement was given for the plaintiffe Norman and Symons case the plaintiffe brought an Action for words and declared that they were spoaken false malitiose the Iury find the words spoaken falso injuriose and it was adjudged that the Action would not lie because the finding of the Jury doth not warrant the Declaration in the substantiall forme of it for if the words were not spoaken out of malice they will not be Actionable as I shall shew you hereafter Brugis brought in Action for these words Brugis is a maintainer of theevs and a strong Theefe himselfe issue was joyned whether the Defendant spoake the words modo forma and the Iury found all the words except the word strong and in this case the Plaintiffe had judgement Here we may observe that though every word alledged in the Declaration be not found yet the essentiall and substantiall forme of the words being found that is sufficient to maintaine the Declaration This I say you may observe not only by this case but the cases also before put Barbar brought an Action against Hawley for these words Iohn Barbar and his Children be False Theeves men cannot have their Cattell going upon the Common but they will kill them and eat them c. issue was joyned whether the Defendant spoake the words modo forma and the Iury fonnd that he spoak these words viz. Men cannot have their Cattell going upon the Common but Iohn Barbar and his Children will kill them with Barbars Doggs in this case it was adjudged for the Defendant The reason is plaine because the words found by the Iury do vary in the essentiall and substantiall forme from the words in the Declaration For the words in the Declaration do charge the Plaintiffe with Tneft for which an Action would lie but the words found by the Iury charg him only with trespasse for
no remedy in this case to constraine him to convey it to him If an arbitrement be that the defendant shall be bound by such a day which is not come he shall not plead this in an action of trespasse for then the plaintiffe should be barred and should have no action to compell the defendant to make the Obligation Note Reader that these cases must be entended where the submission is without specialty otherwise he were not without remedy In this case there are these three grounds observable and warranted by the books First where the award is for payment of money at a day to come there the award is good because an action of debt will lye for the money upon the arbitrement if it be not paid or the party may resort to his action againe if he please Secondly though the award be of a collaterall thing for which there is no remedy yet if it be executed it is good Thirdly and lastly where the award is of a collaterall thing not executed yet if the submission be by speciallty the award is good Upon these grounds you may observe these four rules to direct you where an arbitement shall be a good plea in barre of an action in these cases First where the award is for the payment of money for which you have remedy and the day of payment not past in such case the award is a good plea in barre of the action Secondly where the day of payment is past it is no plea in barre of the action without pleading of payment Thirdly where the day of payment is past yet if there be no default in the defendant in such case I conceive the arbitrement not executed is a good plea in barre of the Action Fourthly and lastly where the award is of a thing for which the party hath no remedy though the day be not yet come in which the thing ought to be done or delivered in this case the award is no plea in bar of the action According to these differences it hath been ruled in a case in the K. Bench which was thus The defendant in trespasse pleaded an award that he should instantly pay 20 s. to the plaintiffe and so demanded judgement of the action by Flemming Chiefe Iustice Williams and Crooke Iustices it was holden that the plea was nought because that he did not shew the money was paid and these differences agreed An arbitrement pleaded in bar of an action where the defendant hath not performed the thing and the day past is no good plea. But where the day of the performance of the thing awarded is to come and the doing of the thing awarded may be compelled by action there the arbitrement is a good plea in barre of the action And by Flemming if the arbitrement be â—o make a release or such other collaterall matter which the defendant cannot be enforced by action to do in such case the arbitrement is no good plea in barre of the action though the day of performance be not yet come And you must know Reader that where the arbitrement is to make a Release or such other collaterall thing and the day to come though the sumission were by specialty yet the award would be no plea in barre of an action because that cannot inforce the doing of it though it may be forfeited for the thing not done And so saith Nedham in 9 E. 4. though the arbitrement be void to this intent that the plaintiffe hath no action to compell the defendant to make the release yet it is good to this intent if the party do not performe it that he shall forfeit the penalty of the obligation But enough of this the next thing considerable is Where an award shall be void because it is not finall The arbitrators as I have often told you are Iudges of the matters in controversy referred vnto them and their award is a judgement now â—udicium must not only be certum as is said before but determinatum also it must determine the matter in controversy T is true an award may in some cases as I have shewed before be good of part of the things only submited but we must vnderstand this so that the award must be finall as to that parte or else it will be void An award that either party shall be Non-suit against the other in actions commenced by them is void because it makes no end of the matters in controversy And every arbitrement saith the Booke ought to make an end and finall determination of the things in dispute and controversy which it doth not in this case because that notwithstanding the Nonsuits they may commence their Suites de nove And vpon this ground as also the former authority I conceive that the Booke in 5. H. 7. is no Law where there is an opinion that an award of a Nonsuit may be good but it is vpon this reason because it is not only the act of the Court but the act of the party also But if it were wholy the act of the party yet for the reason before given because it is no final conclusion I conceive it cannot be good for this is but like blowing out of a candell which a man may at his own pleasure light againe So in all those cases that I have put you before where the award is of one side only it is void also for this reason because it doth not determine the controversies between them and the controversies cannot be ended without they be ended in respect of both parties So likewise in the cases that I have put you before where the award is uncertain it is also voide for this cause for that it is not finall For an uncertaine award cannot decide the matter in controversie but is more apt to beget new strifes and variances then to conclude the old In 8 E. 4. an award is made that an action shall be conceived betwixt the parties by the advice of S. and F. I do conceive in this case the award is void because it is not finall for this concludes not the controversie but leaves it to the judgement of law See fo 16. b. Warley and Beckwiths case in debt upon a bond to stand to an arbitrement the arbitrators award that the defendant shall pay severall sums to the plaintiffe which were aleaged by the plaintiffe to be done unto him And further that if the defendant at or before the Feast of S. Andrew the Apostle then next following should before the said arbitrators disprove the debt or any part thereof then so much should be deducted out of the payment of the severall summes aforesaid c. T is true I finde no judgement in this case yet I conceive the Law will be somewhat strong in it that the arbitrement is void because it leaves the matter in suspence and undecided whereas it ought to be finall and conclusive And besides this is upon the
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
defendant or two defendants and one plaintiffe put themselves to the award of other neither the one plaintiffe with out thâ—â— other nor the one defendant without the other may discharge the arbitrators the reason is obvious because that they were chosen by the joynt authority of both and therefore cannot be countermanded by one alone But that which is the last and best authority is Vinyors case where it is resolved that though a man be bound to stand to the Arbitrement c. yet he may countermand the Arbitrators the reason that is given is because a man cannot by his own act make such an authority powr or warrant not countemandable which by the law its owâ— proper nature is countermandable aâ—â— I make a Letter of Attorney to maâ—â— livery or to sue an Action in my 〈◊〉 or if I assigne Auditors to take an account or if I make one my factor oâ— submit my selfe to an Arbitrement though that these are done by expresse words irrevocable or that I grant or unbound that al these shal stand irrevocable yet they may be revoked so if I make my testament or last with irrevocable yet I may revoke it But in this case it was further resolved that by the countermand or revocation of the power of the Arbitrator the Bond according to the opinion of Brooke before cited is forfited because he was bound to stand to his award which he doth not doe when he discharges the Arbitrator I have sufficiently cleered it that the authority of Arbitrators is countermandable but hence arises two questions more the first is Whether the Authority of Arbitrators be countermandable without Deed or not The resolving of which doubt I conceive will stand upon this difference where the submission is by deed and where without deed where it is by deed in such case I conceive the authority cannot be countermanded but by deed and so is 49. Eâ— 3. but where it is without deed there the authority may be countermanded without deed and this I ground upon that rule of law codom modo qu◠〈◊〉 creatur dissolvitur It is but agreeable to naturall equity that every thing should be dissolved by the same meâ—nes or power that it was created And in Vinyors case which I have â—â—ited before there the submission 〈◊〉 by deed and the countermand pleadeâ— by deed the second and last doâ—â—â— or question considerable in this countermand of the authority of Arbitrators iâ— Whether there ought to be notice of the countermand or no There must be notice of the countermand fer without notice it 〈◊〉 no revocation or abrogation of the authority and so it is resolved in the Bookes which you have in the Maâ—gent Vinyors case cited before was thâ—â— he brought an Action of debt upon Bond against Wilde conditioned for â—he standing to an award to which the defendant pleaded that the Arbitrator made no award the plaintiffe replied that after the making of the said writing obligatory and before the Feast of c the defendant by his deed c. rovocavit abrogavit 〈◊〉 authoritatem c. which he had given by his writing obligatory to the arbitrator upon which the defendant demurred T is true that in this case it was resolved that the plaintiffe need not averre that the arbitrator had notice of the countermand but the reason that is given is not because that no notice is requisite but because notice is implied in these words revocaâ—n abrogavit is in the words feoffavit dedit dimisit a livery is implied But it was resolved that without notice it is no revocation of the authority and therefore if there were no notice in this case saith the Booke the defendant ought to have taken issue quod non revocavit c and if there were no notice it shall be found for the defendant I have done with the countermand of the authority the next thing to be considered is What an arbitrement is An award or an Arbitrement is nothing else but the order judgment and decree of the Arbitrators upon the matter or thing in controvercy referred or submitted unto them by the parties for their determination thus in short you see what an Arbitrement is the next and maine seruple or question will be What Arbitrement is good in Law and what nor An award or an Arbitrement may be void in Law in severall respects and first Where the award is not according to the submission And this threefould either in respect of the persons things submitted or the circumstances of the submission And first an award may be void where it is not according to the submission in respect of the persons that is where it doth award a thing to be done by or to a stranger who is not party to the submission In 22. H. 6. the case is thus in debt upon a bond to stand to an award the defendant pleaded that the Arbitrators did award him to pay 20 shillings to R. a stranger which he paid in this case by the opinion of the whole Court the award was void So in 17. E. 4 two submitted themselves to the Arbitrement of I S of all Trespasses c. who awarded that the one should pay to the other 40 l. 10 l. in hand and that he should find three severall sverties every one of them to be bound with him in 10 l. to pay the 30. l. residue at a certain day by the whole Court the award was void as to the finding of the suerties which were strangers to the submission And therefore certainely that oppinion in 5. H. 7. cannot be Law where it is admitted that an award to make a feoffement to a stranger is good Moore and Bedels case was thus Bedel recovered by default in an Action of Wast against Moore 45 l. damages after which judgment they submitted themselves to an award the arbitrators award that Moore should pay to Bedel 10 l at certaine daies and 15 l. at certaine other dayes and that for the payment of the 15 l. one William Salter should be ready to sealâ— and deliver 15 obligations c. and that the said William Salter should doe other things not within submission In this case it was adjudged that as to all that was to be done by William Salter being a stranger to the submission the award was void for they are not bound to performe any award but that which is within the submission so likewise it was adjudged betwixt Ecclessield and Maliard in the Kings Bench. Two submit themselves to the Arbitrement of A. who Arbitrates thus the award of A. indifferently chosen by I. for the behalfe of the obligor of one parte and the oblige of the other parte c. the doubt was whether the award were betwixt the parties oâ— no but it was ruled that it was because that I. was not party to the award but a deputy or factor c. A. and B. were bound to stand
and demands c. In this case Moore brought an action against Bedel shewed how that he payed the 10 l. c. and assigned a breach of the award that the Defendant had not made the release upon request It was resolved that though that many things are awarded to be done in satisfaction of another as in this case and some are within the submission as here the payment of the mony and some out as in this case all to be done by Salter being a stranger and so void and though that all were intended by the Arbitrators to be one full and entire recompence for the things that the other should doe in consideration of this as here the discharge of the 20 l. and the release by the Defendant notwithstanding if any to be done or to be given to the party though that it be of small value be within the submission the award is good so in this case judgement was given for the Plaintiffe In this case it is apparent that if what was awarded on the Plaintiffes part had been all out of the submission and by consequence void that then the Defendant in such case had not been tyed to perform what was awarded on his part for an arbitrement void against one is void against both Rudston and Yatesâ— case cited before an Infant and one of full age submitted themselves to an award it was adjudged that the submission and by consequence the award were absolutely void as to the Infant and being void as to the Infant that it was likewise void as to the man of full age for that the award ought to be equally binding And now I have showne you where an arbitrement shall be void in the whole and where in part only It will be necessary that I shew you where a bond for not abiding such an award shall be forfeited and where not Where an Obligation shall be forfeited for not performing of an Award which is void in part or in the whole and where not The Law as to this takes this difference betwixt an award void in the whole and an award void in part only Where the award is totally void there the bond can never be forfeited or the non-performance of it because that a void arbitrement and no arbitrement are both one in the judgement of Law And therefore no more then a bond can be forfeited where there is no award made can it be forfeited where there is a void award made For as in the first case he cannot observe thaâ— which is not so in the last the Law requires not the observation of that which is void As for the book in 22 Hen. 6. where there was a submission by bond and an award to pay 20 s. to a stranger and it is there said that the judgement of the Court was that though the award were void yet it ought to be performed by reason of the bond for otherwise the bond is forfeited and therefore saith the book the Plaintiffe traversed the award quod mirum sayes Brooke for this is no award between the Plaintiffe and the Defendant Well might he wonder at it indeed for certainly this cannot bee Law but because it is sufficiently refused by my Lord Coke in his tenth book the place cited before I shall thus passe it But now on the other side where the award is void in part only there the bond may be farfeited for not observing the award for as much as is within the submission though not for that which is not contained in the submission and therefore if a breach be assigned in that part which is void the action will not lye In Emery and Emerys case cited before Glanvile cited a case betwixt Hellier and Rendals in the Kings Bench in which he said he was of Counsel where the Plaintiffe assigned his breach at a void matter and after verdict for the Plaintiffe this was spoken in arrest of judgement and judgement quod quer nihil capiat per billam But now a breach may be assigned as to that which is within the submission and the bond forfeited for it In 18 E. 4. it was â—awarded that one of the parties should pay 40 l. to the other 10 l. in hand and that he and three others should be bound for the payment of the thirty pound residue In this case by Brian Neale and Choke though that the award be void as to the strangers yet it is not void as to the party which submitted but he must plead the award verbatim as the arbitrators gave it and in performance of it he must say that he himself was bound for the payment of the 30 l. rest at a day and shall not speak of the sureties So in Cornelius Lawrence and Carres case cited before it was adjudged that where there is an award of more then is submitted it is good for that which is submitted and void for the surplusage and that the bond is forfeited for not performance of that which is within the submission See fo 9. b. In 17 H. 7. by Vavisor and Fronick If A. B. be bound to stand to the award of certain persons of c. who award that the said A. B. and E. his wife shall levie a fine of the same lands to the other party though that the award be void as to the wife of A. B. yet the said A. B. is bound upon pain of forfeiture of his bond to do it And agreeing with these cases is Moorâ— and Bedels case so often remembred before And we must observe that where a man is tyed by promise to stand to an award it wil be the same with the Obligation as to those things before laid down as you may see in Moorâ— and Bedels case And now having declared unto you in what case a bond shall be forfeited for not performing of an award and in what not It will be necessary in the next place before I proceed to clear the point of notice of the arbitrement that is Whether the Compromittors which have bound themselves to stand to an Award are bound to take notice of it at their own peril or not This very point is as much controverted and debated in 8 Edw. 4. the Dutches of Suffolks case by all the Judges in the Chequer chamber as it is possible for a case to be and thee â—s as much variety of judgement and opinion in it as ever I met with in â—ny one case of the Law And though I do conceive the better opinion in that case to be for it is not resolved that the party who 〈◊〉 bound himself to stand to the â—ward must take notice of it at his own perill Because as Catesby saith â—â—cellently well though that a man by reason shall not be compelled to 〈◊〉 a thing without having notice of 〈◊〉 yet a man may binde himself by his deed to do a thing the which by reason he should not be bound to do Yet I
tyed himself to perform the arbitrement he ought to do it if it may be by any possibility done The reason of all these cases is because it is the folly of the parties to make choice of and to put so great confidence in such persons whom they chose to be their arbitrators and it is no newes that a man should suffer through his owne folly Againe where the thing awarded is in it selfe possible and possible also as to the party who is to do it yet Where the thing awarded lies not in the power of the party himselfe without the aide of a third person in such case the award is void Two submit themselves to an arbitrement the arbitrators award that one of them shall make I. S. to pay 20. l to the other the award is void because in this case it lies in the will of I.S. whether he will do it or no and the party hath no meanes to enforce him Two submit themselves to the award of I.S. who doth award one of the parties to pay to the other 40 l. 10. l. in hand and for the 30 l. residue that he finde three severall persons to be bound every one in 10. l. to the party In this case by the opinion of all the Iustices the award was void And there it is said that in an arbitrement the Law intends that the arbitrators should be indifferent and equall judges betwixt the parties buâ— what indifferency is this to cause a man to make such a thing to bee done which lies in the will of a stranger whether he will do it or nâ— As put the case saith the book that an arbitrator wil award that I must cause the King to giue the tower of London to the other such an award is clearely void And by Brian in 19 E. 4. an arbitrement that the party before such a day shall levie a fine before us is good but if the arbitrement be that he shall command us to sit here and to make him levie a fine this is void for he hath not power to do it So in 5 H 7. an award that the parties shall discontinue and make Retraxits of their suits is good the reason of these cases I conceive may be because that though these things cannot be done without the act of Court yet heere is concurrence of the act of the party also which doth produce the act of the Court. And 〈◊〉 Cheife Justice in 21 E. 4. takes the true difference sayes he there where the act may be done by my selfe without the aid of a third person in such case I ought to do it but where it cannot be done without the aid of a third person there it is otherwise There was a case which was 15 of this King which I cited before to another purpose which was thus an award was made that one of the parties should pay a certaine summe to the other and that the other in consideration of this should acquit him of a bond in which they were both bound to a third person in a 100 l. c. In this case the award was held good and this diversity was taken by the Court where the arbitrators arbitrate a party to do a thing which lies in his power without the aid of a third person there the award is good otherwise where it lies not in his power without the aid of a third person And here it was agreed that the thing awarded was feasable by the party himself without the aid of the obligâ—e and this difference was taken by the Court where the bond was forfited and the penalty incurred and where 〈◊〉 where the day of payment was not incurred there the payment of theâ— money at the day would bee a good discharge of the bond and by consequence a good acquit 〈◊〉 of the party but where the bond was forfeited there it could not And Ionâ—â— Iustice said that he might compell the obligeâ— upon payment of the money though the bond were forfeited to deâ—iver the bond by subpoenâ— in Chancery or that he might suffer an action to be brought against him and then discharge and pay it According to the opinion of Iustice Iones in his former case it was ruled that where arbitrators doe award that whereas such a one was seised to my use that I should cause him to make a release to the other being in possession that the award was good because that I have such an interest power that I may compell my feoffees to do it by subpoena in the Chancery Thus you see that where I may do the thing awarded my self without the aid of another or may inforce it to be done in such case the award will be good the next thing to be considered is Where an Award shall be void by reason of the not indifferency of it or because it is made of out side only As Arbitratorâ— are indifferently elected so the law intends as it is said in 17 E. 4. that the arbitrators should bee indifferent and equall Iudges between the parties which they cannot be if they do not giue satisfaction to both sides and therefore in such case where the award is not mutually satisfactory it is voide It was an ingenious saying of Hearu an Emery Emerys case cited before arbitrators saith he are indifferently chosen so that both the parties may have recompence in regard of their Bond which is equale pondus to both and an arbitrement saith he is like a fine wherein the Iudges are arbitrators one hath the land pro hac concordia the other hath money If the defendant plead an arbitrement made betwixt him and the plaintiffe of all quarels between them c. who award that the defendant should goe quit of all actions and quarrels had by the plaintiffe against him aud nothing is spoken of the quarels which the defendant hath against the plaintiffe the arbitrement is void So if two submit them selves to an award of all Trespasses and an award is made that the one shall make amends to the other and nothing is awarded that he shall do to him againe this is a void award because all is for the one party nothing for the other In Trespesse for taking away of goods the defendant pleaded an arbitrement which awarded that because the defendant had taken away the goods of the plaintiffe that he should re-deliver them in satisfaction of the Trespasse which he did and â—here by the better opinion the plea is nought because that re-delivery of his owne goods can be no satisfaction for the taking and detaining of them An Arbitrement is no plea in trespasse if the defendant doe not say that the arbitrators awarded that he should giue something to the plaintiffe more or lesse in satisfaction for that is a satisfaction to neither side the plaintiffe is not satisfied for the trespasse done him nor the defendant discharged thereof without some satisfaction for the