perjured and therefore not Actionable Thomas brought an Action against Axworth for these words this is Iohn Thomas his writing he hath forged this VVarrant adjudged the Action would not lie Harvy brought an Action against Duckin for saying that the Plaintiffe had forged a Writing adjudged that the words were not Actionable the reason of these cases is because of the incertainty of the words VVarrant and Writing and as I have given you the rule before the scandall must bee certaine and apparent in the words themselves otherwise they will not be Actionable By Tanfield Iustice in Wisemans case cited before if a man say that one of his Brothers is perjured no Action will lie because of the incertainty In the case which I put you before moved by Williams Mich. 41. 42. of the Queene in the Common Pleas this case was remembred by Walmseley Iustice one of you forged a Sub-pâ—na out of the Chancery innuendo the Plaintiffe he saith that judgement was stayed in this case because he which is greeved ought to be certainly defamed and the innuendo cannot make the words more certaine here likewise you have examples that where the person is incertaine that is scandalised no Action will lie Powell brought an Action against Winde for these words I have matter enough against him for Mr. Harley hath found Porgery and can prove it against him Resolved the words were not Actionable because they were too generall and utterly incertaine Britteridges case cited before Britteridge is a perjured old knave and that is to be proved by a stake parting the land of H. Martin and Master Wright adjudged the words were not actionble because of the subsequent words which extenuate the former and explaine his intent that he did not intend any juditiall perjury and because that it is impossible that a Stake should prove him perjured here you have words that are not Actionable by reason of the qualification of the subsequent words thus you may see that the grounds formerly laid downe may serve as a Touchstone for all cases of scandalous words The third part of that rule or ground which I have laid downe before and which I am now to handle is this That scandalous words spoaken of a man which touch or concerne a man in his Office or Place of Trust will beare an action Skinner a Manchant of London said of Manwood chiefe Baron that hee was a corrupt Judge adjudged the words were actionable Stucley a Justice of Peace brought an Action for these words Mr. Stucley covereth and hideth Felonies and is not worthy to be a Iustice of Peace adjudged the Action would lie because it is against his Oath and the Office of a Iustice of Peace and good cause to put him out of Commission and for this he may be indicted and fined Pridham and Tuckers case to say of a Constable that he is a concealer of Fellons adjudged actionable Stafford Iustice of Peace brought an Action against Poler for these words William Web being Arrested as accessory for stealing his own Goods Master Stafford knowing thereof discharged the said VVeb by and agreement of 3. l. 10 which Master Stafford was party whereof 30. s. was to be paid to Master Stafford and was paid to his man by his appointment upon a VVrit of Error brought in the Chequer Chamber it was holden the words were Actionable Cotton Iustice of Peace brought an action against Morgaâ— for these words Hee hath received money of a Theefe that was apprehended and brought before him for stealing of certaine sheep to let him escape and to keepe him from the Goale adjudged the Action would lie Morris Gilbert Iustice of Peace brought an Action against Adams for these words Mr. Gilbert hath done me wrong in returning the Recognizance of Podger in 20. l. where it was taken in tenne and the suerties in 10. l. a peece by the whole Court the words are Actionable If a man say of a Iustice of Peace that he is a common Barret or Champertor or maintainer of Suites the words are Actionable Carre brought an Action against Rande for words and declared that hee was Steward to divers great Lords of their Court Barrons and of the Leetes with in their Mannots and that he was Steward of one A. of his Court Barron and of the Leete within his Mannor the Defendant of this not ignorant said these words Mr. Carre hath put a presentment into the Iuries verdict against me of 3s 4d for sueing of Peter VVest forth of the Court contrary c. without the consent of the Iury by the whole Court the Action lies because he doth accuse him of falsity in his Office but by the better opinion if he had not alledged in his Count that he was Steward the Action would not have layen Sir George Moore brought an Action against Foster for scandalous words and sets forth that he was a Iustice of Peace in the County of Surrey and that there was a Suit depending in Chancery betwixt the Defendant and one Richard King and that a Commission was awarded to Sir George Moore and others to examine Witnesses in the said cause and also to heare and determine it and that he with the others dealt in the execution of the said Commission and that the Defendant said of the Plaintiffe these words Sir George is a corrupt man and hath taken bribes of Richard King and at another time King hath set Sir George Moore on horseback with bribes where by to defrande equity Iustice and good conscience resolved that the words were Actionable because that though the Plaintiffe bee neither Officer â—or Iudge nor is sworne yet because it is a place of great Trust reposed by the King in the Plaintiffe and for that he is punishable for bribary or corruption in the execution of the said Commission in the Court out of which it issues not deserving if the words were true to be imployed in the like Commission or any other for these causes the words were held to be Actionable and Popham Chiefe Iustice in this case made no difference where the Commission issues to one and where to many nor where they are nominated by the Court where by the party for in the first case he said the confidence of the Court is all one and in the last though that they be nominated to the Court by the party yet they shal not be Commissioners without the approbation of the Court. Sir Richard Greenefield brought an Action against Furnace for these words thou innuendo Captaine Greenfield hast received money of the King to buy new Saddles and hast cousened the King and bought old Saddles for the Troopers It was objected that the Action would not lie and it was likened to these cases which I will cite because they are worth the knowing 8. Car. the Major of Tivertons case one said of him that the Major had cousened all his Brethren c.
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
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