appeare that he did it wittingly Stanhop brought an action against Blith for these words Mr. Stanhop hath but one Mannor and that he hath got by swearing and forswearing resolved that the words were not actionable for this reason amongst others for that hee might recover or obtaine a Mannor by swearing and forswaring and yet he not procuring or assenting to it And now I am come to the second part or clause of that generall rule layed downe before where I am to shew you That scandalous words which touch or concerne a man in his Liberty will beare an Action By the Bookes in the Margent the Law is plaine that if I publish and claime B. to be my Villeine that in such case no action will lie because I my selfe claime an interest in him and the Law will not in such case punish a man for then no man durst claime his owne for feare of an action But upon these Bookes I conceive the Law is evident that if a man had published another to be the Villein of I. N. that in such case an action would have layne because these words tend to the inslaving of him and his posterity and to the utter deprivation of his Libertys which the Law so much favours for as it is well knowne he that was a Villaine he was subject both in person and estate to the will of the Lord soâ— that he might seize all his Estate reall and personall and vassalise his person at pleasure so that he did not kil or maime him But I conceive that at this day an action in such case will not lie because that time and inconvenience hath quite abolished and worne out this Bondage our Books have little upon this ground therefore I shall thus passe it over Scandalous words which touch or concerne a man in Member or in any corporall punishment will beare an Action A man brought an Action for calling him Theefe and that he had stollen 2. Sheepe from B. the Defendant justifies the calling of him Theefe for that the Plaintiffe did steale the Sheepe and it was good by the whole Court without expressing the value of the Sheepe for if they be not worth twelve pence so that it is but petty Larceny and not capitall yet it is Fellony in its nature By this it is evident that to say a man hath stollen six-pence from B. will beare an Action though it be but petty Larceny because the Offender by Law may be imprisoned and whipt for it If a man say of another that he is perjured or that he hath forsworne himselfe in such a Court an action will lie for these words For by the Statute of 5. Eliz. cap. 9. A man convict of perjury forfeits 20. l. and is to have six Moneths imprisonment and his testimony taken away while that conviction stands and if hee have not Goods and Chattels to the value of 20. l. then he is to be put in the Pillary and his Eares to be nailed so that you see here is an immediate corporall punishment given by this Statute which is imprisonment And if a man say of another that hee can prove him perjured an action will lie though it be but an implied affirmative Hearle against Tresham thou hast taken a false Oath in the Session of c. resolved the words were actionable for the Court shall intend this to bee a Court of Record as Records of which they ought to take conusance Adams against Flemming he hath forsworne himselfe before the Counsell of the Marches of VVales in the suit I had against him there for perjury adjudged actionable In Lelicke and VVrinskemores case Mich. 7. of King Iames in the Kings Bench one Cossimans Case was cited which was thus thou wast forsworne in such a Bishops Court it was said that these words were adjudged actionable so it was agreed by the Court. It was moved by Williams in Arrest of Judgement for these words thou art a forsworne knave thou wast forsworne in Ilcon Court innuendo the Court Leete there holden it was agreed that the innuendo should not stretch the words further then they were spoaken And VVilliams put this case which was in the Kings Bench thou art a forsworne man thou wert forsworne in White Church Court which was affirmed by all the Serjeants to be adjudged not actionable Which case I conceive cannot bee Law because it is adjudged as I have put the case before that if one say of another that he hath forsworne himselfe in such a Court that the words are Actionable and in this case judgement was given accordingly If a man say of a Woman that shee hath a Bastard an action wil lie for these words because that shee is punishable by the Statute of 18. of the Queen cap. 3. at the discretion of the Iustices who alwayes inflict a corporall punishment upon them as imprisonment whipping or the like Morgan and Rookes case Morgan said of the Wife of Rookes shee is a Bawde and keepes a Bawdy house adjudged that the words were Actionable upon a writ of Error brought by Morgan to reverse the judgement given in the Common Pleas and judgement was affirmed Chambers and his Wife against Ryly for the same words Chambers his wife is a Bawd and keepes a Bawdy house Adjuded the words were Actonable and in this case it was agreed that to say of a Woman shee is a Bawde will not beare an Action because shee is not punishable by the Law for it but to say of her that shee keepes a Bawdy house will be Actionable for that shee is punishable by the Law for keeping a house of Bawdry A Prohibition was prayed because that Elizabeth Thorne had Libelled in Court Christian against Turnam for defamation for these words thou art a Bawde and dost keepe a bawdy house and it was granted by the whole Court because that an Action lies at Common Law for these words The reason why an Action lies in these cases is because the party may be indicted for keeping of a Bawdy house and if shee be thereupon convicted shee shall be imprisoned and most ignominiously Carted which are corporall punishments If a man say of another that hee hath forged a Leafe Obligation Release or Accquitrance or the like an Action will lie for these words Because that by the Statute of 5. of the Queene cap. 14. there are great and grievous corporall punishments inflicted upon such offenders if it bee to disturbe a Title the punishment is the greater but if onely in the cases aforesaid the Offender is to be put in the Pillory one of his Eares to be cut off and to bee Imprisoned for a yeare Hawes brought an Action for these words my Cousen Hawes hath spoken against the Booke of Common Prayer and said it is not fit to bee read in the Church Heath Iustice was of opinion that the words were actionable though the offence
or avoide his sentence and certainely they doe not for this differs much from a submission to an Arbitration for in such case a man ties his interest and binds his person which every one is not of capacity to doe but in this case what he doth as an arbitrator is onely to charge or discharge others And besides they are chosen by the parties themselves and if they they be not competent Jvdges the fault is theirs that chose them And now I shall proceed to shew you what Arbitrators are and their power by which you will easily perceiue of what high concernement it is to men to have a speciall care of the choise of Arbitrators What arbitrators are and there power An Arbitrator is as our bookes say a Judge indiffâ—rently chosen by the parties to end the matter in controversy betweene them Ad Arbitrium and therefore they are said to be Arbitrators because they have an Arbitrary power and may judge according to there will aud pleasure so that their judgment be according to the submission these Judges are not tied to any formalities or punctuallities in Law neither are they sâ—orne as other Judges established by publike authority are Besides their power is farre greater for as they may judge as they please keeping themselves to the submission so their sentence is absolutely definitive and conclusive from which there lies no Appeale as it was excellently well said by Heath Iustice in arguing of the case of Rudston and Yates cited before the judgement of Arbitrators said he provided that they keepe themselves to their jurisdiction is higher then any judgement given in any Court for if they erre no Writt of Error lies to reverse their judgement no not so much as Equity against them This is true where they keep themselves close to the submission but if they do not in such case though no Writt of Error lies to reverse their judgement upon an Action brought upon a Bond or promise for not performing an awaâ—d if the Defendant plead that the Arbitrators made no award and the Plaintiffe replies that they did make an award and sets it forth in speciall if it do appeare that the award is void as it may be in many cases which I shall set forth hereafter the Action in such case will not lie as every dayes experience teaches and in which our Bookes are plentifull By that which I have said before it is manifest how it concerns every man to have a care what Arbitrators hee makes choice of but of this sufficient The next thing considerable is Whether the power of Arbitrators be Assigenable or not The Law is cleere that Arbitrators cannot assigne over their power the reason is because that it is but a nude power or Authority which is evident in that it is revocable as I shall shew you hereafter and therefore by the Law not assignable To which may be added that it is a power coupled with a great trust and confidence and therefore not assignable I confesse that the Booke in 47. E. 3 doth tacitely admit this power to bee assignable where the case is thus In Debt the Defendant pleaded that they submmitted themselves to the Arbitrement of two persons who did award that they should stand to the award of W. P. which W. P. made an award which he hath performed c. here it is tacitely admitted that the Arbitrators might award that they should stand to the Arbitrement of another but Brooke in abridging this case saith the Law seemeth contrary In 8. E. 4. prototam Curiam except Yelverton where a man is bound to stand to the award c. who award that an Action shall be commenced betwixt the parties by the advise of VV. and P. this is a good award for by this W P. are not Arbitrators but onely executors of the Arbitrement And in this case the Arbitrators judged the Title to bee tryed betwixt them but know not what action should be brought But if they had awarded that the parties should stand to the Arbitrement of W and P. this had beene void because that they cannot assigne ouer their power Yelverton held in the first case that the award was void for the incertainty because that W. and P. are to give their advise which is not certaine vntill it be notified and in this case he hath made them Judges I confesse that I doe somewhat doubt of the case because the judgment of the arbitrators ought to be finall and this is no concluding of the matter in controversy but a transâ—erting of their power over to the Lawe to determine it Besides W. and P. may never give their advise or may refuse to doe it and in such case the arbitrement will prove idle And I do not conceive this case to be like the case in 19. E. 4. where the Arbitrators awarded a certaine sume and in surety of payment thereof to be bound by the advise of Counsell for here their judgement of the matter in controversie is certaine and finall and here is a some certaine awarded for which an Action will lie only the security is to be advised by Counsell which is no assignement of their power but of this more hereafter Emery and Emerys case the chiefe point whereof was thus the arbitrators award that the plaintiffe should make such a Release as one of the Arbitrators should like of in this case the arbitrement was held to be void because this was an appointing of an authority committed to them all unto one which they cannot do I shall conclude this point with Samons case in Coâ—kes 5. Booke where the case is â—hus Arbitrators award that the defendant should enter into an Obligation to the plaintiffe and doe not judge of what some the Bond shall be adjudged the Arbitrement was void for the incertainety and that the Arbitrators could not assigne over their power but that themselves ought to determine it and therefore neither the plaintiffe nor the defendant could assesse the someâ— the next thing considderable is VVhether the authority of Arbytrators be countermandable or not In his case also the Law will bee strong and evident that this authoritie is countermandable at any time before the award made but not after because then the authoritie is executed and cannot be countermanded and so are all our Bookes but 5. E 4. where it is said that if a man be bound to stand to the Arbitrement of I N he cannot discharge the Arbitrator contrary if he were not bound to stand to his arbitrement yet Brooke upon this case saith that it is cleere that he may discharge the arbitrator in both cases but in the one case he shall forfeit his Bond in the other he shal loose nothing because that ex nuda submissione non oritur actio so likewise it is resolved in Vinyors case which I shall put you presently In 28. H 6. by Ashton Iustice if there be two plaintiffs and one
to 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
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
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.
which no Action will lie I have sufficiently proved the ground laid downe before and therefore I shal now proceed to the second thing which I have touched before very considerable in all Actions for words and that is Quo animo with what affection the words are spoken whether ex malitia or not for if it do appeare that they were not spoken out of malice they will not be actionable Ralph Brook York Harrauld brought an Action against Henry Mountague Knight Recorder of London for saying of the Plaintiffe that he had committed Felony The Defendant pâ—eaded how that he was a Counseller and earned in the Law and that he was retained of Counsell against the Plaintiffe at such a Tryall and set forth all the matter in certaine and that hee in giving evidence to the Jury spoake the words in the Count which words were pertinent to the matter in issue in this case it was resolved that the Action would not lie because that the words were not spoken out of malice for that they were spoken to the purpose and being to the purpose though the words were false no Action will lie against the Defendant As in an Appeale of Murder if the Counsell with the Plaintiffe saith that the Defendant committed the murder though it be not true yet he shall not he punished for it because that what he said was pertinent so that it cannot be taken to be spoken out of malice but only as of Counsell for the Plaintiffe But if that which he saith be impertinent in scandall of him against whom he speaks it as in Trespasse of battery to say that the Defendant is a Felon there an Action will lie for that they cannot be otherwise taken but to bee spoken out of malice And in this case it was further said that if a Counseller be informed of any matter of slander apt to be given in evidence and hee speakes it at other places and at another time then in evidence an Action lies for it for the same reason In confirmation of the former case there was this case put and agreed for Law which was the case of Parson Prit in Suffolke the case was thus In the Acts and Monuments of Mr. Fox there is a relation of one Greenwood of Suffolke who is there reported to have perjured himselfe before the Bishop of Norwich in the testifying against a Martyr in the time of Queene Mary and that afterwards by the judgement of God as an exemplary punishment for his great offence his bowels rotted out of his belly And the said Parson Prit being newly come to his benefice in Suffolke and not well knowing his Parishoners preaching against perjury cited this story for an example of the justice of God and it chanced that the same Greenwood of whom the story was written was in life and in the Church at that time and after for this slander brought an Action to which the Defendant pleaded not guilty c. and upon evidence all the matter appeared and by the rule of Anderson Justice of Assise he was acquitted because it did appeare the Defendant spoak the words without malice and this rule was approved by the Kings Bench in this case In the arguing of Sanderson and Rudds case which I remembred before these cases following were cited by Gotbolt Serjeant who was of Counsell with the Defendant and agreed by the Court for Law Iames and Rudlies case the Defendant spoake by way of advise to his friend telling him that the Plaintiffe was full of the French Pox and therefore advised him not to keepe him company adjudged he said that no Action would lie for these words of advise the reason is because that these words were not spoken out of any malice to the Plaintiffe but meerely cut of good will to his friend Norman and Simons case remembred before the Plaintiffe brought an Action for words and declared that they were spoaken falso malitiose the Jury find the words and that they were spoken falsâ— injuriose judgement was given that the Action would not lie because that they did not find the malice for if the words were not spoaken malitiously no Action will lie And therefore I conceive that if a man bring an Action for words and do not declare that the words were spoken malitiose as well as falso that the Action will not lie In the case of the Lady Morrison that I have cited before this case was put by Popham chiefe Iustice If one say in Counsell and good will to his friend that it is reported that he hath done such or such an ill Act and advises him to purge himselfe and avoid such occasion afterwards it se mes saith he that an Action will lie for such counsell but quaere saith the Reporter for it is without malice And truly for my part I conceive an Action will not lie for that reason but I submit it to the judgement of the Reader And now I have finished my labour of shewing you what words are Actionable in the Law and what not It will in the next place be very necessary to be knowne where a mans Suit or prosecution at Law shall subject a man to an Action and where not and here I shall lay downe this as a rule That for any Suit or other legall prosecution in course of Iustice if not out of malice and touching a mans life no action will Lie A Man brougâ—t a Writ of Forger of false deeds against a Lord pending which Writ the Lord for the slander of the said Forgery by the said Suit brought his Action de scandalis Magnatum the Defendant justifies the said flander by bringing of the said Writ by the better opinion there which is also agreed for Law in Bucklies case in my L. Cokes 4. Booke the justification was good for saith the Booke no punishment was ever appointed for a Suit in Law though that it were false and for vexation Cutler and Dixons case adjudged that if one exhibit Articles to a Justice of Peace against a certaine person containing divers great abuses and misdemeanours not only touching the Petitioners themselves but many others and all this to the intent that he should be bound to his good behaviour in this case the party abused shal not have for any matter contained in such Articles an Action upon the Case because that they have pursued the ordinary course of Justice in such case and if actions should be permitted in such cases those which have good cause of complaint will not dare to complaine for feare of infinit vexation Oâ—en Wood exhibited a Bill in the Starchamber against Sir Richardâ— Buckley and charged him with divers matters examinable in the same Court and further that he was a maintainer of Pirates and Murderers and a procurer of Murders and Pyracies which offences were not determinable in the said Court upon which Sir Richard Buckley brought an Action In this case it was adjudged
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