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         March, John, 1612-1657.
      
       
         
           1647
        
      
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             Actions for slaunder, or, A methodicall collection under certain grounds and heads of what words are actionable in the law and what not a treatise of very great use and consequence to all men, especially in these times wherein actions for slaunder are more common and do much more abound then in times past, and when the malice of men so much increases, well may their tongue want a directory : to which is added awards or arbitrements methodified under severall grounds and heads collected out of our year-books and other private authentick authorities ... / by Jo. March.
             March, John, 1612-1657.
          
           241 p.
           
             Printed by F.L. for M. Walbank and R. Best ... ,
             London :
             1647.
          
           
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         eng
      
       
         
           Libel and slander -- England.
        
      
    
     
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           Actions
           for
           Slaunder
           ,
           OR
           ,
           A
           Methodicall
           Collection
           under
           certain
           Grounds
           and
           Heads
           ,
           of
           what
           words
           are
           actionable
           in
           the
           LAW
           ,
           and
           what
           not
           ?
        
         
           A
           Treatise
           of
           very
           great
           use
           and
           consequence
           to
           all
           men
           ,
           especially
           in
           these
           times
           ,
           wherein
           Actions
           for
           Slaunder
           are
           more
           common
           ,
           and
           do
           much
           more
           abound
           then
           in
           times
           past
           :
           And
           when
           the
           malice
           of
           men
           so
           much
           increases
           ,
           well
           may
           their
           tongue
           want
           a
           Directory
           .
        
         
           To
           which
           is
           added
           ,
           AWARDS
           or
           ARBITREMENTS
           ,
        
         
           Methodised
           under
           severall
           Grounds
           and
           Heads
           ,
           collected
           out
           of
           our
           Year-Books
           and
           other
           pirvate
           authentick
           Authorities
           :
           wherein
           is
           principally
           shewed
           ,
           what
           Arbitrements
           are
           good
           in
           Law
           ,
           and
           what
           not
           .
        
         
           A
           learning
           of
           no
           lesse
           use
           and
           consequence
           to
           all
           men
           ,
           then
           the
           former
           :
           for
           that
           submissions
           to
           Arbitrements
           were
           never
           more
           in
           use
           then
           in
           these
           times
           .
           And
           this
           learning
           well
           observed
           ,
           would
           avoid
           multitudes
           of
           suits
           and
           contentions
           which
           daily
           arise
           through
           the
           defects
           of
           Arbitrements
           .
        
         
           By
           JO.
           MARCH
           of
           Grayes-Inne
           ,
           Barister
           .
        
         
           LONDON
           ,
           Printed
           by
           
             F.
             L.
          
           for
           
             M.
             Walbank
          
           and
           
             R.
             Best
          
           ,
           and
           are
           to
           be
           sold
           at
           Grayes-Inne-Gate
           .
           1647.
           
        
         
         
         
         
      
    
     
       
         
         
         
           Actions
           for
           Slaunder
           .
           OR
           A
           methodicall
           Collection
           ,
           under
           certaine
           Grounds
           and
           heads
           ,
           of
           what
           words
           are
           actionable
           in
           the
           Law
           ,
           and
           what
           not
           ?
        
         
           THE
           first
           part
           of
           my
           labour
           is
           ,
           to
           shew
           what
           words
           are
           actionable
           in
           the
           Law
           ,
           and
           what
           not
           ?
           In
           the
           prosecution
           of
           which
           ,
           ti
           's
           not
           my
           purpose
           to
           run
           over
           all
           the
           cases
           that
           have
           bin
           adjudged
           ,
           neither
           can
           I
           if
           I
           would
           ;
           my
           intent
           is
           only
           to
           lay
           downe
           a
           certaine
           rule
           or
           ground
           ,
           upon
           which
           to
           go
           (
           which
           will
           indeed
           be
           as
           a
           light
           to
           all
           Cases
           of
           this
           nature
           )
           and
           having
           done
           so
           ,
           to
           follow
           every
           particular
           thereof
           ,
           with
           the
           most
           pertinent
           cases
           that
           I
           finde
           adjudged
           in
           the
           Law
           ;
           which
           done
           there
           
           will
           be
           very
           few
           cases
           of
           consequence
           hitherto
           adjudged
           omitted
           .
        
         
           But
           before
           I
           enter
           upon
           this
           part
           of
           my
           labour
           give
           me
           leave
           to
           premise
           this
           ,
           that
           I
           do
           not
           undertake
           this
           work
           ,
           with
           an
           intent
           ●o
           incourage
           men
           in
           giving
           ●ll
           and
           unworthy
           language
           ,
           or
           to
           teac●●
           them
           a
           lawlesse
           Dyalect
           ,
           but
           (
           as
           my
           Lord
           Cook
           speakes
           )
           to
           direct
           and
           instruct
           them
           rightly
           to
           manage
           that
           ,
           
           which
           [
           though
           but
           a
           little
           member
           ]
           proves
           often
           the
           greatest
           good
           ,
           or
           the
           greatest
           evill
           to
           most
           men
           .
           And
           withall
           to
           deterre
           men
           from
           words
           ,
           which
           are
           but
           winde
           (
           as
           hee
           further
           speakes
           )
           which
           subject
           men
           to
           actions
           ,
           in
           which
           dammages
           and
           costs
           are
           to
           bee
           recovered
           ,
           which
           usually
           trench
           to
           the
           great
           hinderance
           and
           impoverishment
           of
           the
           speakers
           .
        
         
           And
           in
           truth
           that
           which
           caused
           mee
           to
           enter
           upon
           this
           labour
           ,
           was
           the
           frequency
           of
           these
           actions
           ;
           for
           I
           may
           with
           confidence
           affirme
           ,
           that
           they
           doe
           at
           this
           day
           bring
           as
           much
           Gryse
           to
           the
           Mill
           ,
           if
           not
           more
           ,
           then
           any
           one
           branch
           of
           the
           Law
           whatsoever
           .
           And
           it
           were
           to
           bee
           wished
           and
           certainly
           never
           in
           a
           better
           time
           then
           now
           )
           that
           the
           greatest
           part
           of
           
           them
           were
           suppressed
           ,
           that
           words
           only
           of
           brangle
           ,
           heate
           and
           choler
           ,
           might
           not
           he
           so
           much
           as
           mentioned
           in
           those
           high
           and
           honourable
           Courts
           of
           Justice
           .
           For
           I
           professe
           for
           my
           part
           ,
           I
           judge
           of
           them
           as
           a
           great
           dishonour
           to
           the
           Law
           ,
           and
           the
           professors
           thereof
           ;
           especially
           when
           I
           consider
           that
           they
           are
           used
           only
           as
           instruments
           to
           promote
           the
           malice
           ,
           and
           vent
           the
           spleene
           of
           private
           jarres
           and
           discontents
           amongst
           men
           .
        
         
           The
           Apostle
           calling
           in
           question
           the
           wisdome
           of
           men
           ,
           
           
             for
             going
             to
             Law
             one
             with
             another
             ,
          
           is
           not
           to
           bee
           intended
           [
           as
           the
           learned
           observe
           upon
           that
           place
           generally
           to
           condemne
           all
           legall
           prosecutions
           ,
           be
           ause
           a
           man
           may
           without
           question
           maintaine
           his
           just
           rights
           &
           priviledges
           b●
           Law
           ,
           but
           onely
           to
           reprehend
           the
           folly
           of
           such
           ,
           who
           upon
           every
           slight
           and
           triviail
           occasion
           (
           like
           many
           in
           these
           contention
           times
           )
           care
           not
           to
           intayle
           a
           suite
           upon
           them
           and
           their
           posterity
           ;
           though
           in
           Fine
           they
           docke
           their
           owne
           intayles
           without
           recovery
           :
           and
           justly
           may
           actions
           for
           words
           come
           within
           the
           compasse
           of
           the
           Apostles
           exprobration
           .
        
         
           I
           doe
           not
           condemne
           all
           actions
           for
           
           words
           neither
           ,
           for
           it
           is
           but
           equall
           ,
           that
           where
           a
           mans
           life
           ,
           liveliehood
           ;
           or
           reputation
           (
           which
           is
           dearer
           to
           him
           then
           the
           former
           )
           is
           much
           endangered
           by
           scandalous
           words
           ,
           that
           in
           such
           case
           the
           offender
           should
           bee
           inforced
           by
           action
           to
           make
           compensation
           .
           But
           that
           a
           man
           should
           flee
           to
           the
           Law
           out
           of
           malice
           ,
           and
           make
           the
           Courts
           of
           Justice
           maintainers
           of
           every
           small
           and
           vaine
           brabble
           ,
           this
           seemes
           to
           me
           utterly
           unlawfull
           and
           intolerable
           amongst
           Christians
           .
        
         
           I
           cannot
           but
           take
           notice
           of
           that
           which
           
             Wray
             Chiefe
             Iustice
          
           ,
           
           saith
           in
           Cookes
           4th
           Booke
           ,
           That
           though
           slanders
           and
           false
           imputations
           are
           to
           be
           repressed
           because
           that
           oftentimes
           
             a
             verbis
             ad
             verbera
             perventum
             est
          
           ;
           which
           ●confes
           tends
           much
           to
           the
           disturbance
           of
           the
           common
           peace
           ,
           and
           therefore
           by
           all
           meanes
           possible
           to
           bee
           prevented
           .
           Yet
           he
           saith
           ,
           that
           the
           Judges
           have
           resolved
           ,
           that
           actions
           for
           scandalls
           should
           not
           bee
           maintained
           by
           any
           strained
           construction
           or
           argument
           ,
           nor
           any
           favour
           extended
           for
           supportation
           of
           them
           .
           And
           he
           addes
           the
           reason
           of
           it
           ,
           because
           they
           doe
           abound
           more
           in
           these
           dayes
           ;
           then
           in
           times
           past
           ,
           and
           the
           intemperance
           and
           malice
           of
           men
           increases
           ;
           
           
             Et
             malitijs
             hominum
             est
             obviandum
          
           ;
           and
           further
           addes
           ,
           that
           in
           our
           old
           bookes
           ,
           actions
           for
           scandalls
           are
           very
           rare
           ,
           and
           such
           as
           are
           brought
           ,
           are
           for
           words
           of
           eminent
           slander
           ,
           and
           of
           great
           importance
           .
        
         
           I
           is
           true
           that
           the
           Law
           doth
           in
           some
           cases
           discountenance
           these
           actions
           ,
           and
           therefore
           we
           have
           a
           rule
           ,
           that
           words
           if
           they
           admit
           of
           a
           double
           construction
           ,
           shall
           alwayes
           be
           taken
           in
           the
           best
           sence
           for
           him
           that
           speakes
           them
           (
           as
           I
           shall
           make
           evident
           hereafter
           )
           because
           usually
           they
           are
           spoken
           in
           chollar
           and
           passion
           .
        
         
           This
           I
           say
           the
           Law
           doth
           ,
           where
           the
           words
           are
           amphibolus
           ;
           but
           if
           the
           words
           are
           clearely
           actionable
           ,
           in
           such
           case
           the
           Law
           will
           never
           ayde
           a
           man
           ,
           though
           they
           were
           spoken
           in
           the
           distemper
           of
           passion
           which
           seemeth
           very
           hard
           and
           unreasonable
           .
        
         
           Nay
           which
           is
           yet
           more
           extreame
           ,
           if
           counsell
           shall
           but
           informe
           the
           Jury
           of
           the
           quality
           and
           reputation
           of
           the
           Plaintiffe
           and
           also
           make
           them
           understand
           [
           if
           they
           be
           capable
           the
           true
           sence
           and
           meaning
           of
           the
           words
           ,
           and
           the
           hainousnes
           of
           them
           ;
           such
           words
           ,
           against
           such
           a
           person
           ;
           
           this
           inforced
           and
           prest
           on
           by
           eminent
           Councell
           ,
           shall
           make
           a
           Jury
           give
           a
           hundred
           pounds
           dammages
           ,
           whereas
           it
           doth
           not
           appeare
           to
           them
           ,
           that
           the
           Plaintiffe
           by
           the
           speaking
           of
           the
           words
           was
           prejudiced
           one
           farthing
           ,
           a
           case
           of
           very
           great
           extremity
           ,
           and
           worthy
           of
           reliefe
           .
        
         
           And
           can
           any
           man
           deny
           ,
           but
           that
           this
           is
           a
           countenancing
           of
           these
           frivolous
           Actions
           :
           But
           give
           mee
           leave
           Reader
           ,
           and
           I
           will
           in
           a
           word
           informe
           you
           how
           this
           may
           be
           remedied
           :
           and
           though
           the
           malice
           of
           men
           cannot
           bee
           stopped
           ,
           yet
           their
           Actions
           may
           .
        
         
           Let
           no
           words
           be
           actionable
           which
           do
           appeare
           to
           have
           beene
           spoken
           in
           chollar
           and
           passion
           ,
           or
           if
           actionable
           ,
           yet
           let
           the
           Plaintiffe
           recover
           no
           more
           in
           damage
           ,
           then
           hee
           can
           upon
           Oath
           make
           appeare
           ,
           that
           hee
           was
           actually
           damnified
           by
           the
           speaking
           of
           them
           ;
           and
           if
           this
           were
           provided
           by
           Act
           of
           Parliament
           ,
           our
           new
           bookes
           would
           bee
           as
           little
           infested
           with
           these
           frivolous
           actions
           ,
           as
           the
           old
           ones
           are
           .
           But
           I
           cannot
           thus
           baulke
           that
           observation
           of
           that
           learned
           Chiefe
           Justice
           who●ses
           that
           in
           our
           old
           books
           Actions
           for
           scandalls
           are
           very
           rare
           ,
           and
           such
           as
           
           are
           brought
           ,
           are
           for
           words
           of
           eminent
           slanders
           and
           of
           great
           importance
           .
        
         
           This
           must
           needs
           bee
           acknowledged
           to
           be
           a
           most
           exact
           and
           true
           observation
           ,
           for
           in
           searching
           of
           the
           Books
           ,
           I
           cannot
           finde
           that
           any
           Action
           for
           scandalous
           words
           was
           brought
           before
           E.
           3.
           time
           ,
           and
           so
           rare
           then
           ▪
           that
           I
           finde
           but
           one
           in
           50.
           yeares
           of
           E.
           3.
           and
           that
           is
           Sir
           
             Thomas
             Setons
          
           case
           of
           Justice
           ,
           
           for
           calling
           of
           him
           
             Traytor
             .
             Felon
          
           ;
           and
           Robber
           ,
           no
           frivolous
           cause
           of
           action
           .
        
         
           And
           I
           finde
           but
           three
           Actions
           for
           words
           brought
           in
           22.
           yeares
           of
           E.
           4.
           and
           those
           for
           one
           and
           the
           same
           words
           ,
           
           for
           publishing
           one
           to
           bee
           the
           Pilleine
           of
           
             I.
             S.
          
           a
           slaunder
           of
           no
           small
           importance
           ,
           neither
           ;
           for
           so
           long
           as
           that
           base
           and
           slavish
           Tenure
           of
           Pilleinage
           held
           ;
           hee
           that
           was
           a
           Pilleine
           ,
           was
           subject
           both
           in
           person
           and
           estate
           ,
           to
           the
           will
           of
           his
           Lord
           ,
           so
           that
           he
           might
           seize
           all
           his
           estate
           reall
           ,
           and
           personall
           ,
           and
           Vassalize
           his
           person
           at
           his
           pleasure
           ,
           so
           that
           he
           did
           not
           kill
           or
           mayme
           him
        
         
           In
           all
           the
           21.
           yeares
           of
           H.
           7.
           there
           is
           not
           one
           action
           that
           I
           can
           find
           brought
           for
           scandalous
           words
           .
        
         
           And
           in
           38.
           yeares
           of
           H.
           8.
           our
           books
           
           tell
           us
           but
           of
           five
           actions
           brought
           for
           scandalous
           words
           ;
           
           two
           whereof
           were
           in
           27.
           
           H.
           8.
           so
           that
           I
           find
           none
           before
           that
           time
           neither
           .
           The
           other
           were
           in
           30.
           
           H.
           8.
           and
           28.
           
           
             H.
             Dyer
          
           .
           And
           these
           for
           no
           trifling
           words
           ;
           for
           you
           shall
           finde
           that
           one
           of
           them
           was
           for
           calling
           a
           man
           Heretike
           ,
           another
           for
           saying
           a
           man
           was
           perjured
           ;
           and
           the
           other
           three
           for
           calling
           of
           one
           Thiefe
           all
           of
           which
           are
           high
           scandals
           to
           a
           mans
           reputation
           and
           most
           of
           them
           tending
           to
           the
           losse
           of
           life
           and
           fortunes
           ;
           so
           that
           it
           is
           very
           true
           that
           that
           Reverend
           Chiefe
           Justice
           observed
           ,
           that
           these
           Actions
           were
           very
           rare
           in
           our
           old
           bookes
           ,
           and
           such
           as
           were
           brought
           were
           for
           words
           of
           emminent
           slander
           ,
           and
           of
           great
           importance
           .
        
         
           But
           these
           few
           have
           now
           got
           such
           a
           numerous
           progeny
           that
           I
           feare
           we
           cannot
           turne
           over
           many
           leaves
           in
           our
           new
           books
           ,
           but
           wee
           shall
           finde
           one
           of
           these
           Actions
           .
           They
           began
           thus
           to
           multiply
           in
           the
           Queenes
           time
           ,
           as
           wee
           finde
           in
           my
           Lord
           Cockes
           4.
           book
           ,
           where
           there
           is
           no
           lesse
           then
           17.
           adjudged
           cases
           together
           upon
           these
           Actions
           .
        
         
           And
           you
           may
           easily
           judge
           ,
           they
           did
           not
           abate
           in
           
             King
             Iamses
          
           his
           time
           ;
           for
           
           (
           if
           I
           mistake
           not
           )
           there
           is
           no
           lesse
           then
           two
           and
           twenty
           adjudged
           cases
           upon
           these
           Actions
           in
           my
           LORD
           Hobarts
           Book
           .
        
         
           And
           I
           am
           certaine
           they
           are
           not
           fallen
           in
           His
           Majesties
           Raigne
           that
           now
           is
           ;
           for
           I
           my selfe
           have
           reported
           no
           lesse
           then
           three
           and
           twenty
           judgments
           upon
           these
           Actions
           but
           from
           Easter
           Tearme
           in
           the
           sixteenth
           yeare
           of
           the
           King
           ,
           to
           Trinity
           Tearme
           in
           the
           eighteenth
           .
        
         
           Well
           therefore
           might
           
             Wray
             Chiefe
             Iustice
          
           say
           ,
           that
           the
           malice
           of
           men
           doth
           more
           increase
           in
           these
           times
           ,
           then
           in
           times
           past
           ;
           and
           as
           he
           saith
           ,
           the
           malice
           of
           men
           ought
           to
           be
           with
           stood
           as
           much
           as
           may
           be
           ;
           which
           I
           am
           sure
           the
           too
           frequent
           tollerating
           of
           Actions
           of
           this
           nature
           wil
           not
           effect
           ,
           
           no
           more
           then
           fire
           can
           be
           extinguished
           by
           adding
           fewell
           unto
           it
           .
           You
           have
           heard
           my
           advise
           and
           direction
           before
           ,
           therfore
           I
           will
           here
           close
           this
           with
           one
           word
           ,
           though
           the
           tongues
           of
           men
           be
           set
           on
           fire
           ,
           I
           know
           no
           reason
           wherefore
           the
           Law
           should
           bee
           used
           as
           Bellowes
           to
           bow
           the
           Coles
           .
        
         
           It
           is
           the
           saying
           of
           the
           Prophet
           
             David
             ;
             I
             will
             take
             heed
             to
             my
             ways
             ,
             that
             I
             offend
             not
             with
             my
             tongue
             ,
             I
             will
             keepe
             my
             
             mouth
             as
             it
             were
             with
             a
             Bridle
             .
          
           It
           were
           happy
           for
           all
           men
           if
           they
           could
           make
           the
           like
           resolution
           ,
           and
           keep
           it
           .
           But
           seeing
           that
           wee
           are
           but
           men
           ;
           whilest
           wee
           carry
           this
           lump
           of
           flesh
           and
           masse
           of
           corruption
           about
           us
           ,
           we
           shall
           be
           subject
           to
           the
           like
           passions
           and
           affections
           that
           o●●er●
           have
           beene
           before
           us
           ,
           and
           the
           flesh
           will
           rebell
           against
           the
           spirit
           .
           And
           therefore
           I
           have
           provided
           this
           Treatise
           upon
           Actions
           of
           slander
           ,
           as
           a
           Bridle
           for
           all
           rash
           and
           inconsiderate
           ●ongues
           ;
           that
           seeing
           the
           mischiefe
           they
           may
           the
           better
           know
           how
           to
           avoyd
           it
           .
        
         
           And
           here
           I
           shall
           lay
           downe
           this
           as
           a
           generall
           rule
           ,
           which
           I
           shall
           by
           the
           way
           as
           I
           goe
           ,
           make
           good
           in
           every
           perticular
           .
        
         
           That
           all
           scandalous
           words
           which
           touch
           or
           concerne
           a
           man
           in
           his
           life
           ,
           Liberty
           ,
           or
           Member
           or
           any
           corporall
           punishment
           ;
           or
           which
           scandall
           a
           man
           in
           his
           Office
           or
           place
           of
           Trust
           ;
           or
           in
           his
           Call●ng
           or
           function
           by
           which
           he
           gaines
           his
           living
           ;
           or
           which
           tend
           to
           the
           slandering
           of
           his
           Title
           or
           his
           disinheritance
           ;
           or
           to
           the
           losse
           of
           his
           advance
           ,
           me
           it
           ,
           or
           preferment
           ,
           or
           any
           other
           particular
           damage
           ;
           or
           lastly
           which
           charge
           a
           man
           to
           have
           any
           dangerous
           infectious
           disease
           ,
           
           by
           reason
           of
           which
           he
           ought
           to
           seperate
           himselfe
           ,
           or
           to
           be
           seperated
           by
           the
           Law
           from
           the
           society
           of
           men
           :
           all
           such
           words
           are
           actionable
           .
        
         
           
             And
             first
             for
             the
             first
             part
             of
             this
             Rule
             viz.
          
           Scandalous
           words
           which
           touch
           or
           concerne
           a
           man
           in
           his
           life
           ;
           such
           words
           are
           actionable
           .
        
         
           If
           a
           man
           call
           another
           Traitor
           ,
           
           Felon
           Theefe
           ,
           or
           Murderer
           ,
           an
           Action
           lies
           for
           these
           words
           ,
           because
           they
           call
           a
           mans
           life
           in
           question
           .
           
        
         
           So
           it
           is
           all
           one
           if
           one
           shall
           say
           of
           another
           that
           he
           killed
           or
           murdered
           
             I.
             S.
          
           
           or
           that
           he
           stole
           his
           good●
           ,
           or
           that
           he
           poysoned
           him
           ,
           if
           it
           appeare
           to
           be
           intended
           to
           be
           wittingly
           done
           ,
           or
           the
           like
           ,
           these
           words
           likewise
           are
           Actionable
           ,
           as
           appeares
           by
           the
           Bookes
           in
           the
           Margent
           .
        
         
           So
           if
           one
           shall
           say
           of
           another
           he
           hath
           burnt
           my
           B●●ne
           with
           Corne
           ,
           
           which
           is
           Felony
           ,
           this
           likewise
           will
           beare
           an
           Action
           .
        
         
           I
           have
           a
           Report
           of
           a
           case
           which
           was
           thus
           :
           a
           Servant
           of
           one
           Mr.
           
             Roger
             Brook
          
           said
           of
           one
           Mis.
           
             Margaret
             Passey
          
           that
           she
           sent
           a
           Letter
           to
           his
           Master
           ,
           and
           in
           the
           said
           letter
           willed
           his
           Master
           to
           poyson
           his
           Wife
           
             Bridget
             Brooke
          
           ,
           and
           in
           this
           
           case
           it
           is
           ,
           said
           that
           upon
           a
           Writ
           of
           Error
           brought
           in
           the
           Cnequer
           Chamber
           it
           was
           resolved
           ,
           
           the
           words
           were
           actionnable
           ,
           and
           the
           judgement
           affirmed
           ,
           which
           case
           I
           confesse
           I
           much
           doubt
           ,
           because
           here
           was
           but
           bare
           advise
           ,
           and
           nothing
           appearing
           to
           be
           done
           ;
           like
           
             Eatons
             ▪
          
           case
           in
           Cooks
           4
           Booke
           .
        
         
           Where
           the
           Defendant
           said
           of
           the
           Plaintiffe
           that
           
             Hee
             gave
             his
             Champion
             Councell
             to
             make
             a
             D●ed
          
           of
           gift
           of
           his
           goods
           to
           kill
           him
           ,
           &c.
           adjudged
           that
           the
           words
           were
           not
           Actionable
           ,
           because
           that
           the
           purpose
           or
           intent
           of
           a
           man
           without
           act
           ,
           is
           not
           punishable
           by
           the
           Law.
           
        
         
           And
           I
           conceive
           it
           will
           not
           be
           like
           the
           case
           ,
           
           put
           by
           
             Tanfi●ld
             Iust.
          
           in
           Harris
           and
           Hixons
           case
           ,
           where
           he
           saith
           that
           to
           say
           of
           another
           ,
           that
           he
           lay
           in
           wait
           to
           Rob
           or
           to
           murder
           
             I.
             S.
          
           will
           beare
           an
           Action
           ,
           because
           that
           he
           accuses
           him
           of
           an
           act
           viz.
           The
           preparation
           and
           lying
           in
           wait
           ,
           which
           is
           punishable
           by
           the
           Law
           ;
           but
           in
           the
           former
           case
           there
           is
           nothing
           but
           bare
           advise
           ,
           
           which
           is
           not
           punishable
           by
           the
           Law.
           
        
         
           Hawly
           brought
           an
           Action
           upon
           the
           case
           against
           Sydnam
           for
           these
           words
           ;
           h●
           
           is
           infected
           of
           the
           Robery
           and
           Murder
           lately-committed
           ,
           and
           smels
           of
           the
           murder
           ,
           adjudged
           that
           the
           words
           were
           actionable
           ,
           by
           reason
           of
           the
           word
           infected
           .
        
         
           One
           said
           of
           another
           thou
           diddest
           kill
           a
           Woman
           great
           with
           Child
           ,
           
           
             innuendo
             Iocosam
             Vxocem
             cuiusdam
             R.
             S.
             defunct
             .
          
           and
           rules
           by
           the
           Court
           that
           the
           Action
           wold
           lie
           ,
           though
           that
           the
           woman
           were
           utterly
           incertain
           ,
           because
           that
           the
           offence
           ,
           and
           the
           party
           intended
           to
           commit
           it
           ,
           is
           certaine
           ,
           and
           t
           is
           not
           like
           the
           case
           ,
           where
           one
           said
           that
           there
           is
           one
           in
           this
           company
           ;
           who
           hath
           committed
           a
           murder
           ,
           there
           it
           is
           incertain
           of
           whom
           the
           words
           were
           spoken
           ,
           and
           cannot
           possibly
           bee
           ayded
           by
           an
           
             (
             innuendo
          
           )
           but
           here
           the
           words
           are
           Actionable
           without
           an
           
             (
             innuendo
          
           )
           but
           quaere
           whether
           the
           Action
           would
           lie
           or
           no
           because
           there
           is
           no
           expresse
           averrement
           that
           the
           Woman
           was
           dead
           for
           the
           
             (
             innuendo
          
           )
           will
           not
           be
           suffitient
           .
           
        
         
           Hassellwood
           brought
           an
           Action
           against
           Garr●t
           for
           these
           words
           (
           amongst
           others
           agreed
           not
           to
           be
           actionable
           )
           whosoever
           is
           he
           that
           is
           falsest
           Theefe
           ,
           and
           strongest
           in
           the
           County
           of
           Salop
           ,
           whatsoever
           
           he
           hath
           stollen
           ,
           or
           whatsoever
           he
           hath
           done
           .
           
           
             Thomas
             Hasselwood
          
           is
           falser
           then
           hee
           resolved
           that
           these
           words
           are
           actionable
           ,
           with
           an
           averrement
           that
           there
           are
           Felons
           within
           the
           County
           of
           Salop
           ,
           but
           for
           defan●t
           of
           such
           averrement
           ,
           the
           judgement
           being
           given
           in
           the
           Common
           Pleas
           was
           reve●ed
           in
           this
           Court.
           
           
        
         
           Stoner
           brought
           an
           Action
           for
           words
           against
           Gambell
           ,
           and
           declares
           that
           the
           De●endant
           
             dixit
             deprefato
          
           :
           the
           Plaintiffe
           thou
           innuendo
           ,
           &c.
           hast
           stollen
           my
           Goods
           ;
           and
           upon
           not
           guilty
           pleaded
           ,
           the
           Iury
           found
           for
           the
           Plaintiffe
           ,
           and
           in
           arrest
           of
           judgement
           it
           was
           said
           ,
           that
           the
           Count
           was
           nought
           for
           the
           words
           are
           in
           the
           second
           person
           ,
           
           and
           it
           is
           not
           all
           adged
           that
           the
           Plaintiffe
           was
           present
           at
           the
           speaking
           of
           them
           .
           
             Et
             Tota
             Curia
             contra
          
           ,
           for
           
             dixit
             deprefato
          
           ,
           is
           as
           much
           as
           
             Dixit
             ad
             prefatum
          
           ,
           for
           cannot
           he
           say
           thou
           hast
           of
           the
           Plaintiffe
           ,
           except
           that
           it
           were
           spoken
           to
           him
           ?
           and
           rule
           was
           given
           for
           judgement
           .
           
        
         
           One
           ●●●mans
           said
           of
           Hext
           ,
           I
           do
           not
           doubt
           but
           within
           two
           dayes
           to
           Arrest
           Hext●or
           ●or
           suspition
           of
           Fellony
           :
           adjudged
           that
           the
           words
           were
           Actionable
           ,
           because
           
           that
           for
           suspition
           of
           Felony
           ,
           hee
           shall
           be
           imprisoned
           and
           his
           life
           drawne
           in
           question
           .
        
         
           
             Hill.
             20.
             
             Iac.
          
           in
           the
           Kings
           Bench
           ,
           Winch
           came
           to
           the
           Barre
           and
           shewed
           a
           Libell
           against
           another
           in
           Court
           Christian
           for
           these
           words
           ,
           thou
           art
           a
           Witch
           and
           dealest
           with
           Witchery
           ,
           and
           diddest
           procure
           Mother
           Bale
           to
           witch
           the
           Cattell
           of
           
             I.
             S.
          
           and
           upon
           this
           prayed
           a
           prohibition
           ,
           because
           that
           the
           Plaintiffe
           had
           remedy
           at
           Law
           ,
           and
           by
           
             Fenner
             and
             Gawdy
             Iustices
          
           the
           others
           ab●ent
           and
           Prohibition
           lies
           ,
           because
           she
           hath
           remedy
           at
           Law.
           So
           that
           their
           opinion
           was
           that
           an
           Action
           would
           lie
           at
           the
           Common
           Law
           for
           calling
           of
           one
           Witch
           .
        
         
           And
           in
           one
           Edwards
           his
           case
           
             Hill.
             40
             Iac
          
           ,
           
           it
           was
           said
           to
           have
           been
           three
           〈◊〉
           adjudged
           that
           to
           call
           one
           Witch
           would
           beare
           an
           action
           and
           also
           that
           an
           action
           would
           lie
           for
           calling
           ●
           one
           Hagge
           but
           I
           doubt
           of
           the
           latter
           because
           I
           take
           Hag
           to
           be
           a
           doubtfull
           word
           .
           But
           why
           Witch
           should
           not
           beare
           an
           Action
           ,
           I
           know
           no
           reason
           ,
           
           being
           t●e
           life
           may
           be
           thereby
           drawne
           in
           question
           ,
           though
           I
           know
           it
           hath
           beene
           doubted
           .
        
         
           Marshall
           brought
           an
           Action
           against
           
           Steward
           for
           saying
           the
           Devill
           appeares
           to
           thee
           every
           night
           in
           the
           likenesse
           of
           a
           black
           man
           riding
           upon
           a
           black
           Horse
           ,
           and
           thou
           conferrest
           with
           him
           ,
           and
           whatsoever
           thou
           dost
           aske
           he
           gives
           it
           thee
           ,
           and
           that
           is
           the
           reason
           thou
           hast
           so
           much
           money
           ,
           adjudged
           the
           words
           were
           Actionable
           .
           
             Note
             Reader
          
           ,
           that
           by
           the
           Statute
           of
           10
           of
           King
           
             Iames
             cap.
          
           12.
           
           Conjuration
           or
           consultation
           with
           the
           Devill
           ,
           is
           Felony
           .
        
         
           In
           the
           case
           of
           
             Hawes
             Mich.
          
           17.
           of
           the
           King
           that
           now
           is
           ,
           
           this
           case
           was
           put
           and
           agreed
           by
           the
           Iudges
           ;
           
           one
           said
           of
           another
           that
           hee
           had
           received
           a
           
             〈◊〉
             ,
             Priest
          
           ,
           adjudged
           actionable
           ,
           because
           it
           is
           Felony
           ,
           he
           might
           receive
           a
           Romish
           Priest
           and
           yet
           not
           know
           him
           to
           be
           so
           ,
           (
           like
           the
           cases
           I
           have
           put
           you
           afterwards
           ,
           therefore
           Quere
           .
        
         
           Sir
           
             Iohn
             Sydenham
          
           against
           
             Timothy
             Man
             Clark
          
           I
           think
           in
           my
           conscience
           that
           if
           Sir
           
             Iohn
             Sydenham
          
           might
           have
           his
           will
           ,
           
           he
           would
           kill
           all
           the
           Subjects
           in
           
             England
             ▪
          
           and
           the
           King
           too
           ,
           and
           he
           is
           a
           maintainer
           of
           Papistry
           and
           
             Rebellious
             Persons
          
           .
           These
           words
           upon
           a
           Writ
           of
           Error
           in
           the
           Exchequer
           Chamber
           were
           adjudged
           actionable
           .
        
         
         
           It
           seemes
           somewhat
           hard
           to
           me
           Reader
           that
           words
           of
           thoug●t
           or
           opinion
           only
           should
           beare
           an
           Action
           as
           here
           in
           the
           former
           words
           .
           
           And
           for
           the
           latter
           words
           ,
           that
           he
           is
           a
           maintainer
           of
           
             Rebellious
             Persons
          
           ;
           they
           are
           Adjective
           only
           ,
           
           and
           do
           not
           import
           any
           Act
           of
           rebellion
           in
           those
           Persons
           ,
           but
           only
           an
           inclination
           to
           it
           ,
           but
           of
           this
           more
           hereafter
           .
        
         
           If
           a
           man
           say
           of
           another
           that
           he
           doth
           like
           or
           approve
           of
           those
           that
           maintaine
           sedition
           against
           the
           King.
           
           I
           conceive
           that
           these
           words
           are
           actionable
           and
           sedition
           is
           a
           violent
           and
           publique
           thing
           ,
           of
           which
           he
           cannot
           but
           have
           notice
           .
        
         
           This
           Rule
           was
           agreed
           by
           the
           Iudges
           in
           the
           debate
           of
           a
           case
           in
           the
           Kings
           Bench
           ,
           
           that
           many
           words
           (
           though
           of
           themselves
           they
           be
           not
           actionable
           yet
           being
           equivolent
           to
           words
           that
           are
           actionable
           ,
           will
           beare
           on
           Action
           .
        
         
           And
           it
           was
           said
           by
           
             Iones
             Iustice
          
           ,
           that
           in
           Yorkshire
           strayning
           of
           a
           Mare
           is
           all
           one
           with
           Buggering
           of
           a
           Mare
           and
           therefore
           he
           said
           that
           an
           action
           will
           sie
           for
           these
           words
           ,
           with
           an
           averrement
           that
           they
           tantamount
           to
           Buggering
           of
           a
           Mare
           .
           Note
           by
           his
           opinion
           in
           such
           
           
           
           
           
           case
           there
           must
           be
           an
           averrement
           of
           the
           m●●●ning
           or
           importance
           of
           the
           words
           .
           
        
         
           Yet
           my
           Lord
           Hobart
           hath
           severall
           cases
           adjudged
           where
           a
           man
           brought
           an
           action
           for
           Welch
           words
           ,
           
           and
           did
           not
           averre
           what
           the
           words
           did
           import
           in
           English
           ,
           and
           yet
           judgement
           was
           given
           for
           the
           Plaintiffe
           ,
           and
           the
           Court
           tooke
           information
           upon
           Oath
           by
           VVelchmen
           what
           the
           words
           meant
           in
           English.
           
           
        
         
           And
           in
           one
           of
           the
           cases
           Serjeant
           
             Iohn
             Moore
          
           then
           informed
           t●●
           Court
           that
           judgement
           had
           bin
           given
           in
           the
           Kings
           Bench
           in
           the
           case
           of
           Tu●h
           upon
           these
           words
           ▪
           
           
             Thou
             art
             a
             healer
             of
             Fellons
          
           without
           any
           aver●ement
           ,
           how
           the
           words
           were
           taken
           ;
           because
           the
           Court
           was
           informed
           and
           tooke
           knowledge
           that
           in
           some
           Counties
           it
           was
           taken
           for
           a
           smotherer
           of
           Felons
           .
        
         
           The
           ca●
           intended
           by
           Serjeant
           Moore
           was
           I
           conceive
           the
           case
           of
           Pridham
           and
           Tucker
           in
           the
           Kings
           Bench
           ,
           
           where
           the
           words
           were
           adjudged
           actionable
           ,
           without
           an
           averrement
           and
           in
           this
           case
           ●t
           was
           agreed
           that
           words
           may
           be
           slanderons
           in
           one
           County
           and
           not
           in
           another
           for
           in
           Norf
           they
           know
           not
           what
           healer
           signifieth
           ,
           
           but
           this
           being
           in
           De●●nshire
           
           where
           this
           word
           is
           used
           for
           concealer
           of
           Theeves
           ,
           will
           be
           actionable
           .
        
         
           And
           I
           take
           this
           to
           be
           generally
           true
           that
           in
           all
           cases
           where
           a
           mans
           life
           may
           be●
           drawne
           in
           question
           by
           scandalous
           words
           ,
           that
           such
           words
           are
           Actionable
           .
        
         
           
             And
             now
             I
             shall
             cite
             a
             case
             or
             two
             ,
          
           where
           words
           spoken
           which
           such
           a
           mans
           life
           ,
           which
           are
           by
           way
           of
           interrogation
           ,
           or
           by
           way
           of
           hearesay
           or
           relati●n
           ;
           or
           lastly
           by
           way
           of
           negation
           only
           and
           yet
           will
           beare
           an
           Action
           .
        
         
           It
           was
           said
           at
           the
           Kings
           Bench
           Barre
           [
           which
           I
           heard
           and
           observed
           ]
           that
           it
           had
           bin
           adjudged
           in
           this
           Court
           in
           one
           Appletons
           case
           ,
           
           that
           where
           a
           man
           said
           to
           another
           where
           is
           my
           Peece
           thou
           sto●lest
           from
           me
           ,
           
           that
           these
           words
           were
           Actionable
           .
           
        
         
           And
           
             Iones
             Iustice
          
           then
           said
           that
           he
           remembred
           this
           case
           to
           be
           adjudged
           .
           A.
           said
           that
           B.
           told
           him
           that
           C.
           stole
           a
           Horse
           ;
           but
           he
           did
           not
           beleeve
           him
           ,
           that
           these
           words
           ▪
           with
           an
           averrement
           that
           B.
           did
           not
           say
           any
           such
           thing
           to
           A.
           were
           actionable
           .
           
        
         
           Agreeing
           with
           this
           case
           is
           the
           Lady
           Morrisons
           case
           Widdow
           ,
           who
           brought
           an
           action
           for
           words
           against
           
             VVilliam
             
             C●de
          
           Esquier
           ,
           and
           declares
           that
           she
           was
           of
           good
           fame
           ,
           &c.
           and
           that
           Henry
           Earle
           of
           Kent
           was
           in
           speech
           and
           communication
           with
           her
           concerning
           Marriage
           ,
           the
           Defendant
           
             pre●●issorum
             non
             ignarus
          
           ,
           said
           these
           words
           ,
           Arsoot
           hath
           reported
           that
           he
           hath
           had
           the
           use
           of
           the
           Lady
           Morrisons
           body
           at
           his
           pleasure
           ;
           
             ubi
             revera
             Arscot
          
           did
           never
           report
           it
           ;
           and
           alledges
           that
           the
           Earle
           of
           Kent
           upon
           the
           hearing
           of
           these
           words
           surceased
           his
           suit
           ,
           by
           which
           she
           lost
           her
           advancement
           .
           &c.
           adjudged
           that
           the
           words
           were
           Actionable
           though
           spoken
           upon
           the
           report
           of
           another
           ,
           for
           otherwise
           a
           man
           might
           malitiously
           raise
           slanderous
           Reports
           of
           another
           ,
           and
           should
           never
           bee
           punished
           for
           it
           .
        
         
           But
           in
           this
           case
           
             Tanfield
             Iustice
          
           said
           ,
           that
           if
           it
           had
           beene
           expressely
           alledged
           ,
           that
           in
           truth
           it
           was
           so
           reported
           by
           Arscot
           ,
           then
           an
           action
           would
           not
           lie
           against
           Cade
           for
           saying
           that
           Arscot
           reported
           it
           ,
           because
           it
           is
           true
           that
           he
           did
           so
           .
        
         
           And
           
             Bartley
             Iustice
          
           said
           that
           an
           action
           had
           bin
           brought
           for
           these
           words
           ,
           
           
             You
             are
             no
             Theefe
          
           .
           In
           which
           there
           was
           an
           averrement
           ,
           which
           implied
           an
           affirmative
           ,
           and
           agreed
           to
           be
           Actionable
           ,
           and
           
           Appletons
           case
           was
           then
           agreed
           for
           Law.
           
        
         
           A.
           said
           to
           
             Is.
             hast
             thou
             beene
             at
          
           London
           
             to
             change
             the
             money
             thou
             stollest
             from
             me
             ?
          
           
           In
           this
           case
           it
           was
           objected
           ,
           that
           these
           words
           were
           not
           actionable
           ,
           
           because
           that
           they
           are
           spoken
           onely
           by
           way
           of
           interrogation
           ,
           and
           are
           no
           direct
           affirmative
           .
           But
           
             Iones
             and
             Barily
             Iustices
          
           (
           the
           others
           being
           absent
           )
           both
           said
           that
           the
           words
           were
           actionable
           ;
           for
           the
           first
           words
           ,
           
             Hast
             thou
             been
             at
             London
             ,
             &c.
          
           are
           the
           only
           words
           of
           interrogation
           ,
           and
           the
           subsequent
           words
           ,
           viz.
           
             The
             mony
             thou
             stollest
             from
             mee
             ,
          
           is
           a
           positive
           affirmation
           ;
           and
           
             Ba●tley
             Iust.
          
           then
           said
           ,
           that
           it
           had
           beene
           oftentimes
           adjudged
           that
           words
           of
           interrogation
           should
           be
           taken
           as
           a
           direct
           affirmation
           ,
           which
           ,
           
             Iones
             Just.
          
           also
           agreed
           ,
           and
           further
           said
           that
           this
           case
           had
           bin
           adjudged
           .
        
         
           One
           said
           to
           another
           ,
           
           I
           dreamt
           this
           night
           that
           you
           stole
           a
           horse
           ,
           these
           words
           were
           adjudged
           actionable
           .
           And
           he
           said
           that
           if
           these
           and
           the
           like
           words
           should
           not
           beare
           an
           action
           ,
           a
           man
           might
           bee
           as
           abusive
           as
           he
           pleased
           ,
           and
           by
           such
           subtill
           words
           as
           these
           always
           avoyd
           an
           action
           .
        
         
           And
           how
           I
           will
           put
           you
           a
           case
           or
           two
           ,
           
           
             where
             words
             which
             imply
             an
             affirmative
             shall
             be
             actionable
             .
          
        
         
           One
           said
           of
           another
           ,
           
           he
           would
           prove
           he
           had
           stollen
           his
           books
           .
           In
           this
           case
           the
           opinion
           of
           the
           Court
           was
           that
           the
           words
           were
           actionable
           ,
           because
           they
           imply
           an
           affirmative
           ;
           and
           are
           as
           much
           as
           if
           hee
           had
           said
           ,
           that
           he
           had
           stollen
           his
           Books
           .
           And
           so
           if
           I
           will
           say
           of
           another
           ,
           that
           I
           will
           bring
           him
           before
           a
           Justice
           of
           Peace
           ,
           for
           I
           will
           prove
           that
           he
           hath
           stollen
           ,
           &c.
           though
           the
           first
           words
           are
           not
           actionable
           ,
           yet
           the
           last
           are
           .
        
         
           Whitaer●s
           brought
           an
           action
           against
           Lavington
           for
           these
           words
           ;
           
           I
           will
           prove
           that
           Whytacre
           is
           for
           sworne
           ,
           and
           that
           ten
           men
           can
           justifie
           ,
           and
           I
           could
           prove
           him
           perjured
           if
           I
           would
           ▪
           adjudged
           that
           the
           words
           were
           actionable
           ,
           for
           that
           it
           is
           a
           great
           slander
           to
           be
           reported
           that
           it
           is
           in
           the
           power
           of
           any
           one
           to
           prove
           one
           perjured
           ;
           and
           it
           is
           as
           a
           direct
           affirmance
           .
        
         
           It
           will
           be
           proved
           by
           many
           vehement
           presumptions
           ,
           
           that
           Welby
           was
           a
           plotter
           and
           contriver
           of
           
             Thomas
             Powels
          
           death
           because
           hee
           would
           not
           sell
           his
           Land
           to
           the
           said
           Welby
           ;
           adjudged
           the
           words
           were
           actionable
           .
        
         
           And
           now
           I
           have
           shewne
           you
           the
           affirmative
           
           part
           ,
           where
           words
           which
           touch
           or
           concerne
           a
           mans
           life
           shall
           bee
           actionable
           .
           I
           shall
           now
           shew
           unto
           you
           the
           negative
           part
           ,
           where
           words
           in
           such
           case
           shall
           not
           be
           actionable
           .
        
         
           Words
           that
           touch
           or
           concern
           a
           mans
           life
           may
           not
           be
           actionable
           in
           these
           cases
           :
           Where
           they
           are
           too
           generall
           ,
           or
           not
           positively
           affirmative
           ;
           or
           of
           a
           double
           or
           indifferent
           meaning
           ,
           or
           doubtefull
           in
           sence
           ;
           or
           for
           that
           they
           are
           incertaine
           in
           themselves
           ,
           or
           the
           person
           of
           whom
           they
           are
           spoken
           ;
           or
           else
           by
           reason
           of
           the
           subsequent
           qualification
           of
           the
           words
           ,
           or
           because
           they
           doe
           not
           import
           an
           Act
           ,
           but
           an
           intent
           ,
           or
           inclination
           only
           to
           it
           ;
           or
           for
           that
           they
           are
           impossible
           ,
           or
           lastly
           ,
           because
           it
           doth
           appeare
           that
           the
           speaking
           of
           them
           could
           be
           no
           dammage
           to
           the
           pla●ntiffe
           ,
           in
           all
           these
           cases
           the
           words
           will
           not
           be
           actionable
           .
        
         
           And
           first
           ,
           words
           that
           are
           too
           generall
           ,
           or
           not
           positively
           affirmative
           ,
           will
           not
           bee
           actionable
           .
        
         
           To
           say
           of
           a
           man
           that
           he
           deserves
           to
           be
           hanged
           ;
           
           adjudged
           not
           actionable
           ,
           because
           they
           are
           too
           generall
           ,
           for
           that
           hee
           doth
           not
           shew
           any
           thing
           that
           hee
           hath
           done
           to
           deserve
           it
           :
           and
           b●
           
             Yelverton
             Iustice
          
           ,
           hee
           may
           deserve
           it
           for
           unnaturall
           
           using
           of
           his
           Parents
           ,
           and
           the
           like
           ,
           where
           he
           shall
           not
           bee
           punished
           by
           the
           Law.
           
        
         
           
             Cooke
             ,
             lib.
             4.
             f.
             15.
             b.
             Yeomans
          
           and
           Hexts
           case
           ▪
           for
           my
           ground
           in
           
             Allerton
             Hext
             seekes
             my
             life
          
           ,
           adjudged
           not
           actionable
           ,
           because
           seeking
           his
           life
           is
           to
           generall
           ,
           for
           which
           there
           is
           no
           punishment
           .
        
         
           So
           if
           I
           say
           of
           another
           that
           it
           is
           in
           my
           power
           to
           hang
           him
           ,
           
           adjudged
           not
           actionable
           ,
           in
           Pr●dham
           and
           Tuckers
           case
           cited
           before
           ,
           because
           the
           words
           are
           too
           generall
           .
        
         
           
             Iames
             Steward
          
           brought
           an
           action
           against
           B●shop
           for
           saying
           of
           him
           ,
           
           that
           hee
           wa●
           in
           Warwicke
           Gao●e
           for
           stealing
           of
           a
           Mare
           and
           other
           Beasts
           ,
           and
           adjudged
           ,
           that
           the
           words
           would
           not
           beare
           an
           action
           because
           they
           doe
           not
           affirme
           directly
           that
           he
           did
           steale
           them
           ;
           as
           if
           he
           had
           said
           that
           he
           stole
           them
           ,
           and
           was
           in
           Goale
           for
           it
           ▪
           but
           onely
           make
           report
           of
           his
           imprisonment
           and
           the
           supposed
           reason
           of
           it
           ,
           and
           it
           may
           very
           well
           be
           ,
           that
           the
           Warrant
           of
           Mittimus
           was
           for
           stealing
           expressely
           ,
           as
           is
           the
           common
           forme
           of
           making
           of
           the
           Kalender
           of
           the
           Prisoners
           for
           the
           Justices
           of
           Assize
           ,
           and
           the
           like
           .
        
         
         
           
             Georg
             Bla●d
          
           brought
           an
           action
           against
           
             A.
             B.
          
           for
           saying
           that
           he
           was
           Indicted
           for
           Felony
           at
           such
           a
           Sessions
           ;
           
           it
           was
           said
           ,
           that
           it
           was
           questioned
           ,
           whether
           an
           action
           would
           lie
           ,
           because
           an
           Indictment
           is
           but
           a
           surmise
           .
           But
           I
           conceave
           that
           it
           is
           without
           question
           ,
           that
           no
           action
           wil●
           lie
           in
           such
           case
           ;
           because
           that
           to
           say
           a
           man
           was
           indicted
           of
           Felony
           ,
           is
           no
           more
           then
           to
           say
           hee
           was
           impeached
           or
           accused
           for
           Felony
           ,
           which
           an
           honest
           man
           may
           bee
           ;
           and
           is
           no
           positive
           affirmation
           that
           hee
           had
           committed
           Felony
           ,
           and
           so
           it
           hath
           bin
           often
           adjudged
           ,
           I
           will
           only
           cite
           one
           case
           in
           the
           point
           .
        
         
           Hasselwood
           brought
           an
           action
           against
           Garret
           for
           these
           words
           ;
           
           
             I
             can
             finde
             in
             this
             Parish
             a
             falser
             knave
             then
          
           Briscoe
           
             is
             the
             which
          
           Briscoe
           
             is
             indicted
             of
             Felony
             &
             burglary
             ,
             and
             is
             gone
             to
          
           Stafford
           
             Goale
             ;
             and
             that
             false
             kn●ve
             is
          
           Thomas
           Hasselwood
           ,
           &c.
           it
           was
           adjudged
           that
           these
           words
           are
           not
           actionable
           because
           that
           Briscoe
           might
           be
           indicted
           and
           yet
           be
           an
           honest
           man.
           
        
         
           
             Thou
             hast
             laye●
             in
             Fullers
             Tubbe
             ,
          
           
           
             in
             which
             none
             come
             ,
             but
             those
             that
             have
             the
             Pox
          
           adjudged
           the
           words
           were
           nor
           actionable
           ,
           because
           this
           is
           no
           direct
           affi●mation
           
           that
           the
           Plaintiffe
           had
           the
           Pox.
           
        
         
           
             Poland
             brought
             an
             Action
             against
             Mason
             ,
          
           
           
             for
             saying
             ,
             I
             charge
             him
          
           (
           meaning
           the
           P●aint●ffe
           )
           
             with
             Felony
             ,
             &c.
          
           adjudged
           the
           words
           were
           not
           actionable
           ,
           because
           that
           he
           doth
           not
           affirme
           that
           he
           is
           a
           Felon
           ,
           but
           doth
           onl●
           say
           ,
           that
           he
           doth
           charge
           him
           with
           Felony
           ,
           which
           he
           may
           do
           in
           some
           cases
           ▪
           though
           he
           did
           not
           the
           fact
           ▪
           as
           if
           a
           Felony
           were
           done
           ▪
           and
           the
           common
           fame
           were
           ▪
           that
           he
           did
           it
           any
           one
           that
           suspects
           him
           may
           charge
           him
           with
           it
           .
        
         
           Hen●y
           brought
           an
           Action
           against
           Fit●h
           for
           these
           words
           ;
           
           
             I
             arrest
             you
             for
             Felony
          
           :
           agreed
           that
           the
           words
           were
           not
           actionab●e
           for
           this
           is
           no
           positive
           charge
           that
           hee
           was
           a
           Felon
           ,
           and
           this
           may
           bee
           lawfully
           done
           upon
           a
           common
           fame
           as
           is
           said
           before
           ,
           thus
           you
           see
           that
           words
           that
           are
           not
           directly
           affirmative
           wil
           not
           beare
           an
           action
           .
        
         
           Yet
           you
           may
           see
           before
           fol.
           7.
           where
           words
           which
           imply
           an
           affirmative
           only
           shall
           be
           actionable
           ,
           as
           to
           say
           ,
           that
           I
           will
           prove
           that
           you
           stole
           my
           Books
           ,
           or
           the
           like
           ,
           but
           of
           this
           sufficient
           .
        
         
           Secondly
           ,
           
           Words
           that
           are
           of
           a
           double
           or
           indiff●rent
           meaning
           ,
           The
           Law
           wil
           take
           
           in
           the
           best
           sence
           for
           the
           Speaker
           ,
           and
           s●
           adjudge
           them
           actionable
           ,
           for
           the
           rule
           of
           Law
           is
           
             (
             as
             I
             have
             said
             before
             )
          
           that
           verba
           accipienda
           sunt
           in
           mitiori
           sensu
           :
        
         
           
             Yeomans
             and
             Hexts
             case
             cited
             before
             ,
          
           
           
             for
             my
             land
             in
             Allerton
             ,
             Hext
             seekes
             my
             life
             ,
             &c.
          
           adjudged
           these
           words
           were
           not
           actionable
           ,
           because
           he
           may
           seeke
           his
           life
           lawfully
           upon
           just
           cause
           ;
           and
           his
           Land
           may
           be
           holden
           of
           him
           ,
           and
           so
           in
           
             mitiori
             s●nsu
          
           .
        
         
           Barham
           brought
           an
           Action
           upon
           the
           case
           against
           Nethersall
           ,
           
           and
           the
           words
           were
           Master
           
             B●rham
             did
             burn
             my
             barne
             ,
             (
             innuendo
             a
             Barue
             with
             Corne
             ]
             with
             his
             owne
             hands
             ,
             and
             none
             but
             he
             :
          
           and
           after
           verdict
           it
           was
           moved
           in
           arrest
           of
           judgment
           ,
           that
           the
           words
           were
           not
           actionable
           ,
           for
           it
           is
           not
           felony
           to
           burn
           a
           Barne
           ,
           if
           it
           be
           not
           parcell
           of
           a
           Mansion
           house
           ,
           nor
           full
           of
           Corne
           ;
           And
           in
           such
           case
           
             agitur
             civiliter
          
           ,
           and
           not
           criminaliter
           :
           and
           words
           must
           be
           taken
           in
           
             mitiori
             sensu
          
           ;
           and
           the
           innuendo
           will
           not
           serve
           when
           the
           words
           themselves
           are
           not
           slanderous
           .
        
         
           Ieams
           his
           case
           ,
           
           hang
           him
           he
           is
           full
           of
           the
           Pox
           ,
           I
           marvaile
           that
           you
           will
           eate
           or
           drinke
           with
           him
           ,
           &c.
           
             adjudged
             that
             the
             
             words
             wer●
             no●
             actionable
             ,
             because
             they
             shall
             bee
             taken
          
           in
           mitiori
           sensu
           
             for
             the
             small
             Pox
             and
             not
             the
             French
             Pox.
             
          
        
         
           But
           no●e
           that
           in
           Hawtry
           and
           Miles
           case
           cited
           afterwards
           it
           was
           said
           by
           
             Fenner
             Iust
          
           :
           
           that
           to
           say
           that
           a
           man
           is
           layd
           of
           the
           Pox
           ,
           will
           beare
           an
           Action
           ;
           because
           that
           is
           the
           phrase
           for
           the
           French
           Pox.
           
        
         
           
             Adrian
             Coote
          
           brought
           an
           Action
           against
           
             Adrian
             Gilbert
          
           for
           these
           words
           ;
           
           
             Thou
             art
             a
             Thi●fe
             and
             hast
             stollen
             a
             Tree
          
           adjudged
           that
           the
           words
           were
           not
           actionable
           ▪
           and
           agreed
           that
           there
           is
           no
           difference
           betweene
           ▪
           
             and
             thou
             hast
             stollen
             ,
             and
             for
             thou
             hast
             stollen
          
           ;
           for
           in
           common
           acceptation
           (
           and
           )
           is
           to
           bee
           understood
           to
           be
           but
           a
           verifying
           and
           making
           good
           of
           the
           generall
           word
           
             (
             Theefe
          
           )
           and
           then
           a
           Tree
           shall
           bee
           understood
           rather
           of
           a
           Tree
           standing
           then
           felled
           ;
           which
           can
           bee
           no
           Felony
           or
           Theft
           for
           that
           a
           man
           cannot
           steale
           a
           mans
           inheritance
           .
        
         
           So
           Clarke
           brought
           an
           Action
           against
           Gilbert
           for
           these
           words
           ;
           
           
             thou
             art
             a
             Theefe
             and
             hast
             stollen
             twenty
             load
             of
             my
             Furz
          
           adjudged
           that
           the
           action
           would
           not
           lie
           for
           the
           reasons
           given
           in
           the
           former
           case
           .
        
         
         
           The
           like
           Law
           is
           ,
           
           if
           a
           man
           say
           of
           another
           that
           he
           hath
           stollen
           his
           Apples
           ,
           or
           his
           Corne
           ,
           or
           robbed
           his
           Hoppe
           ground
           ,
           or
           the
           like
           ,
           the
           Law
           in
           these
           cases
           will
           adjudge
           them
           rather
           growing
           ,
           then
           gathered
           or
           cut
           downe
           ,
           and
           so
           the
           words
           not
           Actionable
           .
        
         
           Thus
           it
           is
           evident
           ,
           that
           where
           the
           words
           may
           be
           taken
           in
           a
           double
           or
           an
           indifferent
           meaning
           that
           the
           Law
           will
           ever
           take
           them
           best
           for
           the
           Speaker
           .
           I
           shall
           only
           put
           one
           case
           more
           upon
           this
           ground
           and
           so
           passe
           it
           over
           .
        
         
           Pawlin
           brought
           an
           Action
           against
           Ford
           for
           these
           words
           ,
           
           thou
           art
           a
           Theevish
           rogue
           ,
           and
           hast
           stollen
           my
           Wood.
           It
           was
           in
           this
           case
           said
           at
           Barre
           the
           Action
           would
           not
           lie
           ,
           because
           it
           should
           be
           construed
           rather
           to
           be
           wood
           standing
           then
           cut
           downe
           ,
           like
           those
           cases
           put
           before
           .
        
         
           But
           
             Bramston
             chiefe
             Iustice
          
           seemed
           to
           incline
           that
           the
           words
           were
           actionable
           ▪
           because
           that
           [
           wood
           ]
           cannot
           be
           otherwise
           intended
           then
           of
           Wood
           cut
           down
           according
           to
           the
           old
           verse
           ;
           
             Arbor
             du●
             crescit
             ▪
             lignum
             dum
             crescere
             nescu
             ,
          
           and
           so
           it
           was
           adjourned
           without
           more
           saying
           .
        
         
         
           Note
           Reader
           ,
           
           according
           to
           the
           opinion
           of
           
             Bramston
             Chiefe
             Iustice
          
           ,
           betwixt
           Litchfield
           and
           Saunders
           for
           the
           same
           words
           ,
           hee
           hath
           stollen
           my
           wood
           ,
           to
           which
           the
           defendant
           demurred
           ,
           it
           was
           adjudged
           that
           the
           Action
           would
           lie
           ,
           for
           
             Tanfield
             Iustice
          
           said
           that
           the
           words
           shall
           be
           intended
           according
           to
           the
           most
           usuall
           sence
           ,
           
           viz.
           That
           it
           was
           Lignum
           ,
           and
           not
           Arbor
           ,
           as
           if
           one
           say
           that
           the
           Plaintiffe
           hath
           committed
           a
           murder
           ▪
           it
           shall
           not
           be
           intended
           that
           he
           hath
           mu●dered
           a
           Hare
           ,
           but
           a
           man.
           
        
         
           You
           may
           here
           observe
           
             (
             Reader
          
           )
           that
           though
           words
           of
           a
           double
           or
           indifferent
           meaning
           ought
           to
           be
           taken
           in
           the
           best
           intendment
           for
           the
           speaker
           as
           I
           have
           sufficiently
           cleared
           it
           unto
           you
           yet
           they
           ought
           not
           to
           be
           taken
           contrary
           to
           common
           intendment
           .
        
         
           For
           as
           you
           shall
           not
           straine
           words
           to
           an
           intent
           not
           apparent
           ,
           to
           make
           them
           actionable
           ,
           so
           you
           must
           not
           wr●st
           them
           contrary
           to
           common
           intent
           ,
           to
           make
           them
           no●
           actionable
           this
           is
           apparent
           by
           Sanders
           his
           case
           immediatly
           before
           ,
           where
           it
           is
           adjudged
           that
           to
           say
           of
           another
           you
           have
           stollen
           my
           Wood
           ,
           shal●
           be
           intended
           to
           be
           Lignum
           ,
           and
           not
           Arbor
           ,
           
           and
           so
           actionable
           ,
           so
           to
           say
           of
           a
           man
           that
           he
           hath
           committed
           a
           murder
           ,
           shall
           not
           be
           understood
           murdering
           of
           a
           Har●
           ,
           but
           a
           Man.
           
        
         
           Dame
           Morrison
           brought
           an
           Action
           against
           
             VVilliam
             Cade
          
           Esquier
           a●d
           declared
           that
           she
           was
           of
           good
           same
           ,
           
           &c.
           and
           that
           Henry
           Earle
           of
           Kent
           was
           in
           speech
           and
           communication
           with
           her
           for
           mariage
           ,
           the
           defendant
           
             pr●misso
             um
             non
             ignarus
          
           said
           these
           words
           Arscot
           hath
           reported
           that
           he
           hath
           had
           the
           use
           of
           the
           Lady
           Morrisons
           body
           at
           his
           pleasure
           ;
           
             ubi
             revera
             Arscot
          
           never
           reported
           it
           .
           And
           further
           alledges
           that
           the
           E.
           of
           Kent
           upon
           the
           hearing
           of
           these
           words
           surceased
           his
           suit
           by
           which
           she
           lost
           her
           advancement
           ,
           the
           Defendant
           pleaded
           not
           guilty
           ,
           and
           it
           was
           found
           for
           the
           Plaintiffe
           .
           It
           was
           moved
           by
           
             Hobart
             Atturney
             Gener●ll
          
           that
           the
           words
           were
           not
           actionable
           for
           this
           reason
           amongst
           others
           all
           ruled
           against
           him
           ●
           because
           that
           the
           words
           had
           the
           use
           of
           her
           Body
           were
           incertain
           and
           of
           a
           double
           intendmen●
           ,
           and
           therfore
           should
           bee
           taken
           in
           the
           best
           sence
           to
           have
           the
           use
           of
           her
           body
           as
           a
           Tailor
           in
           measuring
           ▪
           or
           a
           Phisitian
           in
           giving
           Phisick
           or
           the
           like
           ,
           and
           not
           in
           any
           worse
           ●ence
           .
        
         
         
           But
           by
           
             Popham
             chiefe
             Iustice
          
           the
           words
           are
           actionable
           ,
           
           when
           words
           are
           spoken
           that
           may
           have
           a
           double
           intent
           or
           meaning
           ,
           they
           shall
           bee
           expounded
           according
           to
           common
           intent
           for
           otherwise
           he
           which
           intends
           to
           slander
           another
           ,
           may
           speak
           slanderous
           words
           ,
           which
           by
           common
           intendment
           sha●l
           be
           expounded
           a
           slander
           and
           yet
           no
           Action
           lie
           .
           And
           here
           the
           words
           hath
           had
           the
           use
           of
           her
           body
           at
           his
           pleasure
           shall
           not
           be
           intended
           in
           any
           lawfull
           manner
           ,
           but
           licentiously
           and
           dishonestly
           for
           this
           is
           the
           common
           intent
           ,
           with
           whom
           all
           the
           other
           Justices
           agreed
           .
        
         
           Thirdly
           ,
           
           where
           the
           words
           are
           doubtful
           in
           sence
           or
           meaning
           ,
           there
           likewise
           they
           will
           not
           be
           actio●able
           .
        
         
           To
           say
           that
           a
           man
           smells
           of
           a
           murder
           lately
           committed
           ,
           will
           not
           beare
           an
           Action
           ,
           
           because
           the
           words
           are
           of
           a
           dubious
           sence
           and
           intendment
           .
        
         
           Bradshaw
           brought
           an
           Action
           against
           VValker
           for
           these
           words
           ;
           thou
           art
           a
           filching
           fellow
           ,
           and
           d●ddest
           ●●lch
           from
           
             VVilliam
             Parson
          
           a
           100.
           l.
           adjudged
           that
           the
           words
           were
           not
           actionable
           ,
           because
           that
           they
           are
           of
           incertaine
           sence
           and
           meaning
           .
        
         
         
           So
           to
           call
           one
           Harlot
           will
           not
           beare
           an
           action
           .
           
           And
           upon
           this
           ground
           I
           conceive
           (
           as
           I
           have
           said
           before
           )
           that
           to
           call
           a
           Woman
           Hagge
           ,
           will
           not
           be
           Actionable
           .
        
         
           So
           to
           say
           of
           a
           man
           that
           he
           is
           a
           Healer
           of
           Felons
           ;
           or
           that
           he
           strained
           a
           Mare
           as
           the
           cases
           are
           before
           put
           ;
           will
           not
           be
           actinable
           ,
           because
           of
           their
           doubtfull
           sence
           and
           meaning
           without
           the
           words
           be
           ●
           spoken
           to
           such
           who
           knows
           the
           meaning
           and
           intendment
           of
           them
           .
        
         
           Fourthly
           ,
           where
           the
           words
           themselves
           are
           incertaine
           ,
           or
           the
           persons
           of
           whom
           they
           are
           spoken
           ,
           in
           such
           case
           they
           will
           not
           be
           Actionable
           .
        
         
           A●d
           first
           for
           the
           incertainty
           of
           the
           words
           ;
           
           that
           is
           ,
           when
           the
           scandall
           is
           not
           certaine
           and
           apparent
           in
           the
           words
           themselves
           .
        
         
           Note
           Reader
           that
           all
           the
           cases
           put
           before
           upon
           the
           double
           or
           indifferent
           meaning
           of
           words
           are
           apt
           to
           this
           purpose
           .
           As
           those
           thou
           hast
           stollen
           my
           Apples
           ,
           or
           my
           Corne
           ,
           or
           so
           many
           load
           of
           my
           Furres
           ,
           or
           a
           Tree
           ,
           or
           the
           like
           the
           words
           in
           these
           cases
           are
           not
           Actionable
           ,
           because
           the
           scandall
           is
           not
           apparent
           and
           certaine
           by
           the
           words
           ;
           for
           in
           every
           of
           these
           cases
           ▪
           ●for
           ought
           appeares
           by
           the
           
           words
           ]
           the
           thing
           said
           to
           be
           stollen
           might
           be
           growing
           ,
           and
           then
           it
           is
           a
           Trespasse
           only
           and
           no
           felony
           ,
           and
           to
           charge
           a
           man
           with
           a
           Trespasse
           ,
           will
           not
           be
           actionable
           .
        
         
           But
           if
           the
           words
           were
           ,
           thou
           hast
           stollen
           my
           Apples
           out
           of
           my
           Loft
           ,
           my
           Corne
           out
           of
           my
           Barne
           ,
           or
           my
           Fu●z
           or
           Wood
           out
           of
           my
           Yeard
           ,
           in
           such
           case
           the
           words
           would
           be
           actionable
           ,
           because
           the
           scandall
           is
           apparent
           ,
           for
           that
           it
           is
           evident
           by
           the
           words
           they
           were
           not
           growing
           .
        
         
           
             Edward
             Miles
          
           brought
           an
           Action
           against
           
             Francis
             Iacob
          
           for
           these
           words
           ,
           
           thou
           hast
           poysoned
           Smith
           &c.
           upon
           a
           Writ
           of
           Error
           in
           the
           Chequer
           Chamber
           it
           was
           adjudged
           ,
           that
           the
           Action
           would
           not
           lie
           ,
           because
           it
           did
           not
           appeare
           by
           the
           words
           that
           it
           was
           done
           wittingly
           .
           
        
         
           Gibs
           and
           Ienkins
           case
           to
           say
           of
           a
           man
           that
           he
           boare
           away
           money
           ,
           or
           the
           like
           will
           not
           be
           Actionable
           .
        
         
           A.
           said
           of
           B.
           that
           he
           tooke
           away
           money
           from
           him
           with
           a
           strong
           hand
           ,
           
           for
           which
           ,
           B.
           brought
           an
           Action
           ,
           adjudged
           that
           it
           would
           not
           lie
           .
        
         
           
             Bramstan
             chief●
             Iustice
          
           in
           the
           argueing
           of
           Hawes
           Case
           ,
           
             Mich.
             1●
          
           .
           of
           this
           
           King
           in
           the
           Kings
           Bench
           ,
           remembred
           this
           case
           ;
           he
           did
           assault
           me
           and
           tooke
           away
           my
           purse
           from
           me
           ;
           and
           hee
           said
           that
           it
           was
           adjudged
           that
           the
           words
           were
           not
           Actionable
           .
           
           The
           reason
           of
           these
           cases
           ,
           is
           because
           that
           for
           ought
           appeares
           by
           the
           words
           (
           which
           are
           of
           them selves
           uncertaine
           )
           these
           might
           be
           Trespasses
           only
           ,
           and
           no
           Felony
           .
        
         
           Againe
           ,
           where
           the
           person
           scandalized
           is
           uncertaine
           ,
           no
           Action
           will
           lie
           .
        
         
           If
           one
           say
           (
           without
           any
           precedent
           communication
           of
           any
           person
           incertaine
           )
           that
           one
           of
           the
           Servants
           of
           B.
           (
           he
           having
           divers
           )
           is
           a
           notorious
           Felon
           or
           Traytor
           ,
           
           &c.
           here
           fore
           the
           incertainety
           of
           the
           person
           no
           action
           lyes
           ;
           neither
           can
           it
           be
           made
           good
           by
           an
           (
           innuendo
           .
           )
        
         
           So
           ,
           
           if
           one
           say
           generally
           I
           know
           one
           neere
           about
           B.
           that
           is
           a
           notorious
           theefe
           ,
           or
           the
           like
           ,
           no
           action
           will
           lie
           ,
           for
           the
           same
           reason
           .
        
         
           So
           as
           it
           is
           in
           Fleetwoods
           case
           in
           Hobarts
           Reports
           ;
           
           if
           a
           man
           say
           ,
           lookeing
           upon
           three
           persons
           one
           of
           these
           murdered
           a
           man
           ,
           no
           action
           will
           lie
           for
           these
           words
           by
           reason
           of
           the
           incertainety
           of
           the
           person
           ,
           neither
           can
           an
           innuendo
           ,
           
           helpe
           the
           incertainety
           ;
           and
           note
           Reader
           that
           these
           cases
           are
           not
           like
           Wisemans
           Case
           .
        
         
           Wiseman
           of
           Grayes-Inne
           ,
           brought
           an
           Action
           against
           Wiseman
           of
           Lincollins-Inne
           his
           Brother
           for
           these
           words
           ,
           
           my
           Brother
           [
           meaning
           the
           plaintiffe
           ]
           is
           perjured
           ,
           and
           I
           will
           justifie
           it
           ,
           upon
           not
           guilty
           pleaded
           ,
           it
           was
           found
           for
           the
           Plaintiffe
           ,
           and
           it
           was
           moved
           in
           arrest
           of
           judgement
           that
           the
           words
           were
           not
           certaine
           enough
           to
           ground
           an
           Action
           upon
           ,
           because
           the
           Plaintiffe
           might
           have
           more
           Brothers
           ,
           and
           it
           doth
           not
           appeare
           of
           which
           of
           them
           the
           words
           were
           spoaken
           ,
           but
           it
           was
           resolved
           that
           the
           action
           would
           well
           lie
           ,
           because
           it
           is
           alledged
           that
           they
           were
           spoken
           of
           the
           Plaintiffe
           ,
           and
           the
           Jury
           have
           found
           accordingly
           ;
           and
           here
           
             Tanfield
             Iustice
          
           tooke
           this
           difference
           ;
           where
           the
           words
           themselves
           are
           incertaine
           ,
           as
           to
           say
           ,
           one
           of
           my
           Brothers
           is
           perjured
           ,
           there
           they
           can
           never
           be
           made
           good
           by
           any
           averrement
           ,
           but
           where
           the
           words
           are
           certaine
           in
           themselves
           ,
           so
           that
           it
           may
           appeare
           that
           the
           Speaker
           intended
           a
           person
           certaine
           ;
           there
           they
           may
           bee
           made
           certaine
           by
           such
           a
           Declaration
           ,
           and
           the
           finding
           of
           the
           Iury.
           
        
         
         
           And
           it
           was
           said
           that
           if
           it
           were
           true
           that
           there
           were
           divers
           Brothers
           ,
           the
           Defendant
           should
           have
           pleaded
           it
           ,
           and
           then
           issue
           should
           have
           beene
           taken
           ,
           whether
           the
           words
           were
           spoken
           of
           the
           Plaintiffe
           or
           no.
           
        
         
           Nor
           are
           the
           former
           cases
           like
           a
           case
           which
           I
           cited
           before
           
             Mich.
             2.
             
             Iac.
          
           where
           an
           action
           was
           brought
           for
           these
           words
           ;
           
           Thou
           diddest
           kill
           a
           Woman
           great
           with
           Childe
           ,
           
             [
             innuend
             ▪
             Iocosam
             Vxorem
             cujusdam
             R.
             S.
             defunct
             ]
          
           where
           it
           was
           ruled
           that
           though
           the
           Woman
           were
           utterly
           incertaine
           ,
           yet
           because
           the
           Offence
           ,
           and
           the
           party
           intended
           to
           commit
           it
           were
           certaine
           ,
           the
           Action
           would
           well
           lie
           .
        
         
           Foxcroft
           brought
           an
           Action
           against
           Lacy
           and
           declared
           that
           a
           communication
           was
           moved
           betweene
           
             Iohn
             VValter
          
           ,
           
           and
           
             Richard
             Guyn
          
           Esquiers
           concerning
           a
           certaine
           Suit
           ,
           wherein
           the
           Plaintiffe
           and
           certaine
           others
           were
           Defendants
           ,
           and
           that
           the
           Defendant
           Lacy
           upon
           the
           said
           communication
           in
           their
           presence
           ,
           
           spake
           these
           words
           ;
           these
           Defendants
           [
           meaning
           the
           Plaintiffe
           ,
           and
           the
           others
           ]
           are
           those
           that
           helped
           to
           murder
           
             Henry
             Farrar
          
           (
           meaning
           one
           
           
             Hen.
             Farrer
          
           deceased
           who
           was
           murdered
           by
           one
           
             T.
             Guldfield
          
           ,
           who
           was
           hangd
           for
           it
           ,
           adjudged
           the
           words
           were
           actionable
           ,
           and
           that
           they
           were
           as
           sufficiently
           layed
           to
           entitle
           every
           of
           the
           defendants
           to
           a
           severall
           Action
           ,
           as
           if
           they
           had
           beene
           specially
           named
           ,
           here
           you
           see
           the
           words
           may
           be
           sufficiently
           certaine
           by
           relation
           .
        
         
           Fifthly
           ,
           where
           former
           words
           actionable
           are
           qualified
           with
           subsequent
           words
           not
           Actionable
           ,
           there
           though
           the
           former
           words
           spoaken
           generally
           ,
           aud
           by
           themselves
           would
           have
           maintained
           an
           Action
           ,
           yet
           now
           ,
           taking
           altogether
           ,
           they
           will
           not
           bee
           Actionable
           .
        
         
           Thou
           art
           a
           Theefe
           ,
           for
           thou
           hast
           stolen
           my
           Apples
           out
           of
           my
           Orchard
           ;
           or
           ,
           for
           thou
           hast
           robbed
           my
           Hopground
           ,
           or
           ,
           for
           thou
           hast
           stollen
           a
           Tree
           ;
           or
           ,
           for
           thou
           hast
           stollen
           my
           Furzes
           ;
           as
           I
           have
           put
           you
           the
           cases
           before
           .
           Or
           ,
           thou
           art
           a
           Theefe
           ,
           and
           thou
           hast
           stollen
           my
           aples
           out
           of
           my
           Orchard
           ;
           or
           ,
           and
           thou
           hast
           robbed
           my
           Hop
           ground
           ,
           &c.
           [
           aud
           ]
           and
           [
           for
           ]
           have
           both
           one
           and
           the
           same
           signification
           in
           these
           cases
           ,
           as
           I
           have
           cleered
           it
           to
           you
           before
           to
           be
           adjudged
           ;
           and
           in
           all
           these
           cases
           no
           Action
           will
           lie
           .
        
         
         
           For
           [
           as
           I
           have
           said
           before
           ]
           the
           latter
           words
           do
           qualifie
           the
           former
           ,
           for
           the
           former
           words
           say
           him
           to
           be
           a
           Theefe
           ,
           but
           the
           latter
           prove
           him
           to
           be
           no●e
           .
           I
           have
           given
           the
           reason
           before
           ,
           because
           that
           in
           all
           these
           cases
           ,
           the
           Law
           which
           will
           alwayes
           construe
           words
           the
           best
           for
           the
           Speaker
           ,
           will
           take
           the
           Apples
           ,
           Hopes
           &c.
           to
           be
           growing
           ,
           and
           then
           it
           is
           Trespasse
           only
           and
           not
           fellony
           to
           take
           them
           away
           because
           felony
           as
           I
           have
           told
           you
           before
           ]
           cannot
           bee
           committed
           of
           that
           which
           is
           parce
           ▪
           of
           a
           mans
           inheritance
           as
           these
           are
           whilst
           they
           are
           growing
           .
        
         
           Britteridge
           brought
           an
           Action
           for
           these
           words
           ;
           
           Britteridge
           is
           a
           perjured
           old
           knave
           ,
           and
           that
           is
           to
           be
           proved
           by
           a
           Stake
           ,
           parting
           the
           land
           of
           
             H.
             Martin
          
           ,
           and
           
             M.
             VVright
          
           ,
           adjudged
           that
           the
           words
           are
           not
           actionable
           ,
           because
           though
           the
           former
           words
           would
           beare
           an
           Action
           ,
           the
           latter
           do
           so
           qualifie
           and
           extenuate
           them
           ,
           that
           taking
           altogether
           they
           are
           not
           actionable
           for
           the
           latter
           words
           do
           explaine
           his
           intent
           ,
           that
           hee
           did
           not
           intend
           any
           judiciall
           perjury
           ;
           also
           it
           was
           impossible
           ,
           that
           a
           Stake
           could
           prove
           him
           perjured
           ,
           and
           therefore
           for
           the
           impossibility
           ,
           and
           insensibility
           of
           
           the
           words
           the
           action
           would
           not
           lie
           .
        
         
           Sixtly
           ,
           where
           the
           words
           doe
           not
           import
           an
           Act
           ,
           but
           an
           intent
           only
           ,
           or
           an
           inclination
           to
           it
           ,
           there
           such
           words
           [
           except
           where
           they
           s●and
           all
           a
           man
           in
           his
           function
           or
           profession
           ]
           will
           not
           beare
           an
           Action
           .
        
         
           If
           a
           man
           say
           of
           another
           that
           he
           is
           a
           seditious
           knave
           ,
           
           or
           a
           theevish
           knave
           ;
           or
           a
           traiterous
           knave
           ;
           these
           words
           will
           not
           beare
           an
           Action
           ;
           because
           that
           the
           words
           do
           not
           import
           that
           he
           hath
           done
           or
           is
           guilty
           of
           Sedition
           ,
           Felony
           ,
           or
           Treason
           ,
           but
           are
           Adjective
           words
           ,
           which
           import
           an
           inclination
           to
           it
           only
           .
        
         
           But
           if
           a
           man
           say
           of
           another
           that
           hee
           is
           a
           parjured
           knave
           ,
           an
           Action
           will
           lie
           for
           these
           words
           ,
           because
           that
           the
           Adjective
           [
           perjured
           ]
           presumeth
           an
           Act
           committed
           ,
           or
           otherwise
           hee
           cannot
           be
           perjured
           .
        
         
           Besides
           ,
           
           Adjective
           words
           will
           beare
           an
           Action
           ▪
           when
           they
           scandall
           a
           man
           in
           his
           office
           ,
           Function
           or
           Trade
           ,
           by
           which
           he
           doth
           acquire
           his
           living
           ,
           though
           they
           do
           not
           import
           an
           Act
           done
           .
        
         
           My
           Lord
           Cooke
           cites
           this
           case
           adjudged
           ,
           24.
           
           Eliz.
           between
           
             Philips
             Parson
          
           of
           D.
           and
           Badby
           ,
           in
           an
           action
           brought
           for
           these
           words
           ,
           
             thou
             hast
             
             a
             seditious
             Sermon
             ,
             and
             moved
             the
             people
             to
             sedition
             this
             day
             :
          
           resolved
           that
           the
           words
           were
           actionable
           ,
           notwithstanding
           that
           the
           first
           part
           of
           the
           words
           were
           utter
           adjective
           ,
           and
           the
           last
           words
           were
           but
           a
           motive
           to
           sedition
           ,
           and
           it
           doth
           not
           appeare
           that
           any
           thing
           ensued
           ;
           yet
           because
           that
           they
           scandall
           the
           Plaintiffe
           in
           his
           function
           ,
           they
           were
           adjudged
           actionable
           .
        
         
           So
           ,
           
           if
           a
           man
           say
           of
           a
           Merchant
           ,
           that
           hee
           is
           a
           Bankruptly
           Knave
           ,
           or
           a
           Bankrupt
           Knave
           ,
           these
           words
           will
           beare
           an
           action
           ,
           though
           that
           the
           Bankrupt
           bee
           adjective
           .
        
         
           Or
           if
           one
           say
           of
           a
           Merchant
           ,
           
             that
             he
             will
             be
             Bankrupt
             within
             two
             dayes
             ,
          
           which
           imports
           but
           an
           inclination
           ,
           ●y●t
           an
           action
           will
           lie
           ;
           for
           these
           scandalls
           reach
           to
           the
           profession
           .
        
         
           So
           if
           a
           man
           say
           of
           an
           Officer
           or
           Judge
           ,
           
           
             that
             hee
             is
             a
             corrupt
             Officer
             or
             Iudge
             ,
          
           though
           the
           words
           be
           adjective
           yet
           an
           action
           lyeth
           for
           both
           causes
           ;
           first
           because
           the
           words
           touch
           him
           in
           his
           Office
           ,
           and
           then
           because
           they
           doe
           import
           an
           act
           done
           .
        
         
           
             Hob.
             Kep
             .
             pag.
             12.
             pl.
             17.
             
             Yardly
             ,
          
           and
           Ellill●
           case
           ,
           to
           say
           of
           an
           Atorney
           ,
           
             that
             
             he
             is
             a
             bribing
             knave
             ,
          
           will
           beare
           an
           action
           ,
           though
           the
           words
           be
           adjective
           .
        
         
           Words
           likewise
           that
           import
           an
           intent
           only
           ,
           will
           not
           beare
           an
           action
           .
        
         
           The
           defendant
           said
           of
           the
           ●laintiffe
           
             for
             he
             is
             a
             brabler
             &
             a
             quarreller
             he
             gave
             his
             Champion
             counsell
             to
             make
             a
             Deed
             of
             gift
             of
             his
             goods
             to
             kill
             me
             ▪
          
           &c.
           
             but
             God
             preserved
             mee
          
           ;
           
           The
           book
           saith
           ,
           that
           it
           was
           strongly
           urged
           ,
           that
           the
           action
           should
           be
           maintainable
           ,
           and
           divers
           cases
           cited
           ,
           which
           I
           will
           remember
           unto
           you
           .
        
         
           
             My
             Lady
          
           Cockeins
           
             case
             for
             these
             words
          
           ;
           
           My
           Lady
           Cockein
           offered
           to
           give
           poyson
           to
           one
           to
           kill
           the
           Child
           in
           her
           body
           .
        
         
           
             Another
             betwixt
          
           Tibets
           and
           Heyne
           in
           Glocester
           
             for
             these
             words
          
           :
           Tibots
           and
           another
           did
           agree
           to
           hire
           one
           to
           kill
           B.
           
        
         
           Also
           Cardinalls
           
             case
             for
             these
             words
          
           ,
           if
           I
           had
           consented
           to
           Master
           Cardinall
           ,
           T.
           H.
           had
           not
           beene
           alive
           .
        
         
           
             And
             the
             Lord
          
           Lumlyes
           case
           ;
           My
           Lord
           Lumley
           hath
           gone
           about
           to
           take
           away
           my
           life
           ,
           against
           all
           Christian
           dealing
        
         
           But
           notwithstanding
           these
           cases
           ,
           the
           book
           saith
           ,
           that
           upon
           great
           deliberation
           and
           advisement
           ,
           it
           was
           adjudged
           ,
           that
           in
           the
           principall
           case
           the
           words
           
           were
           not
           actionable
           ,
           because
           that
           the
           purpose
           or
           intent
           of
           a
           man
           ,
           without
           act
           is
           not
           punishable
           by
           the
           Law.
           My
           L.
           Cooke
           in
           the
           close
           of
           this
           case
           sayes
           ,
           Note
           well
           this
           case
           ,
           and
           the
           casue
           and
           reason
           of
           the
           judgment
           .
        
         
           Certainly
           Reader
           there
           is
           somwhat
           more
           than
           ordinary
           in
           this
           
             (
             Nota
             be●e
          
           )
           of
           my
           Lord
           Cookes
           ;
           and
           the
           reason
           of
           the
           case
           seemes
           to
           intimate
           as
           much
           unto
           us
           ;
           which
           is
           ,
           that
           the
           purpose
           or
           intent
           of
           a
           man
           ,
           without
           act
           ,
           is
           not
           punishable
           by
           the
           law
           ,
           which
           is
           a
           certain
           truth
           .
        
         
           But
           I
           conceive
           it
           is
           as
           true
           ,
           that
           where
           that
           purpose
           or
           intent
           is
           manifested
           by
           an
           overt
           act
           or
           attempt
           that
           that
           is
           punishable
           .
        
         
           Mich.
           4.
           of
           
             King
             Iames
          
           in
           a
           case
           in
           the
           Kings
           Bench
           ,
           
           this
           was
           agreed
           for
           law
           ;
           to
           say
           of
           a
           man
           ,
           that
           hee
           lay
           in
           waite
           to
           assault
           I.
           S.
           with
           an
           intent
           to
           robbe
           him
           ,
           or
           to
           murder
           him
           ,
           an
           action
           lyes
           ,
           because
           that
           hee
           doth
           accuse
           him
           of
           an
           act
           ,
           viz.
           the
           preparation
           and
           lying
           in
           waite
           to
           assault
           him
           ,
           but
           if
           hee
           had
           said
           that
           he
           would
           have
           murdered
           ,
           or
           would
           have
           robbed
           
             I.
             S.
          
           an
           action
           would
           not
           lye
           ,
           because
           hee
           only
           guesses
           at
           his
           imagination
           .
        
         
         
           And
           in
           Harris
           and
           Dixo●s
           case
           in
           the
           Kings
           Bench
           ,
           
           that
           case
           was
           allowed
           for
           law
           by
           
             Tanfield
             Iustice
          
           ,
           where
           hee
           sayd
           that
           if
           one
           say
           of
           another
           ,
           that
           hee
           lay
           in
           waite
           to
           murder
           
             I.
             S.
          
           an
           action
           lyes
           ,
           because
           such
           lying
           in
           waite
           is
           punishable
           by
           the
           law
           .
        
         
           By
           this
           case
           it
           should
           seeme
           ,
           that
           to
           charge
           a
           man
           with
           an
           attempt
           only
           to
           commit
           Felony
           ,
           as
           to
           say
           of
           a
           man
           that
           hee
           offered
           to
           rob
           ,
           or
           to
           poyson
           ,
           or
           to
           murder
           I.
           S.
           that
           these
           should
           be
           actionable
           ;
           for
           I
           think
           the
           like
           punishment
           is
           in
           these
           cases
           ,
           as
           in
           the
           former
           ,
           which
           I
           conceive
           is
           only
           the
           good
           behaviour
           ,
           or
           at
           most
           indictable
           for
           it
           ,
           and
           thereupon
           fined
           .
        
         
           And
           if
           an
           action
           should
           lye
           in
           such
           case
           ;
           by
           the
           same
           reason
           ,
           to
           say
           of
           a
           man
           ,
           that
           he
           is
           a
           common
           Quarreller
           ,
           breaker
           ,
           or
           perturber
           of
           the
           Peace
           ,
           or
           that
           hee
           is
           a
           Riotter
           or
           the
           like
           would
           beare
           an
           action
           ,
           because
           that
           for
           these
           likewise
           the
           good
           behaviour
           is
           grantable
           ,
           and
           likewise
           a
           man
           may
           bee
           indicted
           for
           them
           ,
           therefore
           quaere
           of
           the
           former
           cases
           .
        
         
           Seventhly
           ,
           words
           which
           are
           apparently
           impossible
           ,
           will
           not
           be
           actionable
           .
        
         
         
           Benson
           brought
           an
           action
           against
           Morley
           for
           these
           words
           ;
           
           
             Thou
             hast
             robed
             the
             Church
             (
             innuendo
             Ecclesiam
             sic
             Alhagi
             extra
             ,
             Creplegate
             London
             )
             and
             hast
             stollen
             the
             Leads
             of
             the
             Church
          
           ;
           Upon
           not
           guilty
           pleaded
           it
           was
           found
           for
           the
           plaintiffe
           and
           it
           was
           moved
           in
           arrest
           of
           judgement
           ▪
           that
           the
           words
           were
           not
           actionable
           ,
           because
           the
           Church
           shall
           be
           intended
           the
           Universall
           Church
           ,
           and
           not
           any
           materiall
           Church
           ,
           and
           the
           Church
           Militant
           cannot
           bee
           robbed
           ,
           and
           so
           the
           words
           are
           impossible
           ,
           but
           by
           
             Popham
             ,
             Chiefe
             Iustice
             ,
             and
             Tanfield
             Iustice
             ,
          
           the
           action
           will
           well
           lie
           ,
           and
           so
           it
           was
           adjudged
           ,
           because
           the
           words
           in
           this
           case
           cannot
           be
           intended
           of
           an
           invisible
           Church
           ,
           as
           is
           objected
           ,
           but
           of
           a
           materiall
           Church
           ,
           as
           is
           explained
           by
           the
           subsequent
           words
           ;
           
             and
             hast
             stollen
             the
             leade
             of
             the
             Church
             :
          
           which
           cannot
           bee
           understood
           of
           the
           invisible
           Church
           .
        
         
           In
           this
           case
           Reader
           you
           may
           observe
           that
           it
           is
           admitted
           ,
           that
           to
           say
           of
           a
           man
           
             that
             hee
             ha●h
             robbed
             the
             Church
             ▪
          
           generally
           will
           not
           bee
           actionable
           ;
           because
           that
           it
           shall
           be
           understood
           of
           the
           invisible
           Universall
           Church
           ,
           and
           so
           the
           
           words
           impossible
           ,
           because
           that
           cannot
           be
           robbed
           .
        
         
           So
           ,
           I
           conceive
           to
           say
           of
           a
           man
           ,
           that
           he
           hath
           robbed
           a
           Church
           will
           be
           actionable
           ▪
           because
           this
           must
           of
           necessity
           be
           understood
           of
           some
           perticular
           materiall
           Church
           .
        
         
           Dickes
           
             a
             Brewer
             brought
             an
             action
             against
          
           F●nne
           
             for
             these
             words
          
           ;
           
           I
           will
           give
           a
           picke
           of
           Malt
           to
           my
           Mar●
           ,
           and
           leade
           her
           to
           the
           water
           to
           drinke
           ,
           and
           shee
           shall
           pisse
           as
           good
           beere
           as
           Dickes
           doth
           br●w
           ;
           
             adjudged
             the
             words
             were
             not
             actionable
             ,
             because
             impossible
             ,
             and
             therefore
             they
             could
             be
             no
             scandall
             to
             the
             plaintiffe
             .
          
        
         
           Britteridge
           
             brought
             an
             action
             for
             these
             words
             ,
          
           
           Britteridge
           is
           a
           perjured
           old
           Knave
           ,
           and
           that
           is
           to
           bee
           proved
           by
           a
           stake
           parting
           the
           land
           of
           H.
           Martin
           ,
           and
           M.
           Wright
           ,
           
             adjudged
             the
             words
             were
             not
             actionable
             because
             that
             it
             was
             impossible
             that
             a
             stake
             could
             prove
             him
             perjured
             .
          
        
         
           Lastly
           ,
           where
           it
           doth
           appeare
           that
           the
           speaking
           of
           the
           words
           could
           bee
           no
           dammage
           to
           the
           plaintiffe
           ,
           there
           likewise
           no
           action
           will
           lye
           .
        
         
           The
           Plaintiffe
           shewes
           in
           his
           Count
           ,
           
           
           that
           the
           defendant
           hath
           a
           wife
           yet
           in
           life
           ,
           and
           that
           the
           defendant
           said
           of
           the
           plaintiffe
           ,
           
             Thou
             hast
             killed
             my
             VVife
          
           ;
           adjudged
           that
           the
           words
           were
           not
           actionable
           ,
           because
           that
           it
           doth
           appeare
           by
           the
           plaintiffes
           Declaration
           ,
           that
           the
           Wife
           of
           the
           defendant
           was
           in
           life
           ,
           so
           that
           by
           these
           words
           the
           Plaintiffe
           could
           not
           bee
           in
           any
           jeopardy
           nor
           scandaled
           ,
           or
           damnified
           by
           them
           .
        
         
           The
           like
           case
           was
           put
           in
           〈◊〉
           
             Thomas
             H●lt
          
           and
           Taylors
           case
           Pasch.
           
           5.
           of
           
             King
             Iames
          
           ;
           if
           one
           say
           of
           a
           woman
           .
           
             That
             she
             hath
             murdered
             her
             husband
          
           ;
           and
           shee
           and
           her
           husband
           bring
           the
           action
           ,
           it
           will
           not
           lye
           ,
           because
           it
           doth
           appeare
           by
           the
           Record
           ,
           that
           the
           slander
           is
           not
           prejuditiall
           .
        
         
           And
           as
           when
           it
           doth
           appeare
           by
           the
           Record
           that
           the
           speaking
           of
           the
           words
           could
           be
           no
           dammage
           to
           the
           plaintiffe
           ,
           no
           action
           will
           lye
           .
           So
           where
           the
           speaking
           of
           the
           words
           might
           bee
           a
           dammage
           to
           the
           plaintiffe
           yet
           if
           the
           ground
           of
           t●at
           damnification
           doe
           not
           sufficiently
           appeare
           by
           the
           Record
           ,
           the
           action
           will
           not
           lye
           .
        
         
           A
           br●ught
           an
           action
           against
           B.
           for
           saying
           
             That
             hee
             kept
             false
             waytes
             by
             which
             he
             did
             cousen
             ,
          
           
           &c.
           and
           declared
           
           that
           hee
           gained
           his
           living
           by
           buying
           and
           sel●ing
           ,
           but
           did
           not
           shew
           of
           what
           profession
           he
           was
           ;
           adjudged
           that
           the
           action
           would
           not
           lye
           ,
           because
           it
           cannot
           appeare
           (
           without
           shewing
           of
           his
           profession
           )
           that
           the
           speaking
           of
           the
           words
           could
           bee
           any
           dammage
           to
           the
           Plaintiffe
           .
        
         
           A.
           Brought
           an
           action
           against
           B.
           for
           these
           words
           ;
           
           
             Thou
             hast
             killed
             my
             brother
             [
             innuendo
             G.
             &c.
             fratrem
             ,
             &c.
             nuper
             mortuum
             )
          
           adjudged
           that
           the
           words
           were
           not
           actionable
           ,
           because
           the
           Plaintiffe
           did
           not
           averre
           ,
           that
           hee
           was
           dead
           at
           the
           time
           when
           the
           words
           were
           spoken
           ,
           and
           if
           hee
           were
           living
           ,
           then
           the
           speaking
           of
           the
           words
           could
           be
           no
           slander
           or
           damage
           to
           the
           Plaintif
           ▪
        
         
           So
           where
           a
           man
           brings
           an
           action
           for
           Welsh
           words
           or
           the
           like
           which
           are
           scandelous
           ,
           
           and
           doth
           not
           aver
           ,
           or
           set
           forth
           that
           they
           were
           spoken
           to
           one
           who
           understood
           the
           meaning
           of
           them
           ,
           the
           action
           will
           not
           lye
           ,
           because
           it
           doth
           not
           appeare
           by
           the
           Record
           ,
           that
           the
           speaking
           of
           the
           words
           could
           be
           any
           damage
           to
           the
           Plaintiffe
           .
           For
           if
           they
           were
           spoken
           to
           one
           that
           did
           not
           understand
           the
           meaning
           of
           them
           ,
           no
           action
           would
           
           lie
           ,
           because
           they
           could
           bee
           no
           scandall
           to
           the
           Plaintiffe
           .
        
         
           And
           now
           I
           shall
           adde
           to
           the
           rest
           ,
           only
           this
           one
           ground
           where
           words
           shall
           not
           be
           actionable
           ,
           and
           that
           is
           in
           this
           case
           .
        
         
           VVhen
           a
           man
           is
           charged
           with
           a
           crime
           or
           offence
           by
           scandalous
           words
           ,
           where
           it
           doth
           not
           appeare
           by
           the
           words
           ,
           that
           he
           had
           notice
           or
           knowledge
           of
           the
           ground
           or
           occasion
           of
           the
           crime
           or
           offence
           in
           such
           case
           no
           Action
           will
           lie
           for
           such
           words
           .
        
         
           Bridges
           brought
           an
           Action
           for
           those
           words
           he
           
             (
             prefat
             Bridges
             innuendo
          
           )
           is
           a
           maintainer
           of
           T'heeves
           and
           he
           keepeth
           none
           but
           Theeves
           in
           his
           ●ouse
           ,
           and
           I
           will
           prove
           it
           ,
           upon
           a
           writte
           of
           Error
           in
           the
           Chequer
           Chamber
           ,
           it
           was
           holden
           the
           words
           were
           not
           actionable
           ,
           because
           he
           might
           maintaine
           Theeves
           without
           notice
           ,
           and
           therefore
           the
           first
           Judgement
           was
           reversed
           .
        
         
           Like
           the
           case
           in
           my
           Lord
           Hobarts
           Booke
           where
           an
           Action
           was
           brought
           against
           another
           ,
           for
           saying
           that
           the
           Plaintiffe
           kept
           men
           which
           did
           robbe
           upon
           the
           Highway
           ,
           adjudged
           that
           the
           words
           would
           not
           beare
           an
           action
           ,
           because
           that
           he
           might
           keepe
           them
           and
           
           not
           know
           them
           to
           be
           such
           persons
           .
        
         
           In
           the
           case
           of
           Reade
           and
           Saule
           which
           was
           
             Mich.
             40.
             e●
          
           41.
           of
           the
           Queene
           ,
           
           this
           case
           was
           remembred
           by
           
             Walmesley
             Iustice
             ▪
          
           a
           man
           brought
           an
           action
           in
           that
           Court
           for
           these
           words
           he
           [
           meaning
           the
           Plaintiffe
           ]
           is
           a
           receiver
           of
           Theeves
           ,
           and
           he
           said
           that
           in
           this
           case
           the
           Plaintiffe
           could
           have
           no
           judgement
           ,
           because
           that
           he
           might
           receive
           Theeves
           ,
           and
           yet
           not
           know
           them
           to
           be
           so
           .
        
         
           A.
           said
           of
           B.
           that
           he
           kept
           false
           waites
           for
           which
           B.
           brought
           his
           action
           ;
           
           adjudged
           that
           the
           action
           would
           not
           lie
           ,
           because
           that
           it
           did
           not
           appeare
           that
           he
           did
           use
           them
           ;
           and
           besides
           ,
           for
           that
           hee
           might
           keepe
           false
           waites
           ,
           and
           not
           know
           them
           to
           be
           so
           .
        
         
           The
           case
           of
           Miles
           and
           Iacob
           cited
           before
           is
           likewise
           to
           this
           purpose
           ,
           
           where
           an
           action
           was
           brought
           for
           these
           words
           ,
           thou
           hast
           poysoned
           Smith
           ,
           adjudged
           that
           the
           words
           would
           not
           beare
           an
           action
           ,
           because
           that
           it
           did
           not
           appeare
           that
           he
           did
           it
           wittingly
           .
        
         
           Stanhop
           brought
           an
           action
           against
           Blith
           for
           these
           words
           ;
           
           Mr.
           Stanhop
           hath
           but
           one
           Mannor
           ,
           and
           that
           he
           hath
           got
           by
           swearing
           and
           forswearing
           ,
           resolved
           
           that
           the
           words
           were
           not
           actionable
           ,
           for
           this
           reason
           amongst
           others
           ]
           for
           that
           hee
           might
           recover
           or
           obtaine
           a
           Mannor
           ,
           by
           swearing
           and
           forswaring
           ,
           and
           yet
           he
           not
           procuring
           or
           assenting
           to
           it
           .
        
         
           And
           now
           I
           am
           come
           to
           the
           second
           part
           or
           clause
           of
           that
           generall
           rule
           layed
           downe
           before
           ,
           where
           I
           am
           to
           shew
           you
           .
        
         
           That
           scandalous
           words
           which
           touch
           or
           concerne
           a
           man
           in
           his
           Liberty
           will
           beare
           an
           Action
           .
        
         
           By
           the
           Bookes
           in
           the
           Margent
           the
           Law
           is
           plaine
           ,
           
           that
           if
           I
           publish
           and
           claime
           B.
           to
           be
           my
           Villeine
           ,
           that
           in
           such
           case
           no
           action
           will
           lie
           ,
           because
           I
           my selfe
           claime
           an
           interest
           in
           him
           ,
           and
           the
           Law
           will
           not
           in
           such
           case
           punish
           a
           man
           ;
           for
           then
           no
           man
           durst
           claime
           his
           owne
           for
           feare
           of
           an
           action
           .
        
         
           But
           upon
           these
           Bookes
           I
           conceive
           the
           Law
           is
           evident
           ,
           that
           if
           a
           man
           had
           published
           another
           to
           be
           the
           Villein
           of
           
             I.
             N.
          
           that
           in
           such
           case
           an
           action
           would
           have
           layne
           ,
           because
           these
           words
           tend
           to
           the
           inslaving
           of
           him
           and
           his
           posterity
           ,
           and
           to
           the
           utter
           deprivation
           of
           his
           Libertys
           ,
           which
           the
           Law
           so
           much
           favours
           ,
           for
           ,
           as
           it
           is
           well
           knowne
           ,
           he
           that
           was
           a
           
           Villaine
           ,
           he
           was
           subject
           both
           in
           person
           and
           estate
           to
           the
           will
           of
           the
           Lord
           ,
           so●
           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
           be●
           onely
           against
           a
           penall
           law
           ,
           for
           the
           Statute
           of
           1.
           of
           the
           
             Queen
             cap.
          
           2.
           gives
           a
           penalty
           only
           for
           speaking
           against
           the
           Booke
           of
           Common
           Prayer
           ;
           but
           in
           default
           of
           payment
           thereof
           imprisonment
           .
           And
           hee
           held
           that
           all
           scandalous
           words
           ,
           which
           if
           they
           were
           true
           ,
           would
           make
           a
           man
           lyable
           either
           to
           a
           pecuniary
           or
           a
           corporal
           punishment
           ,
           would
           beare
           an
           action
           .
        
         
           But
           
             Mallet
             Iustice
          
           ,
           and
           
             Bramston
             Chiefe
             Iustice
          
           were
           of
           a
           contrary
           judgment
           ,
           and
           their
           reason
           was
           because
           that
           if
           this
           should
           be
           law
           ,
           it
           would
           be
           a
           great
           occasion
           to
           increase
           and
           multiply
           actions
           for
           words
           ,
           which
           the
           Law
           labours
           to
           suppresse
           as
           much
           as
           may
           be
           for
           then
           all
           words
           spoken
           of
           any
           man
           ,
           which
           if
           they
           were
           true
           would
           subject
           him
           to
           a
           penalty
           ,
           either
           by
           the
           Common
           ,
           or
           the
           Statute
           Law
           would
           beare
           an
           action
           ,
           as
           to
           say
           of
           a
           man
           that
           hee
           hath
           erected
           a
           Cottage
           ,
           or
           committed
           a
           Ryot
           or
           the
           like
           ,
           would
           be
           actionable
           ,
           which
           the
           Law
           will
           not
           suffer
           
           for
           the
           reason
           aforesaid
           ,
           and
           judgment
           was
           given
           accordingly
           .
        
         
           Mallet
           Justice
           in
           the
           arguing
           of
           this
           case
           said
           ,
           that
           there
           was
           an
           action
           then
           pending
           in
           the
           Common-Pleas
           ,
           for
           calling
           of
           a
           man
           Recusant
           ,
           and
           hee
           said
           that
           his
           opinion
           was
           ,
           the
           action
           was
           not
           maintainable
           ,
           I
           never
           heard
           what
           became
           of
           that
           case
           ,
           but
           I
           conceive
           the
           Law
           to
           bee
           with
           Justice
           Mallet
           ;
           for
           though
           there
           bee
           many
           penalties
           and
           forfeitures
           provided
           by
           Statutes
           against
           Recusants
           ,
           yet
           no
           corporall
           punishment
           is
           given
           by
           any
           of
           them
           ;
           no
           not
           after
           conviction
           .
        
         
           Thorneton
           brought
           an
           action
           against
           Iobson
           ,
           
           and
           layed
           that
           he
           was
           a
           Carrier
           ,
           and
           of
           good
           same
           ,
           and
           that
           the
           defendant
           said
           of
           him
           ,
           that
           hee
           was
           a
           common
           Barretor
           .
           In
           this
           case
           the
           booke
           sayes
           ,
           that
           the
           Court
           was
           of
           opinion
           ,
           that
           if
           these
           words
           were
           spoken
           of
           a
           Justice
           of
           Peace
           ,
           or
           publike
           Officer
           ,
           or
           of
           an
           Attorney
           ,
           or
           the
           like
           ,
           that
           they
           would
           beare
           an
           action
           ;
           by
           which
           it
           is
           evident
           the
           Court
           did
           incline
           against
           the
           action
           in
           this
           case
           .
        
         
           In
           an
           action
           upon
           the
           case
           for
           words
           ,
           
           the
           words
           were
           ,
           
             I
             am
             sorry
             for
             thy
             Wife
             
             and
             children
             ,
             thou
             art
             a
             common
             Barretor
             ,
             and
             I
             will
             indict
             thee
             for
             it
             a●
             the
             next
             Assizes
             ,
             &c.
          
           adjudged
           the
           words
           were
           not
           actionable
           ,
           and
           by
           Yelverton
           Justice
           ,
           the
           action
           will
           not
           lye
           for
           saying
           that
           ,
           hee
           is
           a
           Barretor
           ,
           no
           more
           then
           for
           saying
           that
           he
           is
           a
           Riotor
           ,
           a
           peace
           breaker
           ,
           or
           the
           like
           ,
           and
           an
           action
           ,
           will
           not
           lye
           for
           saying
           ,
           that
           a
           man
           is
           a
           Rogue
           .
        
         
           To
           say
           of
           an
           Attorney
           ,
           
           that
           hee
           is
           a
           Champertor
           ,
           will
           beare
           an
           action
           .
           But
           I
           conceive
           upon
           the
           case
           aforesaid
           ,
           that
           to
           say
           of
           one
           ,
           who
           is
           no
           Attorney
           ,
           Justice
           of
           Peace
           ,
           nor
           other
           publike
           Officer
           that
           he
           is
           a
           Champertor
           ,
           or
           a
           common
           maintainer
           of
           suites
           ,
           will
           not
           be
           actionable
           ,
           nor
           is
           it
           actionable
           in
           case
           of
           the
           Atorney
           to
           say
           that
           he
           is
           a
           common
           maintainer
           of
           suites
           .
        
         
           The
           reason
           of
           these
           cases
           may
           bee
           ,
           because
           that
           though
           any
           man
           may
           bee
           indicted
           for
           being
           a
           common
           Barretor
           ,
           Champertor
           ,
           or
           maintainer
           of
           suites
           ,
           and
           thereupon
           fined
           and
           imprisoned
           ;
           yet
           the
           punishment
           is
           only
           the
           Fine
           ,
           and
           the
           imprisonment
           as
           a
           consequent
           or
           incident
           thereunto
           .
        
         
           And
           as
           it
           is
           said
           before
           in
           Hawes
           
           case
           ,
           if
           an
           action
           should
           lye
           in
           these
           cases
           ,
           then
           in
           all
           cases
           ,
           where
           a
           man
           shall
           charge
           a
           man
           with
           a
           crime
           or
           offence
           ,
           for
           which
           a
           man
           might
           be
           indicted
           and
           fined
           ,
           an
           action
           would
           lye
           ;
           which
           would
           occasion
           multitudes
           of
           suites
           of
           this
           nature
           ,
           that
           the
           law
           labours
           so
           much
           to
           suppresse
           .
        
         
           
             And
             now
             I
             have
             shewn
             you
             what
             words
             ,
             which
             touch
             or
             concerne
             a
             man
             in
             member
             ,
             or
             any
             corporell
             punishment
             ,
             will
             beare
             an
             action
             .
             I
             shall
             in
             the
             next
             place
             shew
             you
             what
             words
             in
             such
             case
             will
             not
             be
             actionable
          
           ;
           and
           that
           may
           be
           in
           these
           cases
           ,
           either
           by
           reason
           of
           the
           doubtfull
           or
           indifferent
           meaning
           of
           them
           ;
           or
           of
           the
           incertainty
           of
           the
           words
           themselves
           ,
           or
           of
           the
           persons
           of
           whom
           they
           are
           spoken
           ,
           or
           of
           the
           subsequent
           qualification
           of
           them
           ;
           or
           upon
           the
           other
           grounds
           and
           reasons
           which
           I
           have
           layd
           downe
           before
           .
        
         
           For
           we
           must
           know
           (
           that
           I
           may
           speak
           once
           for
           all
           )
           that
           all
           those
           grounds
           which
           are
           before
           set
           downe
           ,
           wh●re
           words
           shall
           not
           be
           actionable
           ,
           which
           touch
           or
           concerne
           a
           mans
           life
           ;
           will
           agree
           with
           all
           actions
           for
           words
           whatsoever
           ,
           whether
           
           that
           the
           words
           touch
           or
           concerne
           a
           man
           in
           corporall
           punishment
           as
           before
           ;
           or
           in
           his
           Office
           or
           place
           of
           trust
           or
           in
           his
           calling
           or
           function
           by
           which
           he
           gaines
           his
           living
           ,
           or
           the
           like
           ,
           as
           is
           manifested
           likewise
           in
           part
           before
           ,
           and
           shall
           bee
           more
           fully
           hereafter
           ;
           but
           to
           the
           point
           ,
           what
           words
           in
           this
           case
           wil
           not
           be
           actionable
           .
        
         
           Box
           and
           Barnabies
           case
           cited
           before
           ,
           
           to
           say
           of
           an
           Attorny
           ,
           that
           he
           is
           a
           Champertor
           ,
           will
           beare
           an
           action
           .
           But
           to
           say
           that
           he
           is
           a
           common
           maintainer
           of
           suites
           ,
           will
           not
           b●are
           an
           action
           ,
           for
           there
           is
           maintainance
           lawfull
           and
           unlawfull
           ;
           an
           Attorney
           may
           ,
           and
           ought
           to
           maintaine
           his
           Clyents
           cause
           ▪
           and
           an
           Attorney
           may
           well
           bee
           said
           a
           common
           maintainer
           ,
           because
           he
           is
           common
           to
           as
           many
           as
           will
           retaine
           him
           ,
           thus
           you
           see
           ,
           words
           of
           a
           double
           intendment
           ,
           shall
           be
           taken
           best
           for
           the
           Speaker
           ,
           for
           the
           words
           in
           this
           case
           shall
           not
           bee
           intended
           of
           any
           unlawfull
           maintenance
           ,
           but
           of
           a
           lawfull
           maintaining
           of
           his
           Clyents
           causes
           .
        
         
           Stanhope
           brought
           an
           action
           for
           these
           words
           .
           
             Master
             Stanhope
             hath
             but
             one
             Mannor
             ,
             and
             that
             hee
             hath
             gotten
             by
             
             swearing
             and
             forswearing
             :
          
           adjudged
           the
           words
           were
           not
           actionable
           ,
           for
           this
           reason
           [
           amongst
           others
           ]
           because
           ,
           that
           for
           ought
           appeares
           hee
           might
           bee
           forsworne
           in
           ordinary
           communication
           ,
           and
           not
           in
           any
           juditiall
           proceeding
           ,
           which
           is
           not
           punishable
           by
           the
           Law
           ,
           and
           where
           the
           words
           are
           of
           an
           indifferent
           meaning
           ,
           the
           Law
           will
           (
           as
           is
           said
           before
           )
           take
           them
           the
           best
           for
           the
           Speaker
           .
        
         
           Smith
           brought
           an
           action
           for
           these
           words
           ;
           
           
             Thou
             art
             forsworne
             ,
             and
             hast
             taken
             a
             false
             oath
             at
          
           Hereford
           Assizes
           :
           by
           the
           opinion
           of
           Iones
           ,
           and
           
             Bartley
             Iustices
          
           [
           the
           other
           Justices
           absent
           )
           the
           action
           will
           not
           lie
           ,
           because
           that
           hee
           might
           be
           forsworne
           in
           ordinary
           communication
           ,
           otherwise
           if
           hee
           had
           said
           that
           he
           had
           taken
           a
           false
           Oath
           in
           the
           Assises
           ,
           for
           there
           it
           shall
           be
           intended
           that
           he
           forsworne
           himselfe
           in
           a
           juditiall
           proceeding
           .
        
         
           In
           a
           case
           that
           I
           have
           cited
           before
           ,
           which
           was
           
             Mich.
             41.
             
             &
          
           42.
           of
           the
           Queene
           in
           the
           Common
           Pleas
           ;
           this
           case
           was
           remembred
           by
           Willi●ms
           ,
           thou
           art
           ,
           &c.
           thou
           wert
           forsworne
           in
           the
           Kings
           Bench
           ,
           he
           said
           that
           in
           this
           case
           
           the
           Plaintiffe
           could
           have
           no
           judgement
           ,
           because
           of
           the
           double
           intendment
           of
           the
           words
           ,
           for
           they
           may
           bee
           taken
           that
           he
           was
           forsworne
           either
           in
           the
           Court
           or
           the
           Prison
           ,
           and
           the
           best
           shall
           be
           taken
           for
           the
           Speaker
           ,
           viz.
           that
           he
           was
           forsworne
           in
           the
           Prison
           .
        
         
           Weaver
           brought
           an
           Action
           against
           Cariden
           for
           these
           words
           ,
           
           he
           is
           detected
           for
           perjury
           in
           the
           Starchamber
           ,
           adjudged
           that
           the
           Action
           would
           not
           lie
           ,
           because
           that
           an
           honest
           man
           may
           be
           detected
           ,
           but
           not
           convicted
           ,
           and
           every
           one
           who
           hath
           a
           Bill
           of
           perjury
           exhibited
           there
           against
           him
           is
           detected
           ▪
           here
           the
           words
           do
           not
           positively
           affirme
           him
           to
           be
           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-p●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
           Morga●
           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
           ●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.
           adjudged
           not
           Actionable
           .
        
         
           9.
           
           Iac.
           in
           the
           Kings
           Bench
           ,
           
           the
           Overseer
           of
           the
           poore
           hath
           cousened
           the
           poore
           of
           all
           their
           bread
           ,
           this
           was
           likewise
           said
           to
           be
           adjudged
           not
           Actionable
           ;
           but
           I
           doe
           some
           what
           doubt
           of
           this
           case
           ,
           because
           the
           words
           doe
           scandall
           the
           Plaintiffe
           in
           his
           office
           of
           Overseer
           ,
           but
           to
           this
           it
           may
           be
           said
           that
           this
           is
           an
           Office
           of
           burden
           and
           trouble
           ,
           and
           not
           of
           profit
           .
        
         
           26.
           
           Of
           the
           Queene
           in
           the
           Kings
           Bench
           ▪
           Kerby
           and
           VValters
           case
           ,
           
           thou
           art
           a
           false
           knave
           and
           hast
           cousened
           my
           two
           Kinsmen
           ,
           adjudged
           the
           words
           were
           not
           Actionable
           .
        
         
           18.
           
           Of
           the
           Queene
           in
           the
           Kings
           Bench
           ;
           
           Serjeant
           Fenner
           hath
           cousened
           me
           ,
           and
           all
           my
           kindred
           ,
           adjudged
           the
           words
           would
           not
           beare
           an
           Action
           .
        
         
           Out
           of
           which
           cases
           ,
           wee
           may
           (
           by
           the
           way
           )
           observe
           this
           for
           Law
           ;
           
           that
           if
           a
           man
           say
           of
           an
           other
           (
           without
           any
           precedent
           communication
           of
           his
           Office
           ,
           place
           of
           Trust
           ,
           or
           profession
           )
           that
           he
           is
           accusening
           ,
           or
           a
           cheating
           knave●
           ,
           or
           
           that
           he
           hath
           cousened
           any
           man
           thus
           and
           thus
           ,
           that
           no
           Action
           will
           lie
           for
           such
           words
           generally
           spoken
           ,
           otherwise
           if
           they
           be
           spoken
           in
           reference
           to
           a
           mans
           Office
           ,
           place
           of
           trust
           ,
           or
           profession
           .
        
         
           And
           in
           the
           principall
           case
           it
           was
           resolved
           by
           
             Heath
             Iustice
             ,
             and
             Bramston
             chiefe
             Iustice
             ,
          
           (
           the
           other
           Iustices
           being
           absent
           )
           that
           the
           Action
           would
           lie
           ;
           because
           the
           words
           did
           scandall
           him
           in
           his
           place
           of
           Trust
           ,
           and
           they
           said
           it
           was
           not
           materiall
           what
           imployment
           the
           Plaintiffe
           had
           under
           the
           King
           ,
           if
           by
           the
           speaking
           of
           these
           words
           ,
           he
           might
           be
           in
           danger
           of
           loosing
           his
           Trust
           or
           imployment
           .
        
         
           Bray
           brought
           an
           Action
           against
           Hayne
           and
           declared
           that
           where
           he
           had
           beene
           Bayly
           to
           Sir
           
             VVilliam
             M.
          
           Kt.
           for
           three
           yeares
           last
           past
           of
           his
           Land
           in
           C.
           and
           had
           the
           selling
           of
           his
           Corne
           and
           Graine
           ,
           
           the
           Defendant
           said
           these
           words
           unto
           him
           ,
           thou
           art
           a
           cousening
           knave
           ,
           and
           thou
           hast
           cousened
           me
           in
           selling
           false
           measure
           in
           my
           Barley
           ,
           and
           the
           Country
           is
           bound
           to
           curse
           thee
           for
           selling
           with
           false
           measures
           ,
           and
           I
           will
           prove
           it
           ,
           &c.
           adjudged
           the
           words
           were
           
           not
           Actionable
           ,
           for
           every
           falsehood
           charged
           upon
           a
           man
           in
           his
           private
           dealing
           will
           not
           be
           Actionable
           .
           And
           in
           this
           case
           it
           doth
           not
           appeare
           that
           these
           words
           were
           spoken
           of
           any
           sale
           of
           Corn
           whilest
           he
           was
           in
           his
           Office
           of
           Bayliffe
           ,
           
           nor
           of
           his
           Masters
           Corne
           ,
           nor
           to
           the
           damage
           of
           his
           Master
           .
        
         
           But
           it
           was
           agreed
           in
           this
           case
           ,
           that
           if
           he
           had
           beene
           a
           common
           Rider
           or
           Badger
           ,
           and
           had
           beene
           charged
           with
           selling
           false
           measure
           ,
           it
           would
           have
           borne
           an
           Action
           ;
           which
           is
           evident
           ,
           because
           it
           is
           a
           slander
           to
           him
           in
           his
           function
           by
           which
           he
           gaines
           his
           living
           .
        
         
           And
           my
           Lord
           Hobart
           puts
           this
           case
           ;
           if
           a
           man
           [
           saith
           he
           have
           a
           Bayliffe
           ,
           to
           whom
           he
           commits
           the
           buying
           and
           selling
           of
           his
           Corne
           and
           graine
           ,
           and
           gives
           him
           the
           greater
           wages
           in
           respect
           of
           that
           trust
           and
           imployment
           ,
           and
           charges
           him
           to
           have
           deceived
           him
           in
           his
           Office
           ,
           by
           buying
           and
           selling
           of
           false
           measure
           ,
           to
           his
           losse
           or
           damage
           ▪
           this
           will
           beare
           an
           Action
           ,
           because
           this
           discredits
           him
           in
           his
           Office
           ,
           and
           may
           not
           only
           ,
           because
           to
           put
           him
           out
           of
           that
           service
           but
           to
           be
           refused
           of
           all
           others
           ;
           this
           case
           is
           evident
           Reader
           ,
           because
           the
           
           words
           doe
           charge
           him
           with
           selling
           with
           false
           measure
           ,
           whilst
           he
           was
           in
           his
           Office.
           
        
         
           In
           the
           debate
           of
           Sir
           
             George
             Moore
          
           ,
           and
           Fosters
           case
           before
           cited
           ,
           these
           cases
           were
           put
           by
           
             VVilliams
             Iustice
          
           ,
           if
           one
           say
           of
           an
           Arbitrator
           that
           he
           hath
           done
           corruptly
           ,
           and
           hath
           taken
           bribes
           ,
           no
           Action
           will
           lie
           ,
           the
           reason
           may
           be
           ,
           because
           being
           chosen
           by
           the
           parties
           themselves
           ,
           and
           not
           being
           sworne
           ,
           such
           corruption
           is
           not
           puni●hable
           by
           Law
           ,
           nor
           can
           the
           countermaunding
           of
           his
           power
           be
           any
           damage
           to
           him
           .
        
         
           But
           if
           a
           man
           say
           of
           a
           Wayer
           in
           a
           Market
           or
           Faire
           appointed
           to
           way
           betwixt
           the
           buyer
           and
           seller
           ,
           that
           he
           hath
           done
           corruptly
           ,
           and
           hath
           taken
           bribes
           to
           make
           false
           waite
           ,
           an
           Action
           lies
           for
           these
           words
           ,
           because
           hee
           is
           an
           Officer
           .
        
         
           
             Miles
             Fleetwood
          
           Generall
           Receiver
           of
           the
           Court
           of
           Wardes
           for
           the
           King
           ,
           
           brought
           an
           Action
           against
           Curbey
           for
           these
           words
           ;
           Mr.
           Deceiver
           hath
           deceived
           and
           cousened
           the
           King
           ,
           and
           dealt
           fals●y
           with
           him
           ,
           adjudged
           the
           words
           were
           Actionable
           .
        
         
           The
           like
           case
           ,
           where
           one
           said
           of
           an
           
           Auditor
           ,
           that
           he
           was
           a
           Frauditor
           ,
           was
           adjudged
           Actionable
           .
        
         
           An
           Action
           was
           ●rought
           for
           calling
           of
           the
           Plaintiffe
           false
           Justice
           of
           Peace
           
             vil
             his
             similia
          
           .
           
           I
           do
           conceve
           that
           thesewords
           are
           not
           Actionable
           because
           ,
           though
           they
           doe
           re●●ect
           upon
           his
           Office
           ,
           yet
           they
           are
           too
           generall
           .
           But
           the
           Booke
           saith
           that
           these
           words
           
             (
             his
             similia
          
           )
           were
           ordered
           to
           be
           expunged
           or
           drawne
           ou●
           of
           the
           Booke
           ,
           for
           the
           incertainty
           ;
           and
           well
           they
           might
           indeed
           ;
           for
           certainly
           if
           a
           man
           shall
           bring
           an
           Action
           against
           another
           ,
           and
           shall
           declare
           that
           the
           Defendant
           said
           of
           the
           Plaintiffe
           that
           hee
           was
           a
           Rogue
           and
           a
           Theese
           ,
           or
           words
           like
           these
           ,
           or
           to
           this
           effect
           ,
           the
           Action
           will
           not
           lie
           ,
           because
           the
           words
           upon
           the
           very
           face
           of
           the
           Declaration
           are
           utterly
           incertaine
           .
        
         
           The
           Law
           affords
           very
           few
           Cases
           ,
           
             (
             Reader
          
           )
           where
           words
           shall
           not
           be
           actionable
           that
           scandall
           a
           man
           in
           his
           office
           or
           place
           of
           trust
           upon
           those
           grounds
           which
           I
           have
           formerly
           layd
           downe
           .
        
         
           But
           note
           this
           ,
           that
           all
           those
           grounds
           (
           as
           I
           have
           said
           before
           )
           are
           as
           a
           touchstone
           for
           all
           Actions
           for
           words
           whatsoever
           ,
           and
           therefore
           if
           you
           meet
           with
           
           scandalous
           words
           ,
           which
           touch
           a
           man
           in
           his
           Office
           or
           place
           of
           trust
           ,
           examine
           them
           by
           those
           rules
           ,
           if
           they
           be
           too
           generall
           or
           not
           s●fficiently
           possitive
           ,
           or
           if
           of
           a
           double
           intendment
           ,
           or
           doubtfull
           in
           meaning
           ,
           or
           incertaine
           in
           themselves
           ,
           or
           the
           person
           of
           whom
           they
           are
           spoken
           ,
           or
           the
           like
           in
           such
           cases
           they
           will
           not
           be
           actionable
           ,
           and
           therefore
           those
           Rules
           ought
           especially
           to
           be
           observed
           .
        
         
           The
           fourth
           part
           of
           that
           generall
           rule
           which
           I
           have
           laid
           downe
           before
           ,
           and
           which
           in
           course
           I
           must
           now
           speake
           of
           ,
           is
           this
           .
        
         
           That
           words
           spoken
           of
           a
           man
           ,
           which
           scandall
           him
           in
           his
           profession
           or
           function
           by
           which
           he
           gaines
           his
           living
           ,
           will
           beare
           an
           Action
           .
        
         
           Yardleys
           case
           ,
           
           there
           being
           a
           communication
           or
           discourse
           of
           him
           in
           his
           profession
           of
           Attorney
           ,
           one
           said
           that
           hee
           was
           a
           bribing
           knave
           .
        
         
           Boxes
           case
           ,
           
           one
           said
           of
           him
           ,
           being
           an
           Attorney
           ,
           that
           he
           was
           a
           Champertor
           .
        
         
           Byrchlyes
           case
           an
           Attorney
           ;
           
           there
           being
           speech
           of
           his
           dealing
           in
           his
           profession
           one
           said
           to
           him
           ,
           you
           are
           well
           knowne
           to
           be
           a
           corrupt
           man
           ,
           and
           to
           
           deale
           corruptly
           adjudged
           in
           all
           these
           cases
           ;
           that
           the
           words
           ,
           because
           they
           scandall
           a
           man
           in
           his
           profession
           by
           which
           he
           doth
           acquire
           his
           living
           ,
           were
           Actionable
           .
           
        
         
           So
           ,
           by
           the
           opinion
           of
           the
           Court
           ,
           in
           Thornton
           and
           Iobsons
           case
           cited
           before
           ,
           to
           say
           of
           an
           Attorney
           that
           he
           is
           a
           common
           Barretor
           will
           beare
           an
           action
           .
        
         
           Dawtry
           an
           Attorney
           in
           the
           Court
           of
           Ipswich
           brought
           an
           action
           against
           Miles
           for
           these
           words
           ;
           
           Dawtry
           is
           a
           knave
           and
           a
           cousening
           knave
           ,
           and
           hee
           did
           take
           Fees
           of
           both
           hands
           in
           a
           suit
           betweene
           me
           and
           Greene
           ,
           and
           by
           knavery
           suffered
           me
           to
           be
           condemned
           at
           Ipswich
           at
           Greens
           suit
           willfully
           being
           Attorney
           for
           me
           .
           The
           only
           words
           held
           considerable
           in
           this
           case
           were
           these
           ;
           the
           Defendants
           saying
           that
           the
           Plaintiffe
           tooke
           Fees
           of
           both
           hands
           ,
           and
           whether
           this
           would
           amount
           to
           as
           much
           as
           if
           he
           had
           said
           the
           Plaintiffe
           was
           an
           ambidexter
           was
           the
           question
           .
        
         
           Popham
           and
           
             Yelverton
             ,
             Iustices
          
           that
           the
           action
           would
           not
           lie
           ,
           because
           that
           the
           words
           in
           this
           case
           may
           have
           a
           double
           intendment
           ,
           for
           it
           may
           be
           intended
           that
           hee
           tooke
           Fees
           with
           both
           
           hands
           lawfully
           ,
           but
           if
           he
           had
           said
           that
           he
           was
           an
           ambidexter
           ,
           an
           action
           would
           lie
           ,
           for
           this
           is
           
             vox
             artis
          
           ,
           and
           cannot
           bee
           otherwise
           intended
           .
        
         
           
             Fenner
             and
             Williams
             Iustice
             ▪
          
           that
           the
           Action
           would
           lie
           ,
           for
           that
           the
           words
           amount
           to
           as
           much
           as
           ambidexter
           ,
           and
           are
           the
           english
           of
           it
           &
           a
           direct
           affirm●tion
           and
           no
           Metaphor
           ,
           if
           a
           man
           say
           of
           another
           that
           he
           hath
           the
           Pox
           ,
           no
           Action
           will
           lie
           ,
           because
           it
           shall
           be
           intended
           the
           small
           Pox
           ;
           but
           if
           a
           man
           say
           of
           another
           that
           he
           hath
           beene
           laid
           of
           the
           Pox
           ,
           there
           an
           Action
           will
           lie
           ,
           because
           it
           is
           the
           phrase
           for
           the
           French
           Pox.
           
        
         
           I
           do
           rather
           incline
           to
           the
           latter
           opinion
           ,
           because
           (
           as
           hath
           beene
           said
           )
           these
           words
           are
           but
           the
           English
           and
           proper
           meaning
           of
           Ambidextery
           ;
           and
           to
           construe
           them
           to
           a
           taking
           Fees
           with
           both
           hands
           would
           be
           to
           make
           a
           construction
           against
           the
           expresse
           meaning
           of
           the
           words
           ;
           which
           I
           conceive
           the
           Law
           will
           not
           permit
           ;
           and
           the
           rather
           as
           this
           case
           is
           ,
           because
           that
           hee
           doth
           charge
           him
           with
           knavery
           in
           suffering
           of
           him
           wilfully
           to
           be
           condemned
           in
           a
           suit
           ,
           being
           his
           Attorney
           :
           I
           do
           not
           find
           any
           judgement
           in
           the
           case
           ,
           therefore
           I
           shall
           
           leave
           it
           to
           the
           Juditious
           Reader
           .
        
         
           Philips
           Parson
           of
           D.
           brought
           an
           action
           against
           Badby
           for
           these
           words
           thou
           hast
           made
           a
           seditious
           Sermon
           ,
           and
           moved
           the
           people
           to
           sedition
           this
           day
           :
           
           in
           this
           case
           ,
           notwithstanding
           the
           first
           part
           of
           the
           words
           were
           utterly
           Adjective
           ,
           and
           the
           latter
           were
           but
           a
           motive
           to
           sedition
           ,
           and
           it
           doth
           not
           appeare
           that
           any
           thing
           ensued
           thereof
           ;
           yet
           because
           they
           scandaled
           the
           Plaintiffe
           in
           his
           function
           ,
           it
           was
           resolved
           that
           they
           were
           Actionable
           .
        
         
           If
           a
           man
           say
           of
           a
           Merchant
           that
           he
           is
           a
           Bankrupt
           ,
           
           or
           that
           he
           will
           be
           a
           Bankrupt
           within
           two
           dayes
           ,
           the
           words
           are
           actionable
           .
        
         
           Edmunds
           a
           Marchant
           brought
           an
           action
           against
           Whetston
           for
           these
           ;
           
           words
           He
           would
           prove
           that
           Master
           Edmunds
           had
           beene
           a
           Bankrupt
           ,
           and
           had
           agreed
           with
           his
           Cred●itors
           for
           a
           Noble
           in
           the
           pound
           .
           It
           was
           moved
           in
           Arrest
           of
           judgement
           by
           Hucham
           that
           the
           action
           would
           not
           lie
           ,
           because
           that
           the
           speech
           referres
           to
           a
           time
           past
           ,
           and
           though
           that
           he
           were
           once
           a
           Bankrupt
           ,
           yet
           it
           may
           be
           now
           that
           he
           is
           of
           credit
           .
           But
           it
           was
           resolved
           that
           the
           Action
           
           would
           lie
           ,
           because
           that
           it
           was
           an
           impeachment
           of
           his
           credit
           for
           if
           he
           were
           once
           a
           Bankrupt
           ,
           every
           man
           will
           be
           the
           more
           suspitious
           and
           feareful●
           of
           him
           .
        
         
           A
           Marchant
           brought
           an
           Action
           for
           calling
           of
           him
           cousening
           knave
           ;
           
           by
           Iones
           and
           
             Barkley
             ,
             Iustices
          
           [
           the
           other
           Justices
           absent
           ]
           the
           Action
           will
           not
           lie
           because
           that
           the
           words
           are
           too
           general
           .
           But
           if
           they
           had
           touched
           him
           in
           his
           profession
           they
           would
           have
           borne
           an
           action
           .
           And
           therefore
           to
           call
           a
           Marchant
           Bankrupt
           ,
           will
           beare
           an
           Action
           ;
           but
           to
           say
           of
           a
           Lawyer
           that
           he
           is
           a
           Bankrupt
           ,
           will
           not
           be
           Actionable
           the
           reason
           may
           be
           ,
           because
           that
           a
           Lawyer
           cannot
           bee
           a
           Bankrupt
           ,
           for
           that
           he
           doth
           not
           acquire
           ,
           his
           living
           by
           buying
           and
           selling
           as
           the
           Statutes
           speake
           .
        
         
           
             Iones
             Iestice
          
           in
           the
           former
           case
           put
           this
           case
           .
           there
           being
           a
           communication
           of
           Serjant
           Heale
           in
           his
           profession
           one
           said
           of
           him
           these
           words
           ,
           
           He
           hath
           undone
           many
           ,
           adiudged
           that
           the
           words
           were
           actionable
           ,
           because
           they
           touch
           him
           in
           his
           Profession
           .
        
         
           A.
           Shoomaker
           brought
           an
           Action
           against
           one
           for
           calling
           of
           him
           Bankrupt
           adjudged
           upon
           a
           Writ
           of
           Error
           in
           the
           
           Chequer
           Chamber
           ,
           that
           the
           Action
           would
           lie
           .
           
        
         
           Axe
           a
           Dyer
           brought
           an
           Action
           against
           Moode
           for
           these
           words
           ,
           thou
           art
           not
           worth
           a
           Groat
           ,
           and
           averres
           that
           in
           such
           a
           place
           ,
           where
           they
           were
           spoken
           they
           have
           the
           common
           acceptation
           ,
           and
           are
           equivalent
           to
           the
           calling
           of
           a
           man
           a
           Bankrupt
           ,
           resolved
           that
           the
           words
           of
           themselves
           were
           not
           Actionable
           ,
           
           because
           that
           many
           men
           in
           their
           beginnings
           are
           not
           worth
           a
           Groat
           ,
           and
           yet
           their
           credits
           are
           good
           in
           the
           world
           .
           And
           that
           the
           averrement
           was
           idle
           and
           could
           not
           make
           them
           actionable
           ,
           because
           that
           the
           words
           have
           a
           plaine
           and
           proper
           significant
           meaning
           of
           their
           owne
           ,
           and
           therefore
           cannot
           be
           taken
           in
           another
           sence
           or
           meaning
           .
        
         
           A
           Journeman
           and
           Foreman
           of
           a
           Shoomakers
           Shop
           brought
           an
           Action
           for
           these
           words
           ,
           
           it
           is
           no
           matter
           who
           hath
           him
           ,
           for
           he
           will
           cut
           him
           out
           of
           Doores
           ;
           and
           averres
           that
           the
           common
           acceptation
           and
           intendment
           of
           these
           words
           ,
           
           
             inter
             Calceareos
          
           ,
           is
           that
           he
           will
           begger
           his
           Master
           ,
           and
           make
           him
           run
           away
           ;
           and
           averres
           a
           perticular
           damage
           by
           the
           speaking
           of
           them
           ,
           resolved
           that
           the
           Action
           would
           lie
           ,
        
         
         
           Note
           Reader
           ,
           here
           the
           averrement
           is
           good
           ,
           because
           the
           words
           cutting
           out
           of
           Doores
           ,
           are
           of
           a
           doubtfull
           meaning
           and
           intendment
           ,
           and
           so
           may
           be
           aided
           by
           an
           averrement
           ,
           so
           that
           the
           difference
           betweene
           this
           and
           Axes
           case
           cited
           before
           ,
           is
           evident
           .
           
        
         
           Knightly
           an
           Attorney
           brought
           an
           Action
           against
           Childoner
           for
           these
           words
           spoken
           to
           his
           Sonne
           ;
           
             my
             Father
             was
             not
             cast
             over
             the
             Barre
             as
             thy
             Father
             was
          
           ;
           the
           parties
           were
           at
           issue
           ,
           and
           in
           this
           case
           
             Walmesley
             Iustice
          
           said
           that
           he
           conceived
           the
           words
           were
           not
           actionable
           .
        
         
           Box
           and
           Bar●abies
           case
           before
           ,
           the
           defendant
           said
           of
           the
           plaintiffe
           being
           an
           Attorney
           these
           words
           (
           amongst
           others
           which
           were
           held
           actionable
           )
           that
           hee
           would
           have
           him
           throwne
           over
           the
           barr
           the
           next
           Tearme
           :
           
           in
           this
           case
           (
           agreeing
           with
           the
           opinion
           of
           Walmesley
           before
           )
           the
           opinion
           of
           the
           Court
           was
           ,
           that
           these
           words
           were
           not
           Actionable
           ,
           because
           of
           the
           incertaine
           sence
           and
           meaning
           of
           them
           .
        
         
           Dickes
           a
           Brewer
           brought
           an
           Action
           against
           Fenne
           ,
           and
           declares
           that
           the
           Defendant
           having
           communication
           with
           
           some
           of
           the
           Customers
           of
           the
           Plaintiffe
           concerning
           him
           in
           his
           profession
           ,
           said
           these
           words
           of
           him
           ;
           
             I
             will
             give
             a
             peck
             of
             Malt
             to
             my
             Mare
             ,
             and
             lead
             her
             to
             the
             VVater
             to
             drink
             ,
             and
             shee
             shall
             pisse
             as
             good
             Beere
             as
          
           Dicks
           
             doth
             brew
          
           ;
           adjudgeed
           the
           words
           were
           n●t
           Actionable
           ,
           because
           that
           they
           are
           Comparative
           only
           ;
           and
           besides
           they
           are
           impossible
           ,
           and
           therefore
           ,
           they
           can
           bee
           no
           scandall
           to
           the
           Plaintiffe
           .
        
         
           In
           this
           case
           ,
           it
           was
           said
           by
           Rolls
           Serjeant
           that
           it
           had
           beene
           adjudged
           Actionable
           ,
           to
           say
           of
           a
           Brewer
           that
           hee
           brewes
           naughty
           Beere
           ;
           which
           was
           agreed
           by
           the
           Court
           ,
           because
           that
           he
           is
           presentable
           in
           a
           Leete
           for
           it
           .
        
         
           And
           likewise
           in
           this
           case
           it
           was
           said
           by
           
             Bartley
             Iustice
          
           that
           where
           one
           said
           of
           a
           Lawyer
           ,
           that
           hee
           had
           as
           much
           Law
           as
           a
           Munkey
           ,
           that
           these
           words
           were
           adjudged
           not
           actionable
           because
           that
           he
           hath
           as
           much
           Law
           &
           more
           also
           then
           the
           Monkey
           hath
           ,
           but
           if
           hee
           had
           said
           that
           he
           had
           more
           Law
           then
           a
           Monkey
           ,
           these
           words
           would
           be
           actionable
           .
        
         
           One
           said
           of
           a
           Counseller
           at
           Law
           ,
           that
           he
           was
           a
           Concealer
           of
           the
           Law
           adjudged
           actionable
           .
        
         
         
           Sanderson
           and
           Rudds
           case
           the
           Plaintiffe
           being
           a
           Lawyer
           and
           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
           conce●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
           S●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
           co●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
             Gr●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
           .
        
         
           And
           
             Popham
             Iustice
          
           said
           ,
           that
           there
           is
           a
           difference
           when
           a
           man
           declares
           his
           opinion
           of
           the
           Title
           of
           another
           to
           land
           this
           is
           nothing
           ,
           and
           he
           shall
           not
           be
           punished
           for
           it
           ,
           but
           if
           he
           doth
           so
           publish
           it
           ,
           that
           it
           comes
           to
           the
           hearing
           of
           any
           one
           that
           intended
           to
           buy
           the
           Land
           in
           such
           case
           an
           Action
           lies
           ,
           but
           he
           must
           shew
           specially
           in
           his
           Count
           in
           what
           he
           was
           damnified
           ,
           otherwise
           the
           Action
           will
           not
           lie
           .
        
         
           Banister
           brought
           an
           Action
           against
           Banister
           for
           that
           the
           Defendant
           said
           of
           the
           Plaintiffe
           (
           being
           Sonne
           and
           Heire
           to
           his
           Father
           )
           that
           he
           was
           a
           Bastard
           ,
           
           resolved
           that
           the
           Action
           would
           lie
           ,
           for
           this
           tends
           to
           his
           disinherision
           of
           the
           Land
           which
           discends
           to
           him
           from
           his
           Father
           .
        
         
           But
           in
           this
           case
           it
           was
           resolved
           ,
           that
           
           if
           the
           Defendant
           pretend
           that
           the
           plaintiffe
           was
           a
           Bastard
           ,
           and
           that
           he
           himselfe
           was
           next
           heire
           ,
           there
           no
           Action
           lies
           .
        
         
           So
           if
           a
           man
           say
           that
           another
           hath
           noe
           right
           to
           land
           ,
           an
           Action
           lies
           ;
           but
           if
           a
           Counseller
           say
           that
           his
           Client
           hath
           the
           better
           right
           ,
           this
           will
           not
           beare
           an
           Action
           .
        
         
           Mich.
           3.
           
           Jac.
           in
           the
           Kings
           Bench
           
             per
             Curiam
          
           ,
           if
           one
           say
           to
           me
           that
           I
           am
           a
           Bastard
           ,
           if
           I
           have
           Land
           by
           discent
           ,
           I
           shall
           have
           an
           Action
           upon
           the
           case
           ,
           and
           thought
           that
           I
           have
           Land
           by
           discent
           ,
           and
           this
           tends
           to
           my
           disinheritance
           ,
           if
           I
           sue
           in
           Court
           Christian
           for
           it
           ,
           a
           Prohibition
           lies
           ,
           because
           that
           the
           tryall
           there
           may
           be
           to
           my
           disinheritance
           .
        
         
           And
           if
           one
           say
           to
           another
           that
           hee
           is
           base
           borne
           ,
           an
           action
           will
           not
           lie
           ,
           for
           the
           words
           shall
           be
           taken
           in
           
             meliori
             sensu
          
           .
           And
           if
           one
           say
           to
           his
           Sonne
           that
           he
           is
           a
           Bastard
           ,
           or
           a
           Leaper
           ,
           hee
           shal
           not
           have
           an
           action
           neither
           in
           Court
           Christian
           ,
           nor
           at
           Common
           Law.
           
        
         
           Sir
           
             Gilbert
             Gerrard
          
           brought
           an
           action
           against
           
             Mary
             Dickinson
          
           ,
           
           and
           declares
           how
           that
           he
           was
           seised
           of
           certaine
           lands
           in
           Fee
           ,
           and
           that
           hee
           was
           in
           communication
           to
           demise
           them
           to
           
           
             Ralph
             Egerton
          
           fot
           22.
           yeares
           for
           200.
           l.
           Fine
           and
           a
           100.
           l.
           rent
           
             per
             annum
          
           ,
           and
           that
           the
           Defendant
           
             (
             premissorum
             non
             ignara
          
           )
           said
           ,
           I
           have
           a
           Lease
           of
           the
           Mannor
           and
           Castle
           of
           H.
           (
           which
           was
           the
           same
           lands
           )
           for
           ninety
           yeares
           ,
           and
           shewed
           and
           published
           it
           ,
           &c.
           by
           reason
           of
           which
           words
           (
           he
           saith
           )
           the
           said
           
             Ralph
             Egerton
          
           did
           not
           proceed
           to
           accept
           the
           Lease
           &c.
           
        
         
           In
           this
           case
           it
           was
           resolved
           ,
           that
           no
           Action
           would
           lie
           for
           the
           said
           words
           ,
           though
           they
           were
           false
           ,
           because
           that
           the
           Defendant
           pretended
           an
           interest
           in
           the
           said
           land
           .
        
         
           So
           if
           the
           Defendant
           had
           affirmed
           and
           published
           that
           the
           Plaintiffe
           had
           not
           any
           right
           to
           the
           said
           Land
           ,
           but
           that
           she
           her selfe
           had
           right
           to
           it
           ,
           in
           this
           case
           because
           that
           the
           Defendant
           pretends
           title
           to
           it
           though
           ,
           that
           in
           truth
           ,
           shee
           hath
           not
           any
           ,
           yet
           no
           Action
           lies
           .
           For
           if
           in
           such
           case
           an
           Action
           should
           lie
           ,
           how
           could
           any
           one
           make
           claime
           or
           title
           to
           any
           land
           ,
           or
           commence
           any
           suit
           or
           seeke
           advise
           and
           Counsell
           ,
           but
           hee
           should
           be
           subject
           to
           an
           Action
           ;
           which
           would
           be
           very
           inconvenient
           .
        
         
           Agreeing
           with
           these
           cases
           ,
           
           in
           2.
           
           E.
           4.
           
           and
           15.
           
           E.
           4.
           it
           is
           resolved
           that
           no
           action
           upon
           the
           case
           lies
           against
           one
           for
           publishing
           another
           to
           be
           his
           Villeine
           .
        
         
           The
           sixt
           part
           of
           that
           generall
           Rule
           which
           I
           have
           laid
           downe
           before
           ;
           and
           am
           now
           to
           speake
           of
           is
           this
           .
        
         
           That
           scandalous
           words
           which
           tend
           to
           the
           hinderance
           or
           losse
           of
           a
           mans
           advancement
           or
           preferrement
           ,
           or
           which
           cause
           any
           particular
           damage
           ,
           will
           beare
           an
           Action
           .
        
         
           
             Anne
             Davies
          
           brought
           an
           Action
           against
           Gardiner
           for
           these
           words
           ,
           
           spoken
           to
           one
           B.
           a
           Suiter
           to
           the
           Plaintiffe
           and
           with
           whom
           a
           marriage
           wss
           almost
           '
           concluded
           .
           I
           know
           Davies
           Daughter
           well
           ,
           shee
           did
           dwell
           in
           Cheape
           side
           and
           a
           Grocer
           did
           get
           her
           with
           Childe
           ,
           &c.
           and
           shee
           saith
           that
           by
           reason
           of
           the
           speaking
           of
           these
           words
           ,
           the
           said
           B.
           utterly
           refused
           to
           take
           her
           to
           Wife
           ,
           so
           that
           thereby
           she
           lost
           her
           advancement
           ,
           &c.
           adjudged
           that
           the
           Action
           would
           lie
           ,
           because
           that
           if
           shee
           had
           a
           Bastard
           she
           was
           punishable
           by
           the
           Statute
           of
           18.
           of
           the
           Queene
           cap.
           3.
           
        
         
           But
           it
           was
           in
           this
           case
           further
           resolved
           ,
           that
           if
           the
           defendant
           had
           charged
           the
           Plaintiffe
           with
           bare
           incontinency
           
           only
           yet
           the
           Action
           would
           have
           laine
           ,
           by
           reason
           that
           by
           the
           said
           slander
           shee
           was
           defeated
           of
           her
           advancement
           in
           Marriage
           .
        
         
           And
           it
           was
           in
           this
           case
           likewise
           resolved
           ,
           that
           if
           a
           Divine
           be
           to
           bee
           presented
           to
           a
           Benefice
           ,
           and
           one
           ,
           to
           defeat
           him
           of
           it
           ,
           saith
           to
           the
           Patron
           that
           he
           is
           a
           Heretique
           or
           a
           Bastard
           ,
           or
           that
           he
           is
           excommunicated
           ,
           by
           which
           the
           Patron
           refuses
           to
           present
           him
           (
           as
           he
           well
           might
           ,
           if
           those
           imputations
           were
           true
           )
           and
           he
           loses
           his
           preferrement
           ,
           that
           in
           this
           case
           an
           Action
           will
           lie
           .
           
        
         
           
             Dame
             Morrison
          
           Widdow
           brought
           an
           Action
           against
           
             William
             Cade
          
           Esquier
           and
           dec●ares
           that
           shee
           was
           of
           good
           fame
           ,
           
           &c.
           
           And
           that
           
             Henry
             Earle
          
           of
           Kent
           was
           in
           speech
           and
           communication
           with
           her
           for
           marriage
           ,
           the
           Defendant
           
             premissorum
             non
             ignarus
          
           ,
           said
           these
           words
           ,
           Arscot
           hath
           reported
           that
           hee
           had
           the
           use
           of
           the
           Lady
           Morrisons
           body
           at
           his
           pleasure
           ;
           
             ubi
             rever●
             ,
             A●scot
          
           never
           reported
           it
           ,
           and
           alledged
           that
           the
           Earle
           of
           Kent
           upon
           the
           hearing
           of
           the
           words
           surceased
           his
           suit
           by
           which
           she
           lost
           her
           advancement
           ,
           &c.
           upon
           not
           guilty
           pleaded
           it
           was
           found
           for
           the
           Plaintiffe
           ,
           &
           in
           
           this
           case
           it
           was
           resolved
           ,
           that
           though
           the
           words
           charge
           the
           Plaintiffe
           with
           bare
           incontinency
           only
           ,
           which
           is
           an
           offence
           Ecclesiasticall
           ,
           and
           not
           civill
           ;
           nor
           punishable
           by
           our
           Law
           ,
           yet
           because
           of
           the
           temporall
           damage
           ,
           viz.
           the
           losse
           of
           her
           advancement
           in
           marriage
           the
           Action
           would
           well
           lie
           ,
           which
           agrees
           with
           the
           judgement
           in
           
             An
             Davies
          
           case
           .
        
         
           Sanderson
           and
           Rudds
           case
           cited
           before
           ;
           
           the
           Plaintiffe
           being
           a
           Lawyer
           ,
           stood
           for
           the
           Stew●r●●ship
           of
           a
           Corporation
           ,
           and
           the
           Corporation
           being
           assembled
           to
           elect
           a
           Steward
           ,
           the
           plaintiffe
           was
           motioned
           to
           them
           ▪
           whereupon
           the
           Defendant
           being
           one
           of
           the
           corporation
           〈◊〉
           to
           his
           Brothers
           ,
           he
           is
           an
           ignoran●
           〈◊〉
           ,
           and
           not
           fit
           for
           the
           place
           ;
           and
           〈…〉
           that
           by
           reason
           of
           these
           words
           ▪
           they
           did
           refuse
           to
           elect
           him
           St●ward
           ,
           so
           that
           he
           th●reby
           lost
           his
           pre●errement
           ,
           &c.
           the
           Court
           in
           this
           case
           inclined
           that
           the
           Action
           would
           lie
           .
        
         
           And
           now
           I
           am
           fal●en
           upon
           a
           question
           very
           necessary
           to
           be
           resolved
           ,
           and
           that
           is
           .
        
         
           What
           words
           are
           Actionable
           of
           themselves
           only
           ?
           and
           what
           are
           not
           Actionable
           ,
           
           without
           alledgeing
           of
           a
           particular
           damage
           ;
           I
           take
           this
           for
           a
           Rule
           ,
           that
           scandalous
           words
           which
           touch
           or
           concerne
           a
           man
           in
           life
           ,
           liberty
           ,
           or
           Member
           ,
           or
           any
           corporall
           punishment
           ,
           or
           which
           scandall
           a
           man
           in
           his
           office
           or
           place
           of
           trust
           ,
           or
           in
           his
           calling
           or
           function
           ,
           by
           which
           he
           gaines
           his
           living
           ,
           or
           which
           charge
           him
           with
           any
           great
           infectious
           disease
           ,
           by
           reason
           of
           which
           hee
           ought
           to
           seperate
           himselfe
           or
           to
           be
           seperated
           by
           the
           Law
           from
           the
           society
           of
           Men
           ;
           all
           such
           words
           will
           beare
           an
           Action
           ,
           without
           averring
           or
           alledging
           of
           any
           particular
           damage
           by
           the
           speaking
           of
           them
           .
        
         
           Yet
           I
           do
           not
           deny
           ,
           but
           that
           it
           is
           best
           to
           alledge
           a
           particular
           damage
           ,
           if
           the
           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
           Advo●vterer
           ,
           a
           Forni●ato●
           or
           for
           calling
           of
           a
           Woman
           a
           Whore
           or
           charging
           her
           wit●
           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
             Cal●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
           ●ie
           ,
           which
           I
           conceive
           was
           only
           for
           the
           particular
           damage
           ,
           for
           to
           say
           of
           a
           Servant
           that
           he
           doth
           Chea●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
           no●
           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
           B●ewer
           ,
           that
           he
           would
           give
           a
           peck
           of
           Malte
           to
           his
           Mare
           ,
           and
           ●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
           p●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
           J●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
           diseas●
           ,
           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
           h●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
           say
           of
           a
           man
           that
           hee
           is
           infected
           with
           the
           Plague
           ,
           will
           beare
           an
           Action
           ,
           because
           this
           also
           is
           a
           dangerous
           infectious
           disease
           ,
           and
           a
           cause
           of
           separation
           .
        
         
           I
           have
           now
           finished
           my
           task
           of
           shewing
           you
           what
           words
           are
           Actionable
           in
           the
           Law
           ,
           and
           what
           not
           ▪
           And
           yet
           Reader
           I
           shall
           not
           end
           this
           Treatise
           here
           ,
           for
           there
           are
           many
           things
           not
           worthy
           the
           knowing
           (
           which
           I
           could
           not
           aptly
           introduce
           before
           )
           and
           therefore
           not
           to
           be
           omitted
           .
        
         
           There
           are
           two
           things
           or
           grounds
           very
           remarkable
           in
           all
           Actions
           upon
           the
           case
           for
           words
           .
        
         
           
             First
             Causa
             dicendi
             ,
             the
             ground
             or
             occasion
             of
             the
             speaking
             of
             the
             words
             :
          
           And
           that
           must
           be
           collected
           out
           of
           the
           precedent
           discourse
           or
           communication
           concerning
           the
           Plaintiffe
           ;
           or
           else
           out
           of
           the
           relation
           that
           the
           words
           themselves
           have
           to
           the
           Defendant
           ,
           or
           otherwise
           ,
           as
           the
           case
           shall
           fall
           out
           to
           be
           .
        
         
           The
           next
           thing
           is
           the
           affection
           of
           the
           Speaker
           ,
           that
           is
           to
           say
           whether
           the
           words
           were
           spoken
           Ex
           malitia
           ,
           or
           not
           ?
        
         
           First
           ,
           for
           the
           first
           ,
           
             Causa
             dicendi
          
           ,
           the
           ground
           or
           occasion
           of
           speaking
           of
           the
           words
           .
        
         
         
           
             And
             here
             I
             shall
             lay
             downe
             this
             as
             a
             ground
             ,
          
           that
           scandalous
           words
           which
           of
           themselves
           singly
           would
           beare
           an
           action
           yet
           being
           joyned
           to
           other
           words
           or
           discourse
           ,
           and
           so
           Causa
           dicendi
           ,
           or
           the
           subject
           matter
           being
           considered
           ,
           they
           will
           not
           beare
           an
           Action
           .
           For
           Sensus
           verborum
           ex
           causa
           dicendi
           accipiendus
           est
           ,
           
             &c.
             
             And
             words
             must
             ever
             be
             construed
             according
             to
             the
             subject
             matter
             .
          
           
        
         
           Henry
           Lord
           Cromwell
           brought
           an
           Action
           
             de
             Scandalis
             Magnatum
          
           against
           
             Edmund
             Denny
          
           ,
           
           Vicar
           of
           N.
           in
           the
           County
           of
           
             Norfolke
             ,
             &c.
          
           for
           these
           words
           :
           It
           is
           no
           marvill
           that
           you
           like
           not
           of
           me
           ,
           for
           you
           like
           of
           those
           that
           maintaine
           sedition
           against
           the
           Queens
           proceedings
           ;
           the
           Defendant
           pleaded
           a
           speciall
           justification
           ,
           in
           effect
           thus
           ;
           that
           the
           Defendant
           being
           Vicar
           of
           N.
           the
           Plaintiffe
           procured
           I.
           T.
           and
           I.
           P.
           to
           preach
           there
           ,
           who
           in
           their
           Sermons
           enveyed
           against
           the
           Booke
           of
           Common
           Prayer
           ,
           and
           affirmed
           it
           to
           bee
           superstitious
           ;
           wherefore
           the
           Defendant
           inhibited
           them
           ,
           for
           they
           had
           no
           licence
           nor
           authority
           to
           preach
           ,
           yet
           they
           proceeded
           through
           the
           encouragement
           of
           the
           Plaintiffe
           ,
           and
           the
           Plaintiffe
           said
           
           to
           the
           Defendant
           ,
           Thou
           art
           a
           false
           varle●
           I
           like
           not
           of
           thee
           ;
           to
           whom
           the
           Defendant
           said
           ,
           It
           is
           no
           marvill
           though
           you
           like
           not
           of
           me
           ,
           for
           you
           like
           of
           those
           (
           meaning
           the
           aforesaid
           I.
           T.
           and
           I.
           D.
           )
           that
           maintaine
           sedition
           [
           meaning
           that
           seditious
           Doctrin
           ]
           against
           the
           Queens
           proceedings
           .
        
         
           In
           this
           case
           it
           was
           adjudged
           that
           the
           justification
           was
           good
           .
           For
           though
           that
           in
           this
           case
           ,
           taking
           the
           words
           singly
           of
           themselves
           as
           the
           Plaintiffe
           hath
           declared
           ,
           they
           might
           have
           beene
           Actionable
           ;
           because
           that
           then
           they
           could
           not
           be
           construed
           otherwise
           then
           of
           a
           publike
           and
           violent
           sedition
           ,
           as
           the
           word
           it selfe
           doth
           import
           .
        
         
           Yet
           now
           the
           ground
           and
           occasion
           of
           the
           words
           appearing
           ,
           by
           which
           it
           is
           evident
           ,
           that
           the
           defendant
           did
           not
           intend
           any
           publike
           or
           violent
           sedition
           ,
           but
           only
           that
           seditions
           Doctrine
           against
           the
           proceedings
           of
           the
           Queene
           ,
           viz.
           the
           Statute
           
             de
             anno
             primo
          
           ,
           by
           which
           the
           Common
           Prayer
           was
           established
           ,
           and
           God
           forbid
           [
           saith
           the
           Booke
           ]
           that
           words
           by
           a
           strict
           and
           Grammaticall
           construction
           should
           be
           taken
           contrary
           to
           the
           manifest
           intent
           of
           the
           Speaker
           ,
           
           therefore
           it
           was
           ruled
           upon
           the
           coherence
           of
           all
           the
           words
           ,
           that
           the
           justification
           was
           good
           ▪
           and
           so
           the
           words
           not
           Actionable
           .
        
         
           And
           in
           this
           case
           it
           was
           ruled
           ,
           that
           if
           a
           man
           bring
           an
           Action
           against
           another
           ,
           for
           calling
           of
           him
           murderer
           ,
           and
           the
           Defendant
           will
           say
           that
           hee
           was
           speaking
           with
           the
           Plaintiffe
           of
           unlawfull
           hunting
           ,
           and
           that
           the
           Plaintiffe
           confessed
           that
           he
           had
           killed
           divers
           Hares
           with
           certaine
           Engines
           ,
           to
           whom
           the
           Defendant
           answered
           and
           said
           ,
           Thou
           art
           a
           murtherer
           [
           meaning
           the
           killing
           of
           the
           said
           Hares
           ]
           that
           this
           was
           a
           good
           justification
           ,
           and
           so
           upon
           the
           whole
           matter
           the
           words
           not
           Actionable
           .
        
         
           Byrchley
           an
           Attorney
           brought
           an
           Action
           against
           one
           for
           these
           words
           ;
           
           you
           are
           well
           knowne
           to
           bee
           a
           corrupt
           man
           ,
           and
           to
           deale
           corruptly
           :
           resolved
           that
           the
           words
           were
           Actionable
           ,
           but
           in
           this
           case
           it
           was
           ruled
           that
           if
           the
           precedent
           speech
           had
           beene
           that
           Byrchley
           was
           a
           Vsurer
           ,
           or
           that
           he
           was
           Executor
           of
           another
           ,
           and
           would
           not
           performe
           the
           testament
           ,
           and
           upon
           this
           the
           Defendant
           had
           said
           these
           words
           ,
           upon
           a
           speciall
           justificatio●●
           as
           aforesaid●
           ,
           they
           
           would
           not
           beare
           an
           Action
           .
        
         
           Banister
           and
           Banisters
           case
           resolved
           that
           if
           I
           call
           an
           heire
           a
           Bastard
           ,
           
           an
           action
           will
           lie
           ▪
           but
           if
           the
           defendant
           pretend
           that
           the
           plaintiffe
           is
           a
           Bastard
           and
           that
           he
           is
           next
           heire
           ,
           there
           no
           Action
           will
           lie
           .
           The
           reason
           of
           this
           is
           plaine
           ,
           because
           
             causa
             dicendi
          
           ,
           or
           the
           occasion
           of
           speaking
           of
           these
           words
           ,
           is
           not
           to
           defame
           the
           Title
           of
           the
           plaintiffe
           ,
           but
           only
           to
           justifie
           the
           Title
           of
           defendant
           ,
           and
           it
           is
           lawfull
           for
           any
           one
           to
           speak
           in
           justification
           of
           his
           owne
           Title
           ,
           though
           hee
           do
           thereby
           seeme
           to
           slander
           the
           Title
           of
           another
           man
           ,
           agreeing
           with
           this
           case
           is
           
             Gilbert
             Gerrards
          
           case
           cited
           before
           .
        
         
           Molton
           brought
           an
           Action
           against
           Clapham
           and
           declares
           how
           that
           there
           being
           a
           cause
           pending
           in
           this
           Court
           betwixt
           the
           plaintiffe
           and
           defendant
           ,
           
           upon
           reading
           of
           certaine
           Affidavids
           of
           the
           plaintiffes
           in
           Court
           ,
           the
           Defendant
           said
           openly
           in
           
             present●●
             &
             auditu
             Iusticiariorum
             &
             juris
             peritorum
             ,
             &c.
             
          
           There
           is
           not
           a
           word
           true
           in
           the
           Affidavids
           ,
           which
           I
           wil
           prove
           by
           forty
           witnesses
           :
           and
           alledges
           that
           the
           words
           were
           spoken
           malitiose
           .
           
           yet
           it
           was
           resolved
           by
           the
           Court
           that
           they
           were
           not
           Actionable
           ,
           because
           as
           they
           are
           usuall
           words
           upon
           the
           like
           occasion
           ;
           so
           they
           are
           spoken
           in
           the
           defence
           of
           the
           defendants
           cause
           ,
           and
           this
           case
           was
           likened
           to
           the
           case
           of
           the
           Bastard
           immediatly
           before
           .
        
         
           And
           
             Bartley
             Iustice
          
           said
           that
           there
           are
           two
           things
           mainely
           considerable
           in
           words
           ,
           the
           words
           themselves
           ,
           and
           
             causa
             dicendi
          
           ;
           and
           therefore
           somtimes
           though
           the
           words
           themselves
           would
           beare
           an
           Action
           yet
           
             causa
             dicendi
          
           being
           considered
           ,
           they
           will
           not
           be
           Actionable
           ,
           as
           in
           this
           case
           .
        
         
           Now
           as
           my
           Lord
           Cooke
           ses
           in
           Cromwels
           case
           before
           remembred
           ,
           
           so
           I
           say
           to
           you
           .
           In
           these
           cases
           ,
           Reader
           ,
           you
           may
           take
           notice
           of
           an
           excellent
           point
           of
           learning
           in
           Actions
           for
           slander
           ;
           to
           observe
           the
           cause
           and
           occasion
           of
           speaking
           of
           them
           ,
           and
           how
           this
           may
           bee
           pleaded
           in
           excuse
           of
           the
           Defendant
           .
        
         
           But
           before
           I
           passe
           this
           ,
           
           Reader
           ,
           I
           shall
           observe
           unto
           you
           that
           the
           defendant
           in
           these
           cases
           might
           take
           the
           generall
           issue
           ,
           if
           he
           would
           ,
           viz.
           that
           he
           is
           not
           guilty
           
             modo
             &
             forma
          
           ,
           as
           the
           Plaintiffe
           hath
           alledged
           ,
           and
           so
           give
           in
           evidence
           
           the
           coherence
           and
           connection
           of
           the
           words
           ,
           and
           the
           occasion
           of
           speaking
           of
           them
           ,
           and
           have
           them
           specially
           found
           ,
           if
           it
           be
           conceived
           to
           be
           necessary
           .
        
         
           Or
           the
           defendant
           may
           [
           as
           the
           case
           shall
           require
           ]
           justifie
           the
           speaking
           of
           other
           words
           ,
           and
           traverse
           the
           speaking
           of
           the
           words
           in
           question
           ;
           and
           so
           likewise
           upon
           the
           evidence
           have
           the
           words
           specially
           found
           .
        
         
           
             And
             hereupon
          
           ;
           where
           the
           speciall
           finding
           of
           the
           Iury
           will
           warrant
           the
           Declaration
           of
           the
           Plaintiffe
           ,
           and
           maintaine
           the
           action
           ,
           and
           where
           not
           ?
           may
           be
           very
           questionable
           ,
           and
           worthy
           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
           form●
           ,
           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
           ,
           (
           ●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
           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
           p●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
           
             fals●
             &
             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
           broug●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
           .
        
         
           
             O●en
             Wood
          
           exhibited
           a
           Bill
           in
           the
           Starchamber
           against
           Sir
           
             Richard●
             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
           ,
           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
           C●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
           ●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
           ca●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
           ,
           wi●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
           ,
           
             fals●
             &
             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
             acqui●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
           ind●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
             scandal●●
             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
           defama●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
           compa●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
           di●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.
             
             Fe●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
           Actionable
           ;
           and
           therefore
           the
           
             [
             innuendo
          
           ]
           in
           these
           cases
           is
           idle
           and
           to
           no
           purpose
           .
        
         
           So
           if
           the
           words
           be
           incertaine
           of
           themselves
           ,
           or
           the
           person
           of
           whom
           they
           are
           spoken
           ,
           an
           
             [
             innuendo
          
           ]
           shall
           never
           make
           them
           actionable
           .
        
         
           If
           a
           man
           bring
           an
           action
           against
           another
           for
           saying
           that
           the
           Plaintiffe
           tooke
           away
           money
           from
           him
           with
           a
           strong
           hand
           
             [
             innuendo
             felonice
          
           ]
           here
           the
           words
           being
           incertaine
           in
           the
           intendment
           ,
           
           whether
           of
           a
           Trespas
           ,
           or
           Felony
           the
           
             (
             innuendo
          
           )
           cannot
           extend
           them
           to
           
           an
           intendment
           of
           felony
           ,
           thereby
           to
           make
           them
           actionable
           ,
           and
           so
           it
           was
           adjudged
           .
        
         
           So
           if
           a
           man
           bring
           an
           action
           against
           another
           ,
           
           for
           saying
           that
           hee
           forged
           a
           warrant
           [
           
             innuendo
             quoddam
             Warrantum
             ,
             &c.
          
           as
           Thomas
           and
           Axworths
           case
           is
           cited
           before
           ,
           
           or
           for
           saying
           that
           he
           forged
           a
           writing
           innuendo
           such
           a
           writing
           ]
           as
           
             Harvy
             and
             Duckins
          
           case
           is
           likewise
           cited
           before
           .
           In
           these
           cases
           ,
           because
           the
           words
           themselves
           are
           utterly
           incertain
           ,
           adjudged
           that
           the
           
             [
             innuendo
          
           ]
           shall
           never
           make
           them
           actionable
           .
        
         
           A
           Servant
           of
           B.
           brings
           an
           action
           against
           one
           for
           these
           words
           ;
           
           One
           of
           the
           Servants
           of
           
             B.
             (
             innuendo
          
           the
           Plaintiffe
           .
           is
           a
           notorious
           Felon
           ,
           or
           Traytor
           ,
           &c
           )
           And
           if
           an
           Action
           be
           brought
           for
           these
           words
           ,
           I
           know
           one
           neere
           about
           B.
           that
           is
           a
           notorious
           Theefe
           ,
           (
           innuendo
           the
           Plaintiffe
           :
           )
           In
           these
           cases
           ,
           because
           of
           the
           incertainty
           of
           the
           persons
           intended
           by
           the
           words
           the
           
             [
             innuendo
          
           ]
           shall
           not
           make
           them
           actionable
           .
        
         
           I
           could
           multiply
           cases
           upon
           this
           ground
           ,
           but
           because
           these
           will
           bee
           sufficient
           ;
           I
           will
           adde
           onely
           the
           Office
           of
           an
           
             (
             imnuendo
             .
          
           )
        
         
         
           
             The
             office
             of
             an
          
           [
           innuendo
           ]
           
             is
             onely
             to
             containe
             and
             designe
             the
             same
             person
             ,
          
           
           
             which
             was
             named
             in
             certaine
             before
             :
          
           as
           thus
           ,
           two
           are
           speaking
           together
           of
           B.
           and
           one
           of
           them
           saith
           ,
           hee
           is
           a
           Thiefe
           ;
           there
           B.
           in
           his
           Count
           may
           shew
           that
           there
           was
           a
           speech
           of
           him
           betwixt
           those
           two
           ,
           and
           that
           one
           of
           them
           said
           of
           him
           ,
           hee
           (
           innuendo
           the
           plaintiffe
           )
           is
           a
           thiefe
           .
        
         
           
             Or
             else
             to
             declare
             the
             matter
             or
             sence
             of
             the
             words
             themselves
             ,
             which
             was
             certainly
             expressed
             before
          
           ;
           as
           thus
           ,
           A.
           and
           B.
           speaking
           of
           
             C.
             A.
          
           said
           that
           C.
           was
           a
           Traytor
           ,
           to
           whom
           B.
           said
           that
           he
           was
           so
           too
           ;
           in
           this
           case
           if
           A.
           bring
           an
           action
           for
           these
           words
           ,
           he
           may
           shew
           in
           his
           Count
           ,
           that
           there
           was
           a
           speech
           betwixt
           him
           and
           the
           defendant
           of
           C.
           and
           that
           the
           plaintiffe
           said
           to
           the
           defendant
           that
           C.
           was
           a
           Traytor
           ,
           and
           that
           the
           defendant
           said
           then
           to
           the
           plaintiffe
           ,
           that
           hee
           (
           innuendo
           the
           plaintiffe
           )
           was
           so
           too
           [
           innuendo
           a
           Traytor
           .
           ]
        
         
           In
           both
           these
           cases
           the
           
             (
             innuendo
          
           )
           is
           good
           ,
           becuase
           it
           doth
           its
           Office
           ,
           in
           designing
           of
           the
           person
           ,
           as
           also
           in
           declaring
           of
           the
           matter
           or
           sence
           of
           the
           words
           which
           was
           certaine
           before
           .
        
         
           But
           an
           
             [
             innuendo
          
           ]
           
           cannot
           make
           a
           person
           
           certaine
           ,
           which
           was
           incertaine
           before
           ,
           nor
           alter
           the
           matter
           or
           sence
           of
           the
           words
           themselves
           ;
           for
           it
           would
           be
           inconvenient
           ,
           that
           actions
           should
           bee
           maintained
           by
           imagination
           of
           an
           intent
           ,
           which
           doth
           not
           appeare
           by
           the
           words
           ,
           upon
           which
           the
           action
           is
           founded
           ;
           but
           is
           utterly
           incertaine
           ,
           and
           subject
           to
           deceaveable
           conjecture
           .
        
         
           For
           by
           this
           meanes
           ,
           if
           I
           should
           bee
           suffered
           to
           be
           the
           declarer
           of
           the
           meaning
           or
           intendment
           of
           the
           incertain
           and
           doubtfull
           speeches
           of
           another
           man
           ;
           I
           might
           judge
           him
           to
           speake
           that
           ,
           hee
           never
           thought
           or
           intended
           ,
           and
           so
           punish
           him
           for
           that
           wherein
           he
           never
           offended
           .
        
         
           The
           next
           and
           last
           thing
           to
           be
           considered
           is
           where
           an
           averrement
           will
           be
           necessary
           in
           these
           actions
           ,
           and
           where
           not
           :
           
             and
             here
             I
             shall
             lay
             downe
             this
             as
             a
             ground
             .
          
        
         
           That
           in
           all
           cases
           for
           words
           where
           there
           is
           any
           thing
           that
           is
           the
           cause
           or
           ground
           of
           the
           action
           ,
           or
           tends
           necessarily
           to
           the
           maintenance
           of
           it
           ,
           in
           such
           case
           the
           action
           will
           not
           lie
           ,
           without
           that
           thing
           be
           expresly
           averred
           to
           be
           ,
           or
           not
           to
           be
           ,
           as
           the
           case
           requireth
           .
           
        
         
           Miles
           brought
           an
           action
           against
           Iacob
           
           for
           these
           words
           ;
           Thou
           
             (
             innuendo
             &c.
          
           )
           hast
           poysoned
           
             Smith
             (
             quendam
             ,
             Sam.
             Smith
             ad
             tuuc
             defunct
             .
             innuendo
             )
          
           adjudged
           the
           action
           would
           not
           lie
           for
           this
           reason
           [
           amongst
           others
           ]
           because
           that
           did
           it
           not
           appeare
           that
           Smith
           was
           dead
           at
           the
           time
           of
           the
           words
           spoken
           ;
           and
           the
           
             (
             innuendo
          
           )
           for
           that
           purpose
           is
           no
           sufficient
           averrement
           .
        
         
           The
           li●e
           case
           was
           Trin.
           17.
           of
           this
           King
           ;
           
           A.
           brought
           an
           action
           against
           B.
           for
           these
           words
           ,
           
             Thou
             hast
             killed
             my
             brother
             (
             innuendo
             C.
          
           &c.
           fratrem
           ,
           &c.
           
             nuper
             mortuum
          
           )
           adjudged
           the
           action
           would
           not
           lie
           ,
           because
           the
           plaintiffe
           did
           not
           averre
           that
           he
           was
           dead
           at
           the
           time
           when
           the
           words
           were
           spoken
           ,
           and
           it
           was
           ruled
           that
           the
           innuendo
           was
           not
           a
           sufficient
           averrement
           .
        
         
           The
           reason
           of
           these
           cases
           ,
           is
           ,
           because
           the
           death
           of
           the
           party
           is
           the
           ground
           of
           the
           action
           ,
           and
           if
           hee
           were
           not
           dead
           (
           which
           shall
           the
           rather
           bee
           intended
           ,
           without
           the
           plaintiffe
           do
           expresly
           aver
           him
           to
           bee
           dead
           )
           then
           the
           plaintiffe
           could
           not
           bee
           indamaged
           by
           the
           speaking
           of
           the
           words
           ,
           and
           by
           consequence
           no
           action
           will
           lye
           for
           them
           .
        
         
           I
           must
           confesse
           that
           I
           have
           a
           report
           of
           
           a
           case
           which
           was
           5.
           of
           
             King
             Iames
          
           adjudged
           against
           the
           former
           cases
           ,
           
           Sir
           
             Tho.
             Holt
          
           brought
           an
           action
           against
           Taylor
           for
           these
           words
           ,
           Sir
           
             Thomas
             Holt
          
           hath
           killed
           his
           Cooke
           ,
           
           &c.
           and
           did
           not
           averre
           that
           he
           had
           a
           Cooke
           ,
           nor
           that
           the
           Cook
           was
           dead
           ,
           and
           this
           was
           moved
           in
           arrest
           of
           judgment
           ;
           and
           by
           the
           whole
           Court
           the
           Declaration
           was
           moved
           good
           ,
           because
           it
           shall
           not
           bee
           intended
           ,
           that
           there
           is
           any
           such
           purgation
           of
           the
           slander
           as
           this
           is
           ,
           except
           it
           doth
           appeare
           in
           the
           Record
           ;
           as
           the
           life
           of
           a
           man
           ,
           which
           is
           reported
           to
           be
           dead
           .
           But
           if
           it
           were
           expressed
           in
           the
           Record
           ,
           that
           the
           party
           reported
           to
           be
           dead
           ,
           was
           in
           life
           ,
           it
           were
           otherwise
           .
        
         
           As
           it
           words
           were
           spoken
           of
           a
           woman
           ,
           that
           she
           had
           murdered
           her
           husband
           ,
           and
           she
           and
           her
           husband
           bring
           the
           action
           ,
           in
           this
           case
           the
           action
           will
           not
           lye
           ,
           because
           that
           it
           doth
           appeare
           by
           the
           Record
           ,
           that
           the
           slander
           is
           not
           prejuditiall
           ,
           but
           is
           purged
           notoriously
           ,
           by
           the
           apparent
           being
           of
           the
           husband
           in
           life
           ,
           like
           Snags
           case
           in
           my
           Lord
           Cookes
           4.
           
           Booke
           
             Quaere
             tamen
          
           ,
           
           for
           I
           doubt
           Reader
           the
           Law
           of
           this
           case
           ,
           because
           of
           the
           cases
           before
           adjudged
           .
        
         
         
           A.
           saith
           that
           B.
           told
           him
           that
           C.
           stole
           a
           Horse
           ,
           these
           words
           with
           an
           averrement
           that
           B.
           did
           not
           say
           any
           such
           thing
           to
           A.
           will
           beare
           an
           action
           ,
           like
           the
           Lady
           Morrisons
           case
           which
           I
           have
           formerly
           cited
           ,
           fo
           .
           6.
           b.
           
        
         
           Whether
           Welsh
           words
           ,
           or
           words
           in
           English
           doubtfull
           in
           sense
           ,
           yet
           equipollent
           ,
           and
           of
           a
           common
           intendment
           and
           acceptation
           iu
           some
           certaine
           place
           with
           words
           Actionable
           ,
           will
           beare
           an
           Action
           ,
           without
           an
           expresse
           averrement
           of
           the
           importance
           of
           them
           ,
           or
           no
           ?
           
             quare
             &
             vide
          
           fo
           .
           6.
           a.
           
        
         
           Hasselwood
           and
           Garrets
           case
           cited
           before
           ,
           
           whosoever
           is
           hee
           that
           is
           falsest
           Theefe
           and
           strongest
           in
           the
           Country
           of
           Salop
           ,
           
           whatsoever
           he
           hath
           stollen
           ,
           or
           whatsoever
           he
           hath
           done
           ,
           
             Thomas
             Hassellwood
          
           is
           faller
           then
           he
           resolved
           that
           the
           words
           were
           actionable
           ,
           with
           an
           averrement
           that
           there
           were
           felons
           within
           the
           Count●
           of
           Salop
           ;
           but
           for
           default
           of
           such
           averrement
           the
           judgement
           given
           in
           the
           Common
           Pleas
           was
           reversed
           in
           this
           Court.
           
        
         
           Note
           Reader
           ,
           if
           there
           were
           no
           felons
           in
           that
           County
           (
           which
           will
           rather
           bee
           intended
           ,
           if
           it
           be
           not
           averred
           that
           there
           were
           some
           ]
           then
           the
           speaking
           of
           the
           
           words
           could
           be
           no
           slander
           to
           the
           Plaintiffe
           ,
           
           and
           so
           no
           Action
           can
           lie
           .
        
         
           Blands
           case
           cited
           before
           ,
           hee
           brought
           an
           action
           against
           
             A.
             B.
          
           for
           saying
           that
           he
           was
           indicted
           for
           Felony
           at
           a
           Sessions
           holden
           ,
           &c.
           and
           did
           not
           averre
           that
           he
           was
           not
           indicted
           ,
           and
           after
           a
           Verdict
           for
           the
           Plaintiffe
           ,
           judgement
           was
           stayed
           ,
           because
           there
           was
           no
           Avetrement
           ,
           
             ut
             supra
          
           .
           Note
           if
           hee
           were
           indicted
           ,
           which
           he
           doth
           tacitly
           admit
           ,
           then
           no
           cause
           of
           action
           .
        
         
           Iohnson
           against
           Dyer
           ,
           
           the
           Defendant
           having
           communication
           with
           the
           Father
           of
           the
           Plaintiffe
           ,
           said
           to
           him
           ,
           I
           will
           take
           my
           Oath
           that
           your
           Son
           stole
           my
           Henns
           ;
           and
           the
           Plaintiffe
           did
           not
           averre
           that
           he
           was
           his
           Sonne
           or
           that
           hee
           had
           but
           one
           Sonne
           ,
           and
           therefore
           adjuged
           that
           the
           action
           would
           not
           lie
           .
           In
           this
           case
           if
           he
           were
           not
           his
           Sonne
           ,
           then
           no
           cause
           of
           action
           .
        
         
           One
           Clarke
           said
           that
           he
           had
           a
           Sonne
           in
           Nottinghamshire
           who
           had
           his
           Chest
           picked
           ,
           
           and
           a
           hundred
           pounds
           taken
           out
           of
           it
           ,
           in
           one
           
             Lock
             .
             Smiths
          
           house
           ;
           and
           I
           thank
           God
           I
           have
           found
           the
           Theefe
           who
           it
           is
           ,
           it
           is
           one
           that
           dwelleth
           in
           the
           next
           house
           called
           
             Robert
             Kinston
          
           :
           
           upon
           which
           Kinston
           brought
           an
           Action
           and
           had
           a
           verdict
           ,
           and
           it
           was
           moved
           in
           arrest
           of
           Iudgement
           ,
           because
           that
           he
           did
           not
           averre
           that
           hee
           dwelt
           in
           the
           next
           house
           ,
           Crooke
           one
           said
           that
           Prichards
           man
           robbed
           him
           ,
           who
           brought
           an
           Action
           ;
           and
           did
           not
           averre
           that
           he
           was
           Prichards
           man
           ,
           and
           therefore
           it
           was
           held
           that
           the
           Action
           would
           not
           lie
           .
           Aud
           the
           Iustices
           in
           this
           case
           would
           not
           give
           judgment
           .
        
         
           
             Non
             constat
          
           in
           this
           case
           that
           the
           Plaintiffe
           was
           the
           party
           of
           whom
           the
           words
           were
           spoken
           ;
           for
           there
           might
           be
           another
           of
           the
           same
           name
           dwelling
           else
           where
           :
           and
           therefore
           hee
           ought
           to
           averre
           that
           he
           dwelt
           in
           the
           next
           house
           ,
           that
           he
           may
           be
           certainly
           intended
           to
           be
           the
           same
           person
           of
           whom
           the
           words
           were
           spoken
           .
        
         
           Where
           words
           shall
           not
           be
           Actionable
           without
           an
           averrement
           of
           a
           speciall
           dammage
           See
           fo
           .
           28.
           
        
         
           I
           have
           cleerely
           proved
           the
           ground
           before
           laid
           downe
           ,
           and
           by
           these
           cases
           you
           may
           bee
           sufficiently
           instructed
           ,
           where
           an
           averrement
           will
           be
           necessary
           and
           where
           not
           .
           And
           so
           I
           have
           quite
           finished
           this
           small
           Treatise
           .
        
         
         
           May
           the
           Reader
           find
           as
           much
           profit
           and
           delight
           in
           the
           reading
           of
           it
           ,
           as
           the
           Anthor
           had
           in
           composing
           of
           it
           ,
           such
           is
           the
           ardent
           desire
           of
        
         
           
             Your
             affectionate
             friend
             IOHN
             MARCH
             .
          
        
      
       
         
         
           Arbitrement
           .
        
         
           THe
           next
           thing
           Reader
           ,
           that
           I
           have
           undertaken
           to
           discourse
           of
           ,
           is
           ,
           Arbitrements
           ,
           the
           learning
           whereof
           will
           be
           very
           usefull
           to
           all
           men
           ;
           in
           regard
           that
           Compremises
           or
           Arbitrements
           were
           never
           more
           in
           use
           then
           now
           .
           And
           most
           men
           either
           have
           been
           or
           may
           be
           Arbitrators
           ,
           or
           at
           teast
           have
           done
           ,
           or
           may
           submit
           themselves
           to
           the
           Arbitration
           of
           others
           .
           And
           as
           long
           as
           differences
           and
           contentions
           arise
           among
           men
           ,
           which
           will
           bee
           to
           the
           worlds
           end
           ,
           certainly
           the
           learning
           of
           Arbitrements
           will
           well
           deserve
           our
           knowledge
           .
           Which
           being
           well
           observed
           and
           learnt
           by
           all
           men
           ,
           will
           be
           a
           good
           meanes
           to
           prevent
           many
           Suits
           and
           contentions
           in
           the
           Law
           for
           the
           future
           which
           are
           now
           daily
           occasioned
           through
           the
           defects
           of
           Arbitrements
           which
           rather
           beget
           and
           raise
           new
           controversies
           amongst
           the
           
           parties
           ,
           then
           determine
           the
           ould
           .
           The
           only
           cause
           whereof
           is
           the
           ignorance
           of
           men
           in
           this
           learning
           .
           The
           Composer
           hereof
           ,
           Reader
           ,
           tooke
           this
           paines
           ,
           only
           out
           of
           a
           desire
           of
           the
           Common
           good
           ,
           that
           none
           might
           bee
           ignorant
           of
           that
           which
           concernes
           all
           .
           And
           if
           it
           shall
           effect
           that
           for
           which
           it
           was
           made
           ,
           the
           instrvcting
           of
           the
           ignorant
           ,
           and
           the
           good
           of
           the
           publike
           ;
           the
           Author
           hath
           his
           ends
           ,
           and
           abundant
           recompence
           for
           his
           labour
           .
           Which
           that
           it
           may
           accomplish
           is
           the
           earnest
           and
           affectionate
           desire
           of
           the
           true
           Servant
           to
           the
           publike
           .
        
         
           
             IO
             MARCH
             .
          
        
      
       
         
         
           In
           my
           Lord
           Dyer
           it
           is
           said
           that
           to
           every
           Award
           ,
           
           there
           are
           five
           things
           incident
           .
        
         
           
             1.
             
             Matter
             of
             Controversie
             .
          
           
             2.
             
             Submission
             .
          
           
             3.
             
             Parties
             to
             the
             submission
             .
          
           
             4.
             
             Arbitrators
             .
          
           
             5.
             
             Rendring
             up
             of
             an
             Arbitrement
             .
          
        
         
           Reader
           ,
           my
           purpose
           is
           (
           God
           willing
           )
           to
           prosecute
           every
           one
           of
           these
           parts
           or
           incidents
           of
           an
           Award
           [
           though
           paradventure
           not
           in
           the
           order
           before
           set
           downe
           ]
           conceiving
           them
           to
           be
           as
           exact
           a
           discription
           or
           delineation
           of
           those
           things
           that
           are
           requisit
           to
           every
           award
           ,
           as
           possibly
           can
           be
           made
           :
           And
           indeed
           teaching
           to
           all
           the
           cases
           in
           the
           Law
           ,
           which
           do
           principally
           or
           chiefely
           concerne
           Awards
           or
           Arbitrements
           .
        
         
           First
           then
           there
           must
           be
           a
           matter
           of
           debate
           ,
           question
           and
           controversie
           .
        
         
           Secondly
           ,
           this
           matter
           of
           debate
           question
           and
           controversie
           must
           bee
           submitted
           .
        
         
           Thirdly
           ,
           there
           must
           be
           Parties
           to
           the
           submission
           .
        
         
         
           Fourthly
           ,
           there
           must
           be
           Arbitrators
           ,
           to
           w●om
           the
           matter
           in
           controversie
           must
           be
           submitted
           .
           And
           lastly
           the
           Arbitrators
           must
           make
           an
           award
           or
           an
           Arbitrement
           .
        
         
           Vpon
           these
           severall
           branches
           ,
           I
           shall
           raise
           severall
           questions
           ,
           and
           debate
           and
           cleare
           them
           as
           I
           goe
           ,
           and
           first
           .
        
         
           
             Who
             may
             submit
             to
             an
             Arbitrement
             and
             who
             not
             ?
          
           
             I
             Take
             this
             to
             be
             regularly
             true
             ,
             that
             no
             person
             ,
             which
             is
             not
             of
             ability
             in
             judgement
             of
             Law
             to
             make
             a
             grant
             ,
             &c
             can
             submit
             himelfe
             to
             an
             Arbitrement
          
           
             As
             men
             Attainted
             of
             Treason
             ,
             Felony
             ,
             or
             a
             Praemunire
             ,
             Ideots
             ,
             mad
             men
             ,
             a
             man
             deafe
             dumbe
             ,
             and
             blind
             from
             his
             Nativity
             ;
             a
             Feme
             Covert
             an
             Infant
             ,
             a
             man
             by
             Duress●e
             for
             a
             submission
             to
             an
             Arbitrement
             must
             be
             
               Spontanea
               voluntate
            
             .
             Persons
             Ontlawed
             ;
             for
             they
             have
             no
             Goods
             :
             a
             Dean
             without
             the
             Chapter
             ,
             a
             Major
             without
             the
             Commonalty
             ;
             the
             Master
             of
             a
             Colledge
             or
             Hospitall
             without
             his
             Fellowes
             ,
             or
             the
             like
             .
             All
             these
             as
             they
             are
             incapble
             to
             
             graut
             ,
             so
             I
             conceive
             ,
             that
             they
             are
             not
             of
             capability
             to
             submit
             to
             an
             Arbitrement
             ,
             but
             that
             the
             submission
             will
             bee
             absolutely
             void
             in
             these
             cases
             .
          
           
             The
             reason
             of
             these
             cases
             may
             be
             ,
             because
             that
             they
             have
             not
             power
             of
             them selves
             to
             dispose
             of
             their
             interest
             or
             property
             ,
             and
             therefore
             they
             cannot
             transferre
             such
             power
             over
             to
             another
             ;
             for
             the
             rule
             is
             ,
             
               quod
               ●er
               me
               non
               Possum
               ,
               necper
               alinns
               .
            
          
           
             And
             Hill
             15.
             of
             this
             King
             in
             the
             Kings
             Bench
             ,
             
             betwixt
             Rudsten
             and
             Yates
             ,
             it
             was
             adjudged
             ,
             that
             the
             submission
             of
             an
             Infant
             to
             an
             Arbitrement
             was
             absolutely
             voyd
             .
          
           
             But
             now
             on
             the
             other
             side
             ,
             I
             conceive
             that
             all
             persons
             whatsoever
             that
             are
             not
             fettered
             with
             these
             naturall
             or
             legall
             disabilities
             ;
             but
             are
             of
             capacity
             to
             make
             a
             grant
             ,
             that
             such
             persons
             may
             submit
             themselves
             to
             an
             Arbitremen
             ,
             as
             persons
             not
             attainted
             ,
             
               compos
               mentis
            
             ,
             deafe
             dumbe
             ,
             or
             blinde
             ,
             Femes
             sole
             ,
             men
             of
             full
             age
             ;
             and
             the
             like
             ,
             the
             submission
             of
             such
             persons
             to
             an
             Arbitrement
             is
             good
             ;
             but
             enough
             of
             this
             ;
             in
             the
             next
             place
             I
             shall
             consider
             .
          
        
         
           
           
             What
             things
             may
             be
             submitted
             to
             an
             Arbitrement
             ,
             and
             what
             not
             ?
          
           
             THat
             is
             to
             say
             ,
             what
             things
             are
             in
             Law
             arbitrable
             ,
             and
             what
             not
             ?
             Things
             and
             Actions
             which
             are
             meerely
             personall
             ,
             and
             incertaine
             ,
             
             as
             Trespasse
             ,
             a
             Ward
             taken
             away
             ,
             and
             the
             like
             ,
             are
             arbitrable
             .
          
           
             But
             things
             which
             are
             of
             themselves
             certaine
             ,
             are
             not
             arbitrable
             ,
             except
             the
             submission
             be
             by
             Deed
             ,
             or
             that
             they
             be
             joyned
             with
             others
             incertaine
             ,
             as
             Debt
             with
             Trespasse
             ,
             or
             the
             like
             .
          
           
             The
             reason
             that
             is
             given
             in
             4.
             
             H.
             6.
             is
             ,
             because
             the
             nature
             of
             an
             Arbitrement
             is
             ,
             to
             reduce
             things
             to
             a
             certainety
             ,
             which
             are
             in
             themselves
             incertaine
             ,
             and
             not
             to
             make
             things
             more
             certaine
             ,
             which
             are
             certaine
             already
             .
          
           
             And
             the
             reason
             likewise
             that
             is
             there
             given
             ,
             why
             a
             thing
             certaine
             ,
             which
             is
             joyned
             with
             a
             thing
             incertaine
             should
             be
             arbitrable
             ,
             is
             because
             that
             the
             arbitrement
             is
             intire
             ,
             and
             therefore
             cannot
             be
             good
             as
             to
             that
             which
             is
             arbitrable
             ,
             and
             voyd
             for
             the
             residue
             ;
             (
             which
             you
             
             must
             understand
             being
             of
             things
             within
             the
             submission
             )
             but
             being
             good
             for
             the
             part
             which
             is
             incertaine
             ,
             it
             will
             make
             the
             rest
             also
             arbitrable
             .
          
           
             Cha●tels
             reals
             or
             mixt
             ,
             
             are
             not
             of
             themselves
             alone
             arbitrable
             ,
             as
             Charters
             of
             Lands
             ,
             Leases
             ,
             or
             the
             like
             ,
             without
             the
             submissien
             be
             by
             specialty
             .
          
           
             Debt
             upon
             the
             arrerages
             of
             account
             before
             Auditors
             ,
             
             because
             such
             Debt
             is
             due
             by
             Record
             ;
             Annuities
             ,
             nor
             Freeholdes
             ,
             none
             of
             these
             are
             of
             themselves
             arbitrable
             ,
             without
             the
             snbmission
             bee
             by
             specialty
             .
          
           
             I
             must
             confesse
             that
             some
             of
             these
             Bookes
             say
             ,
             that
             Arbitrators
             may
             award
             a
             Freehold
             without
             Deed.
             Others
             say
             that
             the
             submission
             must
             be
             by
             specialty
             [
             as
             you
             may
             observe
             before
             )
             and
             some
             say
             that
             the
             Arbitrement
             in
             these
             cases
             must
             be
             by
             Deed
             and
             that
             then
             the
             arbitrement
             may
             be
             pleaded
             in
             Barre
             of
             an
             action
             .
          
           
             Bnt
             I
             take
             this
             as
             a
             generall
             rule
             ,
             that
             no
             Chattels
             reals
             ,
             or
             mixt
             ,
             no
             Debts
             by
             Deed
             ,
             or
             Record
             no
             Annuities
             nor
             Freeholds
             are
             of
             themselves
             arbitrable
             though
             that
             the
             submission
             bee
             by
             Deed
             ;
             and
             I
             shall
             prove
             it
             thus
             .
          
           
           
             If
             they
             were
             arbitrable
             of
             themselves
             ,
             then
             upon
             an
             action
             brought
             in
             any
             of
             these
             cases
             ,
             an
             arbitrement
             were
             a
             good
             plea
             in
             Barre
             of
             the
             action
             but
             an
             Arbitrement
             in
             such
             case
             is
             no
             plea
             in
             Barre
             of
             the
             action
             as
             appears
             by
             the
             books
             before
             cited
             therfore
             I
             conceive
             that
             the
             argument
             is
             plaine
             &
             evident
             that
             these
             are
             not
             of
             themselves
             arbitrable
             .
          
           
             But
             for
             further
             proofe
             of
             this
             ground
             that
             I
             have
             laid
             downe
             ;
             it
             is
             taken
             as
             a
             generall
             rule
             in
             Blaks
             case
             in
             my
             L.
             
               Coke
               6.
            
             
             
             Book
             ,
             that
             an
             arbitrement
             is
             no
             plea
             when
             an
             action
             is
             founded
             upon
             a
             deed
             ,
             when
             it
             is
             in
             the
             Realty
             ,
             or
             mixt
             with
             the
             realty
             ,
             but
             in
             such
             cases
             only
             ,
             or
             at
             least
             ,
             regularly
             ,
             where
             Damages
             alone
             are
             to
             be
             recovered
             .
          
           
             I
             shall
             conclude
             this
             with
             the
             Booke
             of
             21.
             
             E.
             3
             cited
             before
             ,
             
             that
             an
             arbitrement
             that
             the
             one
             party
             shall
             have
             the
             land
             our
             of
             the
             possession
             of
             the
             other
             ,
             doth
             not
             give
             a
             Freehold
             ;
             and
             if
             hee
             refuse
             to
             permit
             him
             to
             have
             the
             Land
             ,
             he
             hath
             no
             remedy
             ,
             if
             hee
             hath
             not
             an
             Obligation
             to
             stand
             to
             the
             Arbitrement
             .
          
           
             By
             this
             case
             wee
             may
             learne
             ,
             as
             also
             by
             that
             which
             I
             have
             told
             you
             before
             ,
             
             that
             though
             these
             thing
             are
             not
             of
             themselves
             arbitrable
             ;
             &
             so
             the
             arbitrement
             not
             pleadable
             in
             Barre
             of
             an
             action
             .
             Yet
             a
             man
             may
             in
             such
             cases
             bind
             himselfe
             by
             Obligation
             to
             stand
             to
             an
             award
             [
             as
             it
             is
             usuall
             so
             to
             do
             ]
             and
             for
             the
             non
             performance
             of
             the
             awrd
             ,
             the
             Bond
             will
             be
             forfeited
             .
             And
             this
             is
             the
             submission
             by
             specialty
             so
             often
             spoaken
             of
             in
             the
             Bookes
             before
             .
          
           
             And
             therefore
             I
             conceive
             that
             the
             opinion
             of
             Greuill
             and
             Pollard
             in
             23.
             
             H.
             7.
             is
             no
             Law
             ,
             
             who
             say
             that
             where
             there
             is
             a
             submission
             of
             the
             right
             ,
             Title
             ,
             and
             possession
             of
             land
             ,
             [
             without
             any
             other
             parsonall
             difference
             ]
             to
             an
             award
             ,
             that
             an
             arbitrement
             in
             such
             case
             is
             void
             ;
             and
             that
             an
             Obligation
             to
             obey
             such
             an
             arbitrement
             is
             void
             .
          
           
             It
             is
             true
             ,
             the
             Booke
             makes
             a
             quaere
             of
             it
             ;
             because
             that
             others
             were
             ,
             (
             as
             the
             Booke
             saith
             )
             cleere
             of
             another
             opinion
             .
             And
             certainely
             the
             Bond
             is
             good
             ;
             as
             common
             experience
             teaches
             ;
             I
             shall
             put
             a
             case
             like
             it
             ,
             which
             I
             conceive
             will
             plainely
             prove
             it
             .
          
           
             A
             man
             makes
             a
             Feoffement
             upon
             condition
             that
             the
             Feostee
             shall
             not
             take
             the
             profits
             ,
             
             the
             condition
             is
             absolutely
             
             repugnant
             and
             void
             .
             But
             a
             Bond
             in
             such
             case
             conditioned
             that
             the
             Feoffee
             shall
             not
             take
             the
             profits
             ,
             is
             good
             .
          
           
             So
             I
             say
             in
             this
             case
             ,
             though
             the
             thing
             it selfe
             be
             not
             arbitrable
             ;
             yet
             if
             a
             man
             in
             such
             case
             ,
             will
             bind
             himselfe
             to
             stand
             to
             an
             award
             ,
             the
             Bond
             is
             good
             .
          
           
             Lastly
             ,
             causes
             matrimoniall
             are
             not
             arbitrable
             ;
             neither
             are
             Offences
             criminall
             as
             Treasons
             ,
             Felonies
             ,
             &c.
             because
             it
             concerns
             the
             Commonwealth
             that
             such
             offenders
             be
             punished
             .
             But
             of
             this
             sufficient
             ;
             the
             nature
             or
             kindes
             of
             submissions
             is
             now
             to
             bee
             considered
             .
          
           
             
               Submission
               to
               an
               Award
               may
               be
               either
               
                 
                   Generall
                   ,
                   or
                   Speciall
                   .
                
                 
                   Absolute
                   .
                   or
                   Conditionall
                   .
                
              
            
          
           
             
               A
               Generall
               Submission
               .
               
            
             
               A
               generall
               Submission
               is
               of
               all
               matters
               ,
               Suits
               ,
               Debts
               ,
               Duties
               ,
               Actions
               ,
               and
               demands
               whatsoever
               .
               
            
          
           
             
               A
               speciall
               Submission
               .
            
             
               A
               speciall
               Submission
               is
               only
               of
               
               some
               certaine
               matters
               in
               controversy
               ,
               as
               such
               land
               then
               in
               question
               ;
               or
               all
               actions
               of
               Debt
               ,
               Trespasse
               ,
               or
               the
               like
               ,
               here
               I
               could
               observe
               unto
               you
               the
               difference
               betwixt
               a
               generall
               submission
               conditionall
               ,
               and
               a
               speciall
               submission
               conditionall
               ;
               but
               because
               it
               will
               be
               more
               apt
               and
               agreeable
               in
               case
               where
               I
               shall
               shew
               you
               ,
               what
               will
               be
               a
               good
               arbitrement
               and
               what
               not
               .
               I
               shall
               referre
               it
               thether
               without
               further
               saying
               .
            
          
           
             
               An
               absolute
               submission
               .
            
             
               An
               absolute
               submission
               ,
               
               where
               the
               circumstance
               of
               time
               ,
               when
               ;
               the
               manner
               of
               the
               arbitrement
               ,
               howe
               ;
               whether
               Sealed
               or
               unsealed
               or
               the
               matter
               of
               the
               arbitrament
               ;
               viz
               :
               to
               arbitrate
               part
               or
               all
               or
               the
               like
               ,
               are
               wholy
               left
               to
               the
               Arbitrators
               .
            
          
           
             
               A
               conditionall
               submission
               .
            
             
               A
               conditionall
               submission
               ,
               is
               ,
               where
               the
               submission
               is
               with
               an
               
                 ita
                 quod
              
               or
               
                 Proviso
                 &c.
              
               
               the
               award
               be
               made
               and
               delivered
               under
               in
               hands
               and
               seals
               of
               the
               arbitrators
               ,
               before
               such
               a
               time
               ;
               
               in
               such
               case
               ,
               if
               the
               time
               manner
               and
               matter
               ,
               are
               not
               all
               exactly
               obserued
               ,
               the
               arbitrement
               will
               be
               void
               ;
               but
               of
               this
               more
               fully
               hereafter
               .
            
             
               
                 Note
                 Reader
              
               ,
               
               that
               a
               submission
               may
               be
               by
               word
               onely
               as
               well
               as
               by
               Deed
               or
               specealty
               but
               the
               submission
               by
               deed
               is
               better
               ,
               for
               then
               though
               the
               submission
               be
               of
               things
               not
               arbitrable
               ,
               the
               party
               forfeites
               his
               Bond
               if
               he
               doe
               not
               obserue
               it
               whereas
               if
               the
               submission
               were
               by
               word
               onely
               there
               were
               no
               remedy
               in
               such
               case
               to
               inforce
               the
               party
               to
               performe
               the
               award
            
          
        
         
           
             Who
             may
             be
             arbitrators
             and
             who
             not
             ?
          
           
             I
             conceive
             it
             most
             fit
             ,
             that
             such
             onely
             should
             be
             Arbitrators
             who
             ,
             as
             they
             are
             indifferently
             chosen
             (
             as
             it
             is
             said
             in
             the
             Condition
             of
             the
             Obligation
             )
             are
             men
             indifferent
             ,
             just
             and
             upright
             ,
             swayed
             neither
             with
             favoure
             feare
             or
             affection
             to
             either
             party
             men
             likewise
             hauing
             sufficient
             parts
             ,
             and
             competent
             understanding
             and
             knowledg
             in
             the
             matter
             or
             busines
             referred
             to
             Arbitrement
             having
             neither
             legall
             
             (
             as
             persons
             Attainted
             ,
             convicted
             of
             perjury
             &c.
             )
             nor
             naturall
             impediments
             ,
             as
             Infants
             ,
             Ideots
             ,
             madmen
             ,
             or
             the
             like
             .
          
           
             These
             qualifications
             in
             arbitrators
             being
             duly
             observed
             a
             man
             need
             not
             dout
             of
             a
             iust
             and
             upright
             sentence
             the
             want
             of
             the
             obseruation
             of
             which
             ,
             causes
             many
             vnjust
             and
             undue
             sentences
             in
             Arbitrations
             .
          
           
             But
             I
             doe
             not
             find
             in
             our
             Law
             that
             either
             leg●ll
             ar
             naturall
             disabilities
             ,
             doe
             hinder
             any
             man
             from
             being
             an
             Arbitrator
             ;
             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
             indiff●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
             s●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
             awa●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
             trans●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
             Co●kes
             .
             5.
             
             Booke
             ,
             where
             the
             case
             is
             ●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
             some●
             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
             th●●
             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
             ow●
             proper
             nature
             is
             countermandable
             ,
             a●●
             I
             make
             a
             Letter
             of
             Attorney
             to
             ma●●
             livery
             or
             to
             sue
             an
             Action
             in
             my
             〈◊〉
             or
             if
             I
             assigne
             Auditors
             to
             take
             an
             account
             ,
             or
             if
             I
             make
             one
             my
             factor
             ,
             o●
             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.
             
             E●
             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
             me●nes
             or
             power
             that
             it
             was
             created
             .
          
           
             And
             in
             Vinyors
             case
             which
             I
             have
             ●●ited
             before
             ,
             there
             the
             submission
             〈◊〉
             by
             deed
             ,
             and
             the
             countermand
             pleade●
             by
             deed
             ,
             the
             second
             ,
             and
             last
             do●●●
             or
             question
             considerable
             in
             this
             countermand
             of
             the
             authority
             of
             Arbitrators
             i●
          
        
         
           
             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
             Ma●gent
             .
          
           
             
               Vinyors
               case
            
             cited
             before
             was
             th●●
             he
             brought
             an
             Action
             of
             debt
             upon
             
             Bond
             against
             Wilde
             ,
             conditioned
             for
             ●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
             ,
             
               revoca●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
             seal●
             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
             o●
             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
             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
             ●oulden
             of
             the
             Mann●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
             ,
             a●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
               ,
               &
               possession●
               Manerij
               de
               Dale
               ,
            
             and
             the
             Arbitrator
             makes
             an
             award
             of
             the
             Mannor
             of
             Sale
             ,
             
             this
             is
             void
             .
          
           
             Haynes
             against
             A●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
             the
             delivery
             of
             the
             evidences
             was
             not
             within
             the
             submission
             ;
             for
             they
             are
             neither
             the
             right
             nor
             title
             ,
             nor
             possession
             of
             the
             land
             .
             To
             which
             it
             was
             said
             that
             the
             chart●rs
             are
             the
             nerves
             and
             sinewes
             of
             the
             land
             ,
             and
             
             therefore
             with
             in
             the
             words
             right
             and
             Title
             ,
             for
             without
             the
             charters
             ,
             neither
             of
             these
             can
             be
             maintained
             also
             by
             8
             
               H.
               6
               &
               16
               E.
            
             4.
             
             Where
             Arbitrators
             have
             power
             over
             the
             principall
             ,
             they
             have
             power
             over
             the
             accessory
             ;
             and
             therefore
             the
             right
             and
             Title
             of
             the
             Land
             being
             put
             to
             the
             award
             of
             I.
             S.
             which
             is
             the
             Principall
             ,
             he
             hath
             power
             to
             make
             an
             award
             of
             the
             Charters
             which
             are
             the
             accessory
             .
          
           
             Againe
             ,
             an
             award
             may
             in
             some
             cases
             be
             void
             ,
             where
             it
             is
             made
             of
             parte
             onely
             of
             things
             or
             matters
             contained
             in
             the
             submission
             and
             not
             of
             the
             whole
             .
          
           
             In
             19.
             
             H.
             6
             two
             submitted
             themselves
             to
             an
             award
             upon
             the
             right
             title
             and
             possession
             of
             Land
             ;
             the
             Arbitrator
             made
             an
             award
             of
             the
             possession
             only
             ;
             which
             was
             objected
             by
             Yelverton
             to
             be
             nought
             ,
             because
             it
             was
             of
             part
             of
             the
             thing
             in
             submission
             onely
             .
             But
             by
             Newton
             if
             two
             submit
             themselves
             to
             an
             avvard
             of
             al
             Actions
             reals
             and
             personals
             ,
             and
             an
             award
             is
             made
             of
             all
             Actions
             personals
             onely
             ,
             this
             is
             good
             and
             so
             was
             the
             opinion
             of
             the
             whole
             Court.
             
          
           
             In
             39.
             
             H.
             6.
             by
             Prisot
             where
             two
             
             or
             three
             things
             are
             put
             in
             arbitrement
             joyntly
             ,
             
             and
             an
             Award
             is
             made
             of
             part
             ,
             and
             not
             of
             the
             whole
             ,
             this
             is
             a
             void
             award
             .
          
           
             And
             in
             22
             E.
             4.
             where
             the
             submission
             is
             of
             all
             trespasses
             ,
             
             betwixt
             A.
             of
             the
             one
             part
             ,
             and
             C.
             and
             D.
             of
             the
             other
             part
             ;
             and
             an
             award
             is
             made
             ,
             that
             A.
             shall
             pay
             10
             l.
             to
             C.
             and
             saith
             nothing
             of
             D.
             yet
             it
             is
             a
             good
             award
             :
             for
             it
             may
             be
             that
             A.
             hath
             offended
             C.
             and
             hath
             not
             offended
             D.
             
          
           
             Which
             books
             ,
             
             and
             all
             others
             to
             this
             purpose
             ,
             must
             hee
             understood
             with
             these
             differences
             :
             First
             ,
             where
             the
             submission
             is
             by
             Deed
             ,
             
             and
             where
             without
             Deed
             :
             where
             it
             is
             without
             Deed
             ,
             there
             the
             award
             may
             be
             made
             of
             part
             only
             ,
             and
             good
             .
          
           
             Again
             ,
             where
             the
             submission
             is
             by
             Deed
             ,
             there
             is
             this
             difference
             to
             be
             observed
             ;
             where
             the
             submission
             is
             generall
             of
             all
             matters
             ,
             &c.
             or
             in
             speciall
             ,
             of
             some
             particular
             things
             only
             ,
             with
             an
             
               Ita
               quod
            
             ,
             or
             Proviso
             ,
             the
             award
             be
             made
             
               de
               premissis
            
             ;
             or
             that
             the
             said
             award
             be
             made
             and
             given
             up
             by
             such
             a
             time
             :
             and
             where
             the
             submission
             is
             general
             or
             special
             ,
             without
             
             such
             a
             conditional
             conclusion
             .
             For
             in
             the
             first
             case
             the
             award
             must
             be
             made
             of
             all
             the
             matters
             submitted
             ,
             because
             of
             the
             conditionall
             reference
             ,
             and
             in
             the
             last
             the
             award
             may
             be
             made
             of
             part
             only
             ,
             and
             good
             .
          
           
             So
             it
             is
             (
             where
             the
             submission
             is
             not
             conditionall
             )
             in
             case
             of
             divers
             particular
             persons
             (
             as
             the
             case
             is
             put
             before
             )
             if
             two
             of
             one
             part
             ,
             and
             one
             of
             another
             part
             submit
             themselves
             ,
             the
             arbitrator
             may
             make
             an
             arbitrement
             ,
             betwixt
             the
             one
             of
             the
             two
             of
             the
             one
             part
             ,
             and
             the
             other
             of
             the
             other
             part
             ,
             and
             good
             .
          
           
             But
             note
             Reader
             ,
             that
             there
             is
             this
             difference
             to
             be
             observed
             betweene
             pleading
             of
             an
             award
             upon
             a
             submission
             general
             conditional
             ,
             and
             pleading
             of
             an
             award
             upon
             a
             submission
             special
             conditional
             .
          
           
             For
             in
             the
             first
             case
             ,
             
             if
             an
             award
             be
             pleaded
             
               de
               premissis
               modo
               &
               forma
               sequentibus
            
             ;
             and
             alledged
             to
             be
             upon
             one
             single
             matter
             in
             controversie
             ,
             this
             is
             good
             ;
             because
             it
             is
             shown
             that
             the
             award
             was
             made
             
               de
               premissis
            
             ,
             which
             doth
             import
             an
             award
             of
             all
             that
             which
             was
             referred
             to
             the
             arbitrators
             ;
             
             and
             so
             it
             shall
             be
             intended
             ,
             untill
             the
             contrary
             be
             shewn
             by
             the
             other
             party
             :
             for
             when
             the
             submission
             is
             generall
             ,
             
               Generale
               nihil
               certi
               implicat
            
             ;
             and
             it
             may
             well
             stand
             with
             the
             generality
             of
             the
             words
             ,
             that
             there
             was
             but
             one
             cause
             depending
             in
             controversie
             betwixt
             them
             .
          
           
             But
             in
             pleading
             of
             an
             award
             upon
             a
             submission
             special
             conditional
             ,
             there
             the
             award
             must
             be
             expresly
             alleaged
             to
             be
             made
             of
             all
             things
             within
             the
             submission
             ,
             or
             otherwise
             it
             is
             nought
             ,
             because
             upon
             the
             very
             face
             of
             the
             award
             it
             will
             appear
             ,
             whether
             it
             were
             made
             of
             all
             things
             in
             the
             submission
             or
             no.
             For
             if
             the
             submission
             be
             of
             several
             things
             in
             special
             ,
             and
             an
             award
             pleaded
             only
             of
             one
             ,
             it
             is
             apparent
             that
             the
             award
             is
             not
             of
             all
             matters
             contained
             in
             the
             submission
             .
          
           
             Again
             ,
             if
             upon
             the
             pleading
             of
             an
             award
             upon
             a
             submission
             general
             conditional
             it
             doth
             appear
             either
             upon
             the
             shewing
             of
             the
             other
             party
             (
             as
             hath
             been
             said
             )
             or
             by
             the
             award
             it self
             ,
             that
             it
             was
             not
             of
             all
             matters
             in
             controversie
             in
             such
             case
             also
             ,
             the
             award
             will
             be
             void
             ,
             though
             the
             submission
             
             were
             general
             ,
             because
             that
             it
             was
             conditional
             .
          
           
             Mote
             and
             Menerels
             case
             in
             my
             Lord
             Dyer
             was
             thus
             ,
             
             they
             were
             bound
             to
             stand
             to
             the
             award
             of
             A.
             for
             Dilapidations
             ,
             &c.
             and
             all
             other
             suits
             ,
             quarrels
             &c.
             
             
               Ita
               quod
            
             ,
             the
             said
             award
             were
             made
             ,
             &c.
             who
             made
             an
             award
             of
             the
             Delapidations
             ,
             with
             a
             protestation
             that
             hee
             would
             not
             meddle
             with
             the
             rest
             .
             In
             this
             case
             the
             opinion
             of
             the
             book
             is
             ,
             that
             the
             award
             is
             nought
             ,
             for
             that
             it
             did
             not
             extend
             to
             all
             the
             points
             in
             the
             submission
             ,
             for
             he
             made
             no
             arbitrement
             of
             the
             suits
             and
             quarrels
             ,
             &c.
             but
             made
             an
             expresse
             protestation
             that
             he
             would
             not
             meddle
             with
             them
             ;
             by
             which
             he
             hath
             disabled
             himself
             to
             be
             an
             arbitrator
             in
             the
             premises
             ,
             because
             that
             he
             refused
             to
             make
             an
             arbitrement
             according
             to
             the
             submission
             of
             the
             parties
             ,
             who
             chose
             him
             for
             to
             arbitrate
             ,
             conditionally
             
               ut
               supra
               :
               viz.
            
             So
             that
             the
             same
             award
             ,
             &c.
             which
             is
             as
             well
             of
             suits
             and
             quarrels
             ,
             &c.
             as
             of
             dilapidations
             .
          
           
             In
             this
             case
             ▪
             though
             the
             latter
             part
             of
             the
             submission
             were
             generall
             ,
             yet
             because
             it
             was
             conditional
             ,
             and
             it
             did
             
             appear
             by
             the
             award
             it self
             ,
             that
             it
             was
             not
             made
             of
             all
             things
             submitted
             ,
             therefore
             the
             award
             was
             not
             held
             void
             .
          
           
             But
             in
             this
             case
             I
             conceive
             ,
             that
             if
             the
             award
             had
             been
             of
             the
             dilapidations
             generally
             ,
             without
             the
             protestation
             ,
             that
             it
             had
             been
             good
             enough
             ,
             because
             that
             the
             latter
             part
             of
             the
             submission
             is
             general
             :
             and
             therefore
             if
             the
             award
             had
             been
             pleaded
             
               de
               premissis
            
             ,
             and
             aleage
             the
             award
             of
             the
             delapidations
             ,
             it
             shall
             be
             intended
             that
             this
             was
             all
             the
             matter
             in
             controversie
             betwixt
             them
             ,
             untill
             the
             contrary
             be
             shewed
             .
          
           
             There
             is
             one
             thing
             yet
             in
             Baspoles
             case
             worth
             the
             noting
             ,
             
             which
             I
             cannot
             omit
             :
             where
             it
             is
             adjudged
             ,
             that
             though
             there
             are
             many
             matters
             in
             controversie
             ,
             yet
             if
             one
             only
             be
             notified
             to
             the
             Arbitrator
             ,
             he
             may
             make
             an
             award
             of
             this
             ;
             for
             the
             Arbitrator
             is
             in
             place
             of
             a
             Judge
             ,
             and
             his
             office
             is
             to
             determine
             
               secundum
               allegata
               &
               probata
            
             ;
             and
             the
             duty
             of
             the
             parties
             which
             are
             grieved
             ,
             and
             know
             their
             particular
             griefs
             ,
             is
             ,
             to
             give
             notice
             of
             the
             causes
             of
             controversie
             to
             the
             Arbitrator
             ,
             
             
             for
             they
             are
             privy
             to
             them
             ,
             and
             the
             Arbitrator
             a
             stranger
             ,
             and
             every
             one
             ought
             to
             do
             that
             which
             lies
             in
             his
             notice
             .
          
           
             And
             if
             other
             construction
             should
             be
             made
             ,
             most
             arbitrements
             might
             be
             avoided
             :
             for
             the
             one
             might
             conceale
             a
             trespasse
             done
             ,
             or
             other
             secret
             cause
             of
             action
             given
             him
             ,
             &
             so
             avoid
             the
             arbitrement
             ,
             
               &
               expedit
               ▪
               r●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
             arbi●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
             condit●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
             qua●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
             o●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
             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
             Yates●
             ,
             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
             tha●
             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
             ●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
             Moor●
             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
             Moor●
             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
             ●s
             as
             much
             variety
             of
             judgement
             and
             opinion
             in
             it
             ,
             as
             ever
             I
             met
             with
             in
             ●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
             ●ward
             ,
             must
             take
             notice
             of
             it
             at
             his
             own
             perill
             :
             Because
             as
             Catesby
             saith
             ●●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
             conceive
             the
             judgement
             of
             these
             learned
             men
             ,
             viz.
             
               Fairfax
               ,
               Starkey
               ,
               Yelverton
            
             ,
             and
             others
             ,
             ought
             not
             to
             be
             so
             undervalued
             ,
             especially
             upon
             no
             lesse
             then
             four
             severall
             debates
             of
             the
             point
             ,
             
             as
             to
             be
             called
             a
             sudden
             opinion
             ,
             as
             it
             is
             in
             Fraunces
             case
             in
             my
             Lord
             Cokes
             8
             book
             .
             But
             for
             the
             Law
             in
             this
             point
             ,
             certainly
             it
             is
             now
             setlet
             and
             in
             peace
             ,
             that
             the
             Compromittor
             must
             take
             notice
             of
             it
             at
             his
             own
             perill
             ,
             having
             bound
             himself
             to
             stand
             to
             and
             observe
             the
             award
             .
          
           
           
             In
             1
             Hen.
             7.
             the
             opinion
             was
             clear
             (
             saith
             the
             book
             )
             that
             the
             Obligor●
             ought
             to
             take
             notice
             of
             the
             award
             at
             his
             own
             peril
             ,
             
             because
             he
             hath
             bound
             himself
             so
             to
             do
             .
          
           
             And
             in
             18
             E.
             4.
             by
             Brian
             ,
             
             Vavisor
             ,
             and
             Catesby
             ,
             Justices
             ;
             where
             an
             award
             is
             made
             ,
             the
             party
             ought
             to
             take
             notice
             of
             it
             at
             his
             own
             perill
             ,
             and
             they
             say
             ,
             that
             so
             it
             was
             adjudged
             in
             the
             time
             of
             the
             same
             King
             ,
             in
             the
             Kings
             Bench.
             
          
           
             Which
             cases
             are
             agreed
             for
             Law
             in
             my
             Lord
             Cokes
             4
             book
             ,
             
             as
             also
             in
             his
             8
             book
             Fraunces
             case
             ,
             where
             it
             is
             said
             ,
             that
             so
             is
             the
             Law
             without
             question
             .
          
           
             And
             the
             reason
             given
             there
             is
             ,
             because
             when
             a
             man
             bindes
             himself
             to
             do
             or
             performe
             any
             thing
             awarded
             by
             a
             stranger
             ,
             he
             doth
             by
             this
             ,
             take
             notice
             at
             his
             perill
             ,
             of
             all
             things
             incident
             to
             this
             ,
             for
             the
             saving
             of
             his
             obligation
             .
          
           
             And
             therefore
             wee
             may
             safely
             conclude
             the
             Booke
             in
             7.
             
             H.
             8.
             where
             there
             is
             an
             opinion
             to
             the
             contrary
             ,
             
             to
             be
             no
             Law
             :
             but
             of
             this
             sufficient
             .
             I
             shall
             now
             proceede
             to
             shew
             you
             in
             
             what
             respects
             or
             for
             what
             other
             rea●ons
             an
             award
             may
             be
             saide
             to
             be
             void
             in
             Law
             :
             the
             first
             ground
             I
             layde
             downe
             ,
             was
             where
             the
             award
             is
             not
             according
             to
             the
             submission
             ,
             the
             next
             shall
             be
             the
             incertainety
             ,
          
        
         
           
             Where
             an
             award
             shall
             be
             voide
             in
             Lawe
             for
             the
             incertainety
             ;
          
           
             In
             all
             cases
             where
             the
             award
             is
             uncertaine
             ,
             it
             is
             void
             :
             for
             the
             arbitrators
             (
             as
             I
             have
             shewed
             before
             )
             are
             Iudges
             ,
             and
             their
             judgement
             must
             be
             certain
             ;
             for
             
               judicium
               debet
               esse
               cer●●●
            
             .
             And
             the
             Law
             doth
             in
             all
             cases
             abhorre
             uncertainty
             ,
             because
             it
             is
             the
             mother
             of
             confusion
             .
          
           
             Samons
             case
             ;
             
             the
             Arbitrator
             awarded
             ,
             that
             the
             one
             of
             the
             parties
             should
             enter
             into
             a
             bond
             to
             the
             other
             ,
             and
             doth
             not
             award
             in
             what
             summe
             the
             bond
             shall
             be
             ,
             adjudged
             void
             for
             the
             incertainty
             .
          
           
             For
             ,
             as
             the
             book
             saith
             ,
             the
             arbitrators
             are
             judges
             of
             the
             case
             ,
             and
             their
             judgement
             awarded
             ,
             ought
             to
             be
             certain
             ,
             so
             that
             by
             this
             the
             controversie
             be
             decided
             ,
             that
             it
             may
             not
             bee
             the
             
             cause
             ,
             through
             the
             uncertainty
             of
             new
             controversie
             .
          
           
             Martham
             and
             Iennings's
             case
             ,
             
             in
             debt
             upon
             an
             Obligation
             to
             stand
             to
             the
             arbitrement
             of
             Poly
             of
             Grayes
             Inne
             ,
             for
             the
             title
             of
             Coppy
             hold
             in
             question
             betwixt
             the
             parties
             ;
             Poly
             awarded
             ,
             that
             Iennings
             should
             pay
             to
             the
             Plaintiffe
             20
             marks
             ,
             viz.
             6
             l.
             131.
             4d
             .
             
               super
               vicesimum
               primum
               diem
               Maii
            
             ;
             and
             6
             l.
             13
             s.
             4d
             .
             at
             the
             Feast
             of
             St.
             Michael
             next
             following
             :
             and
             that
             the
             plaintiffe
             should
             release
             to
             the
             defendant
             all
             his
             right
             in
             the
             Coppyhold
             ,
             
               super
               predictum
               primum
               diem
               Maii
            
             (
             omitting
             vicesimum
             )
             where
             there
             was
             no
             first
             day
             named
             before
             .
          
           
             The
             Defendant
             pleaded
             ,
             that
             there
             was
             no
             award
             made
             :
             the
             Plaintiffe
             replyed
             ,
             that
             there
             was
             an
             award
             made
             ,
             and
             sets
             it
             forth
             ;
             and
             that
             the
             Defendant
             hath
             not
             paid
             the
             6
             l.
             131.
             4d
             .
             upon
             the
             first
             day
             of
             May
             :
             the
             Defendant
             demurred
             ,
             intending
             that
             the
             arbitrement
             was
             void
             for
             the
             uncertainty
             ,
             viz.
             in
             that
             it
             was
             to
             be
             paid
             
               super
               predict
               .
               primum
               diem
               Mitij
               ,
            
             where
             there
             was
             no
             first
             day
             named
             before
             .
             Tanfield
             Justice
             ,
             the
             arbitrement
             
             is
             void
             in
             the
             whole
             ,
             because
             that
             the
             day
             to
             which
             the
             release
             is
             referred
             to
             be
             made
             it
             uncertain
             ,
             and
             so
             it
             doth
             not
             appear
             when
             it
             shall
             be
             made
             :
             and
             for
             that
             it
             doth
             appear
             ,
             that
             the
             intent
             of
             the
             arbitrator
             was
             ,
             that
             it
             should
             be
             made
             at
             a
             day
             certain
             ,
             and
             this
             is
             not
             certainly
             expressed
             ,
             it
             is
             void
             .
             And
             though
             that
             the
             arbitrement
             consists
             upon
             divers
             parts
             ,
             and
             some
             are
             certain
             ,
             yet
             if
             any
             part
             be
             uncertain
             ,
             all
             is
             void
             ,
             if
             it
             be
             materiall
             and
             concern
             a
             party
             to
             the
             submission
             ,
             as
             here
             it
             doth
             .
             And
             it
             is
             not
             like
             the
             case
             of
             19
             E.
             4.
             1.
             for
             there
             the
             award
             which
             was
             void
             for
             part
             ,
             that
             part
             concerned
             a
             stranger
             not
             party
             to
             the
             arbitrement
             ,
             but
             here
             it
             concerns
             both
             parties
             to
             the
             arbitrement
             .
             And
             though
             that
             there
             be
             another
             clause
             ,
             that
             the
             Plaintiffe
             shall
             make
             further
             assurance
             ;
             yet
             his
             intent
             was
             ,
             that
             the
             other
             should
             be
             also
             done
             :
             and
             because
             that
             that
             is
             void
             for
             the
             uncertainty
             ,
             all
             is
             void
             :
             for
             an
             award
             is
             like
             a
             judgement
             ,
             which
             if
             it
             be
             imperfect
             in
             any
             part
             ,
             it
             is
             void
             for
             the
             whole
             ;
             and
             after
             ,
             judgement
             was
             given
             for
             the
             Defendant
             .
          
           
           
             Note
             here
             Reader
             ,
             that
             if
             an
             award
             be
             made
             of
             severall
             things
             ,
             all
             within
             the
             submission
             ;
             if
             it
             be
             uncertain
             in
             part
             onely
             ,
             it
             is
             totally
             void
             ,
             which
             doth
             agree
             with
             the
             differences
             which
             I
             have
             formerly
             layd
             down
             .
          
           
             In
             8
             E.
             4.
             cited
             before
             ,
             
             by
             Yelverton
             :
             if
             an
             award
             be
             made
             ,
             that
             an
             action
             shal
             be
             conceived
             betwixt
             the
             parties
             ,
             by
             the
             advice
             of
             S
             ,
             and
             F
             ,
             the
             award
             is
             void
             :
             because
             saith
             he
             ,
             every
             arbitrement
             ought
             to
             be
             full
             and
             certain
             ,
             and
             so
             it
             is
             not
             here
             ,
             untill
             the
             said
             S
             ,
             and
             F.
             limit
             the
             action
             .
          
           
             I
             must
             confesse
             the
             greater
             opinion
             in
             this
             case
             is
             ,
             that
             the
             award
             is
             good
             :
             but
             I
             conceive
             the
             opinion
             of
             Yelverton
             (
             as
             I
             formerly
             said
             )
             to
             bee
             the
             better
             opinion
             ;
             because
             the
             judgement
             of
             Arbitrators
             ought
             to
             bee
             finall
             (
             as
             I
             shall
             shew
             you
             hereafter
             )
             and
             nothing
             ought
             to
             be
             referred
             to
             the
             judgement
             of
             other
             persons
             or
             to
             the
             law
             :
             for
             by
             the
             submission
             (
             which
             must
             be
             their
             rule
             )
             they
             themselves
             are
             to
             end
             al
             suits
             &
             controversies
             betwixt
             the
             parties
             ;
             and
             if
             they
             do
             not
             ,
             their
             award
             is
             not
             according
             to
             the
             submission
             ,
             and
             therefore
             void
             .
          
           
           
             Rudston
             and
             Yates's
             case
             (
             which
             I
             have
             put
             often
             before
             ,
             
             though
             to
             other
             purposes
             )
             was
             thus
             :
             an
             Infant
             and
             a
             man
             of
             ful
             age
             submitted
             themselves
             to
             an
             award
             ;
             the
             Arbitrators
             award
             ,
             that
             the
             Infant
             should
             pay
             .
             5
             l.
             to
             the
             other
             party
             ,
             for
             
               quite
               rents
               and
               other
               small
               things
               ,
               &c.
               
            
             T
             is
             true
             ,
             that
             in
             this
             case
             it
             was
             adjudged
             (
             as
             I
             have
             formerly
             said
             )
             that
             the
             submission
             of
             the
             Infant
             was
             absolutely
             void
             .
             But
             it
             was
             also
             adjudged
             ,
             that
             the
             award
             in
             this
             case
             was
             void
             ,
             because
             of
             the
             uncertainty
             of
             those
             words
             ,
             
               other
               small
               things
            
             ,
             it
             not
             appearing
             what
             those
             other
             things
             were
             :
             and
             it
             may
             bee
             they
             were
             such
             things
             ,
             for
             which
             an
             Infant
             by
             the
             Law
             may
             not
             be
             chargeable
             :
             and
             by
             the
             same
             reason
             they
             have
             assessed
             5
             l.
             they
             might
             have
             assessed
             20
             l.
             
          
           
             Here
             likewise
             note
             Reader
             ,
             that
             the
             award
             being
             of
             things
             within
             the
             submission
             ,
             was
             adjudged
             totally
             void
             for
             the
             uncertainty
             of
             part
             only
             .
          
           
             Two
             submit
             themselves
             to
             the
             award
             of
             I.
             S.
             who
             awards
             ,
             
             that
             one
             of
             the
             parties
             should
             pay
             a
             certaine
             sum
             to
             the
             other
             ,
             and
             that
             the
             other
             
             in
             consideration
             of
             this
             ,
             should
             discharge
             him
             of
             a
             bond
             in
             which
             they
             two
             were
             bound
             to
             a
             third
             person
             in
             an
             100.
             
               l.
               out
               t●
               circit●r
            
             .
          
           
             In
             this
             case
             it
             was
             objected
             ,
             that
             the
             arbitrement
             is
             void
             ,
             because
             the
             Arbitrators
             have
             arbitrated
             a
             thing
             uncertain
             ;
             by
             reason
             that
             it
             doth
             not
             certainly
             appear
             of
             what
             summe
             the
             bond
             was
             in
             which
             they
             were
             bound
             ,
             and
             the
             
               ●o
               circiter
            
             is
             utterly
             uncertain
             .
          
           
             But
             the
             opinion
             of
             the
             whole
             Court
             was
             ,
             that
             there
             was
             a
             sufficient
             certainty
             ;
             because
             that
             lyes
             not
             in
             the
             power
             of
             the
             Arbitrators
             to
             know
             the
             direct
             sum
             ,
             and
             a
             small
             variation
             is
             not
             materiall
             ,
             and
             therefore
             the
             award
             was
             held
             good
             .
          
           
             Nichols
             and
             Grummons
             case
             ▪
             
             there
             the
             Arbitrators
             award
             ,
             that
             one
             of
             the
             parties
             should
             pay
             3
             l.
             101.
             to
             the
             other
             ,
             and
             doth
             not
             say
             for
             what
             ;
             so
             that
             it
             may
             appear
             whether
             it
             concerned
             him
             or
             no
             ,
             it
             was
             held
             void
             for
             the
             uncertainty
             .
             And
             if
             this
             should
             not
             be
             void
             ,
             it
             might
             be
             very
             mischievous
             to
             the
             party
             ;
             for
             by
             this
             means
             he
             might
             be
             doubly
             charged
             .
             For
             in
             
             an
             action
             brought
             for
             the
             same
             thing
             ,
             for
             which
             this
             money
             is
             awarded
             to
             be
             paid
             ,
             I
             doubt
             the
             arbitrement
             could
             be
             *
             no
             plea
             in
             bar
             of
             the
             action
             ;
             because
             it
             cannot
             appear
             ,
             whether
             it
             were
             for
             the
             same
             thing
             or
             no.
             And
             the
             avertement
             of
             the
             party
             can
             never
             declare
             the
             intent
             of
             the
             Arbitrators
             ,
             and
             so
             help
             the
             uncertainty
             or
             other
             imperfection
             in
             the
             arbitrement
             ,
             as
             it
             is
             agreed
             in
             this
             case
             ,
             and
             resolved
             also
             in
             7
             and
             8
             of
             the
             Queen
             ,
             Dyer
             :
             and
             in
             Girling
             and
             Gosnolds
             case
             ,
             here
             immediately
             following
             .
          
           
             Girling
             and
             Gosuolds
             case
             in
             the
             Kings
             Bench
             was
             thus
             :
             Debt
             was
             brought
             upon
             a
             bond
             for
             not
             observing
             of
             an
             award
             ;
             which
             was
             ,
             that
             the
             Defendant
             should
             pay
             to
             the
             Plaintiffe
             20
             l.
             
               per
               annum
            
             ,
             during
             the
             continuance
             of
             two
             leases
             for
             yeares
             in
             being
             of
             the
             Parsonage
             impropriate
             of
             Yarmouth
             ,
             &c.
             and
             it
             was
             not
             showne
             in
             the
             award
             for
             what
             tearm
             the
             leases
             were
             ;
             but
             the
             Plaintiffe
             shewed
             for
             what
             tearme
             they
             were
             ,
             and
             the
             continuance
             of
             them
             ;
             and
             alleaged
             a
             breach
             for
             non
             payment
             of
             the
             20
             l.
             &c.
             
          
           
           
             In
             this
             case
             it
             was
             objected
             ,
             that
             the
             award
             was
             void
             for
             the
             uncertainty
             ,
             because
             that
             it
             did
             not
             expresse
             for
             what
             time
             or
             tearme
             the
             leases
             for
             yeares
             were
             ,
             and
             that
             it
             could
             not
             bee
             aided
             by
             the
             averrement
             of
             the
             party
             :
             and
             for
             the
             uncertainty
             Samons
             case
             was
             cited
             ;
             for
             the
             averment
             my
             
               L.
               Dyers
            
             case
             which
             I
             put
             you
             before
             .
          
           
             But
             by
             Popham
             Chief
             Justice
             the
             award
             is
             good
             :
             he
             agreed
             that
             where
             the
             award
             is
             uncertaine
             ,
             it
             is
             void
             :
             and
             that
             the
             parties
             can
             never
             aid
             it
             by
             an
             averrement
             ;
             to
             shew
             the
             intent
             of
             the
             Arbitrators
             ,
             if
             it
             be
             not
             expressed
             in
             the
             award
             ,
             either
             directly
             ,
             or
             by
             circumstance
             .
          
           
             Bu●
             he
             said
             that
             if
             Samons
             case
             in
             Cokes
             5.
             book
             had
             been
             ,
             
             tha●
             the
             party
             should
             be
             bound
             in
             such
             a
             sum
             ,
             as
             hee
             was
             bound
             in
             to
             stand
             to
             the
             award
             ,
             or
             by
             other
             reference
             ,
             so
             that
             it
             might
             be
             reduced
             to
             a
             certainty
             ,
             and
             this
             infallibly
             ;
             in
             such
             case
             the
             award
             had
             been
             good
             .
          
           
             And
             in
             this
             case
             the
             payment
             of
             the
             20
             
               l.
               per
               annum
            
             is
             referred
             to
             the
             continuance
             of
             the
             leafes
             ,
             which
             is
             
             certain
             ;
             and
             therefo●e
             he
             conceived
             the
             award
             to
             be
             good
             .
             Of
             the
             same
             opinion
             were
             
               Williams
               ,
               Yelverton
            
             ,
             and
             Tanfield
             ,
             Justices
             .
          
           
             Here
             Reader
             you
             may
             observe
             that
             an
             award
             which
             is
             referred
             or
             may
             be
             reduc'd
             to
             a
             certainty
             ,
             is
             good
             enough
             ,
             agreeing
             with
             that
             rule
             in
             law
             ,
             
               certum
               est
               quod
               certum
               reddi
               potest
               .
            
          
           
             This
             shall
             suffice
             ,
             to
             shew
             you
             in
             what
             case
             an
             award
             shall
             be
             void
             for
             uncertainty
             .
             The
             next
             thing
             considerable
             is
             ,
          
        
         
           
             Where
             an
             Award
             shall
             be
             void
             in
             Law
             for
             impossibility
             .
          
           
             Wheresoever
             the
             Arbitrators
             award
             a
             thing
             impossible
             to
             be
             done
             ,
             in
             such
             case
             the
             award
             is
             void
             ,
             and
             by
             consequence
             the
             bond
             not
             forfeitable
             for
             the
             non-performance
             of
             it
             (
             as
             I
             have
             shewed
             before
             )
             for
             it
             were
             a
             most
             unjust
             and
             unreasonable
             thing
             for
             to
             make
             a
             man
             incurre
             a
             penalty
             for
             the
             not
             doing
             of
             that
             which
             is
             in
             it self
             impossible
             to
             be
             done
             .
          
           
             In
             8
             E.
             4.
             by
             Yelverton
             :
             
             if
             an
             arbitrement
             be
             made
             to
             do
             a
             thing
             impossible
             ,
             
             the
             party
             for
             the
             nonperformance
             of
             this
             shall
             not
             lose
             his
             Obligation
             ,
             notwithstanding
             that
             hee
             bee
             bound
             to
             stand
             to
             the
             arbitrement
             ,
             because
             he
             cannot
             by
             any
             possibility
             do
             it
             .
          
           
             As
             if
             they
             award
             that
             I
             shall
             make
             the
             Thames
             to
             run
             over
             the
             seller
             of
             Westminster
             within
             a
             day
             :
             or
             that
             I
             shall
             pull
             down
             Pauls
             steeple
             with
             my
             hands
             within
             an
             hour
             ,
             or
             the
             like
             impossibilities
             ;
             because
             I
             cannot
             performe
             it
             ,
             I
             am
             excused
             of
             my
             Obligation
             .
          
           
             So
             in
             8
             E.
             4.
             by
             Moile
             :
             
             if
             the
             arbitrators
             award
             a
             thing
             impossible
             ,
             as
             if
             I
             put
             my self
             upon
             an
             arbitrement
             this
             day
             ,
             and
             they
             award
             ,
             that
             I
             shall
             pay
             a
             sum
             certain
             at
             a
             day
             which
             was
             before
             the
             submission
             ;
             I
             shall
             not
             forfeit
             my
             Obligation
             for
             the
             non-performance
             of
             this
             arbitrement
             ,
             because
             that
             it
             was
             impossible
             to
             be
             performed
             .
          
           
             In
             21
             E.
             4.
             by
             Genney
             :
             if
             an
             award
             be
             ,
             
             that
             I
             shall
             release
             all
             the
             right
             which
             I
             have
             in
             the
             Mannor
             of
             I
             ,
             S.
             in
             the
             County
             of
             M.
             to
             Pigot
             ,
             or
             levie
             a
             fine
             to
             him
             ,
             and
             in
             truth
             there
             is
             no
             
             such
             Mannor
             ;
             this
             award
             is
             void
             ,
             because
             it
             is
             impossible
             .
          
           
             So
             if
             the
             award
             be
             ,
             
             that
             he
             shall
             release
             his
             suit
             against
             B.
             and
             he
             hath
             no
             suit
             against
             him
             ,
             this
             is
             a
             void
             award
             .
          
           
             
               But
               note
               Reader
            
             .
             Where
             the
             thing
             awarded
             is
             in
             it self
             feasable
             and
             possible
             to
             be
             done
             ,
             though
             in
             relation
             to
             him
             that
             is
             to
             do
             it
             ,
             it
             may
             not
             be
             possible
             ;
             yet
             because
             it
             carries
             with
             it
             no
             apparent
             impossibility
             ,
             the
             award
             in
             such
             case
             is
             good
             .
          
           
             If
             the
             Arbitrators
             award
             ,
             
             that
             hee
             shall
             pay
             a
             1000
             Marks
             presently
             ,
             he
             is
             bound
             to
             do
             it
             :
             and
             it
             is
             the
             folly
             of
             the
             party
             to
             put
             such
             confidence
             in
             the
             parties
             that
             are
             chosen
             arbitrators
             .
          
           
             So
             they
             may
             arbitrate
             things
             ,
             
             the
             party
             cannot
             do
             (
             which
             are
             the
             very
             words
             of
             the
             book
             )
             as
             that
             the
             Defendant
             shall
             pay
             10
             l.
             in
             money
             ,
             where
             peradventure
             hee
             never
             had
             10
             d.
             Or
             that
             he
             shall
             pay
             20
             Tunnes
             of
             wine
             ,
             or
             the
             like
             ;
             where
             he
             hath
             not
             one
             :
             in
             these
             cases
             the
             award
             is
             good
             .
          
           
             In
             debt
             upon
             a
             bond
             ,
             
             to
             stand
             to
             an
             
             award
             ;
             the
             Defendant
             pleaded
             ,
             that
             the
             Arbitrators
             did
             award
             that
             the
             Defendant
             within
             eight-dayes
             after
             the
             award
             should
             go
             to
             the
             house
             of
             Sir
             
               Henry
               Collet
            
             ,
             and
             that
             he
             should
             bring
             a
             bale
             of
             Woad
             ,
             &c.
             and
             the
             Defendant
             saith
             that
             there
             was
             not
             any
             bale
             of
             Woad
             in
             the
             house
             of
             the
             said
             
               Henry
               Collet
            
             ,
             within
             eight
             dayes
             after
             the
             said
             award
             .
          
           
             By
             Keble
             this
             plea
             is
             not
             good
             ;
             because
             he
             hath
             bound
             himself
             to
             stand
             to
             the
             award
             ,
             and
             to
             perform
             it
             ,
             which
             he
             must
             do
             ,
             otherwise
             his
             obligation
             is
             forfeited
             .
             Besides
             this
             is
             a
             thing
             feasable
             ,
             for
             though
             Sir
             
               Hen
               ,
               Collet
            
             had
             not
             any
             bales
             in
             his
             house
             ,
             if
             he
             would
             have
             performed
             the
             condition
             ,
             he
             ought
             to
             have
             bought
             certain
             bails
             ,
             and
             to
             have
             brought
             them
             to
             the
             house
             of
             Sir
             
               Henry
               Collet
            
             ,
             &c.
             and
             then
             departed
             &c.
             and
             because
             he
             hath
             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
             :
             bu●
             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
             n●
             .
          
           
             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
             oblig●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
             the●
             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
             Ion●●
             Iustice
             said
             that
             he
             might
             compell
             the
             oblige●
             upon
             payment
             of
             the
             money
             ,
             though
             the
             bond
             were
             forfeited
             ,
             to
             de●iver
             the
             bond
             by
             subpoen●
             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
             Arbitrator●
             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
             ●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
             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.
             
          
           
             ●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
             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
             ●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
             ●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
             matter
             a
             reserving
             of
             power
             to
             make
             a
             second
             arbitrement
             ,
             which
             I
             conceive
             they
             cannot
             do
             .
          
           
             I
             shall
             conclude
             this
             point
             with
             that
             ingenious
             conceit
             of
             Herne
             ,
             
             in
             Emery
             and
             Emeryes
             case
             ,
             remembred
             before
             ▪
             only
             a
             word
             or
             two
             more
             of
             his
             added
             .
          
           
             An
             arbitrement
             ,
             saith
             he
             ,
             is
             like
             a
             fine
             ,
             wherein
             the
             Judges
             are
             arbitrators
             :
             
             one
             hath
             land
             ,
             
               &
               pro
               hac
               concordia
            
             ,
             the
             other
             hath
             mony
             ;
             therfore
             fines
             upon
             condition
             are
             refused
             ▪
             because
             not
             finall
             .
          
           
             So
             the
             Law
             doth
             reject
             all
             arbitrements
             that
             are
             conditionall
             ,
             or
             which
             leave
             the
             matters
             in
             controversie
             in
             suspence
             ,
             or
             unconcluded
             .
             For
             as
             a
             fine
             is
             so
             called
             because
             that
             it
             doth
             
               finem
               li●●bus
               imponere
            
             :
             so
             the
             proper
             work
             or
             office
             of
             an
             arbitrement
             ,
             is
             to
             put
             an
             end
             to
             controversie
             .
          
           
             So
             Yelverton
             in
             8
             E.
             4.
             
             An
             arbitrement
             ,
             
             saith
             he
             ,
             is
             used
             for
             the
             Common
             weale
             ,
             for
             to
             decide
             debates
             and
             wrongs
             amongst
             the
             people
             ,
             as
             fines
             are
             ;
             here
             hee
             likewise
             joynes
             them
             both
             together
             .
          
           
             And
             the
             very
             words
             of
             the
             condition
             in
             every
             bond
             to
             stand
             to
             an
             award
             ,
             will
             sufficiently
             instruct
             the
             arbitrators
             what
             they
             are
             to
             do
             in
             this
             behalfe
             (
             which
             certainly
             prudent
             Antiquity
             put
             in
             to
             that
             very
             purpose
             )
             where
             the
             parties
             doe
             submit
             themselves
             to
             the
             arbitrement
             ;
             sentence
             ,
             and
             finall
             determination
             of
             the
             arbitrators
             :
             and
             therefore
             the
             award
             is
             not
             according
             to
             the
             submission
             ,
             if
             
             it
             be
             not
             finall
             :
             the
             next
             thing
             to
             be
             considered
             ,
             is
             ,
          
        
         
           
             Where
             an
             award
             against
             law
             shall
             be
             void
             .
          
           
             It
             may
             be
             aptly
             demanded
             ,
             what
             I
             intend
             by
             an
             award
             against
             law
             :
             for
             every
             award
             that
             is
             not
             according
             to
             law
             ;
             as
             where
             it
             is
             uncertaine
             ,
             impossible
             ,
             or
             the
             like
             (
             as
             I
             have
             shown
             before
             )
             may
             bee
             truly
             said
             to
             bee
             against
             law
             :
             and
             therefore
             this
             will
             be
             but
             
               actum
               agere
            
             ,
             to
             shew
             ,
             that
             an
             award
             against
             law
             shall
             be
             void
             .
          
           
             By
             Billing
             in
             8
             E.
             4.
             an
             award
             which
             is
             impossible
             is
             against
             the
             law
             :
             
             for
             (
             saies
             he
             )
             the
             law
             is
             upon
             possibility
             and
             reason
             ,
             therefore
             that
             which
             is
             impossible
             is
             against
             law
             .
          
           
             So
             by
             Nele
             and
             Choke
             ,
             
             an
             award
             which
             is
             made
             in
             parcels
             ,
             or
             which
             enjoynes
             a
             thing
             not
             in
             the
             power
             of
             the
             party
             ,
             is
             against
             law
             .
          
           
             By
             Keble
             also
             in
             9
             H.
             7.
             an
             award
             that
             a
             man
             shall
             pay
             more
             then
             of
             right
             he
             ought
             to
             pay
             ,
             
             is
             against
             law
             .
          
           
             T
             is
             true
             ,
             that
             all
             these
             ,
             or
             the
             like
             ,
             in
             a
             general
             acceptation
             of
             the
             words
             
             may
             be
             said
             to
             be
             against
             law
             ,
             because
             they
             do
             not
             agree
             with
             the
             law
             .
          
           
             But
             in
             a
             more
             particular
             and
             restrained
             acceptation
             of
             the
             words
             ,
             
             that
             is
             properly
             said
             to
             hee
             against
             law
             ;
             which
             is
             either
             
               malum
               in
               se
            
             ,
             or
             
               malum
               prohibitum
            
             ;
             that
             is
             ,
             either
             against
             the
             Commandements
             of
             God
             ,
             or
             the
             Decrees
             Maxims
             and
             Principles
             of
             the
             Law
             ,
             as
             appeares
             by
             the
             books
             in
             the
             margine
             .
             And
             in
             this
             sense
             properly
             I
             conceive
             the
             Law
             is
             to
             be
             understood
             ,
             where
             it
             speaks
             of
             an
             award
             against
             law
             .
          
           
             And
             therefore
             if
             an
             award
             be
             ,
             that
             the
             defendant
             shall
             kill
             or
             rob
             I.
             S.
             or
             that
             he
             shall
             maintain
             the
             plaintiffe
             in
             such
             a
             suit
             :
             or
             that
             he
             shall
             be
             bound
             to
             the
             plaintiffe
             ,
             being
             a
             Sheriffe
             ,
             to
             save
             him
             harmelesse
             if
             hee
             shall
             imbesi●l
             a
             Writ
             ,
             or
             suffer
             an
             escape
             ;
             or
             that
             he
             shall
             forge
             such
             a
             deed
             or
             writing
             for
             the
             plaintiffe
             ,
             or
             the
             like
             :
             in
             such
             cases
             ,
             I
             conceive
             ,
             the
             award
             will
             bee
             void
             ,
             because
             it
             enjoynes
             things
             against
             the
             law
             .
             But
             of
             this
             sufficient
             .
             The
             next
             and
             last
             thing
             to
             be
             considered
             is
             ,
          
        
         
           
           
             Where
             an
             award
             made
             at
             several
             times
             ,
             or
             by
             parcels
             shall
             be
             void
             ?
          
           
             An
             award
             ,
             
             that
             the
             defendant
             shall
             pay
             a
             certaine
             sum
             of
             money
             to
             the
             plaintiffe
             ,
             and
             that
             the
             surety
             for
             payment
             thereof
             should
             be
             by
             the
             advice
             of
             the
             arbitrators
             :
             this
             by
             Choke
             is
             a
             void
             award
             ,
             because
             that
             the
             arbitrators
             cannot
             make
             their
             ▪
             award
             twice
             ;
             for
             every
             arbitrement
             ought
             to
             be
             made
             entirely
             ,
             and
             not
             by
             parcels
             .
             And
             here
             is
             first
             an
             award
             for
             the
             payment
             of
             the
             money
             :
             and
             then
             here
             is
             another
             part
             of
             the
             award
             for
             the
             sufficiency
             of
             the
             security
             ,
             and
             these
             at
             severall
             times
             ,
             which
             cannot
             be
             .
          
           
             By
             Danby
             Justice
             ,
             
             if
             the
             arbitrators
             arbitrate
             part
             one
             day
             ,
             and
             part
             another
             day
             ,
             and
             give
             their
             judgement
             ,
             there
             the
             second
             is
             void
             ;
             but
             they
             may
             commune
             upon
             one
             point
             one
             day
             ,
             and
             another
             ,
             another
             day
             :
             so
             that
             they
             do
             not
             give
             their
             judgment
             
               nisi
               unica
               vice
            
             for
             all
             .
          
           
             And
             by
             Yaxley
             ,
             
             an
             arbitrement
             told
             in
             part
             ,
             is
             void
             in
             the
             whole
             ;
             
             for
             an
             arbitrement
             cannot
             be
             made
             ,
             by
             parcels
             .
          
           
             I
             conceive
             Reader
             ,
             that
             this
             point
             will
             stand
             upon
             this
             difference
             ,
             where
             there
             are
             several
             awards
             made
             ▪
             and
             where
             but
             one
             award
             made
             at
             severall
             times
             or
             by
             parcels
             .
             I
             conceive
             they
             cannot
             make
             severall
             a
             vards
             :
             First
             ,
             because
             that
             were
             not
             agreeable
             to
             the
             submission
             ;
             in
             which
             the
             parties
             binde
             themselves
             to
             stand
             to
             the
             award
             and
             arbitrement
             of
             the
             arbitrators
             ;
             and
             by
             these
             words
             in
             the
             submission
             ,
             they
             have
             no
             power
             to
             make
             severall
             awards
             or
             arbitrements
             :
             and
             when
             they
             have
             made
             one
             arbitrement
             ,
             they
             have
             executed
             their
             power
             and
             authority
             ,
             and
             therfore
             a
             second
             arbitrement
             will
             bee
             void
             .
             And
             again
             ▪
             by
             the
             same
             reason
             that
             they
             might
             make
             two
             awards
             ,
             they
             might
             make
             twenty
             ,
             which
             were
             very
             inconvenient
             .
          
           
             But
             now
             on
             the
             other
             side
             ,
             I
             conceive
             that
             an
             award
             may
             be
             made
             at
             severall
             times
             or
             by
             parcells
             ▪
             so
             that
             it
             be
             not
             delivered
             vnder
             their
             hands
             according
             to
             the
             submission
             untill
             the
             whole
             be
             made
             .
          
           
           
             And
             certainly
             that
             which
             is
             principaly
             required
             in
             every
             arbitrement
             is
             ,
             that
             it
             be
             agreeable
             in
             substance
             and
             circumstance
             to
             the
             submission
             ;
             which
             it
             may
             well
             be
             ,
             though
             it
             be
             made
             at
             severall
             times
             or
             by
             parcells
             ,
             so
             that
             it
             be
             made
             and
             delivered
             according
             to
             the
             submission
             ,
             at
             the
             time
             appointed
             .
          
           
             And
             I
             conceive
             all
             that
             is
             done
             by
             the
             arbitrators
             ,
             is
             but
             as
             a
             comuning
             or
             discourse
             concerning
             the
             matters
             in
             controversy
             submited
             unto
             them
             ;
             for
             that
             they
             may
             vary
             in
             their
             iudgments
             ,
             as
             they
             shall
             see
             occasion
             ,
             for
             they
             have
             liberty
             to
             arbitrate
             according
             to
             their
             discretions
             ,
             so
             they
             have
             an
             eye
             to
             the
             submission
             .
             I
             say
             ,
             I
             conceive
             all
             as
             nothing
             untill
             they
             have
             finished
             ,
             and
             delivered
             the
             arbitrement
             ,
             which
             is
             the
             complement
             and
             perfection
             of
             it
             .
          
           
             Besides
             ,
             where
             the
             submission
             is
             ▪
             of
             many
             things
             ,
             and
             those
             of
             great
             difficulty
             ,
             if
             the
             Law
             should
             be
             that
             the
             arbitrators
             might
             not
             make
             their
             arbitrement
             by
             parcells
             ,
             it
             might
             be
             very
             mischeivous
             to
             the
             parties
             ,
             especially
             considering
             that
             submissions
             
             are
             most
             commonly
             to
             illiterate
             men
             .
          
           
             Neither
             is
             my
             opinion
             groundless
             or
             without
             authority
             ;
             
             for
             by
             Moile
             in
             39.
             
             H.
             6.
             an
             arbitrement
             may
             well
             be
             made
             in
             parcells
             ,
             so
             that
             all
             be
             made
             before
             any
             day
             assigned
             .
          
           
             I
             have
             now
             finished
             this
             poore
             indeavour
             of
             mine
             of
             shewing
             you
             what
             arbitrements
             are
             good
             in
             Law
             and
             what
             not
             .
             I
             shall
             only
             adde
             this
             one
             Rule
             concerning
             the
             vnderstanding
             or
             exposition
             of
             arbitrements
             ,
             which
             will
             be
             very
             vsefull
             in
             that
             particular
             ,
             and
             ●o
             conclude
             all
             ;
             and
             that
             is
             ,
             
          
           
             That
             an
             award
             or
             an
             arbitrement
             shall
             be
             construed
             according
             to
             the
             intent
             or
             meaning
             of
             the
             arbitrators
             ▪
             and
             not
             according
             to
             the
             words
             only
             ,
             
             as
             you
             shall
             find
             by
             the
             Bookes
             quoted
             in
             the
             Margine
             .
             
          
           
             FINIS
             .
          
        
      
    
     
       
         Notes, typically marginal, from the original text
         
           Notes for div A51909-e170
           
             Cooke
             ,
             l.
             4
             fol.
             20.
             b.
             
          
           
             1
             Cor.
             c.
             ●
             verse
             5.
             
          
           
             Cooke
             ,
             lib.
             4.
             f.
             15.
             b.
             
          
           
             30.
             
             Ass.
             fol
             :
             19.
             
          
           
             2
             E.
             4
             ,
             5
             ,
             15.
             
             E.
             4.
             32
             
             &
             4.
             3.
             
          
           
             27.
             
             H.
             8.
             14
             
             &
             22.
             30.
             
             H.
             8.
             
             Br.
             Acton
             upon
             the
             case
             104.
             28.
             
             H.
             8.
             
             Dr.
             fo
             .
             19
             fol.
             112
             &
             fol.
             26.
             fol.
             1●●
             .
          
           
             Psal.
             37.
             ver
             .
             1.
             2.
             
          
           
             30.
             
             Ass
             fol
             19.
             27.
             
             H.
             8.
             14.
             
             &
             22.
             
          
           
             Cooke
             lib.
             4.
             fol.
             16.
             
          
           
             Dyer
             .
             fol.
             26.
             
             ●
             .
             171
             &
             236.
             fol
             26.
             
             Heb.
             Rep
             :
             fol.
             8
             Pl.
             11.
             
             &
             247.
             pl.
             196.
             
          
           
             Cooke
             .
             l.
             4.
             fol.
             20.
             
          
           
             Cooke
             ,
             l.
             4.
             fol.
             16.
             b.
             
          
           
             Pasch.
             5.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Mich.
             1
             5.
             
             Eli●
             Dyer
             fo
             .
             317.
             fol.
             8.
             
          
           
             Mich
             2
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Pasch.
             1.
             
             Iac.
             in
             Rs.
             Rs.
             Rot.
             107.
             
          
           
             Averment
             
          
           
             Pasch.
             5.
             
             Jac.
             in
             the
             Kings
             Bench.
             
          
           
             Words
             in
             the
             second
             person
             ,
             though
             the
             party
             be
             not
             present
             ,
             actionable
             
          
           
             Cook
             lib.
             4.
             fol.
             5.
             b
             
          
           
             Hill.
             4●
             lac
             :
             in
             the
             Kings
             Benche
             :
          
           
             Hob.
             Rep
             :
             pa
             :
             155.
             
          
           
             Mich.
             17
             
          
           
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             Hob.
             Rep.
             pa
             :
             15●
             
          
           
             〈◊〉
             so
             32.
             b.
             
          
           
             Cooke
             lib.
             4.
             fo
             1
             9.
             a.
             b.
             
          
           
             Coke
             lib.
             4.
             fo
             13
             
          
           
             Pasch.
             15.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             Averrement
             .
          
           
             Hob.
             Rep.
             pa
             :
             165.
             &
             263
             pl.
             236.
             
             Gibs
             and
             Gin
             kins
             case
             .
          
           
             Averrement
             :
          
           
             6.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Pasch.
             7.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Words
             slanderous
             in
             one
             County
             and
             not
             in
             another
             .
          
           
             Pasch.
             15.
             
             Car.
             
          
           
             VVords
             spoken
             by
             way
             of
             interrogation
             .
          
           
             By
             way
             of
             report
             or
             Relation
             .
          
           
             Hill.
             4.
             lac
             .
             in
             the
             Kings
             Bench
             Rot.
             1153
             ▪
             
          
           
             Pasch.
             15
             C●r
             .
             negative
             words
             actionable
             .
          
           
             
               Mich.
               15
               ▪
               Car.
            
             in
             th●
             Kings
             Bench.
             
          
           
             Words
             of
             Interrogation
             .
          
           
             I
             dream●
             you
             stole
             a
             horse
             ,
             actionable
             
          
           
             
               Pasch.
               15.
               
               Car.
            
             in
             the
             Kings
             Bench.
             
          
           
             
               Pasch.
               5.
               
               Iac.
            
             in
             the
             Kings
             Bench.
             
          
           
             
               Pasch.
               7.
               
               Jac.
            
             in
             the
             Kings
             Bench.
             
          
           
             
               Mich.
               4.
               
               Jac.
            
             in
             the
             Kings
             Bench.
             
          
           
             
               Pasch.
               7.
               
               Jac.
            
             in
             the
             Kings
             Bench.
             
          
           
             Hob
             :
             Rep.
             p.
             247.
             pl.
             
             196.
             
          
           
             Hob
             :
             Rep.
             p.
             309.
             pl.
             
             289.
             
          
           
             
               Pasch.
               1.
               
               Jac.
            
             in
             the
             Kings
             Bench.
             Rot.
             107.
             
          
           
             37
             ▪
             Eliz.
             Chappell
             and
             Burroughes
             case
             .
          
           
             Hob
             :
             Rep
             :
             p.
             425
             pl.
             
             381.
             
          
           
             
               H●b
               :
               Rep
            
             :
             p.
             308.
             pl.
             
             286.
             
          
           
             fol.
             1●
             .
             ●
             .
             &
             11.
             ●
             
          
           
             Cooke
             l.
             4.
             fol.
             15.
             b.
             
          
           
             Cooke
             l.
             4.
             fol.
             20.
             ●
             
          
           
             C●●ke
             ,
             l.
             4.
             fol.
             17.
             
          
           
             
               Mich
               :
               20
               Iac.
            
             in
             the
             Kings
             Bench.
             
          
           
             Hob
             :
             Rep
             :
             p.
             106.
             pl.
             
             97.
             
          
           
             Hob
             :
             Rep
             ▪
             p.
             473.
             pl.
             
             406.
             
          
           
             Cook
             ▪
             l.
             ●
             .
             4.
             so
             19.
             
             ●
             .
          
           
             T●in
             .
             18.
             
             Car.
             in
             the
             K●ngs
             B●nch
             .
          
           
             Trin.
             4.
             
             Iac.
             in
             the
             Kings
             Bench
             ,
             Rot.
             1366.
             
          
           
             VVords
             must
             be
             taken
             according
             to
             common
             int●nt
             .
          
           
             Hill.
             〈◊〉
             Iac.
             in
             the
             Kings
             Bench
             Rot.
             115●
             
          
           
             Words
             taken
             according
             unto
             common
             intent
             .
          
           
             Mich
             :
             15.
             
             Eliz.
             Dyer
             fo
             .
             317
             Pl.
             8
             ▪
             
          
           
             Hob
             :
             Rep.
             p●
             .
             350.
             pl.
             323.
             
             Coke
             lib.
             ●
             .
             15
             :
             b.
             
          
           
             Coke
             ▪
             lib.
             4.
             15.
             b.
             
          
           
             ve
             .
             fo
             .
             8.
             ●●
             fo
             .
             9.
             
          
           
             Hob.
             Rep.
             p●
             .
             8.
             
             Pl.
             11.
             
          
           
             Hob.
             Rep.
             pa.
             268.
             pl.
             236.
             
          
           
             Mich.
             15.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             37.
             
             Eliz.
             in
             the
             Common
             .
             Pl●as
             .
          
           
             Coke
             lib.
             4.
             fo
             .
             17.
             b.
             
          
           
             Coke
             ibi
             .
          
           
             Hob.
             Rep.
             pa.
             375.
             pl.
             351.
             
          
           
             Mich.
             3
             :
             in
             the
             Kings
             Bench.
             
          
           
             Mich.
             2.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Hob.
             Rep.
             pa.
             122.
             pl.
             118.
             
          
           
             Words
             certain
             by
             relation
             .
          
           
             Cook
             lib.
             4.
             fo
             .
             19.
             ●
             b.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             19.
             
             ●
             .
             b.
             
          
           
             Coke
             ibi
             .
          
           
             Mich.
             43.
             
             &
             44.
             
             Eliz
             in
             the
             common
             Pleas
             ,
             Mittons
             case
             .
             6.
             
             
               E.
               6.
               
               Dyer
            
             ,
             f.
             72.
             
          
           
             Cooke
             ,
             lib.
             4
             fol.
             16.
             a
             ▪
             &
             19.
             a
             
          
           
             Cooke
             ,
             lib.
             4.
             fol.
             16.
             b.
             Eatons
             case
             .
          
           
             Mic.
             32.
             
             &
             33.
             
             Eliz.
             in
             the
             Kings
             Bench.
             
          
           
             Mich.
             4.
             
             Jac.
             in
             the
             Kings
             Bench.
             
          
           
             Pasch.
             5.
             
             Jac.
             in
             the
             Kings
             Bench.
             
          
           
             Pasch.
             5.
             
             Jac.
             in
             the
             Kings
             Bench.
             
          
           
             Mich.
             15.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             Cooke
             lib.
             4.
             f.
             19.
             a.
             b.
             
          
           
             Cooke
             ,
             l.
             4.
             fol.
             16.
             a
             
          
           
             Pasch.
             5.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Mick
             .
             17.
             
             Car.
             in
             the
             Common
             Pl.
             a.
             
          
           
             Trin.
             17.
             
             Car.
             in
             the
             Common
             Pleas.
             
          
           
             
               Hob.
               Rep.
            
             pag.
             159.
             a
             pl.
             
             145.
             pa.
             165.
             a
             pl.
             
             154.
             &
             pa.
             261.
             pl.
             236.
             
          
           
             Mich.
             40.
             
             &
             41.
             of
             the
             Queene
             in
             the
             Common
             Plea
             ▪
             
          
           
             Mich.
             57.
             
             Car.
             in
             the
             Common
             Pleas.
             
          
           
             Hob.
             Rep.
             pa.
             8.
             pl.
             11.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             25.
             
          
           
             2.
             
             E.
             4.
             5.
             15
             
             E.
             4.
             38
             17.
             
             E.
             4.
             3.
             13.
             
             H.
             7
             K●ilway
             fo
             .
             26.
             b.
             27.
             a.
             
          
           
             Hob.
             Rep.
             pa.
             258.
             
             Male
             &
             .
             Ret●
             case
             ,
             &
             27
             H.
             8.
             22.
             
          
           
             Cook
             lib.
             fo
             .
             15.
             
             &
             19.
             
             Br.
             
          
           
             Action
             upon
             the
             case
             104.
             
             Hob.
             Rep.
             pa.
             114.
             pl.
             107
             ▪
             
          
           
             See
             fo
             .
             7.
             a.
             b.
             
          
           
             Hil.
             1.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Hob.
             Rep.
             pa.
             396.
             pl.
             360.
             
          
           
             34.
             of
             the
             Queene
             Cossimans
             case
             .
          
           
             Mich.
             41.
             
             &
             42.
             of
             the
             Queen
             in
             the
             Common
             Pleas.
             
          
           
             Coke
             lib.
             4
             fo
             .
             15.
             b.
             
          
           
             Yet
             quaere
             whether
             the
             Iudges
             can
             intend
             this
             a
             Court
             of
             Record●
             ▪
             
          
           
             Cooke
             lib.
             4.
             fo
             .
             17.
             
             Anne
             Dani●s
             case
             .
          
           
             Trin.
             16
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             Trin
             :
             18
             Car
             in
             the
             Kings
             Bench●
             
          
           
             ●ill
             ▪
             4.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Mic.
             17.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             Heb.
             Rep.
             pa.
             183.
             pl.
             188.
             
          
           
             Mich.
             4.
             
             Iac.
             in
             the
             Ki●●g●
             Bench.
             
          
           
             Hob.
             Rep.
             pa
             ,
             159.
             pl
             :
             145.
             
             Box
             and
             Barnabies
             case
             ▪
             
          
           
             Hob.
             Rep.
             pa.
             159.
             pl.
             245.
             
          
           
             Pasch
             :
             15
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             Cooke
             lib
             ▪
             4.
             fo
             ,
             16
             a
             
          
           
             Hob
             ,
             Rep
             pa
             ,
             3
             ,
             pl
             :
             4
             
          
           
             Hob.
             Rep.
             pa.
             36
             ,
             pl.
             
          
           
             Hob.
             Rep.
             pa.
             467.
             pl.
             395.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             19.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             19.
             a.
             and
             16.
             a.
             Cooke
             ,
             lib.
             4
             fol.
             16.
             a
             
          
           
             Pasch.
             7
             Iac
             :
             in
             the
             Kings
             Bench.
             
          
           
             Trin.
             36.
             of
             the
             Queene
             Rot
             :
             223.
             in
             the
             Kings
             Bench.
             
          
           
             Pasch.
             37.
             of
             the
             Queene
             in
             the
             Kings
             Bench.
             Rot
             147
             :
          
           
             Pasch.
             4.
             
             Iac.
             in
             the
             Kings
             Bench.
             this
             case
             commenced
             Trin.
             3
             :
          
           
             See
             fo
             .
             18.
             a.
             
          
           
             Mic.
             4.
             
             Iac
             in
             the
             Kings
             Bench.
             
          
           
             Sir
             George
             Moore
             &
             Fosters
             case
             .
          
           
             Pasch.
             ●●
             17
             ▪
             Car
             in
             the
             Kings
             Bench.
             
          
           
             8.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             9.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             26.
             of
             the
             Queene
             in
             the
             Kings
             Bench.
             
          
           
             18.
             of
             the
             Queene
             in
             the
             Kings
             Bench.
             
          
           
             See
             fo
             .
             23.
             b.
             24.
             a.
             
          
           
             Hob.
             Rep.
             pa.
             104.
             pl.
             93.
             
          
           
             Note
             Reader
             this
             case
             agrees
             with
             the
             cases
             immediatly
             before
             .
          
           
             Hob.
             Rep.
             pa.
             375.
             pl.
             351.
             
          
           
             4.
             
             E.
             6.
             
             Br.
             Action
             upon
             the
             case
             112●
             
          
           
             Hab.
             Rep.
             pa.
             13.
             pl.
             17.
             
          
           
             Hob.
             Rep.
             pa.
             359.
             pl.
             145.
             
          
           
             Coke
             .
             lib.
             4.
             fo
             .
             16.
             a.
             
          
           
             Hob.
             Rep.
             pa.
             183.
             pl.
             188.
             
          
           
             Mic●
             .
             2.
             
             ●
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             P●sch
             .
             24
             of
             the
             Queene
             in
             the
             Kings
             Bench.
             
          
           
             Cook
             lib.
             4.
             fo
             .
             19.
             6
             ●i
             .
             6.
             
             Dyer
             72.
             
          
           
             Hitt
             .
             3.
             
             Iac.
             in
             the
             Kings
             Bench.
             Rot.
             855.
             
          
           
             Pasch.
             15.
             
             Car
             in
             the
             Kings
             Bench.
             this
             agrees
             with
             the
             former
             cases
             see
             fol
             :
             21.
             a.
             b
             
          
           
             Tri●
             :
             37
             of
             the
             Queene
             in
             Cam.
             Icace
             .
             Osbeston
             and
             Stanleys
             case
             .
          
           
             Pasch.
             15.
             
             Car.
             in
             the
             Kings
             Beech.
             
          
           
             Averrement
             .
          
           
             Pasch.
             15.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             Averrement
             .
          
           
             Trin.
             41.
             of
             the
             Queen●
             in
             the
             Common
             Pleas.
             
          
           
             H●b
             .
             Rep.
             pa.
             159.
             
          
           
             Trin.
             17.
             
             Car.
             in
             the
             Common
             Pleas.
             
          
           
             Trin.
             13
             of
             the
             Queen●
             in
             the
             Knig●
             Bench.
             Rot.
             114.
             
             Co●es
             Entries
             fo
             .
             22.
             a.
             b.
             
          
           
             Pasch.
             12.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             Pasch.
             17.
             
             Car.
             in
             the
             Common
             Pleas.
             
          
           
             Hill.
             ●
             .
             of
             the
             Queene
             in
             the
             Common
             Pleas
             adjudged
             and
             after
             affirmed
             in
             a
             Write
             of
             Error
             ,
             Mich.
             26.
             
             &
             27.
             of
             the
             Queene
             in
             the
             Kings
             Bench.
             Rot.
             35.
             
          
           
             Hill.
             3.
             
             Iac
             Rot.
             519.
             
             B.
             R.
             Cookes
             Ent●ies
             ●
             35.
             a.
             
          
           
             Trin.
             25.
             of
             the
             Queene
             in
             the
             Kings
             Bench.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             18.
             
          
           
             2.
             
             E.
             4.
             5.
             15.
             
             E.
             4.
             32
             
          
           
             Coke
             lib.
             4.
             fo
             .
             16.
             b.
             
          
           
             Hil
             :
             4.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Rot.
             11
             53
             
          
           
             Trin.
             17.
             
             C●r
             .
             in
             the
             Common
             Pleas.
             
          
           
             Mic.
             17.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             Cook
             lib.
             4.
             10.
             15.
             b
             
          
           
             Averrement
             .
          
           
             Cooke
             ,
             lib.
             4
             fol.
             17.
             a
             &
             fo
             .
             20.
             
             ●
             .
             27.
             
             H.
             8.
             14
             the
             Register
             fo
             .
             54.
             
          
           
             Cook
             lib.
             4.
             fo
             .
             17.
             ●
             
          
           
             Pasch.
             15.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             〈…〉
             
          
           
             Pasch.
             15.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             Mic.
             15.
             
             Ca●
             in
             the
             Kings
             Bench.
             
          
           
             Mich.
             17●
             Car.
             in
             the
             Knigs
             Bench.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             17.
             
          
           
             Hill.
             4.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             13.
             b
             
          
           
             Coke
             ubi
             supra
             .
          
           
             Coke
             lib.
             4.
             fo
             .
             16.
             1.
             
          
           
             Coke
             lib.
             4.
             10
             l
             17.
             a.
             
          
           
             See
             fo
             .
             26
             :
             b.
             27.
             a
             Pasch.
             15.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             14.
             a.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             13.
             b.
             14.
             a
             
          
           
             Hob.
             Rep.
             pa.
             252.
             pl.
             213.
             
          
           
             Mich.
             4.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Hil
             :
             3.
             
             Iac
             in
             the
             Kings
             Bench.
             
          
           
             Tri●
             .
             7.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             6.
             
             ●
             .
             6.
             
             Dyer
             fo
             .
             75.
             fol
             :
             21.
             
          
           
             Michl
             ▪
             3.
             
             Iac.
             ●n
             the
             Kings
             Bench
             ▪
             
          
           
             40.
             &
             41
             of
             the
             Queene
             in
             Common
             Pleas.
             
          
           
             Trin.
             7.
             
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             sil
             .
             4
             Iac
             in
             the
             Kings
             Bench.
             
          
           
             13.
             
             H.
             7.
             
             Keilway
             fo
             .
             26.
             11.
             of
             the
             Queene
             Dyer
             .
             fo
             .
             2
             
          
           
             Cok●
             lib.
             ●
             .
             fo
             .
             14●
             .
          
           
             Hob.
             Rep.
             pa
             :
             268
             pl.
             238
             
          
           
             Hob.
             Rep.
             pa
             112
             ,
             pl
             105
             
          
           
             Heb
             Rep
             pa
             425
             pl
             381
             
          
           
             Hob
             Re●
             page
             93
             pl
             71
             cr
             pa
             112
             pl
             105
             
          
           
             
               Trin
               :
               16.
               
               Car
            
             :
             in
             the
             Kings
             Bench.
             
          
           
             
               F.
               N.
            
             B
             114.
             
             D.
             Cook
             lib.
             9
             fol.
             56.
             
             The
             Poulterer●
             case
             .
          
           
             Pasch.
             3.
             
             Iac
             :
             in
             the
             Kings
             Bench
             Rot.
             372.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             1●
             .
             b.
             13.
             a.
             
          
           
             Trin.
             5.
             
             Iac.
             in
             th●
             Kings
             Bench.
             
          
           
             Coke
             lib.
             4
             ▪
             fo
             .
             17.
             b.
             &
             20.
             .
             a.
             
          
           
             Mich.
             15.
             
             Car.
             in
             the
             Kings
             Bench.
             cited
             before
             .
          
           
             Hob.
             Rep
             :
             pa
             :
             3
             pl.
             4
             
          
           
             Hob.
             Rep
             :
             pa
             63
             ,
             pl
             48.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             17
             b.
             
          
           
             Cook.
             lib.
             4
             fol.
             17.
             b
             
          
           
             Cooke
             lib.
             fol.
             17.
             b
          
           
             Hob
             Rep
             pag.
             8.
             
          
           
             Trin.
             17.
             
             Car.
             in
             the
             Common-Plea●
             .
          
           
             Pasch.
             1.
             
             Jac.
             in
             the
             Kings
             Bench
             
          
           
             Rot.
             107.
             
          
           
             Cooke
             lib.
             4
             fol.
             16.
             a
          
           
             Pasch.
             1.
             
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             Rot.
             107.
             
          
           
             Hob
             Rep
             page
             309
             
          
           
             Mich.
             15.
             
             Car
             :
             in
             the
             Kings
             Bench.
             
          
           
             Pasch.
             7.
             lac
             .
             in
             the
             Kings
             Bench.
             
          
        
         
           Notes for div A51909-e16320
           
             Trin.
             4.
             of
             the
             Queen
             Dyer
             .
             fo
             .
             a
             17.
             pl.
             
             6●
             .
          
           
             Hill.
             15.
             
             Car.
             in
             the
             Kings
             Bench
             ,
             Rot.
             313.
             see
             14.
             
             H.
             4.
             12.
             10.
             
             H.
             6.
             14.
             
          
           
             22.
             
             H.
             6.
             39
             4.
             
             H
             6.
             17.
             14.
             
             H.
             4.
             2.
             4.
             
             H.
             16.
             17.
             2
             
             H.
             5.
             2.
             
          
           
             g.
             H.
             6.
             60.
             14.
             
             H.
             4.
             24
             19.
             
             H.
             6.
             37.
             
          
           
             4
             H.
             6.
             17.
             3.
             
             H
             4
             ,
             5
             ,
             6
             ,
             H.
             4.
             9.
             9.
             
             H.
             6.
             60.
             14
             
             H.
             4.
             18
             3.
             
             H.
             4.
             6.
             11.
             
             H.
             4.
             12
             14.
             
             H.
             4.
             19.
             
             &
             24.
             54.
             
             E.
             3.
             16
             12
             
             Ass.
             pl.
             26.
             21.
             
             E.
             3
             15.
             23.
             
             H.
             7.
             
             Keilway
             .
             99.
             pl.
             6.
             21.
             
             E.
             3.
             26.
             
          
           
             Coke
             lib.
             6.
             fo
             .
             43.
             b.
             44.
             2.
             
          
           
             21.
             
             E.
             3.
             26
             
          
           
             23.
             
             H.
             7.
             
             Keilway
             fo
             99.
             pl.
             6.
             
          
           
             Coke
             upon
             Littleton
             fo
             .
             206.
             b.
             
          
           
             Coke
             lib.
             8.
             fo
             .
             97.
             98
             
             Baspoles
             case
             .
          
           
             Coke
             ubi
             supra
             Trin.
             4.
             of
             Queen
             yer
             fo
             〈◊〉
             .
             b.
             
          
           
             Coke
             .
             &
             Dyer
             ubi
             supra
             .
          
           
             Coke
             &
             Dyer
             .
             ubi
             supra
             .
          
           
             Dyel
             fo
             .
             216.
             b.
             pl.
             59.
             
             &
             242.
             pl.
             52.
             
          
           
             Pasch.
             91.
             of
             the
             Queene
             Dyer
             fo
             .
             356
             :
             pl.
             39
             19.
             
             H.
             6.
             36.
             37.
             
          
           
             Coke
             lib.
             5.
             fo
             .
             78.
             a.
             8.
             
             E.
             4.
             1.
             
             &
             2.
             
          
           
             Mith.
             17.
             
             Car.
             in
             Kings
             Bench.
             
          
           
             47.
             
             E.
             3.
             20
             
          
           
             8.
             
             E.
             4.
             1.
             
             &
             10.
             
          
           
             19.
             
             E.
             4.
             
             ●
             .
          
           
             Mich.
             41.
             
             &
             42.
             of
             the
             Queen
             in
             the
             Common
             Pleas.
             
          
           
             28.
             
             H.
             6.
             
             ●
             .
             21.
             
             H.
             6.
             30.
             49.
             
             E.
             3.
             9.
             18.
             
             E.
             4.
             9.
             8.
             
             E.
             4.
             10.
             5.
             
             E.
             4.
             3.
             
             Br.
             Arbitrement
             35.
             6.
             
             H.
             7.
             1a
             .
             b.
             
          
           
             28.
             
             H.
             6.
             6.
             
          
           
             Coke
             lib.
             8.
             fo
             .
             82.
             
          
           
             49.
             1.
             3.
             9.
             
          
           
             8.
             
             E.
             4.
             10.
             b.
             et
             11.
             a.
             21.
             
             H.
             6.
             30.
             28.
             
             H.
             6.
             6.
             et
             6.
             
             H.
             7.
             10.
             
             Coke
             lib.
             8.
             fo
             .
             81.
             b.
             82.
             a.
             
          
           
             22.
             
             H.
             6.
             46.
             8.
             
             E.
             4.
             1.
             
             &
             9.
             36.
             
             H.
             6.
             8.
             acc
             .
          
           
             17.
             
             E.
             4.
             5.
             19.
             
             E.
             4.
             1.
             18.
             
             E.
             4.
             21.
             b.
             &
             17.
             
             ●●
             .
             7.
             
             Keilway
             fo
             .
             45.
             pl.
             2
             
          
           
             Mich.
             28.
             
             &
             29.
             of
             the
             Queen
             in
             the
             Kings
             Bench
             ,
             Rot.
             476.
             
          
           
             Pasch.
             24●
             at
             the
             Queen
             in
             the
             Kings
             Bench.
             Rot.
             2417.
             
          
           
             Trin.
             4.
             of
             the
             Queen
             Dyer
             .
             fo
             .
             ●16
             ,
             b.
             
          
           
             Pl.
             Com.
             fo
             .
             396.
             ●
             
          
           
             7.
             et
             8.
             of
             the
             Q●een
             Dyer
             fo
             .
             242.
             pl.
             52
             
          
           
             2.
             
             R.
             3.
             12.
             b.
             12.
             
             E.
             4.
             25.
             b.
             Coke
             lib
             :
             5.
             fo
             .
             8.
             a
             
          
           
             9.
             
             E.
             ●4
             .
             43.
             b.
             44.
             e.
             36
             H.
             6.
             8.
             et
             11.
             acc
             .
          
           
             Trin.
             3●
             Iac.
             in
             the
             Kings
             Bench
             ,
             Rot.
             216.
             
          
           
             Mich.
             7.
             
             Iac.
             in
             the
             Kings
             Bench
             ,
             Cornelius
             Lawrence
             &
             Carres
             Case
             .
          
           
             An
             award
             made
             for
             more
             then
             is
             submitted
             ,
             is
             good
             for
             that
             which
             is
             submitted
             and
             void
             for
             the
             residue
             .
          
           
             Hob.
             Rep.
             pa.
             267.
             pl.
             233.
             
          
           
             *
             Coke
             lib.
             8.
             fo
             .
             98.
             
             Basp●les
             case
             .
          
           
             Mich.
             9
             ▪
             Iac.
             in
             the
             Kings
             Bench.
             
          
           
             39
             H.
             6.
             9.
             
          
           
             22
             E.
             4.
             25
             
             ●
             R.
             3.
             18.
             b.
             ac
             .
          
           
             Coke
             lib.
             8.
             fo
             .
             98.
             
             Baspoles
             case
             .
          
           
             Trin.
             4.
             of
             the
             Queen
             Dyer
             .
             fo
             .
             216.
             b.
             &
             7
             &
             8.
             of
             the
             Queen
             .
             Dyer
             fo
             .
             242.
             pl.
             52.
             
          
           
             Baspoles
             case
             ,
             
               ubi
               supra
            
             .
          
           
             Trin.
             4.
             of
             the
             Queen
             Dyer
             ,
             fo
             .
             216.
             b.
             
          
           
             Coke
             lib.
             ●
             fo
             .
             98.
             a
             
          
           
             An
             arbitrator
             may
             make
             an
             award
             of
             one
             matter
             only
             ,
             if
             he
             have
             notice
             of
             no
             more
             .
          
           
             Hob.
             Kep
             .
             p.
             267.
             pl.
             
             234.
             
          
           
             An
             arbitrement
             seeming
             not
             so
             large
             as
             the
             submission
             .
          
           
             Page
             and
             Parkers
             case
             in
             the
             Kin.
             Bench.
             
          
           
             1
             H.
             7.
             5.
             7
             
             &
             8.
             of
             the
             Queen
             Dyer
             ,
             fo
             .
             243.
             pl.
             56
             31.
             
             H.
             8.
             
             Br.
             arbitr
             .
             42.
             
          
           
             2
             R.
             3.
             13.
             pl.
             32.
             
             &
             8
             E.
             4.
             11
             a.
             
          
           
             8
             H.
             6.
             f.
             18
             
          
           
             Coke
             li.
             5.
             fo
             .
             103.
             
             Hungates
             case
             .
          
           
             22
             H.
             6.
             46
             36.
             
             H.
             6.
             1
             17.
             
             E.
             4
             5
             19.
             
             E.
             4.
             1.
             pl.
             com
             .
             fo
             .
             396.
             a.
             Coke
             lib
             :
             8
             fo
             .
             98.
             
          
           
             Baspoles
             case
             4.
             of
             the
             Queen
             Dyer
             fo
             .
             226.
             b.
             Coke
             lib.
             5.
             fo
             .
             77.
             
             Salmons
             case
             .
          
           
             Rudston
             &
             Ya●e●
             case
             cited
             afterward
             :
          
           
             17.
             
             E.
             4.
             5.
             18
             
             E.
             4.
             22.
             b.
             
          
           
             19
             E.
             4.
             1.
             21
             
             E.
             4.
             75
             17
             
             H.
             7.
             
          
           
             Keilway
             43
             &
             45.
             
             Moore
             &
             Bedels
             case
             before
             
          
           
             An
             award
             voide
             against
             one
             of
             the
             parties
             ,
             i●
             voide
             against
             both
             .
          
           
             In
             Osburns
             case
             .
             Coke
             l.
             10.
             f.
             131
             
          
           
             Hil.
             15.
             
             Car.
             in
             the
             Kings
             Bench.
             Rot.
             113.
             
          
           
             Coke
             lib.
             10.
             f.
             131.
             b
             7
             H.
             8.
             
             Keilway
             ,
             fo
             .
             175
             a.
             
          
           
             Mich.
             41.
             
             &
             42.
             of
             the
             Queen
             in
             the
             Common-Pleas
             .
             18.
             
             E.
             4.
             fo
             .
             22.
             b.
             23.
             a.
             Stiles
             case
             41.
             
             &
             42.
             of
             the
             Qu.
             in
             the
             Common
             Pleas
             ,
             ac
             .
          
           
             Mich.
             7.
             
             Ioc.
             in
             the
             Kings
             B.
             
          
           
             17
             H.
             7.
             
             Keilway
             ,
             f.
             43.
             pl
             10
             &
             45.
             pl
             ▪
             ●
             
          
           
             In
             Oshorns
             case
             .
             Coke
             lib.
             10.
             131.
             b.
             
          
           
             ●
             E.
             4.
             1.
             10.
             13.
             
             &
             21.
             
          
           
             Coke
             lib
             :
             8
             fo
             .
             92.
             b
             
          
           
             1
             H.
             7.
             f.
             5.
             
          
           
             18
             E.
             4.
             18
             a.
             
          
           
             Coke
             lib.
             4.
             fo
             .
             82.
             &
             li.
             8.
             fo
             .
             9●
             .
             b.
             
          
           
             7
             H.
             8.
             
             Keilway
             ●
             .
             175.
             pl.
             8
             
          
           
             Coke
             lib.
             5.
             fo
             .
             77.
             b.
             &
             78.
             a.
             
          
           
             Mich.
             4.
             
             Jac.
             in
             the
             Kings
             Bench.
             Rot.
             32.
             
          
           
             ●
             E.
             4.
             11.
             ●
             
          
           
             Hil.
             15.
             
             Car.
             in
             the
             Kings
             B.
             Rot.
             313.
             8
             
             E.
             4.
             1.
             
          
           
             Pasch.
             15
             Car
             in
             the
             Kings
             B.
             
          
           
             Hob.
             Kep
             .
             p.
             68.
             pl.
             54
             
          
           
             *
             
               Tamen
               quare
            
             ,
             be-because
             Hob.
             Kep
             .
             
               ubi
               supra
            
             seemeth
             contrary
             .
             An
             averment
             of
             the
             parties
             cannot
             declare
             the
             intent
             of
             the
             arbitrators
             .
             Mic.
             7
             &
             8
             of
             the
             Queen
             ,
             Dyer
             fo
             .
             242.
             pl.
             52
             Pasch.
             4.
             
             Jac.
             in
             the
             Kings
             B.
             This
             case
             commenced
             Pasch.
             3
             Jac.
             Rot.
             478.
             
          
           
             An
             award
             which
             doth
             refer
             ,
             or
             may
             be
             reduced
             to
             a
             certainty
             ,
             is
             good
             .
          
           
             8
             E.
             4.
             10.
             a.
             
          
           
             8.
             
             E.
             4.
             1.
             
             b
             &
             12.
             b
             9
             H.
             6.
             16.
             by
             Keble
             .
             19.
             
             E.
             4.
             1.
             by
             Nele
             .
             &
             22
             H.
             6
             46.
             ac
             .
          
           
             21
             E.
             4.
             40
             a.
             
          
           
             21
             E.
             4.
             31
             39.
             
          
           
             8.
             
             E.
             4.
             1.
             by
             Moile
             .
          
           
             19
             E.
             4.
             4.
             by
             Nele
             &
             Choke
             .
          
           
             9
             H.
             7.
             15.
             b.
             
          
           
             8.
             
             E.
             4.
             fo
             2
             a
             by
             Yelverton
             22
             H.
             6.
             46.
             ●c
             
          
           
             17.
             
             E
             4
             fo
             5.
             b
             19
             E.
             4
             fo
             1.
             
          
           
             19
             E.
             4.
             
             〈…〉
             H.
             7.
             
             〈◊〉
             .
             b.
             ac
             .
             Where
             I
             may
             do
             the
             thing
             awarded
             my
             ●●lfe
             ,
             or
             inforce
             it
             to
             be
             don
             ,
             the
             award
             ,
             is
             good
             .
             5
             H
             7.
             ubi
             sup●a
             .
             21
             E.
             436
             ac
             .
          
           
             21.
             
             E.
             4
             fo
             4●●
             
          
           
             Pasch
             15
             Car.
             in
             the
             Kings
             Bench.
             
          
           
             17
             E.
             4.
             fo
             5.
             b.
             
          
           
             7
             H.
             6
             fo
             .
             40.
             by
             Strang.
             ●0
             H.
             6.
             19
             a.
             ac
             .
          
           
             39
             H.
             6
             by
             dris●●●
             
          
           
             12
             H.
             7.
             14
             15
             
          
           
             43.
             
             E.
             3.
             28
             
          
           
             45
             E
             3.
             16
             
          
           
             
               B.
               R
            
             ,
             Arbitrement
             ●
             .
          
           
             9.
             
             H.
             716.
             a.
             
          
           
             Hob
             :
             Rep
             pa.
             68
             l.
             p.
             44.
             
          
           
             19.
             
             H.
             6.
             37.
             20.
             
             H.
             6.
             19.
             22
             
             H.
             6
             39.
             9.
             
             E.
             4.
             44.
             a.
             
          
           
             22.
             
             H.
             6.
             39
             19.
             
             E.
             4.
             8.
             
             a
             10.
             
             H.
             6.
             14
             19.
             
               of
               the
               Queene
            
             .
             Dyer
             .
             fo
             .
             3
             56.
             
               a.
               pl.
            
             39
             
          
           
             12.
             
             H
             7.
             14
             b.
             15.
             a.
             
          
           
             Dyer
             ,
             u●i
             supta
             ,
          
           
             22
             H.
             6.
             3●
             by
             Moile
             .
          
           
             Hob.
             Rep.
             p.
             68.
             pl.
             54
             
          
           
             22
             E.
             4.
             25
             ac
             .
          
           
             Coke
             lib
             ●
             fo
             68.
             a.
             B●ashpoles
             ▪
             case
             
          
           
             22
             H
             6
             ,
             12
             18
             b.
             ac
             19.
             a.
             
          
           
             19.
             
             H.
             6
             37
             b.
             38.
             a.
             
          
           
             5
             E.
             4.
             7.
             
             ●
             .
             45.
             
             E.
             3.
             16
             
          
           
             28.
             
             H
             6.
             12
             2.
             
             H.
             4.
             4.
             5
             
             E.
             4.
             7.
             19.
             
             E.
             4.
             8.
             20
             ,
             H.
             6.
             12
             
             Keilway
             121
             a
             
          
           
             19.
             
             H.
             6.
             38.
             
             a
             by
             
               Nuton
               p
            
             ,
             5.
             28.
             
          
           
             19.
             
             A.
             6.
             37
             ,
             by
             
               Ascue
               ,
               &
               Nut●on
            
             .
             9
             E
             ,
             4.
             44
             ,
             a.
             qy
             .
             Nedahm
             .
          
           
             20.
             
             H
             6
             18
             19
             28
             H.
             6.
             12.
             2.
             
             H
             4.
             4.
             9.
             
             E.
             4
             51.
             5.
             
             E.
             4.
             7.
             19.
             
             E.
             4.
             8.
             45.
             
             E.
             3.
             16
             et
             .
             20.
             
             H.
             6
             12.
             
          
           
             20.
             
             H.
             6.
             18
             
             Br.
             Arbitrement
             .
             3.
             2.
             
             H.
             4.
             4.
             
          
           
             19.
             
             H.
             6.
             37.
             5.
             
             E.
             4
             ,
             7.
             a
             7.
             
             H.
             4
             31.
             
          
           
             Mich.
             9.
             
             Iac
             in
             the
             Kings
             Bench
             
          
           
             9
             E.
             4.
             44.
             a
             
          
           
             19
             H.
             6.
             36
             
          
           
             5
             H.
             7.
             fo
             .
             13.
             
          
           
             Coke
             li.
             5.
             fo
             .
             78.
             a.
             Samons
             case
             .
          
           
             8
             E.
             4.
             11.
             a
             
          
           
             Hob.
             Rep.
             p.
             306.
             pl.
             
             281.
             
          
           
             41
             &
             42
             of
             the
             Qu.
             in
             the
             Common
             pleas
             
          
           
             8
             E.
             4.
             12.
             ●
             
          
           
             8
             E.
             4.
             12.
             b
             
          
           
             19
             E.
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             a
             
          
           
             9.
             
             H.
             716.
             a.
             b.
             
          
           
             Coke
             ,
             Littleton
             ,
             fo
             .
             206.
             b.
             42
             E.
             3.
             6.
             2
             
             H.
             4.
             9.
             19
             
             H.
             6.
             55
             
          
           
             19
             E.
             4
             1.
             ●
             by
             Choke
             .
          
           
             39.
             
             H
             6.
             9.
             
          
           
             17
             H.
             7.
             
             Keilway
             .
             f.
             43.
             pl.
             10.
             
          
           
             39
             H.
             6.
             9.
             
          
           
             21.
             
             E.
             4.
             39
             a.
             
          
           
             19
             H.
             6.
             36
             37.
             
          
           
             Coke
             li.
             10
             fo
             .
             57.
             b.
             
          
        
      
    
  

