Actions for Slander, OR, A Methodical 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 Slander 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 several Grounds and Heads, collected out of our Year-Books and other pirvate authentic Authorities: wherein is principally showed, what Arbitrements are good in Law, and what not.  
A learning of no less use and consequence to all men, than 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 Grays-inn, Barister.  
LONDON, Printed by F. L. for M. Walbank and R. Best, and are to be sold at Grayes-Inne-Gate. 1647.   

Actions for Slander. OR A methodical Collection, under certain Grounds and heads, of what words are actionable in the Law, and what not?  
THE first part of my labour is, to show 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 been adjudged, neither can I if I would; my intent is only to lay down a certain 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 find 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 encourage men in giving ●ll and unworthy language, or to teac●● them a lawless Dyalect, but (as my Lord Cook speaks) to direct and instruct them rightly to manage that, 
Cook, l. 4 fol. 20. b.  which [though but a little member] proves often the greatest good, or the greatest evil to most men. And withal to deter men from words, which are but wind (as he further speaks) which subject men to actions, in which damages and costs are to be recovered, which usually trench to the great hindrance and impoverishment of the speakers.  
And in truth that which caused me to enter upon this labour, was the frequency of these actions; for I may with confidence affirm, that they do at this day bring as much Gryse to the Mill, if not more, than any one branch of the Law whatsoever. And it were to be wished and certainly never in a better time than now) that the greatest part of them were suppressed, that words only of brangle, heat and choler, might not he so much as mentioned in those high and honourable Courts of Justice. For I profess 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 spleen of private jars and discontents amongst men.  
The Apostle calling in question the wisdom of men, 
1 Cor. c. ● verse 5.  for going to Law one with another, is not to be intended [as the learned observe upon that place generally to condemn all legal prosecutions, be ause a man may without question maintain his just rights & privileges b● Law, but only to reprehend the folly of such, who upon every slight and triviail occasion (like many in these contention times) care not to entail a suit upon them and their posterity; though in Fine they dock their own intayles without recovery: and justly may actions for words come within the compass of the Apostles exprobration.  
I do not condemn all actions for words neither, for it is but equal, that where a man's 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 be enforced 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 vain brabble, this seems to me utterly unlawful and intolerable amongst Christians.  
I cannot but take notice of that which Wray Chief justice, 
Cook, lib. 4. f. 15. b.  saith in Cooks 4th Book, 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 means possible to be prevented. Yet he saith, that the Judges have resolved, that actions for scandals should not be maintained by any strained construction or argument, nor any favour extended for supportation of them. And he adds the reason of it, because they do abound more in these days; then in times past, and the intemperance and malice of men increases; Et malitijs hominum est obviandum; and further adds, that in our old books, actions for scandals 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 always be taken in the best sense for him that speaks 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 clearly actionable, in such case the Law will never aid a man, though they were spoken in the distemper of passion which seemeth very hard and unreasonable.  
Nay which is yet more extreme, if counsel shall but inform the Jury of the quality and reputation of the Plaintiff and also make them understand [if they be capable the true sense and meaning of the words, and the heinousness of them; such words, against such a person; this enforced and pressed on by eminent Council, shall make a Jury give a hundred pounds damages, whereas it doth not appear to them, that the Plaintiff by the speaking of the words was prejudiced one farthing, a case of very great extremity, and worthy of relief.  
And can any man deny, but that this is a countenancing of these frivolous Actions: But give me leave Reader, and I will in a word inform you how this may be remedied: and though the malice of men cannot be stopped, yet their Actions may.  
Let no words be actionable which do appear to have been spoken in chollar and passion, or if actionable, yet let the Plaintiff recover no more in damage, than he can upon Oath make appear, that he was actually damnified by the speaking of them; and if this were provided by Act of Parliament, our new books would be as little infested with these frivolous actions, as the old ones are. But I cannot thus balk that observation of that learned Chief Justice who●ses that in our old books Actions for scandals are very rare, and such as are brought, are for words of eminent slanders and of great importance.  
This must needs be acknowledged to be a most exact and true observation, for in searching of the Books, I cannot find that any Action for scandalous words was brought before E. 3. time, and so rare then▪ that I find but one in 50. years of E. 3. and that is Sir Thomas Seton's case of Justice, 
30. Ass. fol: 19  for calling of him Traitor. Felon; and Robber, no frivolous cause of action.  
And I find but three Actions for words brought in 22. years of E. 4. and those for one and the same words, 
2 E. 4, 5, 15. E. 4. 32 & 4. 3.  for publishing one to be the Pilleine of I. S. a slander of no small importance, neither; for so long as that base and slavish Tenure of Pilleinage held; he 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 real, and personal, and Vassalize his person at his pleasure, so that he did not kill or maim him  
In all the 21. years of H. 7. there is not one action that I can find brought for scandalous words.  
And in 38. years of H. 8. our books tell us but of five actions brought for scandalous words; 
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. 1ST.  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 find that one of them was for calling a man Heretic, another for saying a man was perjured; and the other three for calling of one Thief all of which are high scandals to a man's reputation and most of them tending to the loss of life and fortunes; so that it is very true that that Reverend Chief Justice observed, that these Actions were very rare in our old books, and such as were brought were for words of eminent slander, and of great importance.  
But these few have now got such a numerous progeny that I fear we cannot turn over many leaves in our new books, but we shall find one of these Actions. They began thus to multiply in the Queen's time, as we find in my Lord Cocks 4. book, where there is no less than 17. adjudged cases together upon these Actions.  
And you may easily judge, they did not abate in King jamses his time; for (if I mistake not) there is no less than two and twenty adjudged cases upon these Actions in my LORD hobart's Book.  
And I am certain they are not fallen in His Majesty's Reign that now is; for I myself have reported no less than three and twenty judgements upon these Actions but from Easter Term in the sixteenth year of the King, to Trinity Term in the eighteenth.  
Well therefore might Wray Chief justice 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 will not effect, 
Psal. 37. ver. 1. 2.  no more than fire can be extinguished by adding fuel unto it. You have heard my advice and direction before, therefore 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 be used as bellows to bow the Coals.  
It is the saying of the Prophet David; I will take heed to my ways, that I offend not with my tongue, I will keep 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 we are but men; whilst we carry this lump of flesh and mass of corruption about us, we shall be subject to the like passions and affections that o●●er● have been before us, and the flesh will rebel 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 mischief they may the better know how to avoid it.  
And here I shall lay down this as a general rule, which I shall by the way as I go, make good in every particular.  
That all scandalous words which touch or concern a man in his life, Liberty, or Member or any corporal punishment; or which scandal a man in his Office or place of Trust; or in his Calling or function by which he gains his living; or which tend to the slandering of his Title or his disinheritance; or to the loss 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 separate himself, or to be separated 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 concern a man in his life; such words are actionable.  
If a man call another Traitor, 
30. Ass fol 19 27. H. 8. 14. & 22.  Felon Thief, or Murderer, an Action lies for these words, because they call a man's life in question. 
Cook lib. 4. fol. 16.   
So it is all one if one shall say of another that he killed or murdered I. S. 
Dyer. fol. 26. ●. 171 & 236. fol 26. Heb. Rep: fol. 8 Pl. 11. & 247. pl. 196.  or that he stole his good●, or that he poisoned him, if it appear to be intended to be wittingly done, or the like, these words likewise are Actionable, as appears by the Books in the Margin.  
So if one shall say of another he hath burnt my B●●ne with Corn, 
Cook. l. 4. fol. 20.  which is Felony, this likewise will bear 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 poison 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, 
Cook, l. 4. fol. 16. b.  the words were actionnable, and the judgement affirmed, which case I confess I much doubt, because here was but bare advice, and nothing appearing to be done; like eaton's▪ case in Cooks 4 Book.  
Where the Defendant said of the Plaintiff that He gave his Champion Council to make a D●ed of gift of his goods to kill him, etc. 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, 
Pasch. 5. jac. in the King's Bench.  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 bear 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 advice, 
Mich. 1 5. Eli● Dyer fo. 317. fol. 8.  which is not punishable by the Law.  
Holy brought an Action upon the case against Sydnam for these words; h● is infected of the Robery and Murder lately-committed, and smells of the murder, adjudged that the words were actionable, by reason of the word infected.  
One said of another thou didst kill a Woman great with Child, 
Mich 2 jac. in the King's Bench.  innuendo jocosam Vxocem cuiusdam R. S. defunct. and rules by the Court that the Action would lie, though that the woman were utterly incertain, because that the offence, and the party intended to commit it, is certain, and 'tis 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 be aided 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 express averrement that the Woman was dead for the (innuendo) will not be suffitient. 
Pasch. 1. jac. in Rs. Rs. Rot. 107.   
Hassellwood brought an Action against Garr●t for these words (amongst others agreed not to be actionable) whosoever is he that is falsest Thief, and strongest in the County of Salop, whatsoever he hath stolen, or whatsoever he hath done. 
Averment  Thomas Hasselwood is falser than he 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. 
Pasch. 5. Jac. in the King's Bench.   
Stoner brought an Action for words against Gambell, and declares that the De●endant dixit deprefato: the Plaintiff thou innuendo, etc. hast stolen my Goods; and upon not guilty pleaded, the jury found for the Plaintiff, and in arrest of judgement it was said, that the Count was nought for the words are in the second person, 
Words in the second person, though the party be not present, actionable  and it is not all adged that the Plaintiff 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 Plaintiff, except that it were spoken to him? and rule was given for judgement. 
Cook lib. 4. fol. 5. b   
One ●●●mans said of Hext, I do not doubt but within two days to Arrest Hext●or ●or suspicion of Felony: adjudged that the words were Actionable, because that for suspicion of Felony, he shall be imprisoned and his life drawn in question.  
Hill. 20. jac. in the King's Bench, Winch came to the Bar and showed a Libel against another in Court Christian for these words, thou art a Witch and dealest with Witchery, and didst procure Mother Bale to witch the cattle of I. S. and upon this prayed a prohibition, because that the Plaintiff had remedy at Law, and by Fenner and Gawdy justices the others absent 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 jac, 
Hill. 4● lac: in the King's Bench:  it was said to have been three 〈◊〉 adjudged that to call one Witch would bear 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 doubtful word. But why Witch should not bear an Action, I know no reason, 
Hob. Rep: pa: 155.  being t●e life may be thereby drawn in question, though I know it hath been doubted.  
Martial brought an Action against Steward for saying the Devil appears to thee every night in the likeness of a black man riding upon a black Horse, and thou conferrest with him, and whatsoever thou dost ask 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 james cap. 12. Conjuration or consultation with the Devil, is Felony.  
In the case of Hawes Mich. 17. of the King that now is, 
Mich. 17  this case was put and agreed by the judges; 
Car. in the King's Bench.  one said of another that he 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 john Sydenham against Timothy Man Clark I think in my conscience that if Sir john Sydenham might have his will, 
Hob. Rep. pa: 15●  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 seems somewhat hard to me Reader that words of thought or opinion only should bear an Action as here in the former words. 
〈◊〉 so 32. b.  And for the latter words, that he is a maintainer of Rebellious Persons; they are Adjective only, 
Cook lib. 4. foe 1 9 a. b.  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 maintain sedition against the King. 
Coke lib. 4. foe 13  I conceive that these words are actionable and sedition is a violent and public thing, of which he cannot but have notice.  
This Rule was agreed by the judges in the debate of a case in the King's Bench, 
Pasch. 15. Car. in the King's Bench.  that many words (though of themselves they be not actionable yet being equivolent to words that are actionable, will bear on Action.  
And it was said by jones justice, that in Yorkshire straining 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. 
Averrement.   
Yet my Lord Hobart hath several cases adjudged where a man brought an action for Welsh words, 
Hob. Rep. pa: 165. & 263 pl. 236. Gibs and Ginkins case.  and did not aver what the words did import in English, and yet judgement was given for the Plaintiff, and the Court took information upon Oath by Welshmen what the words meant in English. 
Averrement:   
And in one of the cases Sergeant john Moor then informed t●● Court that judgement had been given in the King's Bench in the case of Tu●h upon these words▪ 
6. jac. in the King's Bench.  Thou art a healer of Felons without any aver●ement, how the words were taken; because the Court was informed and took knowledge that in some Counties it was taken for a smotherer of Felons.  
The ca● intended by Sergeant Moor was I conceive the case of Pridham and Tucker in the King's Bench, 
Pasch. 7. jac. in the King's 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 Norfolk they know not what healer signifieth, 
Words slanderous in one County and not in another.  but this being in De●●nshire where this word is used for concealer of Thiefs, will be actionable.  
And I take this to be generally true that in all cases where a man's life may be● drawn 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 man's life, which are by way of interrogation, or by way of hearsay or relation; or lastly by way of negation only and yet will bear an Action.  
It was said at the King's Bench Bar [which I heard and observed] that it had been adjudged in this Court in one Appletons' case, 
Pasch. 15. Car.  that where a man said to another where is my Piece thou sto●lest from me, 
Words spoken by way of interrogation.  that these words were Actionable. 
By way of report or Relation.   
And jones justice then said that he remembered this case to be adjudged. A. said that B. told him that C. stole a Horse; but he did not believe him, that these words▪ with an averrement that B. did not say any such thing to A. were actionable. 
Hill. 4. lac. in the King's Bench Rot. 1153▪   
Agreeing with this case is the Lady Morrisons case Widow, who brought an action for words against William C●de Esquire, and declares that she was of good fame, etc. and that Henry Earl 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 alleges that the Earl of Kent upon the hearing of these words surceased his suit, by which she lost her advancement. etc. adjudged that the words were Actionable though spoken upon the report of another, for otherwise a man might maliciously raise slanderous Reports of another, and should never be punished for it.  
But in this case Tanfield justice said, that if it had been expressly alleged, that in truth it was so reported by Arscot, than an action would not lie against Cade for saying that Arscot reported it, because it is true that he did so.  
And Bartley justice said that an action had been brought for these words, 
Pasch. 15 C●r. negative words actionable.  You are no Thief. 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 been at London to change the money thou stollest from me? 
Mich. 15▪ Car. in th● King's Bench.  In this case it was objected, that these words were not actionable, 
Words of Interrogation.  because that they are spoken only by way of interrogation, and are no direct affirmative. But jones and Barily justices (the others being absent) both said that the words were actionable; for the first words, Hast thou been at London, etc. are the only words of interrogation, and the subsequent words, viz. The money thou stollest from me, is a positive affirmation; and Ba●tley Iust. then said, that it had been oftentimes adjudged that words of interrogation should be taken as a direct affirmation, which, jones Just. also agreed, and further said that this case had been adjudged.  
One said to another, 
I dream● you stole a horse, actionable  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 bear an action, a man might be as abusive as he pleased, and by such subtle words as these always avoid 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, 
Pasch. 15. Car. in the King's Bench.  he would prove he had stolen 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 he had said, that he had stolen 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 stolen, etc. though the first words are not actionable, yet the last are.  
Whitaer●s brought an action against Lavington for these words; 
Pasch. 5. jac. in the King's Bench.  I will prove that Whytacre is for sworn, and that ten men can justify, 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, 
Pasch. 7. Jac. in the King's Bench.  that Welby was a plotter and contriver of Thomas powel's death because he would not sell his Land to the said Welby; adjudged the words were actionable.  
And now I have shown you the affirmative part, where words which touch or concern a man's life shall be actionable. I shall now show unto you the negative part, where words in such case shall not be actionable.  
Words that touch or concern a man's life may not be actionable in these cases: Where they are too general, or not positively affirmative; or of a double or indifferent meaning, or doubtful in sense; or for that they are incertain in themselves, or the person of whom they are spoken; or else by reason of the subsequent qualification of the words, or because they do not import an Act, but an intent, or inclination only to it; or for that they are impossible, or lastly, because it doth appear that the speaking of them could be no damage to the pla●ntiffe, in all these cases the words will not be actionable.  
And first, words that are too general, or not positively affirmative, will not be actionable.  
To say of a man that he deserves to be hanged; 
Mich. 4. Jac. in the King's Bench.  adjudged not actionable, because they are too general, for that he doth not show any thing that he hath done to deserve it: and b● Yeluerton justice, he may deserve it for unnatural using of his Parents, and the like, where he shall not be punished by the Law.  
Cook, lib. 4. f. 15. b. yeoman's and Hexts case▪ for my ground in Allerton Hext seeks my life, adjudged not actionable, because seeking his life is to general, for which there is no punishment.  
So if I say of another that it is in my power to hang him, 
Pasch. 7. Jac. in the King's Bench.  adjudged not actionable, in Pr●dham and Tuckers case cited before, because the words are too general.  
james Steward brought an action against B●shop for saying of him, 
Hob: Rep. p. 247. pl. 196.  that he wa● in Warwick Gaol for stealing of a Mare and other Beasts, and adjudged, that the words would not bear an action because they do not affirm directly that he did steal them; as if he had said that he stole them, and was in Goal for it▪ but only 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 expressly, as is the common form of making of the Calendar 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; 
Hob: Rep. p. 309. pl. 289.  it was said, that it was questioned, whether an action would lie, because an Indictment is but a surmise. But I conceive 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 than to say he was impeached or accused for Felony, which an honest man may be; and is no positive affirmation that he had committed Felony, and so it hath been often adjudged, I will only cite one case in the point.  
Hasselwood brought an action against Garret for these words; 
Pasch. 1. Jac. in the King's Bench. Rot. 107.  I can find in this Parish a falser knave than Briscoe is the which Briscoe is indicted of Felony & burglary, and is gone to Stafford Goal; and that false kn●ve is Thomas Hasselwood, etc. 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 Fuller's Tub, 
37▪ Eliz. Chapel and Burroughes case.  in which none come, but those that have the Pox adjudged the words were nor actionable, because this is no direct affirmation that the Plaintiff had the Pox.  
Poland brought an Action against Mason, 
Hob: Rep: p. 425 pl. 381.  for saying, I charge him (meaning the Plaintiff) with Felony, etc. adjudged the words were not actionable, because that he doth not affirm that he is a Felon, but doth only 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; 
H●b: Rep: p. 308. pl. 286.  I arrest you for Felony: agreed that the words were not actionable for this is no positive charge that he was a Felon, and this may be lawfully done upon a common fame as is said before, thus you see that words that are not directly affirmative will not bear 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, 
fol. 1●. ●. & 11. ●  Words that are of a double or indifferent meaning, The Law will take in the best sense 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:  
yeoman's and Hexts case cited before, 
Cook l. 4. fol. 15. b.  for my land in Allerton, Hext seeks my life, etc. adjudged these words were not actionable, because he may seek 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, 
Cook l. 4. fol. 20. ●  and the words were Master B●rham did burn my barn, (innuendo a Barue with Corn] with his own hands, and none but he: and after verdict it was moved in arrest of judgement, that the words were not actionable, for it is not felony to burn a Barn, if it be not parcel of a Mansion house, nor full of Corn; 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.  
jeams his case, 
C●●ke, l. 4. fol. 17.  hang him he is full of the Pox, I marvel that you will eat or drink with him, etc. adjudged that the words wer● no● actionable, because they shall be 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 Just: 
Mich: 20 jac. in the King's Bench.  that to say that a man is laid of the Pox, will bear an Action; because that is the phrase for the French Pox.  
Adrian Coote brought an Action against Adrian Gilbert for these words; 
Hob: Rep: p. 106. pl. 97.  Thou art a Thief and hast stolen a Tree adjudged that the words were not actionable▪ and agreed that there is no difference between▪ and thou hast stolen, and for thou hast stolen; for in common acceptation (and) is to be understood to be but a verifying and making good of the general word (Thief) and then a Tree shall be understood rather of a Tree standing then felled; which can be no Felony or Theft for that a man cannot steal a man's inheritance.  
So Clarke brought an Action against Gilbert for these words; 
Hob: Rep▪ p. 473. pl. 406.  thou art a Thief and hast stolen twenty load of my Furz adjudged that the action would not lie for the reasons given in the former case.  
The like Law is, 
Cook▪ l. ●. 4. so 19 ●.  if a man say of another that he hath stolen his Apples, or his Corn, or rob his Hoppe ground, or the like, the Law in these cases will adjudge them rather growing, then gathered or cut down, 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 pass it over.  
Pawlin brought an Action against Ford for these words, 
T●in. 18. Car. in the K●ngs B●nch.  thou art a Thievish rogue, and hast stolen my Wood It was in this case said at Bar the Action would not lie, because it should be construed rather to be wood standing then cut down, like those cases put before.  
But Bramston chief justice 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; Arbour du● crescit▪ lignum dum crescere nescu, and so it was adjourned without more saying.  
Note Reader, 
Trin. 4. jac. in the King's Bench, Rot. 1366.  according to the opinion of Bramston Chief justice, betwixt Litchfield and Saunders for the same words, he hath stolen my wood, to which the defendant demurred, it was adjudged that the Action would lie, for Tanfield justice said that the words shall be intended according to the most usual sense, 
Words must be taken according to common intent.  viz. That it was Lignum, and not Arbour, as if one say that the Plaintiff hath committed a murder▪ it shall not be intended that he hath murdered 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 strain 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 immediately before, where it is adjudged that to say of another you have stolen my Wood, shal● be intended to be Lignum, and not Arbour, 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 William Cade Esquire a●d declared that she was of good same, 
Hill. 〈◊〉 jac. in the King's Bench Rot. 115●  etc. and that Henry Earl of Kent was in speech and communication with her for marriage, 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 alleges 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 Plaintiff. It was moved by Hobart Attorney General 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 intendment, and therefore should be taken in the best sense to have the use of her body as a Tailor in measuring▪ or a Physician in giving Physic or the like, and not in any worse ●ence.  
But by Popham chief justice the words are actionable, 
Words taken according unto common intent.  when words are spoken that may have a double intent or meaning, they shall be 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 lawful manner, but licentiously and dishonestly for this is the common intent, with whom all the other Justices agreed.  
Thirdly, 
Mich: 15. Eliz. Dyer fo. 317 Pl. 8▪  where the words are doubtful in sense or meaning, there likewise they will not be actionable.  
To say that a man smells of a murder lately committed, will not bear an Action, 
Hob: Rep. p●. 350. pl. 323. Coke lib. ●. 15: b.  because the words are of a dubious sense and intendment.  
Bradshaw brought an Action against Walker for these words; thou art a filching fellow, and didst ●●lch from William Parson a 100 l. adjudged that the words were not actionable, because that they are of incertain sense and meaning.  
So to call one Harlot will not bear an action. 
Coke▪ lib. 4. 15. b.  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 doubtful sense and meaning without the words be ● spoken to such who knows the meaning and intendment of them.  
Fourthly, where the words themselves are incertain, 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; 
ve. fo. 8. ●● fo. 9  that is, when the scandal is not certain 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 stolen my Apples, or my Corn, or so many load of my Furs, or a Tree, or the like the words in these cases are not Actionable, because the scandal is not apparent and certain by the words; for in every of these cases▪ afore aught appears by the words] the thing said to be stolen might be growing, and then it is a Trespass only and no felony, and to charge a man with a Trespass, will not be actionable.  
But if the words were, thou hast stolen my Apples out of my Loft, my Corn out of my Barn, or my Fu●z or Wood out of my Yard, in such case the words would be actionable, because the scandal is apparent, for that it is evident by the words they were not growing.  
Edward Miles brought an Action against Francis jacob for these words, 
Hob. Rep. p●. 8. Pl. 11.  thou hast poisoned Smith etc. upon a Writ of Error in the Chequer Chamber it was adjudged, that the Action would not lie, because it did not appear by the words that it was done wittingly. 
Hob. Rep. pa. 268. pl. 236.   
Gibs and jenkin's case to say of a man that he boar away money, or the like will not be Actionable.  
A. said of B. that he took away money from him with a strong hand, 
Mich. 15. Car. in the King's Bench.  for which, B. brought an Action, adjudged that it would not lie.  
Bramstan chief● justice in the argueing of Hawes Case, Mich. 1●. of this King in the King's Bench, remembered this case; he did assault me and took away my purse from me; and he said that it was adjudged that the words were not Actionable. 
37. Eliz. in the Common. Pl●as.  The reason of these cases, is because that for aught appears by the words (which are of themselves uncertain) these might be Trespasses only, and no Felony.  
Again, where the person scandalised is uncertain, no Action will lie.  
If one say (without any precedent communication of any person incertain) that one of the Servants of B. (he having divers) is a notorious Felon or Traitor, 
Coke lib. 4. fo. 17. b.  etc. here fore the incertainety of the person no action lies; neither can it be made good by an (innuendo.)  
So, 
Coke ibi.  if one say generally I know one near about B. that is a notorious thief, or the like, no action will lie, for the same reason.  
So as it is in Fleetwoods' case in hobart's Reports; 
Hob. Rep. pa. 375. pl. 351.  if a man say, looking 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, help the incertainety; and note Reader that these cases are not like Wiseman's Case.  
Wiseman of Grays-inn, brought an Action against Wiseman of Lincollins-Inne his Brother for these words, 
Mich. 3: in the King's Bench.  my Brother [meaning the plaintiff] is perjured, and I will justify it, upon not guilty pleaded, it was found for the Plaintiff, and it was moved in arrest of judgement that the words were not certain enough to ground an Action upon, because the Plaintiff might have more Brothers, and it doth not appear of which of them the words were spoken, but it was resolved that the action would well lie, because it is alleged that they were spoken of the Plaintiff, and the Jury have found accordingly; and here Tanfield justice took this difference; where the words themselves are incertain, as to say, one of my Brothers is perjured, there they can never be made good by any averrement, but where the words are certain in themselves, so that it may appear that the Speaker intended a person certain; there they may be made certain 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 been taken, whether the words were spoken of the Plaintiff or no.  
Nor are the former cases like a case which I cited before Mich. 2. jac. where an action was brought for these words; 
Mich. 2. jac. in the King's Bench.  Thou didst kill a Woman great with Child, [innuend▪ jocosam Vxorem cujusdam R. S. defunct] where it was ruled that though the Woman were utterly incertain, yet because the Offence, and the party intended to commit it were certain, the Action would well lie.  
Foxcroft brought an Action against Lacie and declared that a communication was moved between john Walter, 
Hob. Rep. pa. 122. pl. 118.  and Richard Guyn Esquiers concerning a certain Suit, wherein the Plaintiff and certain others were Defendants, and that the Defendant Lacie upon the said communication in their presence, 
Words certain by relation.  spoke these words; these Defendants [meaning the Plaintiff, 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 hanged for it, adjudged the words were actionable, and that they were as sufficiently laid to entitle every of the defendants to a several Action, as if they had been specially named, here you see the words may be sufficiently certain by relation.  
Fifthly, where former words actionable are qualified with subsequent words not Actionable, there though the former words spoken generally, and by themselves would have maintained an Action, yet now, taking altogether, they will not be Actionable.  
Thou art a Thief, for thou hast stolen my Apples out of my Orchard; or, for thou hast robbed my Hopground, or, for thou hast stolen a Tree; or, for thou hast stolen my Furzes; as I have put you the cases before. Or, thou art a Thief, and thou hast stolen my apples out of my Orchard; or, and thou hast robbed my Hop ground, etc. [and] and [for] have both one and the same signification in these cases, as I have cleared 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 qualify the former, for the former words say him to be a Thief, 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 always construe words the best for the Speaker, will take the Apples, Hopes &c. to be growing, and then it is Trespass only and not felony to take them away because felony as I have told you before] cannot be committed of that which is parce▪ of a man's inheritance as these are whilst they are growing.  
Britteridge brought an Action for these words; 
Cook lib. 4. fo. 19 ● b.  Britteridge is a perjured old knave, and that is to be proved by a Stake, parting the land of H. Martin, and M. Wright, adjudged that the words are not actionable, because though the former words would bear an Action, the latter do so qualify and extenuate them, that taking altogether they are not actionable for the latter words do explain his intent, that he did not intend any judicial 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 do 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 bear an Action.  
If a man say of another that he is a seditious knave, 
Coke lib. 4. fo. 19 ●. b.  or a thievish knave; or a traitorous knave; these words will not bear 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 he is a parjured knave, an Action will lie for these words, because that the Adjective [perjured] presumeth an Act committed, or otherwise he cannot be perjured.  
Besides, 
Coke ibi.  Adjective words will bear an Action▪ when they scandal 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 Cook citys this case adjudged, 24. Eliz. between Philip's 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 appear that any thing ensued; yet because that they scandal the Plaintiff in his function, they were adjudged actionable.  
So, 
Mich. 43. & 44. Eliz in the common Pleas, Mittens case. 6. E. 6. Dyer, f. 72.  if a man say of a Merchant, that he is a Bankruptly Knave, or a Bankrupt Knave, these words will bear an action, though that the Bankrupt be adjective.  
Or if one say of a Merchant, that he will be Bankrupt within two days, which imports but an inclination, ●y●t an action will lie; for these scandals reach to the profession.  
So if a man say of an Officer or Judge, 
Cook, lib. 4 fol. 16. a▪ & 19 a  that he is a corrupt Officer or judge, though the words be adjective yet an action lieth for both causes; first because the words touch him in his Office, and then because they do import an act done.  
Hob. Keep. pag. 12. pl. 17. Yardly, and Ellill● case, to say of an Atorney, that he is a bribing knave, will bear an action, though the words be adjective.  
Words likewise that import an intent only, will not bear an action.  
The defendant said of the plaintiff for he is a brabler & a quarrel he gave his Champion counsel to make a Deed of gift of his goods to kill me▪ etc. but God preserved me; 
Cook, lib. 4. fol. 16. b. eaton's case.  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; 
Mic. 32. & 33. Eliz. in the King's Bench.  My Lady Cockein offered to give poison to one to kill the Child in her body.  
Another betwixt Tibets and Heyne in Gloucester for these words: Tibots and another did agree to hire one to kill B.  
Also Cardinal's case for these words, if I had consented to Master Cardinal, T. H. had not been 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 principal 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. Cook in the close of this case says, Note well this case, and the cause and reason of the judgement.  
Certainly Reader there is somewhat more than ordinary in this (Nota be●e) of my Lord Cooks; and the reason of the case seems 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 james in a case in the King's Bench, 
Mich. 4. Jac. in the King's Bench.  this was agreed for law; to say of a man, that he lay in wait to assault I. S. with an intent to rob him, or to murder him, an action lies, because that he doth accuse him of an act, viz. the preparation and lying in wait to assault him, but if he had said that he would have murdered, or would have robbed I. S. an action would not lie, because he only guesses at his imagination.  
And in Harris and Dixo●s case in the King's Bench, 
Pasch. 5. Jac. in the King's Bench.  that case was allowed for law by Tanfield justice, where he said that if one say of another, that he lay in wait to murder I. S. an action lies, because such lying in wait is punishable by the law.  
By this case it should seem, that to charge a man with an attempt only to commit Felony, as to say of a man that he offered to rob, or to poison, 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 lie in such case; by the same reason, to say of a man, that he is a common Quarrel, breaker, or perturber of the Peace, or that he is a Rioter or the like would bear an action, because that for these likewise the good behaviour is grantable, and likewise a man may be 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; 
Pasch. 5. Jac. in the King's Bench.  Thou hast robed the Church (innuendo Ecclesiam sic Alhagi extra, Creplegate London) and hast stolen the Leads of the Church; Upon not guilty pleaded it was found for the plaintiff and it was moved in arrest of judgement▪ that the words were not actionable, because the Church shall be intended the Universal Church, and not any material Church, and the Church Militant cannot be robbed, and so the words are impossible, but by Popham, Chief justice, and Tanfield justice, 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 material Church, as is explained by the subsequent words; and hast stolen the lead of the Church: which cannot be understood of the invisible Church.  
In this case Reader you may observe that it is admitted, that to say of a man that he ha●h robbed the Church▪ generally will not be actionable; because that it shall be understood of the invisible Universal 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 particular material Church.  
Dickes a Brewer brought an action against F●nne for these words; 
Mich. 15. Car. in the King's Bench.  I will give a pick of Malt to my Mar●, and lead her to the water to drink, and she shall piss as good beer as Dickes doth br●w; adjudged the words were not actionable, because impossible, and therefore they could be no scandal to the plaintiff.  
Britteridge brought an action for these words, 
Cook lib. 4. f. 19 a. b.  Britteridge is a perjured old Knave, and that is to be 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 appear that the speaking of the words could be no damage to the plaintiff, there likewise no action will lie.  
The Plaintiff shows in his Count, 
Cook, l. 4. fol. 16. a  that the defendant hath a wife yet in life, and that the defendant said of the plaintiff, Thou hast killed my Wife; adjudged that the words were not actionable, because that it doth appear by the plaintiffs Declaration, that the Wife of the defendant was in life, so that by these words the Plaintiff could not be in any jeopardy nor scandaled, or damnified by them.  
The like case was put in 〈◊〉 Thomas H●lt and Tailor's case Pasch. 
Pasch. 5. jac. in the King's Bench.  5. of King james; if one say of a woman. That she hath murdered her husband; and she and her husband bring the action, it will not lie, because it doth appear by the Record, that the slander is not prejuditiall.  
And as when it doth appear by the Record that the speaking of the words could be no damage to the plaintiff, no action will lie. So where the speaking of the words might be a damage to the plaintiff yet if the ground of t●at damnification do not sufficiently appear by the Record, the action will not lie.  
A br●ught an action against B. for saying That he kept false waits by which he did cousin, 
Nick. 17. Car. in the Common Pl. a.  etc. and declared that he gained his living by buying and sel●ing, but did not show of what profession he was; adjudged that the action would not lie, because it cannot appear (without showing of his profession) that the speaking of the words could be any damage to the Plaintiff.  
A. Brought an action against B. for these words; 
Trin. 17. Car. in the Common Pleas.  Thou hast killed my brother [innuendo G. etc. fratrem, etc. nuper mortuum) adjudged that the words were not actionable, because the Plaintiff did not aver, that he was dead at the time when the words were spoken, and if he were living, than the speaking of the words could be no slander or damage to the plaintiff▪  
So where a man brings an action for Welsh words or the like which are scandelous, 
Hob. Rep. pag. 159. a pl. 145. pa. 165. a pl. 154. & pa. 261. pl. 236.  and doth not aver, or set forth that they were spoken to one who understood the meaning of them, the action will not lie, because it doth not appear by the Record, that the speaking of the words could be any damage to the Plaintiff. For if they were spoken to one that did not understand the meaning of them, no action would lie, because they could be no scandal to the Plaintiff.  
And now I shall add to the rest, only this one ground where words shall not be actionable, and that is in this case.  
When a man is charged with a crime or offence by scandalous words, where it doth not appear 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 Thiefs in his ●ouse, and I will prove it, upon a writ of Error in the Chequer Chamber, it was holden the words were not actionable, because he might maintain Thiefs without notice, and therefore the first Judgement was reversed.  
Like the case in my Lord hobart's Book where an Action was brought against another, for saying that the Plaintiff kept men which did rob upon the Highway, adjudged that the words would not bear an action, because that he might keep them and not know them to be such persons.  
In the case of Reade and Saul which was Mich. 40. e● 41. of the Queen, 
Mich. 40. & 41. of the Queen in the Common Plea▪  this case was remembered by Walmesley justice▪ a man brought an action in that Court for these words he [meaning the Plaintiff] is a receiver of Thiefs, and he said that in this case the Plaintiff could have no judgement, because that he might receive Thiefs, and yet not know them to be so.  
A. said of B. that he kept false waits for which B. brought his action; 
Mich. 57 Car. in the Common Pleas.  adjudged that the action would not lie, because that it did not appear that he did use them; and besides, for that he might keep false waits, and not know them to be so.  
The case of Miles and jacob cited before is likewise to this purpose, 
Hob. Rep. pa. 8. pl. 11.  where an action was brought for these words, thou hast poisoned Smith, adjudged that the words would not bear an action, because that it did not appear that he did it wittingly.  
Stanhop brought an action against Blithe for these words; 
Coke lib. 4. fo. 25.  Mr. Stanhop hath but one Manor, and that he hath got by swearing and forswearing, resolved that the words were not actionable, for this reason amongst others] for that he might recover or obtain a Manor, 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 general rule laid down before, where I am to show you.  
That scandalous words which touch or concern a man in his Liberty will bear an Action.  
By the Books in the Margin the Law is plain, 
2. E. 4. 5. 15 E. 4. 38 17. E. 4. 3. 13. H. 7 K●ilway fo. 26. b. 27. a.  that if I publish and claim B. to be my Villeine, that in such case no action will lie, because I myself claim an interest in him, and the Law will not in such case punish a man; for than no man durst claim his own for fear of an action.  
But upon these Books I conceive the Law is evident, that if a man had published another to be the Villain of I. N. that in such case an action would have laid, because these words tend to the enslaving of him and his posterity, and to the utter deprivation of his Liberties, which the Law so much favours, for, as it is well known, he that was a Villain, he was subject both in person and estate to the will of the Lord, so● that he might seize all his Estate real and personal, and vassalise his person at pleasure, so that he did not kill or maim 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 worn out this Bondage, our Books have little upon this ground therefore I shall thus pass it over.  
Scandalous words which touch or concern a man in Member, or in any corporal punishment, will bear an Action.  
A man brought an Action for calling him Thief, 
Hob. Rep. pa. 258. Male &. Ret● case, & 27 H. 8. 22.  and that he had stolen 2. Sheep from B. the Defendant justifies the calling of him Thief, for that the Plaintiff did steal the Sheep▪ and it was good by the whole Court, without expressing the value of the Sheep, for if they be not worth twelve pence, so that it is but petty Larceny, and not capital, yet it is Felony in its nature.  
By this it is evident, that to say a man hath stolen sixpence from B. will bear an Action, though it be but petty Larceny, because the Offender by Law may be imprisoned and whipped for it.  
If a man say of another that he is perjured, or that he hath forsworn himself in such a Court, 
Cook lib. fo. 15. & 19 Br.  an action will lie for these words. 
Action upon the case 104. Hob. Rep. pa. 114. pl. 107▪  For by the Statute of 5. Eliz. cap. 9 A man convict of perjury forfeits 20. l. and is to have six Month's imprisonment and his testimony taken away while that conviction stands; and if he have not Goods and Chattels to the value of 20. l. then he is to be put in the Pillory, and his Ears to be nailed, so that you see here is an immediate corporal punishment given by this Statute, which is imprisonment.  
And if a man say of another that he can prove him perjured, 
See fo. 7. a. b.  an action will lie, though it be but an implied affirmative.  
Hearle against Tresham thou hast taken a false Oath in the Session of, 
Hil. 1. jac. in the King's Bench.  etc. resolved the words were actionable, for the Court shall intend this to be a Court of Record, as Records of which they ought to take conusance. 
Hob. Rep. pa. 396. pl. 360.   
Adam's against Fleming, he hath forsworn himself before the Counsel of the Marches of Wales in the suit I had against him there for perjury; adjudged actionable.  
In Lelicke and Wrinskemores' case Mich. 7. of King james in the King's Bench, 
34. of the Queen Cossimans' case.  one Cossimen Case was cited, which was thus, thou wast forsworn in such a Bishop's 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, 
Mich. 41. & 42. of the Queen in the Common Pleas.  thou art a forsworn knave, thou wast forsworn in Ilcon Court (innuendo the Court Leete there holden) it was agreed that the (innuendo) should not stretch the words further than they were spoken: And William's put this case, which was in the King's Bench, thou art a forsworn man thou wert forsworn in White Church Court, which was affirmed by all the Sergeants to be adjudged not actionable  
Which case I conceive, 
Coke lib. 4 fo. 15. b.  cannot be Law, 
Yet quaere whether the judges can intend this a Court of Records▪  because it is adjudged (as I have put the case before) that if one say of another that he hath forsworn himself 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 she hath a Bastard, 
Cook lib. 4. fo. 17. Anne Dani●s case.  an action will lie for these words, because that she is punishable by the Statute of 18. of the Queen cap. 3. at the discretion of the justices, who always inflict a corporal punishment upon them, as imprisonment, whipping or the like.  
Morgan and Rookes case Morgan said of the Wife of Rooks she is a Bawd, 
Trin. 16 Car. in the King's Bench.  and keeps 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; 
Trin: 18 Car in the King's Bench  Chambers his wife is a Bawd, and keeps a Bawdy house. Adjuded the words were Actonable, and in this case it was agreed that to say of a Woman she is a Bawd, will not bear an Action; because she is not punishable by the Law for it, but to say of her that she keeps a Bawdy house, will be Actionable, for that she is punishable by the Law for keeping a house of Bawdry.  
A Prohibition was prayed, because that Elizabeth thorn had Libelled in Court Christian against Turnam for defamation for these words, 
●ill▪ 4. jac. in the King's Bench.  thou art a Bawd and dost keep 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 she be thereupon convicted, she shall be imprisoned and most ignominiously Carted, which are corporal punishments.  
If a man say of another that he hath forged a Leaf, Obligation, Release, or Accquitrance, or the like, an Action will lie for these words: Because that by the Statute of 5. of the Queen cap. 14. there are great and grievous corporal punishments inflicted upon such offenders, if it be to disturb a Title, the punishment is the greater, but if only in the cases aforesaid, the Offender is to be put in the Pillory, one of his Ears to be cut off, and to be Imprisoned for a year. 
Mic. 17. Car. in the King's Bench.   
Haws brought an Action for these words; my Cousin Hawes hath spoken against the Book of Common Prayer, and said it is not fit to be read in the Church. Heath justice was of opinion that the words were actionable, though the offence be● only against a penal law, for the Statute of 1. of the Queen cap. 2. gives a penalty only for speaking against the Book of Common Prayer; but in default of payment thereof imprisonment. And he held that all scandalous words, which if they were true, would make a man liable either to a pecuniary or a corporal punishment, would bear an action.  
But Mallet justice, and Bramston Chief justice were of a contrary judgement, 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 suppress 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 bear an action, as to say of a man that he hath erected a Cottage, or committed a Riot or the like, would be actionable, which the Law will not suffer for the reason aforesaid, and judgement 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 he said that his opinion was, the action was not maintainable, I never heard what became of that case, but I conceive the Law to be with Justice Mallet; for though there be many penalties and forfeitures provided by Statutes against Recusants, yet no corporal punishment is given by any of them; no not after conviction.  
Thorneton brought an action against jobson, 
Heb. Rep. pa. 183. pl. 188.  and laid that he was a Carrier, and of good same, and that the defendant said of him, that he was a common Barretor. In this case the book says, that the Court was of opinion, that if these words were spoken of a Justice of Peace, or public Officer, or of an Attorney, or the like, that they would bear 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, 
Mich. 4. jac. in the Ki●●g● Bench.  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, etc. adjudged the words were not actionable, and by Yeluerton Justice, the action will not lie for saying that, he is a Barretor, no more then for saying that he is a Riotor, a peace breaker, or the like, and an action, will not lie for saying, that a man is a Rogue.  
To say of an Attorney, 
Hob. Rep. pa, 159. pl: 145. Box and Barnabies case▪  that he is a Champertor, will bear an action. But I conceive upon the case aforesaid, that to say of one, who is no Attorney, Justice of Peace, nor other public Officer that he is a Champertor, or a common maintainer of suits, will not be actionable, nor is it actionable in case of the Atorney to say that he is a common maintainer of suits.  
The reason of these cases may be, because that though any man may be indicted for being a common Barretor, Champertor, or maintainer of suits, 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 lie 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 lie; which would occasion multitudes of suits of this nature, that the law labours so much to suppress.  
And now I have shown you what words, which touch or concern a man in member, or any corporell punishment, will bear an action. I shall in the next place show you what words in such case will not be actionable; and that may be in these cases, either by reason of the doubtful 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 laid down before.  
For we must know (that I may speak once for all) that all those grounds which are before set down, wh●re words shall not be actionable, which touch or concern a man's life; will agree with all actions for words whatsoever, whether that the words touch or concern a man in corporal punishment as before; or in his Office or place of trust or in his calling or function by which he gains his living, or the like, as is manifested likewise in part before, and shall be more fully hereafter; but to the point, what words in this case will not be actionable.  
Box and Barnabies case cited before, 
Hob. Rep. pa. 159. pl. 245.  to say of an Attorney, that he is a Champertor, will bear an action. But to say that he is a common maintainer of suits, will not b●are an action, for there is maintenance lawful and unlawful; an Attorney may, and aught to maintain his Client's cause▪ and an Attorney may well be said a common maintainer, because he is common to as many as will retain him, thus you see, words of a double intendment, shall be taken best for the Speaker, for the words in this case shall not be intended of any unlawful maintenance, but of a lawful maintaining of his Clients causes.  
Stanhope brought an action for these words. Master Stanhope hath but one Manor, and that he hath gotten by swearing and forswearing: adjudged the words were not actionable, for this reason [amongst others] because, that for aught appears he might be forsworn 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; 
Pasch: 15 Car. in the King's Bench.  Thou art forsworn, and hast taken a false oath at Hereford Assizes: by the opinion of jones, and Bartley justices [the other Justice's absent) the action will not lie, because that he might be forsworn in ordinary communication, otherwise if he had said that he had taken a false Oath in the Assizes, for there it shall be intended that he forsworn himself in a juditiall proceeding.  
In a case that I have cited before, which was Mich. 41. & 42. of the Queen in the Common Pleas; this case was remembered by Willi●ms, thou art, etc. thou wert forsworn in the King's Bench, he said that in this case the Plaintiff could have no judgement, because of the double intendment of the words, for they may be taken that he was forsworn either in the Court or the Prison, and the best shall be taken for the Speaker, viz. that he was forsworn in the Prison.  
Weaver brought an Action against Cariden for these words, 
Cook lib▪ 4. fo, 16 a  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 affirm him to be perjured, and therefore not Actionable.  
Thomas brought an Action against Axworth for these words; 
Hob, Rep pa, 3, pl: 4  this is john Thomas his writing, he hath forged this Warrant; adjudged the Action would not lie.  
Harvy brought an Action against Duckin, 
Hob. Rep. pa. 36, pl.  for saying that the Plaintiff had forged a Writing, adjudged that the words were not Actionable, the reason of these cases, is because of the incertainty of the words, Warrant and Writing▪ and as I have given you the rule before, the scandal must be certain and apparent in the words themselves, otherwise they will not be Actionable.  
By Tanfield justice in Wiseman's 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 Queen in the Common Pleas, this case was remembered by Walmseley justice, one of you forged a Sub-p●na out of the Chancery; (innuendo the Plaintiff) he saith that judgement was stayed in this case; because he which is greeved aught to be certainly defamed and the (innuendo cannot make the words more certain here likewise you have examples▪ that where the person is incertain that is scandalised, no Action will lie.  
powel brought an Action against Wind for these words, 
Hob. Rep. pa. 467. pl. 395.  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 general and utterly incertain.  
Britteridges case cited before, 
Coke lib. 4. fo. 19  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 explain 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 down, may serve as a Touchstone for all cases of scandalous words.  
The third part of that rule or ground which I have laid down before, and which I am now to handle is this.  
That scandalous words spoken of a man, which touch or concern a man in his Office, or Place of Trust, will bear an action.  
Skinner a Manchant of London said of Manwood chief Baron that he was a corrupt Judge, 
Coke lib. 4. fo. 19 a. and 16. a. Cook, lib. 4 fol. 16. a  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 justice of Peace, adjudged the Action would lie, because▪ it is against his Oath, and the Office of a justice of Peace, and good cause to put him out of Commission, and for this he may be indicted and fined.  
Pridham and Tuckers case, 
Pasch. 7 Iac: in the King's Bench.  to say of a Constable that he is a concealer of Felons, adjudged actionable.  
Stafford justice of Peace brought an Action against Poler for these words; 
Trin. 36. of the Queen Rot: 223. in the King's Bench.  William Web being Arrested as accessary for stealing his own Goods, Master Stafford knowing thereof discharged the said Web 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 Writ of Error brought in the Chequer Chamber, it was holden the words were Actionable. 
Pasch. 37. of the Queen in the King's Bench. Rotsie 147:   
Cotton justice of Peace brought an action against Morga● for these words. He hath received money of a Thief that was apprehended and brought before him for stealing of certain sheep▪ to let him escape, and to keep him from the Goal, adjudged the Action would lie.  
Morris Gilbert justice of Peace brought an Action against adam's for these words; 
Pasch. 4. jac. in the King's Bench. this case commenced Trin. 3:  Mr. Gilbert hath done me wrong in returning the Recognizance of Podger in 20. l. where it was taken in ten, and the sureties in 10. l. a piece by the whole Court, the words are Actionable. 
See fo. 18. a.   
If a man say of a justice of Peace, that he is a common Barret or, Champertor, or maintainer of Suits, the words are Actionable.  
Car brought an Action against Rande for words, 
Mic. 4. jac in the King's Bench.  and declared that he was Steward to divers great Lords of their Court Barons, 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 Manor, the Defendant of this not ignorant, said these words Mr. Car hath put a presentment into the juries' verdict against me of 3s. 4d. for sueing of Peter West forth of the Court contrary, etc. without the consent of the jury 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 alleged in his Count that he was Steward, the Action would not have lain.  
Sir George Moor brought an Action against Foster for scandalous words, 
Sir George Moor & Foster's case.  and sets forth that he was a justice 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 Moor and others, to examine Witnesses in the said cause, and also to hear and determine it, and that he with the others, dealt in the execution of the said Commission, and that the Defendant said of the Plaintiff these words▪ Sir George is a corrupt man, and hath taken bribes of Richard King; and at another time, King hath set Sir George Moor on horseback with bribes, where by to defrande equity justice and good conscience, resolved that the words were Actionable; because that though the Plaintiff be neither Officer ●or judge, nor is sworn yet because it is a place of great Trust reposed by the King in the Plaintiff, 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 employed in the like Commission or any other, for these causes the words were held to be Actionable, and Popham Chief justice 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 shall not be Commissioners without the approbation of the Court.  
Sir Richard Greenefield brought an Action against Furnace for these words thou (innuendo Captain Greenfield) hast received money of the King to buy new Saddles, 
Pasch. ●● 17▪ Car in the King's Bench.  and hast cozened 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▪ 
8. Car. in the King's Bench.  one said of him that the Major had cozened all his Brethren, etc. adjudged not Actionable.  
9 jac. in the King's Bench, 
9 jac. in the King's Bench.  the Overseer of the poor hath cozened the poor of all their bread, this was likewise said to be adjudged not Actionable; but I do some what doubt of this case, because the words do scandal the Plaintiff 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 Queen in the King's Bench▪ Kerby and Welter's case, 
26. of the Queen in the King's Bench.  thou art a false knave and hast cozened my two Kinsmen, adjudged the words were not Actionable.  
18. Of the Queen in the King's Bench; 
18. of the Queen in the King's Bench.  Sergeant Fenner hath cozened me, and all my kindred, adjudged the words would not bear an Action.  
Out of which cases, we may (by the way) observe this for Law; 
See fo. 23. b. 24. a.  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 cozened any man thus and thus, that no Action will lie for such words generally spoken, otherwise if they be spoken in reference to a man's Office, place of trust, or profession.  
And in the principal case it was resolved by Heath justice, and Bramston chief justice, (the other justices being absent) that the Action would lie; because the words did scandal him in his place of Trust, and they said it was not material what employment the Plaintiff had under the King, if by the speaking of these words, he might be in danger of losing his Trust or employment.  
Bray brought an Action against Hayne and declared that where he had been Bayly to Sir William M. Kt. for three years' last passed of his Land in C. and had the selling of his Corn and Graine, 
Hob. Rep. pa. 104. pl. 93.  the Defendant said these words unto him, thou art a cozening knave, and thou hast cozened 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, etc. 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 appear that these words were spoken of any sale of Corn whilst he was in his Office of Bailiff, 
Note Reader this case agrees with the cases immediately before.  nor of his Master's Corn, nor to the damage of his Master.  
But it was agreed in this case, that if he had been a common Rider or Badger, and had been 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 gains his living.  
And my Lord Hobart puts this case; if a man [saith he have a Bailiff, to whom he commits the buying and selling of his Corn and grain, and gives him the greater wages in respect of that trust and employment, and charges him to have deceived him in his Office, by buying and selling of false measure, to his loss or damage▪ this will bear 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 do charge him with selling with false measure, whilst he was in his Office.  
In the debate of Sir George Moor, and Foster's case before cited, these cases were put by William's justice, 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 sworn, such corruption is not punishable 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 Fair appointed to way betwixt the buyer and seller, that he hath done corruptly, and hath taken bribes to make false wait, an Action lies for these words, because he is an Officer.  
Miles Fleetwood General Receiver of the Court of Wards for the King, 
Hob. Rep. pa. 375. pl. 351.  brought an Action against Curbey for these words; Mr. Deceiver hath deceived and cozened 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 Plaintiff false Justice of Peace vil his similia. 
4. E. 6. Br. Action upon the case 112●  I do conceve that thesewords are not Actionable because, though they do re●●ect upon his Office, yet they are too general. But the Book saith that these words (his similia) were ordered to be expunged or drawn ou● of the Book, 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 Plaintiff that he was a Rogue and a These, 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 incertain.  
The Law affords very few Cases, (Reader) where words shall not be actionable that scandal a man in his office or place of trust upon those grounds which I have formerly laid down.  
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 general or not sufficiently positive, or if of a double intendment, or doubtful in meaning, or incertain 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 general rule which I have laid down before, and which in course I must now speak of, is this.  
That words spoken of a man, which scandal him in his profession or function by which he gains his living, will bear an Action.  
Yardleys' case, 
Hab. Rep. pa. 13. pl. 17.  there being a communication or discourse of him in his profession of Attorney, one said that he was a bribing knave.  
Boxes case, 
Hob. Rep. pa. 359. pl. 145.  one said of him, being an Attorney, that he was a Champertor.  
Byrchlyes case an Attorney; 
Coke. lib. 4. fo. 16. a.  there being speech of his dealing in his profession one said to him, you are well known to be a corrupt man, and to deal corruptly adjudged in all these cases; that the words, because they scandal a man in his profession by which he doth acquire his living, were Actionable. 
Hob. Rep. pa. 183. pl. 188.   
So, by the opinion of the Court, in Thornton and jobsons' case cited before, to say of an Attorney that he is a common Barretor will bear an action.  
Dawtry an Attorney in the Court of Ipswich brought an action against Miles for these words; 
Mic●. 2. ● jac. in the King's Bench.  Dawtry is a knave and a cozening knave, and he did take Fees of both hands in a suit between me and Greene, and by knavery suffered me to be condemned at Ipswich at Green's suit wilfully being Attorney for me. The only words held considerable in this case were these; the Defendants saying that the Plaintiff took Fees of both hands, and whether this would amount to as much as if he had said the Plaintiff was an ambidexter was the question.  
Popham and Yeluerton, justices that the action would not lie, because that the words in this case may have a double intendment, for it may be intended that he took 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 be otherwise intended.  
Fenner and Williams justice▪ that the Action would lie, for that the words amount to as much as ambidexter, and are the english of it & a direct affirmation 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 been 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 been 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 express meaning of the words; which I conceive the Law will not permit; and the rather as this case is, because that he 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 Judicious Reader.  
Philip's 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: 
P●sch. 24 of the Queen in the King's Bench.  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 appear that any thing ensued thereof; yet because they scandaled the Plaintiff in his function, it was resolved that they were Actionable.  
If a man say of a Merchant that he is a Bankrupt, 
Cook lib. 4. fo. 19 6 ●i. 6. Dyer 72.  or that he will be a Bankrupt within two days, the words are actionable.  
Edmund's a Merchant brought an action against Whetston for these; 
Hitt. 3. jac. in the King's Bench. Rot. 855.  words He would prove that Master Edmunds had been 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 refers 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 suspicious and fearful of him.  
A Merchant brought an Action for calling of him cozening knave; 
Pasch. 15. Car in the King's Bench. this agrees with the former cases see fol: 21. a. b  by jones and Barkley, justice's [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 Merchant Bankrupt, will bear 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 be a Bankrupt, for that he doth not acquire, his living by buying and selling as the Statutes speak.  
jones jestice in the former case put this case. there being a communication of Sergeant Heale in his profession one said of him these words, 
Tri●: 37 of the Queen in Cam. Icace. Osbeston and Stanleys' case.  He hath undone many, adjudged that the words were actionable, because they touch him in his Profession.  
A. Shoemaker 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. 
Pasch. 15. Car. in the Kings Beech.   
Axe a Dyer brought an Action against Mood for these words, thou art not worth a Groat, and avers 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, 
Averrement.  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 plain and proper significant meaning of their own, and therefore cannot be taken in another sense or meaning.  
A Journeman and Foreman of a Shoemaker's Shop brought an Action for these words, 
Pasch. 15. Car. in the King's Bench.  it is no matter who hath him, for he will cut him out of Doors; and avers that the common acceptation and intendment of these words, 
Averrement.  inter Calceareos, is that he will beggar his Master, and make him run away; and avers a particular 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 Doors, are of a doubtful meaning and intendment, and so may be aided by an averrement, so that the difference between this and Axes case cited before, is evident. 
Trin. 41. of the Queen in the Common Pleas.   
Knightly an Attorney brought an Action against Childoner for these words spoken to his Son; my Father was not cast over the Bar as thy Father was; the parties were at issue, and in this case Walmesley justice said that he conceived the words were not actionable.  
Box and Bar●abies case before, the defendant said of the plaintiff being an Attorney these words (amongst others which were held actionable) that he would have him thrown over the bar the next Term: 
H●b. Rep. pa. 159.  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 incertain sense and meaning of them.  
Dickes a Brewer brought an Action against Fen, and declares that the Defendant having communication with some of the Customers of the Plaintiff 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 Water to drink, and she shall piss as good Beer 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 be no scandal to the Plaintiff.  
In this case, it was said by Rolls Sergeant that it had been adjudged Actionable, to say of a Brewer that he brews naughty Beer; 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 justice that where one said of a Lawyer, that he had as much Law as a Monkey, that these words were adjudged not actionable because that he hath as much Law & more also then the Monkey hath, but if he had said that he had more Law than a Monkey, these words would be actionable.  
One said of a Counsellor at Law, that he was a Concealer of the Law adjudged actionable.  
Sanderson and Rudds case the Plaintiff being a Lawyer and standing for the Stuardship of a Corporation, 
Trin. 17. Car. in the Common Pleas.  the Defendant said of him that he was an ignorant man; the Court in this case inclined that the words were Actionable.  
Snag a Counsellor at Law brought an Action against Peter Grace for these words; 
Trin. 13 of the Queen in the Knight Bench. Rot. 114. Co●es Entries fo. 22. a. b.  Go ye to him to be of your counsel, he will deceive you, he was of Counsel with me, and revealed the secrets of my Cause. Adjudged the words were actionable, because that this cannot be intended of a Lawful revealing to the judge 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 appears contrary, for he said before, He will deceive you, etc. Also the Plaintiff declared that they were spoken Malitiose: And these words revealed the secrets, etc. 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 Plaintiff in his Art and Science, which requires men of great trust & confidence, and so the words before being spoken in derogation of the confidence and fidelity of the Plaintiff, are a great slander to him; for these causes judgement was given for the Plaintiff.  
Upon this case I do conceive, that to say of a Lawyer generally that he revealed the secrets of his Client's cause will bear an Action.  
One said of a Doctor of Physic that he was a Monntebanke an Empiric, 
Pasch. 12. Car. in the King's Bench.  and a base fellow; adjudged the words were Actionable. 
Pasch. 17. Car. in the Common Pleas.   
Pain brought an Action upon the case for words and showed how that he was a Farmer and used to sow his land, and to tell the Corn upon it, and by this per majorem partem he maintained his Family: and that the Defendant said these words of him, He keeps a false Bushel by which he doth cheat and cousin the poor, and avers the loss of his custom by the speaking of these words. In this case it was moved by Gotbolt Sergeant in Arrest of Judgement that the words were not Actionable, because it doth not appear that the Plaintiff kept a false Bushel 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 he kept a false Bushel, knowing it to be 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 Plaintiff kept false waits generally, without further saying in this case the words were adjudged not Actionable, 
Hill. ●. of the Queen in the Common Pleas adjudged and after affirmed in a Write of Error, Mich. 26. & 27. of the Queen in the King's Bench. Rot. 35.  because that it doth not appear that he used them, or knew them to be false.  
The fifth part of that General Rule, which I have laid down before, and which now I am in course to speak of, is this. That words spoken in scandal of a man's Title, or which tend to a man's disinheritance, will bear an Action.  
Henry Mildmay brought an Action against Roger Standish for saying and publishing that certain Land was lawfully assured to one john Talbot & Olive his Wife for a 1000 years, and that they of the interest of the term were lawfully possessed, whereas in truth there was no such matter, and so for slandering of the Estate and Title conveyed to his Wife by certain Indentures, and showed all in certain, and how he 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 years, according to the said Proviso, as he pretended (whereas in truth the said limitation was void in Law) by force of which he saith that the said Olive had an interest for a 1000 years, and so justified the words, upon which the plaintiff demurred: adjudged that the action would well lie; though that the said john Talbot and Olive his wife had such a limitation de facto for a 1000 years, which occasioned the defendant being unlearned in the law so to publish it, yet for that he hath taken upon himself notice of the law, and meddled in that which did not concern him, and hath affirmed and published that Olive had a good estate for a 1000 years in slander of the Title of the plaintiff and to his prejudice, for this cause judgement was given for the plaintiff.  
Sir Thomas Gresham Knight brought an action against Robert Gunsley Clark, and shows how his father was seized of divers Manors and lands. 
Hill. 3. jac Rot. 519. B. R. Cook's Entries ● 35. a.  and amongst them of the Manor of Tittesey, which he did by his will amongst other lands devise to Beatrice his wife for life, the remainder to the plaintiff and the heirs males of his body begotten, and had issue William Gr●sham his eldest son, and the plaintiff the younger, and died, and that William after this death confirmed to Thomas his estate, and that Beatrice died, and the plaintiff entered into the said Manor of Tittesey. and further shows that William had issue Elizabeth his heir apparent, and that the plaintiff had a wife and sons and daughters; and that he had an intent to conveye some of his lands to his wife for her jointure, and some to his sons and daughters for their advancement and to exchange parcel with others, and to make a lease of another part, but doth not show to whom, and that the defendant premissorum non ignarus in derogation of the Title and estate of the plaintiff, said these words to the plaintiff. As I before said to your Wife, I say now that your brother was afoole and never borne to do himself any good, for that he could not hold his hands from ratefying and subscribing to his Father's will: but yet notwithstanding I have that to show in my house that if his heir do not any such Act as he hath done, it shall bring her to inherit Tittesey, by which words he saith, that he was hindered 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 plaintiff: the words considerable are only these, that he had that in his house, etc. that shall bring her [that is the Daughter and Heir of William] to inherit Tittesey; which is apparently feasible, for the Plaintiff being Donee in Tail of the gift of his Father, the Daughter and Heir of the eldest Brother is inheritable to the Reversion in Fee; and so no prejudice to the Plaintiff, to say he hath that which shall bring her to inherit.  
Besides the action will not lie because that he doth not show 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 justice 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 show 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 Plaintiff (being Son and Heir to his Father) that he was a Bastard, 
Trin. 25. of the Queen in the King's Bench.  resolved that the Action would lie, for this tends to his disinherision of the Land which descends to him from his Father.  
But in this case it was resolved, that if the Defendant pretend that the plaintiff was a Bastard, and that he himself was next heir, there no Action lies.  
So if a man say that another hath no right to land, an Action lies; but if a Counsellor say that his Client hath the better right, this will not bear an Action.  
Mich. 3. Jac. in the King's Bench per Curiam, if one say to me that I am a Bastard, if I have Land by descent, I shall have an Action upon the case, and thought that I have Land by descent, and this tends to my disinheritance, if I sue in Court Christian for it, a Prohibition lies, because that the trial there may be to my disinheritance.  
And if one say to another that he is base borne, an action will not lie, for the words shall be taken in meliori sensu. And if one say to his Son that he is a Bastard, or a Leper, he shall not have an action neither in Court Christian, nor at Common Law.  
Sir Gilbert Gerrard brought an action against Mary Dickinson, 
Coke lib. 4. fo. 18.  and declares how that he was seized of certain lands in Fee, and that he was in communication to demise them to Ralph Egerton for 22. years 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 Manor and Castle of H. (which was the same lands) for ninety years, and showed and published it, etc. by reason of which words (he saith) the said Ralph Egerton did not proceed to accept the Lease etc.  
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 Plaintiff had not any right to the said Land, but that she herself had right to it, in this case because that the Defendant pretends title to it though, that in truth, she hath not any, yet no Action lies. For if in such case an Action should lie, how could any one make claim or title to any land, or commence any suit or seek advise and Counsel, but he should be subject to an Action; which would be very inconvenient.  
Agreeing with these cases, 
2. E. 4. 5. 15. E. 4. 32  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 sixth part of that general Rule which I have laid down before; and am now to speak of is this.  
That scandalous words which tend to the hindrance or loss of a man's advancement or preferment, or which cause any particular damage, will bear an Action.  
Anne Davies brought an Action against Gardiner for these words, 
Coke lib. 4. fo. 16. b.  spoken to one B. a Suitor to the Plaintiff and with whom a marriage wss almost ' concluded. I know Davies Daughter well, she did dwell in Cheap side and a Grocer did get her with Child, etc. and she 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, etc. adjudged that the Action would lie, because that if she had a Bastard she was punishable by the Statute of 18. of the Queen cap. 3.  
But it was in this case further resolved, that if the defendant had charged the Plaintiff with bare incontinency only yet the Action would have lain, by reason that by the said slander she was defeated of her advancement in Marriage.  
And it was in this case likewise resolved, that if a Divine be to be presented to a Benefice, and one, to defeat him of it, saith to the Patron that he is a Heretic 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 preferment, that in this case an Action will lie. 
Hil: 4. jac. in the King's Bench.   
Dame Morrison Widow brought an Action against William Cade Esquire and dec●ares that she was of good fame, 
Rot. 11 53  etc. And that Henry Earl of Kent was in speech and communication with her for marriage, the Defendant premissorum non ignarus, said these words, Arscot hath reported that he had the use of the Lady Morrisons body at his pleasure; ubi rever●, A●scot never reported it, and alleged that the Earl of Kent upon the hearing of the words surceased his suit by which she lost her advancement, etc. upon not guilty pleaded it was found for the Plaintiff, & in this case it was resolved, that though the words charge the Plaintiff with bare incontinency only, which is an offence Ecclesiastical, and not civil; nor punishable by our Law, yet because of the temporal damage, viz. the loss 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; 
Trin. 17. C●r. in the Common Pleas.  the Plaintiff being a Lawyer, stood for the Stew●r●●ship of a Corporation, and the Corporation being assembled to elect a Steward, the plaintiff was motioned to them▪ whereupon the Defendant being one of the corporation 〈◊〉 to his Brothers, he is an ignorant 〈◊〉, and not fit for the place; and 〈…〉 that by reason of these words▪ they did refuse to elect him St●ward, so that he thereby lost his preferment, etc. 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 alleging of a particular damage; I take this for a Rule, that scandalous words which touch or concern a man in life, liberty, or Member, or any corporal punishment, or which scandal a man in his office or place of trust, or in his calling or function, by which he gains his living, or which charge him with any great infectious disease, by reason of which he ought to separate himself or to be separated by the Law from the society of Men; all such words will bear an Action, without averring or alleging of any particular damage by the speaking of them.  
Yet I do not deny, but that it is best to allege a particular damage, if the case will beat it; and it is usual so to do in these cases, for the increase of damages.  
Bramston chief justice in the arguing of Hawes case which I remembered before took this for a Rule, 
Mic. 17. Car. in the King's Bench.  that if words did import a scandal of themselves, by which damage might accrue, in such case the words would bear an Action, without alleging of a particular damage.  
But now on the other side, words which do not touch or concern a man in any of the cases aforesaid, will not bear an Action, without alleging of a particular damage.  
Words spoken in scandal of a man's Title will not bear an Action; without averring of a particular damage, as appears by the cases before cited upon that ground.  
There are many words, 
Cook lib. 4. 10. 15. b  which are words of passion and choler only, as to say of a man that he is forsworn Generally, or that he is a villain, or a rogue or a varlet, 
Averrement.  or the like, these words are not Actionable of themselves; yet I do 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 concern matter merely Spiritual, 
Cook, lib. 4 fol. 17. a & fo. 20. ●. 27. H. 8. 14 the Register fo. 54.  and determinable in the Ecclesiastical Court only; as for calling of a man a Bastard a Heretic a Scismatique, an Advo●vterer, a Fornicator 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 Chief justice if one say of a Woman that is an Inholder, 
Cook lib. 4. fo. 17. ●  that she hath a great infectious disease, by which she loses her guests, an Action will lie, this must be taken with an averrement of that particular damage; otherwise an Action will not lie, unless the disease be such for which she ought to separate herself, or to be separated by the Law from common society, as I shall show you hereafter.  
Axe and Moods case cited before, 
Pasch. 15. Car. in the King's Bench.  the Plaintiff being a Dyer brought an Action for these words, thou art not worth a Groat, 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 Plaintiff 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 lain. 
Pasch. 15. Car. in the King's Bench.   
In the case of the Foreman of a Shoemaker's Shop cited before, for these words; it is no matter who hath him, for he will cut him out of doors, the Plaintiff averred that the Common acceptation of these words, inter Cal●eareos is, that he will beggar his Master, and make him run away; and showed a special 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 Cheer, Cousin or defraud; or that he will beggar his Master, or the like, will not bear 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 Thief, Traitor, or the like, and some words will no● bear 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 bear an Action; but if the party of whom they were spoken, were to be married 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, 
Mic. 15. Ca● in the King's Bench.  where one said of the Plaintiff being a Brewer, that he would give a peck of Malt to his Mare, and ●ead her to the water to drink, and she should piss as good Beer as the Plaintiff 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 been a special damage alleged▪ as loss of Custom or the like, the Action would have lain.  
Haws case cited likewise before, 
Mich. 17● Car. in the Knigs Bench.  one said of him, that he had spoken against the Book of Common Prayer and said that it was not fit to be read in the Church for which he brought his action, and showed how that by reason of the speaking of these words by the Defendant▪ he was cited in to the Ecclesiastical Court and had paid and expended several sums, etc. adjudged that the words themselves were not Actionable; because if they had been true▪ they charge him only with an offence against a penal Law, which doth not inflict corporal punishment, 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 justices.  
But Bramston Chief justice, (the other Justice being absent) was of a contrary judgement, and he took this for a Rule, that if the words did not import a scandal in themselves (as He 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 do 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 reverend Judge's) that for the damage only the Action will lie▪ for otherwise the Plaintiff 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 separate himself, or to be separated by the Law, from the society of men, will bear an Action.  
If a man say of another that he hath the French Pox, 
Coke lib. 4. fo. 17.  an Action will lie.  
Taylor brought an Action against Packins for these words, thou art not worthy to come into any honest man's company, 
Hill. 4. jac. in the King's Bench.  thou art a Leprous knave, and a Leper. Adjudged that the words are Actionable, because that it is cause of separation by the Law of God and Man.  
So by Tanfield justice to say that one is infected with the French Pox, will bear an Action, but to say that one h●th the falling Sickness, is not Actionable, except that it disables him in his profession, as to say that a Lawyer hath the falling Sickness, an Action lieth▪ because that it disableth him for his business.  
Upon this ground I conceive, to say of a man that he is infected with the Plague, will bear an Action, because this also is a dangerous infectious disease, and a cause of separation.  
I have now finished my task of showing 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 Plaintiff; 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 down this as a ground, that scandalous words which of themselves singly would bear an action yet being joined to other words or discourse, and so Causa dicendi, or the subject matter being considered, they will not bear an Action. For Sensus verborum ex causa dicendi accipiendus est, etc. And words must ever be construed according to the subject matter. 
Coke lib. 4. fo. 13. b   
Henry Lord Cromwell brought an Action de Scandalis Magnatum against Edmund Denny, 
Coke ubi supra.  Vicar of N. in the County of Norfolk, etc. for these words: It is no marvill that you like not of me, for you like of those that maintain sedition against the Queen's proceedings; the Defendant pleaded a special justification, in effect thus; that the Defendant being Vicar of N. the Plaintiff procured I. T. and I. P. to preach there, who in their Sermons enveyed against the Book of Common Prayer, and affirmed it to be superstitious; wherefore the Defendant inhibited them, for they had no licence nor authority to preach, yet they proceeded through the encouragement of the Plaintiff, and the Plaintiff 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 maintain sedition [meaning that seditious Doctrine] against the Queen's 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 Plaintiff hath declared, they might have been Actionable; because that then they could not be construed otherwise then of a public and violent sedition, as the word itself doth import.  
Yet now the ground and occasion of the words appearing, by which it is evident, that the defendant did not intend any public or violent sedition, but only that seditions Doctrine against the proceedings of the Queen, viz. the Statute de anno primo, by which the Common Prayer was established, and God forbid [saith the Book] that words by a strict and Grammatical 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 he was speaking with the Plaintiff of unlawful hunting, and that the Plaintiff confessed that he had killed divers Hares with certain Engines, to whom the Defendant answered and said, Thou art a murderer [meaning the kill 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; 
Coke lib. 4. fo. 16. 1.  you are well known to be a corrupt man, and to deal corruptly: resolved that the words were Actionable, but in this case it was ruled that if the precedent speech had been that Byrchley was a Usurer, or that he was Executor of another, and would not perform the testament, and upon this the Defendant had said these words, upon a special justificatio●● as aforesaid, they would not bear an Action.  
Banister and Banisters case resolved that if I call an heir a Bastard, 
Coke lib. 4. 10 l 17. a.  an action will lie▪ but if the defendant pretend that the plaintiff is a Bastard and that he is next heir, there no Action will lie. The reason of this is plain, because causa dicendi, or the occasion of speaking of these words, is not to defame the Title of the plaintiff, but only to justify the Title of defendant, and it is lawful for any one to speak in justification of his own Title, though he do thereby seem to slander the Title of another man, agreeing with this case is Gilbert Gerrard's case cited before.  
Molton brought an Action against Clapham and declares how that there being a cause pending in this Court betwixt the plaintiff and defendant, 
See fo. 26: b. 27. a Pasch. 15. Car. in the King's Bench.  upon reading of certain Affidavids of the plaintiffs in Court, the Defendant said openly in present●● & auditu justiciariorum & juris peritorum, etc. There is not a word true in the Affidavids, which I will prove by forty witnesses: and alleges that the words were spoken malitiose. yet it was resolved by the Court that they were not Actionable, because as they are usual 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 immediately before.  
And Bartley justice said that there are two things mainly considerable in words, the words themselves, and causa dicendi; and therefore sometimes though the words themselves would bear an Action yet causa dicendi being considered, they will not be Actionable, as in this case.  
Now as my Lord Cook says in Cromwel's case before remembered, 
Coke lib. 4. fo. 14. a.  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 be pleaded in excuse of the Defendant.  
But before I pass this, 
Coke lib. 4. fo. 13. b. 14. a  Reader, I shall observe unto you that the defendant in these cases might take the general issue, if he would, viz. that he is not guilty modo & forma, as the Plaintiff hath alleged, 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] justify 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 special finding of the jury will warrant the Declaration of the Plaintiff, and maintain the action, and where not? may be very questionable, and worthy the knowing.  
The Defendants plea is that which must guide us in these cases, if he plead not guilty▪ the words are [as I have said before] modo & forma as the plaintiff hath alleged, and if the justify the speaking of other words, and traverse the words in question, he doth it thus, absque hoc, that he spoke the words in the Declaration modo & forma as the plaintiff hath alleged.  
Now where the words that are found by the jury shall be 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 substantial and essential form, that in such case, they do not warrant the Declaration. But if they do agree in the substantial and essential form●, though they agree not in every word, yet they do well warrant the Declaration, and by consequence maintain the Action.  
Sydenham against Man for these words; 
Hob. Rep. pa. 252. pl. 213.  If Sir john 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, etc. the jury found that he speak these words, viz. I think in my conscience, that if Sir john Sydenham might have his will, he would kill, etc. and find all the subsequent words before Alleged, and whether the Defendant were Guilty of speaking of the words in the manner and form as they are Alleged by the Plaintiff 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 form must be understood the essential form, not according to every word, here you have the ground laid down before.  
Yet the Book saith that Pasch. 16. though the Court inclined that either of the words would bear an Action, yet it was agreed that the words were not found so absolute as the Declaration, neither moved credit in the ear 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 Thief, and it were found, I think him to be a Thief.  
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 essential form of them, for I question, (●as I have done 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 Thief, 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 be 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, 
Mich. 4. jac. in the King's Bench.  which were thus; Nicholas Fenner procured 8. or 10. of his neighbours to perjure themselves, the defendant pleaded not guilty; and the jury 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 Plaintiff, or the defendant▪ was the question, and the doubt was whether this word (cause) amount to as much as procure. Tanfield justice seemeth that it doth not, for he 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 seal, 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 jeeke for these words Chipsam is a Thief, 
Hil: 3. jac in the King's Bench.  for he hath stolen a Lamb from A. and Geese from B. and killed them in my ground, issue was joined whether the Defendant spoke the words modo & forma, etc. the Jury find that the defendant said that the plaintiff was a Thief, for he hath stolen a Lamb from A. and killed it in my ground, but they find that he spoke nothing of the Geese, yet it was resolved that the finding of the Jury did well warrant the Declaration of the plaintiff, because that the substance of the words is, that he is a Thief, and thee for he hath, etc. only a demonstration in what he is a Thief, which is as well in stealing of the Lamb, as of the Geese; and than if it be found that he said any of them, it sufficeth, and judgement was given for the plaintiff.  
Norman and Symons case, 
Tri●. 7. Car. in the King's Bench.  the plaintiff brought an Action for words and declared that they were spoken false & malitiose; the jury find the words spoken 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 substantial form of it, for if the words were not spoken out of malice, they will not be Actionable, as I shall show you hereafter.  
Brugis brought in Action for these words, 
6. ●. 6. Dyer fo. 75. fol: 21.  Brugis is a maintainer of thiefs and a strong Thief himself, issue was joined whether the Defendant spoke the words modo & forma, and the jury found all the words except the word [strong] and in this case the Plaintiff had judgement.  
Here we may observe that though every word alleged in the Declaration, be not found, yet the essential and substantial form of the words being found, that is sufficient to maintain 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 john Barbar and his Children be False Thiefs, men cannot have their cattle going upon the Common, but they will kill them, and eat them, etc. issue was joined whether the Defendant spoke the words modo & forma, and the jury found that he spoke these words, viz. Men cannot have their cattle going upon the Common, but john Barbar and his Children will kill them with Barber's Dogs in this case it was adjudged for the Defendant.  
The reason is plain, because the words found by the jury do vary in the essential and substantial form, from the words in the Declaration. For the words in the Declaration do charge the Plaintiff with Tneft, for which an Action would lie, but the words found by the jury charge him only with trespass, for which no Action will lie, I have sufficiently proved the ground laid down before, and therefore I shall 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 appear that they were not spoken out of malice, they will not be actionable.  
Ralph Brook, 
Michl▪ 3. jac. ●n the King's Bench▪  York Herald brought an Action against Henry Montague, Knight, Recorder of London for saying of the Plaintiff that he had committed Felony. The Defendant pleaded how that he was a Counsellor and earned in the Law and that he was retained of Counsel against the Plaintiff at such a Trial, and set forth all the matter in certain, and that he in giving evidence to the Jury spoke 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 Appeal of Murder, if the Counsel with the Plaintiff 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 Counsel for the Plaintiff.  
But if that which he saith be impertinent, in scandal of him against whom he speaks it, as in Trespass of battery to say that the Defendant is a Felon, there an Action will lie, for that they cannot be otherwise taken, but to be spoken out of malice.  
And in this case it was further said, that if a Counsellor be informed of any matter of slander apt to be given in evidence, and he speaks 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 Suffolk, the case was thus. In the Acts and Monuments of Mr. Fox, there is a relation of one Greenwood of Suffolk who is there reported to have perjured himself before the Bishop of Norwich in the testifying against a Martyr in the time of Queen Mary, and that afterwards by the judgement of God, as an exemplary punishment for his great offence, his bowels rotten out of his belly.  
And the said Parson Prit being newly come to his benefice in Suffolk, and not well knowing his Parishioners, 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, etc. and upon evidence all the matter appeared, and by the rule of Anderson Justice of Assize he was acquitted, because it did appear, the Defendant spoke the words without malice, and this rule was approved by the King's Bench in this case.  
In the arguing of Sanderson and Rudds case which I remembered before, these cases following were cited by Gotbolt Sergeant, who was of Counsel with the Defendant, and agreed by the Court for Law.  
james and Rudlies case, 
40. & 41 of the Queen in Common Pleas.  the Defendant spoke by way of advice to his friend, telling him that the Plaintiff was full of the French Pox, and therefore advised him not to keep him company, adjudged (he said) that no Action would lie for these words of advice, the reason is, because that these words were not spoken out of any malice to the Plaintiff, but merely cut of good will to his friend.  
Norman and Simons case remembered before, 
Trin. 7. Car. in the King's Bench.  the Plaintiff brought an Action for words, and declared that they were spoken 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 spoken maliciously, 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 chief justice: 
sil. 4 jac in the King's Bench.  If one say in Counsel 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 himself, and avoid such occasion afterwards, it see mes (saith he) that an Action will lie for such counsel, 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 showing you what words are Actionable in the Law, and what not. It will, in the next place, be very necessary to be known, where a man's Suit or prosecution at Law, shall subject a man to an Action, and where not, and here I shall lay down this as a rule.  
That for any Suit or other legal prosecution in course of justice [if not out of malice and touching a man's life] no action will Lie. 
13. H. 7. Keilway fo. 26. 11. of the Queen Dyer. fo. 2   
A Man brought 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. Coke 4. Book the justification was good, for [saith the Book] no punishment was ever appointed for a Suit in Law, though that it were false and for vexation. 
Coke lib. ●. fo. 14●.   
Cutler and dixon's case, adjudged that if one exhibit Articles to a Justice of Peace against a certain 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 shall 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 complain, for fear of infinite 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 Piracies (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 belongs to justice, nor to punish the said offences, etc.  
Also by the Law no Murder or Piracy can be punished upon any Bill exhibited in English, but the offender ought to be indicted of it, and upon this to have his trial; so that he that preferred this Bill hath not only 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 Appeal of murder returnable in the Common bench, for this no action lies; for though the Writ is not returnable before competent Judges, which may do justice, yet it is in nature of a lawful Suit namely by writ of appeal.  
Scarlet brought an Action against Styles for these words; 
Hob. Rep. pa: 268 pl. 238  thou didst steal a Sack. The Defendant pleaded that there was a Sack of a man's unknown stolen and that the common fame was that the Plaintiff had stolen it, whereupon the Defendant did inform Thomas Kempe a justice of Peace, that he had stolen it, and in complaining and informing the said justice thereof he did there in the presence of Kempe, and of the Plaintiff say unto the Plaintiff & of him thou didst steal, etc. whereupon the Plaintiff demurred in Law.  
There is nothing spoken to the case in the Book; but I conceive the Law will be somewhat strong for the Plaintiff, 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, 
Hob. Rep. pa 112, pl 105  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 justice▪ 
Heb Rep pa 425 pl 381  yet it doth not warrant any man to say he is a Felon, or a Thief; 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 justice of Peace, because, though common fame may (as I have said) warrant him to charge him with felony before a justice of Peace, yet it cannot warrant him to call him fellow.  
A man brought an Action against another for ca●ling of him Thief; The defendant pleaded that there was a Robbery done, etc. & communis vox & fama patriae was that the Plaintiff was guilty of it, and so justifies; but the justification was held nought, for common fame that a man is a Thief, will nor justify any man in the calling of him so. 
Hob Re● page 93 pl 71 cr pa 112 pl 105  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 Thief after a general, or special Pardon, though the Defendant knew it not, will bear an an Action, but there it is agreed, that to arrest a man for Felony after pardon if he knew it not may be justifiable; because it is a legal course and an Act of justice.  
In justice Crooks case it was agreed by the Court, 
Trin: 16. Car: in the King's Bench.  that though it be lawful for a man to prefer 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 plaintiff will publish the effect of his Bill in a Tavern or other place openly, by this means to scandal the defendant, this is punishable in another Court, notwithstanding the Bill pending in the Star-Chamber, because this tends merely to scandal, and not to a pursuing of the ordinary course of justice, and so jones Justice said it had been adjudged.  
Owen Wood, and Buckleys case cited before doth in effect make good that which Justice jones 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 judgement, [which was afterwards reversed in the Chequer Chamber, because that the plaintiff laid that the defendant published the Bill to be true, without expressing the matters in particular contained in the Bill, upon which the action was intended to be 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 plaintiff. So that it is in this case plainly admitted, that if he had published the particular matters contained in the Bill, and this had been shown by the plaintiff,] there the action would have lain.  
Note Reader, I have inserted this clause, in the rule before laid down [where the prosecution in course of justice, is not out of malice, and touching a man's life] for this reason.  
Because I do conceive, 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 lie. 
F. N. B 114. D. Cook lib. 9 fol. 56. The Poulterer's case.   
If two falsely and maliciously conspire to indict another, and after he that is so indicted, is acquitted, a Writ of conspiracy lies. So if one only falsely and maliciously cause another to be indicted, who is thereupon acquitted, an action upon the case in nature of a conspiracy, lies against him for it; and so it hath been often adjudged; I shall only remember one case in point.  
Marsham brought an action against Peascod, 
Pasch. 3. Iac: in the King's Bench Rot. 372.  and declares how that he was of good fame and report, and that the defendant intending to defame him, fals● & malitiose procured the plaintiff to be indicted of Felony, & to be arrested and imprisoned, quousque fuit acquietatus; so that the alleging of the acquittal was insufficient, for that he ought to have said that he was legitimo modo acqui●tatus, the defendant pleaded not guilty and it was found for the plaintiff, and Richardson said in arrest of judgement that this action will not lie, if it be not alleged that he was lawfully acquitted and said that F. N. B. had the like Writ, and there it is alleged expressly that he was lawfully acquitted, and so it ought here.  
Tanfield justice, A conspiracy, nor an action in nature of a conspiracy will not lie, if the plaintiff be 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 he be never acquitted; and he said that the like action upon the case had been adjudged to lie well, though that the Plaintiff were never acquitted; and the Justices relied much upon the words falso & malitiose; and after judgement was given for the Plaintiff.  
Thus you may see that where a man is falsely and maliciously 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 malicious, tending much to the slander and scandal of the plaintiff therefore the action lies.  
But here I would have you observe, Reader, that the plaintiff ought in these actions to declare, that the defendant, falso & malitiose procured him to be indicted, because the malice is the ground of the Action; and if upon the Trial it do appear that there was Probabilis causa for the indictment and prosecution thereupon, the Action will not lie. Thus much shall suffice to show you, in what case a legal prosecution in course of justice shall Subject a man to an Action, in what not. In the next place I shall show you, which I cannot omit.  
For what scandal of a Noble man, or great Officer, etc. an action de scandalis Magnatum will lie upon the Statutes 
Coke lib. 4. fo. 1●. b. 13. a.  of 3. E. 1. cap. 33. or 2. R. 2. cap. 5.  
For a Suit or other legal 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 be 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 Earl of Lincoln brought an Action de scandalis Magnatum upon the Statute of Westm. 
Trin. 5. jac. in th● King's Bench.  1. cap. 33. against one john Righton, and recited the Statute, and said that the Defendant said of him, my Lord is a base Earl, and a paltry Lord, and keeps none but Rogues and raseals like himself. Upon not guilty pleaded it was found for the Plaintiff, and it was moved in arrest of judgement that the words were not actionable, for though they were unseemly & immodest yet they were not such defamatory words upon which to ground an Action, for though they were true, the Earl could not incur any prejudice by them, Crook cont. this action de scandalis magnatum, is not to be compared 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 be such that any discord 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 seen 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 General for the Plaintiff 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 speak any scandalous words of an Earl or other Peer of the Realm, which impeaches their credit, because that they are of the great Counsel of the King and State, and a principal part of the body politic, so that their discredit or disparagement, is a disparagement to all the Realm, 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 Duck of Buckingham in. 4 H. 8. Fe●ner Iust. it seems to me that the action lies for they are words of great slander to the Earl. But where the Statute of Marleb. is that Lord shall not distrain 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 justice concesset but he saith if one say of a Lord that he used to distrain and put the Beasts in his Castle, ut supra, an action lies; for one act against Law will not bring him into contempt: but if it be usual for him so to do, this is a cause to make him contemptible. In the case of the Earl of Arundel, who had made Commissions to his Servants to make Leases and improve Rents, one said of him, My Lord hath sent his Commissioners to spoil 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 seems to me that it will here, Williams justice to the same purpose; and that the Earl is conservator Pacis at common Law and Comes Regis, and if any one speak of them any thing which may make them to be contemned of the King or his people, an action lies upon this STATUTE.  
Yeluerton justice was absent, judgement was respited to the intent that the Defendant by his submission might give satisfaction to the Earl.  
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 maintain an action de scandalit magnatum, otherwise in case of a common person.  
I have now Reader, quite finished my labour of showing 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 show you where an Averrement will be necessary, and where not.  
For the first, you may take this for a certain 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 sense actionable, in the other not; in such, case a (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 Plaintiff burned his Barn [innuendo a Barn with Corne.] 
Coke lib. 4▪ fo. 17. b. & 20. a.   
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 strain them to such an intendment, as to make them Actionable; and therefore the [innuendo] in these cases is idle and to no purpose.  
So if the words be incertain 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 Plaintiff took away money from him with a strong hand [innuendo felonice] hear the words being incertain in the intendment, 
Mich. 15. Car. in the King's Bench. cited before.  whether of a Trespass, 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, 
Hob. Rep: pa: 3 pl. 4  for saying that he forged a warrant [innuendo quoddam Warrantum, etc. as Thomas and Axworths' case is cited before, 
Hob. Rep: pa 63, pl 48.  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; 
Coke lib. 4. fo. 17 b.  One of the Servants of B. (innuendo the Plaintiff. is a notorious Felon, or Traitor, &c) And if an Action be brought for these words, I know one near about B. that is a notorious Thief, (innuendo the Plaintiff:) 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 be sufficient; I will add only the Office of an (imnuendo.)  
The office of an [innuendo] is only to contain and design the same person, 
Cook. lib. 4 fol. 17. b  which was named in certain before: as thus, two are speaking together of B. and one of them saith, he is a Thief; there B. in his Count may show that there was a speech of him betwixt those two, and that one of them said of him, he (innuendo the plaintiff) is a thief.  
Or else to declare the matter or sense of the words themselves, which was certainly expressed before; as thus, A. and B. speaking of C. A. said that C. was a Traitor, to whom B. said that he was so too; in this case if A. bring an action for these words, he may show in his Count, that there was a speech betwixt him and the defendant of C. and that the plaintiff said to the defendant that C. was a Traitor, and that the defendant said then to the plaintiff, that he (innuendo the plaintiff) was so too [innuendo a Traitor.]  
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 sense of the words which was certain before.  
But an [innuendo] 
Cook lib. fol. 17. b  cannot make a person certain, which was incertain before, nor alter the matter or sense of the words themselves; for it would be inconvenient, that actions should be maintained by imagination of an intent, which doth not appear by the words, upon which the action is founded; but is utterly incertain, and subject to deceaveable conjecture.  
For by this means, if I should be suffered to be the declarer of the meaning or intendment of the incertain and doubtful speeches of another man; I might judge him to speak that, he 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 down 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 expressly averred to be, or not to be, as the case requireth. 
Hob Rep pag. 8.   
Miles brought an action against jacob for these words; Thou (innuendo etc.) hast poisoned Smith (quendam, Sam. Smith ad tuuc defunct. innuendo) adjudged the action would not lie for this reason [amongst others] because that did it not appear 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; 
Trin. 17. Car. in the Common-pleas.  A. brought an action against B. for these words, Thou hast killed my brother (innuendo C. etc. fratrem, etc. nuper mortuum) adjudged the action would not lie, because the plaintiff did not aver 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 he were not dead (which shall the rather be intended, without the plaintiff do expressly aver him to be dead) than the plaintiff could not be endamaged by the speaking of the words, and by consequence no action will lie for them.  
I must confess that I have a report of a case which was 5. of King james adjudged against the former cases, 
Pasch. 1. Jac. in the King's Bench  Sir Tho. Holt brought an action against Tailor for these words, Sir Thomas Holt hath killed his Cook, 
Rot. 107.  etc. and did not aver that he had a Cook, nor that the Cook was dead, and this was moved in arrest of judgement; and by the whole Court the Declaration was moved good, because it shall not be intended, that there is any such purgation of the slander as this is, except it doth appear 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 lie, because that it doth appear 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 Cooks 4. Book Quaere tamen, 
Cook lib. 4 fol. 16. a  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 bear an action, like the Lady Morrisons case which I have formerly cited, fo. 6. b.  
Whether Welsh words, or words in English doubtful in sense, yet equipollent, and of a common intendment and acceptation in some certain place with words Actionable, will bear an Action, without an express averrement of the importance of them, or no? quare & vide fo. 6. a.  
Hasselwood and Garrets case cited before, 
Pasch. 1. jac. in the King's Bench.  whosoever is he that is falsest Thief and strongest in the Country of Salop, 
Rot. 107.  whatsoever he hath stolen, or whatsoever he hath done, Thomas Hassellwood is faller than 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 be intended, if it be not averred that there were some] then the speaking of the words could be no slander to the Plaintiff, 
Hob Rep page 309  and so no Action can lie.  
Blands' case cited before, he brought an action against A. B. for saying that he was indicted for Felony at a Sessions holden, etc. and did not aver that he was not indicted, and after a Verdict for the Plaintiff, judgement was stayed, because there was no Avetrement, ut supra. Note if he were indicted, which he doth tacitly admit, than no cause of action.  
johnson against Dyer, 
Mich. 15. Car: in the King's Bench.  the Defendant having communication with the Father of the Plaintiff, said to him, I will take my Oath that your Son stole my Hens; and the Plaintiff did not aver that he was his Son or that he had but one Son, and therefore adjuged that the action would not lie. In this case if he were not his Son, than no cause of action.  
One Clerk said that he had a Son in Nottinghamshire who had his Chest picked, 
Pasch. 7. lac. in the King's Bench.  and a hundred pounds taken out of it, in one Lock. Smith's house; and I thank God I have found the Thief 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 judgement, because that he did not aver that he dwelled in the next house, Crook one said that Prichards' man rob him, who brought an Action; and did not aver that he was Prichards' man, and therefore it was held that the Action would not lie. And the justices in this case would not give judgement.  
Non constat in this case that the Plaintiff was the party of whom the words were spoken; for there might be another of the same name dwelling else where: and therefore he ought to aver that he dwelled 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 special damage See fo. 28.  
I have clearly proved the ground before laid down, and by these cases you may be 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 author had in composing of it, such is the ardent desire of  
Your affectionate friend JOHN MARCH.   

Arbitrement.  
THe next thing Reader, that I have undertaken to discourse of, is, Arbitrements, the learning whereof will be very useful to all men; in regard that Compromises 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 be to the world's end, certainly the learning of Arbitrements will well deserve our knowledge. Which being well observed and learned by all men, will be a good means 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 old. The only cause whereof is the ignorance of men in this learning. The Composer hereof, Reader, took this pains, only out of a desire of the Common good, that none might be ignorant of that which concerns all. And if it shall effect that for which it was made, the instructing of the ignorant, and the good of the public; the Author hath his ends, and abundant recompense for his labour. Which that it may accomplish is the earnest and affectionate desire of the true Servant to the public.  
IO MARCH.   

In my Lord Dyer it is said that to every Award, 
Trin. 4. of the Queen Dyer. fo. a 17. pl. 6●.  there are five things incident.  

1. Matter of Controversy.  
2. Submission.  
3. Parties to the submission.  
4. Arbitrators.  
5. Rendering 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 down] conceiving them to be as exact a description or delineation of those things that are requisite to every award, as possibly can be made: And indeed teaching to all the cases in the Law, which do principally or chiefly concern Awards or Arbitrements.  
First then there must be a matter of debate, question and controversy.  
Secondly, this matter of debate question and controversy must be submitted.  
Thirdly, there must be Parties to the submission.  
Fourthly, there must be Arbitrators, to w●om the matter in controversy must be submitted. And lastly the Arbitrators must make an award or an Arbitrement.  
Upon these several branches, I shall raise several questions, and debate and clear them as I go, 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, Idiots, mad men, a man deaf dumb, 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 College or Hospital without his Fellows, or the like. All these as they are incapble to grant, so I conceive, that they are not of capability to submit to an Arbitrement, but that the submission will be absolutely void in these cases.  
The reason of these cases may be, because that they have not power of themselves to dispose of their interest or property, and therefore they cannot transfer such power over to another; for the rule is, quod ●er me non Possum, necper alinns.  
And Hill 15. of this King in the King's Bench, 
Hill. 15. Car. in the King's Bench, Rot. 313. see 14. H. 4. 12. 10. H. 6. 14.  betwixt Rudsten and Yates, it was adjudged, that the submission of an Infant to an Arbitrement was absolutely void.  
But now on the other side, I conceive that all persons whatsoever that are not fettered with these natural or legal disabilities; but are of capacity to make a grant, that such persons may submit themselves to an Arbitremen, as persons not attainted, compos mentis, deaf dumb, or blind, 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 merely personal, and incertain, 
22. H. 6. 39 4. H 6. 17. 14. H. 4. 2. 4. H. 16. 17. 2 H. 5. 2.  as Trespass, a Ward taken away, and the like, are arbitrable.  
But things which are of themselves certain, are not arbitrable, except the submission be by Deed, or that they be joined with others incertain, as Debt with Trespass, 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 certainty, which are in themselves incertain, and not to make things more certain, which are certain already.  
And the reason likewise that is there given, why a thing certain, which is joined with a thing incertain should be arbitrable, is because that the arbitrement is entire, and therefore cannot be good as to that which is arbitrable, and void for the residue; (which you must understand being of things within the submission) but being good for the part which is incertain, it will make the rest also arbitrable.  
Chattels reals or mixed, 
g. H. 6. 60. 14. H. 4. 24 19 H. 6. 37.  are not of themselves alone arbitrable, as Charters of Lands, Leases, or the like, without the submissien be by specialty.  
Debt upon the arrearages of account before Auditors, 
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.  because such Debt is due by Record; Annuities, nor Freeholdes, none of these are of themselves arbitrable, without the snbmission be by specialty.  
I must confess that some of these Books 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 Bar of an action.  
But I take this as a general rule, that no Chattels reals, or mixed, no Debts by Deed, or Record no Annuities nor Freeholds are of themselves arbitrable though that the submission be 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 Bar of the action but an Arbitrement in such case is no plea in Bar of the action as appears by the books before cited therefore I conceive that the argument is plain & evident that these are not of themselves arbitrable.  
But for further proof of this ground that I have laid down; it is taken as a general rule in Blaks case in my L. Coke 6. 
Coke lib. 6. fo. 43. b. 44. 2.  Book, that an arbitrement is no plea when an action is founded upon a deed, when it is in the Realty, or mixed 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 Book of 21. E. 3 cited before, 
21. E. 3. 26  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 he refuse to permit him to have the Land, he hath no remedy, if he hath not an Obligation to stand to the Arbitrement.  
By this case we may learn, 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 Bar of an action. Yet a man may in such cases bind himself by Obligation to stand to an award [as it is usual 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 spoken of in the Books before.  
And therefore I conceive that the opinion of Grevill and Pollard in 23. H. 7. is no Law, 
23. H. 7. Keilway foe 99 pl. 6.  who say that where there is a submission of the right, Title, and possession of land, [without any other parsonal 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 Book makes a quaere of it; because that others were, (as the Book saith) clear of another opinion. And certainly the Bond is good; as common experience teaches; I shall put a case like it, which I conceive will plainly prove it.  
A man makes a Feoffement upon condition that the Feostee shall not take the profits, 
Coke upon Littleton fo. 206. b.  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 itself be not arbitrable; yet if a man in such case, will bind himself to stand to an award, the Bond is good.  
Lastly, causes matrimonial are not arbitrable; neither are Offences criminal as Treasons, Felonies, etc. because it concerns the Commonwealth that such offenders be punished. But of this sufficient; the nature or kinds of submissions is now to be considered.  

Submission to an Award may be either 

General, or Special.  
Absolute. or Conditional.     

A General Submission. 
Coke lib. 8. fo. 97. 98 Baspoles' case.   
A general Submission is of all matters, Suits, Debts, Duties, Actions, and demands whatsoever. 
Coke ubi supra Trin. 4. of Queen yet foe 〈◊〉. b.    

A special Submission.  
A special Submission is only of some certain matters in controversy, as such land then in question; or all actions of Debt, Trespass, or the like, here I could observe unto you the difference betwixt a general submission conditional, and a special submission conditional; but because it will be more apt and agreeable in case where I shall show you, what will be a good arbitrement and what not. I shall refer it thither without further saying.   

An absolute submission.  
An absolute submission, 
Coke. & Dyer ubi supra.  where the circumstance of time, when; the manner of the arbitrement, how; whether Sealed or unsealed or the matter of the arbitrement; viz: to arbitrate part or all or the like, are wholly left to the Arbitrators.   

A conditional submission.  
A conditional submission, is, where the submission is with an ita quod or Proviso etc. 
Coke & Dyer. ubi supra.  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 observed, the arbitrement will be void; but of this more fully hereafter.  
Note Reader, 
Dyel fo. 216. b. pl. 59 & 242. pl. 52.  that a submission may be by word only as well as by Deed or specealty but the submission by deed is better, for than though the submission be of things not arbitrable, the party forfeits his Bond if he do not observe it whereas if the submission were by word only there were no remedy in such case to enforce the party to perform the award    

Who may be arbitrators and who not?  
I conceive it most fit, that such only 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 favour fear or affection to either party men likewise having sufficient parts, and competent understanding and knowledge in the matter or business referred to Arbitrement having neither legal (as persons Attainted, convicted of perjury etc.) nor natural impediments, as Infants, Idiots, madmen, or the like.  
These qualifications in arbitrators being duly observed a man need not doubt of a just and upright sentence the want of the observation of which, causes many unjust and undue sentences in Arbitrations.  
But I do not find in our Law that either legal are natural disabilities, do hinder any man from being an Arbitrator; or avoid his sentence and certainly they do 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 do; but in this case what he doth as an arbitrator, is only to charge or discharge others. And besides they are chosen by the parties themselves, and if they they be not competent Judges, the fault is theirs that chose them.  
And now I shall proceed to show you what Arbitrators are and their power by which you will easily perceive, of what high concernment it is to men, to have a special care of the choice of Arbitrators.   

What arbitrators are and there power.  
An Arbitrator is as our books say, a Judge indifferently chosen by the parties, 
Pasch. 91. of the Queen Dyer fo. 356: pl. 39 19 H. 6. 36. 37.  to end the matter in controversy between them, Ad Arbitrium and therefore they are said to be Arbitrators because they have an Arbitrary power, and may judge according to there will and pleasure, so that their judgement be according to the submission & these Judges are not tied to any formalities, 
Coke lib. 5. fo. 78. a. 8. E. 4. 1. & 2.  or punctuallities in Law neither are they s●orne, as other Judges established by public authority are.  
Besides, their power is far 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 Appeal; as it was excellently well said by Heath justice, in arguing of the case of Rudston and Yates cited before the judgement of Arbitrators said he (provided that they keep themselves to their jurisdiction) is higher than any judgement given in any Court for if they err, 
Mith. 17. Car. in King's Bench.  no Writ 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 Writ of Error lies to reverse their judgement) upon an Action brought upon a Bond or promise for not performing an award, if the Defendant plead that the Arbitrators made no award, and the Plaintiff replies that they did make an award and sets it forth in special, if it do appear 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 day's experience teaches, and in which our Books are plentiful. By that which I have said before, it is manifest, how it concerns every man to have a care what Arbitrators he makes choice of; but of this sufficient. The next thing considerable, is,   

Whether the power of Arbitrators be Assigenable or not?  
The Law is clear that Arbitrators cannot assign 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 show 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 confess that the Book in 47. E. 3 doth tacitly admit this power to be assignable where the case is thus, 
47. E. 3. 20  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, etc. here it is tacitly admitted that the Arbitrators might award that they should stand to the Arbitrement of another, but Brook in abridging this case saith, the Law seemeth contrary.  
In 8. E. 4. prototam Curiam except Yeluerton, where a man is bound to stand to the award etc. who award that an Action shall be commenced betwixt the parties by the advice of W. and P. this is a good award for by this W: & P. are not Arbitrators, 
8. E. 4. 1. & 10.  but only executors of the Arbitrement. And in this case the Arbitrators judged the Title to be tried 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 been void, because that they cannot assign over their power.  
Yeluerton held in the first case, that the award was void for the incertainty because that W. and P. are to give their advice, which is not certain until it be notified, and in this case he hath made them Judges.  
I confess that I do somewhat doubt of the case, because the judgement of the arbitrators ought to be final, and this is no concluding of the matter in controversy; but a trans●erting of their power over to the Law, to determine it.  
Besides, W. and P. may never give their advice, or may refuse to do 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 certain sum, 
19 E. 4. ●.  and in surety of payment thereof, to be bound by the advice of Counsel, for here their judgement of the matter in controversy is certain, and final, and here is a some certain awarded for which an Action will lie, only the security is to be advised by Counsel; which is no assignment of their power, but of this more hereafter.  
Emery, and Emeries case the chief point whereof was thus; 
Mich. 41. & 42. of the Queen in the Common Pleas.  the arbitrators award that the plaintiff 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 samon's case in Corks. 5. Book, where the case is ●hus: Arbitrators award that the defendant should enter into an Obligation to the plaintiff, and do not judge of what some the Bond shall be adjudged the Arbitrement was void for the incertainety, and that the Arbitrators could not assign over their power but that themselves ought to determine it; and therefore neither the plaintiff nor the defendant could assess the some● the next thing considderable is.   

Whether the authority of Arbitrators be countermandable or not?  
In his case also the Law will be strong and evident, 
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.  that this authority is countermandable at any time before the award made; but not after, because then the authority is executed, and cannot be countermanded, and so are all our Books 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 Brook upon this case saith, that it is clear that he may discharge the arbitrator in both cases? but in the one case he shall forfeit his Bond in the other he shall lose 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 justice if there be two plaintiffs and one defendant or two defendants and one plaintiff put themselves to the award of other neither the one plaintiff with out th●● other, 
28. H. 6. 6.  nor the one defendant without the other, may discharge the arbitrators, the reason is obvious, because that they were chosen by the joint authority of both, and therefore cannot be countermanded by one alone.  
But that which is the last and best authority, 
Coke lib. 8. fo. 82.  is Vinyors' case; where it is resolved that though a man be bound to stand to the Arbitrement, etc. yet he may countermand the Arbitrators; the reason that is given is, because a man cannot by his own act make such an authority, power, 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 assign Auditors to take an account, or if I make one my factor, o● submit myself to an Arbitrement though that these are done by express words irrevocable, or that I grant, or unbound that all these shall 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 Brook before cited) is forfeited, because he was bound to stand to his award, which he doth not do when he discharges the Arbitrator. I have sufficiently cleared 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, 
49. 1. 3. 9  there the authority may be countermanded without deed and this I ground upon that rule of law codom modo qu● 〈◊〉 creature dissolvitur. It is but agreeable to natural 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, 
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.  for without notice, it 〈◊〉 no revocation or abrogation of the authority and so it is resolved in the Books which you: have in the Margin.  
Vinyors' case cited before was th●● he brought an Action of debt upon Bond against wild, conditioned for ●he standing to an award, to which the defendant pleaded that the Arbitrator made no award, the plaintiff replied, that after the making of the said writing obligatory, and before the Feast of &c, the defendant by his deed etc. rovocavit & abrogavit 〈◊〉 authoritatem etc. which he had given by his writing obligatory to the arbitrator, upon which the defendant demurred.  
'tis true, that in this case it was resolved that the plaintiff need not aver 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 Book) 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 judgement and decree of the Arbitrators upon the matter or thing in controversy referred or submitted unto them by the parties for their determination, thus in short you see what an Arbitrement is, the next and main scruple or question will be.   

What Arbitrement is good in Law and what nor?  
An award or an Arbitrement may be void in Law in several 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. 
22. H. 6. 46. 8. E. 4. 1. & 9 36. H. 6. 8. acc.  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 etc. 
17. E. 4. 5. 19 E. 4. 1. 18. E. 4. 21. b. & 17. ●●. 7. Keilway fo. 45. pl. 2  who awarded that the one should pay to the other 40 l. 10 l. in hand, and that he should find three several 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 sureties which were strangers to the submission.  
And therefore certainly that opinion in 5. H. 7. cannot be Law, where it is admitted that an award to make a feoffement to a stranger is good  
Moor and Bedels' case was thus, 
Mich. 28. & 29. of the Queen in the King's Bench, Rot. 476.  Bedel recovered by default in an Action of Waste against Moor 45 l. damages, after which judgement, they submitted themselves to an award, the arbitrators award that Moor should pay to Bedel 10 l at certain days, and 15 l. at certain other days, and that for the payment of the 15 l. one William Salter should be ready to seal● and deliver 15 obligations etc. and that the said William Salter should do other things, not within submission.  
In this case it was adjudged that as to all that was to be done by William Salter, 
Pasch. 24● at the Queen in the King's Bench. Rot. 2417.  being a stranger to the submission, the award was void, for they are not bound to perform any award but that which is within the submission, so likewise it was adjudged betwixt Ecclessield and Maliard in the King's Bench.  
Two submit themselves to the Arbitrement of A. who Arbitrates thus, 
Trin. 4. of the Queen Dyer. fo. ●16, b.  the award of A. indifferently chosen by I. for the behalf of the obligor of one part, and the oblige of the other part, etc. the doubt was whether the award were betwixt the party's o● no, but it was ruled that it was, because that I. was not party to the award, but a deputy or factor etc.  
A. and B. were bound to stand to the arbitrement of I. S. concerning a matter in controversy 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 Sergeant Rolls that the award of payment of money to the wife was out of the submission, and therefore nought.  
But by the whole Court the award was held good, because it doth appear 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, 
Pl. Com. fo. 396. ●  and he makes an Arbitrement upon another thing, the Abitrement is void.  
In the case of Moor and Bedel cited before, who submitted themselves to an Arbitrement of all matters in variance betwixt them; the Arbitrators award (amongst other things) that whereas Bedle being possessed of a certain copy hold ●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 Custom, 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 recognizance to an Arbitrement, 
7. et 8. of the Queen Dyer fo. 242. pl. 52  of the right and interest of 200. Acres of Land, etc. 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; 
2. R. 3. 12. b. 12. E. 4. 25. b. Coke lib: 5. fo. 8. a  and the award is only of parcel 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 joint matters betwixt them, and of all several 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. 
9 E. ●4. 43. b. 44. e. 36 H. 6. 8. et 11. acc.  two submitted themselves to the arbitrement of one I. L. de omnibus actionibus personalibus sectis & querelis, etc. betwixt them, etc. who awarded that, because the Defendant had committed divers offences to the Plaintiff, and that the Plaintiff was seized of such a house in Fee, that the Defendant should release to the Plaintiff, 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 privately chosen by the parties, shall be taken stricti juris, in that thing only of which the compromise is, and not in another thing; and here the compromise was but of a thing personal, and the Arbitrator hath awarded a satisfaction real, 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 Plaintiff two years, this would be void.  
And by Choke if we put ourselves in Arbitrement de jure, titulo, & possession● Manerij de Dale, and the Arbitrator makes an award of the Manor of Sale, 
Trin. 3● jac. in the King's Bench, Rot. 216.  this is void.  
Haynes against A●nsteed in Debt upon an obligation to stand to an Arbitrement in all causes that have been depending betwixt the parties ab initio mundi, the award is that the Defendant shall release all causes to the Plaintiff from the beginning of the world, usque etc. Tanfield justice 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, 
Mich. 7. jac. in the King's Bench, Cornelius Laurence & Carres Case.  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; 
An award made for more than is submitted, is good for that which is submitted and void for the residue.  quod non allocatur; for per curiam when the award is made for more than is submitted (as in this case) it is good for the thing submitted; and void for the surplusage, but if the award be made of less than is submitted, than it is void for the whole.  
If divers Covenants be, and a man is bound in an obligation to perform them, and some of the Covenants are void and against Law, and the residue good, yet he ought to perform 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 perform an award of all causes until the day of the Date of the Bond. 
Hob. Rep. pa. 267. pl. 233.  The Defendant pleaded that the Arbitrators made no award. The Plaintiff replied that the 28 of March following, they made an award▪ de & super premissis, that the Defendant should pay the Plaintiff 20. l. at Midsummer following, in full satisfaction of all matters between them, and that they then should make the one to the other general releases of all matters between them, and assigned the breach for the nonpayment of the 20. l. The Defendant demurred; because the award did seem to exceed the submission, being for discharge and satisfaction of all matters to the day of the award, which was more than was submitted, for it may be that the Arbitrators might mean some part of the 20. l. in discharge of the causes that might arise between the 23. of February, and the 28. of March, which were not within their power, and so for the release.  
Yet judgement was given for the Plaintiff 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 alleged. 
* Coke lib. 8. fo. 98. Basp●les case.  as in pleading of awards of causes they need not aver that these were all, etc.  
There was a case which was betwixt Robert Tiderby the Father and Robert Tiderby the son, 
Mich. 9▪ jac. in the King's Bench.  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 Manor of Dale. I. S. awarded a conveyance of the Manor of Dale to certain uses, and that Robert Tiderby the Father should deliver all evidences, and charters concerning the Manor.  
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 charters are the nerves and sinews 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 principal, they have power over the accessary; and therefore the right and Title of the Land being put to the award of I. S. which is the Principal, he hath power to make an award of the Charters which are the accessary.  
Again, an award may in some cases be void, where it is made of part only 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 Yeluerton to be nought, because it was of part of the thing in submission only. But by Newton if two submit themselves to an award of all Actions reals and personals, and an award is made of all Actions personals only, 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 jointly, 
39 H. 6. 9  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, 
22 E. 4. 25 ● R. 3. 18. b. ac.  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, 
Coke lib. 8. fo. 98. Baspoles' case.  and all others to this purpose, must he understood with these differences: First, where the submission is by Deed, 
Trin. 4. of the Queen Dyer. fo. 216. b. & 7 & 8. of the Queen. Dyer fo. 242. pl. 52.  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 general of all matters, etc. or in special, 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 conditional reference, and in the last the award may be made of part only, and good.  
So it is (where the submission is not conditional) 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 between pleading of an award upon a submission general conditional, and pleading of an award upon a submission special conditional.  
For in the first case, 
Baspoles' case, ubi supra.  if an award be pleaded de premissis modo & forma sequentibus; and alleged to be upon one single matter in controversy, 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, until the contrary be shown by the other party: for when the submission is general, Generale nihil certi implicat; and it may well stand with the generality of the words, that there was but one cause depending in controversy betwixt them.  
But in pleading of an award upon a submission special conditional, there the award must be expressly alleged 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 showing of the other party (as hath been said) or by the award itself, that it was not of all matters in controversy in such case also, the award will be void, though the submission were general, because that it was conditional.  
Moat and Menerels case in my Lord Dyer was thus, 
Trin. 4. of the Queen Dyer, fo. 216. b.  they were bound to stand to the award of A. for Dilapidations, etc. and all other suits, quarrels etc. Ita quod, the said award were made, etc. who made an award of the Dilapidations, with a protestation that he 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, etc. but made an express 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, etc. which is as well of suits and quarrels, etc. as of dilapidations.  
In this case▪ though the latter part of the submission were general, yet because it was conditional, and it did appear by the award itself, 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 dilapidations, it shall be intended that this was all the matter in controversy betwixt them, until the contrary be showed.  
There is one thing yet in Baspoles' case worth the noting, 
Coke lib. ● fo. 98. a  which I cannot omit: where it is adjudged, that though there are many matters in controversy, 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 controversy to the Arbitrator, 
An arbitrator may make an award of one matter only, if he have notice of no more.  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 conceal a trespass 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 pass this, which is thus.  
Barnes brought debt upon an Obligation against Greenly, 
Hob. Keep. p. 267. pl. 234.  dated the 4 of September, 
An arbitrement seeming not so large as the submission.  to perform an award of all causes, till the day of the date: the Plaintiff pleaded the award de premissis, viz. of all causes till the 3 of December, and assigns 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 do conceive, Reader, that the difference formerly taken, will resolve this case; for if the submission were conditional, than 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 controversy to arise betwixt the third of September & the fourth, without it be shown; and for aught appears, the award is of all causes to the fourth of September, because no other cause appears than 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 Parker's case was thus, 
Page and Parker's case in the Kin. Bench.  in debt upon a bond conditioned for the performance of an award, so that it be delivered in writing sub manibus & sigillis, etc. the defendant pleaded the delivery of it in writing, and doth not say sub manibus & sigillis, and a performance, the plaintiff alleged 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 be not made according to the submission, it is no arbitrement; if no arbitrement, no cause of action.  
So in this case I conceive, 
1 H. 7. 5. 7 & 8. of the Queen Dyer, fo. 243. pl. 56 31. H. 8. Br. arbitr. 42.  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, 
2 R. 3. 13. pl. 32. & 8 E. 4. 11 a.  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 be 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 margin.  
And if the Arbitrators award any thing after the time limited, 
8 H. 6. f. 18  it is void.  
Two of one part, 
Coke li. 5. fo. 103. Hungates case.  and two of another submit themselves to an award, so that the award be made and delivered to both parties, etc. 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 conditional; Ita quod, or Proviso, the award of the premises, or the said award, etc. 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 showing you where an award shall be void, in regard that it is not according to the submission. I shall now show you before I go any further, what I intent 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, 
22 H. 6. 46 36. H. 6. 1 17. E. 4 5 19 E. 4. 1. pl. come. fo. 396. a. Coke lib: 8 fo. 98.  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, 
Baspoles' case 4. of the Queen Dyer fo. 226. b. Coke lib. 5. fo. 77. Salmon's case.  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 showed you before) or if it be uncertain, impossible, etc. though but in part (as I shall show you hereafter) in such cases likewise the award will be totally void. 
Rudston & Ya●e● case cited afterward:   
Thirdly, and lastly, where the award is of one thing only, or of several things, 
17. E. 4. 5. 18 E. 4. 22. b.  part within the submission, and part out, there the award is void only as to that which is out of the submission, 
19 E. 4. 1. 21 E. 4. 75 17 H. 7.  and good for the residue.  
To these cases that I have cited, 
Keilway 43 & 45. Moor & Bedels' case before  I shall only add one case remembered before, and that is▪ Cornelius Laurence 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, 
An award void against one of the parties, i● void against both.  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 show 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 Moor and Bedels' case cited before, 
In Osburns' case. Coke l. 10. f. 131  will warrant this: The case was thus, Bedel recovered by default in an action of Waste, against Moor 45. l. damages, and had judgement, after they submitted themselves to an arbitrement, and an award is made that Moor should pay to Bedel 10 l. at certain days, & 15 l. at certain other days; and that for payment of the 15 l. one William Salter should be 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 Moor of 20 l. parcel of the said 45 l. recovered in the said Writ of Waste, and that upon the readiness of William Salter to seal and deliver the said 15 Obligations, Bedel should release to Moor all actions and demands, etc.  
In this case Moor brought an action against Bedel, & showed how that he paid the 10 l. etc. 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 money) 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 recompense, for the things that the other should do 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 Plaintiff.  
In this case it is apparent, that if what was awarded on the Plaintiffs part, had been all out of the submission, and by consequence void, that then the Defendant in such case had not been tied to perform what was awarded on his part, for an arbitrement void against one, is void against both.  
Rudston and Yates●, case cited before: 
Hil. 15. Car. in the King's Bench. Rot. 113.  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 shown you where an arbitrement shall be void in the whole, and where in part only: It will be necessary that I show 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 than a bond can be forfeited, 
Coke lib. 10. f. 131. b 7 H. 8. Keilway, fo. 175 a.  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 Plaintiff traversed the award, quod mirum, says Brook for this is no award between the Plaintiff and the Defendant.  
Well might he wonder at it indeed, for certainly this cannot be Law: but because it is sufficiently refused by my Lord Coke in his tenth book, the place cited before, I shall thus pass 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 lie.  
In Emery and Emeries case cited before, 
Mich. 41. & 42. of the Queen in the Common-Pleas. 18. E. 4. fo. 22. b. 23. a. Styles case 41. & 42. of the Qu. in the Common Pleas, ac.  Glanvile cited a case betwixt Hellier and Rendals' in the King's Bench in which he said, he was of Counsel, where the Plaintiff assigned his breach at a void matter, and after verdict for the Plaintiff this was spoken in arrest of judgement; and judgement quoth 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 Laurence and Carres case cited before▪ 
Mich. 7. joc. in the Kings B.  it was adjudged, that where there is an award of more than 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. 
17 H. 7. Keilway, f. 43. pl 10 & 45. pl▪ ●  If A. B. be bound to stand to the award of certain persons of, etc. who award that the said A. B. and E. his wife shall levy 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, 
In Oshorns case. Coke lib. 10. 131. b.  to do it. And agreeing with these cases, is Moor● and Bedels' case so often remembered before.  
And we must observe, that where a man is tied by promise to stand to an award, it will 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 Duchess of Suffolk's case, 
● E. 4. 1. 10. 13. & 21.  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 peril: Because as Catesby saith excellently well, though that a man by reason shall not be compelled to 〈◊〉 a thing without having notice of 〈◊〉, yet a man may bind 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, Yeluerton, and others, ought not to be so undervalved, especially upon no less than four several debates of the point, 
Coke lib: 8 fo. 92. b  as to be called a sudden opinion, as it is in France's case in my Lord Coke 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 peril, 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, 
1 H. 7. f. 5.  because he hath bound himself so to do.  
And in 18 E. 4. by Brian, 
18 E. 4. 18 a.  Vavisor, and Catesby, Justices; where an award is made, the party ought to take notice of it at his own peril, and they say, that so it was adjudged in the time of the same King, in the King's Bench.  
Which cases are agreed for Law in my Lord Coke 4 book, 
Coke lib. 4. fo. 82. & li. 8. fo. 9●. b.  as also in his 8 book France's case, where it is said, that so is the Law without question.  
And the reason given there is, because when a man binds himself to do or perform any thing awarded by a stranger, he doth by this, take notice at his peril, of all things incident to this, for the saving of his obligation.  
And therefore we may safely conclude the Book in 7. H. 8. where there is an opinion to the contrary, 
7 H. 8. Keilway ●. 175. pl. 8  to be no Law: but of this sufficient. I shall now proceed to show you in what respects or for what other rea●ons an award may be said to be void in Law: the first ground I laid down, was where the award is not according to the submission, the next shall be the incertainety,   

Where an award shall be void in Law for the incertainety;  
In all cases where the award is uncertain, it is void: for the arbitrators (as I have showed before) are judges, and their judgement must be certain; for judicium debet esse cer●●●. And the Law doth in all cases abhor uncertainty, because it is the mother of confusion.  
samon's case; 
Coke lib. 5. fo. 77. b. & 78. a.  the Arbitrator awarded, that the one of the parties should enter into a bond to the other, and doth not award in what sum 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, aught to be certain, so that by this the controversy be decided, that it may not be the cause, through the uncertainty of new controversy.  
Martham and Iennings' case, 
Mich. 4. Jac. in the King's Bench. Rot. 32.  in debt upon an Obligation to stand to the arbitrement of Poly of Gray's Inn, for the title of Copy hold in question betwixt the parties; Poly awarded, that jenning's should pay to the Plaintiff 20 marks, viz. 6 l. 131. 4ds. super vicesimum primum diem Maii; and 6 l. 13 s. 4d. at the Feast of St. Michael next following: and that the plaintiff 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 Plaintiff replied, that there was an award made, and sets it forth; and that the Defendant hath not paid the 6 l. 131. 4ds. 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 material 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 Plaintiff 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 several things, all within the submission; if it be uncertain in part only, it is totally void, which doth agree with the differences which I have formerly laid down.  
In 8 E. 4. cited before, 
● E. 4. 11. ●  by Yeluerton: if an award be made, that an action shall 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, until the said S, and F. limit the action.  
I must confess the greater opinion in this case is, that the award is good: but I conceive the opinion of Yeluerton (as I formerly said) to be the better opinion; because the judgement of Arbitrators ought to be final (as I shall show you hereafter) and nothing aught 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 all suits & controversies betwixt the parties; and if they do not, their award is not according to the submission, and therefore void.  
Rudston and Yates' case (which I have put often before, 
Hil. 15. Car. in the Kings B. Rot. 313. 8 E. 4. 1.  though to other purposes) was thus: an Infant and a man of full 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, etc. 'tis 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 be 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, 
Pasch. 15 Car in the Kings B.  that one of the parties should pay a certain 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● circiter.  
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 sum 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 lies not in the power of the Arbitrators to know the direct sum, and a small variation is not material, and therefore the award was held good.  
Nichols and Grummons case▪ 
Hob. Keep. p. 68 pl. 54  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 
* Tamen quare, be-because Hob. Keep. 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  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 King's Bench was thus: Debt was brought upon a bond for not observing of an award; which was, that the Defendant should pay to the Plaintiff 20 l. per annum, during the continuance of two leases for years in being of the Parsonage impropriate of Yarmouth, etc. and it was not shown in the award for what term the leases were; but the Plaintiff showed for what term they were, and the continuance of them; and alleged a breach for non payment of the 20 l. etc.  
In this case it was objected, that the award was void for the uncertainty, because that it did not express for what time or term the leases for years were, and that it could not be aided by the averrement of the party: and for the uncertainty samon's 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 uncertain, it is void: and that the parties can never aid it by an averrement; to show the intent of the Arbitrators, if it be not expressed in the award, either directly, or by circumstance.  
Bu● he said that if samon's case in Coke 5. book had been, 
An award which doth refer, or may be reduced to a certainty, is good.  tha● the party should be bound in such a sum, as he 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 leaves, which is certain; and therefore he conceived the award to be good. Of the same opinion were Williams, Yeluerton, and Tanfield, Justices.  
Here Reader you may observe that an award which is referred or may be reduced to a certainty, is good enough, agreeing with that rule in law, certum est quod certum reddi potest.  
This shall suffice, to show 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 showed before) for it were a most unjust and unreasonable thing for to make a man incur a penalty for the not doing of that which is in itself impossible to be done.  
In 8 E. 4. by Yeluerton: 
8 E. 4. 10. a.  if an arbitrement be made to do a thing impossible, the party for the nonperformance of this shall not lose his Obligation, notwithstanding that he be 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 Paul's steeple with my hands within an hour, or the like impossibilities; because I cannot perform it, I am excused of my Obligation.  
So in 8 E. 4. by Moil: 
8. E. 4. 1. b & 12. b 9 H. 6. 16. by Keble. 19 E. 4. 1. by Nele. & 22 H. 6 46. ac.  if the arbitrators award a thing impossible, as if I put myself 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, 
21 E. 4. 40 a.  that I shall release all the right which I have in the Manor of I, S. in the County of M. to Pigot, or levy a fine to him, and in truth there is no such Manor; this award is void, because it is impossible.  
So if the award be, 
21 E. 4. 31 39  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 itself 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, 
8. E. 4. 1. by Moil.  that he 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, 
19 E. 4. 4. by Nele & Choke.  the party cannot do (which are the very words of the book) as that the Defendant shall pay 10 l. in money, where peradventure he never had 10 d. Or that he shall pay 20 Tons of wine, or the like; where he hath not one: in these cases the award is good.  
In debt upon a bond, 
9 H. 7. 15. b.  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, etc. and the Defendant saith that there was not any bale of Woad in the house of the said Henry Collet, within eight days 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, etc. and then departed etc. and because he hath tied 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 news that a man should suffer through his own folly.  
Again, where the thing awarded is in itself 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 himself, without the aid of a third person, in such case the award is void.  
Two submit themselves to an arbitrement, 
8. E. 4. foe 2 a by Yeluerton 22 H. 6. 46. ●c  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 means 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, 
17. E 4 foe 5. b 19 E. 4 foe 1.  and for the 30 l. residue that he find three several persons to be bound every one in 10. l. to the party.  
In this case by the opinion of all the justices, the: award was void. And there it is said that in an arbitrement the Law intends, that the arbitrators should be indifferent and equal judges betwixt the parties: bu● what indifferency is this, to cause a man to make such a thing to be 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 will award that I must cause the King to give the tower of London to the other, such an award is clearly void.  
And by Brian in 19 E. 4. an arbitrement that the party before such a day shall 
19 E. 4. 〈…〉 H. 7. 〈◊〉. b. ac. Where I may do the thing awarded my ●●lfe, or enforce it to be done, the award, is good. 5 H 7. ubi sup●a. 21 E. 436 ac.  levy a fine before us, is good; but if the arbitrement be, that he shall command us to sit here, and to make him levy 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 here is concurrence of the act of the party also, which doth produce the act of the Court.  
And 〈◊〉 Chief Justice in 21 E. 4. takes the true difference, 
21. E. 4 foe 4●●  says he there, where the act may be done by myself, 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, 
Pasch 15 Car. in the King's Bench.  which I cited before to another purpose, which was thus; an award was made, that one of the parties should pay a certain sum 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. etc.  
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 obligee, and this difference was taken by the Court, where the bond was forfeited, and the penalty incurred and where 〈◊〉 where the day of payment was not incurred; there the payment of the● money, at the day would be 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●● justice said that he might compel the oblige● upon payment of the money, though the bond were forfeited, to de●iver the bond by subpoena 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 justice jones in his former case it was ruled, 
17 E. 4. foe 5. b.  that where arbitrators do award, that whereas such a one was seized 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 compel my feoffees to do it by subpoena in the Chancery.  
Thus you see; that where I may do the thing awarded myself, without the aid of another, or may enforce 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 Arbitrators are indifferently elected, so the law intends (as it is said in 17 E. 4.) that the arbitrators should be indifferent and equal judges between the parties, which they cannot be, if they do not give satisfaction to both sides, and therefore in such case, where the award is not mutually satisfactory, it is void.  
It was an ingenious saying of Hearu an Emery & Emeries case cited before; arbitrators, saith he, are indifferently chosen, so that both the parties may have recompense in regard of their Bond, which is equale pondus to both; and an arbitrement, saith he, is like a fine, wherein the judges are arbitrators, one hath the land, & pro hac concordia the other hath money.  
If the defendant plead an arbitrement made betwixt him and the plaintiff of all quarrels between them, 
7 H. 6 fo. 40. by Strang. ●0 H. 6. 19 a. ac.  etc. who award that the defendant should go quit of all actions and quarrels had by the plaintiff against him; and nothing is spoken of the quarrels which the defendant hath against the plaintiff, the arbitrement, is void.  
So, 
39 H. 6 by dris●●●  if two submit themselves 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 again, this is a void award, because all is for the one party, & nothing for the other.  
In Trespesse for taking away of goods, 
12 H. 7. 14 15  the defendant pleaded an arbitrement, which awarded, that because the defendant had taken away the goods of the plaintiff, that he should redeliver them in satisfaction of the Trespass, which he did and ●here by the better opinion the plea is nought, because that re-delivery of his own goods, can be no satisfaction for the taking and detaining of them.  
An Arbitrement is no plea in trespass, 
43. E. 3. 28  if the defendant do not say that the arbitrators awarded that he should give something to the plaintiff more, or less, in satisfaction for that is a satisfaction to neither side; the plaintiff is not satisfied for the trespass done him, nor the defendant discharged thereof without some satisfaction for the wrong done by him.  
In trespass for goods, 
45 E 3. 16  the defendant pleaded an Arbitrement that he should retain part of the goods, and should deliver the rest, which he hath been always ready to deliver and demands judgement; 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 moiety and retain the other moiety, this no plea.  
●Tis true, 
B. R, Arbitrement ●.  that Brook makes a quere of the case, because it was not adjudged; but withal 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 less an award for the re-delivery of party only: for this is no other than to endeavour to satisfy one wrong with another.  
For the latter case, 
9 H. 716. a.  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 than of right he ought to pay. So certainly it is as much against the Law, to award the party to pay less then of right he ought to pay, for there is no equality nor satisfaction for that which is more or less in either case.  
Nichols and Grummons case, cited before: 
Hob: Rep pa. 68 l. p. 44.  there was an award, that the defendant should depart from his house, wherein he dwelled, etc. and should pay 3 l. 10 s, to the plaintiff, and it doth not appear for what, etc. 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 acquittal or an express satisfaction on both sides, or of one side only, with an employed discharge of the other; in such case the award will be good.  
It is a good award, 
19 H. 6. 37. 20. H. 6. 19 22 H. 6 39 9 E. 4. 44. a.  that because that the one party hath done more trespass to the other, than the other to him, that he shall give a penny in satisfaction, and that the other shall be quit against him.  
An arbitrement, 
22. H. 6. 39 19 E. 4. 8. a 10. H. 6. 14 19 of the Queen. Dyer. fo. 3 56. a. pl. 39  that the one hath done trespass to the other, and that the other hath likewise done trespass 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 trespass for the taking away of goods, 
12. H 7. 14 b. 15. a.  though an award that he shall redeliver the goods to the plaintiff 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, 
Dyer, u●i supta,  if a man take my horse from me, and we put ourselves upon Arbitrement: in this case, if the arbitrators award that he shall keep the horse until 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 avail to me: and I am discharged of the keeping and the meat of the horse, which is my profit.  
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 appearance at the least.  
The reason of these cases, may be, because that the arbitrators are made judges of the matters in controversy between the parties: and therefore where the submission is of things uncertain, as trespass▪ or the like; in such case if the arbitrators shall adjudge the offences to be equal where they are not so, and so a mutual discharge on both sides: or shall award the payment of 10 l. where there was not 5. s. damage; or but a penny, where peradventure there might be 10 l: damage. In such case there is no remedy because you have made them your judges, and tied yourself to stand to their judgement. Otherwise it may be where things certain 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 express satisfaction of the one part, and an implied discharge of the other only, and yet the award good.  
An arbitrement, 
22 H. 6. 3● by Moil.  that the defendant shall pay a penny to the plaintiff in satisfaction of all manner of actions, which he hath paid, is a good heart.  
Nichols and Grummons case cited before, 
Hob. Rep. p. 68 pl. 54  If an award be, that an obligor in a single obligation shall pay the debt▪ this is a void award without there be a provision for his discharge; because payment is no discharge in that case without an acquittance.  
But if the award be, 
22 E. 4. 25 ac.  that he shall pay 10 l. for a trespass, it is good▪ because a satisfaction implies a discharge.  
So an award, 
Coke lib ● fo 68 a. B●ashpoles▪ case  that the defendant shall pay a debt that was due to the plaintiff, 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 expressly 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 trespass, 
22 H 6, 12 18 b. ac 19 a.  the defendant pleaded an award, that the plaintiff should pay to the defendant 10 l▪ and release to him all actions of trespass, & after the defendant should release to the plaintiff all trespasses, which he was always ready to do, and is yet, if the plaintiff had paid the 10 l and released. In this case this was held no good plea; because, that if the plaintiff had paid the money and released, he could have had no remedy to enforce the defendant to have released; and therefore this award is no bar of the action.  
So in a Writ of forger of false Deeds, 
19 H. 6 37 b. 38. a.  the Defendant pleaded an arbitrement, that the plaintiff should be nonsuited in that Writ; and that the defendant who hath an assize against the plaintiff should be nonsuit 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 been not-suited in this action, he had no remedy by specialty, or otherwise to enforce the defendant to be nonsuit 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 plaintiff 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 constrain him to convey it to him.  
If an arbitrement be that the defendant shall be bound by such a day, 
5 E. 4. 7. ●. 45. E. 3. 16  which is not come; he shall not plead this in an action of trespass, for then the plaintiff should be barred, and should have no action to compel the defendant to make the Obligation. Note Reader, that these cases must be intended where the submission is without specialty, otherwise he were not without remedy,  
In this case, 
28. H 6. 12 2. H. 4. 4. 5 E. 4. 7. 19 E. 4. 8. 20, H. 6. 12 Keilway 121 a  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 lie for the money upon the arbitrement if it be not paid, 
19 H. 6. 38. a by Nuton p, 5. 28.  or the party may resort to his action again, if he please.  
Secondly, 
19 A. 6. 37, by Ascue, & Nut●on. 9 E, 4. 44, a. qy. Nedahm.  though the award be of a collateral thing for which there is no remedy, yet if it be executed, it is good.  
Thirdly, and lastly, where the award is of a collateral 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 bar of an action in these cases.  
First, 
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.  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 bar of the action.  
Secondly, where the day of payment is past▪ it is no plea in bar of the action without pleading of payment.  
Thirdly, where the day of payment is past, 
20. H. 6. 18 Br. Arbitrement. 3. 2. H. 4. 4.  yet if there be no default in the defendant; in such case, I conceive, the arbitrement not executed, is a good plea in bar of the Action.  
Fourthly, 
19 H. 6. 37. 5. E. 4, 7. a 7. H. 4 31.  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 trespass pleaded an award that he should instantly pay 20 s. to the plaintiff, 
Mich. 9 jac in the King's Bench  and so demanded judgement of the action: by Fleming Chief justice, Williams and Crook justices it was holden, that the plea was nought, because that he did not show 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 bar of the action.  
And by Fleming if the arbitrement be ●o make a release, or such other collateral matter, which the defendant cannot be enforced by action to do, in such case the arbitrement is no good plea in bar 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 collateral thing, and the day to come, though the sumission were by specialty, yet the award would be no plea in bar of an action; because that cannot enforce 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 plaintiff hath no action to compel the defendant to make the release; 
9 E. 4. 44. a  yet it is good to this intent, if the party do not perform 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 final?  
The arbitrators (as I have often told you) are judges of the matters in controversy referred unto 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.  
'tis true, 
19 H. 6. 36  an award may in some cases (as I have showed before) be good of part of the things only submitted, but we must understand this so that the award must be final as to that part, or else it will be void.  
An award that either party shall be Nonsuit 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 Book, aught to make an end and final determination of the things in dispute and controversy; which it doth not in this case, because that notwithstanding the Nonsuits, they may commence their Suits, de nove.  
And upon this ground, as also the former authority, 
5 H. 7. fo. 13.  I conceive that the Book in 5. H. 7. is no Law; where there is an opinion that an award of a Nonsuit may be good, but it is upon this reason, because it is not only the act of the Court, but the act of the party also. But if it were wholly 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 candle, which a man may at his own pleasure light again.  
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, 
Coke li. 5. fo. 78. a. samon's case.  where the award is uncertain, it is also void for this cause, for that it is not final. For an uncertain award cannot decide the matter in controversy, but is more apt to beget new strifes and variances, then to conclude the old.  
In 8 E. 4. an award is made, 
8 E. 4. 11. a  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 final: for this concludes not the controversy, 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 several sums to the plaintiff, 
Hob. Rep. p. 306. pl. 281.  which were alleged by the plaintiff to be done unto him. And further, that if the defendant at, or before the Feast of S. Andrew the Apostle, than next following▪ should before the said arbitrators disprove the debt, or any part thereof▪ than so much should be deducted out of the payment of the several sums aforesaid, etc.  
'tis true, I find 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 suspense and undecided, whereas it ought to be final 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, 
41 & 42 of the Qu. in the Common pleas  in Emery and Emeryes case, remembered 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 money; therefore fines upon condition are refused▪ because not final.  
So the Law doth reject all arbitrements that are conditional, or which leave the matters in controversy in suspense, 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 controversy.  
So Yeluerton in 8 E. 4. An arbitrement, 
8 E. 4. 12. ●  saith he, is used for the Common weal, for to decide debates and wrongs amongst the people, as fines are; here he likewise joins 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 behalf (which certainly prudent Antiquity put in to that very purpose) where the parties do submit themselves to the arbitrement; sentence, and final determination of the arbitrators: and therefore the award is not according to the submission, if it be not final: the next thing to be considered, is,   

Where an award against law shall be void.  
It may be aptly demanded, what I intent by an award against law: for every award that is not according to law; as where it is uncertain, impossible, or the like (as I have shown before) may be truly said to be against law: and therefore this will be but actum agere, to show, that an award against law shall be void.  
By Billing in 8 E. 4. an award which is impossible is against the law: 
8 E. 4. 12. b  for (says he) the law is upon possibility and reason, therefore that which is impossible is against law.  
So by Nele and Choke, 
19 E. 4. 1. a  an award which is made in parcels, or which enjoins 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, 
9 H. 716. a. b.  is against law.  
'tis 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, 
Coke, Littleton, fo. 206. b. 42 E. 3. 6. 2 H. 4. 9 19 H. 6. 55  that is properly said to he against law; which is either malum in se, or malum prohibitum; that is, either against the Commandments of God, or the Decrees Maxims and Principles of the Law, as appears by the books in the margin. 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 plaintiff in such a suit: or that he shall be bound to the plaintiff, being a Sheriff, to save him harmless if he shall imbesi●l a Writ, or suffer an escape; or that he shall forge such a deed or writing for the plaintiff, or the like: in such cases, I conceive, the award will be void, because it enjoins 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, 
19 E. 4 1. ● by Choke.  that the defendant shall pay a certain sum of money to the plaintiff, 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 several times, which cannot be.  
By Danby Justice, 
39 H 6. 9  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 judgement nisi unica vice for all.  
And by Yaxley, 
17 H. 7. Keilway. f. 43. pl. 10.  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 several times or by parcels. I conceive they cannot make several a vards: First, because that were not agreeable to the submission; in which the parties bind themselves to stand to the award and arbitrement of the arbitrators; and by these words in the submission, they have no power to make several awards or arbitrements: and when they have made one arbitrement, they have executed their power and authority, and therefore a second arbitrement will be 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 several times or by parcels▪ so that it be not delivered under their hands according to the submission until 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 several times or by parcels, 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 submitted unto them; for that they may vary in their judgements, 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 until they have finished, and delivered the arbitrement, which is the compliment 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 parcels, it might be very mischievous to the parties, especially considering that submissions are most commonly to illiterate men.  
Neither is my opinion groundless or without authority; 
39 H. 6. 9  for by Moil in 39 H. 6. an arbitrement may well be made in parcels, so that all be made before any day assigned.  
I have now finished this poor endeavour of mine of showing you what arbitrements are good in Law and what not. I shall only add this one Rule concerning the understanding or exposition of arbitrements, which will be very useful in that particular, and ●o conclude all; and that is, 
21. E. 4. 39 a.   
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, 
19 H. 6. 36 37.  as you shall find by the Books quoted in the Margin. 
Coke li. 10 fo. 57 b.   
FINIS.