Dilley v Polhill
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1795 |
| Date | 01 January 1795 |
| Court | Court of the King's Bench |
English Reports Citation: 93 E.R. 943
COURTS OF CHANCERY, KING'S BENCH, COMMON PLEAS AND EXCHEQUER
[923] dilley vers. polhill. In debt on an award a mutual submission must be shewn. 1 Barn. B. R. 448. 2 Barn. B. R. 42, 55, S. C. Vide 1 Com. Dig. Arbitrament (I. 2), 554. In debt the plaintiff declared, that 7 March 3 Geo. 2, the defendant by bond sub- 944 HILARY TERM, 5 GEO. 2 2 STRAKQB. Ml mitted himself to the award of James Pope, an arbitrator indifferently named and elected as well on the part of the plaintiff as of the defendant, so as the award be made in writing under hand and seal before 20 April. That 18 April, Pope by writing under hand and seal, reciting that an action had been brought by the plaintiff against the defendant for words, therefore to end the dispute he awarded, that the defendant should on 27th of April, between two and five in the afternoon, at the Cock and Lion in Dartford, pay the plaintiff ten guineas for his damages, and 61. 19s. for coats; that the plaintiff should pay the defendant Is. after which both should give mutual releases. The defendant demurred, and Strange pro def argued, that the plaintiff had not in his declaration shewn what was necessary to maintain his action, for he has not shewn that there was any submission on his part: and it is contrary, 1. To the nature of an award, and 2. To the precedents. 1. An award is the determination of a third person between two others, who submit to his judgment. These submissions create a mutual obligation upon both, to acquiesce in his decision. It is therefore contrary to the nature of an award, that the arbitrator should determine any thing with regard to one who does not submit to his judgment; and in 1 Roll. Rep. 194, it is resolved in assumpsit, that mutual promises shall bind, without any other consideration. 2. The precedents are all contrary, and a strong evidence what the law is. 2 Saund. 61, 127, 337. 1 Saund. 32. Mo. 359, 642. Rast. 153 b. Co. Ent. 159 a. Old Ent. 41 a. 64 a. Tho. Ent. 107, 116. Ashton's Precedents 188, 200. Litt. Rep. 312. 1 Leon. 72. 1 Roll. Rep. 5. Brownl. 181. Regist. Ill a. Hawkins Serjeant contra agreed, that a mutual submission was necessary to be shewn; but insisted that it is sufficiently averred, it being laid that the arbitrator was elected for both, and that in declarations it is enough for the plaintiff to shew what makes for him, according to 1 Sid. 161...
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