Hayward against Phillips
| Jurisdiction | England & Wales |
| Judgment Date | 12 January 1837 |
| Date | 12 January 1837 |
| Court | Court of the King's Bench |
English Reports Citation: 112 E.R. 46
IN THE COURT OF KING'S BENCH
S. C. 1 N. & P. 288; W. W. & D. 1; 6 L. J. K. B. 110; 1 Jur. 102.
[119] hayward against phillips. Thursday, January 12th, 1837. Declaration in covenant upon an indenture, alleged otie breach by non-payment of rent, and three by not repairing, &c. Pleas; first, that the indenture was obtained by fraud ; and, next, performance as to the several breaches. The plaintiff traversed the fraud, and joined issue on the pleas of performance, except that there was an omission to perfect the issue on the fourth plea. By order of Nisi Prius, it was directed that the jury should give a verdict for the plaintiff on the first issue, and damages assessed on the first breach at 101., and costs 40s., subject to the award of an arbitrator, to whom the cause and all matters in difference were referred, to order and determine what he should think fit to be done by the parties, respecting the matters in dispute, with liberty for him to amend the record, and to direct what should be done between the parties : the costs of the cause to abide the event of the award, and the costs of the reference and award to be in the arbitrator's discretion. The award recited that the only matter in difference, besides the cause, was a claim of 201. rent; and the arbitrator awarded that the verdict on the first issue, and the assessment of 101. on the first breach, should stand, and found for the plaintiff on the three other issues, and assessed damages upon each, directing the verdict to be entered for the aggregate of the damages on the four breaches; he also directed that the defendant should pay 201. lor rent, and that the plaintiff should expend 1931. 6s. in repairs, for which purpose he should have power to enter on the premises; and that the defendant should pay the costs of the reference and award. Held, that the award was entirely bad, the arbitrator having no power to increase the verdict, and, therefore, not having determined the matter in dispute. The award was published more than four days before the end of Hilary term. The motion to set aside the award, made in Easter term following, after execution issued, was held in time; and the award was set aside for the above defect. Held, also, that the defendant did not waive the objection to the award, by permitting the plaintiff to enter and perform the repairs. Nor by attending the taxation of costs in Hilary vacation. Nor by applying to the plaintiff in Hilary vacation for delay of execution, which application was acceded to by the plaintiff on terms which the defendant did not accept. The rule to set aside the award was drawn up on reading "the affidavit of the defendant, and the paper writing thereto annexed ;" and the affidavit in support of the rule stated facts to shew that the paper writing was a copy of the award. Held sufficient. [S. C. 1 N. & P. 288; W. W. & D. 1; 6 L. J. K. B. 110; 1 Jur. 102.] Sir W. W. Follett had obtained a rule in Easter term, 1836, drawn up on reading " the affidavit of the defendant, and the paper writing thereto annexed," calling upon the plaintiff to " shew cause why the award made between the parties should not be set aside on the grounds; first, that the arbitrator has exceeded his authority in awarding a larger amount of damages than he had power to award by the order of reference; secondly, that he has exceeded his authority in awarding damages to the amount of 2491. 3s. on the second breach; thirdly, that he has also exceeded his authority in directing 1931. 6s. to be expended in repairs." [120] An affidavit by the defendant stated the reference (as hereafter set out in the recital of the award), and that the paper writing annexed to the affidavit was, or contained, as the deponent believed, a true copy of the award, the deponent having (a) See the argument in Adam v. The Inhabitants of Bristol, 2 A. & E. 395, 396, 399, 400, 401. 6 AD. *E. 121. HAYWARD V. PHILLIPS 47 been served with the same by the attorney of the plaintiff. The following facts appeared by the recital of the award. The action was brought in this Court; and the declaration waa on an indenture between the plaintiff and defendant, whereby the plaintiff demised to the defendant a cottage and other premises for a terra not yet expired, at a certain rent, with covenants to pay...
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