Hodsden against Harridge
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1845 |
| Date | 01 January 1845 |
| Court | Court of the King's Bench |
English Reports Citation: 85 E.R. 672
COURT OF KING'S BENCH
Referred to, Lee v. Wilmot, 1866, L. R. 1 Ex. 367.
.1 K-B.jt/. [61] 9. hodsden against harridge. Michaelmas, 22d of King Charles the 2d, Roll 554. [Referred to, Lee v. Wilmot, 1866, L. R. 1 Ex. 367.] London, to wit.-Be it remembered, that heretofore, to wit, in Easter term last past, before our lord the King at Westminster, came Jasper Hodsden, by Charles Ballet his attorney, and brought here into the Court of our lord the King then there, his certain bill against Rowland Harridge, in the custody of the marshal, &c. of a plea of debt, and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words, that is to say: London, to wit, Jasper Hodsden complains of Rowland Harridge, being in the custody of the marshal of the Marshalsea of our lord the King, before the King himself, of a plea, that he render to him 151. of lawful money of England, which he owes to and unjustly detains from him, for this, to wit, that whereas divers disputes and controversies were had and moved between the said Jasper and the said Rowland, touching and concerning certain sums of money due from the said Rowland to the said Jasper, for malt (I) before that time sold and delivered by the said Jasper to the said Rowland. And whereas also for the quieting of the said dispute and controversies, as well the said Jasper as the said Rowland, on the 24th day of October, in the 13th year of the reign of our Lord Charles the 2d, now King of England, &c. at London aforesaid, to wit, in the parish of St. Dunstan in the East, in the ward of Farringdon Without, London, submitted and put themselves (2) to and upon the award, order, determination, and (1) It is held necessary in debt on an award, to state in the declaration for what cause the parties submitted to arbitration ; but where an award is pleaded in bar, it is sufficient to aver that they submitted themselves to arbitration generally. 5 Edw. 4, 1, pi. 5. Bro. Arb. 34. However, it is omitted in the declaration in Coppin v. Hurnard, post, 127, and it seems to be optional either to state or omit it. (2) In debt or assumpsit upon an award, it is necessary to state in the declaration a mutual submission, as is done in this entry, and in other precedents; post, 127, Coppin v. Hurnard. 1 Saund. 32, Sirks v. Trippet. Rast. 153 b. Co. Ent. 159 a. Lib. Plac. 107, pi. 3, 116, pi. 18. Brownl. Rediv. 181. Hans. Ent. 89, 91. S WMS. SAUTO. 81. HIL. 21 AND 22 CAB. II. REGIS 673 judgment of Thomas Whitehill innkeeper, and Richard Lilly citizen and stationer of London arbitrators indifferently chosen, as well on the part of the said Jasper, as on the part of the said Rowland, to arbitrate, order, determine, and adjudge of and concerning all actions, suits, quarrels, controversies, accounts, trespasses, disputes, Keg. Ilia.; an award being the determination of a third person between others who submit to his judgment, and the submission creating a mutual obligation upon them to acquiesce in his decision. Therefore, where in debt on an award, the plaintiff declared that the defendant by bond submitted himself to the award of J. P., an arbitrator indifferently named and elected as well on the part of the plaintiff' as of the defendant, and that J. P., awarded the defendant to pay so much &c., it was held on demurrer that the declaration was insufficient for want of shewing a mutual submission : for the words, "on (he part" of the defendant, do not import the arbitrator to be named by the defendant; (a) that thero is a difference where the action is brought upon the bond of submission, and where upon the award itself; in the former case the defendant bj praying over shews there were mutual submissions, the condition always reciting it; but in the latter it must be averred, before the award can be properly introduced. 2 Str. 923, Dilley v. Polhill. In general it is enough to allege that the plaintiff and defendant submitted themselves to the award of J. J., without setting out the submission, or saying that it was in writing; but where the parties are bound by their submission in a different manner from what they would in general be subject to, it is necessary to state the terms of the submission in order to shew their liability in that particular case. As where in assitmpsit against A. and B. the declaration stated that on the 23d March, 1792, and for three years before, A. rented a farm called L., and B. rented it for the two following years, and quitted on the 25th of March 1794, and afterwards the plaintiff rented it: that disputes had arisen between the defendants and plaintiff respecting the state of the fences at the respective times when the defendants severally quitted the farm, and that doubts had arisen whether the defendant A. left the same in proper repair, and also whether the defendant B. left the same in repair; and that by an agreement in writing between the defendant A. on the first part, the defendant B. of the second part, and the plaintiff' of the third part, the said parties jointly and severally agreed to refer all matters in dispute between them to the determination of J. S.; and the defendants thereby jointly and severally undertook and agreed with the plaintiff to keep the award of J. S. ; and the plaintiff undertook to and with the defendants jointly and severally to perform the award on his part: the declaration then stated that J. S. made his award and directed the defendant A. to pay so much money, and the defendant B. to pay so much to the plaintiff', but that they refused, &c. It was objected in arrest of judgment, that this was not a joint, but a several, promise of each defendant to be answerable for himself only ; for their interests in the subject-matter of the promise were several and not joint; beside, the arbitrators award nothing to be done by the defendants jointly, but that each should pay a certain sum; and 5 Rep. 18 b. Slingsby's case was cited, in which it was adjudged, that where it appears by the declaration that every of the covenantees has a several (a) These words are taken from the report of the judgment; but it appears clearly that the fault in the declaration was in omitting to aver that the plaintiff' submitted, for the defendant's submission was expressly averred. [The authorities above cited having established that the plaintiff must allege a mutual submission, it follows, that if the pleadings are such that this allegation is in issue, the plaintiff' must prove his own execution of the submission aa well as that by the defendant; and further, it should seem, the execution by every other person who appears by the declaration to have been a party to the submission, though not a party to the action; for the defendant might not have consented to refer unless the others had joined. 7 B. & G. 427, 430, Ferrer v. Oven. 1 Mann. & R. 222, S. C. It may here be observed that one partner has no implied authority to bind his co-partner to a. submission to arbitration respecting the matters of the partnership. 3 Bing. 101, Stead v. Salt. 10 Moore, 309, S. C. 1 Cr. M. & R. 681, Adams v. Bankart. 5 Tyrw. 425, S. G.] K. B. xiv.-22 674 HODSDEN V. HABRIDGE 2 WMS. SAUND. 62. claims and demands whatsoever, then depending and being between the said parties from the beginning of the world, until the said 24th day of October in the year aforesaid, so as the said arbitrators should make and publish their award touching the premises, in writing under their hands and seals, ready to be delivered to the said Jasper, and the said Rowland, on or before the 7th day of November then next following; and if the said arbitrators should not agree in [62] their said award at and by the time aforesaid, then as well the said Rowland as the said Jasper on the 24th day of October, in the year aforesaid, at London aforesaid, in the pariah and ward aforesaid, put themselves to and upon the award and umpirage of such person as the arbitrators should name and choose to end and determine the premises, so as the umpirage and award of such umpire should be put in writing under his hand and seal, before the 20th day of the said month of November. And whereas also the said arbitrators at any time after the said 24th day of October in the year aforesaid, or on or before the said 7th day of November then next following, did not agree, make or publish any award touching the said premises in writing under their hands and seals, ready to be delivered to the said Jasper and Rowland, according to the said submission; but the said arbitrators afterwards, to wit, on the 7th day of November in the year aforesaid, at London aforesaid, in the parish and ward aforesaid, did name and choose one Richard Weeks of the parish of St. Giles without Cripplegate in the county of Middlesex, brewer, umpire, to end and determine the premises aforesaid : which said Richard Weeks afterwards and before the said 20th day of November in the year aforesaid, to wit, on the 19th day of November in the year aforesaid, at London aforesaid, in the parish and ward aforesaid, having taken upon himself the burden of the said umpirage and award, made his certain umpirage of and upon the premises (3) under the hand and seal of him the said Richard Weeks, and by the said interest or estate, the covenant made with them, and every of them, is several in respect of their several interests. But the Court was of opinion that the words of the agreement were too strong to be got over: and though it was reasonable that each should only make satisfaction for the time he occupied, and which would have been the case if the submission had been general, yet by the terms of the submission or agreement they have promised jointly and severally, which makes them responsible the one for the other; and the objection was overruled. 7 T, R. 352, Mansell v. Burredge.(b) (3) An award or umpirage ought in pleading to be stated to have been...
To continue reading
Request your trial
-
Veale v Warner
...the award comprehending all things submitted, and no more, see ante, 32, note (a): and as to this and other points respecting awards, see 2 Saund. 61, passim. 1 WM& SAUND. M5. MICH. 21 CAR. II. REGIS 465 condition aforesaid; and by the said award, the said John Coggs and John Foxwell did aw......
-
Jones v Pope
...turn comperuit ad diem." 2 Black. 1049, 1050, Hawkins v. Plomer. 2 Bos. & Pull. 35, Pariente v. Plumbree. Ibid. 246, Allingham v. Flower. 2 Saund. 61,11. 4.(/) And therefore if the sheriff, without the plaintiff's consent, suffer a person arrested upon mesne process to go at large, upon an ......
-
Harrison and Another, Executors of R J R Campbell, Deceases, v Lay
...Wouldham Cuurt Farm." 212 HARRISON V. LAY 13 C. B. (N. S.) 835. 1 Saund. 32; Veale v. Wur-mr, 1 Saund. 324, n. (2) ; Hodnden v. Harridge, 2 Saund. 61; Coppin v. Hurnard, 2 Saund. 127. See also accord. Auriol v. Smith, 1 Turn. & Rim 128; Bowes v. Frnue, 4 Mylne & Or. 150; Jackson, v. (Jlarke......
-
Arigna Mining Company Ltd, and Kingston (Earl of) v Layden
...A. C. 610. (18) 4 Ch. D. 845, at p. 858. (19) 2 Y. & Col. Ex. Rep. 58. (20) [1921] 2 A. C. 528. (1) [1918] 2 K.B. 771, at pp. 777-8. (2) 2 Wms. Saund. 61 m, 62 a (3) 13 M. & W. 466. (4) L. R. 2 C. P. 384. (5) [1922] 1 A. C. 482. (6) 22 T.L.R. 26. (7) 68 L.J. Q.B. 252. (1) 68 L. J. (Q. B.) 2......