Hodsden v 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. 693
COURT OF KING'S BENCH
But see stat. 3 & 4 W. 4, c. 42, s. 3, post, 67, note (h).
[64] 9. hodsden versus harridge. Michaelmas, 20th of King Charles II. Rol. 554. S. C. 1 Lev. 273. 1 Sid. 415. 2 Keb. 462, 497, 533, 536. An award under the hands and seals of the arbitrators is not within the Statute of Limitations. [But see stat. 3 & 4 W. 4, c. 42, s. 3, pout, 67, note (h).] Debt on an award by Hodson against Harridge ; the plaintiff declares, that there were divers disputes and controversies between the plaintiff and defendant, concerning certain monies due to the plaintiff for malt sold arid delivered by him to the defendant, and for quieting those controversies, the plaintiff and defendant, on the 24th day of October, in the 13th year of the reign of the now King, [65] submitted (7) themselves (7) Where the submission is by rule of Court, this difference is taken ; when the parties intend to refer only the cause,, the terms of the rule of reference are, "all matters in difference in this cause between the parties ;" but when all matters in difference between the parties are meant to be referred, then the language of the rule 694 HODSDEN V. HAREIDGE 2 WMS. SAUND. 66. to the award of two arbitrators, and if they should not agree by a certain day, then to the umpirage of an umpire to be chosen by the arbitrators, so as the umpirage should be under the hand and seal of the umpire before another certain day; and the plaintiff avers that the arbitrators made no award, but chose one Weekes to be umpire, who within the time made an umpirage under his hand and seal, and thereby awarded the defendant to pay the plaintiff 151. in full satisfaction of all debts, accounts and demands due to the plaintiff: and for the non-payment of the said 151. the plaintiff brings his action, &c. The defendant pleads in bar the Statute of Limitations, " and that the came of action did not accrue within six years next be/ore the exhibiting of the bitt ; and this, &c." therefore, &c. upon which it was demurred in law. And the question was, whether this action of debt on award be within the Statute of 21 Jac. 1, c. 16, of Limitations or not. And it was argued by Saunders for the plaintiff, in Trinity term last past, that it was not within the statute; for the words of the statute are, " all actions of debt grounded upon any lending or contract without specialty, and all actions of arrearages of rent," shall be sued within six years, &c. And he argued, in the first place, that it was a specialty, for the umpire has made his umpirage in writing under his hand and seal, as appears by the record, and therefore it was clearly out of the words and meaning of the statute, which says, " actions of debt without specialty," so that actions of debt upon specialty were not limited, nor intended to be limited by the statute. And although Jones for the defendant objected, that the umpirage in writing under the hand and seal of the umpire was not any specialty, because a man cannot wage his law against a specialty, but he may wage his law against an award in writing under hand and seal, unless the submission be by specialty under the hand and seal of the party who submits to such an award, as appears in 2 Roll. Ahr. 107, (C.) pi. 3, it was answered that, notwithstanding the umpirage was not such a specialty as shall oust the party of his law,* yet it was a good specialty to prevent the limitation of the action upon it to six years, on account of the notoriety of the thing being in writing under hand and seal. For the statute intends to limit those actions only which arise upon a bare contract without any writing under seal, the prosecuting of which actions a long time after they first accrue, was often a great occasion of perjury in witnesses, and of oppression to the defendant in such actions. And this case may be compared to the case of an action of account, where, if the plaintiff declare against the defendant on a receipt by his own hands, the defendant shall wage his law ; but if the plaintiff declares on a receipt by other hands, the defendant shall be ousted of his law, on account of the presumption of law that the country had notice of it.(a) [66] And where the statute says that all actions of debt for is, " all matters in difference between the parties in this cause; " the terms of the submission in the latter instance being descriptive of the parties in the cause, and not of the particular cause between the parties. 2 T. K. 647, Malcolm v. Fitllarton.(d) * S. P. Cro. Eliz. 557, Hampton v. Bayer...
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