Hogge v Burgess
| Jurisdiction | England & Wales |
| Judgment Date | 01 May 1858 |
| Date | 01 May 1858 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 482
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 27 L J. Ex. 318, 4 Jur. (N. S.) 668, 6 W. R. 504
hogge v burgess. May 1, 1858.-The rules of law, as to setting aside awards under ordinary references, apply to compulsory references under the Common Law Procedure Act, 1854, and the 8th section of that Act only enables the Court to remit the matters referred to the arbitrator in cases where they would otherwise set aside the award -Therefore where, on a compulsory reference under that Act, the defendant set up the Statute of Limitations, and the plaintiff relied on a running account, and the arbitrator certified that he was entitled to recover, the Court refused to remit the matter to the arbitrator on an affidavit that he was mistaken as to the law and fact. [S. C. 27 L J. Ex. 318, 4 Jur. (N. S.) 668, 6 W. R. 504 ] This was an action to recover 921 11s. 7d., the balance of an account for beer supplied by the plaintiff to the defendant After the issuing of the writ the cause was referred by order of a Judge, under the 3rd section of the Common Law Procedure Act, 1-854, to the judge of the County Court of Bedfordshire, holden at Ampthill At the hearing before the arbitrator the defendant set up the Statute of Limitations, and the plaintiff relied upon the account being a running account. The arbitrator certified that the plaintiff was entitled to recover the amount claimed VV. M. Cooke had obtained a rule calling on the plaintiff to shew cause why the certificate should not be set aside, on the ground that the arbitrator decided the matters referred to him contrary to law and fact, or why the matters should not be referred back to the arbitrator. The affidavit in support of the application set out the account and stated that the arbitrator's decision was founded on a fact stated by himself, that this was a running account, and that therefore the Statute of Limitations did not apply. 3H&N. m HOGGE V. BURGESS 483 [294] H Lloyd shewed cause In ordinary references the decision of the arbitrator is final; and if the award is good on the face of it, the Court will not set it aside because the arbitrator has made a mistake in law or in fact The Court will not remit the matters referred to the arbitrator except in cases where they would otherwise set aside the award The same rule prevails in references under the compulsory clauses of the Common Law Procedure Act, 1854. The 3rd section enables the Court or a Judge, upon the application of either party, to refer matters of mere account to an arbitrator appointed by the parties, or to an officer of the Court, or, in country causes, to the judge of any County Court. [Martin, B The 7th section expressly says that the proceedings upon any such arbitration shall be subject to the same rules as to setting aside the award, as upon a reference made by consent under a rule of Court or Judge's order ] The Court then called on W. M. Cooke to support the rule. There is a difference between references by consent and references under the compulsory clauses of the Common Law Procedure Act, 1854. In Blown v. Ilellabij (1 H & N. 729), which was a reference...
To continue reading
Request your trial
-
King and Another v Thomas McKenna Ltd and Another
...by authority (see, for example, Mills v. The Society of Bowyers (1856) 3 K.& J., Hodkinson v. Fernie (1857) 3 C.B.(N.S). 189 and Hodge v. Burgess (1858) 3 H.& N. 293). Indeed the learned editors of Mustill & Boyd on Commercial Arbitration (2nd edition, 1989 at page 550) take the view that t......
-
TCL Air Conditioner (Zhongshan) Company Ltd v The Judges of the Federal Court of Australia
...of New South Wales [1979] 2 NSWLR 257 at 261. 63 Hodgkinson v Fernie (1857) 3 CB (NS) 189 at 202, 205 [ 140 ER 712 at 717, 718]; Hogge v Burgess (1858) 3 H&N 293 at 297 [ 157 ER 482 at 64 Burchell v Marsh 58 US 344 (1854) . 65 Max Cooper & Sons Pty Ltd v University of New South Wales [19......
-
Jamaica Hydroponics Ltd v Alumina Partners of Jamaica
...209; King v Thomas McKenna Limited [1991] 1 All ER 653; Fuller v Fenwick 136 E.R 282; Hodgkinson v Fernie 140 E.R 712 and Hogge v Burgess 157 ER 482. At times, the learned judge was most critical of the of the views expressed by Lord Donaldson M.R in King v Thomas McKenna (supra). 32The le......
-
Jamaica Hydroponics Ltd v Alumina Partners of Jamaica
...under section 8] It is obvious that this would open a door to much inconvenience, uncertainty, and fraud... 45 In the case of Hogge v Burgess 157 ER 482 the issue was raised again. I am afraid I must cite a rather long passage from Martin B. The Baron said at page 484: That was clearly the ......