James Kilburn v William Kilburn
| Jurisdiction | England & Wales |
| Judgment Date | 31 January 1845 |
| Date | 31 January 1845 |
| Court | Exchequer |
English Reports Citation: 153 E.R. 281
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 2 D. & L. 633; 14 L. J. Ex. 160.
13 M. &W. 611. KILBURN V. KILBUKN 281 D 71] james kilbijrn v. william kilburn. Jan. 31, 1845. -Assumpsit. The declaration contained counts for goods sold, money paid, had aucl received, and on an account stated, to which the defendant pleaded non assumpsit, payment, and a set off; and after issue joined, the cause and all matters in difference between the parties were referred to arbitrators, the costs of the action to abide the event of their award. The arbitrators awarded, that the defendant was indebted to the plaintiff in the sum of 681. Us. 5d., and that final judgment should be entered for the plaintiff for that sum, besides his costs of suit, to be taxed by the Master, and that the said sum of 681. 1 Is. 5d., with such costs as aforesaid, should be paid by the defendant to the plaintiff:-Held, that the award was bad, inasmuch as it did not necessarily determine the issues raised on each of the counts in the declaration by the plea of non assumpsit, but only that the defendant was liable on some one or more counts, riot on all. [S. C. 2 D. & L. 633; 14 L. J. Ex. 160.] Thia was an action of assumpsit for goods sold and delivered, money paid, money had and received, and on an account stated ; to which the defendant pleaded non assumpsit, payment, and a set-oft'. The cause being at issue, the parties entered into an agreement in writing, that all proceedings in the action should be stayed, and that all matters in difference between the parties should be referred to two arbitrators who were to arbitrate, award, and determine of and concerning the same ; that the costs of the action should abide the event of the award, and that the costs of the agreement and of the award should be in the discretion of the arbitrators. The arbitrators proceeded with the reference, and made their award in the following terms :-" That the said William Kilburn (the defendant) was before and at the commencement of the said action, and still is, justly and truly indebted to the said .Tames Kilburn (the plaintiff) in the sum of 681. lls. 5d., and that final judgment shall be entered up for the plaintiff for the sum of 681. lls. 5d., besides his costs of suit to be taxed by the Master, and that the aaicl sum of 081. lls. Bd., with such costs as aforesaid, shall be paid by the defendant to the plaintiff on "...
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