Moore against Butlin
| Jurisdiction | England & Wales |
| Judgment Date | 23 November 1837 |
| Date | 23 November 1837 |
| Court | Court of the King's Bench |
English Reports Citation: 112 E.R. 594
IN THE COURT OF KING'S BENCH
S. C. 2 N. & P. 436; W. W. & D. 638; 7 L. J. Q. B. 20.
[595] moore against butlin. Thursday, November 23d, 1837. Where a cause and matters in difference are referred at Nisi Prius, a motion to set aside the award may be made after the first four days of the term following the delivery of such award ; although the arbitrator finds that neither party has any claim upon the other as to any matters in difference. A plea of set-off to several counts is not divisible : and the plaintiff is entitled to a verdict generally, unless the defendant proves a set-off equalling the whole of the plaintiff's aggregate demand. Where, therefore, to a declaration for goods sold and money paid, and on an account stated, the defendant pleaded mom assumpsit and a set-off, and, the cause being referred, the arbitrator ordered a verdict to be entered for the plaintiff on both issues, except as to the count for money paid, and, so far as the issues applied to that count, for the defendant on both, the Court held the award bad in this respect. [S. C. 2 N. & P. 436 ; W. W. & D. 638 ; 7 L. J. Q. B. 20.] A rule nisi was obtained by the defendant, in Easter term last, for setting aside an award made in this cause, under the following circumstances. (a-) Lord Denraan C.J., Patteson, Williams, and Coleridge Js. (b) On a previous day in the same term (November 14th), in Beginn v. Caistor, where the indictment was for misdemeanor in altering a borough rate, a similar question arose. There the verdict of guilty had been entered at the assizes, by consent, without evidence : and the Court (Lord Denman C.J., Patteson, Williams, and Coleridge Js.) directed the affidavits in mitigation to be first read, then those in aggravation, then the counsel for the defendant to be heard, then the counsel for the Crown. See Bex v. Bunts, 2 T. R. 683. The following case is from the notes of Mr. Robinson of the Crown Office. The King against Button and Others. Trinity term, 1828. The defendants were indicted for a conspiracy to negotiate the appointment of a cadet in the East India Company's service ; some of them suffered judgment by default, and one was convicted by verdict. The Judge's report having been read, a question arose as to the order in which the affidavits of the defendants should be read (the prosecutor producing none), and the counsel be heard ; and it was contended, that the rule laid down in Rex v. Bunts (2 T. R. 683), applied only to cases where all the defendants suffered judgment by default, or all were convicted by verdict. Brougham and Denman having been beard for the defendants on this point, The Court said, that they were not aware of any case, in which the defendants had been convicted in different modes, where this question had been discussed ; that the rule was made by themselves, and might, of course, be altered to suit convenience ; but that it appeared from the last section of the rule itself that it did not give the defendants the last word in a case like the present, no affidavit being produced by the prosecutor ; that, if the case were treated otherwise, inconvenience would be produced, by counsel having to address the Court twice on the same matter. The affidavit for the defendants was therefore read ; after which the counsel for the...
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