Perry v Nicholson
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1757 |
| Date | 01 January 1757 |
| Court | Court of the King's Bench |
English Reports Citation: 97 E.R. 313
IN THE COURT OF KING'S BENCH
1 BURB. 279. PERRY V.NICHOLSON 313 perry versus nicholson. 1757. In action of debt upon an award plaintiff need shew forth nothing more than ia necessary to support his claim; but if brought on the arbitration bond, the plaintiff must set forth the whole demand. After an unsuccessful motion, made on the part of the defendant, " to set aside an award;" and an equally unsuccessful one, made on the part of the plaintiff, "to enforce it by an attachment for non-performance ; " the plaintiff found himself obliged to have recourse to his action against the defendant upon it. And now, upon an action of debt brought by him on this award, reciting that in an action of assumpsit, the parties, at the trial, had submitted the matters in difference in the said cause, to certain arbitrators, &c. so as they should publish their award in writing concerning the premises, before, &c.; and that they accordingly did publish their award in writing, &c. and awarded "that the defendant Nicholson should pay to the plaintiff Perry 481. 11s. lOd. in full payment, discharge and satisfaction of all money whatsoever or any ways due or owing unto Perry by Nicholson, at the time of commencing the said action; and that all actions depending between them for any matter, cause or thing whatsoever arising before or at the time of referring should from thenceforth cease; and that upon payment of that sum, they should within two days after the taxation of costs in the action and payment thereof to Perry, seal and execute to each other, general releases of all matters in difference in the said cause." Then the plaintiff avers that there was, at the commencement of the action, or at the time of reference, no other money whatsoever, any ways due to him the said plaintiff Perry from Nicholson, but the matter in difference in the said cause; and that no other action was depending between them; and that the costs were taxed at 281. The defendant pleads " that no such award was made." Replication-" that there was such an award, &c." And issue thereupon. [279] The plaintiff gave in evidence, an award in writing, indented, under the hands and seals of the said arbitrators named in his declaration and replication, with the following variations from and additions to the award set forth in the declaration -viz. there was in the declaration, 1st. An omission (after the award " to pay, &c.") of these following...
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Veale v Warner
...there was no cause of action subsequent to the sub mission, unless shewn. Cro. Car. 215, Ward v. Uncorn. 1 Salk. 74, 75, Simon v. Gavil. 1 Burr. 278, Perry v. Nicholson. But it is said, that alleging the award to be made de et super premissis supplies all averments. 1 Ld. Raym. 533, in Doyl......
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...plaintiff, in declaring upon an award, is only bound to set out so much thereof as he relies on to support his claim : Perry v. Nicholson, 1 Burr. 278. [Williams, J. It is difficult to distinguish this case from Dresser v. Stansfield, 14 M. & W. 822. It was there held, that a plea of "no aw......
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...suppose part of the award be well, and another part (a) See Foreland v. MarygoU, 1 Salk. 72. S. C. 1 Ld. Bay. 715, and Perry v. Nicholson, 1 Burr. 278. 12MOD.S35. TRINITY TERM, 13 WILL. 3. IN B. R. 1501 void, and so bad that it avoids even the whole award, and the plaintiff sets out only th......
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...the defendant. Note also, if the plaintiff had not made a, profert, the defendant's way had been to have pleaded nul liel agard. (a) Vide 1 Burr. 278. It was there said per Curiam, than in an action of debt upon an award, a man has no need to state in his declaration any more of the award t......