Roberts v Mariett
| 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. 742
COURT OF KING'S BENCH
[73] de terjuno paschje, anno regni cak. II. 22. 11. roberts versus mariett. Mich. 21 Car. II. Regis, Rot. 123. S. C. 1 Mod. 42. 2 Keb. 614, 618. The Court after demurrer joined gave the plaintiff leave to discontinue, on payment of costs.(l) Debt on bond conditioned to perform an award, so as the award be ready to be delivered on the 1st day of May; the defendant after oyer of the condition pleads, " no award made;" and the plaintiff in his replication shews the award, and a breach of it by non-payment of the money awarded to be paid by the defendant to the plaintiff; but in the replication the plaintiff' mistakes the day of tendering the award, and avers that the award was ready to be delivered on the twentieth day of May, whereas it ought to have been upon the first day of May, and upon demurrer joined the record was read in the last Hilary term, and the Court gave a rule for judgment for the plaintiff, unless cause, &c. at the beginning of this term. And now Baldwyn Serjeant, for the defendant, shewed to the Court this mistake, whereupon Saunders for the plaintiff prayed leave to discontinue the action, upon payment of costs; which was opposed by Baldwyn, because the action was upon a penal bond, and the plaintiff had a remedy for his debt on the award itself; and because the plaintiff himself had put it upon the judgment of the Court, and obtained a rule for judgment before this exception was taken, he prayed judgment for the defendant, and that the plaintiff should be barred of his action upon the bond; and he strongly urged that the plaintiff may bring his action upon the award, and therefore he ought not to be permitted to take advantage of a penalty, as he will do in this case, if he shall be permitted to discontinue. Kelyuge Chief Justice said to Saunders, why cannot you bring an action upon (1) So after demurrer argued and allowed, the Court has permitted a discontinuance, on payment of costs, where there was a mistake in the plaintiff in pleading; 2 Lev. 124, liea v. Burnis. Ibid. 209, But v. Withens. 1 Lev. 191, Jones v. Pope, S. C. 1 Saund. 39. 1 Sid. 306. 1 Lev. 192, Sennet v. Filldns. S. C. 1 Saund. 23. 1 Lev. 298, Martin v. Delboe. 3 Lev. 440, Stephens v. Cooper. 1 Str. 76, Butler v. Malissy. Ibid. 116, Henderson v. Williamson; but now the Court usually gives the party leave to amend upon payment of costs. And after a special verdict, the plaintiff may discontinue by leave of the Court, because it is not complete and final: this, however, is a matter of great favour. 1 Salk. 178, Price v. Parker. And the Court will not grant leave in a hard action. Cases temp. Hardw. 200, 201, Boucher v. Laivson. Nor will they do it, to give the plaintiff an opportunity of adducing fresh proof to contradict the verdict. 2 Black. Rep. 815, Roe v. Gray. And leave to discontinue is never granted after a general verdict; 1 Lev. 48, Anon. 1 Salk. 178, Price v. Parker;(a) or after a writ of inquiry executed and returned; Garth. 86, Stephens v. EthericL S. C. 1 Show. 63; or after a peremptory rule for judgment on demurrer. 1 Salk. 179, Turner v. Turner. (a) [2 Cr. M. & R. 240, Goodenough v. Beetles, accord. But after a rule for a new trial has been obtained, the plaintiff may discontinue, even after a general verdict; and if the rule is silent as to the costs of the trial, the plaintiff will not by discontinuing make himself liable to pay them. 4 M. & W. 502, Jolliffe v. Mundy. 7 M. & W. 570, Lord Macdesfield v. Bradley, overruling Sweeting v. Halse, 9 B. & C. 369.] 3 Witt. BAUHD. 7t PASCH. 22 CAR. II. REGIS 743 the award 1 To which Saunders an-[74]-swered, Sir, perhaps the defendant may wage his law to such action,(2) and then we have entirely lost our debt. Then he askod Baldwyn if his client would bring the money awarded into Court1? who atiswered, that he had not any authority to offer it; whereupon the Chief Justice, with the assent of the other Judges, because the mistake was in so small a matter, and the plaintiff had a just debt due to him, gave the plaintiff leave to discontinue the action upon payment of costs, and he did so accordingly. (2) And therefore debt does not lie against an executor or administrator upon an award made in the lifetime of the testator or intestate, if he demurs to the declaration. Cro. Eliz. 557, Hampton v. Bayer. 600, Bmvyer v. Garland, 2 Kol. Abr. 107 (C.), pi. 3.(A) But if the executor or administrator pleads in bar to the action, and a verdict is found against him, he cannot take advantage of it afterwards, either in arrest of judgment, or by writ of error. Plowd. 182 a. Norwood v. Read. 10 H. 6, 25 a. Fitz. Executors, 21. Vaugh. 97-100, Edgcombe v. Dee. Cro. Jac. 47, Fisher v. Richardson. S. C. Yelv. 55. 1 Sid. 333, Palmer v. Lawmi.(c) (b) [But wager of law was abolished by the stat. 3 & 4 W. 4, c. 27, s. 13; and therefore such action may now be well brought.] (c) See ante, Vol. I. p. 217, and notes (b) and (c).
English Reports Citation: 85 E.R. 948
COURT OF KING'S BENCH
[183] 35. egberts versus mariett. Trin. 22 Car. II. Regis, Eot. 944. London, to wit.-Be it remembered that heretofore, to wit, in the term of St. Hilary last past, before our lord the King at Westminster came Mary Roberts widow, by Thomas Sturmy her attorney, and brought here into the Court of our said lord the King then there her certain bill against Thomas Mariett, Esq. otherwise called Thomas Mariett of Ascott, in the county of Gloucester, Esq. in the custody of the marshall, &c. of a plea of debt, and there are pledges of prosecution, to wit, John Doe and Richard Roe, which said bill follows in these words, to wit; London, to wit. Mary Roberts widow complains of Thomas Mariett, Esq., otherwise called Thomas Mariett of Ascott, in the county of Gloucester, Esq., being in the custody of the marshal of the Marshalsea of our lord the King before the King himself, of a plea that he render to her 2001. of lawful money of England, which he owes to and unjustly detains from her, for this, to wit, that whereas the said Thomas, on the 25th day of January, in the year of our Lord 1667, at London, to wit, in the parish of the Blessed Mary le Bow, in the ward of Cheap, London, by his certain writing obligatory sealed with the seal of him the said Thomas, and to the Court of our Lord Charles the 2d, now King of England, &c. here shewn, the date whereof is the day and year above said, acknowledged himself to be held and firmly bound to the aforesaid Mary in the said 2001., to be paid to the said Mary when he should be thereunto requested, yet the said Thomas (although often requested,) has not yet paid the said 2001. to the said Mary, but to pay the same to her has hitherto altogether refused, and yet refuses, to the damage of the said Mary of 201., and therefore she brings suit, &c. Aud now at this day, to wit, on Friday next after the morrow of the Holy Trinity in this same term, until which day the said Thomas Mariett had leave to imparl to the said bill, and then to answer, &c. before our lord the King at Westminster comes as well the said Mary by her attorney aforesaid, as the said Thomas Mariett by John Saunders his attorney: and the said Thomas Mariett defends the wrong and injury when, &c., and prays oyer of the said writing obligatory, and it is read to him, &c he also prays oyer of the condition of the said writing obligatory, and it is read to him in these words, to wit: " The condition of this obligation is such, that if the above bounden Thomas Mariett, his heirs, executors, administrators, and assigns, and every of them, for his and their part [184] and behalf, shall and do in all things stand to, abide, observe, perform, fulfil, and keep the award, doom, determination, final end, and judgment of Henry Killigrew and Charles Gibbs, Prebendaries of Westminster, and doctors of divinity, arbitrators indifferently nominated, elected, and chosen, as well on the part and behalf of the above-named Thomas Mariett, as on the part and behalf of the above-named Mary Roberts, to award, arbitrate, judge of, and determine, of, for, upon, and concerning, all and all manner of causes of actions, suits, troubles, 8 WMS. SAUND. 185. MICH. 22 CAR. II. REGIS 949 debts, reckonings, accampts, sums of money, claims, and demands whatsoever, had, made, stirred, moved, or depending between the said parties, at any time before the date above-written, so always as that the said award, judgment, and determination of the said arbitrators of, for, and concerning the premises, be made and put in writing indented under their hands and seals on this side and before the first day of May now ne%t coming, and one part thereof delivered or tendered to be delivered to the said Thomas Mariett, at or within the now hall of the Dean and Chapter of Westminster aforesaid, situate in Westminster aforesaid, between the hours of two and five in the afternoon of the same day, then this obligation to be void, or else to stand and be in force and virtue." Which being read and heard, he the said Thomas says, that the said Mary ought not to have or maintain her aforesaid action thereof against him, because he says that the said Henry Killigrew and Charles Gibbs, the arbitrators in the said condition above-mentioned, did not make any award between the said Thomas Mariett and the said Mary Roberts in the said condition named, according to the form and effect of the said condition. And this he is ready to verify; wherefore he prays judgment if the said Mary ought to have or maintain her aforesaid action thereof against him, Sic. And the said Mary Roberts says that she, by any thing by the said Thomas Mariett above in pleading alleged, ought not to be barred from having her aforesaid action thereof against him the said Thomas, because she says that the said Henry Killigrew and Charles Gibbs, the said arbitrators named in the said condition...
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