Wood v Davies
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1796 |
| Date | 01 January 1796 |
| Court | High Court |
English Reports Citation: 86 E.R. 891
IN THE COURTS OF KING'S BENCH, CHANCERY, COMMON PLEAS AND EXCHEQUER.
[289] case 35. roberts against marriot. Trinity Term, 22 Car. 2, Roll 944. To debt on an award, if the defendant plead no award, and the plaintiff seta out the award; if the defendant rejoin, that " it was not delivered," and conclude with a verification, it is bad; for the rejoinder, which confesses an award, is a departure ; and the affirmation that " it was not delivered " ought to have concluded to the country.-$. C. ante, 42. S. C. 2 Keb. 614, 618, 702. S. C. 2 Saund. 73, 188. S. C. 1 Lev. 300. Ante, 72, 227. 8 Co. 133. 1 Saund. 102, 181. 10 Mod. 251, 257, 349. 12 Mod. 54, 92. 1 Ld. Ray. 30, 76, 234, 693. 2 Ld. Ray. 1449. Dougl. 58. 2 Term Rep. 439. An award may be good in part. An action of debt brought upon a bond to submit to an award. The defendant pleads, nullum fecerunt arbitrium. The plaintiff replies, and sets forth an award made by two prebends of Westminster, and that it was delivered to the party according to the condition of the bond, &c. The defendant rejoins, that it was not delivered, &c. ; et hoc, paratus est verificare. The plaintiff demurs. Baldwin and Wilmington, Serjeants, argued for the defendant; and Jones for the plaintiff. (a) Jones, 302. (a) The Court were unanimously of opinion, that the charge of communis oppressor et perturbator pads is too general; S. C. 2 Keb. 697. S. C. 1 Lev. 299 ; and that in proceedings for this injury it ought to be stated upon what tenants the distress was made, with their names, and how much was taken ; S. C. 1 Vent. 108; but the judgment was arrested, because an information will not lie for taking an excessive distress ; for that the remedy is by special action on the Statute of Marlebridge. S. C. 1 Lev. 299. S. C. Ray. 205.-Trespass m et armis will not lie for this injury at common law ; Fitzg. 85; for the entry is at first lawful; 2 Strange, 851. And no subsequent irregularity in making distress for rent (and by 17 Geo. 2, c. 38, for the poor's rate) will make the party a. trespasser ob initio. 11 Geo. 2, c. 19. Espinas. Dig. 56, 8. 892 MICHAELMAS TERM, 22 CAR. 2. IN B. R. 1MOD.290. The Court. The defendant having first pleaded nullum fenerunt arbilrium, and then, in his rejoinder, that it was not delivered (which is a confession that there was an award made), has committed a departure; and so it has been judged. If he hud pleaded nullum fecerunt...
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