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PART III.

CH. III. S. 2.

their bearing generally. The old pleadings setting forth an award used to recite the existence of differences (q), the submission to arbitration (r), the appointment of arbitrators (8), and that all proceedings were taken and the award made in all formal requisites in pursuance of the submission (†), especially as to time and delivery of the award (u); also, that its terms were authorized by the submission (a).

It was usual, and sometimes was necessary, to aver that the defendant had had notice of the award (y), and had not performed it before action commenced (z), and had been requested to obey it (a). It was requisite to allege readiness

(7) 1 Chitt. Pl. 297, 7th ed.; 2 Chitt. Pl. 298, notes, 7th ed.; 2 Chitt. Pl. 176, 298, 7th ed.

(r) 2 Chitt. Pl. 228, 7th ed.; Hodsden v. Harridge, 2 Saund. 61 m, notes, 61 n.; Biddle v. Dowse, 6 B. & C. 255; Roper v. Levi, 21 L. J. Ex. 28; Thomlinson v. Arriskin, 1 Com. Rep. 329; Hanson v. Liversedge, 2 Vent. 242.

(8) Dilley v. Polhill, 2 Stra. 923; Bates v. Townley, 1 Ex. 572.

(t) Mansell v. Burredge, 7 T. R. 352; 2 Chitt. Pl. 298, notes, 7th ed.; Lupart v. Welson, 11 Mod. 171; Sutcliffe v. Brooke, 15 L. J. Ex. 118, S. C. 3 D. & L. 302; Everard v. Paterson, 2 Marsh, 301; Henderson v. Williamson, 1 Stra. 116; Hinton v. Cray, 3 Keb. 512; Wilson v. Constable, 1 Lutw. 536.

(u) Skinner v. Andrews, 1 Saund. 169, S. C. 1 Lev. 245, S. C. 2 Keb. 361, 388, S. C. 1 Sid. 370; Bissex v. Bissex, 3 Bur. 1730; Bac. Ab. Arb. G.; Rowsby v. Manning, 3 Mod. 331, S. C. Carth. 158; 1 Show, 98, 242; Doyley v. Burton, 1 Ld. Raym. 533; Anon., 2 Ld. Raym. 533; Anon. 2 Ld. Raym. 989; Busfield v. Busfield, Cro. Jac. 577; Freeman v. Bernard, 1 Ld. Raym. 247; Bradsey v. Clyston, Cro. Car. 541; Robison v. Calwood, 6 Mod. 82; Marks v. Marriot, 1 Ld. Raym. 114; Oates v. Bromhill, 6 Mod. 176, S. C. 1 Salk. 75; Jenkinson v. Allisson, 1 Freem. 415, contrà, S. C. 3 Keb.

513; Wilson v. Wilson, cited in Veale v. Warner, 1 Saund. 327 c, note m.; Dresser v. Stansfield, 14 M. & W. 822; 2 Chitt. Pl. 256, note, 6th ed.; Veale v. Warner, 1 Saund. 327 b, n.; Elborough v. Gates, 2 Lev. 68.

(x) Craven v. Craven, 7 Taunt. 642; Doyley v. Burton, 1 Ld. Raym. 533; Pascoe v. Pascoe, 3 Bing N. C. 898; 2 Chitt. Pl. 256, notes, 6th ed.; Perry v. Nicholson, 1 Burr. 278; Smith v. Kirfoot, 1 Leon. 72; Wood v. Wilson, 2 C. M. & R. 241; Tilford v. French, 1 Sid. 160; Leake v. Butler, Litt. 312; Foreland v. Marygold, 1 Salk. 72; Bac. Ab. Arb. G.; Leach v. Morris, 1 Mod. 36, contrà. See 2 Chitt. Pl. note h, where it is said if there be a condition precedent to the payment of the money, it, and performance of it, should be averred in the declaration: Tomlin v. Mayor of Fordwich, 6 N. & M. 594; Hanson v. Liversedge, 2 Vent. 242; Thomlinson v. Arriskin, 1 Com. Rep. 329.

(y) Fraunce's case, 8 Rep. 92 b; Hodsden v. Harridge, 2 Saund. 62, n. 4; Child v. Horden, 2 Bulst. 144; Gable v. Moss, 1 Bulst. 44; Juxon v. Thornhill, Cro. Car. 132. See Brooke v. Mitchell, 6 M. & W. 473.

(z) Naters v. Sutton, 11 Jur. 87; Owen v. Waters, 2 M. & W. 91; Shepherd v. Shepherd, 3 D. & L. 199; Granger v. Dacre, 12 M. & W. 431; Abbott v. Aslett, 1 M. & W. 209.

(a) Waters v. Bridge, Cro. Jac.

to perform concurrent acts (b) and performance of conditions precedent (c). Assignees of insolvents need not allege the consent of the creditors to this reference (d), nor in suing executors was it necessary to state that they had assets (e).

PART III.

CH. III. S. 2.

arbitration

In debt on a bond conditioned for the performance of an Debt on award, the plaintiff had to set out the award in his declara- bond. tion or replication (ƒ).

breaches.

The plaintiff had to assign breaches under the statute 8 & 9 Assigning W. III. c. 11, and could not have judgment for the penalty, and take out execution for the sum awarded, though there was only a single sum to be paid on the bond, namely, the amount of damages ascertained by the award (g).

And yet the breach, when assigned, was not issuable nor traversable, nor could the defendant give any answer to it (h). Still the want of assigning a breach was matter of sub- Breach assigned not stance, and bad on general demurrer (i). The same was the traversable. case if the plaintiff assigned a bad breach, and it would not be aided after verdict (k).

breach.

When the award to pay a sum of money and costs was Demurrer for bad as to the costs, a replication in an action on the bond not assigning assigning as a breach the non-payment of the money only was good (1). So on an award that the defendant and a What a good stranger shall do an act, assigning a breach in the neglect of a breach.

639; Rowe v. Young, 2 B. & B. 165, per Bailey, J., 233; Lambard v. Kingsford, Lutw. 558; Rodham v. Stroher, 3 Keb. 830.

(b) Rowe v. Young, 2 B. & B. 165, per Bailey, J., 234; Phillips v. Knightly, 1 Barnard. 84, S. C. Fitzg. 53.

(c) Driver v. Hood, 7 B. & C. 494, S. C. 1 M. & R. 324; Birks v. Trippet, 1 Saund. 32.

(d) Sutcliffe v. Brooke, 3 D. & L. 302. See P. I. ch. 2, s. 3, d. 1, p. 33, reference by trustees of bankrupts and insolvents.

(e) Dowse v. Coxe, 3 Bing. 20. See P. II. ch. 3, s. 3, d. 8, p. 169, effect of clause preventing death from being a revocation.

(f) Furlong v. Thornigold, 12 Mod. 533, S. C. Foreland v. Hornigold, 1 Lord Raym. 715; Foreland v. Marygold, 1 Salk. 72.

R.

(g) Welch v. Ireland, 6 East, 613; Att.-Gen. v. Elliston, 1 Stra. 191; Com. Dig. Pleader, F. 4; Meredith v. Alleyn, 1 Salk. 138; Hayman v. Gerrard, 1 Saund. 102; Com. Dig. Pleader, F. 14; Shelley v. Wright, Willes, 9; Barret v. Fletcher, Yelv. 152; Lee v. Elkins, 12 Mod. 585; Ormelade v. Coke, Cro. Jac. 354.

(h) Heard v. Baskerville, Hob. 232; Brickhead v. Archbishop of York, Hob. 197; Morgan v. Man, T. Raym. 94; Gayle v. Betts, 1 Mod. 227; Bac. Ab. Arb. G.

(i) Barret v. Fletcher, Cro. Jac. 220, S. C. Yelv. 152; Heard v. Baskerville, Hob. 232; Brickhead v. Archbishop of York, Hob. 197.

(k) Com. Dig. Pleader, F. 14; Pit. Wardal, Godb. 164.

(1) Addison v. Gray, 2 Wils. 293; Fox v. Smith, 2 Wils. 267.

N N

PART III.

CH. III. S. 2.

When need

less to assign

breach in replication.

the defendant only was sufficient, when the direction as to the stranger was void (m).

On a bond to perform an award, if the defendant pleaded in effect traversing the submission, or any other collateral matter, the plaintiff might join issue thereon without assigning a breach (n). So, if the defendant showed an award, and pleaded performance of part only, and issue were taken. thereon (o).

If the defendant pleaded any plea admitting the award and excusing non-performance, as if he pleaded a release of all demands after the award, whereby he offered a special point in issue, it was sufficient for the plaintiff to answer the release, or other special matter alleged by the defendant, without assigning any breach (p).

Nice points also arose as to when the replication should conclude with a verification (7).

PART III.

CH. III. S. 3.

Rule as to pleading performance.

SECTION III.

THE EFFECT OF AN AWARD PLEADED AS A DEFENCE.

An award must be pleaded specially as a defence when it operates as a discharge of the right to sue ().

If an action were brought for a debt, an award respecting

(m) Oldfield v. Wilmer, 1 Leon. 140, 304, S. C. Owen, 153; Pit v. Wardal, Godb. 164; Bac. Ab. Arb. G.

(n) Com. Dig. Pleader, F. 15; Bac. Ab. Arb. G.; Kind v. Carter, 1 Sid. 290; Strike v. Benstey, 1 Lutw. 525.

(0) Genne v. Tinker, 3 Lev. 24; Com. Dig. Pleader, F. 15.

(p) Jeffery . Guy, Yelv. 78; Baily v. Taylor, Yelv. 24.

(2) Fisher v. Pimbley, 11 East, 188; Veale v. Warner, 1 Saund. 326b, n. 1; Seal v. Crowe, 3 Lev. 164.

(r) 2 Chitt. Pl. 146, notes, 6th ed.; Allen v. Milner, 2 C. & J. 47; 3 Chitt. Pl. 105, notes, 7th ed.;

Rolle Ab. Arb. X. 1, p. 266; Gascoyne v. Edwards, 1 Y. & J. 19; Crofts v. Harris, Carth. 187; Freeman v. Bernard, 1 Salk. 69, S. C. 1 Lord Raym. 247; Purslow v. Bailey, 1 Salk. 76, S. C. 6 Mod. 221; 2 Lord Raym. 1039; Allen v. Harris, 1 Lord Raym. 122; Bac. Ab. Arb. G.; Freeman v. Bernard, 1 Salk. 69, S. C. 1 Lord Raym. 247; Clapcott v. Davy, 4 Lord Raym. 611; Com. Dig. Accord. D. 2, 3; Rolle Ab. Arb. Z. 267; Bac. Ab. Arb. G.; Dighton v. Whiting, 1 Lutw. 51; Linch v. Dacy, 1 Keb. 848; Hare v. George, Cro. Eliz. 66; Clapcott v. Davy, 1 Lord Raym. 611.

the claim, ascertaining the amount of the debt, and directing payment, could not be pleaded in bar to the action without alleging performance; for the money until paid was due in respect of the original debt: as, for instance, if the claim were for tolls, the sum awarded was due for tolls still. But if the claim were of a different nature, as, for example, to have goods delivered, and the award directed payment of money in satisfaction of the demand, the right to have the goods was gone, and the only right remaining was the substituted right to have the money awarded. So, if the demand were for a debt, and the award directed, not payment in money, but payment in a collateral way, as by delivery of goods or performance of work, it seems the right to have payment in money was extinguished. In like manner, if the claim were for unliquidated damages, an award of a sum certain in satisfaction was, it is apprehended, a good bar without alleging performance (s).

By a deed the defendant was to pay the plaintiff 6,8007., of which 4,8007. was to be subject to reduction in certain events, and it was also agreed that if any difference should arise respecting the deductions, it should be referred to an arbitrator to award what amount, not exceeding 4,8007., should be deducted. The arbitrator awarded that the whole 4,8007. should be deducted. To covenant by the plaintiff on the deed for the 6,8007., a plea of the award was held a good bar as to 4,8007. (t).

A plea, except as to a certain sum, that an arbitrator had awarded that sum as the sum due in respect of the causes of action was held good (").

PART III.

CH. III. S. 3.

Award negatiff's claim. tiving plain

In all actions where accord and satisfaction was a good Award a bar defence, an award might be pleaded in bar (r).

where accord and satisfac

To an action for trespass a defendant might sometimes tion a bar. plead an award made on a submission between the plaintiff and a stranger. An award between A. and B. for a trespass done by C.'s cattle, when in the possession of A., is a good

(8) Allen v. Milner, 2 C. & J. 47; Roulstone v. Alliance Insurance Co., 4 L. R. Irish, 547.

(t) Parkes v. Smith, 15 Q. B.

297.

(u) Commins v. Heard, L. R. 4 Q. B. 669.

(x) Com. Dig. Accord. D. 1; Blake's case, 6 Rep. 43 b; Bac. Ab. Arb. G.

PART III.

CH. III. 8. 3.

When an

bar to an action by B. against C. for the same trespass (y). So, to an action for a trespass, the defendant may plead that award may be the trespass was committed by himself and another, and that the matter was afterwards submitted to arbitration by the plaintiff, the defendant, and the other trespasser, and determined by an award ().

pleaded by a stranger.

Payment on void award.

Award as to part of demand.

Plea of award

on parol submission no discharge of bond.

Pleading

award to

If a man paid money on a void award, and it was accepted, it might have been pleaded as an accord and satisfaction (a). An award which does not extend to the whole of the thing demanded is not a good plea to an action on the demand (b). To an action on a bond for money, a plea that after the money became due the plaintiff and the defendant, by parol, submitted to an award, that the arbitrator awarded the defendant to pay the plaintiff a certain sum, and that he had tendered the sum, was held bad on demurrer, the debt being due by specialty (c).

If a cause were referred after issue joined, and the plaintiff further main- nevertheless proceeded with the action, and after an award tenance of the in the defendant's favour, took it down to trial, the award might have been pleaded as a plea to the further maintenance of the action (d).

action.

Replication departure.

A replication in replevin justifying a distress under a power to distrain given by an award, was a departure from an avowry relying on the common law right to distrain for rent service (e).

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