| 1469.119 |
1469 |
Common Pleas |
Debt on an obligation |
Det |
| Mich. |
9 |
Edw. 4 |
30 |
43b-44b |
Fairfax, Guy Sjt (for D?)
Pygot, Richard Sjt Pigot
Catesby, John Sjt
Bryan, Thomas Sjt Brian
Littleton, Thomas JCP
Catesby, John Sjt
Littleton, Thomas JCP
Choke, Richard JCP
Moyle, Walter JCP Moile
Nedeham, John JCP Nedham
Danby, Robert CJCP
Catesby, John Sjt
Danby, Robert CJCP
Choke, Richard JCP |
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L., J., arbitrator |
W.
S., in S. county
S., county of
Dale, hypothetical manor of
Sale, hypothetical manor of
Rome (Roome)
St. Paul's (Paules) |
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| Fitzherbert Arbitrement 16 |
17 Edw. 4, fol. 5
Perkins, Profitable Boke 52
14 Hen. 4, fol. 19
7 Hen. 6, fol. 8
19 Edw. 4, fol. 7, 8
8 Hen. 6, fol. 16
45 Edw. 3, fol. 16
5 Edw. 4, fol. 8 |
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| En Det sur obligation le defendant dit que il est endorce sur tiel condition, que s' il estoia |
72 |
Defendant pleaded that the obligation was endorsed on a condition that if defendant stood to the arbitration of an arbitrator for all personal actions, suits, and quarrels between defendant and plaintiff, if the arbitration be given before a certain day, then (the obligation would be void), and defendant pleaded that the arbitration was not had before the day.
Plaintiff replied that on another day before the making of the obligation and before the day limited, the arbitrator accepted on himself the charge of the arbitration, and because defendant had committed various (divers) offences against plaintiff, and (because) plaintiff was seised of a house, (the arbitrator) awarded that defendant ought to release to plaintiff all the right that defendant had in this house and to deliver the deed (of release) to plaintiff before the day in satisfaction for the trespass, and plaintiff replied that defendant had not delivered the deed (of release).
Sjt Fairfax argued that the arbitration was void because the arbitrator had power only as to personal things, and so could not award a release of right in a house, which was real satisfaction.
Sjt Pygot agreed with Sjt Fairfax and argued that plaintiff's reply was not good because plaintiff had not shown whether defendant had any right in the house or not, so defendant's release could have been no advantage and no satisfaction to plaintiff.
Sjt Catesby argued that the arbitration was good and that plaintiff's reply was good.
Sjt Bryan agreed with Sjt Catesby.
Littleton JCP and Choke JCP said that the arbitration was void.
Moyle JCP and Nedeham JCP said that the award was good. |
Sjt Fairfax: le poiar d' arbitrator que est Judge private eslieu per les parties, serra pris 'stricti juris' en cel chose d' ont le compremis est, & nemy en auter chose, & icy le compremis ne fuit forsque de chose personel, & icy arbitror ad agarde a luy un satisfaction real, & ad agarde que il release tout son droit en le mese, & cest mese ne fuit compris, issint cest arbitrement est nul en ley
Sjt Pygot: l' arbitror ne poet agarde satisfaction forsque solonque le nature del chose mis en compremis, & icy son poiar ne fuit forsque de chose personel
Sjt Catesby: Coment que l' arbitror ne poet determiner auter chose forsque personel en cest case uncore il poet agarde que chose real serra mis en satisfaction pur le trespas, & offence personel, come d' agarde que il enfeoffera le plaintiff en certine terre pur le trespas, ceo est bon, car cest poet auxibien estre satisfaction, come s' il ust done a luy xx. li. &c.
Sjt Bryan: cest money n 'est forsque chose personel, donque quant un arbitror que ad poiar de chose real poet agard le party de faire chose personel, auxibien poet il lou il ad poiar de chose personel agarde le party de faire chose real en satisfaction
Littleton JCP: En vostre case poet estre que vous aves action al terre, per que vous duisses recover damages, &c., issintt cest estoia ove le poiar, mes icy le poiar est un chose personel, & chescun arbitror est Judge, per que il doit luy demesner (= behave himself, demean himself) solonque cest que les Judges ordeine de faire, s. agarde le partytiel chose que il recover en son action, & est forsque money, mes s' il ust porter action de Trespas, en cest case jammes ne duist il aver ewe judgment d' aver cel fait, per que l' agarde de ceo est void, & s' il ust agarde que le defendant servera le plaintiff pur ii. ans cest serra void, &c.
Choke JCP: son poiar icy n' est forsque en personel chose, car quant le compremis est d' action personelx, sectis & querelis, cest parol personel refiert a tout, &c. car est un copulative, mes s' il ust dit d' actions personelx 'ac sectis & querelis', ceste parol 'querelis' poit aver estre entende a querelx realx auxibien come personelx, en quel case si le plaintiff us monstre que cest mese fuit en debate enter eux per action ou claime, donques le poiar l' arbitror ust extendu a cest, &c.; si l' arbitror ust agarde que le plaintiff aler a Roome ou a Paules, &c.
Nedeham JCP: & si release est d' ascun value, coment que il soit petit, per que il est satisie, &c. come s' il agarde que il done un quarte de vine, ceo est petit value tamen il est satisfaction, &c. issint icy, &c.
Danby CJCP: Ceo n' est entende d' ascun value, s' il n' aver droit devant le release, &c. nient pluis que s' il ust agarde que il dona un foile (= leaf) de paper, &c.; Et sir il poit agarde que chescun gerera (should be gardera?) peas vers auter, &c.
quod fuit per Choke JCP negatum, &c. |
interesting conceptual argument about the distinction between choses real and choses personal, Littleton JCP was concerned that arbitrators should not do what courts could not do
Sjt Fairfax and Sjt Catesby and Littleton JCP and Choke JCP and Nedeham JCP argued for defendant's position; Sjt Catesby and Sjt Bryan and Moyle JCP and Danby CJCP argued for plaintiff's position
Sjt Fairfax: it seems that this arbitration is void, because the power (poair) of an arbitrator wo is a private judge (Judge private) chosen (eslieu) by the parties, will be taken strictly 'stricti juris' in this thing (chose) as to which the compromise is, and not in another thing, and here the compromise was only for a personal thing (chose personel) (category), and here the arbitrator has awarded to him (plaintiff) a satisfaction real (category), and has awarded that he (defendant) release his right in the house, and this house was not comprised (in the arbitration), so this arbitration is a nullity in law, etc.
Sjt Pygot (in agreement): as was said, the arbitrator cannot award satisfaction except according to the nature of the thing put in compromise, and here his power (poiar) was only as to (de) personal thing, so, etc.; as an exchange between land and a horse is void, becuase they are not of the same nature, and yet it could be that the horse was better (melior, worth more) than the land, etc.; but the arbitrator could have awarded that he (defendant) will pay him (plaintiff) money, or a horse, or another personal thing; and Sir, for another cause the plea is not good, because when the arbitrator awarded that the defendant ought to make a release in satisfaction, if this defendant did not have right in the land, this release is no advantage to the plaintiff, so this cannot be contentment (contentation, satisfaction), etc.; and whether he (defendant) had right or not, this is not shown, so
Sjt Catesby: even though the arbitrator could not determine anything except personal (things) in this case, yet he could award that a real thing (chose real) (category) will be put in satisfaction for the trespass, and personal offence (category), because to award that he (defendant) will enfeoff the plaintiff of certain land for the trespass, this is good, because this can be satisfaction as well, as if he had given him 20 pounds, etc.; and in the other respect (a l' auter entent), even if the defendnat had no right, yet it is an advantage for him (plaintiff) to have this release to bar him (defendant) if he (defendant) pretends any title afterwards, and also the deed (fait) and the seal are of some value, etc.
Sjt Bryan: if we put (ourselves) on arbitration of the right and possession of a manor, and the arbitrator awards that I will make a release of my right to the other, and he will give me 20 pounds, this award is good, and yet this money is only a personal thing, thus when an arbitrator who has power as to a real thing can award the party to do a personal thing, as well can he (an arbitrator), where he has power as to a personal thing, (can) award the party to do a real thing in satisfaction, so, etc.
Littleton JCP: in your case, it could be that you have an action for the land, so you ought to recover damages, etc., so this is consistent (estoia) with the (arbitrator's) power, but here the power (poiar) is (as to) a personal thing, and every arbitrator is a judge, so he ought to behave (luy demesne, demean himself) according to what the judges are ordained to do, that is, to awrd the party such a thing that he recovers in his action, and this is only money, but if he had brought an action of Trespass, in this case he (plaintiff) ought never have had judgment to have this deed (of release), so the (arbitrator's) award of this is void, and if he had awarded that the defendant will serve the plaintiff (as servant) for two years, this would be void, etc.
Sjt Catesby: if he (the arbitrator) had awarded that the defendant would give a horse to the plaintiff this would have been good, andyet by his action at common law, he (plaintiff) will not recover the horse, etc. (no specific recovery of a chattel)
Littleton JCP: it seems to me in your case that the defendant is not bound (tenus) to pay (the horse), if he does not want;
and it was said afterwards that the plaintiff can have such things (a horse) at common law by means (per mesne), that is, if he recover damages, and on Fieri facias, the sheriff returns 'that he took goods and could not find buyers', in this case the plaintiff can have them (the goods, the horse) on (payment of) a reasonable price, etc.
Choke JCP: it seems that the arbitration is void, because his power here is only in a personal thing, because when the compromise is as to (d') personal actions, suits, and quarrels, this word 'personal' refers to all, etc., because it (and) is a compulative, but if it had been said 'of personal actions (ac) suits and quarrels', this word 'quarrels' can have been understood to refer to real quarrels (category) a well as personal, inwhich case if the plaintiff had shown that this house was in dispute between them by action or claim, then the arbitrator's power would have extended to this, etc., but now his power is only (as to) personal quarrels, in which case he cannot determine this house, which is real, ec., becuase if we put in arbitration 'right, title, and possession of the manor of Dale', and he make an award of the manor of Sale, this is void; and Sir, in the other respect it is available to him to have a release, so to this extent it is good, but if the arbitrator had awarded that the plaintiff will go to Rome (Roome) or to St. Paul's (Paules), etc. or if a man and a woman put themselves in arbitration and the arbitrator awards that they marry each other (entermarry), in those cases there will be understood no advantage (?)
Moyle JCP: the arbitrator in this case cannot determine the right to the house nor any other real thing, but he can well award that this will be given in satisfaction for a trespass, etc. so the award is good, but if the plaintiff were not seised (of this house), so that the release could not enure (to plaintiff's benefit), he (plaintiff) could show this, etc., as if an arbitrator awards that the defendant will give to the plaintiff a black horse, this is good, prima facie, but he (defendant) has no such horse, the party can show this, etc.
Nedeham JCP (in agreement): even though this arbitration be void in this respect (entent), tha tthe plaintiff has no action to compel the defendant to make the release, yet it is good in this respect (a cel entent) if the party (defendant) will not perform this, that he will forfeit the penalty of the obligation, etc. an if a release is of any value, even if it be small (petit), he (plaintiff) is thus satisfied, etc. as it be awarded that he (defendant) give a quart of wine, this is of little value yet it is satisfaction, etc., so here, etc.
Danby CJCP: this (release) is not understood to be of any value, if he (defendant) had no right before the release, etc., no more than if he had awarded that he give a leaf (foile) of paper, etc.
Sjt Catesby: if the defendant had made a release before the arbitration, and then had snatched back (happe) the release, and then the arbitrators had awarded that he (defendant) deliver to the plaintiff all the deeds concerning the house in satisfaction, if he (defendant) had not delivered this release to him (plaintiff), he (defendant) would have forfeited his obligation, there it is reasonable (reason) that it is understood for his (plaintiff's) advantage to have the deeds, etc., so here
Danby CJCP: there the deed was made before the arbitration, etc. but it is otherwise here; and in another respect, if two put themselves in arbitration, and the arbitrator awards that each will make a release to the other, this is good,k and yet by an action at common law, they would never recover deeds, etc.; and Sir he can award that each will keep (gerera) peace (peas) against the other, etc.
which was denied by Choke JCP |
Obligation
Endorsement
Condition
Stand (estoia)
Arbitration
Action
Personal Action (category)
Suit (sectis)
Quarrel
De Omnibus Actionibus Personalibus, Sectis & Querelis
Giving Arbitration
Day
Making Of Obligation
Limitation
Day Limited
Delimitation
Arbitrator
Acceptance
Charge
Charge Of Arbirtration
Offence
Seisin
House
County
Demesne
Fee
Award
Release
Right
All Right
Delivery
Deed (fait)
Satisfaction
Trespass
Voidance
Void Arbitration
Power (poiar)
Jurisdiction (poiar)
Judge
Private
Privacy
Private Judge
Choice (eslieu)
Party
Strictness
Stricti Juris
Thing (chose)
Compromise (compremis)
Chose Personal (category)
Personal Thing
Satisfaction
Satisfaction Real (category)
Contents
Comprising
Nullity
Null In Law
Annulment
Ad Idem
Nature
Nature Of The Thing
Exchange
Horse
Void Exchange
Better (melior)
Payment
Money (argent)
Cause
Plea
Good Plea
Bad Plea
In Satisfaction
Making Release
Advantage
Contentment (contentation)
Showing
Determination
Case
Chose Real (category)
Real Thing
Personal Offence (category)
Feoffment
Certainty
Bar
Pretense
Pretending
Pretence
Title
Seal
Value
Possession
Manor
Release Of Right
Good Award
Money (mony)
Action For Land (category)
Recovery
Damages
Consistency (estoia)
Behaviour (demesner)
Demeaning Himself
Ordaining
Action Of Trespass
Judgment
Void Award
Service
Serving
Servant
Year
Gift
Horse
Common Law
Action At Common Law
Seeming
Binding (tenus)
Postea
Means (mesne)
Fieri Facias
Sheriff
Return
Quod Cepit Bona
Taking
Non Invenit emptores
Buyer
Buying
Reasonableness
Price
Reasonable Price
Word (parol)
Reference (refiert)
Referring
Copulative
Ac
And Besides (ac)
Understanding (entende)
Querelis
Real Quarrel
Personal Quarrel
Dispute (debate)
Claim
Extension
Extending
De Jure Titulo & Possessione
Right Title And Possession
Intent
Avail
Available
Rome
Man (home)
Woman (feme)
Putting In Arbitration
Intermarriage
Marriage
Intermarrying
Advantage
Good Award
Enure
Black Horse
Prima Facie
Compulsion
Good Arbitration
Performance
Forfeiture
Penalty
Value
Little (petit)
Little Value
Quart
Wine
Tamen
Leaf (foile)
Folio
Paper
Happing
Snatching (happe)
Concern
Forfeiture Of Obligation
Reason
Otherwise
Keeping (gerera)
Peace
Keeping Peace
Denial (negatum) |
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