many Choice Cases, and excellent matters touching Declarations, Pleadings, Demurrers, Judgements and Resolutions in points of LAW, in the foure last years of the Raign of King JAMES, faithfully Translated out of an exact french Copie.
Anthony Gibson brought an action of debt of £1,000 upon an obligation made the 11th of December 21 Jac  and the Defendant came and demanded Oyer of the condition10, and the condition recited that, whereas there were differences between the said parties concerning some accounts, now for the final determination of them they had put themselves upon 11 the award and arbitrement [these terms are used in this report as synonyms] of Gerrard de Malines, to be made before the last day of December next: ‘if therefore Edward Ferrers... shall... perform... and keep the arbitrement of Gerrard de Malines, that then etc.’ 12 Having heard this read out, the said Edward said that the aforesaid Anthony ought not to have his action against him,13 because, he said, Gerrard de Malines did not make an arbitrement. The plaintiff replied and showed an arbitrement, by which Malines awarded to the plaintiff interest to be paid for money, among various other things. Upon that the defendant demurred in law.
1Edward Foss Biographia Juridica p748.
2The Compact Edition of the Dictionary of National Biography II p2298.
3Reports of that Reverend and Learned Judge, Sir Humphry Winch Knight; Sometimes one of the Judges of the Court of Common Pleas... London, Printed for W Lee, D Pakeman and G Bedell 1657; reprinted 124 English Reports 1-105.
4Pace Lord Kenyon 6 Term 441 cited by JW Wallace The Reporters Arranged and Characterized with Incidental Remarks p261. Wallace casts doubts on their authenticity - they cannot all be authentic as they not only refer to Winch in the third person: ‘I saw Hobart show presidents to Winch... and he said to Winch’ but report Winch’s death. Moreover at Winch 71 the reporter gives some autobiographical detail: ‘the first day I came to report’.
5(1624) Winch 114-115 and 120-121, 124 ER 95-96 and 101.
6Another example, which may be of the equally well known merchant John Scott, is in Duport v Wildgoose (1614) 2 Bulstrode 260; 80 ER 1106. Scott’s biographical details are under the name of his ancestor Sir William Scott (1350) in The Compact Edition of the Dictionary of National Biography II p1876.
7Consuetudo, vel, Lex Mercatoria.
8(1988) 4 Arbitration International 86.
9AWB Simpson ‘The Penal Bond with Conditional Defeasance’; Max Kaser Roman Private Law p197; Neil Kaplan, Jill Spruce and Michael Moser Hong Kong and China Arbitration Cases and Materials [Kaplan] ppxli and xlix-li.
10He took the procedural step of requiring the plaintiff to disclose the condition on which the bond was payable.
11Defendants were said to ‘put themselves on the country’ when they submitted to be tried by a jury. The analogous use in arbitration is early. In a case in 1206, the defendant is reported to have ‘put himself upon’ two named men and the plaintiff did the same with two others. Both then put themselves on all four plus a fifth and agreed to abide by their award, Kaplan pxlvi.
12Presumably, if this ‘etc’ were expanded it would read ‘then the amount of the bond should not be forfeited to the plaintiff.’
13In Latin: ‘quibus lectis et auditis idem Edwardus dicit quod praedictus Antonius actionem suam versus eum habere non debet.’ This is Ferrers’ plea in defence, the condition having been revealed. It is to be recalled that the original manuscript was in Law French.
14An action on the case developed from the writ of trespass, extended to include the facts special to the particular case. An action on the case in assumpsit became the regular way of bringing a claim for damages for breach of contract.
15This is an error typical of these reports. The reference should be to Book 7 Chapter 16: ‘Usurarii vero res omnes, sive testatus sive intestatus decesserit, domini regis sunt.’ ‘All the chattels of a usurer, however, whether he dies testate or intestate, go to the lord king.’ GDG Hall ed The Treatise on the Laws and Customs of England Commonly Called Glanvill p89.
16This reference is unfathomable as it stands. The reference to Noy’s reports may be to Hollingworth v Parkehurst Noy 2; 74 ER 974, which cites 13 Eliz 11, by which it presumably means 13 Eliz 8. That leaves 26 Edward III 24. There is no such statute. It may be a Year Book reference but I have not been able to find it.
17(1571) 13 Eliz Cap 8 specifically provided that lending for ten per cent per annum or less was no longer illegal, confirming the statute next cited.
18(1545) 37 Henry VIII 9 had already made lending at interest lawful, provided that it was no more than ‘ten pounds in the hundred per annum.’
19This is another error. (1477) 17 Edward IV 5 says nothing about arbitrators or levying a fine. No statute as early as that refers to arbitrators. What the original reporter, probably a student, or more likely the careless translator has done is to assume that the reference is to a statute and, as was his consistent practice, not bothered to check. All becomes clear if this is a reference to the Year Books, the early reports of cases. There, in the Year Book (in Maynard’s edition, which did not appear until twenty-two years after Winch’s reports) for the seventeenth year of the reign of Edward IV, the report of case number 5 is what the court in Gibson v Ferrers was obviously referring to. It deals with the difference between an accord and an award. But there could be confusion with the next case reported, which also deals with the nature of an award. I can make no sense of this paragraph of the report as it stands.
20A fine, in this sense, is a final concord, made by the parties with leave of the court. Its most important use was to convey land. The agreement to transfer ownership was put into writing, read out in court and enrolled in the court’s records. The process was not abolished until 1833.
21The law was that an award had to state what was given to each party. It could not merely state that the arbitrator found for one side or the other. An arbitrator who awarded a money sum, for a debt or damages, should state not only that the debtor was to pay the sum to the creditor but that the creditor should thereby release the debtor from all claims arising out of the dispute. Nichols v Grunnion Hobart 50: ‘This is no award except it be provided he be discharged.’ This case is also interesting for its conclusion: ‘So it hung and I think it was compounded, for I heard no more of it.’ The reference is presumably to a case in the Year Books of Edward IV but I cannot find it. The reporter no doubt used manuscript or printed editions which I have no access to.
22 This is not a statute; it also presumably is a reference to a Year Book report but I cannot trace it.
23That is, that the plaintiff’s case should fail on this and the other points of law.
24The defendant began by pleading that Malynes had made no award and demanding that the award be produced, which it was.
25This distinction is an irrelevance. Whether usury was illegal only or both illegal and immoral (or against religion), a contract providing for it would be illegal. It was (and is) also true that a contract for something immoral, even though not illegal, might itself be illegal, but not if legislation expressly makes such a contract legal.
26This is the point made in note 21. The plaintiff is admitting that there must be something awarded to both sides but denying that it needs to be expressed. It can be inferred from the words of the award.