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Title

Anthony Gibson against Edward Ferrers (Court decision on an Award rendered by Gerard Malynes in December 1623. Introduction by Derek Roebuck), (1996) 62 Arbitration 12 et seq.

Table of Contents

GERARD MALYNES, ARBITRATOR Anthony Gibson against Edward Ferrers

Content

For nearly fifty years I have admired Gerard Malynes’s work and have thought of writing about it and him. He was one of those who over the years have enriched our knowledge of law by describing how it worked in practice for merchants. This was published in (1996) 62 Arbitration 12-15.

GERARD MALYNES, ARBITRATOR

Sir Humphrey Winch (1554 or 1555-1625) was not a great judge, though his career as a judge in Ireland, and then in the Common Pleas for fourteen years from 1611 until his death, should have earned him a decent reputation. Francis Bacon commended him for his ‘quickness, industry and dispatch’,1 qualities often admired by judges but requiring greater ones to temper them, as Winch’s later career exemplified. Now he is remembered, if at all, for executing nine women as witches on the testimony of a lad who said they had molested and bewitched him. A month later the king, James I, questioned the young informer and found, too late, that he had made the story up. 2

Winch’s name survives also on the anonymous, uninspired and spurious volume of reports of his decisions, which appeared thirty-two years after his death.3 Sprinkled with errors of all kinds4 but mercifully brief, it claims to contain:

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.

The report of one case, Gibson v Ferrers,5 contains a wealth of insight not only into contemporary arbitration law but also into the judges’ attitudes to arbitration and the use they made of mediation. It also provides copious examples of the difficulties facing those who try to understand the primary sources. It was argued by Serjeant Bridgman and Serjeant Hendon, presumably before Winch J and all or some of Hobart CJ, Hutton and Harvey JJ, the judges of the Court of Common Pleas at that time.

It is unusual for reports of the period to name arbitrators, whom they commonly designate by initials only.6 Perhaps the anonymous reporter thought that the name of this arbitrator, a well known and controversial figure, would be of special interest to the reader.

Gerard (sometimes Gerrard or even Garet) Malynes (or de Malynes or Malines) is well known as an early writer on economics, particularly on his hobbyhorses of coinage and exchange. He mentions arbitration in his great compilation of commercial law, Consuetudo vel Lex Mercatoria, which despite its title is otherwise entirely in English.7 An excerpt from the 1686 edition, ‘Of Arbitrators and their Awards’ was published with some interesting notes by the Editor in (1993) 9 Arbitration International 323-38. His work as an author on lex mercatoria has been noted by Mustill.8 What he wrote was based not only on his wide learning but on experience as a practising arbitrator.

The matter came before the court because a party to the award refused to comply with it. The major point at issue was whether an arbitrator could award interest - on the debt, not the award. The defence to a claim on the bond for non-fulfilment of the condition, that is satisfaction of the award, was that the award of interest was usurious and therefore illegal.

In English as in Roman law, the parties bound themselves by a bond, with a penalty payable either for failure to allow the arbitrator to make the award or for non-compliance with the award.9 In Gibson v Ferrers the parties had entered into such a bond to make binding their agreement to submit a dispute arising from accounts between them to the single arbitrator, Malynes, and to abide by his award.

The report is quite short and reproduced here in full. I have translated the Latin, removed some typographical and other mistakes and oddities and generally tidied up the text. The notes provide some commentary. Shorter explanations are in square brackets.

Anthony Gibson against Edward Ferrers

Anthony Gibson brought an action of debt of £1,000 upon an obligation made the 11th of December 21 Jac [1623] 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.

Serjeant Bridgman for the defendant: The arbitrement is void, for it is for the payment of interest. And I hold that arbitrators, who are judges indifferently chosen [that is, without partiality], may not award interest to be paid. That is an unlawful thing, for all the statutes which have been made concerning usury have branded that to be unlawful. Those differences which are submitted [to arbitration] ought to be intended to be lawful differences.
And he cited a case in the King’s Bench, where an action on the case14 was brought, upon a promise made upon consideration, that if the defendant will forbear the principal together with the interest, the plaintiff will pay that on a certain day. And it was adjudged that the action lies, because there was no certain interest set down. For, he said: If the certainty of the interest had been set down, the consideration would not have been good. If it is so unlawful that a man may not bind himself by his promise to do it, then a fortiori arbitrators may not award it. And it is void for another reason: interest was awarded for the period after the submission was made. And so I pray that the plaintiff may be barred.
Serjeant Hendon to the contrary: I hold the award to be good. Though it may be void for the interest, it is good for the residue. The non-payment is a breach of the condition. Where an award is made for something which is against the law, and for something which is within the law, the award is good for the one and void for the other. And so it is here.
Secondly, this award is not for interest. It is for damages which result from the plaintiff standing out of his money. Even if it were directly for usury, it would not be void. My brother Bridgman has cited a case where an assumpsit for usury was void. I know well what that judgment was because I was counsel in that case. Much was said in it about usury. Glanville was cited (Bk 9 cap 14),15 which said that a usurer forfeited his goods. But that means those who live by regularly oppressing the people. And in that case no precedent was found where a contract for usury had been declared void.
In Noy 26 Edward III 24 [1352]16 an action for debt was brought for money given for usury. The usury was admitted. The statutes of 13 Elizabeth [1570]17 and 37 Henry VIII [1545]18 which were made against usury would be frivolous if such a contract should be merely void. Because they only made void those contracts which were for above ten per cent interest. So I pray judgment for the plaintiff.

[There the first part of the report ends. But it continues again on p120.]

Now the case of Gibson v Ferrers, which see before, was argued again by Serjeant Bridgman. He said as before that the award was not good for the interest. But he now agreed that covenants, bonds and contracts for usury are good in law:
But the statute of 17 Edward IV [1477] 519 provided that, if a man submits his dispute to arbitrators, they may not award that he and his wife shall levy a fine,20 but, if the party himself promises to levy a fine, that is good and will bind the wife to perform it.
Here is an award made only to one side and nothing is allowed to Ferrers. So the award is not good, 9 Edward IV [1469]21 29, and 29 Henry VI [1450]22 22. I pray that the plaintiff may be barred.23

Serjeant Hendon replied: If an award is good in part, then, even if it is not good in respect of that part in which a breach is alleged, it is still good against a plea like this of nullum fecerit arbitrium [he shall have made no award].24 If the other side then puts in evidence an award and assigns the breach, then the breach is not traversable because it is of the form and not of the substance of the action.
To that the Court answered that the cause of action is the breach of the award. The plaintiff ought to make this apparent to the Court. Otherwise he has no right of action. Though the breach is not traversable, it is still of the substance of the action. Because, if such a plea is pleaded, the plaintiff needs not only to prove the award but also the breach. Otherwise he loses.
Serjeant Hendon then argued the other point, about the claim not being for direct usury but for damages sustained by standing out of the money. If it were for interest, the claim would be good: As to that which has now been agreed by my brother Bridgman, that contracts and obligations for usury are good, I say then, by the same argument, an award for the same thing is good. Whatever a man may contract for, the same may be the subject of an award, if the contract will bear it and the usury is not malum in se [an act wrong in itself, whatever human laws may say about it] but merely malum prohibitum [an act not necessarily wrong by nature but prohibited by human law],25 and is good by our law. In this case, though the arbitrator got the amount wrong, it became clear what it was after the award had been made. And an implied recompense is sufficient in this case.26
But the Court said that drawing up the accounts in itself did not make an award, because it was not a good calculation. It was the ending of the controversies that made an award. But the opinion of the Court in this case was that the award was good, because an arbitrement should not be taken absolutely, upon the bare words. And the court commanded the parties to come back the following day in the Treasury. And it seems that this was for mediation to make an agreement, for the opinion seemed to be for the Plaintiff.

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.

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