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1804.

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Wednesday, CHARNLEY against WINSTANLEY and his Wife. une 6th: A. declared in THE plaintiff declared in covenant, that by indenture under covenant

seal dated 7th of December 1793, between the plaintiff of against B. and her bus the first part, the defendant Frances, by her then name of band, for that Frances Brown {pinster, adminiftratrix of John Brown, of B., before

the second part, and W. R. of the third part, the plaintiff her intermarriage, co. and the said Frances agreed to leave to W. R. to collect venanted certain debts of the late partnership between the plaintiff and with A. by the defendants' inteftate, and to settle all differences, by leave deed to leave certain ac.

ing to W. R. the adjustment and final settlement of such counts in dif- accounts: they therefore conveyed all the debts and effects of ference be

the partnership to W.R. the arbitrator. And the plaintiff and tween them to arbitra

the said Frances covenanted with each other that they would tion, and to well and truly obey, abide and perform the award of W. R. in abide and per- the premises, provided the award should be made during the form the

natural lives of the plaintiff and the said Frances. The plaintiff vided it were then stated, that though he had performed his part of the inmade during denture, yet protesting that the defendant Frances before her intheir lives. And A.

termarriage did not observe and perform, &c., and that the de.

protesting that

fendants since their intermarriage have not observed, performB. had not,

ed or fulfilled any thing in the said indenture contained on the before her in

part of the said Frances; he averred, that after the making of termarriage, performed

the said indenture and the intermarriage of the defendants, and her part of during the joint lives of him, the plaintiff, and the said Frances, the covenant, viz. on the 22d of July, 1803, W. R. duly made his award averred that after making

concerning the premises, and awarded the said Frances to pay the indenture to the plaintiff a certain sum on the roth of August then next; and the inter- of all which premises the defendants had notice, &c. The marriage of the defendants,

plaintiff then alleged, as a breach, that the defendants did not the arbitra- on the said oth of August, and after making the award, pay tor atuarded the sum awarded ; contrary to the said indenture and the a certain sum; and then alleged a breach for non-payment of such sum. After verdiet on non eft factum pleaded ; held that upon this declaration it must be taken that B. intermarried after the submission and before the award made ; in which case, although the plaintiff could not recover upon the breach assigned for non-payment of the fum awarded, because the marringe was a counter mand to the authority of ibe arbitrator ; yet as by the marriage itself B. had by her own act put it out of her power to perform the award, the covenant to abide the award was broken ; and therefore judgment could not be arrested on the ground that the marriage was a revocation of the arbitrator's authority, and that so the plaintiff could not recover as for a breach by non performance of the award. + [ 267 )

covenant

B, to pay

A.

LEY

covenant of the said Frances; and so the plaintiff says, that the 1804. defendants have not, nor hath either of them kept with him the covenant of the said Frances, although requested, &c.

CHARNLEY To

against this the defendants pleaded non eft factum ; and after verdiet WINSTANfor the plaintiff it was moved in arrest of judgment, that the

and Wife, marriage of the defendant Frances after entering into the covenant to submit to arbitration, and before any award made, was a revocation of the arbitrator's authority, and consequently there could be no breach of an award which he had no authority to make.

Topping and Scarlett fhewed cause against the rule, and distinguished between the submission of a feme to arbitration by parol and by deed; Bro. tit. Arbitrement, 45. b. pl. 35. ; that however her subsequent marriage before any award made might be a revocation of the former, it was not of the latter. The anonymous case in Sir W. Jones' Rep. 388., which is the only direct authority in support of the revocation, was probably a submission by parol. And though the case of Samin v. Norton et Uxor, which was a submission by bond, may seem to be against that distinction, as reported by Keble in his 2d vol. (a), yet it appears from the report in the 3d vol. (b) of a subsequent date, that the Court conceived that the plea of intermarriage before the award made was no answer to the action on the bond ; and finally the defendants agreed to enter [ 268 ) into a new bond. But even admitting the marriage to be a revocation of the arbitrator's authority, though conferred by deed, yet Vynior's cafe (c) is an authority in point to thew that such a revocation by the party's own act is no discharge of her express covenant to abide the award ; but her having thereby incapacitated herself from abiding the award is a breach of such covenant, for which she is liable in this action, her husband being joined for the sake of conformity. [In answer to a doubt started by the Court whether the breach were properly alleged to meet the last view of the case, and whether the breach should not have been specifically afligned that the de. fendant Frances did not abide the award, by intermarrying with the other defendant, and thereby incapacitating herself from performing it ;] they answered, that though such a breach were not formally alligned, and the declaration might poslibly

(a) 2 Keb. 865.877. (6) 3 Keb...

:(0) 8 Rep. 81. b., and vide 4 Rep. 61. b. Vol. V.

P

haye

LEY

1804. have been bad on special demurrer, yet upon the whole of the

count it did sufficiently appear that the defendant Frances had CHARNLEY

not abided the award, but had rendered herself incapable of againt WINSTAN. abiding it; and the action is on the deed, and not on the

award. and Wife.

Park and Richardson, contra, relied on white v. Gifford and others, i Roll. abr. 331. tit. Authoritie,, E. pl. 4. as another authority in addition to the case in W. Jones, 388. to thew that marriage is a revocation of a prior submission to arbitra. tion by a feme; and said that there was nothing in either of the books to warrant the distinction set up. Then taking that point pro conceffo, it cannot in reafon be a breach of a cove

nant, to abide an award, not to pay a sum of money directed [ 269 ] by an award which the arbitrator had no authority to make ;

and the non-payment of the money is the only breach asigned. Supposing the fact of marriage before any award made could be deemed a breach of such a covenant, yet it ought to have been fpecifically assigned as a breach, so that issue might have been taken upon it, but it is not alleged as a fait, but merely stated collaterally by way of introduction. If meant to have been ingfied on as a revocation of the authority, it should have been pleaded as such, in the same manner as the revocation of the authority was pleaded in Vynior's cafe, in order to thew in what manner the defendant had not abided by the award. As it now appears, non constat that the marriage may not have been with the consent of the plaintiff, and then it would be no breach. [Lawrence J. The only matter put in iflue was whether this were the deed of the defendant. If the defende ants had meant to insist that the marriage was no breach of the covenant, because had with the consent of the plaintiff, it was open to them to have pleaded such confent. There is nothing in the form of the declaration to have shut them out of such a plea. Lord Ellenborough C. J. There is a sufficient ftatement to thew the fact of marriage before the award made, and that is primâ facie a breach of the covenant to abide the award; because by that act the defendant Frances disabled the arbitrator from making any award. Then if the defendants would in fist on any matter to thew that the marriage was not a breach, it must come from them.] Though marriage operate in law as a countermand to the arbitrator's authority from his inability to bind a feme covert without her husband by his award; yet the act of marriage, being lawful, is not in itself

a breach which

LEY

á breach of the covenant ; for then such a covenant would 1804. operate in restraint of marriage generally, extending * as it does

CHARNLEY to an award made at any time during the lives of the parties,

against which operation the law will not admit of. Lowe v. Peers (a). WINSTAN[Lawrence J. observed, that this argument would go the length

and Wife. of saying that a woman who covenants when fingle may always break her covenant with impunity by marrying.]

* [ 270] Lord ELLENBOROUGH C. J. If this had come on upon a special demurrer as for a defective allegation of the breach of éovenant by marrying, there would have been good ground for the defendants'.objection to the manner of declaring; for here the breach of covenant arising out of the facts Mewn by the declaration is the fact of the defendants' intermarriage before any award made, by which the defendant Frances incapacitated the arbitrator from making any award to bind her, and there-, by broke her covent to abide the award of the arbitrator. But the plaintiff not relying on this, proceeds to fhew by way of breach that the defendant Frances did not pay the money awarded after such intermarriage. But notwithstanding the plaintiff has stated his real gravamen informally, yet if upon the whole it appear that the defendant Frances has committed a breach of covenant, the judgment cannot be arrested. Now here the plaintiff, protesting that the defendant Frances did not before her intermarriage observe her part of the indenture, avers, chat after tre making of the indenture, and the intermarriage of the defendants, the arbitrator made his award. That is a fufficient allegation of the fact of the marriage being before the award, which constitutes a breach of the covenant, to warrant us in giving judgment for the plaintiff on that ground. And this upon the principle, which we had occasion 10 consider very fully in a late case (6); that however defective the pleadings, [ 271 } and however imperfect the prayer of judgment on either side may be, we are bound ex officio to give such a judgment as upon the whole record the law requires us to do.

GROSE J. We cannot arrest the judgment, if upon the whole record it appears that the defendant has committed a breach of the covenant declared on.

LAWRENCE J. The foundation of the motion to arrest the judgment is, that it appears that the defendant Frances inter. married with the other defendant before the award made,

(a) 4 Burr. 2225

(6) Le Bret v. Papillon, 4 Eaf, 502.

P 2

1804.

which it is infifted amounts to a revocation of the arbitrator's

authority ; but the marriage itself is a breach of the covenant CHARNLEY

to abide the award ; and if the fact relied on so far appear as again WINSTAN

to lay a foundation for the motion, that breach must also ap

pear on the face of the declaration. It is therefore inconsistent and Wife in the defendants to say that we cannot take notice of the

marriage before the award made, which is the ground of the
objection to the declaration in arrest of judgment.
Le BLANC J. declared himself of the fame opinion.

Rule discharged.

LFY

272 1 Thursies

DOWLAND againlt SLADE and Wife. June 7ih. The demand. ant in a writ AT the court of the manor and forest manor of Gillingham of right must in the county of Dorset, holden on the 2d of May, 40 allege in his Geo. 3., Thomas Dowland prosecuted his writ of right close count that

against William Slade and Elizabeth his wife, as follows: his ancestor was feiled of

George the Third, &c. To Sir T. Sykes, Bart. lord of the right as well manor of Gillingham in Dorfitfire, or his steward of the same as that he

manor, greeting-We command you, that without delay, and was feised in his deniefne according to the custom of the manor aforesaid, you do full as of fee.

right to Thomas Dowland concerning 18 acres of land, &c. 24. Whe with the appurtenances, in the tything of Bourton in the manor ther if one

aforesaid, which William Slade and Elizabeth his wife deforce through whom title is him of, that we hear no more complaint for want of right. derived be Witness ourfelf,” &c. And thereupon the said Thomas Doruimproperly land makes his protestation to prosecute the same writ in the stated to be

faid Court, in the form and nature of a writ of right patent at heir to her brother, who the common law according to the custom of the manor afore. it appears by said ; and finds pledges to prosecute, &c. The record then sec the record

forth the command to the bailiff of the manor to summon the had a son who survived him, defendants on a given day; at which day « Thomas Dowland and through (by his attorney) demands against the said W. S. and E. 18 whom tiile is acres of land, &c. in the tything of Bcurton, in the manor of properly de. rived, fuch

Gillingham, in the county of Dorset, and within the jurisdi&tion erroneous ap- of this Court; and whereof he says that Thomas Gamlyn was pellation of Seifed in his demesne as of fee, according to the custom of the the lister as

manor aforesaid, in the time of peace, in the time of the Lord beir to her brother be

George the Second, late King of G. B., &c. and within 60 fatal.

years

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