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William Ferrer and Ann Rollason, against

John Oven. y. BH. 427. In debt on THE declaration, which was in debt, stated, that certain award by A. differences and disputes having arisen, and being dependand B. against C., where the ing between the said William Ferrer and Honoria his submission was by A. and wife, and the said Ann, and the said defendant, and one his wife, and Lacon Lambe; they the said William Ferrer and Honoria B., on the one side, and by C. his wife, and the said Ann, heretofore, to wit, on the and D. jointly second day of February, 1826, at London aforesaid, by a on the other, certain bond of arbitration, bearing date on that day, the execution became bound to the said defendant and Lacon Lambe, in of the submission by the a certain penal sum in the said bond mentioned; and the wife of A., by said defendant and Lacon Lambe, then and there, by a B., and by D., must be certain other bond of arbitration, became and were bound proved.

to the said William Ferrer and Honoria his wife, and the said Ann, in a certain other penal sum in the same bond mentioned, which bonds were respectively conditioned, well and truly to stand to, obey, abide, observe, perform, fulfil, and keep the award, order, arbitrament, final end and determination of James Thomas Woodhouse, of, &c., and William Back, of, &c., arbitrators, indifferently named, elected and chosen, as well by and on the part and behalf of the said defendant and Lacon Lambe, as of the said William Ferrer and Honoria his wife, and the said Ann, to arbitrate, award, order, adjudge, and determine of and concerning all and all manner of action and actions, cause and causes of actions, suits, bills, bonds, specialties, judgments, executions, extents, quarrels, controversies, trespasses, damages and demands whatsoever, both at law and in equity, at any time or times, theretofore had, made, moved, brought, commenced, sued, prosecuted, done, suffered, committed, or depending by and between the said parties ; so as the award should be made in writing on or before the 5th day of March, then next ensuing. But if the said arbitrators did not make their award of and con

cerning the premises by the time aforesaid, then to obey, abide, observe, perform, fulfil, and keep the award, order, arbitrament, umpirage, final end and determination of one Thomas Davies, a person indifferently named and chosen as an umpire between the said parties, of and concerning the premises, on or before the first day of June, then next ensuing. And they, the said defendant and Lacon Lambe, and the said William Ferrer and Honoria his wife, and the said Ann, did, by the said respective conditions, severally consent and agree, amongst other things, that the costs of a certain suit in Chancery, in which the said William Ferrer and Honoria his wife, and Ann, were plaintiffs, and the said defendant and Lacon Lambe were defendants, as well as of the reference, and the award to be made in consequence thereof, should abide the event of the said award, and that the said arbitrators or umpire, should tax and award the amount of costs to be paid by the party or parties liable to the payment thereof. That the said James Thomas Woodhouse and William Back did not make their award in the premises within the time for that purpose appointed by the said bonds. Whereupon the said Thomas Davies, the umpire appointed as aforesaid, having taken upon himself the burthen of the said arbitration, did in due manner, after the expiration of such time, and before the expiration of the time appointed for making the umpirage, to wit, on the 29th day of May, in the year 1826, aforesaid, at London aforesaid, make and publish his award or umpirage in writing, concerning the said differences and disputes, ready to be delivered to the said parties or such of them as should desire the same, and bearing date the day and year last aforesaid ; and did thereby, (after awarding and directing that the said defendant should pay a certain sum of money to the said Willian, Ferrer, and a certain other sum of money to the said Ann(a), as in the umpirage mentioned), award, order, and direct that the said defendant, his heirs,

1827.

FERRER

v. Oven,

(a) Two other actions (post, 227 (d)) were brought for these sums,

which shared the same fate as the
principal case.

1827.

FERRER

Oven,

&c., should well and truly pay, or cause to be paid, unto the said William Ferrer and Ann, their executors, administrators, or assigns, on the 14th day of August next ensuing the date of the said umpirage, between the hours, &c., at the office of the said William Back, situated, &c., the sum of 411. 16s. ld., being the amount of the costs incurred by them, the said William Ferrer and Honoria his wife, and the said Ann, in respect of the said suit in Chancery, of the said reference, and of that his the said Thomas Davies's award or umpirage, after the same had been duly taxed by him the said Thomas Davies, in pursuance of the said bonds of arbitration; as by the said award or umpirage, reference being thereunto had, will, amongst other things, fully appear : Of which award or umpirage the said John afterwards, to wit, on the said 29th day of May, in the year 1826, aforesaid, at, &c., had notice. Nevertheless, the said defendant did not, on the said day in the said award or umpirage in that behalf mentioned, between the hours and at the place before-mentioned, pay or cause to be paid to the said William Ferrer and Ann, or to either of them, the said sum of 411. 16s. ld., in the said award or umpirage mentioned, or any part thereof; nor hath the said defendant before or since paid the said sum, or any part thereof, to the said William Ferrer and Ann, or either of them, although he the said defendant was afterwards, to wit, on the said 14th day of August, and on divers, &c., requested by the said William Ferrer and Ann to pay them the said sum of 411. 16s. ld., to wit, at, &c.; whereby an acticn hath accrued, &c. The declaration also contained counts for money borrowed, money paid, money had and received, and upon an account stated. Plea, nil debet. At the trial before Lord Tenterden, C. J., at the sittings at Guildhall after last Easter term (a), the execution by the defendant of the bond, in which he and Lambe were the obligors, was proved, as also the due execution of the umpirage. Follett, for the defendant, objected that it should also have been

(a) Counsel for the plaintiff, the defendant, Follett. W. E. Taunton, and F. Kelly; for

1827.

FERRER

Oven.

proved that Lambe had executed this bond, and that the counter-bond should have been proved to have been executed by the two plaintiffs and Mrs. Ferrer, and he cited Antram v. Chace (a). A second objection taken, was, that the umpire had no authority to award between the plaintiffs on the one side, and the defendant alone on the other side, so as to give the plaintiffs a right of action on such award (b). Upon this a witness was called, who stated that he was present at the execution of the bond by Ann Rollason, and that he thought it was also executed by William Ferrer; but the attesting witness to their execution was not called. No evidence was attempted to be given of the execution by Lambe, or Mrs. F.; but it was proved that the defendant had attended before the arbitrator. A verdict was found for the plaintiffs; the learned Judge reserving both the points made by the defendant's counsel.

Follett having, in Trinity term, obtained a rule nisi, for entering a nonsuit upon the first objection taken at the trial,

Taunton now shewed cause. The learned Judge was of opinion at the trial, that the execution of the bond by the wife would have been a nullity, and need not be proved. With regard to execution by the plaintiff, it was proved that the plaintiff's name was subscribed to the instrument. There was no evidence of the execution of the other bond by Lambe: but neither does the declaration contain any averment that the parties did execute; it merely states that they had become bound. Antram v. Chace, is very distinguishable from the case now before the Court. Here there is no evidence that Lambe had any interest in the matters referred. The bond appeared in evidence to be

v. White, 1 Brod. & Bingh. 350,
and the cases there cited.

(a) 15 East, 209.

(b) This objection was afterwards abandoned ; and see Winter

VOL, 1.

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a joint and several bond, with several conditions. In Antram v. Chace, the execution by the defendant was founded upon the expectation that the instrument would be executed by the other parties, who appeared to have an interest in the subject matter. In the present case, it was unnecessary to prove the execution of the deed by Lambe, until the defendant had first shewn that Lambe had an interest.

Follett, contrà. The plaintiffs did not make out a cause of action by legal proof. No debt was created by this umpirage, unless all the parties who were to be affected, entered into a binding agreement to submit to it. It was necessary to aver in the declaration, as has been done, that all the parties did submit; and it was necessary to prove that averment before the award could be received in evidence. It does appear upon the face of the declaration, that Lambe was interested, because he is stated to be a co-defendant in a suit in Chancery, the costs of which are to abide the event of the award. It was incumbent on the plaintiffs to prove, not only his execution, but also the execution by the plaintiffs and by Ferrer's wife. [Lord Tenterden, C. J. Was there not sufficient evidence of the execution by Ferrer and Rollason as against the defendant, who refused to produce that bond after notice ?] There was no evidence that the bond was in defendant's possession ; it might have been in Lanbe's, the co-obligor's. There are several authorities establishing the position, that wherever an award is attempted to be enforced between any of the parties, it is essentially necessary in the first place to shew that the arbitrator was properly empowered to make the award, by proving a binding mutual submission by every one who is to be affected by it; Dilly v. Polhill (a), 2 Wms. Saund. 61 n. (g); Biddell v. Dowse (b). The reason is, that one person does not agree to be bound, unless all the parties between whom the differences exist, (a) 2 Stra. 923.

(6) 6 B. & C. 255.

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