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the plaintiff demurred, and stated for special cause of de 1812. murrer, that the defendant had therein pleaded matter

MITCHELL which it was not competent to plead, inasmuch as, if it

against

STAVELEY. existed, it was matter of application to the Court to set aside the award, and not matter of plea.

6thly, The defendant pleaded that the writing obliga- 6th plea. tory was made conditioned as before mentioned, and the award before stated was made, and no other, and that the said 15001, thereby awarded was so awarded to the plaintiff not only for and in respect of matters in difference between him and the defendant before and at the time of making the same writing obligatory, but also for and in respect of other claims and demands of the plaintiff against the defendant which did not exist at that time, but arose afterwards, by reason of the plaintiff's having before then accepted certain negotiable bills of exchange drawn upon him by and for the accommodation of the defendant, and which bills at the time of making the writing obligatory had been negotiated, but remained unpaid. The plaintiff also demurred to this plea, for the same cause as was stated to the 5th plea.

7thly, The defendant pleaded the condition of the bond 7th plea. and the making of the award, as in the last plea, and that no other award or umpirage was made. And further, that at the time of making the same writing obligatory certain negotiable bills of exchange drawn by the defendant upon and accepted by the plaintiff, and before that time negotiated, were and remained unpaid in the hands of the holders thereof respectively, and that the indemnity or security of the defendant as the drawer of such bills from being called upon for payment of the same by the respective holders thereof, was at the time of making such writing obligatory a matter in difference and a controversy be

tween

1812.

MITCHELL

against STAVELEY.

8th plea.

ing, and

between the plaintiff and defendant: and that the said arbitrators before the making of their said award, viz. on the 10th of June 1805, had notice thereof, but have not made or given any award or direction touching or concerning the matter and controversy last aforesaid. And that divers of the said bills of exchange to a large amount in the whole have not yet been paid by the plaintiff, and that the defendant hath been and still is liable to pay to the several holders of such bills the sums of money respectively mentioned in those bills. To this the plaintiff demurred generally.

The 8th plea, after stating, as before, the condition of the bond and the award made, and further that the action mentioned in the award, as then before commenced by the plaintiff against the defendant in B. R. was pend

that the costs en incurred were a matter in difference between the parties, alleged that the arbitrators, before the making of their said award, had notice thereof, but had not by their award ascertained or determined the amount of the costs, or awarded the same to be taxed by any proper officer in that behalf, and have attempted to delegate their authority respecting such costs to Mr. Ramsden, in the award named, who is not any officer for the taxation of costs. To this the plaintiff replied, that after the making of the award, to wit, on the 1st of October 1804, Mr. Ramsden, in the award mentioned, took upon him to settle, and did settle the costs therein mentioned at 501. ; of which the defendant then had notice; and that the defendant afterwards paid that sum to the plaintiff for such costs, which the plaintiff accepted in full satisfaction and discharge thereof; and that afterwards, on the 1st of November 1804, and on divers days between that and 1st of November 1808,

the

STAVELEY.

the defendant paid to the plaintiff divers instalments due 1812. by virtue of such award ; and as well the defendant as the

MITCHELL. plaintiff assented to and then ratified and confirmed the

against said award; and then he alleged a breach of the condition of the bond, in the non-payment of the instalment due on the 1st of November 1808. To this the defendant demurred generally.

The 9th plea, stating the condition of the bond and 9th plea. the award made, as before stated in the 5th plea, alleged that the defendant (before the making of that award, which was on the 14th of July 1804, on the 8th of March 1803, being a trader, and indebted to J. H. in 1001. and upwards, became bankrupt, and a commission issued against him on the 9th of March 1802, under which he was declared a bankrupt, and obtained his certificate on the 1st of August 1804 (after the award). And that the claims and demands of the plaintiff upon the defendant, for which the award was so made, accrued to the plaintiff before the defendant so became bankrupt. The plaintiff replied, that though a small part of his several claims and demands on the defendant submitted to the arbitrators by the bond, &c., to wit, 501., part thereof, accrued to the plaintiff before the defendant became bankrupt as aforesaid, yet that the residue of such claims and demands accrued to the plaintiff after the defendant's bankruptcy, and that the said bond of submission was sealed and delivered, and the award made, after the defendant became bankrupt; and that after such award, to wit, on the 1st of November 1804, the defendant paid to the plaintiff divers instalments due under and by virtue of the said award; and that as well the defendant as the plaintiff assented to and then ratified and confirmed the

1812.

said award ; and then he alleged a breach as before. To this the defendant demurred generally.

MITCHELL

against STAVELEY.

Bowen for the plaintiff, contended, as to the 5th, 6th, and 7th pleas, that they only contained matters for application to the summary jurisdiction of the Court, to set aside the award, and not matters which were pleadable : and referred to Veale v. Warner (a), Wills v. Maccarmick (b), and Braddick v. Thompson (c), to shew that no objection can be taken to an award in pleading, which does not appear on the face of it ; and that partiality or improper conduct in the arbitrators can neither be given in evidence on the general plea of nil debet, nor be pleaded specially to an action of debt on the submission bond. The 5th plea states that 10231. 13s. and no more, was due to the plaintiff, in contradiction to the award, which states that 15001. was due. This in effect is to impute to the arbitrators misconduct or neglect, either of which was a proper subject for an application to the Court to set aside the award, which the stat. 9 & 10 W.3. c. 15. s. 2. requires to be made before the last day of the next term after the award made (d). [Bayley, J. Such an application can only be made when the submission to the award is made by a rule of Court: for otherwise, the party must proceed as at common law.] The reason why it was not done in this case was because the submission was lost by an accident. But how can the Court see that the arbitrators have exceeded their jurisdiction? The award is equivalent to a verdict and judgment for

and see

(a) 1 Saund. 323. 326. (6) 2 Wils. 148. (c) 8 East, 344.

(d) Zachary v. Shepherd, 2 Term Rep. 781. was referred to; Lowndes v. Lowndes, 1 East, 276.

15001.

1812.

MITCHELL

against STAVELEY.

15001., after which a defendant could not be permitted to dispute the items on which it was founded. The 6th plea states that some of the items composing the sum total awarded arose after the submission upon certain outstanding bills before accepted by the plaintiff for the accommodation of the defendant, but not then paid : but that was a subject for the equitable jurisdiction of the Court, and was brought before the arbitrators. The 7th plea is that the award does not indemnify the defendant against the outstanding bills for which he was liable: but that also was a proper subject for the equitable jurisdiction of the Court ; for if the question were brought before the notice of the arbitrators, and they thought that no indemnity should be given by the plaintiff, their judgment would conclude it; as in Birks v. Tippel (a): and by Randall v. Randall (b) a general award, founded on a general reference of all matters in difference, without noticing all the particular items, may be enforced by attachment, unless the particular matter omitted appeared upon the face of the submission: but even in the latter case, an award upon all the points submitted may be dispensed with ; as in Simmonds v. Swaine (c); if such omission do not affect the justice of the award upon the other points decided ; except where the submission is with a clause ita quod fiat de premissis. In the last case Chambre, J. referred to Payne v. Cook in the Exchequer-chamber, where the doctrine was laid down, that as there was no clause in the submission that the award should be made on all the points submitted, if the matters omitted were not necessarily dependent on and connected with the other points, the

(a) i Saund. 33. Vol. XVI.

(6) 7 East, 81.

F

(c) | Taunt, 549.

award

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