Arbitration between Tunno and Bird
| Jurisdiction | England & Wales |
| Judgment Date | 04 November 1833 |
| Date | 04 November 1833 |
| Court | Court of the King's Bench |
English Reports Citation: 110 E.R. 870
IN THE COURT OF KING' BENCH.
S. C. 2 N. & M. 328; 3 L. J. K. B. 1.
in the matter of arbitration between tunno and bird. Monday, November 4th, 1833. A party to an arbitration cannot object to the award, that the arbitrators chose an umpire by lot, if he expressly agreed to, or acquiesced in, that mode of choice. Where a submission to arbitration under seal, has been varied by indorsing on it a new agreement (as, for changing one of the arbitrators), to which both the principal parties have expressly assented, one of those parties cannot afterwards move to have the award set aside on the ground that the 5B.&AD. 489. IN THE MATTER OF TUNNO AND BIRD 871 indorsement was not under seal. An umpire, being furnished by the arbitrators with the evidence taken before them, and having himself viewed the premises, the condition of which was in question, made his award without calling for further evidence, or giving any notice on that subject to the parties: Held, that the award could not be objected to on that ground by a party who knew that the case had gone before the umpire, and made no application to him to hear further evidence. [S. C. 2 N. & M. 328; 3 L. J. K. B. 1.] D. Pollock, in Easter term, obtained a rule, calling upon Edward Rose Tunno to shew cause why the award made in this matter should not be set aside, on the grounds, first, that the umpire was appointed by lot; secondly, that Henry Lakin, one of the arbitrators, was not lawfully appointed; thirdly, that the arbitrators did not differ, and therefore the umpire, if lawfully appointed, had no jurisdiction; fourthly, that the umpire made his award without hearing the evidence. The facts, as disclosed by the affidavits on each side, were in substance as follows:- Bird had been tenant to Tunno of farms, &e., which he was desirous to quit before his term expired. It was, therefore, agreed between them, by deed, that in consideration of that agreement and the mutual observance of the award to be made, Bird should surrender the premises on the ensuing 29th of [489] September; and that the differences and respective claims of the parties should be referred to the award, arbitrament, &c., of Adam Murray and William Jellicoe, or, " in ease they should not agree in opinion," of such third indifferent person as they should appoint by writing before entering on the reference. The choice of an umpire was as follows :-On the 2d of November 1832, six names, three proposed by Murray and three by Jellicoe, were written on papers and thrown into a hat, and the person whose name first caime out (Staples) was chosen. The gentleman who drew acted as the attorney, and by the authority of Tunno; and had previously received a letter from Bird, introducing a Mr. Stallard as his (Bird's) friend, who would represent him "in the business of drawing for an umpire." This letter stated the manner in which Bird expected the proceeding to take place, and which was, in fact, adopted (a)1. [490] Stallard attended at the drawing. Neither arbitrator was present, but it appeared that the drawing had been agreed to by them (a)2. None of the six persons named had been objected to by either arbitrator. (a)1 The letter, dated October 27th, 1832, was as follows:-"The bearer of this, Mr. Stallard, is a friend of mine, who will be so kind as represent me in the business of drawing for an umpire in the arbitration pending between Mr. Tunno and myself. His time is very limited in London ; I shall therefore feel obliged by your making the arrangement for drawing as speedily as possible. If I understand the thing rightly, the six names are to be rolled up and placed in a hat, and drawn for; now, if you will prepare this, Mr. Stallard will draw, or, if you furnish that gentleman with the names on proper pieces of paper, he can prepare them for the hat, and you can draw. I am now writing at Worcester. I shall be at home on Tuesday, and expect, from my correspondence with Mr. Margrave," (Mr. Tunno's agent) "to find the agreement ready indorsed for my signature, which, in such case, I shall be able to execute prior to the 1st of November." In another letter to his agent, dated the 25th of...
To continue reading
Request your trial
-
Coppin v Hurnard
...object to the award, that the arbitrators chose the umpire by lot, if he expressly agreed to, or acquiesced in, that mode of choice. 5 B. & Ad. 488, In re Twn.no. 2 N. & M. 328, S. C. But in order to be within the exception, the party acquiescing must have knowledge of all the circumstances......
-
Wilkes v Hopkins, Nichols, and Francis Bishop
...v. Sargent, 4 Taunt. 232; Sprigens v. Nash, 5 M. & S. 193; Tollit v. Saunders, 9 Price, 612 ; Bates v. Cooke, 9 B. & C. 407 Tunno, In re, 5 B. & Ad. 488, 494, 2 Nev. & Mann. 328; Potter v. Newman, Tyrwh. & Gr. 29, 2 C. M. & E. 742, 4 Dowl. P. C. 504; Parlery v. Newnham, 7 M. & W. 378 ; Salk......
-
An Arbitration Between John Hawley, Sampson Bridgewood and John Goodwin and The North Staffordshire Railway Company
...disagreement to empower the umpire to act, and he was not bound to hear evidence, if none was tendered to him: Ee Tunno and Bird (5 B. & Ad. 488; 3 Dowl. 669), Hall v. Lawrence (4 T. R. 589). Nor can a party, by absenting himself, defeat the reference, but the arbitrator may proceed ex part......
-
The European and American Steam-Shipping Company Ltd, v Crosskey and Others
...all subtle distinctions for the future.' However, Lord Tenterden's hopes do not seem to have been realized, for, in In re Tuuno ami Bird, 5 B. & Ad. 488, 2 N. & M. 328, the consent of the parties was held sufficient to make an appointment by lot valid : [402] and the same was decided in In ......
-
Dynamics, discretion and diversity - A recipe for unpredictability in international arbitration?
...American SS Co v Crosskey (1860) 8 CB (NS) 397; In the Matter of Arbitration Between Tunno and Bird; (1833) 5 Barnewall and Adolphus 488 110 E.R. 870. [17] "Cultural Bias in Judicial Decision Making", Masua Sagiv Boston College Journal of Law & Social Justice Vol 35/Issue 2, May 2015; "......