Birks v Trippet

JurisdictionEngland & Wales
Judgment Date01 January 1845
Date01 January 1845
CourtCourt of the King's Bench

English Reports Citation: 85 E.R. 34



^ 6 BiRKg wsMg tripe)et S. C. 2 Keb. 126. 1 Sid. 303. Assumpsit on a promise to pay a collateral sum on request: an actual request is necessary before action brought, and the declaration must aver a special request. Assumpsit. The plaintiff declares, that there were divers differences between the plaintiff and defendant; and for the determining thereof, they submitted themselves to the award of one Barker, an arbitrator, indifferently chosen between them to arbitrate^ ordain, and finally adjudge of and upon the premises; and that the defendant, in consideration of the submission, and in consideration that the plaintiff had promised the said defendant to pay him 401. whensoever he should be requested, if the plaintiff should not perform the award to be made on his part, undertook and promised the plaintiff that if the defendant should not perform the award to be made on his part, then the said defendant would well and faithfully pay 401. to the said plaintiff, when he should be thereunto requested. The plaintiff avers that the arbitrator made his award, and thereby awarded that the defendant should pay to the plaintiff 10s. in consideration of damages in an action of battery, and 20s. more for curing a horse, and 10s. more for curing an ox, and 41. more for the plaintiff's expences in law, and that upon payment of the said sums amounting to 61. they should give to each other general releases, and that the defendant should deliver a fine to the plaintiff. And the plaintiff avers that the defendant hath not paid the 61. nor delivered the fine according to the award; yet the said defendant not regarding his promise, but intending to defraud the plaintiff of the said 401. had not paid the said 401. to the plaintiff according to his promise, nor contented him for the same, and so concludes the action to his damage, &c. without alleging any demand of the 401.-The defendant pleads in bar, that the plaintiff was indebted to him being an attorney in 41. for fees and expences, and before the making of the award he gave notice thereof to the arbitrator, and offered to make it appear to him, and prayed he would allow it in his award; but the arbitrator made his award without any allowance or consideration had of the said 41. notwithstanding such notice and proof. And this, &c. Wherefore, &a Upon which the plaintiff demurred in law. And it was argued by Lindsey, of counsel with the plaintiff, that the plea was bad, because the submission was not conditional with an ita quod, &c.; for if it had been so, perhaps the arbitrator could not make his award of part of the differences, if ha 1WMS. SATOI, S3. MICH. 18 CAR. II. REGIS 35 had notice of more, as Baspole's case, 8 Co. 98. Cro. Jac. 355.* Dyer, 216, 242. But it appears by some of the said books, that if the submission be not conditional, then [33] the arbitrators may make their award of parcel, although they have notice of more, and the award shall be good for such parcel.(1) But he said, that admitting * Omelade v. Cooke. (1) See also the same diversities in 1 Roll. Abr. 256, pi. 7, 8, 9. Cro. Jac. 200, Middteton v. Weeks. Cro. Eliz. 839, Risden v. Inglet. But these nice distinctions are now disregarded, Courts of Justice being at present more liberal in the construction of awards than formerly. And therefore an award may be good, though made of less than is contained in the submission ; as if the submission be of all actions, trespasses, demands, and controversies, and the award be made of some only, the award is good ; for no more shall be presumed to have been made known to the arbitrator; but if in fact other causes of action in being were made known to the arbitrator, then such award would be bad, as well where the submission is conditioned with an ita quod, as where it is absolute. 1 Burr. 277, Hawkins v. Goldmigh. 1 Bac. Abr. 141.(a.) (a) [It has been held that a submission to arbitration is to be regarded as a contract founded on the consideration of a final and valid determination of all the matters submitted; and therefore, that if any part of the object of arbitration fails, either by the omission of the arbitrator to award upon it, or by ita being illegal, or by reason of any other cause of failure, the whole submission is void. 6 B. & C. 255, BiddeU v. Dowse. 3 Euss. Chan. Gas. 494, Tuner v. Turner. 9 B. & C. 659, Marsh, v. Wood. 2 Cr. Mees. & E. 367, Thorpe v. Cole. 1 Mees. & W. 531, S. C. in error. 4 Mylne & Cr. 150, Bowes v. Fernie. See 2 Dow. & L. 148, In re Warner. Still, it seema, there is no positive rule of law making it necessary for the validity of the award that it should decide all the matters in dispute. The necessity, when it exists, arises from the contract of the parties contained in the submission ; whether it exists or not, is a mere question of construction. In ordinary cases, this question is resolved in the affirmative. But the submission may be so framed as to admit of a construction in the negative; viz. that, though the parties have given the power to the arbitrator to dispose of all matters, yet they have not made it a condition that all matters should be disposed of by him. 3 Mees. & W. 199, Wrightson v. Bywater. Generally speaking, however], if it appear on the face of the award, that other matters were submitted besides those determined by the arbitrator, the Court will not enforce performance of the award by attachment; 7 East, 81, Randall v. Randall; but will set the award aside. 2 B. Moore, 723, Winter v. Munton. [3 Bing. N. C. 874, In re Rider. So if the objection do not appear upon the face of the award, but be disclosed upon affidavit; 4 Bing. N. C. 37, Stone v. Phillips. 8 A. & E. 290, Ross v. Boards; though in such case, the award cannot be impeached, on this ground, in shewing cause against an attachment; 6 T. E. 161, Holland v. Brooks. 2 A. & E. 52, Macarfhur v. Campbell; nor on a motion to set aside a judgment on the award. 8 A. & E. 235, Doe v. Homer.] But the objection may be pleaded as a defence; 16 East, 58, Mifchell v. Stavely; or shewn in evidence, if the award be given in evidence without being pleaded. 8 East, 445, Ingram v. Milnes. In answer, it may be shewn that the arbitrator had no notice of the other matters; and he may be called to prove this. 4 T. E. 146, Ravee v. Farmer. Where the submission is of all controversies up to a particular day, and an award is made on a previous day, unless it be shewn specially to the Court that a difference did arise between those days, the award will not be set aside. Caldwell on Arbitration, 102, citing Eol. Arbitration, M. 5. Cro. Eliz. 858, Barnes v. Greenwell. Cro. Car. 216, Ward v. Uncorn. See post, 234, n. (2). [The principle that the arbitrator, however general his authority, is not bound to award on any matter not brought to his notice, seems to have been once extended even to a case where the submission itself places the very point in view. Thua in 2 Cr. & Mees. 722, Dibbin v. Lord Anglesey. S. C. 10 Bing. 568, an action of trespass was referred to an arbitrator, the costs to abide the event: the defendant had pleaded the general issue, and several special pleas, on which issues had been joined : the arbitrator awarded in favour of the defendant on the general issue, but took no notice 36 BIRKS V. TRIPPET 1 WMS. SAUND. 33. the submission had been conditional with an ita quod, yet this is a good award, for he hath awarded general releases from both parties; and although the defendant had notified his debt to the arbitrator, yet the arbitrator was nob bound to allow it; for perhaps he did not deem it to be a just debt, and therefore did not allow it; and the arbitrator was the judge of it; and here he has given his judgment that the plaintiff should be released by the defendant; and so he haa made his award thereof, and of all other differences whatsoever. And of such opinion was the Court.(i) (b) [This opinion of the Court was recognized and acted upon in 2 B. & Ad. 528, Wharton v. King, as an authority to shew that, by an award of general releases, the arbitrator must be deemed to have taken into consideration matters in difference submitted and made known to him, although not mentioned specifically in his award. And it should seem, that even where there is no award of general releases, the silence of the award as to some of the matters submitted and brought before the arbitrator does not, per se, prevent it from being a sufficient exercise of the authority vested in him by the submission. An award is good, notwithstanding the arbitrator has not made a distinct adjudication on each or any of the several distinct matters submitted to him, provided it does not appear that he has excluded any. 1 B. & A. 106, Gray v. Gwennap. 6 Bing. 225, Hayllar v. Ellis. 3 B. & Ad. 493, In re Gillon. 3 Bing. N. C. 219, Day v. Bonnin. 9"A. & E. 522, In re Brown. 9 Mees. & W. 293, Dunn v. Warlters. 1 Dowl. N. S. 327, Wya.ll v. Curnell. Post, 327, Veale v. Warner, note (2). Where, however, an arbitrator to whom all matters in difference in an ejectment cause were referred, awarded " of and concerning the matters referred," that the plaintiff was entitled to the possession " of a certain part of the lands sought to be recovered," which he set out by boundaries, and concluded his award without any further adjudication, it was held bad, for want of any decision as to the residue. 8 A. & E. 235, Doe v. Horner. See also 5 Dowl. 127, Gyde v. Boucher.] of the other issues : and it was held, that as the finding on them was material only with respect to the costs, the award ought not to be set aside for this omission, unless the arbitrator were distinctly requested to award on those issues. But this decision has been overruled; and it is now settled, that where the costs of the cause are to abide the event of the award, the arbitrator is bound to adjudicate on all the issues in the action, whether raised on...

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11 cases
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