Brooke v Mitchell
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Exchequer |
English Reports Citation: 151 E.R. 498
EXCH. OF PLEAS.
S. C. Dowl. P. C. 392; 9 L. J. Ex. 269; 4 Jur. 656.
[473] brooke v. mitchell. Exch. of Pleas. 1840.-Where an order of reference required that the arbitrator should make and publish his award in writing, ready to be delivered to the parties, or such of them as should require the same, on or before a certain day :-Held, that the award was " published " and " ready to be delivered," within the meaning of the order, when it was executed by the arbitrator in the presence of and attested by witnesses : arid that it could not be set aside, although the plaintiff died on the following day, and before he had notice that the award was ready. [S. C. 8 Dowl. P. C. 392 ; 9 L. J. Ex. 269; 4 Jur. 656.] This was an action of trespass. After the issuing of the writ, and before declaration, by a judge's order, dated 27th May, 1839, it was ordered that all matters in difference in the cause should be referred to two arbitrators, "so that they should make and publish their awaid in writing, ready to be delivered to the parties in difference, or such of them as should require the same, on or before the 1st day of June then next; and in case the said arbitrators should differ respecting the matters thereby referred, then that they should he at liberty, by a memorandum in writing to be indorsed thereon, to appoint an umpire between them in the matters thereby referred, so that the said umpire should make and publish his umpirage in writing, ready to be delivered to the said parties, or such of them as should require the same, on or before the 13th day of July next." The arbitrators differed, and appointed an umpire, who, on the 11th -fury, 1839, made and executed his award, in the presence of and attested by two witnesses, to whom it was fully made known and declared at the time of its execution. On the afternoon of the 12th, the attornies of both parties received a letter from the umpire, stating that he was about to declare his award, and desiring them to attend at bis office at half-past five o'clock on that evening. They accordingly did so, when be read over to them and declared his award, and delivered it to the plaintiff's attorney. At ten o'clock, A.M., on the same day, the plaintiff died. In Michaelmas Term. Hoggins obtained a rule to shew cause why the award should not be set aside, on the ground that it was not made and published in the lifetime of the plaintiff. W. H. Watson and Fortescue shewed cause. This...
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