Ebenezer Davies v Daniel Pratt
| Jurisdiction | England & Wales |
| Judgment Date | 21 November 1855 |
| Date | 21 November 1855 |
| Court | Court of Common Pleas |
English Reports Citation: 139 E.R. 1039
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 25 L. J. C. P. 71.
[183] ebenbzer davies v. daniel pratt. Nov. 21, 1855. [S. C. 25 L. J. C. P. 71.] 1. An arbitrator, in making an award in favour of the defendant, by mistake called him " David," instead of " Daniel." The award having been sent back to him for amendment, he wrote at the bottom of it the following certificate:-" In pursuance ;of a rule, &c. I do hereby certify that this my award ought to be amended by substituting the name Daniel P. for the name of David P., the name David P. having been inserted therein by mistake instead of Daniel P.:"-Held, a sufficient amendment.- 2. It is not competent to a party, in answer to a motion under the 1 & 2 Viet. c. 110, s. 18, to raise by affidavit any objection which does not appear upon the face of the award,-as, for instance, that the arbitrator (the action referred being for a libel, with a plea of not guilty, and a justification as to part,) has found for the plaintiff on the first issue (the finding on the second being for the defendant), but without damages.-3. By an order of reference, a cause and all matters in difference were referred to a barrister, " but so as the reference hereby made be not proceeded with until the arbitrator hereby appointed shall have made and published his award in a certain action of T. v. A.,'now pending in the court of Exchequer, and which action has been referred to the award of the said arbitrator:"-Held,-upon a motion 1040 DA VIES V. PRATT 17C.B.184. under the 1 & 2 Viet. o. 110, s. 18,-that it was no answer to the rule, that the award omitted to state on the face of it, that, previously to proceeding with the reference, the arbitrator had made an award in f. v. A.; for, that the court would presume that he did his duty. This was an action for a libel consisting of three distinct parts. The defendant pleaded, not guilty, and a justification as to one part of the libel only. The cause (then at issue) and all matters in difference between the parties were, by a judge's order of the 16th of October, 1854, referred to a barrister, who was to make his award of and concerning the matters referred, on or before a given day,-"but so as the reference hereby made be not proceeded with until the arbitrator hereby appointed shall have made and published his award in a certain action of Tidman v. Ainslie, now pending in the court of Exchequer, and which action has been referred to the award of the said arbitrator," The arbitrator made an award substantially in favour of the defendant,-finding the first issue of not guilty generally for the plaintiff, but without damages, and the justification for the defendant, and awarded all the costs of the action and of the reference and award to the defendant; but the award did not upon the face of it shew that an award had been made in the action of Tidman v. Ainslie: and, in making his award in this action, [184] the arbitrator by mistake called the defendant "David" instead of "Daniel." The costs having been taxed, and the plaintiff duly served with a copy of the award and of the master's allocator, and the money having been demanded, but not paid, a rule was obtained in Trinity Term last, calling upon the plaintiff to shew cause why he should not pay the taxed...
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