Harding v Wickham

[676] harding v. wickham. April 18, 1861. [S. C. 4 L. T. 738; 9 W. E. 652. See Graham v. Turriht.ll, 1875, 44 L. J. Ch. 541.] Award. Misconduct of Arbitrator. Jurisdiction. Stat. 9 & 10 W. 3, c. 15. A. having brought an action against B., and B. a cross-action against A., the same, and all matters in difference, were by a Judge's order by consent referred. B. died pending the reference ; and before administration could be taken out the arbitrator, notwithstanding a protest, proceeded ex parte, and made an award directing payment of a sum of money and costs to A. A. had filed a creditors' bill for the administration of B.'s estate, founded upon the alleged debt under the said award. Held, on demurrer, that a bill would not lie by A.'s executor praying that the bill in the creditors' suit might be dismissed and the award set aside. The Court of Chancery has no jurisdiction to set aside an award made under a reference of an action at law, whether the same be or be not under the statute 9 & 10 W. 3, c. 15. This case came on upon demurrer; the material statements in the bill being as follows:- The Plaintiff was the executor of Charlotte Harding, deceased. The said Charlotte Harding had carried on the business of a brewer, and the Defendant, Wickham, had acted as her manager, under an agreement dated February 5th, 1858. The business became unprofitable by reason of the neglect of Wickham; and in September 1858 Mrs. Harding gave him notice that she had assigned the brewery to a Mr. Wescombe, and on December 4th, 1858, gave the Defendant a notice of dismissal. On December 8th, 1858, Wickham commenced an action against Mrs. Harding, seeking damages for alleged wrongful dismissal; and on February 8th, 1859, Mrs. Harding commenced an action against Wickham for money due and for breaches of the agreement of February 5th, 1856. By an order made on July 8th, 1859, in both actions, by Mr. Justice Bramwell, it was by consent ordered that the causes and all matters in difference should be referred 2J. &H. 677. HARDING V. WICKHAM 1231 to the award of an arbitrator therein named, so that he should make his award ready to be delivered to the parties (or their personal representatives, if either should die before the making of the award) on or before November 1st, 1859, or such'.further day as the arbitrators should by indorsement [677] appoint; that the costs of both actions, and of the reference, should be in the discretion of the arbitrator; that neither party should proceed at law or in equity against the arbitrator, or bring any writ of error, or prefer any bill in equity against the other concerning the matters referred; " that the arbitrator might proceed ex parte if either of the parties should refuse or neglect to attend before him without reasonable excuse;" that, in the event of either of the parties disputing the validity of the award, or moving the Court to set the same aside, the Court should have power to remit the matters referred, or any of them, to the consideration of the arbitrator; that the proceedings in the reference should be public, and be held at such times and places as the arbitrator should appoint; and that the order should be made a rule of Court. Under the direction of the arbitrator Mrs. Harding delivered to Wickham a statement of the charges of negligence and misconduct. The time for making the award was duly enlarged to November 2d, 1862. Mrs. Harding was prepared with important evidence to produce before the arbitrator in support of her statement, and in opposition to Wickham's claim; and December 27th and 28th were appointed by the arbitrator for the hearing. On December 23d, 1859, Mrs. Harding died, having appointed the Plaintiff her executor. The Plaintiff did not act until after the date of the award hereinafter mentioned, and did not prove the will until June 15th, 1860. The fact of the death of Mrs. Harding was communicated to the arbitrator within twenty-four hours by a Mr. Roberts, who had been her solicitor in the reference, with an application that the hearing might be postponed until the [678] reference could be proceeded with in the presence of a legal personal representative of the deceased : but...