Macdougall, Gent. one, Company, v Robertson and Another

[11] in the exchequer chamber. (In Error from the Court of King's Bench.) macdougall, gent, one, &c., v. robertson and another. Tuesday, Nov. 27th, 1827.-The death of either of the submitting parties will not determine the authority of the arbitrator, or vacate the subsequent proceedings upon the refer ence, where the deed or instrument of submission contains a proviso, that the submission shall riot vacate or expire through the death of either of the parties. -Where a plea refers expressly to the exception of another plea, and alao con tains an averment of performance of covenants in the said deed, which deed is set forth in the plea referred to, but not mentioned in the exception to that plea, the two pleas may be taken together.-A submission, by which an award is to be made, on or before the day of , or such clay to which the submission may be enlarged, is a general authority to be executed within a reasonable time. [S. C. 4 Bing. 435 ; 1 Moo. & P. 147.] Debt on a surety-bond, in the penal sum of 10001. The defendant below craved oyer of the bond and condition, which were set forth; and by which latter,-after reciting, in substance, that, by a certain deed of submission, or instrument in writing, in the Scotch form, signed by Morrison, at Glasgow, on the day of June, 1826, and by the plaintiffs below, and made, or expressed to be made, between Morrison, of the first part, and the plaintiffs below, of the second part, all matters in difference between the parties had been referred to the arbitration of two persona named, and in the event of their differing in opinion, to an umpire or oversman to be appointed by them, with powers to the arbiters or oversman, or either of them, to pronounce interim orders, decreets, and certifications; to prorogate the submission from time to time; of the late statute. Before that enactment, it was not usual in practice to call for proof of the execution of the assignment, unless notice had been given that such evidence would be required at the trial; and Lord Teuterden, in a late case at Guildhall, said that the same practice ought still to prevail. See Chit. Coll. Scat. 110. (b) Parke, upon a subsequent day, applied to have the rule altered, by substituting a " new trial " for a " nonsuit," which, although opposed by the defendant, was ordered accordingly, at the Judge's chambers, after Term. 2 Y. & J. 12. MACDOUGALL V. ROBERTSON 8 11 and, in general, to do every thing which the arbiters or oversman should judge necessary, to bring the matters submitted to a just and speedy issue; and that the parties bound and obliged themselves respectively, their heirs, executors, and successors, under the penalty of 5001. sterling, over and above performance, to abide by, fulfil, and perform to each other, whatever decreet arbitral, interim or final, partial or total, the arbiters or oversman should pronounce, aiient the matters submitted to their consideration ; and that in the said deed of submission were contained such other provisoes, declarations, and agree-[12]-ments, as were therein more particularly specified and set forth; and further, that previously to the execution of the deed of submission, it was stipulated and agreed, that the defendant below, as a surety for Morrison, should enter into and give unto the plaintiffs below a bond, in the penal sum of 10001.,- it was conditioned that, if Morrison, bis heirs, executors, administrators, and successors, did and should well and truly observe, perform, fulfil, and keep all and every the covenants, clauses, provisoes, declarations, consents, and agreements whatsoever, specified and contained in the said in part recited deed or instrument of submission, which, on the parts and behalves of Morrison, his heirs, executors, administrators, and successors, were, and ought to be, observed, according to the true intent and meaning of the said deed or instrument of submission ; and particularly if Morrison, his heirs, executors, administrators, and successors, did and should well and truly pay, or cause to be paid, to the plaintiffs below, or either of them, their, or either of their, executors, administrators, and successors, all such sum and sums of money (if any) in the nature of a penalty or otherwise, which should become payable by Morrison, his heirs, executors, administrators, or successors, under or by virtue of the said deed or instrument of submission, by reason of the breach, non-observance, or non-performance of any decreet or decreets arbitral in the premises, interim or final, partial or total, to be given forth and pronounced by the said arbiters, or their umpire or overstrain, by virtue of the said deed of submission; and also, if Morrison, his heirs, executors, administrators, and successors, did and should, in all things, well and truly stand to, obey, and abide by, observe, perform, fulfil, and keep, as well all and singular the interim orders, decreets, and certifications, as also the final award, order, arbitrament, sentence, decreet arbitral, final end, and determination, to be given forth, pronounced, and made, by the said arbiters, or [13] by the umpirage of their umpire or oversman, under or by virtue of the said deed of submission ; then the obligation was to be void, otherwise, to be and remain in full force and virtue. The defendant then pleaded non est factum. The defendant below, in his second plea, set out the deed of submission at large, iby which, iamongst other things, it appeared that the parties thereto had bound : themselves respectively, their heirs, executors, and successors, under a penalty to perform and fulfil whatever the said arbiters or oversman should give forth and pronounce as their deereet or decreets arbitral in the premises, interim or final, partial or total, to be given forth and pronounced by them, aneut the matters submitted to their consideration, betwixt the and the day of next to come, or any other day to which the submission might be prorogated : " declaring always, as it was thereby expressly provided and declared, that the said submission should not vacate or expire through the decease or insolvency of either of the parties, but should, notwithstanding of such an event, be proceeded in, and the matters at issue determined, in the same manner as if such an event had not occurred ;" and,-as to all of the said condition of the said writing obligatory, except the part thereof which related to the performing, &c. of the final award, &c. pleaded- that Morrison, in his life-time, and his heirs, executors, administrators, and successors, since his death, did well and truly observe, perform, fulfil, and keep, all and every : the covenants, clauses, provisoes, declarations, consents, and agreements whatsoever, specified and contained in the said deed or instrument of submission, which, oij their parts and hehalves, were or ought to he observed, &c. and did keep and perform all interim orders, decreets, &c. given forth or pronounced by the arbiters, or their oversman, according to the true intent and meaning of the deed or instrument of submissioa, &c. and, as to the residue of the said condition, that the [14] said arbiters did not give forth or pronounce any final award, order, arbitrament, sentence, decreet, final end, or determination, nor did their umpire or oversman give forth, pronounce, or make any final umpirage, under or by virtue of the deed of submission. The third plea was, for the purposes of the argument, the same as the second. MAODOUGALL V. ROBERTSON 2Y. &J.15. In the fourth plea the defendant pleaded as to all the condition of the bond, except the part excepted in the introduction to the second (a) pica; " that Morrison, in his life-time, and ;his heirs, executors, administrators, and successors, since bis death, did well and truly observe, &c. all and every the covenants, &c. specified and contained in the said deed or instrument of submission, which, on their parts, were and ought to be observed, &c. and that they had performed all interim decreet or decreets arbitral, in the premises, given forth or pronounced...