Marsh and Others, Assignees of Rowe, a Bankrupt, against wood and Another
| Jurisdiction | England & Wales |
| Judgment Date | 03 July 1829 |
| Date | 03 July 1829 |
| Court | Court of the King's Bench |
English Reports Citation: 109 E.R. 245
IN THE COURT OF KING'S BENCH.
S. C. 4 Man. & Ry. 504; 7 L. J. K. B. O. S. 327.
9B. & C. 659. MARSH V. WOOD 245 [659] maesh and others, Assignees of Rowe, a Bankrupt, against wood and another. Friday, July 3d, 1829. Covenant by the assignees of A., a bankrupt, on articles of agreement, entered into by A. before his bankruptcy, and the defendants, whereby, after reciting that differences existed between the plaintiff and the defendants respecting certain ships of war purchased by the former, they bound themselves to abide by the award of W. S. Breach, that defendants had revoked their submission. Plea, that before any award was made, A. became bankrupt, and all his interest in the subject matter of the reference was assigned to the provisional assignee. Replication, that the provisional assignee assigned to the plaintiffs. Demurrer and joinder: Held, that as the subject matter of the reference was taken out of the bankrupt, and assigned to the plaintiffs, who would not have been bound by the award, the submission was no longer mutual, and, therefore, was not binding, and the defendants, by giving notice to the arbitrator not to proceed, did not make themselves liable to an action. [S. 0:4 Man. & Ry. 504; 7 L. J. K. B. 0. S. 327.] Covenant. The declaration stated that before Rowe became bankrupt, by an indenture made between the defendants of the one part, and Rowe of the other part, (after reciting, amongst other things, that Rowe alleged that he was entitled to charge the defendants, or one of them, the loss, or some part or share of the loss, which had arisen to him by or in consequence of the purchase of three ships of war, called, &c., in or about the month of November 1814, which the said defendants wholly disputed, and that there were other differences and disputes between the defendants and Rowe respecting the said ships, all which differences and disputes they had agreed to refer to an arbitrator in the said indenture mentioned), in consideration of the premises, the said parties thereto did mutually agree to stand to and abide by the award of W. S. of upon and concerning the said disputes and differences, &c., and that the parties should not, nor would, in any manner obstruct, hinder, or impede the said arbitrator in making an award. Breach, that defendants by deed revoked their said submission. Plea, /first, non est factum; secondly, bankruptcy of Rowe generally before the revocation; thirdly, special plea of Rowe's bankruptcy, and that before any award was made [660] the commissioners assigned to C. Cutten (the provisional assignee) all...
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