[Ridgeway's Administrator v. Waugh.] tance into a house, obtained under pretence of having a search- Ridgeway's Administrator v. Waugh. Action for Unlawful Detainer of Lands. 1. Abatement and revivor of action. - An action of unlawful detainer is within the statute authorizing the revivor of "real actions to try the title, or for the recovery of the possession of lands" (Rev. Code, § 2556); and on the death of the defendant, pending the action, it may be revived against his personal representative. 2. Error without injury, in sustaining demurrer to special plea. - The sustaining of a demurrer to a special plea, if erroneous, is error without injury, when the record shows that the defendant had, under the plea of the general issue, the full benefit of all the facts which would have been admissible under the special plea. APPEAL from the Circuit Court of Dallas. Tried before the Hon. M. J. SAFFOLD. This action was brought by Samuel C. Waugh, against William M. Ridgeway, to recover the possession of a town lot in Selma; and was commenced before a justice of the peace, in October, 1861. On appeal to the circuit court, judgment was rendered for the defendant, in May, 1867; but this judgment was reversed on appeal by this court, at its January term, 1868, and the cause was remanded. See the case reported in 42 Ala. 368. On a second trial, after the reversal, judgment was rendered for the plaintiff, under the charge of the court to the jury; but this judgment was again reversed, and the cause remanded, as shown by the report of the case in 48 Ala. 611-14. While the second appeal was pending in this court, the death of the defendant (appellant) was suggested, and the appeal was revived in the name of William J. Bates, as his administrator. After this second reversal, a scire facias having been issued to said Bates, and duly served on him, to show cause why the action should not be revived against him, as the administrator of the deceased defendant, he appeared by his counsel, and, as the bill of exceptions states, "objected to proceeding with the trial, on the ground that the cause had not been, and could not be, revived against him as the administrator of said deceased defendant;" but the court overruled his objection, on proof of his appointment as administrator, and due service of the scire facias on him, and revived the cause against him; to which ruling and judgment he reserved an exception. The defendant then pleaded, "in short by consent," the gen 51 423 95 258 [Ridgeway's Administrator v. Waugh.] eral issue, and also a special plea, averring that his intestate abandoned the possession of the land in 1865, and never afterwards had possession, actual or constructive; and that he, as administrator, had never had the control or possession. The court sustained a demurrer to the special plea, and issue was joined on the other plea. The jury having returned a verdict for the plaintiff, the court thereupon rendered the following judgment: "It is therefore considered by the court, that the plaintiff have and recover of the defendant the premises described in the complaint, and also his costs in this behalf expended; but, it being admitted by the plaintiff, in open court, that the possession of the premises has been restored to him since the commencement of this suit, it is ordered that no writ of restitution issue; and it being suggested by the defendant, and admitted by the plaintiff, that the estate of said deceased defendant has been declared insolvent, it is ordered that the judgment for costs be certified to the probate court for allow From this judgment the defendant now appeals, and here assigns as error: 1st, the order reviving the cause against him; 2d, the sustaining of the demurrer to his special (or second) plea; 3d, the matters shown by the record. JOHN WHITE, for the appellant. BROOKS, HARALSON & ROY, contra. BRICKELL, J.-The material question presented by the record in this case is, whether an action of unlawful detainer can be revived against the personal representative of the defendant, dying during its pendency. We decide the question in the affirmative. An action for an unlawful detainer, or an unlawful entry and detainer, or a forcible entry and detainer, is, under our statutes, a civil proceeding. R. C. §§ 3297-3320. It is an action for the recovery of the possession of lands, not involving the title to the freehold, nor any interest descendible to heirs. A fair construction of the statute, as to the abatement and revivor of actions, embraces this as one of the actions surviving. R. C. § 2556. To hold otherwise, would materially impair the value and efficiency of the remedy, and subject it to delay and suspension by abatements, when the object of the - statute authorizing it is a speedy restoration of the possession to the person from whom it is unlawfully withheld. 2. The appellant obtained, by the judgment rendered, all the benefit to which he was by any possibility entitled under his special plea. This being the case, if the demurrer to that plea [Wolff v. Shelton's Executors.] was improperly sustained, which, however, we do not decide, — it was error without injury. The judgment is affirmed. Wolff v. Shelton's Executors. Bill in Equity to set aside Award, and settle Partnership Accounts. - - A court 1. When equity will set aside award, and settle partnership accounts. of equity will set aside an award for fraud, or for such gross mistakes as amount to fraud, and proceed to settle the accounts of a dissolved partnership, which were submitted to arbitration, when the parties themselves disagree, and the accounts cannot be otherwise adjusted. 2. Conclusiveness of award. An award, whether at common law, or under the statute, is the judgment of a court constituted by the parties themselves, is final and conclusive as to the matters submitted, and can only be impeached for fraud, want of notice (when notice is required), or improper conduct on the part of the arbitrators, which is injurious to the party complaining; and, like the judgments of other courts, all reasonable presumptions are to be made in its favor. 3. Withdrawal of submission. When the arbitration is at common law, a withdrawal of the submission, by either party, dissolves the court, and an award subsequently made is a nullity; but this defence against the award is available at law, and constitutes no ground for a resort to a court of equity. 4. Construction of submission, as to matters submitted. Under a submission to arbitration between a surviving partner and the executors of his deceased copartner, which recites that," although the parties can, without trouble, separate and divide the partnership property on hand, they cannot adjust and settle the books and partnership accounts;" and that they therefore agree to submit to arbitration "the whole matters of the account," - the arbitrator is neither required nor authorized, in stating the accounts, to determine anything as to the capital stock contributed by the respective partners. 5. Payment of individual debts with partnership property. If one partner, being indebted to his copartner, discharges the debt by paying a debt of equal amount due from his copartner to a third person, but makes the payment with money or property belonging to the partnership, he can only claim, on settlement of the partnership accounts, a credit for one half of the amount so paid. APPEAL from the Chancery Court at Mobile. The bill in this case was filed on the 28th December, 1869, 51 425 108 122 51 425 114 371 [Wolff v. Shelton's Executors.] contributed to the capital stock by each partner was estimated in the articles at $13,000. The portion contributed by Wolff consisted of a stock of wines and liquors, then in his store in Mobile, and the fixtures in the store; while that contributed by Shelton consisted of a steam distillery, located about eight miles from the city of Mobile, rectifying apparatus, a grist-mill, and about twenty acres of land, on which these were situated, with the privilege of cutting wood from the adjacent lands; also, seven mules, two wagons, and nearly three hundred hogs. Each partner was to devote his time and attention to the business of the firm, and the profits and losses were to be equally divided between them. On the death of Shelton, a statement of the partnership accounts was made out by their bookkeeper, under the direction of Wolff, which showed that the debts due to the partnership amounted to over $11,000, the debts due by the firm about $9,500, and the stock of liquors, &c., on hand $6,673.53; but no account was taken of the distillery and other property in the country. Not being able to settle the partnership accounts between themselves, the parties entered into a submission to arbitration, on the 17th March, 1869, as follows: "Whereas Dr. S. Wolff and James T. Shelton were for a time, before the death of Shelton, partners, and their partnership is shown by written articles; and now, since the death of Shelton, although his executors and Wolff can, without trouble, separate and divide the partnership property on hand, they cannot adjust and settle the books and partnership accounts; it is therefore agreed between the undersigned, the executors of said Shelton and said Wolff, that the whole matter of the accounts be referred to the arbitrament and award of William B. Taylor; and, to enable him to come to a just conclusion, Dr. Wolff is to furnish him with the books of the firm, the accounts thereof, and all information in his power, and the executors of Shelton may examine the accounts so made out by Taylor, or as they are furnished by the books or accounts rendered by Wolff; and either party may introduce proof to show the true state of the accounts, and to increase the credits and debits of either party; and when all the proof is submitted to said Taylor, and the accounts fully examined by him, he is to determine the state of accounts between the parties; and his award shall bind us, fully and completely, and we bind ourselves to submit to the same. The arbitrator made his award on the 25th day of May, 1869, declaring that, after an examination of all the evidence submitted by the parties, he found Wolff to be indebted to Shelton's executors in the sum of $3,500. The bill alleged that this award was false, fraudulent, and void; that the arbi [Wolff v. Shelton's Executors.] trator was guilty of gross partiality and injustice in his conduct and rulings; that he refused to be bound by the partnership books, which were produced and explained to him by the complainant, and was governed entirely by the defendants' ex parte statements; that he appointed no day for the hearing, and did not examine any witness on oath; and that the complainant, finding that the arbitrator was either corrupt, or grossly ignorant and incompetent, and had prejudged the case, and was determined to bring out a large balance against him, notified him and the defendants' solicitor that he withdrew from the submission, and should refuse to be bound by the award. The defendants filed a joint answer, denying all the charges and allegations of the bill as to mistakes, fraud, partiality, ignorance, or incompetency on the part of the arbitrator; insisting on the validity and conclusiveness of the award, and pleading it as a bar to the relief sought by the bill. On final hearing, on pleadings and proof, the chancellor dismissed the bill; and his decree is now assigned as error. L. GIBBONS, with THOS. H. PRICE, for appellant. - 1. The failure of the arbitrator to pass on and decide all the matters embraced in the submission, is fatal to the award. Watson on Arbitration and Award, 278; Morse on Arbitration and Award, 345, where the following cases are cited: Ott v. Schraeppel, 1 Selden, 482; Wright v. Wright, 5 Cowen, 197; McNear v. Bailey, 18 Maine, 251; Richards v. Drinker, 1 Halst. 307; Harker v. Haugh, 2 Halst. 428; Carnochan v. Christie, 11 Wheat. 446; Varney v. Brewster, 14 N. H. 49; Stone v. Phillips, 4 Bing. N. C. 37; Mitchell v. Staveley, 16 East, 58. The arbitrator himself states, in his deposition, "I had nothing to do with the stock; it had all been settled and agreed between the parties themselves." Until this fact was stated by the arbitrator, it was impossible to guess at the grounds on which his award was based; and it is evident from the articles of submission that, in this particular, he entirely misconstrued them. There was no dispute between the parties as to the partnership property on hand, the property remaining in kind; but, as to the property which had been destroyed, deteriorated, wasted, or used in the partnership business, that was the chief point in controversy. The property contributed to the capital stock by Shelton remained in specie, and but little deteriorated; while the stock of liquors contributed by Wolff had been sold, or otherwise disposed of in the business. It was impossible to settle the partnership accounts, without first ascertaining the condition of the capital stock; for, otherwise, it could not be told whether the partnership had resulted in profit or loss. |