Page images
PDF
EPUB

1851.

Smith

Hartley.

[ocr errors]

said account, and did not order or direct him to do so;-
that it does not appear from the said award to whom the
defendant was to pay the said balance ;—that the said
first count is uncertain and ambiguous, in this, to wit,
that it does not appear therefrom, nor is it stated thereby,
that, before or at the time of the making of the submis-
sion and award in the said first count mentioned, there
was any account outstanding between the plaintiff and
the defendant, or any debt due or claimed to be due from
the defendant to the plaintiff; and that, for anything that
appears to the contrary on the face of the said first count,
the account therein mentioned may have been an account
outstanding between the defendant and some person
other than the plaintiff, and the said arbitrators, by their
said award, may have requested the defendant to pay the
balance of the said account to such person between whom
and the defendant the same was so outstanding ;—that,
if, in the said first count, the plaintiff intends to set forth
the said award in its terms, the said first count is insuf-
ficient, uncertain, and ambiguous, for not explaining, by
inducement, or otherwise, what account was referred to
by the said award, and if in the said first count the
plaintiff intends to set forth the said award according to
its legal effect, and if the plaintiff intends that the legal
effect of the award is such as to enable him to maintain
an action, and declare thereon as in the said first count
he has done, the said first count is uncertain, insufficient,
and ambiguous, for not stating, that, by the said award,
the said arbitrators ordered or directed the defendant to
pay the balance of the said account to the plaintiff.

The plaintiff joined in demurrer.

Brandt (with whom was Hoggins), in support of the demurrer. The first count is too uncertain as to the nature of the difference between the parties ; it does not shew that it had reference to any account, or to any par

1851.

Smith

v. HARTLEY.

ticular sum. (Cresswell, J. The single matter in difference seems to have been, whether the defendant should take the shares or not.] The plaintiff professes to set out the legal effect of the award : he was bound to set it out correctly. The arbitrators here commence by deciding nothing, and then they go on to request or recommend the defendant to “pay the balance of the account,” not saying to whom, or what is the amount of the balance, and no account having been before referred to. In Comyns's Digest, Arbitrament (A.), it is said, “An arbitrament is the judgment or decree of persons elected by the parties to arbitrate of the things submitted to them : and five things must concur to it,— 1. Matter in controversy,—2. A submission,-3. Parties to the submission, –4. Arbitrators,–5. Giving up the award.” Lock v. Vulliamy (a) is very much in point. There, an arbitrator, to whom a dispute between an architect and his clerk, respecting a claim by the latter to wages, was referred, stated in a letter that he had examined drawings made by the clerk, with an account of his time, which did not shew experience or ability to the extent to justify a demand for remuneration under the circumstances; but, in consideration of the clerk's services out of the office on some occasions, and to meet the case in a liberal manner, he proposed that the architect should

pay

the clerk 101.; and it was held that the latter part of the letter was a mere suggestion of the arbitrator, and not a decided opinion that the clerk was or was not entitled to recover 101., and therefore not a good award.

Humfrey, contrà. It is enough for the plaintiff to shew a state of facts which makes a substantive cause of action. It appears that the plaintiff had bought for the defendant certain railway shares, for which the plaintiff

(a) 5 B. & Ad., 600., 2 N. & M. 336.

1851.

SMITH

v. HARTLEY.

had paid 1221. ; that the defendant paid 501. on account, and then refused to take the shares; that the difference between the parties was referred; and that the arbitrators requested the defendant to pay the balance. The sum awarded is sufficiently certain : id certum est quod certum reddi potest : deduct 501. from 1221., and the balance is 72., the sum awarded. The liability of the defendant to pay that sum, was the only matter in difference between the parties. There is no special demurrer on the ground that the award does not seem to have settled and ascertained the sum due to be 721.

Brandt, in reply. The plaintiff professes to set out the award according to its legal effect, but has not done

An attachment clearly would not be granted for non-performance of such an award as this.

so.

Jervis, C. J. I have entertained some doubt as to the construction of the first count: but I am happy that I have brought my mind to reconcile the form of the count with what is manifestly the justice of the case. There are, in substance, three objections urged here. First, it is said that it does not appear that the arbitrators had authority to award any specific sum,-secondly, that the amount is not ascertained with sufficient certainty,—thirdly, that there is no direction or award to pay the balance, but merely a request.

1. By the rules of pleading, it is not necessary to set out in the declaration the terms of the reference. It is enough to state that there were matters in difference between the parties, and that the reference was of and concerning those matters. It will be presumed that the arbitrators acted within the scope of their authority; and it lies on the defendant to plead it, if they have exceeded their authority.

1851.

Smith

HARTLEY.

3. The introductory averment is, that a certain difference had arisen and was depending between the plaintiff and defendant touching certain railway shares which the plaintiff, at the request of the defendant, had purchased for the defendant, and for which the plaintiff had paid 1221. Primâ facie that must be taken to be a payment, on account of the defendant, of the plaintiff's money. The count then goes on to state that the arbitrators made their award of and concerning the said difference, and did thereby award in favour of the plaintiff, and decided that 50l. which had been deposited by the defendant with the plaintiff was in part payment of the twenty shares, and that the arbitrators, by their said award, did then request the defendant to pay the balance of the account forthwith. I think this is equivalent to a statement that the arbitrators awarded or ordered the defendant to pay the balance, and that the defendant, who has undertaken to perform the award, is liable to the consequences of his disobedience.

2. As to the amount,—the want of precision in this respect is not pointed out by special demurrer. That is certain which by reference to the subject matter may be rendered certain. In the absence, therefore, of a special demurrer, this objection also must fail.

The rest of the court concurring,

Judgment for the plaintiff.

1851.

GEORGE, Earl of CLARENDON, and Others, Ap

pellants,
The Rector, Vestrymen, Churchwardens, and

Overseers of the Poor of the Parish of St.
JAMES, within the Liberty of WESTMINSTER,

Respondents.
May 2.
A society

ON

N the 19th of September, 1850, notice of appeal to called “ The

the next court of Quarter Sessions of the peace London Library was for Middlesex, was given to the rector, vestrymen, established for the purpose of churchwardens, and overseers of the poor of the parish lending books of St. James, within the liberty of Westminster, by to its members, being George, Earl of Clarendon, William, Earl of Devon,

in park breannual and Philip Pusey, Esq., the occupiers, as trustees of subscriptions, the funds and property of a certain society called The and in part by London Library, of the premises No. 12, St. James's contributions Square, in the said parish of St. James, in the city of bers, and pre- Westminster, in the county aforesaid, against a certain cluded by its

rate or assessment made on the 4th of May, 1819, in laws from making any

pursuance of the several statutes in that case made and dividend, gift, provided, by the said rector, vestrymen, churchwardens, bonus in and overseers of the poor of the parish of St. James, money to or between any of whereby the said society was rated, by the name of its members : The London Library,” in respect of the said premises, -Held, that such society,

in the sum of 311. 10s., for the year ending the 5th of being duly

January, 1850: and thereupon, afterwards, by consent certified under the 2nd section of the 6 & 7 Vict. c. 36., was exempted from rates, &c., under s. I.

But, where portions of the premises leased by such society were underlet to other scientific bodies :-Held, that this was not such an exclusive occupation of the premises for the purpose of the society, as to entitle it to the exemption.

Where upon appeal to the quarter sessions under this statute, a case is stated for the opinion of one of the superior courts, under the 12 & 13 Vict. c. 45. s. 11., costs are taxed as between party and party.

« PreviousContinue »