Chapman v. Champion , 2 Day 101 ( 1805 )

By the Court,

the judgment was reversed,

Austin, Allhn, and Edmond, Anís, dissenting.

The judgment of this Court is founded on that part of the record, which is embraced by the bill of exceptions. In the opinion of this Court, the award was not admissible in evidence, on the trial of the issue under consideration. The award Is res inter alios acta. If fairly made, it may, and ought to conclude the creditors of John Chapman, on the principle that it is their act. It is, however, to be observed, that a part of the award is extra-judicial, and could have no legal effect upon the creditors. The only question submitted, was the amount of the balance clue and owing from John Chapman, at the time of the bankruptcy. The finding of the balance due and owing, on the 24th of June, 1797, was not in pursuance of the submission ; and even if the award was, in other respects, to have been admitted ; such finding was not, in the judgment of this Court, admissible, on the issue under consideration.

The writing declared upon appears to this Court, to be evidence of a direct undertaking, on the part of Jabez Chapman, and, in construction of law, binds him to pay the balance, which was clue and owing from John Chapman, for dealings and transactions prior to the date of the writing. Jabez Chapman was not party or privy to the submission ; nor can the award be said to be his act, either expressly or constructively. Such a construction, with a view to ascertain the extent of his liability, would be at variance with the true intent and meaning of the undertaking.

The award in question could not, in the judgment of this Court, be so construed, as to operate either to estop Jabez Chapman, in his defence against the claim of Epaph-roditus Champion, or to evidence the amount of the balance, which he had assumed to pay.