Rigden v. Martin , 6 H. & J. 403 ( 1824 )

Martin, J.

delivered the opinion of the court. A bill was filed on the equity side of Baltimore county court, by John Marlin against John E. Bigden, on a contract enter» ed into between them, and others, who had associated themselves together to build certain houses in the city of Baltimore. After testimony had been taken under a commission returned to the court, upon the application of the parties, all matters in dispute in the cause depending were referred, by order of court, to James W, Collins and Joseph Jamison, and if they should disagree, to choose a third person; and an award made by them, or any two of them, in writing, should be final between the parties. The arbitrators returned to the court an award in the following words: (He here stated the award.) A motion was made to set aside this award; and two objections are made to the validity of it. 1 st. It does not appear notice was given to the parties of the time the'arbitrators were to meet. 2d. It does not appear that the original referees disagreed, before a third person was appointed, or that he acted only after such disagreement.

The-awaril is in genera! terms; it sets-out neither the submission, notice, or any disagreement. It states them to be referees, and the appointment of Robert C. Long, as a third person, &c. and it is signed by all three.

It has not been contended, that it is necessary to state, those facts in the award, but that they must be proved, and unless proved, the award will not be enforced by the court

That the' parties ought to have notice of the time ot meeting, is a position so strongly supported by common justice, that it would seem not to require the aid of authorities. Every man ought to have an opportunity afforded him to-be heard in defence of his rights; and it is with surprise we find in one case, Lord Hardwiche is made to say, notice is not necessary. 3 Atk. 529. This opinion, however, is overruled by many authorities. In Kyd on Awards, 95, it is. stated, “when the person to whom, the parties have, agreed to refer the matters' in dispute, has consented to, undertake, the office, he ought to, appoint a time and place, for examining the matter, and give notice-oí such appointment to, the parties, or their attornies.” So in 96 — “The. arbitrators may adjoujrn from time to time, giving notice,. as at first, of the time and place of every subsequent meeting.” And in 101 — “If an, umpire is chosen, he must also give notice to the parties of the,time and place of meeting. See also Caldwell on Arbitration, 45. Falconer vs. Montgomery, et al. 4 Dallas, 232.

It is equally cle^r, the original -referees may choose the. third person before they disagree, and this course is recommended by sonj.e of the. judges. Kyd, 87. Caldwell, 40. Roe vs. Doe, 2 Term Rep. 644, 645. Harding vs. Watts, 15 East, 556.

Whether Long acted before or after the disagreement of Collins and Jamison, is unimportant in this case. Had the award been signed by Long, and, only one of the original referees, it vyould then have been necessary to consider that question; here it was signed by al! three of them. The submission did not authorise an umpire to be appointed; for an umpire, technically speaking, whqn he hikes charge of the case', takes it exclusively to himself, and; divests the original arbitrators of all power to proceed in it, and the award is to be made by him alone. 3 Blk. Com. 15. The submission in this case is different. If Collins and Jamison, could not agree, they were to choose third person. Their power to proceed did not ceasé upon this; appointment; but they were to go on conjointly with him, and the award of all three, or any two of theni; was to be binding on the parties.

If they disagreed, before Long acted, there can be lid doubt the award was good, because it was strictly within 'the terms of the submission. If they had hot disagreed, It would be the award of the two original referees. Being signed by Long would be surplusage, and would not vitiate it. Caldwell, 42. Soulsby vs. Hodgson, (S.C.) 3 Burr. 1474. 1 Wm. Bl. Rep. 463. 4 Taunt. 232. 2 John. Ch. Rep. 353. These authorities establish the position, that “where arbitrators, having chosen an umpire, afterwards join with him in making the award, this does not vitiate it; since iii law it is the award of the thnpire only, who may take what advice, opinion or assessors, he will” — and e converso, the umpire signing the award, does not vitiate it; It would, be the award of the original referees, Who might take what advice, opinion or assessors, they choose.

The consideration of those questions, however, is not: necessary iii deciding the case now before us, because the' defendant did not pursue the course below, to bring them property before that conrt. The award is silent, both as to notice and the disagreement of the referees, and of course these objections do tíol appear on the face of it. If they can be established, it must be by testimony de horS the award, and in that case, aii application to set it aside, must be founded on affidavit. Caldwell, 177, 178. Tidd’s Prac. 762, 835. Dick vs. Milligan, 2 Ves. jun. 28. in this last case, it is said, “if you proceed upon any thing arising on the face of the award, compared with the proceedings in the cause, by which it appears there is some» thing in the award which ought not to be there, or something omitted which ought to be in it, that is proper matter' for exception. Any thing de hors the award must come upon affidavit. This doctrine is confirmed by a decision of this court at June term 1823, in the case of Cromwell vs. Owings, (ante 12, 13.) No affidavit appears in the record, and the motion was not properly before the court.

There is nothing in the objection, that the decree was passed without setting the cause down for hearing. The court state the cause then stood ready for hearing, and we will presume all pre-requisites were complied with.

DECREE AFFIRMED.