Caton v. MacTavish , 10 G. & J. 192 ( 1838 )

Stephen, Judge,

delivered the opinion of the court.

A dispute existing in this case between the appellant and the legal representatives of the late Charles Carroll of Carrollton, concerning a certain sum of money claimed by the appellant from the appellee, as the executrix of Mr. Carroll, upon an award made in favour of the appellant in the life-time of Mr. Carroll, for the purpose of effecting an amicable adjustment of such controversy by arbitration, it was agreed between the parties that a suit should be docketed in Baltimore county court, and the controversy should be referred to arbitrators, who were authorized to act under certain instructions and powers delegated to them, to be found in certain letters of correspondence which passed between Mr. Carroll and the appellant in the life-time of Mr. Carroll. By the terms of submission, it was stipulated between the parties that the award which was the foundation of the appellant’s claim, should be opened, and the subject matter of it examined by the referees, for the purpose of deciding upon the merits and justice of the appellant’s claim, and of awarding what, if any thing, was due to the appellant. The arbitrators in pursuance of the powers vested in them, after an examination of the subject matter submitted to their arbitrament and decision, awarded that in the suit in Baltimore county court, between the appellant and appellee, there was nothing due to the appellant by the appellee, as executrix of Mr. Carroll, and that in said suit, judgment be rendered for the defendant with costs of suit. To this award, exceptions were filed by the appellant in the court below, which being overruled, and judgment rendered for the appellee, conformably to the award; the appellant prayed an appeal from the judgment rendered against him by Baltimore county court; which brings under the revision of this court the legality of the decision of the court below. ■ A question of jurisdiction has been raised in this court, whieh does not appear from the record to have been brought to the notice of the court below. It is that the subject matter in controversy was not properly cognizable by a court of common law, but more appror priately belonged to the cognizance of a court of equity, where all the parties interested might have been brought before the court, and the agreement to refer, made a rule of that court. To this objection to the validity of the judgment of the court below, we cannot accede. If the grounds and elements of the award, upon which the elaim of the appellant was founded, were matters of account, more appropriately belonging to a court of equitable jurisdiction, as being more competent than a court of law, to administer full and complete justice between all the parties in interest, or who might be ultimately affected by the decision, still we do not think that under the circumstances of this case, such an objection can be available to oust the jurisdiction of the court below, or render it incompetent to enter judgment upon the award of the referees in this case.

In England it is a familiar practice to refer to arbitration, not only all matters in controversy in the cause pending between the parties, but all matters in dispute between the parties to the cause, whether involved in the suit, or extraneously existing upon other grounds; and in such case, it is not unusual for the plaintiff to take a verdict by consent for security; and if the award be made in his favour, he may at his election, either enter up judgment on the verdict, and take out execution for the sum awarded, if that does not exceed the sum for which the verdict was taken, or he may proceed by attachment. Kyd on Awards, 314. 5 East. 139. The arbitrator in such a case, has a limited jurisdiction within the amount of the verdict, and cannot exceed it.

In the case now before the court, the declaration in the court below upon its face, presented matter properly cognizable in a court of law, and it was not essential to the support of its jurisdiction, that the matters in controversy which were submitted to the arbitrators, should be proper subjects for the cognizance of a court of common law. The legality of such a reference, and the competency of the court to enforce an award, made in pursuance of it, has already been decided by this court, in a cause in which not only the subject matter of the suit below, but all matters in dispute between the parties, embracing matters of equitable cognizance, were submitted to the decision of arbitrators, and their award was enforced by a judgment from which an appeal was taken to this court, and the same was here affirmed.

As heretofore remarked, it appears to be the practice of the English courts, not only to sanction references of the cause pending, but of all matters in dispute between the parties, and to enforce the award, sometimes by verdict, and at other times by attachment for contempt: and since the passage of the statute of William, it has been decided, that an agreement to refer a bill depending in chancery may, under that statute, be made a rule of a court of law. For this principle, see 14 Vezey, 264. In that case there were two bills depending in chancery, and the reference, which was a general one, of all matters in dispute, was made an order of the court of king’s bench. Where the award is for the payment of money, no difficulty can arise in the execution of it by a court of common law jurisdiction. The judgment is entered upon the award, and execution issues upon it in the same manner as upon a judgment on verdict, or by confession; if it be of any other matter, as a conveyance or deed to be executed by one of the parties to the other, it may be enforced by attachment, and in such case the award is executed, though not by the same kind of process. The agreement to refer, being made a rule of court, the failure or refusal to perform the award, would be a contempt of court, for which we think the process of attachment might properly issue. Such seems to be the practice in Pennsylvania, where they have a statute in some of its features strikingly analogous to our own. That statute provides that where the plaintiff and defendant consent to a rule of court, for referring the adjustment of their accounts to certain persons mutually chosen by them in open court — the award or report of such referees, being made according to the submission of the parties, and approved by the court, and entered upon the record or roll, shall have the same effect, and be as available in law, as a verdict by twelve men. Our act of 1778, ch. 20, provides for the reference of any cause pending in court, by rule of court, with the consent and agreement of the parties thereto, and authorizes the court to give judgment upon the award of the referees,, and to award execution thereon in the same manner as upon verdict, confession, or non-suit, and declares that such judgment shall have the same effect to every intent and purpose, as any judgment upon verdict or confession would have. In both cases the reference is made under a rule of court, and the award is to have.the same effect as the verdict of a jury.

In 1 Dallas, 365, President Shippen says, where a report of referees awards money to be paid on one side, and certain other things to be done on the other, if the court cannot enforce both, they will certainly enforce neither. In the present case the question will be, whether they can oblige the plaintiff to perform his part of the award. They certainly cannot do it by execution, but if they can do it by attachment, the remedies are mutual, though not by the same kind of process. The report of the referees in that case was then confirmed; and he declares in another part of his opinion, “ in all cases of this kind, the court will exercise their equitable powers in such a manner, as not to suffer either party to elude the performance of their part of the award.”

Under this view of the case, we think that the objection to the competency and jurisdiction of the court, raised by the counsel for the appellant, has not been sustained. The court below had, we think, ample jurisdiction to enforce the performance of the award of the referees, although it involved the consideration and decision of matters which might properly belong to the cognizance of a court of equity. Causes instituted in a court of equity, are not unfrequently referred to the decision of such a domestic forum, as perfectly competent to decide upon the relative claims of the parties there litigating; and we can perceive no objection to it in the present instance. Such a tribunal is absolved from the obligation of technical rules, and perfectly competent to decide upon the merits of the case according to the principles of equity and justice. When their decision is made, and the rights of the parties are fully adjusted, we can perceive nothing improper in the execution of it by a court of common law jurisdiction.

The question of jurisdiction being disposed of, we will briefly advert to the exceptions filed to the award. The first and second of those exceptions, impeach the award upon the ground that the arbitrators have, transcended the limits of their authority, in awarding upon subjects not embraced by the submission. It is we think a sufficient answer to these exceptions to say, that the validity of this award is not affected by them. It cannot be controverted that the referees were acting strictly within the pale of their powers, in awarding upon the claim of the appellant upon his award, because the subject matter of it, in the express terms of the submission, was referred to their decision; and the principle is well settled, both in England and in this State, that where the matters awarded are independent and distinct from each other, those which are within the submission are good, and are not vitiated or contaminated by those which are without it. 6 H. & John. Rep. 10. 11 Law Library, 71. An award may be bad in part, and good in part, if the void part of the award is not of matter necessary to be decided, so as to render it final according to the terms of the submission, or be not the consideration or recompense of the thing awarded to be done on the other side. These exceptions to the validity of the award, upon the ground of an excess of authority by the arbitrators, in awarding that nothing was due to the appellant in that suit, were, we think, therefore, properly overruled by the court below.

The third exception we also think cannot be supported, but was properly overruled by the court below. Courts of justice in their latest decisions, have manifested a disposition to treat awards with more liberality than formerly. Every thing is to be intended in favour of an award. 11 Law Library, 63. Every fair and reasonable intendment will be made to support them, and such a construction given to them, that they may stand if possible. Rid, 53. Where it is also said, “ it is now quite clear, that the court will intend that all matters have been decided by the arbitrator, unless the contrary appears, and in like manner it will be intended that he has not exceeded his authority.” Unless therefore it plainly appears, that there were other matters in controversy in the suit, than the award of the appellant, it will be intended in support of the award of the referees, that they have not exceeded the limits of their authority, in deciding that there was nothing due to the appellant, and it will be intended that, in coming to that conclusion, they had not departed from the limits of their power, or the subject matter of the reference, by taking into their consideration any other claim of the appellant, than that founded upon his award. We think further, that the arbitrators were not bound to have stated in detail the grounds upon which they came to the conclusion, that nothing was due to the appellant. It was not their duty to perform the office of auditor or master in chancery, and report facts for the decision of the court; but to state the result of their examination, which according to the express terms of the submission, was to be final. Kyd on Awards, 345; where the distinction is taken between the duty of a master and that of an arbitrator, the latter is instituted judge of the facts without appeal; the former is only a minister to prepare something for the court, which is really the judge; and when by agreement of the parties, the award of the referees is to be final, their power seems to be more of a judicial than a ministerial character. But in coming to this conclusion, we do not mean to decide whether or not the arbitrators in any part of their award have exceeded their authority.

JUDGMENT AFFIRMED.