Battey v. Button , 13 Johns. 187 ( 1816 )

Per Curiam.

This cáse comes .before the court on a special

demurrer to the firstdoü-nt in the declaration. It is Unnecessary» however, to notice the special Causes of demurrer, for the count is bad in substance. If .the arbitration nóte, .which the plaintiff had .paid to the defendant, was void, payment of it should have -been resisted, if the defence was, admissible,, and, if not, the declaration,; in this case, should show Why if whs not.. It was* therefore, a material averment, that the note .toas transferred, be-: fore it fell due, so as to show that the defence could not have beén, then set 'up, ágainst íhe note in the hands ,of an innocent' endorsee, to whomit Was 'transférred:^befóre-it fell due. : \ But the, objection.’taken to the validity of the note is not well founded,; to wit, that the award -between •.Bmíío?i and Osborn was- void,because not signed by. all the arbitrators, Thia Was-not necessary. The submission was to two, and, in case they could not agree, they wére to choose a third; person to arbitrate,, in', conjunction with-.them, upon'the premises. The. declaration alleges, that such.third person was chosen.- This mode of subv mission .necessarily .implies, an authority tp two,, to make.an award, ' To- réqqir.e the award to be signed by- all,. Would involve a manifest . absurdity. The ' two Were authorized tp choose' a third, only in case of . their disagreement; and .yet, after they bad disagreed, and chosen a third, all must agree, according to the. argument on the. part ofithe plaintiff., The first count in thp declaration is, therefore^ bad,on this ground, Which strikes at the.'root of the plaintiff’s cause of action. The defendant mus% accordingly, have judgment uppn the demurrer. ■