Senior v. Morris , 2 Va. Col. Dec. 120 ( 1753 )

Error to reverse a Judgm’t of the County Court of Caroline in an Action of Debt brought there by the Deft, ag’st the Pit. Senior

The Pit. below declared on a Bond in the Penaly of ^40. The condition of which was to stand to the Award of Fleming & Baber arbitrators provided they shall agree & if they disagree then to the award of an Umpire to be chosen by them

The Deft, craved Oyer & pleaded no Award The Pit. replied that the Arbitrators took upon them the burthen of the Award but disagreeing in several matters they chose one Scott an Umpire And that they & Scott having taken upon them the burthen of the Award they made an Award which is set forth

It is a Masterpiece of Nonsense

The Deft. Demurred Judgm’t for the Pit. & a Writ of Enquiry The Jury gave ¿5.12.8. Dam’s

Judgm’t entered for the Dam’s & not for the penalty of the Bond

On Demurrer Judgm’t ought to have been given for Deft.

Obj. 1. The Award being made by the Arbitrators & Umpire is not according to the Submission or the power given them

The power given to the Arbitrators is to determine if they can agree If not they are to chu.se an Umpire

The Award recites that the Arbitrators could not agree Yet they join in making the Award

Upon their disagreement their power was determined & the Umpire was solely to determine

The Arbitrators & Umpire are different Judges & cannot have a concurrent jurisdiction 1 Sid. 455. Coppin & Hurnard 1 Dam. 540. 2.

There never was an instance of such an award

Arbitrators can’t determine part & Umpire other part unless expressly so provided 1. Ro.'A. ?62. 7. 8. Danv. 542.

[121] Umpire in the common signification denotes a person that is to make an end if others cannot

It is true if a submission be to four & to the Umpirage of J. S. they may all join but it is otherwise if their power is divided 1. Bui. 184. which is in point

Obj. 2. The Award is uncertain

An Award is in the nature of a Judgment & ought to be certain Danv. 543. 1. & Notes ... & ought to be wholly decisive.

Can there be say’d to be certainty in Nonsence Here is nothing actually awarded It is say’d they agree the Gaming to be intirely false Gaming and not anything to be recovered that was supposed to be won by gaming & that the said Senior pay all Costs &c.

Nothing certainly awarded. Not that Suits shall be dismiss’d Nor is it say’d what Costs Senior shall pay It does not put an end to the Controversie No Rel. . to be executed. Ex parte.

An Award to pay Costs of such a Suit generally not good 1. Sal. 75. Otherwise if such as Master shall tax [sic]

But here it is not sayed the Costs of what Suits

Obj. 3. Judgm’t wrong should have been for the penalty &c.

Judgm’t reversed