James M'Cabe, in Error v Patrick Grey

• Jurisdiction: Ireland
• Judgment Date: 23 May 1849
• Date: 23 May 1849
• Court: Court of Exchequer Chamber (Ireland)

Exch. Cham.

JAMES M'CABE, in Error

and

PATRICK GREY.

Malcolm v. FullartonENR 2 T. R. 645.

Fisher v. PimbleyENR 11 East, 188.

Kent v. ElstobENR 3 East, 13.

King v. BowenENR 8 M. & W. 625.

George v. LousleyENR 8 East, 13.

Randall v. RandallENR 7 East, 80.

Angus v. RedfordENR 11 M. & W. 69.

Crosbie v. Holmes 3 D. & L. 566.

Still v. HalfordENR 4 Camp. 19.

Vines v. Corporation of Reading 1 Y. & Jer. 4.

Carr v. HincliffENR 4 B. & C. 547.

Simmonds v. SwaineENR 1 Taunt. 553.

Hawkins v. ColcloughENR 1 Burr. 275.

Hartnell v. HillENR Forrest, 79.

Wood v. Griffith 1 Swanst. 52.

Wynne v. EdwardsENR 12 M. & W. 708.

Toll v. DavisonENR 1 Vent. 184.

Ingram v. MilnesENR 8 East, 445.

Ingrave v. WebbENR Palmer, 107.

Webb v. IngramENR Cro Jac. 663.

Roberts v. MarriettENR 2 Saund. 190.

Hill v. ThornENR 2 Mod. 309.

Cargey v. AitchesonUNK 3 D. & Ry. 433, affirmed in 9 Moor. 381.

Lingood v. EadeENR 2 Atk. 501.

Marsden v. Cox Cowp. 127.

Hobson v. Stewart 1 Com. B. 128.

Howett v. Clements 4 D. & L. 591.

Jackson v. YabsleyENR 5 B. & Al. 848.

Fisher v. Graham S. & B. 229.

Cargey v. AitchesonHRC 3 D. & R. 439.

CASES AT LAW. 343 T. T. 1849. Exch. Cham. ertbequer ebamber. JAMES M'CABE, in Error v. PATRICK GREY.* (Error from the Court of Exchequer.) May 8, 23. Assumrsn, on an award. The declaration contained six counts. Where by a submission it The first count recited that the plaintiff had on the 14th of October was consented that all mat-1843 filed a bill in the Court of Chancery against the defendant, ters in issue in a Chancery stating that the plaintiff, in September 1837, had entered into a cause were re ferred to arbiÂÂpartnership with the defendant as general corn-merchant, upon the trators to decide, and terms of an equal division of the profits ; that this partnership con- that the costs of the suit tinned until August 1840 ; and that the partnership having been should follow dissolved, an account was stated and settled between them on foot the award of the arbitrators, thereof, by which a large balance appeared due thereon to the and that the costs of the plaintiff; and that in liquidation of said balance the plaintiff made arbitration and award purchases from time to time from the defendant of corn, and other should be with in the discreÂÂarticles sold by the defendant on his sole account ; and that the tion of the arbitrators, defendant demanded payment for said purchases so made after the and that this consent should dissolution of the partnership, instead of deducting the same from be made a rule of Court ; the or setting it off against the balance; and that the defendant threatened award recited that all mat- to proceed against the plaintiff at law for the recovery of the price ters in dispute between the of said goods ; and the bill prayed an account of said several dealings parties were referred to the arbitrators, and found that the defendant was indebted to the plaintiff in the sum of 1166, and awarded that he should pay that sum ; and that each party should bear his own costs of the arbitration, and that the award should be turned into a decree of the Court of Chancery :-Held, that the misrecital in the award of the submission would not vitiate the award unless matters were included in the award not in issue. Held also, it lay upon the party objecting to the award to show that the arbitraÂÂtors had exceeded their authority. Held also, that the direction in the award, that it should be made a decree of the Court of Chancery did not vitiate it. Held, that the award could not be objected to for want of finality in not dispos. ing of the equity suit, such not being within the scope of the arbitrators' duty. * LEFROY, B., and MOORE, T., 344 CASES AT LAW. T. T. 1849. and partnership transactions, and that the defendant might be Exch. Chain. decreed to pay the plaintiff such balance as might be due on foot M4CABE of such general account, the plaintiff thereby offering to pay the v. GREY. defendant any balance that might appear on foot of such accounts to be due by him ; and that the defendant might be restrained from taking proceedings at law upon any of said accounts. This count further recited that the defendant filed his answer on the 20th of December 1843 ; and that for putting an end to the said differÂÂences, the plaintiff and defendant, on the 27th February 1844, agreed with each other that all matters in issue in said last menÂÂtioned suit should be referred to two arbitrators (naming them), with liberty to call in an umpire ; and that the costs of said suit should follow the award of such arbitrators and umpire, or any two of them ; and that the costs of such arbitration and award should be in the discretion of such arbitrators and umpire, or any two of them, and that such award should be made in or before Easter Term 1844. It further recited that the time for making the award was extended to the 11th of May 1844 by consent, and also that this agreement should be made a rule of the Court of Chancery. The count then averred mutual promises to perform and fulfil the award ; that the arbitrators undertook the arbitration and elected an umpire pursuÂÂant to the powers so vested in them, and with the umpire met, and investigated the several accounts and matters in dispute aforeÂÂsaid between the parties, and on the 11th of May 1844 made their award in writing of and concerning the several accounts and matters in dispute, and did thereby award that the defendant should pay the plaintiff the sum of 160. 2s. 8d., as the balance due to the plaintiff on foot of all the aforesaid accounts ; and also did award that each of the said parties should pay half the costs of the arbitration. Breach, non-payment of the said sum. The second count, after stating the filing of the bill in the Court of Chancery, that defendant answered same (adding that in his answer the defendant denied the existence of the partnership), the submission to arbitration, the mutual promises to perform the award, and that the arbitrators and umpire had met and made their award, as in first count mentioned, averred that the arbitrators and CASES AT LAW. 345 umpire found that the plaintiff and defendant were partners in trade T. T. 1849. xch . Chant. as corn-merchants from September 1837 to August 1840 ; and that E after allowing the defendant credit for all proper and fair deductions M'CABE v. on foot of said partnership accounts, and for all payments made by GREY. him in cash, and goods sold and delivered by him subsequent to the dissolution of the partnership, to the plaintiff, that there was due and owing by the defendant to the plaintiff on foot of all accounts, meaning thereby all said accounts in this count mentioned, whether partnership or otherwise, the sum of 166. 2s. 8d. ; and that they did further award the said defendant to pay the plaintiff 166. 2s. 8d. as the balance due him on foot of all last mentioned accounts ; and also did award that each of the said parties should bear his own costs of the arbitration. Breach, non-payment of said sum. The third count, after stating the filing of the bill by the plaintiff, the prayer thereof; and the answer thereto, further recited that on the 2nd of November 1843 the defendant had commenced an action of assumpsit against the plaintiff to recover 251. 12s. 10d., for Goods sold and delivered ; and that to the declaration filed in said action the plaintiff filed two pleas, the general issue, and a plea of set-off; and that to said action a sinaiter and replication was added and issue was joined thereon. It then recited the reference to arbitration-the submission, that the award of the arbitrators should be final both as to the action and Chancery suit ; that the costs of the said action and of the Chancery suit should follow the award of the arbitrators ; that the costs of the arbitration and award should be left to the decision of the arbitrators and umpire, or any two of them ; and that it should be competent to the arbitrators and umpire, or any two of them, to direct the mode in which said equity suit should be determined, either by plaintiff dismissing his bill or otherwise, as to such arbitrators and umpire, or any two of them, should seem meet ; and that the arbitrators and umpire, or any two of them, should make such award for such sum (if any) in favour of the plaintiff or defendant, in reference to the subject of said equity suit, as to the said arbitrators or umpire, or any two of them, should seem meet ; and that the award should he made before 44 L 346 CASES AT LAW. Easter Term 1844 ; the attorney for the defendant in said action thereby undertaking, and it having been further agreed between the parties to the reference, that a sum of 251. 12s. 2d. should be lodged by the said defendant in Court within one week, and that in default thereof that judgment for that amount with costs might be forthwith entered ; and that it was further agreed that a consent similar to the agreement should be entered into in the equity suit as to the matters therein depending, and that it should be made a rule of the Court of Chancery, and that the agreement should be made a rule of Nisi Prius. It then stated the lodgment of the money in pursuance of this agreement-that this agreement was made a rule of Nisi Prius-that the time was extended for making the award, and the consent made a rule of the Court of Chancery. It then averred mutual promises to perform the award, and that the arbitrators and umpire did award that the defendant should pay the plaintiff 166. 2s. 2d. as the balance due on foot of all said accounts, meaning the accounts arising in reference to the several matters in this count between the parties ; and also did award that the plainÂÂtiff and defendant should each pay half the costs of said arbitration. Breach, non-payment of the sum of 166. 2s. 2d. The fourth count stated the bill and answer-the proceedings in the action at law-the reference to...