1832. SMITH V. SAINSBURY. May 31. The Court re fused to set aside an award, on the JONES Serjt. had obtained a rule nisi to set aside the award of a barrister in this cause, on the ground that subsequently to the award, which was in favour of the Defendant, it was discovered that the Defendant ground that had been sentenced to transportation for a felony, and had returned before his time was expired. Both parties had, by consent, been examined before the arbitrator, and Jones averred that the Plaintiff's counsel would not have consented to a reference on such terms if he had known of the Defendant's conviction. the parties had been examined by consent, and that subsequently to the award the Plaintiff had discovered that the Defendant was a felon convict. It appeared, however, that the judgment of the arbitra tor was formed Wilde Serjt. shewed cause on affidavits, by which it appeared that the Defendant had returned after a free pardon from the governor of New South Wales; and that the arbitrator had formed his judgment altogether independently independently of the Defendant's testimony. Wilde of the Decontended, that the Defendant's competency was restored fendant's tesby the operation of 30 G. 3. c. 47. and 8 & 9 G. 4. c. 83. That after decision, objections to testimony were too late; and that, at all events, the objection here was immaterial, the arbitrator having formed his conclusion independently of the testimony of the Defendant. Jones. The objection is, that the Plaintiff would never have consented to a reference had he been aware of the Defendant's conviction. TINDAL C. J. If the testimony of the Defendant had been the evidence on which the arbitrator proceeded, it might have been, —I do not say it would have been, a ground for entertaining this motion; but, upon the affidavits timony. 1832. SMITH V. affidavits it appears explicitly, that the judgment of the arbitrator was wholly independent of the Defendant's testimony. Before a jury it is very important to exSAINSBURY. clude all testimony which is not properly admissible; because a jury is not conversant with the details of evidence, or capable of discriminating very accurately between that which ought, and that which ought not to prevail on their judgment: but, an arbitrator practised in the law, has no difficulty in excluding from his judg ment, statements which ought to be without effect; and as the affidavits leave no doubt that, in this case, the arbitrator abstained from giving any effect to the Defendant's testimony, the rule must be discharged. The rest of the Court concurred, and the rule was therefore Discharged. May 31. A bond conditioned for the assessment of and arbitration on the damages occasioned by the obligor's working a DEBT STEPHENS V. Lowe. Same v. STRICK. on an arbitration bond, dated the 30th of November 1830, the condition of which was, that the Defendants should "perform, fulfil, and keep the award, order, arbitrament, final end and determination of Joseph Malachy therein described, named, selected, and chosen, as well by and on the part and behalf of the Defendant and the said Joseph Strick, as of the Plaintiff, to arbitrate, award, judge, and determine, as well the amount of damages already or hereafter to be sustained and not merely by the Plaintiff, her heirs, executors, administrators, or directory, as mine, every two months, Held to be imperative, to the periods of arbitration. assigns, assigns, for or by reason of certain adits, levels, watercourses, engines, and other erections, then already or to be thereafter cut, made, and raised in, through, upon, and within the limits of a certain set or license for mining in and through a certain tenement of her, the Plaintiff, situate and being in the parish of Calstock therein mentioned; so that the said J. Malachy did make his award in writing as to all such damages therein mentioned, and compensation to be afterwards made, on or before the 20th day of December then next: and as to all damages to be thereafter sustained and compensation to be thenceforth made, at the expiration of every two months from the said 20th day of December.” Averment, that Malachy, at the end of the second two months, from the 20th of December 1830, to wit, on the 13th of July 1830, made an award touching the pre-mises, and ordered the Defendant to pay the Plaintiff 241. for damage occasioned by working the mine. Breach, non-payment. There was also a count for money due on an award, and on an account stated. Pleas, non est factum; nil debet; that Malachy did not make his award at the expiration of the second two months from the 20th of December 1830; that he did not make any award; or not till after an unreasonable time. At the trial before Tindal C. J., Middlesex sittings after Hilary term, it appeared that the Defendants, in this and the other action, were, sometime previous and up to the entering into the submission for the award in question, jointly interested in a mine, in the working of which they had committed, and would continue to commit damages to the Plaintiffs' property. In order to ascertain the damages resulting therefrom, the Defendants, by their joint and several bond to the Plaintiff of the 30th of November 1830, submitted those damages to arbitration, with the condition that the arbitrator should make successive awards at the expiration of every two VOL. IX. months D 1832. STEPHENS ข. Lowe. 1832. STEPHENS บ. LOWE. months from the 20th of December 1830. The arbitrator made his first award within the time; but the second award, upon which the Plaintiff sought to recover, was not made until the 13th of July 1831, instead of the 20th of April in that year, and, consequently, not within the time limited by the bond. It also included damages incurred subsequently to the 20th of April. The delay was occasioned by the request of the Defendants, who objected to the expenses attending such frequent awards as would take place, if the bond were strictly complied with by making them at the end of every two months. Both the Plaintiffs' attorney, the Defendant Strick, and Mrs. Lowe's agent, attended the arbitrator during the making of the award, survey, and assessment, in question. On the arbitration bond they signed a document, which was as follows: "Wheal Williams Mine, April 26th, 1830. The parties within named, by themselves or their agents, have met this day by consent, on the second assessment or award. J. Malachy, Arbitrator. Jas. Husband, for Mrs. Stephens. J. Vivian, Jos. Strick, for Mrs. Lowe and Mr. Strick." This memorandum was not stamped. On the part of the Defendant it was objected, that the award was not made within the time prescribed by the condition of the bond, and that the memorandum being unstamped, could not assist the Plaintiff; whereupon she was nonsuited, with leave to move to enter a verdict for 241. A rule nisi having been obtained accordingly, Wilde Serjt. shewed cause, urging the objection relied on at the trial. Jones Jones Serjt. in support of the rule. The award pursues the submission, which is only directory, not imperative, as to the period of two months: that period is obviously named to spare the Plaintiff the inconvenience of more frequent arbitrations; and it would have been impossible to examine the evidence and make the award at the precise moment when each two months expired. At all events after attending the arbitrator, the parties are estopped to make the objection. Lawrence v. Hodgson (a), Matson v. Trower (b), Wharton v. King (c), Leggett v. Finlay. (d) And the memorandum does not require a stamp, for it is not an agreement constituting a new submission, but a mere attestation of the fact of attendance. TINDAL C.J. The first question is, whether this award can be sustained under the terms of the submission bond. The condition of the bond is, that the parties shall abide by the award of the arbitrator on the premises, so that the arbitrator make his award as to all damages to be thereafter sustained, and compensation to be thenceforth made, at the expiration of every two months from the 20th of December. It has been urged that this condition is merely directory, and being for the benefit of the Plaintiff, he is at liberty to waive it but it is equally a condition for the benefit of the Defendants, for it was important to them that the periodical assessment of damages should be made as soon as possible after the alleged injury, in order that they might be secure of evidence to shew the real state of the facts: and as to the supposed difficulty of making the award at the precise moment each two months should expire, in this as in other cases a reason (a) 1 Young & Jer. 16. D 2 (c) 2 M. & M. 96. able 1832. STEPHENS V. Lowe. |