attachment against the defendant for non-payment of the sum so awarded having been obtained, Campbell insisted that the defendant was entitled to a deduction of £72 9s.; which sum the affidavit of the defendant stated to be the amount of a moiety of the price of the goods invested and the proceeds thereof, for which the plaintiff had never accounted, though the investment had been disposed of by him in Jamaica; * and that the said deduction had not been sub- [* 214] mitted to or made the subject of claim before the arbitrators, nor did it form any part of their award. He relied on Ravee v. Farmer, 4 T. R. 147; 2 R. R. 347, which was decided on the authority of Golightly v. Jellicoe, 4 T. R. 147 n., 2 R. R. 348 n., and vide Seddon v. Tutop, 6 T. R. 610; 3 R. R. 278, where the Court held that an award made upon a reference of all matters in difference did not preclude the party from suing on a subject-matter of difference then subsisting, but not taken into consideration by the arbitrator, and not included in the matters referred. [Lord ELLENBOROUGH, C. J. observed that the latter words formed a distinction very important in that case.] He cited also the Digest, lib. 4, tit. 8, sect. 43. Lord ELLENBOROUGH, C. J. Here is a reference of all matters in difference, and it appears that the subject in respect of which the deduction is now claimed was a matter in difference at the time, and within the scope of the reference: notwithstanding which the defendant contends that he was not obliged to bring forward the whole of his case before the arbitrators, but might keep back a part of it in order afterwards to use it as a set-off. But it was competent to him to have brought the whole under the consideration of the arbitrators; and therefore without deciding against the authority of Golightly v. Jellicoe, or the case cited from the civil law, I think that where all matters in difference are referred, the party as to every matter included within the subject of such reference ought to come forward with the whole of his case. GROSE J., Concurred. * BAYLEY, J. The defendant, in order to entitle himself [* 215] to claim this deduction, should have shown that it was not a matter in difference at the time of the reference, or that the Marryat was to have argued in support of the rule. Rule absolute. No. 17. Smith v. Johnson. Notes. ENGLISH NOTES. Where parties to a contract have expressly referred to an arbitrator what is the true construction of an agreement, the award is conclusive as to the construction, in a subsequent action brought for other breaches of the same contract. Gueret v. Audony (C. A. 17 May, 1893), 62 L. J. Q. B. 633, 637. AMERICAN NOTES. A valid award is conclusive and a bar as to all matters actually submitted. Curley v. Dean, 4 Connecticut, 259; 10 Am. Dec. 140 (citing the principal case); Shackleford v. Purket, 2 A. K. Marshall (Kentucky), 435; 12 Am. Dec. 422; Johnson v. Noble, 13 New Hampshire, 286; 38 Am. Dec. 485; Davis v. Havard, 15 Sergeant & Rawle (Penn.), 165; 16 Am. Dec. 537; Bulkley v. Stewart, 1 Day (Connecticut), 130; 2 Am. Dec. 57, stating that "an award of arbitrators decides the right of the parties as a judgment at law or a decree in chancery." Chapline v. Overseers, 7 Leigh (Virginia), 231; 30 Am. Dec. 504; Ellicott v. Coffin, 106 Massachusetts, 365. Morse (Arb. and Award, p. 492), cites the principal case as authoritatively stating the English doctrine, which he pronounces "intrinsically just," but says a majority of the American cases incline the other way. Some courts make a distinction between matters intentionally and those unintentionally omitted, allowing a subsequent action for the latter. Robinson v. Morse, 26 Vermont, 392; and so intimated in Warfield v. Holbrook, 20 Pickering (Mass.), 531, 534. Among the cases holding that the award is not a bar as to matters included in the submission, but not actually submitted, are King v. Savory, 8 Cushing (Mass.), 312; Hopson v. Doolittle, 13 Connecticut, 236; Mt. Desert v. Tremont, 75 Maine, 252; Whittemore v. Whittemore, 2 New Hampshire, 26; Hewitt v. Furman, 16 Sergeant & Rawle (Penn.), 135; Lee v. Dolan, 39 New Jersey Equity, 193 Keaton v. Mulligan, 43 Georgia, 308; Briggs v. Brewster, 23 Vermont, 100. "The adjudications of the courts on this subject are conflicting. In the States of Maine, New Hampshire, Massachusetts, and probably in Kentucky, the award is merely conclusive of the matters actually laid before the arbitrators. Hence in each of these States it is competent to show, by parol or other competent evidence, that the particular demand sought to be barred was not the subject of consideration by them. Whittemore v. Whittemore, 2 N. H. 24; Bixby v. Whiting, 5 Greenl. 192; Webster v. Lee, 5 Mass. 334; Hodges v. Hodges, 9 id. 320; Smith v. Whiting, 11 id. 445; Engleman's Executors v. Engleman, 1 Dana, 437. In New York it has been held that an award upon a submission of all demands is conclusive of everything constituting a demand on either side existing at the time of the submission, and evidence to show that any particular demand was not before the arbitrators, nor passed upon by them, was inadmissible. Wheeler v. Van Houten, 12 Johns. 311; De Long v. Stanton, 9 id. 38; Sellick v. Addams, 15 id. 197. The rule on this subject in England corresponds with the decision in New York. Smith v. No. 17. Smith v. Johnson. Notes. Johnson, 15 East, 213, 13 R. R. 449. It would be unjust in this instance, if not dangerous as a precedent, to allow the defendant, on a submission which clearly embraced the whole partnership property, and which was intended to settle everything between the parties connected with the partnership, to insist that a part of that very property was not embraced by the award, and that too after the terms of the award were fully complied with by the other party to it. The object of the submission was to avoid litigation; such a precedent would encourage it." Gardener v. Oden, 24 Mississippi, 382. To the same effect, Stipp v. Washington Hall Co., 5 Blackford (Indiana), 473, citing the principal case and the New York cases. And so in McJimsey v. Traverse, 1 Stewart (Alabama), 244; 18 Am. Dec. 43, in which, as well as in Wheeler v. Van Houten, supra, the claim in question had been omitted before the arbitrators through forgetfulness. This doctrine is also declared in Ott v. Schroepel, 5 New York, 482. The same doctrine seems to be warranted by Bunnelp v. Pinto, 2 Connecticut, 431. The contrary doctrine is thus stated by Chief Justice PARSONS in Webster v. Lee, 5 Massachusetts, 334, a case of submission of "all demands:" But without deciding that an agreement to refer all demands is subject to the same construction as a submission of all matters in difference, it is manifest that an agreement to refer may not be executed, for the arbitrator may take upon himself the trust of arbitrating, or a party where the rule is not ex parte, may refuse to appear before the referees. So a party may execute the agreement but in part, by omitting through accident or mistake to bring a particular demand, not in fact disputed, before the referees. And though when referees report upon all the demands submitted, the presumption is that all existing demands were submitted, yet evidence that a particular demand was not before the referees does not deny the agreement to refer all demands, but only proves the non-execution of that agreement in part. We are therefore satisfied that the testimony of D. that the note was not laid before the referees, nor by them taken into consideration, was properly received and submitted to the jury." In Warfield v. Holbrook, 20 Pickering (Mass.), 531, a pending action was referred to arbitrators under a submission of the plaintiff's claim therein and all claims of the defendant. The plaintiff claimed that they should consider a joint and several note made by him and another, upon which a suit by the defendant was then pending, but the defendant refused to bring it forward, the arbitrators declined to pass upon it, and awarded no recovery to the plaintiff. Held, that if the note was not embraced in the submission the arbitrators could not pass on it, and if it was, the award would bar any action by the defendant on it. Citing the principal case. It has been held that under a submission of all matters "in dispute" an award will not bar an action upon a claim then existing but not then in dispute. Newnan v. Wood, Martin & Yerger (Tennessee), 190. Citing Ravee v. Farmer, 4 T. R. 146, 2 R. R. 347; Golightly v. Jellicoe, 4 T. R. 147, n., 2 R. R. 348, n. Submission of a pending suit to arbitration works a discontinuance. McNulty v. Solley, 95 New York, 244. No. 18. -Pedley v. Goddard, 7 T. R. 73, 74. — Rule. SECTION VI. Setting aside Award. No. 18. PEDLEY v. GODDARD. RULE. THE limit of time for objection imposed by the Statute (9 & 10 W. III. c. 15) which enacted that awards procured by corruption or undue means should be set aside, does not apply to an objection (whether urged against a motion for attachment or by plea in an action for enforcing the award) appearing on the face of the award. Pedley v. Goddard. 7 T. R. 73-79 (s. c. 4 R. R. 382-387). [73] Two rules had been obtained, the one for an attachment against the defendant for not performing an award made the 5th of November, 1795, under arbitration bonds, the submission to which had been made a rule of Court. The other, a cross motion made in last Trinity term to set aside the attachment, on the ground that the award was bad on the face of it, it not being final. The arbitrators awarded that there was due from the defendant to the plaintiff £147 3s. 3d (in case the sum of £25 11s. thereinafter mentioned, was paid to the defendant), over and above the dividends thereinafter set forth; and that the defendant should pay that sum to the plaintiff on or before the 14th of December, 1795. The award then set forth, that doubts had arisen in the minds of the arbitrators whether the sum of £25 11s., for which a bill of exchange, dated in February, 1792, was drawn at the instance of the plaintiff on one A. Carew, payable to the defendant on demand, had ever been paid to the defendant; and also whether any dividends, over and above the sum of £12, had been received by the defendant for the use of the plain[* 74] tiff, in respect of a certain other * bill of exchange for £49 either drawn, accepted, or indorsed by one Elliot. Then the arbitrators awarded that the defendant should, within twentyone days from the date of the award, by an affidavit, declare, on oath, what sum had been received by him or for his use by virtue No. 18. - Pedley v. Goddard, 7 T. R. 74, 75. of the bill so drawn on A. Carew; and if the whole or any part of the sum of £25 11s. has not been paid, they awarded and authorized the defendant to deduct from the £147 3s. 3d. so much of the sum of £25 11s. as should appear by the affidavit not to have been received. And further, in case it should within twenty-one days from the date of the award, be made to appear, by an affidavit to be made by any person whomsoever, that any further dividend or sum over and above the sum of £12 had been paid by any person to the defendant, or for his use in respect of the bill of exchange for £49, then they awarded that the defendant should, on or before the said 14th December, 1795, pay to the plaintiff such further sum, over and above the said £12 as should be so proved to have been received, etc. Holroyd showed cause1 against the rule for issuing the attachment, and argued in support of the rule for setting aside the award. The application for the attachment is grounded on the 9 & 10 W. III. c. 15, which directs that a submission to arbitration may be made a rule of Court, and that for non-performance of the award, the party shall be subject to all the penalties of contemning a rule of Court, with this proviso, that any arbitration procured by corruption or undue means may be set aside, so as complaint be made to the Court before the last day of the next term after such arbitration made and published. This, it is contended, precludes the defendant from making any objection to the award after that period. But the meaning of the act was only to confine the party complaining to move within the time limited to set aside an award for any matter dehors the award; because where the objection arises on extrinsic circumstances, evidence of the facts might be lost if not brought forward recently after the occasion, and therefore it was proper that the time should, in that respect, be limited. But there is no danger of leaving the time unlimited where the objection appears on the face of the award; nor was there any reason why the legislature should in that case put the party to the expense of applying to set it aside. It is clear that if an action were brought on an illegal award, the defendant might object to it on that ground notwithstanding the Act; and if so it would be absurd and inconsistent to sup * pose that the legislature meant that the Court should [* 75] 1 This case was several times before the court; it was first mentioned in the last |