4 Blackf. 253 | Ind. | 1837
This was an action of debt brought by Tyner, administrator of Hays, against Dickerson. The declaration contains four counts. The first count, which is on an award, states that Hays and Dickerson, in order to settle and determine two suits which were pending between them, referred the same to arbitration; that the arbitrators awarded, that Dickerson should pay Hays the sum of 434 dollars, together with the costs of arbitration, amounting to 12 dollars and 66 cents; and that for the non-payment of the money awarded the action is brought. The other counts are for money had and received, money paid, and on an account stated.
To the first count, the defendant pleaded four pleas. 1. That there was no such award as alleged. 2. That the intestate and the defendant had, by an arbitration-bond, submitted the matters in difference to arbitration; that the award, according to the condition of the bond, was to be made the judgment of the Court; that no judgment had been rendered on the award, &c. To the second, third, and fourth counts, nil debet was pleaded. There was also a plea of payment as to a part of the amount for which the suit was brought.
The first plea to the first count was set aside on the defendant’s motion, because it was not sworn to. As the award is the foundation of the action, the statute requiring certain pleas to be sworn to, may be considered as embracing this case. Rev. Code, 1831, p. 403.—Titus v. Scantling and Wife, May Term, 1834.
Upon the pleas of nil debet and payment filed in this cause, issues were joined by the plaintiff. - The determination of these issues was submitted to the Court, and a judgment was rendered in favour of the plaintiff for the sum of 447 dollars and 66 cents in debt, with 13 dollars and 34 cents-iii damages, in all 461 dollars, together with the costs-of suit. This judgment, the defendant contends, is not supported by the evidence, the whole .of which is set out in the record.
The award upon which the first count in the declaration is founded, and which was-introduced as evidence by the plaintiff, is objected to by the defendant because it does not require the plaintiff to dismiss the suit, nor to execute a release to the
Another objection made to the award is, that the costs of the reference ought not to have been awarded, as the submission-bond gave the arbitrators no authority over those costs. It is true that, by the English law, arbitrators cannot award the costs of the reference, unless the instrument by which they are appointed expressly authorises them to do so. Candler v. Fuller, Willes, 62.—Taylor v. Gordon, 9 Bingh. 570, A contrary opinion is expressed in Strang v. Ferguson, 14 Johns. 161, but that opinion is believed to be incorrect. It appears to us, however, that our statute may be considered as authorising the costs of the reference to be awarded, though, as in the present case, the agreement to submit is silent on the subject. Rev. Code, 1831, p. 73.
We have examined the other evidence, as well as the award, and are satisfied that it is sufficient to sustain the judgment.
There is one other error assigned which remains to be noticed. It is, that as Hays died before judgment on the award, the money awarded to him could not be recovered. This objection is without foundation. The award was made in the life-time of Hays, and it became a new cause of action founded on contract. The law is stated, in general terms, that an executor or administrator may maintain an action on an award;
The judgment is affirmed with 3 per cent. damages and costs.