18 Ala. 168 | Ala. | 1850
The replication states the submission and the award. 'The demurrer to the replication should have been sustained, if .there was a fatal defect in the submission or the award, apparent on their face. The plaintiff was a party in his own right and as guardian of the heirs of Joseph Lemonier, deceased, and the controversy submitted was in reference to certain property .embraced in a lease, which is described, and to ' its stipulations. By the award, as stated in the replication and-set out on oyer, the defendant was required to'deliver to the'
2. It is contended that the award is uncertain, because it does not show what was awarded to the plaintiff in his own right and what as guardian. This was not required by the submission, but if it should ever be a material question, in the event of a future suit about the same matters, evidence will be admissible to prove it — in re Brown & Croydon Canal Co., 9 Adol. & Ellis, 522.
3. It is contended that the award was not mutual, because nothing wras required to be done by Strong. But it appears that the arbitrators made an allowance to the defendant for the improvements, which diminished the plaintiff’s demands. An award, however, is not necessarily wanting in mutuality, because nothing is required of one of the parties.
4. It is further insisted that there is a want of mutuality, because the claims of infants were submitted, and they are not bound by the award, and for this the counsel relies on Biddle v. Dowse, 6 Barn. & Cress. 255. There are several circumstances to distinguish that case from this, but it is sufficient to mention one of them. Some of the parties to the submission in that case were infants, who had been parties to a suit by their next friend. The matters for which the suit was brought were submitted to arbitrators. This was done under order of h
5. The defendant’s demurrer to the replication having been overruled, he rejoined that the arbitrators acted with gross partiality in favor of the plaintiff, and to this rejoinder the plaintiff demurred, and his demurrer was overruled, and that is assigned as error.
The question is, whether the matter stated in the rejoinder is cognizable in the courts of common law. If the award had been taken taken under the statute, the facts stated in the rejoinder would have been sufficient, in the court of law, to set aside the award, according to the statute. — Clay’s Dig. 50. But the