4 Blackf. 89 | Ind. | 1835
This was an action of debt by Edward Scantling and Sarah his wife, formerly Sarah M’Afee, against Joseph Titus. The action is founded on an arbitration-bond, executed by Titus to the said Sa?-ah previously to her marriage. The condition pf the bond is, that if Titus should perform the award of certain arbitrators to be made within a limited time, relative to a certain matter of difference between the parties, then the bond was to be void. There is no agreement in the bond, that the submission pf the parties might be made a rule of Court; and that circumstance gives rise to the only question of law involved in this cause.
The declaration sets out the condition of the bond, the award, and the breach. The defendant pleaded three pleas. The first plea is, that the bond was executed in the state of Ohio, and was to be there complied with; and that in Ohio, by virtue of a statute which is set out in the plea, the bond is void, in consequence of its not containing an agreement, that the submission might be made a rule of Court. The second plea is a denial that any award had been made. The third plea is, that the award was obtained by fraud and covin. To the. first plea, the plaintiff filed a general demurrer. On the second and third pleas, issues were joined.
The demurrer to the first plea was sustained. The issues on the second and third pleas were tried by the Court without a jury, and damages assessed in favour of the plaintiffs to the amount of 437 dollars. Final judgment was rendered for the penalty of the bond, with an award of execution for the damages and costs.
The only error assigned is the sustaining of the demurrer to the first plea.
_ _ . It "is admitted that if the bond is void by the laws of Ohio, where it was made, and where we must presume, (no other place being named,) it was to be performed—it ought not to be enforced here. That is the law, as stated by Judge Story in his “Conflict of Laws,” pages 216, 217, and notes. It was also decided to be the law by this Court, in a case between these same parties, at the May term, 1834. The statute of Ohio, therefore, on the subject of arbitration-bonds must be examined. The language of that statute is as follows:—Thaall persons, &c. may submit their controversies to arbitration, &c.; that when any persons agree to submit any matters to arbitration as aforesaid and to make the same a rule of Court, they shall enter into arbitration-bonds, &c;, which shall expressly state their agreement that the submission may be made a rule of Court; that if either party refuse to obey the award, the other party may return the same with the bond to the Court, &c,, and obtain a rule of Court thereon; and that the party disobeying the rule shall be liable to be punished for a contempt, &c. This is the whole of the statute, contained in the defendant’s plea, that has any relation to the case. There can be no doubt but that the bond upon which the present suit is founded, is not such a one as is contemplated by this statute, for the reason pointed out by the appellant; which reason is, that it contains no agreement that the submission shall be made a rule of Court. But the 'question is, does that circumstance make the bond void under the laws of Ohio?
To determine this question, it is necessary to advert, for a moment, to the history of arbitrations. They are, as every one knows, of common law origin. In the earliest periods of the history of that law, we find that any persons, though no suit was pending between them, might agree to submit their matters of difference to arbitrators; and that their agreement for this purpose might be without any writing, or by a writing without seal, or it might be by mutual bonds. If the' agreement was by bond, and either party refused to comply with the award, his opponent might sue him on the award or on the
These observations respecting the English law of arbitration, apply to the laws of Ohio on the subject. We are bound to presume that the common law, so far as it does not interfere with her statutes, is in force in Ohio. That point was so decided by this Court, in the case of Stout v. Wood, July term, 1820. - Az’bitration-bonds, therefore, in the common law form, without any agz-eement respecting a rule of Court, az'e. valid in the state of Ohio, by the common law, unless their validity is impaired by the statute law of that state. The defendant below has not informed us in his plea of any other- statute of Ohio on the subject, than the one to which we have referred. That statute is, substantially, as to the matter in question, the same with the English statute of Will, the 3d.; and it consequently does not, as is shown by our previous remarks, affept the legality of arbitration-bonds made, like the one now before us, in the common law form. The obligees are excluded, by the form of the bond, fz’om the summary remedy by attachment under a rule of Court, but that does not prove the bond to be void, or that an action of debt may not be maintained on it.
The statute on arbitrations in Indiana, is, as to the matter under consideration, the same with the Ohio statute; and we
Our opinion for these' reasons isj that the obligor’s plea, that the bond in question is void by the laws of Ohio where it was executed, cannot be supported. The bond is valid, and the demurrer to this plea was correctly sustained.
The judgment is affirmed with five per cent. damages and costs.
Rev. C. Ind. 1831, p. 72. Accord. Rev. Stat. 1838. p. 69.