5 Cow. 197 | N.Y. Sup. Ct. | 1825
It is a general rule, that where the bond of submission contains an ita quod clause, the award will be void, unless it comprehend all the matters submitted. This rule is invariable, where the particular matters submitted are specified in the bond. But where the submission is general, and an award concerning one or more things is made, it will be presumed, until the contrary be shown, that nothing else was referred to the arbitrators, or brought before them by the parties. (Middleton v. Weeks, Cro. Jac. 200. Ormelade v. Coke, id. 354. Kyd. on Aw. 174, 5, 6, and the cases there cited. 8 Rep. 98, b. Hob. 49. Risden v. Inglet, Cro. Eliz. 838.) But if arbitrators award in relation to one or more things, and say that they will not meddle with the rest, the whole is void; because they have not pursued their authority; (Barnes v. Greenwel, Cro. Eliz. 858 ; Dy. 216,217; Benl. 107; Kyd on Aw. 174;) and in such a case, it is immaterial whether the submission was general or special; for, if general, it appears on the face of the award that the arbitrators had notice of the matters which they refuse to decide.
The case of Bradford v. Bryan, (Willes, 268,) is precisely in point. That was a general submission with an ita quod clause. The suits and controversies of the parties appear to have been in relation to tythes. The award was, that the defendant should pay to the plaintiff a certain sum of money in full of all demands; and that the plaintiff should pay to the defendant a certain sum of money for all ty.thes and Easter duties whatsoever, (except tythes of calves, &c.) and that the parties, on receipt. of the sums, should execute general releases to each other of all demands whatsoever, (“ except the said tythes of calves, for which the defendant was at liberty to prosecute if he thought fit”) Upon general demurrer, the award was holden to be void in toto, for not determining all the matters in dispute between the parties.
The present case cannot be distinguished from that. The award shows that the arbitrators had notice of the house and shedj as a matter in controversy. Such notice is ex
It is not like the case of Berry v. Penring, (Cro. Jac. 399.) where the award was, that all suits and actions shall cease, and all matters be determined, except in relation to a particular bond; which was awarded to stand in force. It was contended that this was not an award in relation to the bond. But the Court held, and most clearly they held correctly, that this was not a disclaimer to meddle with the bond; but an express award that it should stand in force and be satisfied. (Jackson v. Ambler, 14 John. 106, per Spencer, J.)
The plea is somewhat informal, and possibly, upon special demurrer, might have been held bad; but it is good in substance. I am therefore of opinion that the defendant is entitled to judgment.
Judgment for the defendant.