defendants' house was situate, to the opposite house on the west side of that lane; that the plaintiffs' house adjoined the defendants' eastward; that these strutts, by preventing the defendants' house from falling westward, had the effect also of preventing the plaintiffs' house from falling that way; that when the defendants' house was taken down, these strutts were necessarily removed, and no other or longer strutts substituted, extending from the plaintiffs' house to the house on the opposite side of Honey-lane, nor any upright shores placed within the plaintiffs' house to sustain the floors and roof without the aid of the partywall; it appeared, also, that if either of these measures had been adopted, the plaintiffs' house might have stood; but that, neither of them being adopted, it soon became separated from the house adjoining to it on the east, and either partly fell or was necessarily taken down, and rebuilt, being injured, dangerous, and uninhabitable. There was no evidence to shew whether the two houses had been erected at the same time, or at different times; from their construction, it seems likely, that they were built at or about the same time. The freehold was then in different hands; and as the governors of the hospital are not likely to have bought or sold in modern times, it is probable, that the freehold was also in different hands when the houses were built. These, however, are but conjectures; if the facts either way would have aided the plaintiffs' case, it was their duty to have proved those facts. It did not appear that the defendants gave any previous notice of their intention of pulling down their house, or of the time of doing so, but the defective state of both houses was of course known to the parties. There had been previous discussions and treaty between them, especially with regard to the party-wall; and a notice of rebuilding the party-wall under the act of parliament had been given, but the defendants' house was pulled down before the expiration of the time mentioned in that notice. The operation of taking down the defendants' house was carried on by day; and the operation must have been seen and known by the occupier of the plaintiffs' house. These being the facts in evidence, on the trial, I was of opinion, at the close of the plaintiffs' case, that it was their duty 1. Where an executor pleads non assumpsit by his testator, and also plene administravit, and the plaintiff takes issue upon both pleas, and the issue upon non assumpsit is found for the plaintiff, and that upon plene administravit for the executor, the latter is entitled to his general costs in the cause, upon the rule that there is one plea which answers the action. 2. But where to such pleas the plaintiff takes issue upon the plea non assumpsit, and admits the truth of the plea of plene administravit, taking judgment of assets quando acciderint, and the issue upon the plea of non assumpsit is found for the plaintiff, he is entitled to the general costs against the executor, upon the principle, that he forced the plaintiff on to trial, by a plea which he could not support. This was a writ of error from the Common Pleas. The action was in assumpsit by Wilder v. Marshall and Hobson, executor and executrix of Hobson, for goods sold and delivered to the testator on promises by him; and on an account stated with the defendants as executor and executrix of monies due from the testator. The executors pleaded, first, non assumpsit as to all the promises; secondly, plene administravit. The plaintiff joined issue, and In the note at p. 157 of the Common Pleas Reports in this volume, the reference should have been to Marsh v. Wood, K.B. 327. COURT OF KING'S BENCH: went to trial on the first plea, and took judgment of assets quando, &c. upon the second. The jury found for the plaintiff as to the promises alleged to have been made by the testator, with 271. damages, and 40s. costs, and for the defendants as to the promise alleged to have been made by them; and the plaintiff's costs of increase were taxed at 917. 6s. 2d., and judgment was entered up for the whole of these damages and costs "to be levied of the goods and chattels, which were of the said J. Hobson at the time of his death in the hands of the defendants as executor and executrix as aforesaid, to be administered, if they have so much thereof in their hands to be administered; and if they have not so much thereof in their hands to be administered, then the sum of 93l. 6s. 2d. of the damages aforesaid, being for the costs and charges aforesaid, to be levied of the proper goods and chattels of the defendants." Errors were assigned, and the plaintiff joined in error. Mr. Wightman, for the executors, contended, that, as, according to the case of Edwards v. Bethell (1), where all the earlier cases were considered, the would have been entitled to costs in case executors the plaintiff, instead of taking judgment of quando acciderint, had taken issue on the plea of plene administravit, the plaintiff could not, by admitting the truth of the defendants' plea, place them in a worse situation, than if an issue on that plea had been found for them; and that an executor was not liable to costs unless he pleaded a plea false to his own knowledge. Mr. Follett, contrà, was stopped. Lord Tenterden.-I am of opinion that the judgment of the Court below ought to be affirmed. If the defendant had pleaded a plea of plene administravit only, the plaintiff might have taken judgment of assets quando acciderint without incurring the costs of a trial. But the executors, by pleading that the testator never promised, compelled the plaintiff to incur those costs. It is true, that if issue had been taken on both the pleas, and the second (a bar to the action) had been found for the defendants, the rule established in ordinary cases (1) 1 Barn. & Ald. 254. where any plea answering the action is applicable. But the plaintiff did not do found for the defendants, would have been that; he admitted the truth of the second plea, without putting the defendants to the expense of proving it, but was compelled to go down to trial on the other issue, in order to avail himself of the judgment of assets quando acciderint. The costs of going to trial have therefore been entirely caused by the act of the executors. Mr. Justice Bayley.-The case of Edplea of the general issue is found against wards v. Bethell only decided that where a him, he is entitled to a general judgment an executor and plene administravit for in his favour, and to the general costs of the action. It has been contended, that an propriis, unless he pleads a plea false to his executor is never liable to costs de bonis own knowledge. But that, I apprehend, is not the rule. Where he pleads a plea false to his own knowledge, as a false plea of plene administravit, he is liable not only to pay the costs, but the damages also de bonis propriis. But, if he pleads a plea which he cannot support, although it be not false to his knowledge, and the plaintiff is by that plea driven to trial, and obtains a verdict, he is entitled to judgment for testatoris, and, if there are not assets, then the whole, in the first instance, de bonis to the costs de bonis propriis of the exe cutor. Mr. Justice Littledale.-I am of the same opinion. I have always understood the course, in such pleadings as these, to be, that the plaintiff is entitled to costs. should not recover the debt out of the exeHe cutor's property; but as the costs are having pleaded a plea which they could not incurred in consequence of the defendants ed the plaintiff to trial, it is right that they support, and having by that plea alone forcshould pay them if they have not assets of the testator's sufficient for that purpose. 1'Roll. Abr. 933, is to this effect. The case of Dearne v. Grimp and others (2) has been in some measure overruled. Judgment affirmed. Arbitration-Submission revoked. 1. When two parties have submitted to refer to arbitration, and then one of them becomes bankrupt, whether the bankruptcy is of itself a revocation of the submission, quære. 2. Though it be not of itself such a revocation, if the interest in the subject-matter of the party who becomes bankrupt passes to his assignees, the other party is justified in revoking the submission; because, as the assig nees would not be bound by the submission, it is no longer mutual. This was an action of covenant.-The declaration averred, that before Rowe became bankrupt, by an indenture made between the defendants of the one part, and Rowe of the other part (after reciting, amongst other things, that Rowe alleged that he was entitled to charge the defendants, or one of them, the loss, or some part or share of the loss, which had arisen to him by or in consequence of the purchase of three ships of war, in or about which the said defendants wholly disputed, and that there were other differences and disputes between the defendants and Rowe respecting the said ships, all which differences and disputes they had agreed to refer to an arbitrator in the said indenture mentioned,) in consideration of the premises, the said parties thereto did mutually agree to stand to and abide by the award of W. S. of, upon, and concerning the said disputes and differences, &c., and that the parties should not, nor would, in any manner obstruct, hinder, or impede the said arbitrator in making an award. The breach assigned was, that the defendants revoked their said submission. The defendants pleaded the bankruptcy of Rowe generally before the revocation, and also a special plea of Rowe's bankruptcy, and adding, that before any award was made the commissioners assigned to A. B. (the provisional assignee) all claim, right, interest, or demand whatsoever, of or belonging to the said Rowe, in or concerning all and every the matters or things in dispute, or difference between him and the defendants. Demurrer to the plea of bankruptcy generally. Replication to the other plea, that, after the assignment to A. B. the plaintiffs were duly chosen assignees of the estate and effects of Rowe, and A. B. assigned to them all and singular the goods, wares, and chattels, debts, sum and sums of money, and all other the personal estate of which Rowe, or any person in trust for him, was possessed, or entitled to, at the time of his bankruptcy. To this replication there was a demurrer. Mr. Follett (in support of the demurrer,) for the defendants. First, the bankruptcy of Rowe was of itself a revocation of the authority of the arbitrators; so that the revocation by the defendants was an act of surplusage a mere nullity. But, secondly, if the bankruptcy was not of itself a revocation, the defendants had a right to revoke the submission; because, as the present plaintiffs, the assignees, were not bound by that submission, it is but reasonable that the defendants should be allowed to relieve themselves from it: as the agreement between the parties was no longer mutual. The first proposition is shewn by the obvious fact, that Rowe, the bankrupt, had lost all power over the subject-matter of the arbitration. Marriage of a feme sole after submission is a revocation of the authority: Sir W. Jones, 388; Charnley v. Winstanley (1); Saccum v. Norton (2). By analogy it may be inferred, that bankruptcy revokes the authority. In Hovill v. Lethwaite (3), and Hudson v. Granger (4), it was held, that a power of attorney to receive money was revoked by bankruptcy. But, at all events, the bankruptcy of Rowe justified the defendants in revoking the authority. If the parties, by that circumstance, were no longer upon equal terms, it can scarcely be denied that the party who was at a disadvantage by a circumstance over which he had no control, had a right to relieve himself from that disadvantage. Cases are not necessary to shew that a submission to arbitration must (1) 5 East, 266. (2) 2 Keb. 865. (3) 5 Esp. N.P. 158. (4) 5 Barn. & Ald. 27. COURT OF KING'S BENCH: be mutual, and must bind all the parties to it. The cases however of Dilly v. Polhill (5), Biddell v. Dowse (6), and Ferrer v. Oven (7), illustrate that rule. And the case of Ex parte Kemshead, in re Cotterell (8) is an express authority, shewing that the submission made before the bankruptcy was not binding on the assignees. The only case which at first sight may appear to bear against the present argument, is that of Andrews v. Palmer (9). [Lord Tenterden.-That case is not against you. There, a verdict was taken subject to the award: and the Court held, that the award, when made, referred to the time at which the verdict was taken.] But, Then, there is no other point against which the defendant has to contend. even if there was no right to revoke the submission, the plaintiffs, as assignees, have no right to maintain this action. The breach of the contract was committed after the bankruptcy. The right of action was not a debt due to the bankrupt, nor does it come within the description of property which passes to assignees of a bankrupt. In this respect, the case is different from that of Smith v. Coffin (10), where it was held, that a right to maintain a real action passed to the assignees. Here, the whole was matter of personal contract. Mr. R. V. Richards, contrà.-Much of the argument of the other side may be admitted; but none of the authorities cited go to shew that bankruptcy is a revocation of the submission; and the opinion of the Court in Andrews v. Palmer seemed to be that it was not. The case of Haswell v. Thorogood (11) is also an authority to the same effect. There, an award was made after the bankruptcy; and the award being against the plaintiff, the Court granted an attachment against him for non-payment of the costs. This they would not have done if the bankruptcy had revoked the submission. Mr. Follett, in reply, cited Aston v. George (12), as shewing that there were cases wherein a party might reasonably revoke the submission. Lord Tenterden (after stating the pleadof this reference (the interest of Rowe in ings). All that was the subject-matter the ships) passed to the assignees; and, upon this taking place, the defendant revoked the submission. Now, it is not necessary for us to lay down any general rule upon the question, whether the bankruptcy of either party to a submission is, of itself, a revocation of the submission. have been bound by the submission. Then, It is admitted that the assignees would not right to revoke the authority of the arbican we say that the defendant had not a trator? All the authorities cited shew, that, in the case of a submission to arbitration, for one party to be bound, all ought to be bound. Mr. Justice Bayley.-The object of a reference is to bring about a final determination of the matter in dispute. Here, the matter could not be finally determined; for the assignees would not be bound by justified in preventing the further proceedthe result. The defendant was therefore had been defeated by an act to which he ing of a reference, the main object of which was no party. Mr. Justice Littledale.-It is an admitted principle, that the very essence of an arbitration is, that the submission should be mutual, and that the award should be mutual and final. Here, although the submission was at first mutual, it did not of Rowe's claims, which destroyed the continue so, but an assignment was made mutuality. Neither would the award have been mutual if made, it would, as to one side, have been quite ineffectual; and this change was the effect of Rowe's bankruptcy. I think, therefore, that the defendants were justified in putting an end to the arbitration. Judgment for the defendants. (12) 2 B. & A. 395; 1 Chit. 200. 1829. In the matter of arbitration beJune 22. Stween CASSELL And another. Award-Choice of Umpire. Where there is a reference to two persons who have power to nominate a third, their nomination must be the result of their judgment, and not that of chance; and if such nomination be the result of chance, the Court will set aside the award, unless the parties have consented to the arrangement, or afterwards acquiesced in it. The submission in this case was to two persons, Adams and Chapple, and such third person as they should appoint. They could not agree upon a third person, and they therefore agreed that each should name two; that the names of the four should be written on pieces of paper and put into a hat; that one should thence be drawn out; and that the name so drawn out should be the third person. That third person and the two arbitrators afterwards proceeded in hearing the matter; but the award was made by the third person and one of the arbitrators. This third person was one of the two, whose names were put in the hat by the arbitrator who joined with him in making the award. It was moved to set this award aside. The party applying did not know of the manner in which the third person was appointed until after the award was made. The case was argued last term by Mr. F. Pollock and Mr. R. Bayley, in support of the award, and by Mr. Godson against it. In support of the award, the case of Neale v. Ledger (1) was relied on as expressly in point. There, two arbitrators, having each proposed a third, and neither liking to abandon his own choice, (though not exactly disapproving of the choice of the other,) agreed to toss up which of the two proposed should be nominated. The Court held the award to be good, and Lord Ellenborough distinguished the case from. that of a tossing up which of the two should nominate a third. Against the award, the cases of Harris v. Mitchell (2), and Wells v. Cooke (3) were cited. In the former, the arbitrators could (1) 16 East, 51. (2) 2 Vern. 485. (3) 2 Barn. & Ald. 218. VOL. VII. K.B. not agree who should be umpire, and they threw cross and pile who should have the nomination; and the Court set aside the umpirage. In the latter, the arbitrators drew lots who should have the nomination of the umpire; and the Court set aside the umpirage. [The case of Young v. Miller (4), was to the same effect, though it was not cited in the argument, nor noticed in the judgment. There, the nomination of umpire was decided by lot; and the Court set aside the award.] The Court took time to consider; and this day their opinion was delivered by Lord Tenterden.-(After stating the facts, and the cases cited,)-The facts differ very slightly indeed from those in the case of Neale v. Ledger. Upon the authority of that case I was at first disposed to support the award; but my learned Brothers differed in opinion from me, and we thought it right to consider the subject together. We have done so, and we are now all of opinion, that this mode of appointment is bad. When parties refer in this manner they expect the concurring judgment of the two in the appointment of a third. And, without entering into any nice distinction between the facts of this and of other cases, we think it is better to lay down as a general rule that the appointment of the third person must be the act of the judgment and will of the other two. It must be matter of choice, and not of chance, unless the parties consent to some other mode, or by their subsequent conduct acquiesce in it. This award is therefore bad. |