1823.-Dawson v. Sadler.

named, but some of those legatees only, are to take the residue. inference derived from the form of the will much too slight to be opposed to clear and unequivocal expressions.[1]

1823, 18th and 19th December; 1824, 20th April.-Award.-Jurisdiction.-Pleading. Injunction to stay proceedings on an award, on the ground of fraud and corruption in the arbitrator, refused, where the submission was, within due time, made a rule of the court of king's bench, although the bill was filed before the submission was made a rule of that court, and although it might, according to the agreement, have been made either a rule of this court, or of the court of K. B.

To a bill to set aside an award charging fraud and corruption in the arbitrator, the defendant an. swered as to the fraud and corruption, and demurred to the rest of the bill, Held, that the answer overruled the demurrer.

THE bill prayed that an award might be set aside, and the defendants restrained from proceeding to recover the sum awarded against the plaintiff.

The plaintiff and defendants had agreed by deed to refer an action in replevin and all matters in dispute between them to the arbitration of a certain person; and that the award and the submission should, at the instance of either party, be made an order of the court of chancery, or a rule of the court of king's bench. On the 1st November 1823, the arbitrator made his award, by which he directed a considerable sum to be paid by the plaintiff to the defendant John Sadler.

On the 26th of November 1823, the plaintiff filed his bill in this cause against John Sadler, the sureties in replevin, and the arbitrator, alleging fraud and many other objections to the award. Neither the submission nor the award had been made a rule of either court, at the time when the bill was filed. The bill charged that the defendant, John Sadler, threatened to procure the award to be forthwith made a rule of this court, or the court of king's bench, and to commence proceedings at law against the plaintiff to recover the sum awarded to be paid by him.

On the day on which the bill was filed, the plaintiff gave notice of a motion for an injunction according to the prayer of the bill. On the 28th of No

vember 1823, before the motion could be made, the defendant John [*538] *Sadler made the submission a rule of the court of king's bench.

The motion for an injunction was now made; and it was objected, for the defendants, that this court had no jurisdiction.

Mr. Heald and Mr. Girdlestone, junior, for the plaintiff:-This court has jurisdiction to relieve against this award :

[1] Vide Adie v. Cornwell, 3 Monroe, (Kentucky) 279. Breckenridge v. Duncan, 2 A. K. Marsh, (Kentucky.) 51. Covenhoven and others v. Shuler and others, 2 Paige, 130. Rathbone v. Dyckman, 3 Paige, 26, 29.

1823.-Dawson v. Sadler.

1st. Because the submission was not made a rule of the court of king's bench before the bill was filed. Where, as in this case, the agreement is that the submission may be made a rule either of this court or of a court of common law, and a bill is filed in this court, impeaching the award, before the submission is made a rule of the court of common law, the party insisting on the award cannot, by subsequently making it a rule of the court of law, oust this court of its jurisdiction. That question occurred inv. Mills,(a) but was not there decided. In Gwinett v. Bannister,(b) it was held, the jurisdiction to set aside an award is confined to the court in which the submission is made a rule. But the present case is distinguished from Gwinett v. Bannister, by the fact that the bill was filed in this court before the award was made a rule of the court of king's bench.

2dly, Because the agreement in this case was, that the submission should be made a rule either of the court of king's bench or of the court of chancery, *at the option of either party; and the plaintiff, by filing this [*539] bill, did that which was equivalent to making the submission a rule of

this court. The plaintiff has, therefore, exercised the option, which was given to him by the agreement, of giving this court, and not the court of king's bench, the jurisdiction as to this award.

3dly, Because the complaint in this case being of fraud and corruption in the arbitrator, it is an excepted case under the latter words of the 1st section of the stat. 9 and 10 W. III. c. 15.(c) This court had jurisdiction before the statute to set aside an award to which there was an objection of that kind. There is nothing in the act which makes it imperative on a party in such a case to take proceedings in the court of law in which the submission has been made a rule, instead of having recourse to the original jurisdiction of this court. Wurd v. Periam. (d) The object of the legislature was not to divest this court of its jurisdiction, but to give the party who wished to avail himself of a just award the summary remedy of process of contempt to compel the performance of it.

Mr. Wakefield, for the defendants.

*The VICE-CHANCELLOR:-The authorities referred to have, in effect, [*540] determined the questions which are here raised. No court has jurisdiction to set aside an award under the statute, except the court in which the submission is made a rule; and there the application must be made before the last day of the next term after the award. It is said, that the filing of this

(a) 17 Ves. 419.

(b) 14 Ves. 530.

(c) The statute directs, that the court, of which the submission has been made a rule, shall issue process against the party neglecting or refusing to perform the award; and then proceeds in these words; "Which process shall not be stopped or delayed in its execution by any order, rule, command or process of any other court, either of law or equity, unless it shall be made appear on cath to such court, that the arbitrators or umpire misbehaved themselves, and that such award, arbitration or umpirage was procured by corruption or other undue means.

(d) 2 Eq. Ca. Ab. 91, and more fully stated in a note to Auriol v. Smith, 1 Turner's Rep. 131,

1823.-Dawson v. Sadler.

bill is equivalent to making the submission a rule of this court, and that the bill was filed before the last day of the next term after the award. I am of opinion that the filing of this bill is not equivalent to making the submission a rule of this court; first, because it is not within the language of the statute; and next, because it is not within the principle of the statute; the object of which plainly was, to create a summary jurisdiction for the decision of awards.

It appears that, in this case, the submission was made a rule of the court of king's bench on the 28th November. I think that, however, not material as to the question of jurisdiction upon this bill. In the late case of Davis v. Getty,(e) I had occasion to state my opinion, that this court could not acquire jurisdiction from the circumstance that the submission was not actually made a rule of any court; because either party has a right to take this step, and cannot transfer the jurisdiction by neglecting to do an act within his own power.

It has been argued that, inasmuch as this bill insists that the award was made in consequence of fraud and corruption in the arbitrator, by the [*541] effect of the concluding words of the first section of the act this court has a general jurisdiction as upon an excepted case. I apprehend that this argument proceeds upon a clear misconception of the statute. The second section gives to the court where the submission is made a rule an authority to set aside an award made by corruption or undue means. These words plainly comprise the fraud and corruption of the arbitrator, and were doubtless intended to reach every case where the award ought to be set aside. The first section enables the party in whose favor the award is made to enforce obedience to it by process of contempt from the court where the submission is made a rule, unless it shall appear upon oath that the arbitrators misbehaved themselves, or that the award was procured by corruption or other undue means. The very same words, therefore, are used here as are used in the second section, and plainly mean to comprise the fraud and corruption of the arbitrator, and every other case where the award ought to be set aside; because it could not be the intention of the legislature that any such award should be enforced. The whole act taken together means this, that the party in whose favor the award is made may enforce it by the process of the court where the submission is made a rule, unless it shall appear to that court that it ought to be set aside as unduly made, and in such case the same court shall not merely refuse the aid of its process, but, if complaint be made within the time limited, shall actually proceed to set it aside.

[*542]

Motion refused.[1]

*After this motion each of the defendants demurred to the whole bill, except the charges of fraud and corruption, which they answered. (e) Ante, 441.

[1] Vide ante 414, and note, ibid.

1824. Rist v. Hobson.

The VICE-CHANCELLOR :-These demurrers bring before me, in a grave form, the same questions as occurred in this cause upon the motion for an injunction. I was then, and am now of opinion that, where by the agreement of reference the submission is to be made a rule of any court, there the only course of proceeding to impeach the award is to make the submission a rule of that court, and to apply summarily for its aid. It makes no difference that there are charges of fraud and corruption in the arbitrator. If the agreement of reference be that the submission shall be made a rule or order of this court, this court does not thereby acquire a jurisdiction over the award by bill, but the parties must proceed summarily under the statute.

It is a necessary consequence of these principles, that the demurrers ought to have extended to the whole bill, and that the answers as to the charges of fraud and corruption overrule the demurrers.[1]

The Vice-Chancellor said he was disposed to give the defendants leave to amend their demurrers and answers, by making them general demurrers to the whole bill. But a compromise took place, and no further proceedings were had in the cause.

*RIST v. HOBSON.

[*543]

1824, 16th January.--Pleading.

If a bill for specific performance of an agreement state that the agreement was in writing, signature will be presumed.

THE bill was filed by the vendor against the purchaser of an estate, to compel a specific performance of the agreement for the purchase. It stated that the agreement was reduced into writing, but did not allege that it was signed by either of the parties; and for that reason the defendant put in a general de

murrer.

Mr. Blackburne, in support of the demurrer, referred to the fourth section of the statute of frauds, and said that, before an action could be brought, or a bill filed upon any agreement, the statute distinctly required that there must be not only some memorandum or note of it in writing, but that such memorandum or note, must be signed by the party against whom the action is brought or the bill is filed.

Mr. Heald and Mr. Merivale, in support of the bill, said, that it was not necessary that the bill should allege that the agreement had been signed, or even that it had been reduced into writing; and that, at law, it was sufficient if the declaration stated an agreement generally, without averring that it was in writing.(a)

(a) 6 Ves. 555.

[1] Vide Story's Eq. Plead. 365, 366, where the above decision is criticized.

1824.--Aspinall v. Petvin.

The Vice-Chancellor said, that the bill contained an allegation that there was an agreement in writing : that, if the paper was not signed, it was [*544] not an *agreement; and that, therefore, signature must be presumed until the contrary was shown.

ASPINALL V. PETVIN.

Demurrer overruled.(b)

1824, 28th January.-Devise.-Implication.

Devise of lands to trustees, upon trust to pay one moiety of the rents to devisor's wife for her life, and the other to his only son; and after the wife's death to convey to the son in fee; but if the son died without issue in the wife's life, to convey to devisor's nephew in fee. The son died without is. sue in the wife's life. She is not entitled for life, by implication, to the moiety devised to the son.

THE bill prayed that it might be declared that, according to the true construction of Humphrey Aspinall's will, the plaintiff John Aspinall became entitled, on the death of William Heron Aspinall, to one moiety of the rents of the hereditaments devised by the testator, during the life of the testator's widow. The widow put in a general demurrer for want of equity to part of this bill. On the argument of the demurrer, the questions were, whether, on W. H. Aspinall's death, the widow became entitled to an estate for life, by implication, in the moiety of the testator's real estates, which was not expressly devised to her, or whether, on that event, the plaintiff became entitled to it.

The will was as follows:-"I give and devise to my good friends Thomas

Skinner and Richard Knight all and every my freehold and copyhold [*545] messuages, lands, tenements and *hereditaments whatsoever, to hold to them the said Thomas Skinner and Richard Knight, and their heirs, upon trust to receive and take the rents, issues and profits thereof, and to pay and apply one moiety or half part thereof to my dear wife Elizabeth Aspinall, during her natural life for her own use, and to pay and apply the other moiety or half part thereof for the use and benefit of my son William Heron Aspinall, during his minority, in such manner and proportion as they in their discretion shall think proper; and, from and after he shall have attained his age of twentyone years, to pay the said moiety of such rents and profits to him for his own use; and, from and immediately after the death of my wife Elizabeth Aspinall, upon trust to convey and surrender all my said freehold and copyhold messuages, lands, tenements and hereditaments unto my son William Heron As

(b) In the course of the argument in this case, the propriety of a defendant availing himself of the statute of frauds by way of demurrer was discussed, and the cases of Whitechurch v. Bevis, 2 Bro. C. C. 559, and Redding v. Wilkes, 3 Bro. C. C. 400, were referred to. [It is unnecessary to allege, in a bill, that a contract within the statute of frauds was in writing but the defendant must take advantage of the objection by plea or answer; if however the bill shows that the contract was not in writing, without stating sufficient grounds to take the case out of the statute, a demurrer will lie. Cozine v. Graham, 2 Paige, 177.]