Assignee. See Chose in Action-Bankrupt. Attorney. See Solicitor. Average. Action against Shipowner for not preparing a proper Average Statement, whereby the Plaintiff lost the Value of Goods that had been Jettisoned. 1. The defendants are owners of the "A.," which sailed Against from C. for L. on the 24th June, 1873, carrying a general shipowner cargo, including the case of musk hereinafter mentioned, of preparing the value of £183 78. 6d. for not proper average 2. The plaintiffs were indorsees of the bill of lading and statement. owners of the said case of musk, which was consigned to them by the shippers, Messrs. G. & Co., of Calcutta. 3. The "A." while in the Red Sea was in imminent danger of being lost through perils of the sea, and it became necessary to jettison the said case of musk and other cargo, and the same was thereupon jettisoned in order to preserve the vessel, her cargo, and the whole adventure from imminent danger. A general average loss was thereby incurred in respect of which general average contribution became due to the plaintiffs from the defendants, and from the owners of the residue of the cargo. 4. The defendants, as owners of the "A.," agreed with the plaintiffs, for sufficient consideration in that behalf, and it for not a proper average Against became and was their duty, as owners of the " A.," in conshipowner formity with usage, to give notice to the plaintiffs or the shippreparing pers of the said case of musk of the said jettison, and to collect the said general average contribution, and to detain the statement. cargo in respect of which the same became payable until the same should be paid; also to pay the said contribution over to the plaintiffs when collected, and to cause to be prepared a proper and careful average statement, and furnish the same to the plaintiffs. Action for average. 5. The defendants did not prepare such careful and proper average statement, nor furnish the same to the plaintiffs, nor did they give notice to the plaintiffs or the said shippers that the said case had been jettisoned, nor did they collect the average contribution due to the plaintiffs, nor detain the cargo in respect of which the same became payable, nor pay the said contribution over to the plaintiffs, nor any part thereof. 6. By reason of the premises the plaintiffs remained ignorant that the said case of musk had been jettisoned as aforesaid, and lost the said general average contribution. The plaintiffs claim : £183 78. 6d. in respect of the premises, with interest from the 24th November, 1874, at £5 per cent. per annum. Action for average on Sale of wrecked Cargo. 1. The plaintiff is a merchant, carrying on business in London. The defendant is a shipowner, carrying on business at, in Germany. 2. In the month of June, 1876, the plaintiff shipped on board the defendant's ship, the "H.," in London, certain goods, consisting of tin, iron, and other things, to be carried to East London. The said ship, with the said goods on board, was subsequently wrecked at East London, and the wreck and such of the cargo as was saved, including the plaintiff's said cargo, was sold by auction by the direction of the master, and the defendant subsequently received the proceeds of the said sale, amounting to £, on account of the persons entitled thereto. 3. The average statement was afterwards duly prepared, under the direction of the plaintiff or his agents, by which the amounts due to the several persons whose property had been Action for sold as aforesaid, in respect of the proceeds thereof, were average. ascertained, and the said sum of £2000 was apportioned to and among the said persons accordingly, and by the said average statement, the sum of £100, part of the said amount of £2000, was ascertained to be due to and was apportioned to the plaintiff, in respect of his aforesaid goods, and the said sum was and is in fact due to him as the proceeds of the said goods, and the defendant has reserved the said sum to his use. 4. The plaintiff has applied to the defendant for payment of the said sum, but the defendant has not paid the same. The plaintiff claims : £100, and interest thereon from the commencement of this action until payment. Award (a). Action upon an Award. Statement of claim in 1. In or about the month of October, 1874, the defendants were, under the power and authority of a certain Act of action on an award. How award enforced. Averment in claim. (a) An award can be enforced by bringing an action upon it. The plaintiff must then aver in his statement of claim the submission to arbitration, the making of the award within the time limited, its effect, the fulfilment of all conditions precedent by him, and the failure of the defendant to pay the sum awarded or to otherwise comply with the terms of the award. It can scarcely be said to be a violation of Order XIX. r. 24, to set out the award in full in the statement of claim; but it is submitted that it is not generally necessary to set out the submission at length. If the time for making the award has been enlarged, and the award made within the enlarged time, the plaintiff must show that the enlargement was duly made according to the terms of the submission, or by the consent of the parties or under the powers granted by the statute 3 & 4 Wm. 4, c. 42, s. 39, or the C. L. P. Act, 1854, s. 15; In re Dare Valley Railway Co., L. R. 4 Ch. 554; Denton v. Strong, L. R. 9 Q. B. 117. Any irregularity as to the enlargement of the time is cured by the Irregulariparties appearing before the arbitrator, but not though they take part in ties in the reference if they protested against the irregularity (Ringland v. relation to Lowndes, 17 C. B. N. S. 514; L. J. 33 C. P. 337); neither is the objec- the award. tion waived by appearance if it goes to the jurisdiction of the arbitrator over the subject-matter. (Davies v. Price, L. J. 34 Q. B. 8.) Corruption or misconduct of the arbitrator is no defence, at least where application might have been successfully made to the Court to set the award aside. (Grazebrook v. Davis, 5 B. & C. 534; Whitmore v. Smith, 7 H. & N. 509; L. J. 41 Ex. 107.) It is misconduct of the arbitrators within the mean- Misconduct ing of this rule not to hear one of the parties, and therefore not a good of the arbidefence to an action on the award, but a ground for applying to have trator. the award set aside. (Thornburn v. Barnes, L. R. 2 C. P. 384.) It is no defence that the decision of the arbitrator has proceeded on a mistake, action on an award. Statement Parliament made in that behalf, constructing a railway through of claim in certain lands, the property of the plaintiff's company, and a dispute arose between the plaintiff's company and the defendant as to the amount of compensation to be paid by the defendants to the plaintiff's company in respect of the injury done to the said lands by the construction of the said railway. Law as to 2. By an agreement dated the 10th October, 1874, it was agreed by and between the plaintiff, acting on behalf of the said Y. Iron Company, and the defendants, that the question of the amount of the said compensation should be referred to the arbitration of one W. A., of C., in the county of G., civil engineer, and by the said agreement the said plaintiff and defendants mutually agreed to abide by the award of the said W. A. 3. The said W. A. took upon himself the said reference, and the time for making his award in the premises having been duly enlarged until the 1st of January, 1875, and afterwards until the 10th of April, 1875, did, before that day, make and publish his award in writing respecting the matters referred, ready to be delivered to the said parties, and thereby recited and awarded as follows: [Here follows the award at full length.] 4. The plaintiff's costs of the said arbitration were afterwards taxed at £590. 5. All conditions have been fulfilled, and all things have happened, and all times have elapsed necessary to entitle the plaintiff to be paid the said sums so awarded as aforesaid, and the said £590; yet the defendants did not pay to the plaintiff the said sums, or any of them, or any part thereof, and they still remain due and unsatisfied. The plaintiff claims £3000. (Johnson v. Durant, 2 B. & Ad. 925); but it is a defence that the award is not conformable to the submission. The Judicature Acts have not affected the law in any way as to arbitrators and awards. Parties can still refer their disputes to arbitration and the award can be enforced in the same way as before. (Re an Arbitration between Robert Phillips and John Brook Gill, 45 L. J. Q. B. C. P. & Ex. D. 136.) What the Acts have done is to establish several subordinate judicial officers called "official referees," to whom certain classes of cases are referred; but their functions are merely to report to the Court certain findings, and they can in no sense be regarded as arbitrators, nor their judgments as awards. Bail (a). Action on Recognizance against Bailors. 1. The plaintiff is a general merchant, carrying on business Action on in the City of London, and on the 1st of January last he commenced an action against one £100 on a promissory note of mencement of such action, the sideration. a recognizance of to recover the amount of bail. which he was, at the com holder for a valuable con 2. Shortly after the commencement of such action, namely, on the 10th of January, he caused the said to be arrested on a writ of capias ad respondendum, which was issued on the usual evidence. 3. On the 15th of the same month the defendant duly and in regular form became bail for the said and bound himself by his recognizance to be answerable for the amount of any judgment for debt and costs, or either, which should be recovered in the said action against the said should the said not pay the same. 4. On the 2nd of March last the plaintiff obtained judgment in the said action for the sum of £150 for debt and costs. 5. The said has not paid such debt and costs, and the plaintiff has not obtained any execution or satisfaction of the said judgment, and the same remain wholly due and unpaid and unsatisfied. 6. The defendant has not paid the said amount, or any part thereof, and the said recognizance still remains in force. The plaintiff claims as follows: (a) The liability of a defendant to be held to bail or arrested on a capias ad respondendum where the debt is £20 or over, and there is reason to believe that the defendant is about to quit the jurisdiction, has not been affected by the Act which abolished imprisonment for debt. Arrest on capias not abolished. |