1 Dallas 314. Where not final. CH. 13. would agree a matter arising after the action brought, should Art. 15. be admitted; but set aside for allowing ex parte evidence to be given as to the price of certain work, when the suit was 1 Dallas 187. commenced, for the clerk's error in making out the rule, or 1 Dallas 293. agreement to refer; and, generally, what is cause of new trial is cause for setting aside a report of referees. Set aside, first, because the referees allowed interest on an unliquidated account; and second, because they allowed a charge of premium and commission for making insurance, without requiring 2 Bay 250 the policy to be produced, or any evidence of its being lost. But on motions to set aside the report of referees, the court has ever confined itself to two points; first, whether there is an evident mistake in matter of fact; second, whether the referees have clearly erred in matter of law. The effect of an award, 2 Gallison's R. 81, Klein v. Catara. 2 Hen. & Mun. 408.- 1 Johns. R. 315. 1 Dallas 355. 1 Dallas 364. 3 Johns. R. 360, Thomp 6. Two actions between the same parties were referred, on different promissory notes; the referees reported one sum, and afterwards filed an additional report, distinguishing what was due on each action. Held, first report was bad, and second irregular. 7. If referees award money to be paid on one side, and certain other things to be done on the other, and the court cannot enforce both, it will neither. But though the court. cannot do this by execution, yet if it can by attachment, the remedies are deemed equal and mutual, though by different processes. Held also, an attachment lay for a contempt of court in not performing an award of referees, at common law; that in all cases, where matters are awarded to be done on both sides, the court will exercise its equitable powers in such a manner, as not to suffer either party to elude the performance. of the award. And if any part of the award be impossible to be performed, the court will refuse an attachment, for that part. Bird v. Sand, 1 Johns. Cas. 393, reference postponed on account of an absent witness. 8. Where referees appointed by the court refuse to proson r. Parker. ceed; the proper course against them is by attachment, after they have accepted. 1 Dallas 164. 1 Dallas 347 An attorney's agreement to refer, binds his client; but 1 Dallas 251. referees ought never to be appointed, but in the presence of the parties. The court will not instruct referees on a point of law, though they apply for instruction. 2 Dallas 157. 9. The usage of referring ejectments, as well as accounts, -6 Fast 309. is very ancient; and it has been the constant usage to confirm awards, though no damages or costs are found. Referees cannot alter their award and ready to be delivered. 4 Dallas 120. 10. A report of referees cannot give a right or title to land, but it may settle a dispute about land, either in ejectment or trespass. 11. An umpire chosen by referees must himself hear the СH. 13. parties and examine the witnesses; ex parte communications Art. 15. to referees ought to be condemned. 4 Dallas 232, 271, 300. § 12. It is too late to annul a rule of reference, when the 4 Dallas 430. referees have investigated the whole transaction, and agreed upon their reports, and have conducted correctly. 13. Notice of the time and place of the referees' meeting 1 Dallas. must be served on the party, not on his attorney, unless the rule provide for notice to the attorney. §14. Where the exceptions to the report of referees arise 1 Dallas 129. from the face of it, and depend on construction of law, they need not be filed in writing. ton v. Brazer. $15. Case on agreement made January 29, 1810, between 11 Mass, R. Brazer and other abutters on Exchange Lane in Boston, sever- 447, Inhabially, on the one part, and the plts. on the other, reciting, the tants of Bosplts. agreed to widen this lane, and mutually promised each other to submit to the award of certain arbitrators, as to what each abutter should pay or receive as awarded &c. The arbitrators awarded the deft. pay $5000, for the benefit he would receive by the widening, to other abutters. Judgment for the plts. 1. Though the abutters in fact agreed with a committee of the selectmen; for the plts. were held by law to pay the damages, and payment to the abutters was in fact payment to the plts. 2. No objection said widening had not been recorded for the town had undertaken to widen the lane, and the deft might lawfully use it. 3. No objection, part of said $5000 was to be paid to Henry Sargent, not a party to the submission or agreement; for deft. agreed to the award after made &c., and Sargent assented to it, though after made. Where a submission is to be to the award of two, and if 2 Johns. R. they cannot award in such a time, then they may appoint an 57, 63, umpire; the two may appoint an umpire before they pro- Solomons. ceed to act on the matter submitted, and within their limited time. An award of payment of a specific sum by one party to the other, is final and sufficient, without a release. Again, held in the same case, if the umpire direct, that should any errors be found on the calculation of the sum awarded, on proof thereof the deft. should refund the amount, this does not open the merits of the dispute, but the award is final and valid. Held in this case, where the umpire was appointed of, and concerning the premises, and it was stated in the award, that he took upon himself the burden of the umpirage, it is to be intended, that he awarded concerning the subject matter submitted. Also held; 5, in an action of debt on an award, the plt. need not state more than what is in his favour, and sufficient to support his demand. The principles recognised in this action, however unauthorized by some of the old authori M'Kinstry v. CH. 14. Art. 1. Lev. 174. 12 Mod. 512. 671. ties, are very clearly supported by the best modern decisions, in which, and very reasonably, there have been constant endeavours to avoid ancient niceties and strictness in matters of award. § 16. The old authorities as to the election of an umpire 2 Ld. Raym. were founded in ancient niceties, and are questionable; see on this point Reynold v. Gray, 1 Ld. Raym. 222, Ch. 70; Mitchell v. Harris, 1 Ld. Raym. 671; 1 Salk. 71. See Lofft 34, 137, 554. 2 Johns. Cas. 402. 2 Johns. R. 374, Adams v. Bailey. 6 Johns. R. 329, Salisbury v. Scott. 1 Johns. Cas. 17. It seems in New York the court will not refer causes, if questions of law are expected to arise in them; at least, the court will not order a cause referred in such a case, but reserve it for trial, and in a cause of great difficulty the court will set the report aside for a re-hearing. 1 Johns. Cas. 280. However, in a later case, when a motion to refer a cause was repelled by an affidavit, that questions of law would arise, held, such an affidavit must also state what the points of law are, to enable the court to judge of the reasonableness of allowing the reference or not. 18. If the rule of reference require the referees to report 334, Brower in a limited time, their power ends in that time, and any report v. Kinsley. made after is void. 4 Dallas 71. 19. Referees cannot delegate their authority to others. 20. If a husband submit a claim in his wife's right, and 1 Vern. 396. the arbitrator awards money to be paid to him, her claim is extinguished, and the new duty absolutely belongs to him; and if he die before it is paid, it goes to his executor. So, where he can get judgment in his own name alone for her debt. 21. Awards not to be set aside but for partiality, corruption, or gross misconduct in the referees, or for some clear mistake of the law or the fact. 1 Johns. Ch. R. 101, Herrick v. Blair & al.; 2 Johns. Ch. R. 361, Underhill v. Van Courtlandt; ib. 551, Todd v. Benlow; ib. 276, Shepherd v. Merrill. See Ch. 24. 2 Bl. Com. 326, 327. 1 Bac. Abr. CHAPTER XIV. ACTION OF ASSUMPSIT. ASSIGNMENTS. ART. 1. The principles and effects of assignments. This action of assumpsit is often founded on assignments of property and of choses in action. "An assignment is properly a trans 157.-1 Com. D. 553.—Co. Lit. 214.-Roll, Abr. 376.-1 Bin. 496. fer, or making over to another, the right one has in any estate." And in assignments he parts with his whole property, and the assignee stands to all intents and purposes in the place of the assignor. They are of estates, both real and personal. Assignments of personal estate only will be considered in this chapter; of real in another : nor will the assignments of bills of exchange or promissory notes be considered in this chapter, but under their proper head: so bail bonds, mortgages, &c. CH. 14. Art. 2. 157.-Co. L. § 2. It is a general principle, that a possibility, or a thing 1 Bac. Abr. in action, or cause of suit, or a title for a condition broken, 314.-1 Dalcannot be assigned over by law; and this to prevent mainte→ las 268.nance and oppression. Many cases of assignments, see Insol- 1 Johns. Ca. vency &c. 57.-7 East 153. E. 595. Bac. Abr. 157.-Co. L. 232.-1 Bos. & P. 447. 2 Vern. 595. 3 Chan. R, 90.-Ld. Raym. 683.2 Vern. 428, 540, 692, 764, §3. A personal trust, one man reposes in another, cannot 1 Bac. Abr. be assigned over, however able the assignee may be to exe- 158.—8 D. & cute the trust; it is a confidence in the trustee personally. 2 W. Bl. 820. 4. Though a bond, or note not negotiable, being a chose 1 in action, cannot regularly be assigned over, so as to enable the assignee to sue it in his own name, yet in equity and justice he has the property, and in this the law will protect him. So much so, that if the contractor, after notice of the assignment, pays the contents to the contractee, he will be compelled to pay it over again to the assignee; but otherwise, if he pay to the contractee without notice. Nor can the assignor revoke the assignment, nor will the court allow him to revoke his 312.-2 Salk. power to recover the contents in his name, he has given to the 563.-10 Co. assignee for a valuable consideration. But the assignee must 48-Lofft take this contract or property, subject to the same equity it 314, Holley was subject to in the assignor's hands, he can take it in no v. Scott. better condition than he held it, from whom the assignee receives it. Assign includes all under another's title by act of law, or in fact. 563.-3 Lev. 47.-4 Mod. 5. Nor is a bond, or debt assigned over by a creditor, Salk. 79, assets in the hands of his executor or administrator; for by Deering . Torrington.-the assignment he passes the property substantially to the 4 D.& E. 690. assignee, and gives him a right, the law as well as equity will protect, to receive the debt to his own use. Assignment of a chose in action need not be by deed. § 6. If A owe B $1000 on contracts not negotiable, and 4 Cruise 160, B assign this debt to me among others, and makes me his 162. attorney to settle and recover it, I may refer them; and the referees may award the debtors to pay me the sum due to B, as his assignee and attorney; and in my own name I can recover this sum. 1 ART. 2. English cases. If an obligee in a bond become a 1 D.& E. 619, bankrupt after he has assigned it, he must sue it, or the as- Winch v. signee in his name. Keeley. Сн. 14. 8 T. R. 571, Banfill v. See many useful forms of assignments, Oliver's Con § 1. In 1797, the plt's. father and Geaves & Co. assigned to the plt. all debts due to them, and gave him a power of attorney to receive them to his use, and to compound for them. Certain debts subsisted between them, the assignors, and the defts. In 1799, the plt. and defts. referred them, and the plt. and defts. promised to each other to abide by, and perform the award of the referees. They awarded, that there was due from the defts. to the plt, " as the attorney and assignee of E. J. Banfill, senior (the father,) and Geaves as aforesaid £831 veyancer 58 19s. 6d," and that the defts. should pay this sum to the plt. "in full discharge of debts and sums of money due from the defts. to" the assignors, and pointed out the manner of pay2 vol. 154 to ment by bill of exchange. The plt., the assignee, brought assumpsit in his own name, and, on argument, recovered this sum; but had he been only the attorney of Banfill senior and Geaves, then he must have referred and sued in their to 110, and Wood's Conveyancer, 632. 1 Wils. 211, Comyns. names. 2. .In this case, one of the captors of a prize assigned his Morrough r. share to the pit., after the capture was made, but before condemnation, and the plt. brought assumpsit for money had and received against the deft., the ship's agent, who had sold the prize, and recovered. And the court held, when the prize is condemned, "the property must be considered as immediately vested, at the instant the ship was taken." was taken." Wright J. said, "at common law, the subject, in time of war, was entitled to the property of whatever kind he could take from the king's Assignments enemies," "and we are to be governed by that, and not by the must be by law of nations." This was, in fact, a sale and transfer of the share, the seller's property in which, vested by relation, before he sold or assigned; but if the plt. had taken the assignment of this share before the capture, could he have recovered? had the seamen any assignable interest before the capture? At any rate, this was an assignment of a chose in action. Cited 1 Cranch 424. deed, 4Cruise 161. No need of technical words, ib. 4 T. R. 248, Ledderdale r. Montrose. 3. The future half-pay of an officer is not assignable, nor the full pay of a military officer. No chose in action can be 2 Stra. 1215. assigned, so as to give the assignee assumpsit or other action in his own name, unless it be negotiable, or except some stock contracts. 3 Dall. 505; 1 Cranch 438. -1 H. Bl. 627.-3 D. & E. 681. 1 T. R.26.— 1 Com. D. 553, Delany v. Stoddart. --4 Cruise 170. Skinn. 143.1 Com. D. 4. Though a chose in action cannot strictly be assigned in law, yet in equity it may be, and in case of a policy of insurance, the court will so far take notice of an assignment, as to permit an action to be brought in the name of the assignor. 4 Cruise 162, 172; 2 Cruise 6. 5. If B owe a debt to the testator, and his executor as330-Salk. signs it to A in satisfaction of a just demand, the administrator 79.-2 Cruise de bonis non of the testator shall not sue B; for by the as 122, 452. 6 Cruise 522. |