
    Miller v. Kennedy.
    November, 1825.
    Award — Time and Place of Making — Notlce.—It is not universally true, that notice should be given of the time and place of making an award.
    Same — Same—Want of Notice — Corruption—How Taken Advantage of.t — But if notice be necessary, tile defendant cannot avail himself of the want of it, where the submission has been by the mere act of the parties, nor of corruption or partiality in the arbitrator, nor of any other extrinsic circumstance whatever, in an action on the award, or on a submission bond; but his only redress is in a Court of Equity. Aliter if the submission be by order of Court.
    Kennedy brought an action on the case against John & William Miller, as consignees of goods on board the schooner Charlotte, of which the plaintiff was master. The declaration alledges that the said schooner did, on her voyage, “meet with a violent storm and bad weather; by reason whereof, and for the preservation of the said schooner and cargo and her loading from being utterly lost, the said master was forced to cut away and throw overboard part of her rigging and cargo, and the said schooner suffered other damages, and it is believed that her loading also received great damage:” that the Millers, with many other persons, were consignees of goods on board the said vessel; and it was agreed between the plaintiff and the said Millers, and the other freighters of the said schooner, or their consignees, that the loss and damage sustained by the said schooner and *her goods and loading, in the said voyage, should be adjusted by John Cowper, secretary of the Marine Insurance office of Norfolk, whom they severally empowered to value and adjust the same, and to award such average as he should think just, &c.; and the said Millers and others respectively agreed with the plaintiff, to pay and make good the loss and damage sustained as aforesaid: that the said John Cowper did, in due manner, by writing under his hand and seal, declare, order and award the average upon the said schooner, and upon the goods and merchandizes, and apportioned the same amongst the persons interested therein; and awarded, that the said John & William Miller should pay the sum of $584 86 cents,- as their proportion of the said general average; of which said statement and adjustment the Millers had notice. The plaintiff avers non-performance on the part of the defendants.
    The defendants pleaded non assumpsit, the plaintiff replied generally, and issue was joined.
    The jury found for the defendants, and judgment was rendered accordingly.
    On the trial, the plaintiff offered in evidence to the jury, a paper writing signed by the several freighters or consignees, which recites the terms of submission as above set forth in the declaration, with the interest of each shipper on board of the said schooner. The plaintiff also introduced another paper giving an account of the causes of the loss sustained by the schooner Charlotte; in which it is said that the schooner, in order to avoid a vessel that had the appearance of a man of war brig, was compelled out of her course, and under the necessity of keeping so close upon Chingoteague shoals, that she struck thereon, and was obliged, in order to lighten, to throw overboard a part of the cargo; and in consequence of the damage sustained, was obliged to put in to Norfolk, to be repaired, &c.
    The plaintiff also offered in evidence a paper signed and sealed by John Cowper, adjusting the average of each person ^concerned. The sum awarded against John & William Miller, is $584 86 cents, as stated in the declaration. This paper was proved before a notary public.
    
      The defendant moved the Court to exclude the last mentioned paper from going-in evidence to the jury, unless the plaintiff could prove that the said Cowper had given notice of the time and place for examining the matters submitted for his decision; and there being no evidence of any notice whatever given by the said Cowper in the premises, the Court gave the instruction accordingly, and excluded the award. The plaintiff excepted.
    The plaintiff 'appealed to. the Superior Court of Law, where the judgment was reversed, and the defendants appealed to this Court.
    Johnson, for the appellants,
    made the following objection to the judgment:
    1. The paper purporting to be an award, was improperly admitted as evidence, because there was no notice of the time and place of making the award. The case of Tittenson v. Peat, 3 Atk. 530, which seems to militate against this doctrine, is imperfectly reported, and its authority questioned by Kyd on Awards, 239. The same book, p. 59, 60, 72, denies the doctrine, and asserts, the necessity of notice. Dig. Book 4, Tit. 8, § 27. This was a question of fact, and the presence of the parties was necessary.
    It may be doubted whether this objection can be taken in a Court of Law; and Kyd on Aw. 226, may be cited as authority for that doubt. But this passage rests upon the case of Wills V. M’Cormick, 2 Wils. 348; and that case applies only to partiality, corruption or misbehaviour. The objection for want of notice does not cqme under either of those heads. Notice is an indispensable requisite to an award. . There cannot be an award without it. It is therefore a legal defence. The plea of non assumpsit *covers this defence. Swinford v. Byrne, 5 Common Law Reports, 438; Mitchell v. Stavely, 16 East.
    2. There ought to have been .notice also of the award having been made. Kyd on Aw. 67, 71, 72, 73.
    3. The paper ought not to have gone to the jury for other reasons. 1. It does not profess to be an award, and there is no proof that it was so intended. 2. The award does not conform to the submission. The former states that the loss happened in consequence of the appearance of a man of war brig; while the latter represents that the loss happened from a violent storm. 3. The submission is not proved. It ought to be made by all parties concerned. There is no proof that the owners ever consented to the submission.
    Attorney General, for the appellee,
    said, that upon general principles, notice is not necessary where the arbitrator is well acquainted with the subject, and where it could not be elucidated by any information furnished by the parties.
    Upon authority, the case in 3 Atk. 530, is in favor of the appellee. Its authority, it is true, is denied in Kyd on Awards; but this opinion is only supported by a reference to the civil law. On the other hand, the authority of Atkyns, is supported by Bac. Abr. tit. “Arbitrament,” K. -p. 239; lb. 233. It is not necessary to prove what it is not necessary to aver. Lawes on As-sump. 213; 1 Saund. 327; Hall v. Lawrence, 4 T. R. 589; 1 Bos. & Pull. 91, 175. That an allegation of notice is not necessary, appears from 2 Chitt. PL 219, in which there is the form of a declaration without such an allegation. But if notice be essential, it ought to be intended.
    The objection that there is no proof of the award, does not lie in the mouth of the appellant, .because he had excluded the award, and thereby precluded the possibility of proving it.
    As to notice of the award having been made, that is. not made a ground of objection in the bill of exceptions. *That only relates to notice of the time and place of taking the award.
    The variance between the submission and the award, is unimportant. The arbitrator was not required to say how the vessel was lost; but to adjust the average upon the loss. All the rest is mere recital, and therefore immaterial.
    November 18.
    
      
      See monographic note on “Arbitration and Award” appended to Bassett v. Cunningham, 9 Gratt. 684.
      The principal caséis cited with approval in Doolittle v. Malcorn, 8 Leigh 612; Dickinson v. It. Co., 7 W. Ya. 431.
    
    
      
      The President, absent.
    
   JUDGE CABELL,

delivered his opinion:

This was an action on the case, brought in the Hustings Court of the city of Richmond, by Miller against Kennedy, on an award. On the trial of the cause, the plaintiff having offered in evidence the submission and award, the defendant moved the Court to exclude the award from going to the jury in evidence, unless the plaintiff could prove that the arbitrator had given notice of the time and place for examining the matters submitted for his decision and arbitration; and there being no. evidence of any notice whatever, given by the arbitrator or received by the defendant, the Court excluded the award; to which opinion, the plaintiff excepted. The jury found for the defendant; and the plaintiff appealed to the Superior Court of Law for the county of Henrico, where the judgment was reversed. From that judgment, the defendant appealed to this Court.

The only point in the cause, is that made in the bill of exceptions, viz. the necessity of notice as to the time and place of making the award.

I am not aware of any rule of universal and inflexible application, in relation to this. subject. It is highly probable that justice would require, in most cases, that such notice should be given. But it is obvious, that there are many cases in which it- would be unnecessary. The case may be one not depending-o-n evidence; or all the facts may have been agreed and made known to the arbitrators.

*But admitting that notice were necessary, there is a manifest distinction between awards where the submission has been by the mere act of the parties, and where the act of the- parties has been accompanied by the interposition of a Court.

The submission in this case, was of the former kind; and in such cases, it is well established, that in an action on the award, or on a bond for performing the award, the plaintiff cannot be required to prove any thing more than the execution of the award, according to the submission; and that the defendant in such actions cannot avail himself, in his defence, of want of notice, corruption or partiality in the arbitrator, or of any other extrinsic circumstance whatever. The defendant’s only redress in such cases, is a resort to a Court of Equity. 1 Saund. 327, (a) note 3; Kyd on Awards, 226, 227. The want of notice, then, even if this were a case requiring notice, could not be taken advantage of in. this action; and I am for affirming the judgment.

No opinion is given on the other points made in the argument, because it is not thought that they are presented by the case in the record.

The other Judges concurred, and the judgment was affirmed.  