A. S. ORMSBY V. GEORGE ORMSBY. March 23, 1857.

Daily Southern Cross, Volume XIV, Issue 1019, 3 April 1857, Page 2

A. S. ORMSBY Y. GEORGE ORMSBY. March 23, 1857.

This action was brought on the 15th day of October, 1856, for the sum of £251 16s. 4d., said to be due for work and labour done and performed by plaintiff and his servant for defendant, and at his request, on the Ist day of August, 1856, Mr Merriman moved for a Rule to shew cause why the award made in this cause should not be set aside on the following grounds, viz. : — 1. Charles Heaphy, Esquire, one of the two arbitrators, acted during the proce dings in the threefold capacity of arbitrator, advocate, and witness, for the | plaintiff : and manifested bias and prejudice during such time towards the defendant. 2. The admission of irrelevant matter as evidence by both arbitrators ; namely, evidence as to the ways of surveyors, and the evidence referred to in the affidavit of Singleton Rochfort, one of the two arbitrators. ! 3. The said Charles Heaphy having refused to concur in the award mentioned by the said Singleton Rochfort in his affidavit ; and the latter having, while acting as sole arbitrator, admitted iirelevant matter as evidence which, together with the irrelevant matter aforesaid, was laid before the umpire as data, whereon to make his award in this cause. 4. The refusal by the said Singleton Rochfort to examine as witnesses, on behalf of the defendant, Cormack Patrick O'Rafferty and Samuel Jackson, Esquires. 5. No evidence was given before the arbitrators, or either of them, as to what were the Government contract rates for surveys, nor as to the' extent of the lines alleged to have been cut on the Maungatapere block by the plaint)ff. 6. The following inaccuracies and mis-statements in the report of the said Charles Heaphy, on the merits of tho cause made to the umpire, under the order of the : Court of the sixteenth February, whereby the judgment of such umpire was misled. 1. The umpne i 6 given to understand that the defendant was bound to work out the branch roads in the Maungatapere block, leading to the farms to be laid out, whereas the plaintiff had expressly stipulated to do the same. 2. The umpire is given to understand that the plaintiff had stated, on oath, that he found a mass of iron in a certain part of the Block ; whereas such statement was not made upon oath. 3. From allegations in such Report, as to a difference in the "readings off" of the instrument used by Mr. Bedlington and that usrd by the plaintiff, the umpire is left to infer that that is sufficient to account tor the grave errors proved by Mr. Bedlington to have been made m the survey of the said Block by the plaintiff. 4. From the allegations in such Report, touching the jpet of the tracing furnished to the said Mr. Bedlington o examine the plaintiffs survey of the said Block, not exactly coinciding with the plaintiff's map of such survey when placed thereupon, the umpire is led to infer that Mr. Bedlington could not in consequence ascertain whether such survey was correct or not ; whereas the contrary is the case. 5. Giving the umpire to understand that Mr. Bedlington examined the whole survey made by the plain • tifl, and found but 1 fourteen pegs wanting therein; whereas Mr. Bedlington examined but a portion of tho same and found the fourteen pegs wanting in such portion . 6. Mis-information as to the grounds of difference in opinion between the two arbitrators touching the plaintiff's claim to the sum of twenty-two pounds, one shilling, set out in his bill of particulars ; and as to the defendant having enjoyed the benefit of such work ; and as to the plaintiff's haung acted in the capacity of assistant to the defendant in doing the work for which the said sum is so chaiged. 7. Omission of material circumstances when referring to the award made by the said Singleton Rochfort. These grounds were supported by the affidavits o£ deiendant and of Mr. Roihiort his arbitrator, and o f one Alexander Barclay ; and by an affidavit of MrJackson, the letter of which merely verified the legal proceedings connected with the award. These last were shortly as follow : — On the 13th of January this cause was called on for

trial,, when the parties consented that the plaintiff should take a verdict for the sum of £251 16s. 4d., the damages laid in the action, subject to the award of two arbitrators to be chosen in manner then agreed to ; and in the event of their disagreement then by an umpire, to be chosen by the arbitrators. The fact that a verdict was- taken x ls entirely, and very improperly, omitted in Mr. Jackson's affidavit, as it makes the case stronger against the defendant on the present motion. The arbitrators chosen were Mr. iHeaphy, a surveyor, on The part of the plaintiff, and Mr. Rochfort, a barrister, on the part of the defendant, jnd the award was to be made by them on or before the 13th of Febraary. On the 19th January the arbitrators appointed Mr. Walter Graham the umpire. On the 16th of February, the arbitrators not having made their award, an order was made, by content of the jpdrtics, that the arbitrators should, on or before the 19th of February, deliver over to the umpire the notes of the evidence taken by them respectively, in which the first two days evidence -was taken by Mr. Heaphy alone, and < the evidence of Mr. Heaphy was taken by Mr. Rochfort ; and further, that the arbitrators should prepare and sign, for the direction of the said umpire, the points on which they agreed and the points on which they differed, together with such reasons as each might have for his so disagreeing, and the umpire was to make his award on or before the 26th of February. The time was, on the 25th of February, extended to the 2nd of March, with the consent of the parties. On reading the above order it will be seen that the greatest care was taken to prevent anything like misapprehension of the facts on the part of the umpire, and that, if »ny such arose, it must have been owing to the neglect of one of the parties and his arbitrator, and it would be monstrous to set aside an award for mistppreprehensions so occasioned. The umpire awarded that the, damages found by the verdict of the Jury should be" reduced to the sum of £220 4s. 10|d., whichsum he found to he due to the phiintiff. The tirBt grpund for setting aside the award proceedson a fallacy, in considering Mr. Heaphy as the plaintiff's arbitrator, for the award was not the award of the arbitrators, but of the umpire alone ; so that if Mr. Heaphy was improperly examined as a witness, he stood in relation to the umpire only as any other witness. Besides this, it was a point acquiesced in by the defendant's arbitrator, and was,' no doubt, communicated to the defendant, who, since the arbitrators had ceased their functions, had consented to an order in which the fact of Mr. Heaphy having been examined as a witness is especially mentioned, and no objection then made to it, — as to any alleged bias or prejudice on the part of the plaintiff's arbitrator. He might perhaps charge the same against the defendant's arbitrator, in making his appeal in support of the present application. These charges are too commonly made by unsuccessful parties and are never regarded No doubt they are often true, but there is no remedy for them. A new trial could not be granted for this cause, much less could an award be set aside, where the parties would have somuch fuller means of contracting it, than could be had in the progress of a tiial. The second ground is of course untenable, the receiving improper evidence, being the act of the twoarbitrators, besides which it appears to me that such evidence -was most relevant (the action being for plaintiff's services as a surveyor) ; besides which, we do not know whether the umpire did or did not reject, such evidence when making his award. The third ground is one of reflection on the defendant's own arbitrator, and inasmuch as he furnished the umpire with Mr. Heaphy's evidence, and might have commented on it as no doubt he did under the order of the 1 6th February ; that could furnish no ground for objecting to the award. The fourth objection has no weight, being a com - plaint of the tioo arbitrators having' rejected certain evidences. Had this been deemed an objection, an application might have been made to the Judge that such evidehce should be taken, when the time for the umpire making his award, was extended by consent. Throughout these objections defendant's attorney confounds the acts or neglects of the arbitrators with those of the umpire. The fifth objection is irrelevant inasmuch as the rates paid by the Government to their contractors could from no criterion as to the proper charge to be made by any other surveyor, and if the extent of the lines was not shewn it was an. omission on the part of the defendant, and it is now too late to rectify it. A new trial could not be granted, for any neglect of a party to bring forward all his evidence, or to elicit from his adversary's witnesses all that they knew in his favor. The 6th objection is that Mr. Heaphy, the plaintiff's arbitrator, in his report to the umpire, made certain inaccuiqcies and mis-statements, and these are set fortb in seven following paragraphs. But the answer to> these are,, that mis-statements made to the arbitrators or umpire is no ground for setting aside an award. If any such were made, it was the duty of the defendant's arbitrator to set the umpire right upoa them, and it was the business of the defendant to see what Mr. Heaphy's report was. It is not likely that he failed to ascertain this, nor that his arbitrator failed to put the defendant's case in the fullest and most favourable light for him. The grounds on which awards are set aside are for corruption of the arbitrators, or in this case as the arbitrators made no award, corruption on the part of the umpire, or mistakes by them or him, when he sets out in his award the grounds on which he decided. Here no corruption is alleged, noi is it shewn on what (/rounds he formed his conchisions . He was not bound any more than a juiy to state his reasons He may pay little or no attention to any one witness. The umpire may not have been misled in this case by any mis-state-ment we know nothing ot the grounds of his decision. Having referred to cases in "Watson on awards pointing out the law on these several points, from pages 100, 103, 252, 272, 280 to 290, 292, 303, 341, 342, 344, and 345, 1 refuse to grant the rule nisi. Mr. Merriman here very indecently observed that I had granted such a rule a few days before, in the case of Oakes v. Collins. But in that case, as I reminded him, the objection to the award was apparent on the face of the award: it was not final. Here, Mr. Merriman had admitted that this was not the case ; that his objections were those already set out. Every lawyer, however ought to know that the award of an umpire is final and conclusive. — Wats. 289 I will here cite a portion of these cases, from Wats. 288, '• The Court will not open the award unless something can be alleged, amounting to a gross misconstruction of the law or misconduct on the part of the arbitrator." (here it is umpire) — and in p. 289. The Court, on refusing the rule, said, " The arbitrator (umpire) is not bound to state the grounds of his decision. Where matters of law and fact are referred to an arbitrator, his award is final and conclusive.—and in p. 290. "It was alleged by the affidavit of one party that the arbitiator had made a mistake,and on pointing it outtothearbitratorhehadadmittedhis mistake. The Court, however, discharged a rule objecting to let aside the award, considering it dangerous to admit such a principle." — and in 284. "The arbitrator is substituted for the jury, and we have no authority that I know of to draw a conclusion for him on the question of fact." An arbitrator is not confined" to make his award on strict legal grounds, but may make his award on grounds entirely equitable." — and in p. 292. " The counts for a mistake in matters of fact, as a miscalculation of figures on the linet, will only set aside the award when such mistakes appear on the face of the award. But as we have seen the court on motion, will not enter into the merits at large, for if they did, no person, it is said, would ever undertake- to be an arbitrator." And I may add, that no one would ever refer a case to arbitration. These matters arise on Mr. Merriman's motion, which was heard. But there was another objection to the mo* tion which was that it was made too late. Such a motion , unless for matters apparenton the face of the avoafd, tnvst be made within 1 1 days. The award was made on the 2nd March. The Court sat on the 16th. The motion was not made till the 23rd — seven days too late.