Submission. Award. The general plea of non-assumpsit puts every material averment in issue. First, a mutual submission of all the parties to the referemce is to be proved;(a) if written, by the production and proof of the writing, in the usual manner;(1) if unwritten, by the arbitrator, or some other person conusant of the submission. An order of reference, made by a judge in a cause tried before him, may be proved by the original order, or if the order has been made a rule of court, by proof of such rule :(2) the rule, by reciting the order, shews that the court have adopted and acted upon it, and is therefore to be accredited as proof of the original order. The award is then to be proved.(2)(b) This must be properly stamped, and pursuant to the submission in form as well as in substance. It ought also to agree with the statement on the record in all its qualifications and conditions. An averment that two arbitrators had appointed a third person as arbitrator, in pursuance of the order of reference, is not proved by a recital in the award to that effect; nor is it proved by shewing, that the third person signed the award, or acted in any other part of the proceedings as arbitrator.(3) The recital is a mere written statement by the arbitrator, and not legal evidence of the antecedent appointment against a party charged under the award; and the circumstance of the third person having (1) See 1 vol. p. 504. and Antram v Chace, 15 East, 209. stated 1 vol. p. 400. (2) Still v Halford, 4 Campb. 17. by Lord Ellenborough. (3) Still v Halford,4 Campb.19. (a) Where the submission is by parol, the plaintiff must shew not only that the parties promised to be bound by the award, but that their promises were concurrent. Keep and Hale v Goodrich, 12 Johns. Rep. 397. As to declaring on mutual promises, vide Dunl. Pr. 255, and the cases there cited. (b) When an award of arbitrators is in issue, the arbitrators may be examined to prove what they decided upon. Zeigler v Zeigler, 2 Searg. & Rawle, 286. acted as arbitrator is no proof of the right to act in that character. The averment that the defendant had notice of the award,(a) though commonly made, is entirely unnecessary, the fact of the making of the award being as much within the knowledge of the one party as of the other;(1) consequently this averment need not be proved, unless it is expressly provided that the award should be notified to the parties, in which case the notice must appear to have been regularly given. (2)(6) Nor is proof of a demand of payment necessary, except where the payment is of a collateral sum upon request; as, where the defendant promised to pay a sum of money on request, for which sum the action was brought, in case he did not perform the award on his part:(3) there the averment of a demand must be specially made and proved. The rule is different in the proceeding by attachment; where, as the process is for a contempt, personal notice of the award, as well as a demand of the money, is always necessary.(c) If the award direct some act to be done by the plaintiff, previous to that which is required of the defendant, a per (1) 8 Rep. 92. Cro. Car. 132. 2 Saund. 63. a. n.(4.) (2) Child v Horden, 2 Bulstr. 144. (3) Birks v Trippet, 1 Saund.33: (a) When a third person will be intended to have notice of an award, vide Humphreys v Gardner, 11 Johns. Rep. 61. (b) The submission contained a provision that the award should be ready to be delivered to the parties in difference on or before a stated day. Although under this stipulation the party is entitled to a delivery of the original award; yet if he accepts from the arbitrators a sworn copy, without objection, this will be deemed a waiver of his right to receive the original. Sellick v Addams, 15 Johns. Rep. 197. What other circumstances will amount to a waiver, see Perkins and wife v Wing and another, 10 Johns. Rep. 143. (c) See a brief statement of the proceedings by attachment for dise beying an award, Dunl. Pr. 349, 350. 72 73 Non-assumpsit. formance of this precedent act on the part of the plaintiff ought to be averred and proved. (a) As to the proof of the defendant's default in not performing the award, where the alleged breach is for not paying a sum of money awarded to the plaintiff, the burthen of proof is with the defendant, who ought to prove the payment, if he can, in discharge of himself. A submission and award have in some cases been admitted in evidence, in actions founded on the original debt, as an admission on the part of the defendant. In the case of Keen v. Bathshore, (1) which was an action for work done, with the usual money counts, Lord Ch. Justice Eyre admitted the award of the arbitrator as a statement of accounts between the parties, and an admission of the balance due to the plaintiff.(2) And upon the same principle, in the case of Kingston v. Phelps, (3) which was an action of assumpsit on a policy of insurance, Lord Kenyon allowed an award on the matters in dispute to be given in evidence.(b) The defendant may insist at the trial, under the general issue, on any legal objection to the validity of the award, which is apparent in the award itself:(c) but he cannot (1) 1 Esp. N. P. C. 193. (2 And see Daniell v Pitt, in 1vol. p. 103. and other cases there cited. (3) Peake N. P. C. 228. The (a) Vide Dunl. Pr. 260. 262. proof of the plaintiff's submission to the reference failed in this case; so that he was obliged to resort to other evidence. (b) In replevin a submission and award between the parties, are evidence to prove the defendants claim to goods, but not conclusive. Murray v Paisley, 1 Yeate's Rep. 197. But awards not pursuing the submission, cannot be received in evidence. Howard v Pollock, 1 Yeate's Rep. 509. (c) Vide Kleine ▾ Catara, 2 Gallison, 61. Swinford v Burn, 1 Niel Gow, 5. impeach the award by proof of any matter extrinsic, such as the undue practice of the arbitrator, &c. which would be a ground for an application to set aside the award, and ought to be brought forward in that specific form within a certain limited time.(a) Secondly, of the evidence in assumpsit on an attorney's Assumpsit on attorney's bill. bill. No attorney or solicitor can commence or maintain any suit for the recovery of fees, charges, or disbursements at law or in equity, until the expiration of one month. or more, after he has delivered to the party or parties to be charged therewith, or left for the party or parties at his or their dwelling house or last place of abode, a bill of such fees, charges, or disbursements, subscribed with his proper hand.(1)(b) It is unnecessary to enquire here into the construction, which has been put upon the words, "fees, charges, or (1) St. 2 G. 2 c. 23. s. 23. The St. 3 Jam. 1. c. 7. required all attornies and solicitors to give their clients a true bill, subscribed by their hands and names, of all (a) Vide Perkins and wife v Wing and another, 10 Johns. Rep. 143. So, the Supreme Court of New-York has held that where a cause is submitted to arbitration without a rule of court, it would not interfere to set aside the award, nor if made a rule of court would the award be set aside, unless for corruption or misconduct. Cranston and another v Kenny's executors, 9 Johns. Rep. 212. The authority granted to the arbitrators being merely a naked power, either party may revoke it before the award is made; and such previous revocation is a defence to an action for the non-performance of the award. Allen v Watson, 16 Johns. Rep. 205. The defence may, of course, be given in evidence under non assumpsit. (b) It was formerly required by an act of the legislature of the state of New-York, that an attorney's bill should be served eight days before commencing an action for costs; but this prevision has recently been repealed. Dunl. Pr. 77. Delivery of bill. 74 At what place. disbursements at law or in equity;" the cases on that subject having been collected in the treatise on the law of nisi prius.(1) But, in passing, it may be observed, that the statute has received from courts of law the most liberal construction in favour of the client. The points to be considered, relate to the delivery and proof of the bill, and to the defendant's liability. First, as to proof of the delivery of the bill. The intention of the legislature in requiring a delivery of the bill was, that the client should have due time to examine the charges, and, if necessary, to take advice upon them.(2) If the bill is delivered to the client himself, it should regularly be left with him; the 'attorney ought not to take it back again, though the client should acknowledge the debt, and promise to pay.(3) Nor would it be sufficient to prove, that a copy of the bill was shewn to the client, and the several charges explained, upon which he admitted the debt; the words of the statute are imperative.(4) If the attorney's clerk, who is supposed to have delivered the bill, is dead, proof of an indorsement on the bill in the handwriting of the clerk, stating that a copy was on a certain day delivered to the defendant, corroborated by proof that it was the clerk's duty to deliver the bill, and that such an indorsement would regularly be made according to the common course of business in the office, has been very reasonably held to be prima facie evidence of the due delivery of the bill.(5) When the delivery is not to the party, the bill must be left for the party at his dwelling-house or last place of abode leaving it at the counting-house of the party is not sufficient.(6) The meaning of the words "last place (1) See Selw. N. P. title Attorney. (2) 1 H. Bl. 290. (3) Brooks v Mason, 1 H. Bl. 290. (4) Crowder v Shee, 1 Campb. (5) Champneys v Peck, 1 Starkie, 404. ee a case in vol. i. part 2. ch. 8 sect. 2, as to secondary evidence. (6) Fill v Humphreys, 3 Esp. N.PC.254.2 Bos. & Pull.343.S. C. |