Majority
p. 253Noah Weed against Caleb Ellis. NEW-YORK, Nov. 1805.
Headnote
DEBT on an arbitation bond entered into with the plaintiff, by which he, as guardian of Eber Weed, submitted to three indifferent persons, all things relating to a suit brought by him, in the same capacity, against the defendant for assaulting and falsely imprisoning said Eber Weed. Plea, nul agard; to which the plaintiff replied, setting forth an award, reciting that they, the arbitrators, being “ named “ by and between Eber Weed, by his guardian, Noah Weed, “ of, &c. and Caleb Ellis, of, &c. did award, that Caleb Ellis “ should pay to Noah Weed, guardian of Eber Weed, the sum “ of $H2, and each settle with his own witnesses,” with the usual averment, that the defendant had not paid. Demurrer hide, shewing for cause; 1st. That there was no proferí of the award. 2d. That it was without the submission. 3d. That it wanted mutuality; and, 4th. That it was not final,Henry in support of the demurrer. As to the proferí, no great reliance ought, perhaps, to be placed on that: but,
The guardian of an infant may submit to arbitrators on behalf of his ward, and a performance will be a bar to a suit by the infant when of age, for the same matter.
p. 254
as the award was under seal, it would seem necessary to make ⅛6 same proferí, which is required in pleading other instruments of a similar description. On the second point, it is to be observed, that the bond is in favour of the plain- ... . . tiff individually; the defendant is bound to him personally; and the submission is, “ by the said Caleb, and the said “ Noah, guardian as aforesaid,” yet, the recital of the award states it to have been made by persons named “ by “ and between Eber Weed, by his guardian, and Caleb Ellis.” The infant does not submit. The recital, then, is plainly of an award not warranted by the submission. -This is fatal; for the one must be according to the other. Kyd, 273. There is also a total want of mutuality. The payment of the $112, is to Noah Weed, without a single act to be done by him; and it cannot be said that the money infers a release, because the rights of an infant cannot be submitted. He is not concluded; for he may, the very instant he is of age, disavow all his guardian has done. Therefore, it cannot be final. For the necessity of an award being mutual, Kyd, 218, 259, 260.
Woodworth contra.
The replication sets out the award in hcec verba, and therefore supersedes the necessity of a pro-ferí. Though an infant’s rights cannot be disposed of by his guardian, yet there is such a general control over them, that they may be submitted to arbitration. In Roberts v. Nezvbold, Comb. 318, the very thing was done, and in 1 Com. Di. 537, the same doctrine is recognised. At law, the guardian in a suit, is the protector of the rights of the infant, and may bind himself that his ward shall perform. In an action by an infant, his guardian may receive the money recovered, and give an acquittance for it. He is the mere instrument though which the infant’s claims -are satisfied; and therefore, the award of a sum of money to him, it being for the benefit of the infant, is good. 1 Com. Di. 543. Nay, an award of money to a third person is valid, if it appear that the parties submitted for him. Bird V. Bird, 1 Salk. 74. Certainly, then, it must be so, if to Mm who submits for another. The award is clearly mutual;
p. 255
for to make it so, it is requisite only that the money paid be a final discharge of all claims.
Livingston J. In Purdy v. Delavan,[1] we decided, that an award, ordering payment of a sum of money, carries in itself a mutuality, as it must be held in satisfaction of, the matter submitted.
Woodworth»
Then the only point is as to the right to submit. If the guardian has it, the receipt of the sum awarded in satisfaction of that which he was authorised to submit, must be final. The award of the arbitrators, after reciting the suit and submission, is, that they “ thereupon” determine. In 1 Com. Di. 548, it is laid down, “ if there be a “ submission of all matters, an award de et super prasmis- “ sis, that one shall pay so much to the other, is good, for “ being super prcemissis, (or thereupon) it must be held to “ have been in satisfaction of the matter submitted.”
Henry in reply.
The use of & profert is, that oyer may be demanded, and though a deed be set out in the declaration, profert is nevertheless necessary. But, it is confessed, this objection is not much relied on. The reasoning, however, of the other side, admits the award to be neither final nor mutual. It is acknowledged that the infant is not concluded; if so, it cannot be final, nor can it be mutual. To give it the semblance of mutuality, it should have gone further, and awarded certain things to be done by the plaintiff, in case the infant should not abide by the determination of the arbitrators. The plaintiff was only guardian ad litem ; and though a guardian in soccage, or by nurture, or even a testamentary guardian, may submit, one who is merely ad litem, cannot. His power is only for a specific purpose, and as it is a delegated authority, cannot be exceeded, or transferred.
Per curiam, delivered by
The first objection to this award is founded on a want of power in the guardian to submit. Hence it is said, the award is not mutual, and the infant’s rights not concluded.
It is difficult to conceive how it should ever have been doubted whether guardians had this power, or whether they were not bound by their bond, or whether an award
p. 256
under these circumstances, did not put an end to ail controversies submitted between the infant and other party. That an infant himself should not bind himself in this way, is right, but for this very reason, a power should be lodged elsewhere; and where can it be so properly intrusted as to the very person who has the care of all his property? for the present plaintiff does not appear a guardian ad litem only, and must therefore be supposed competent to judge whether a suit or arbitration will be most likely to promote the interest of his ward. But this point is settled in Roberts v. Netubold, where it is allowed, that a guardian may submit for an infant, and even if the latter gives a bond himself, it is not void, but only voidable. With this also agrees the civil law, by which, although an infant cannot bind himself by a submission, yet, if any one will become his surety, a remedy may be had against the latter, for the infant’s non-performance.
There is as little reason to say the award is not final. After reciting their authority to settle all controversies between the defendant and infant, the arbitrators award, “ that the “ former shall pay a certain sum to the guardian, and that “ each party shall settle with his own witnesses.” There can be no doubt that payment of this sum to the guardian would operate as a discharge to the defendant for every demand of the infant, and that the award is, of course, sufficiently conclusive. The only remaining objection is, that no profert is made of the award in the replication. That this is necessary, we can find no authority. The action is on the bond, and, in answer to the plea, the award is set forth in hcec verba. This is the usual way, and must be sufficient.* The replication is therefore good, and the plaintiff must have judgment.
Footnotes
- ⅜ ⅜ Tlie reason why a profert of an award is not required, is, beeauseitis not a deed.