Bayne v. Morris

BAYNE & MORRIS having differences with each other, agreed to refer them to arbitrators, who besides being authorized to determine the amount to be paid, were authorized to award upon what terms, as to time and security, the payment should be made. On the 23d of January, 1858, the arbitrators made an award, and on the 26th of the same month made a second one. Both were received in evidence on the trial below, although the pleadings were framed solely with reference to the last one. This adjudged that Morris should pay to Bayne one sum on the 28th of July, 1858; a second sum on the 20th of January, 1859; and a third sum on the 20th of January, 1860; and that to secure the payment of these sums he should give to Bayne a bond with penalty and surety. No bond being given, Bayne, on the 28th of January, 1858, that is to say, before any of the sums awarded to be paid had fallen due, sued Morris in an action of debt; the declaration setting forth, that 'the defendant hath not given the said plaintiff the said bond for the security of the payments aforesaid, although often thereto requested; nor hath he paid the said money nor any part thereof, but the same to pay hath refused; whereby an action hath accrued to the said plaintiff to have the said sums of money or satisfactory security for the payment of the same, to the damage,' &c.

The court below (the Circuit Court for the District of Maryland), instructed the jury that if the suit was brought before either of the sums of money became due, the plaintiff could not recover, and the correctness of this ruling was the point, on error, here.

No considerable objection was taken below to the validity of the second award, that, to wit, of 26th of January.

Mr. Brent for the plaintiff in error, and Mr. Wallis contra.

Mr. Justice DAVIS, after stating the case, delivered the opinion of the court: