Shafer v. Shafer

Tuck, J., delivered the opinion of this court. It is manifest from this record, that the award filed by the referee, on the 31st of August 1847, was not considered by the parties as a final ascertainment of the credits claimed by the defendant. That award was made at the request of the plaintiff’s attorney, he agreeing at the time, that if the defendant should thereafter show any further credits to which he was legally entitled, they should be allowed him. Thefi.fa. was issued on the 20th of March 1848, and on the Slh of May 1848, while that writ was in the sheriff’s hands, the parties are found entering into another reference to Messrs.

Schley and Spencer, with power to appoint an umpire. There can be no mistake as to the object of this last reference. It appears that there had been transactions between the parties of long standing and large amounts, out of which, as George Shaffer states, arose the cause of action on which the judgment was entered. In a spirit of fairness and with a view to a full and final settlement, they agreed to this last submission.

Mr, Spencer’s affidavit shows, that after Nesbitt’s first award, “the defendant, by his son and agent, George Shaffer, made repeated efforts to establish a demand of Henry Shaffer against Jonathan Shaffer, by virtue of an old partnership, of which Jonathan and Henry were members, in order to obtain a cross-demand against Jonathan, wdth a view to offset the same against this judgment, and, to that end, had submitted the partnership affairs to their attorneys, who, not being able to agree, appointed an umpire. He also states, that he considered the matter of credits on the judgment out of Nesbitt’s hands, “both on account of the great length of time and the substitution-of other referees.” He goes on to show, that the ⁵²³ joint accouut was gone into by the referees and umpire, and an award made in June 1851, which had been lost. George Shaffer states, that “subsequent to the judgment, the parties agreed to submit all matters in dispute between them, out of which said claim or judgment arose, to the arbitration and decision of the counsel, with power to choose an umpire, with the distinct agreement and understanding, that the judgment should repose until the decision of the arbitrators was made. That if they decided that any sum of money was due from Henry to Jonathan, the judgment should stand as security for such sum; and if the amount ascertained to be due from Henry to Jonathan should be less than the whole amount of the judgment, then the judgment should be rendered accordingly.” It is clear, that the second submission was designed to take the place of the first, and that Nesbitt’s power over the judgment, as to ascertaining credits, ceased from May 1848, when, as appears by the statement of Judge Weisel, filed with Mr. Spencer’s affidavit, the agreement for the second reference was made.

It is, therefore, unnecessary to decide what was the effect of the agreement made by Mr. Spencer, when the first award was filed as a reservation of power to Nesbitt to make a second award. But, because of the second submission, we are of opinion, that his last award was void and should have been set aside by the court. We are