BECKHAM T. KNIGHT and others.

Νου, 1.

in demurrer, the plaintiff became bank

THE plaintiff sued the defendants for the breach of an agreement, whereby After joinder they undertook to employ him at a salary for a term of years. The defendants demurred to the declaration, and, after joinder in demurrer, the plaintiff became a bankrupt.

rupt, and afterwards obtained his certificate. The

E. V. Williams, on a former day, obtained a rule nisi, calling upon the defendants applaintiff to shew cause why he should not give security for costs.

It appeared, by affidavit, that the plaintiff had obtained his certificate; that the action was continued by the attorney for the sole benefit of the bankrupt; and that the assignees did not intend to interfere. The bankrupt attributed his bankruptcy to the non-performance, by the defendants, of the agreement which was the subject of the action.

Stammers shewed cause.-The assignees have declined to interfere with the action, and the plaintiff is therefore at liberty to proceed in the usual course. Morgan v. Evans (a), is an express authority. In that case the Court refused to require the plaintiff to give security for costs, although it was sworn that he was insolvent, and that the action was brought in his name for the benefit of J. S., who was alone beneficially interested in the result.

So in Townsend v. Snow (b), the Court refused to set aside the proceedings, or to require an insolvent to give security for costs in an action where the assignees had refused to sue.

In M'Cullock v. Robinson (c), it was decided, that a bankrupt, who desired to dispute the commission of bankruptcy, ought not to be required to give security for costs, although he was gone abroad. In the present case the plaintiff attributes his bankruptcy to the non-performance of the agreement by the defendants; and it is against the equity of the case to assent to the present application. Wilkinshaw v. Marshall (d). In Manley v. Mayne (e), the action was carried on for the benefit of the bankrupt's assignees.

E. V. Williams, in support of the rule.-The defendants would have been entitled to allege the bankruptcy of the plaintiff in bar of the action, if they had not pleaded; Kinnear v. Tarrant (f). Biggs v. Cox (g). But as the effect of that would be to compel the assignees to commence a new action, it has been the practice to allow the bankrupt to proceed with the action upon giving security for costs. The principle, upon which such security is required, is, that it is a matter of right, that those who are to benefit by the proceedings, should be liable for the costs. Mason v. Polhill (h). In the present case, the action is in fact, proceeding for the benefit of the assignees, because it is founded on a chose of action which belonged to the bank

plied for secu⚫rity for costs, but it being

shewn that the assignees did not intend to the action, and

interfere with

that it was continued for the benefit of the bankrupt, the Court re

fused the application.

VOL III.

Com. Pleas.

BECKHAM

71.

KNIGHT.

rupt before his bankruptcy. Webb v. Ward (i). The rule is the same as to insolvents. Where the plaintiff was discharged under the Insolvent Act after issue was joined, the Court stayed the proceedings until the assignee or some creditor should give security for costs. Heaford v. Knight (k).

TINDAL, C. J.-This case stands on its own peculiar grounds, and will form no rule for any other case not within the same circumstances. The action was brought and issue was joined before the bankruptcy; and, after the bankrupt obtained his certificate, the present application was made. If the matter had rested here, the motion would probably have been successful, but it appears that the assignees do not intend to interfere, but on the contrary, that the action is carried on for the benefit of the bankrupt. The case, therefore, falls within the principle laid down in Townshend v. Snow (1), where an application similar to the present was unsuccessfully made, and C. J. Gibbs said, referring to Webb v. Ward, "In that case the assignees were suing for their own interest in the name of the bankrupt; the present action, on the contrary, was brought because the assignees refused to sue at all."

VAUGHAN, J.-This is an application to the discretion of the Court, and the possibility that the action may enure for the benefit of the assignees is not a sufficient reason for granting the application.

Four actions between distinct parties, and all differ.

ences, were re

ferred to arbitration; but the arbitrator did not notice

or dispose of a fifth action which was pending, although it was

a matter in dif. ference, and was brought

before the arbitrator; Held,

that the award

STONE and others v. PHILLIPS and others.

MOTION to set aside an award. At the last Orford assizes, by an order

of Nisi Prius, four causes were referred to the arbitration of a barrister viz., John Stone v. William Phillips, John Stone v. George Phillips and three others, Doe d. R. Stone v. Elizabeth Stone and others, Richard Stone v. Robert Stone. By the terms of the order, the arbitrator was directed to settle the above-mentioned causes and all matters in difference, at law and in equity, between the parties, with leave to all other parties interested to come in within a month; the costs of the several causes to abide the event of the award, and the other costs to be in the discretion of the arbitrator.

The arbitrator, by his award, directed how the issues which had been raised in the four actions should be entered, and set out what interests in certain houses and fields, were taken by the various persons who claimed title to them, was altogether and which were the subject of the actions. He also awarded, that all the parties in the actions should execute releases of all actions, claims, and demands, touching any matter which was the subject of any of the actions referred, or any claim or dispute concerning any title to any of the premises.

bad, notwith

standing the
arbitrator
had directed
that mutual
releases should
be given by the
parties.

Cooper obtained a rule nisi to set aside the award, upon the grounds, amongst others, that it was not final, and that it did not determine the claims

STONE

v.

PHILLIPS.

of Richard Stone, one of the parties. It appeared, by affidavit, that there was Com. Pleas. another action, not mentioned in the order of reference, between Richard Stone and Robert Stone, relating to part of the premises in dispute, and which action, in consequence of some mistake in the proceedings, was not ripe for trial at the assizes; but notice was given to the arbitrator of the claim of the said Richard Stone, and that the action was still pending, and was considered part of the matters in difference between the said Richard Stone and Robert Stone.

Keating shewed cause.—In substance, the objection to this award is, that it is not final. As to the two first causes which were referred, the affidavit does not shew that any thing remains undetermined between the parties to those causes, and as there is an award of mutual releases, the award is at all events good as far as those parties are concerned. When an award is good on an independent question which is submitted to the arbitrator, it will not be vitiated by other parts which are faulty. Manser v. Heaver (a). Thorp v. Cole (b). Nothing can be more independent than two causes upon which an express adjudication is made. [Tindal, C. J.-You are bound to shew that a severance of the causes may be safely made. Here the causes all seem to refer to the same property.] Every intendment ought to be made to support the award, and the affidavits, on the other side, ought to shew that the award cannot be supported, as to the causes which are settled. In Birks v. Trippet (c), where the arbitrator had awarded general releases, it is said that the arbitrator was not bound to allow a debt, although the claim was notified to him. So, in Wharton v. King (d), it is laid down that where an arbitrator has awarded mutual and general releases, he must be deemed to have adjudged and finally decided upon the matters referred to him. In the present case, as the arbitrator has finally disposed of one matter, and then awarded general releases as to all matters, it is final and conclusive. The release is applicable to any state of circumstances which can be suggested.

Cooper, contrà―This award is not final. As far as the interests of Richard Stone are concerned, it is expressly shewn that an action in which he claimed a portion of the premises has not been disposed of. It clearly appears that notice was given to the arbitrator of the existence of that action, and he ought to have disposed of it. In the matter of Robson (e), on a reference of all matters in difference, a demand on one side was laid before the arbitrators, and immediately admitted by the other party; no evidence was therefore given concerning it, nor any adjudication upon it requested. The arbitrators published their award of and concerning the matters referred to them, directing payment of a sum of money, (without saying on what account,) to the party against whom the above claim had been made, with costs; and it being proved that they left that claim out of consideration in making their award, as a matter not in dispute, it was held that the award was bad, as the arbitrators ought to have taken notice of the admitted demand. Mitchell v. Staveley (ƒ). The consideration upon which the arbitration was agreed to was, that all matters in dispute between the parties should be referred. In

Com. Pleas.

STONE

V.

PHILLIPS.

some cases an award may be good as to part of the matter referred, but this case is not within that rule, but is like the case of Turner v. Turner(g), where an award was held to be bad, because some of the parties were left at liberty to prosecute their claims.

TINDAL, C. J.-I should have been glad, if I could have supported this award; but it appears to me, that one of the matters in difference has not been decided. At first, I thought the matter not disposed of, might have been severed, as in Manser v. Heaver(h), but upon looking at that case, it does not seem to me to be applicable. There the arbitrator, after making a good award as to the matters referred, proceeded to add something for the purpose of enforcing the performance of certain works, and the Court merely determined that the latter part might be rejected as surplusage. In that case the unsound parts were cut out of the award, but that cannot be done in the case before us. Four actions were referred to the arbitrator, and also all matters in difference between the parties. One of the matters in difference was an action of ejectment which was pending between two of the parties, and as to that no award has been made. This is somewhat similar to the case of Auriol v. Smith(i). Addison v. Gray(k) is also an authority to shew that, in some cases, an award may be good as to part although bad as to another part.

BOBANQUET, J.-I am reluctantly compelled to say that I am of the same opinion.

COLTMAN, J.-There are some cases where an award may be good in part, but that is where the subject matter is severable. Doe d. Williams v. Richardson (1) was a case of that description. Aitcheson v. Cargey(m), also shews that if an arbitrator exceeds his authority, in certain cases the excess may be treated as surplusage.

(g) 3 Russ. 494.
(h) 2 B. & Ado. 295.
(i) Turn. & Russ, 128.

Rule absolute.

(k) 2 Wils. 293.
(1) 8 Taunt. 697.

(m) 13 Price, 639.

Νου. 4.

amend a writ of

habeas corpus

which was-erroneously

Exparte DAVIES.

The Court will TALFOURD, Serjt., applied for leave to amend a writ of habeas corpus, which had been sued out during the last vacation, bearing date the last day of Trinity Term, and tested 1st Victoria, instead of 7 Wm. 4. The sheriff returned the writ, and it was doubtful whether the mistake would not vitiate the proceedings if not corrected. Morris v. Herbert (a). Wakeling v. Watson (b).

tested in the reign of Victoria instead of 7 Wm. 4.

TINDAL, C. J.-We take judicial notice that her majesty had not ascended the throne at the time the writ bears date. The amendment may be made. Rule granted.

CORBIN v. HEYWORTH.

ARULE nisi, had been obtained for judgment, as in case of a nonsuit, for not proceeding to trial, upon an affidavit which stated that notice of trial had been given.

F. V. Lee shewed cause, and objected that it did not sufficiently appear that the cause was at issue, and that it ought to have been expressly shewn that was at issue. He cited Smith v. Parslow(a).

it

Keating contended that, as notice of trial was given, it did appear that the cause was at issue; in the case cited, there was no statement of that fact.

TINDAL, C. J.-I think the affidavit is sufficient.

Rule discharged on a peremptory undertaking.

(a) 2 Cr. & J. 217; 1 Dow. 308.

SMITH, administratrix of SMITH v. the FESTENIOG Railway

Company.

Νου. 7.

An action of

covenant, in which the pleas had raised se

veral issues upon one

COVENANT for breach of a contract made between the testator and the defendants. The contract stipulated that, upon the completion of seveneighth parts of a railway, the testator should receive a certain sum of money. Breach-That seven-eighth parts of the work had been completed, but that the defendants refused to pay the sum mentioned in the contract. Other breach of cobreaches were assigned which are not material. Pleas-1st, that seven- ferred to arbieighth-parts of the railway were not completed. 2nd, that the defendants paid the testator the sum which they agreed to pay for seven-eighth parts of the railway.

By the consent of the parties it was ordered, at Nisi Prius, that the jury find a verdict for 5000l., subject to be reduced or vacated, and instead thereof a verdict for defendant, or a non-suit entered, according to an award to be made by a barrister; and it was also ordered, that the costs of the cause and reference, so far as regarded the cause, should abide the event and determination of the award so far as regarded the cause, and that the residue of the costs of the reference should be in the discretion of the arbitrator.

The arbitrator, by his award, directed that, on the first issue, a verdict for the plaintiff should be entered with one shilling damages; and, on the second issue, with 13s. 4d. damages. He also directed how the verdict should be entered on the other issues.

Cowling, on the part of the defendants, moved to set aside the award on the

venant, was re

tration, and instead of stat. ing the sum for which the

the arbitrator

verdict should be entered, awarded sepa. rate damages Held, that the award was

on each issue,

good.