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WILLIAMS, J. I am of the same opinion. I entirely agree in the construction put by Lord Justice Knight Bruce upon this statute, in the case of Hughes v. Morris. And, although it is true that that case is open to the observation that the decision does not necessarily involve the present point,-for, assuming that a contract like this could not be enforced by bill for specific performance in equity, it does not necessarily follow that an action will not lie for the breach of it; and Lord Cranworth expressly declined to decide that point (as also did Lord St. Leonards in M'Calmont v. Rankin, 2 De Gex, MʻN. & G. 403), and it was not necessary for the decision of the case,—yet assuming the view there taken of the statute to be the correct one, I think we should be virtually dissenting from it, if we were to adopt the construction contended for on the part of the plaintiff in this case. Nor do I think we would be justified in doing so, by the difference of language used in the present statute, from that of the 34 G. 3, c. 68, s. 14.

1853.

DUNCAN

v. TINDALL

>

Rule absolute.

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1853.

In the Matter of the Arbitration between WILLIAM

LAING and EDWARD TODD. Jan. 31. An award di- BY articles of agreement made the 20th of June, 1851, recting payment of a sum

between William Laing, of Leith, one of the owners of of money to a

the steam-ship Britannia, of the one part, and Edward stranger, is not good, unless it Todd, of North Shields, owner of the ship Ann and appears on the face of the

Elizabeth, of the other part, reciting that “ divers disaward that

putes and differences have arisen between the said parties such payment is for the bene- hereto, touching a collision which took place between fit of a party to the submis. their respective vessels, on or about the 22nd of Decemsion.

ber last, in the river Tyne; each of the said parties The court will not make an blaming the other, and claiming compensation for the order under the 1 & 2 Vict. c.

damage sustained by their said vessels,”-in order to ment of money put an end to such disputes and differences, and to asdirected to be certain, settle, and adjust all accounts, claims, demands, paid by an award, except

and damages in respect thereof, it was agreed as folin a case where lows :-“ That all such disputes and differences, claims, au attachment would have demands and damages as aforesaid, and all other conbeen granted. A dispute

troversies and differences now existing between us, the between A; and said parties hereto, shall forthwith be referred to the owners, as to a arbitration and determination of John Rayne, of Newcollision, was by agreement referred, the agreement providing that “all such disputes and differences, claims, demands, and damages in respect thereof, should be referred to the arbitrators ;” and that “all the costs and charges in and about the submission, the reference, and award, should be in the discretion of the arbitrators." The arbitrators ordered “ that all disputes between the parties touching the matters in difference, should cease and determine;" and they further ordered that A. should pay, “for the damages and costs incurred by B. in consequence of the collision, 721. 6s.;” and they further ordered that “the arbitrators' charges and expenses attending the reference, amounting to 621. 14s. 10d., should be borne in equal proportions by A. and B.; and that the said sums of 721. 6s. and 621. 14s. 10d., making together 135i. Os. 10d., should be paid, within ten days from the execution of the award, to C. :”—The court refused to make a rule, under the 1 & 2 Vict. c. 110, s. 18, ordering A. to pay the 721. 6s. to B.,—there being nothing on the face of the award to shew how the payment to C. was to enure as a payment for the benefit of B.; although there was an affidavit stating that C. was agent for B.'s vessel, and acted as his agent in the matter of the arbitration, and that the money was directed to be paid to him as such agent.

Semble, that the award did not sufficiently dispose of “the costs and charges in and about the submission, reference, and award.”

1853.

In re LAING and

TODD.

castle, ship-owner, and William Richmond, of North Shields, ship-owner, and such third person as they the said John Rayne and William Richmond shall by a memorandum in writing under their hands, indorsed or subscribed on these presents, appoint, or of any two of them; so as the said arbitrators, or any two of them, make their award in writing concerning the matters aforesaid, and all claims and demands relating thereto, under their hands, on or before the 1st of November next, or on or before such further day or days as the said arbitrators, or any two of them, shall, by writing on these presents, from time to time appoint: and that this submission, and the award to be made thereupon, shall be made a rule of Her Majesty's court of Common Pleas at Westminster: and that the said arbitrators, or any two of them, may proceed ex parte, in case of the non-attendance of either of the said parties, or of the non-production of any document, books of account, or other written evidence, after such attendance or production has been required by notice in writing, under the hands of the said arbitrators or any two of them, delivered to the said parties respectively, or either of them, two clear days before the time appointed for such attendance or production : and that all the costs and charges in and about this submission, the reference, and attendance of witnesses thereupon, and the award of the said arbitrators, or any two of them, shall be in the discretion of the said arbitrators, or any two of them, and shall be paid and satisfied pursuant to their award : and it is also agreed that the said arbitrators, or any two of them, shall have full power to examine the parties and their witnesses on oath to be administered by any one of the said arbitrators.”

The arbitrators named in the above submission duly appointed “ John Wright, of North Shields, ship-owner, the third person, to whom, together with themselves,

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all the within named matters in difference should be referred."

Two of the arbitrators, viz. William Richmond and John Wright, on the 31st of January, 1852,—the time for making it having been duly enlarged,-made an award, as follows :-“We order and award, that all disputes whatsoever depending between the said William Laing and Edward Todd, touching the matters in difference, shall cease and determine : And we do further order and award, that the said William Laing, his heirs, executors, or administrators, shall and do pay, or cause to be paid, for the damages and costs incurred by the said Ed. ward Todd in consequence of the collision hereinbefore mentioned between the said vessels Britannia and Ann and Elizabeth, the sum of 721. 68. : And we do further order and award, that the remaining portion, constituting the aforesaid arbitrators' charges and expenses attending the said reference, amounting to 621. 14s. 10d., shall be borne in equal proportions, share and share alike, by the said William Laing and Edward Todd, their heirs, ex. ecutors, or administrators: And we do hereby further award, that the said sums of 721. 68., and 621. 14s. 10d., making together the sum of 1351. 08. 10d., shall be paid, within ten days from the execution hereof, to Matthew Poppelwell, of North Shields aforesaid, surveyor."

The agreement of submission having been made a rule of court, and one Lowrey having been duly appointed the attorney of Edward Todd and Matthew Poppelwell, to demand and receive the 721. 68. so awarded as above-mentioned, and also the attorney of the arbitrators, to demand and receive the 621. 143. 10d. for the expenses of the reference; and Laing having been personally served with true copies of the rule, award, and powers of attorney respectively; and the 721. 68., and 311. 7s. 5d. (being a moiety of the expenses of the reference), having been duly demanded of him by

1853.

Lowrey, as such attorney, and those sums remaining unpaid,

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J. Addison, on a former day in this term, moved for a rule calling upon Laing to shew cause why he should not forthwith pay to Todd, or to Lowrey, his attorney, the sum of 721. 68., pursuant to the award and rule, with costs. He moved upon an affidavit of Lowrey and others shewing that the money had been duly demanded, and had not been paid ; and also upon an affidavit of Matthew Poppelwell stating that he, the deponent, was the agent of Todd, the owner of the Ann and Elizabeth, and that, as such agent, he was acting for and on behalf of Todd in the matter of this arbitration; that he, the deponent, was the same Matthew Poppelwell named in the award as the party to whom Laing was ordered to. pay, or cause to be paid, the 721. 6s. for the damages and costs incurred by Todd in consequence of the collision between the Britannia and the Ann and Elizabeth; that he, the deponent, took up the award on the part of Todd; and that the said sum of 721. 68. was, as he, the deponent, verily believed, so directed as aforesaid to be paid to him, the deponent, as the agent of and on behalf of Todd, and for the sole use and benefit of Todd, and for no other use whatever. (Cresswell, J. The difficulty is, that the award directs the money to be paid to Poppelwell, it not appearing on the face of the award that Poppelwell is Todd's agent.] The result of the authorities, is, that an award of a sum of money to be paid to a third person, is good, where it appears (as it does here by affidavit) that it is for the benefit of one of the parties to the reference: Com. Dig. Arbitrament (E. 7); Bird v. Bird, 1 Salk. 74 ; Adcock v. Wood, 6 Exch. 815; Wood v. Adcock, 7 Exch. 468. (Jervis, C. J. If an action were brought upon the award, Todd would be plaintiff; and the breach would be, non-payment

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