1853. In re LAING and TODD. Bird v. Bird, 1 Salk. 74,-cited in Com. Dig. Arbitrament (E. 7.),—the award was, "that the plaintiff and defendant should pay such a sum yearly to A., for the use of Mrs. Bird, their mother." Upon exception taken, that this was to award a thing to be done to a third person, who was a stranger to the submission, and consequently a matter out of the power of the arbitrator, Holt, C. J., was of opinion that "a general award of money to a stranger was good; for, it shall be intended the submittants were bound as trustees, or were liable to pay the sum; and the payment shall be intended for their benefit, unless the contrary appear." (a) That dictum is recognised and acted upon in Adcock v. Wood, 6 Exch. 815, which was afterwards affirmed, on error, in Wood v. Adcock, 7 Exch. 468, where Patteson, J., in giving judgment, says: "There is a distinction between an award which directs a thing to be done by a stranger, and one which directs a thing to be done to a stranger; and the rule is, that an award directing a party to pay money to a stranger, is not good, unless it be for the benefit of one of the parties to the submission; and the onus of shewing that is thrown on the party seeking to enforce the award. Now, in this case, it is plain, from the language of the award itself, that the payment is intended for the benefit of the plaintiff, because the money is directed to be paid over to him immediately on receipt of it. If Sharpe, the arbitrator, to whom the money is directed to be paid, had been the authorised agent of the plaintiff, no doubt the award would have been good. The plaintiff adopts the agency by this action; for, he states in his declaration, that the (a) "Powell, J., contrà. It must appear to be for their benefit, and it shall not be so intended unless it does appear: but, in the principal case, he held that it should be intended to be for their benefit, or, rather, that it appeared to be so, because the payment was to be for the use of the mother." defendant has not paid the money either to Sharpe or to himself; thereby treating the payment to Sharpe as an act that would discharge the defendant." [Cresswell, J. In that case, it appeared on the face of the award, that the payment to Sharpe was for the benefit of the plaintiff. How does that appear here?] From Poppelwell's affidavit, and Todd's adoption of the agency of Poppelwell, by this motion. In Snook v. Hellyer, 2 Chitt. R. 43, it was held, that directing payment to a third person, for the use of the party, is good, even though the person to receive the money do not appear to be invested with any express authority by the party for whom the money was to be paid. [Jervis, C. J. There, it appeared on the award that the money was to be paid to the third person for the benefit of the plaintiff.] If necessary, the court will reject that part of the award which directs the payment to Poppelwell. [Jervis, C. J. No. That is the whole substance of the award.] JERVIS, C. J. I am of opinion that this rule must be discharged. It is too late now to express an opinion as to whether the 18th section of the 1 & 2 Vict. c. 110, was intended to apply to moneys directed to be paid under awards, there having now been a long course of practice so applying it. But an application under the statute cannot be put higher than a motion for an attachment for non-performance of the award; and the courts have repeatedly held that they will not make an order, where the circumstances would not justify them in granting an attachment. The case must be clear and plain. Here I think it is much too doubtful. It is not quite certain upon the face of the award, whether the award of 721. 6s. to be paid by Laing " for the damages and costs incurred by Todd in consequence of the collision," means, as Mr. Addison contends, the damages and expenses consequent upon the collision, or whether 1853. In re LAING and TODD. 1853. In re LAING and Todd. it applies to the expenses incurred by Todd upon the reference. The latter would seem to be the fair and natural construction; and, if so, Mr. Hill's objection must prevail. At all events, it is extremely doubtful. I also doubt whether we can make an order directing Laing to pay a sum of money to Todd, when the award directs it to be paid to Poppelwell, and there is nothing on the face of the award to shew that the payment is for the benefit of Todd. I think this is not a fit case for a proceeding under the statute. CRESSWELL, J. I am entirely of the same opinion. This is far too doubtful a case to warrant us in granting a rule under the statute, which would have the immediate effect of a judgment, upon which an execution might issue against Laing at the suit of Todd, because he has neglected to pay a sum directed by an award to be paid to Poppelwell, who, for anything that appears on the face of the award, is a perfect stranger. It clearly cannot be done. WILLIAMS, J. I am of the same opinion. Laing could not be said to have been guilty of a contempt, by not paying Todd the money he was ordered to pay to Poppelwell. That being so, we have no authority to grant this rule. Rule discharged, with costs. IN THE EXCHEQUER CHAMBER. 1853. STEVENSON and Another v. NEWNHAM. THIS was an action upon the case. Jan. 28. The declaration 1. A count in stated that the contained five counts. The first count case for distraining for more rent than was due, is bad, though it alleges it to have been done maliciously,-for, an act which does not amount to a legal injury, cannot be actionable because it is done with a bad intent. 2. A. obtained certain goods by purchase from the sheriff under a writ of fi. fa. at his own suit, founded on a warrant of attorney for 600l. given to him by one S. The writ was put into the sheriff's hands on the 25th of May, 1839, and a bill of sale given to the plaintiff by the sheriff on the 21st of June, for 6007. On the 29th of May, another writ against S. was put into the sheriff's hands, at the suit of one M., for 627. A. paid M.'s debt; and the assignment to him was under both writs. A. took possession of the goods; and, on the 5th of October, 1849, B. seized and sold them as a distress for rent due to him from S. S., on the 5th of October, 1849, filed a declaration of insolvency, and thereby committed an act of bankruptcy; and, on the 8th,-the statute 7 & 8 Vict. c. 96 being then in force, -a fiat was awarded against him, founded on that act of bankruptcy, under which fiat assignees were appointed. In an action by A. against B. for an irregular and excessive distress of the goods so obtained by him, the defence set up by B. was, that A. had procured the goods by way of fraudulent preference, and that S. caused them to be taken in execution with intent to defeat or delay his creditors, being then indebted to some in a sum sufficient to constitute a good petitioning-creditor's debt: and it was proved, that, on the 14th of June, 1851 (which was after the commencement of this action), the assignees under the fiat gave notice to A. that they meant to treat the warrant of attorney, judgment, and execution, as void, and should claim the goods against B., as being wrongfully taken under a distress; and that they also gave notice to B. that they had brought an action against A. to try the validity of the warrant of attorney, and had recovered 2307., the value of the goods seized under A.'s writ, and requiring B. to pay to A. the value of the goods distrained, and claiming from B. the damages for the illegal distress, the subject of this action: Held, upon a bill of exceptions, that, as the adjudication of bankruptcy proceeded on the bankrupt's own application, the assignees could not treat the alleged fraudulent preference, or taking in execution, as an act of bankruptcy; but that they were entitled to treat it as a fraudulent preference, or an execution procured by the bankrupt in contemplation of bankruptcy, under the old law, prior to the 6 G. 4, c. 16,-and consequently voidable, upon the established principle, that fraud only gives a right to avoid a contract or purchase, that the property vests until avoided, and that all mesne dispositions to persons not parties to, or at least not cognizant of, the fraud, are valid. 3. Held also,-Erle, J., dissentiente,-that, inasmuch as the subsequent interference of the assignees had no relation back to the original delivery of the goods to A., so as to avoid the transaction ab initio, A. had an undoubted right of action against B. for the illegal distress. 4. Whether a fraudulent preference can be impeached (as an act of bankruptcy), under a fiat on a bankrupt's own petition, if there was at the time of such fraudulent preference a sufficient debt to constitute a petitioning-creditor's debt,―quare. 1853. STEVENSON v. NEWNHAM. a distress for more rent than was really due. The second count was for an excessive distress; the third, for selling before the expiration of five days; the fourth, for selling for less than the goods were reasonably worth; and the fifth was a count in trover. The defendants below pleaded not guilty "by statute,” and (to the count in trover) not possessed. The cause was originally tried before Wilde, C. J., on which occasion the verdict was entered for the defendants, but a new trial was awarded, on the ground of misdirection. (a) The cause again came on for trial, before Jervis, C. J., at the sittings at Westminster after Trinity Term, 1851. It was proved, that, before the commencement of the suit, viz. on the 24th of May, 1849, one S. W. Saunders was justly indebted to one R. M. Marshall in the sum of 621. 68. and upwards, and was also on that day justly indebted to the plaintiff (below) in a sum of 6007. and upwards; and, being so indebted to the plaintiff, gave him, on the 8th of February, 1849, a warrant of attorney for securing the payment of such last-mentioned debt, and authorising the plaintiff to sign judgment and issue execution thereon for such his said last-mentioned debt; and that, on the 13th of January, 1849, an action was commenced by Marshall against Saunders, in this court, to recover his debt of 621. 6s., and judgment was duly signed therein, and a fi. fa. issued to the sheriff of Surrey to levy the amount, and was duly lodged with him on the 29th of May, 1849; and that judgment was also duly signed on the said warrant of attorney, and a fi. fa. thereupon duly issued on the 25th of May, 1849, requiring the sheriff to levy 600l. and 37. 10s., and 158. for writ, besides &c., and that such last-mentioned writ was also lodged with the sheriff of Surrey on the day (a) See Newnham v. Stevenson, antè, Vol. X, p. 713. |