Imágenes de páginas

of the execution of the indenture, the to or arising out of the premises, whe-
plaintiffs were not in partnership, nor ther herein before recited or mentioned
did they carry on business jointly or or not:”—Held, that he had not ex.
on the same premises, but that they ceeded his authority. Ib.
carried on business wholly separate 3. The award directed that A. and
and apart from and independent of B. should forthwith execute certain re-
each other, which the defendant at the conveyances to C., and that C. should
time of executing the indenture well forthwith execute indemnities and re-
knew, and that the plaintiffs never re leases to A. and B.:-Held, that
presented to the defendant that they “forthwith,” in the latter case, meant,
should carry on business in partner. as soon as A. and B. had, by their exe-
ship :-Held, that this replication was cution of the re-conveyances, put them.
bad in substance. Popham v. Jones, selves in a position to call for the exe-

cution of the indemnities; and that
2. Semble, that the proper course

the award was good, although B. was
would have been, to take issue on the no party to the submission. Ib.
plea, if the plaintiffs intended to rely
on the service of the one as being a con-

II. Finality of Award.
structive service of both masters. Ib.

Award de Præmissis.]-A cause and

all matters in difference between the

parties were referred to a barrister.

A cross-claim was urged on the part of
the defendant before the arbitrator.

The arbitrator, professing to make his

award “of and concerning the said
I. Authority of Arbitrator.

several premises so referred as afore-
1. General words in a release are to

said,” after disposing of all the issues
be limited and restrained by the parti-

in favour of the plaintiff, directed the
cular words in the recitals. Boyes v.

defendant to pay a gross sum to the
Bluck, 652.

plaintiff, apportioned the costs of the
2. Where, therefore, an arbitrator to

reference and award, and, on payment
whom certain causes and matters in

thereof, directed that the plaintiff
difference between the parties were re-

should execute and deliver to the de.
ferred,—with power to him to direct

fendant a general release : but nothing
the re-conveyance by one of them to

was said in respect of the cross-claim:
the other of certain property which had

-Held, that the award was, neverthe-
been purchased and held by the former

less, final: for, that it must be intended
in trust for the latter, and to direct an

from the silence of the arbitrator upon
indemnity and release of the former by

the subject that he had negatived the
the latter,—by his award directed an

cross-claim. Harrison v. Creswick,399.
indemnity with particular recitals of
the transactions between them, and

III. Award of Costs.
concluding with these general words, 1. By an agreement of reference be-
“or for or in consequence of any tween A., B., and C., it was provided
other act, deed, matter, or thing what that “the costs of the reference, and
soever, in anywise relating or referring of the award to be made in pursuance

thereof, including a reasonable com of it, and raising and overloading it.
pensation to the arbitrators for their The defendants pleaded,—first, as to
trouble, shall be in the discretion of the raising and overloading, not guilty
the said arbitrators, or any two of by statute,-secondly, as to the residue,
them, echo shall by their award order payment into court of 301. The plain.
and direct by whom, to whom, and in tiff joined issue on the first plea, and
what proportions and manner the same replied damages ultrà to the second.
shall be paid." The arbitrators, having At the trial, a verdict was taken for
by their award disposed of the matters the plaintiff, subject to an award, but
in difference, awarded as to the costs no power was reserved to the arbitrator
as follows:-“that the said A., B., and to certify for costs, under the 3 & 4
C., respectively pay for the attendance Vict. c. 24, s. 2. The arbitrator having
of his and her own witnesses, and that directed a verdict to be entered for the
the other costs of the said reference, plaintiff on the first issue, damages
and of this our award, and also the 208., and for the defendant on the
compensation of the arbitrators, be second issue:-Held, that the plaintiff
paid by the said A., B., and C., in was deprived of costs, by the 3 & 4,
equal proportions : "-Held, that the Vict. c. 24, s. 2, having “recovered by
costs were sufficiently disposed of by the verdict of a jury less damages than
this direction. In re Young and Bul. 40s.” Reid v. Ashby, 897.

man, 623.

2. By a submission, it was agreed IV. Award of Payment to a Stranger.
that “all the costs and charges in and 1. An award directing payment of a
about the submission, the reference, sum of money to a stranger, is not
and award, should be in the discretion good, unless it appears on the face of
of the arbitrators.” The arbitrators, the award that such payment is for the
aliter ordering that the disputes touch benefit of a party to the submission.
ing the matters in difference should In re Laing and Todd, 276.
cease, ordered that A. should pay a 2. A dispute between A. and B., two
certain sum for the damages and costs shipowners, as to a collision, was by
incurred by B., and that “ the arbitra- agreement referred, the agreement pro-
tors' charges and expenses attending viding that “all such disputes and dif-
thereference, amounting to 621.14s.10d., ferences, claims, demands, and damages
should be borne in equal proportions in respect thereof, should be referred
by A. and B.; and that the said sums to the arbitrators;” and that “all the
of 721. 6s. and 621. 145. 10d., should be costs and charges in and about the
paid within ten days from the execu submission, the reference, and award,
tion of the award, to C.:"-Semble, should be in the discretion of the
that the award did not sufficiently dis-

arbitrators." The arbitrators ordered
pose of " the costs and charges in and “that all disputes between the parties
about the submission, reference, and touching the matters in difference,
award." In re Laing and Todd, 276. should cease and determine;” and they

3. The first count charged the de further ordered that A. should pay,
fendants with injuring the plaintiff's “for the damages and costs incurred
party-wall, by excavating by the side by B. in consequence of the collision,






duced without the lord's consent :' Gilb. Ten. 182. This reasoning seems to be without the consideration, that, though the surrenderee hath nothing till admittance, yet, if the statute were allowed to execute the possession to the estate upon the surrender, the tenant would not be (as is implied in Gilbert's reason) introduced without the lord's consent; for, the surrender must be with the lord's privity, and he can no more refuse the admittance than the surrender. If the mode of the conveyance by surrender and admission was not evaded, the operation of the statute could not be prejudicial as to copyholds; but, in truth, the reason of the statute not extending to them, seems to be, that, from the nature of the tenure, and the mode of conveyance or transfer of copyholds, they do not stand in need of the operation of the statute, i.e, none of the inconveniences which occasioned the statute of uses, as to lands of inheritance at common law, exist as to copyholds.” Here, the lord is asked to accept a surrender to the use of a person he knows not: by this means, he will be ousted of a fine; and no provision is made to insure his having always a tenant on the roll. Edmund Foster may, if he wishes to realise his security, appoint to some one else, and so the lord may lose a fine upon the alienation. The case of Peachy v. The Duke of Somerset, 1 Stra. 454, shews that the lord is not bound to take notice of anything but what appears on the roll, and that he is not bound to take notice of the private agreements and trusts of parties. [Maule, J. Do you find any decided case where the lord has been sustained in his refusal to accept a surrender burthened with a trust?] None has been found. [Williams, J. A copyholder has a right to surrender to the use of his will, though there is no instance of such a surrender


the records of the manor : Pike v. White, 3 Bro. C. C. 286; Church v. Mundy, 15 Ves. 403. Cresswell, J. I think there are manors,—Tinmouth, in


Northumberland, for instance, where the lord will not accept surrenders to trustees.]




Byles, Serjt., in reply. It is objected that there is no provision here that the lord shall always have a tenant

on the roll. The law, however, provides for that: the • heir is always the tenant. And no hardship is imposed

upon the lord; for, there is here a life beyond which you cannot go, viz. the life of the surrenderor. The true rule is laid down in Brook's Case, Popham, 125, which explains the reason why no case is to be found of the lord being upheld in his refusal to admit. In an ejectione firmæ brought by one Brook against Brook, the case was this :—John Wright, a copyholder in fee, 10 Eliz. surrendered his land into the hands of the lord, by the hands of tenants, according to the custom &c., without saying to whose use the surrender should be ; and at the next court the said John Wright was admitted, habendum to him and his wife in tail, the remainder to the right heirs of John Wright; and the wife of John Wright, now defendant, was seised from the time of the admittance until this day. It was objected by the counsel of the plaintiff, that the surrender was void, because no use was limited, and therefore by construction of law ought to be to the use of the surrenderor; as, if a feoffment be made, and no use limited, it shall be to the use of the feoffor, or, as it is in Sir Edward Cleer's Case, 6 Co. Rep. 18, if a feoffment be made by one to the use of his last will, he hath the use in the mean time. Secondly, that the admittance was not available to pass an estate to the wife, for, she was not named in the premises, but only in the habendum, and the office of an habendum is, to limit the estate, and not the person, and therefore it is said in Throgmorton and Tray's Case, Plowd. Com. 145, that, if one be named to take an estate in the habendum, where he was not named at all



721. 68.;” and they further ordered

that “the arbitrators' charges and ex-

penses attending the reference, amount-
ing to 621. 14s. 100., should be borne

in equal proportions by A. and B.; 1. For Non-payment of Money,-See
and that the said sums of 721. 68.

and 621. 14s. 10d., making together
1351. Os. 10d., should be paid, within

II. For Non-performance of an Award,

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

I. Privilege.
721. 6s. to B.,--there being nothing on 1. Production of Deeds of Client.]-
the face of the award to shew how the An attorney is not bound to produce,
payment to C. was to enure as a pay- or to answer any questions concerning
ment for the benefit of B.; although the nature or contents of, a deed or
there was an affidavit stating that C. other document intrusted to him pro-
was agent for B.'s vessel, and acted as fessionally by his client: and the judge
his agent in the matter of the arbitra- has no right to look at the instrument,
tion, and that the money was directed to see if the objection to produce it or
to be paid to him as such agent. Ib. disclose its contents be well founded or

not. Volant v. Soyer, 231.
V. Order under the 1 & 2 Vict. c. 110,

2. Secondary Evidence of Contents.]

A paper which the attorney admits
The court will not make an order

to have been delivered out of his office
under the 1 & 2 Vict. c. 110, for pay-

as a copy of the deed, but which he
ment of money directed to be paid by

states he is unable of his own know-
an award, except in a case where an

ledge to vouch to be a copy,—is not
attachment would have been granted.

admissible as secondary evidence, upon
In re Laing and Todd, 276.

the attorney's refusal to produce the

original. Ib.

II. Non-Payment of Money pursuant

to a Rule.

The mere non-payment of money by
What amounts to.

an attorney, pursuant to an order and
The plaintiff being in the defendant's

rule of court, is no ground for striking
workshop, and refusing to quit when

him off the roll. Guilford v. Sims, 370.
desired, the defendant and his servants

surrounded him, and, tucking up their
sleeves and aprons, threatened to break

his neck if he did not go out; where-

upon the plaintiff, apprehensive of vio-
lence, departed :-Held, an assault.

Read v. Coker, 850.


8. 18.

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