Superior Courts: Rolls,Vice-Chancellor any former institution,-being designed to comprehend both town and country solicitors. We understand that the number of members V. C. Knight Bruce.-Exchequer. 493 suit to dismiss the bill without costs, with the consent of the personal representative of the defendant. death of the sole defendant, the plaintiff In this suit, which had become abated by moved, that the bill might be dismissed without costs, the administratrix of the defendant appearing and consenting. Mr. Rogers for the motion. Lord Langdale at first expressed some doubt whether the motion could be made without removing the suit, but ultimately made the order. already amounts to nearly one thousand. the MUTUAL INSURANCE SOCIETIES. NOMINATION. A CORRESPONDENT at Rochester inquires of our subscribers, whether any case has occurred or any decision be pronounced by which a nomination under a mutual insurance society has been declared valid and sufficient to supersede an assignment in the ordinary form? The nomination is prepared under 10 Geo. 4, c. 56, as amended by 4 & 5 W. 4, c. 50, and 3 & 4 Vict. c. 73, s. 3. The nomination runs thus, viz : 一 No. 3. Apportionment of Nominee. Not revocable except with consent of nominee. (This may be used as a collateral security for money.) To the Directors of the National Provident Institution. .. I of of class Vice-Chancellor of England. Wellesley v. Wellesley. July 23, 1847. FEME COVERT. APPLICATION TO SUE IN FORMA PAUPERIS.-NEXT FRIEND. An application by a married woman to sue in formâ pauperis, and without a next friend, granted, it appearing that there was no one ready to act as such next friend. In this case a petition was presented by the Countess of Mornington, praying that she might be permitted to sue in formá pauperis, and without the intervention of a next friend, the affidavit in support of the petition stated, that she was in a destitute condition, and that there was no one to act as her next friend. Mr. Rolt appeared for the petition. The Vice-Chancellor made the order. Vice-Chancellor Knight Bruce. Denning v. Henderson. Jan. 23, 1847. PAYMENT OF PURCHASE MONEY INTO COURT. A purchaser will not be allowed to pay his Bates moved, with the consent of all parties in the cause, that the purchaser might be at liberty to pay his purchase money into court without accepting the title. Even with consent The Vice-Chancellor. in the county of do by right of an assurance made by me with the National Provident Institution, for the sum of pounds, to be paid at my death, nominate and appoint of in the county his executors, administrators, ( or assigns, to receive the said sum and all other it is not, according to the unanimous opinion of benefits and emoluments to arise by virtue of the registrars, allowable to pay purchase money such assurance when due, and I do hereby into court unless the title be accepted. agree, that this appointment shall not be disturbed or revoked without the consent in writing of the aforesaid nominee so specially appointed, his executors, administrators, or assigns. Bousfield v. Edge. Trinity Term, 8th June, Witness my hand this 184 Witnesses day of of of RECENT DECISIONS IN THE SUPE- REPORTED BY BARRISTERS OF THE SEVERAL COURTS. . Rolls Court. Anon. July 28, 1847. MOTION TO DISMISS. ABATEMENT. - RE VIVOR. The court will allow the plaintiff in an abated Exchequer. 1847. PLEADING.-JUDGMENT.-SPECIAL PLEA. To a declaration containing a count on a bill of exchange, and a count on an account stated, the defendant, who was under terms of pleading issuable, pleaded, “that he did not indorse the bill," without confining the plea in terms to the first count. To the other count he pleaded non assumpsit. The plaintiff having signed judgment, on the ground that the first plea was pleaded to the whole declaration, and therefore, non assumpsit, the court set aside the judgment as irregular. 494 Analytical Digest of Cases: Common Law Courts. THIS was a rule, calling on the plaintiff to jury has no authority to order a judgment to show cause why the interlocutory judgment be entered in the action; but if the award be, signed in this case should not be set aside for independently of such order, final and concluirregularity. The declaration contained a count sive, the court will not set it aside, because it by indorsee against indorser of a bill of ex- also contains an order to enter up judgment, change, and also a count for money due on an but will only set aside that part of it which account stated. The defendant, who was under directs the judgment to be entered, and the terms of pleading issuable, pleaded as follows:-judgment, if any, signed thereupon. "And the defendant by his attorney, says, that he did not indorse the said bill of exchange ment but before verdict, the matters at issue in in manner and form as in the said first count alleged:" and to the last count non assumpsit. The plaintiff signed judgment, on the ground that the first plea was a plea to the whole declaration whereupon the present rule was obtained, against which Prentice showed cause. The first plea is not confined in terms to the first count, and must therefore be taken to be pleaded to the whole declaration, but as that plea affords no answer to the count on the account stated, it cannot be considered an issuable plea: Parratt v. Goddard, 1 Dow. N. S. 874; Putney v. Swan, 2 M. & W. 72. Where a defendant is under terms of pleading issuably, he ought not to plead so as to invite a demurrer. Hughes v. Pool, 6 Scott, N. R. 959; Sewell v. Dale, 8 Dow. P. C. 309. The plea applying to both counts is not in conformity with the judge's order to plead several matters. Where, therefore, after issue joined in eject the action, together with all claims in respect of mesne profits and all matters in difference between the parties, and the costs of the action, and of the reference, were referred by a judge's order; and the award directed judgment in the action to be entered for the plaintiff with one shilling damages, and that the plaintiff should recover under the same judgment, a plot of land, specifically described; and that the defendant should pay 127. as mesne profits; and the plaintiff taxed costs in the action, and a specified portion of the costs of the reference and award; the court set aside a judgment signed by the plaintiff under the award, but refused to set aside the award itself, as independently of that part which directed the judgment, it sufficiently decided on the matters referred. Doe dem. Body v. Cox, 32 L. O. 189. 2. Surplusage.-Setting aside award.—“The matters at issue in the action, together with all The Attorney-General and Thompson, in sup- claims in respect of the mesne profit of the port of the rule. Since the new rules, pleas lands in question, and all matters in difference need not have any formal commencement, and between the parties, and of the costs of this acthe termination of this plea shows that it is tion, and of the reference to be made pursuant pleaded to the first count only. Vere v. Golds- to this order," were, after issue joined in an borough, 1 Scott, 265, is an express authority, action of ejectment, referred by a judge's order that in a case like the present, the plaintiff is to arbitration. The arbitrator awarded, “that not entitled to sign judgment, and that if the judgment for the plaintiff be entered in the said plea is defective, it is only ground of special action, with 1s. damages, and that the plaintiff demurrer: Worley v. Harrison, 12 Adol. & E. do recover, under the same judgment, a plot or 669, is also in point. parcel of land, situate," &c., [describing it] Pollock, C. B. The rule must be absolute" and I do further award," &c., "that the said to set aside the judgment. defendant shall pay the sum of 127. as and for Alderson, B. Can it be said that a plea the mesne profits of the said land, and the which is only bad on special demurrer is not a plaintiff's costs of the said action to be taxed by plea to the merits? Rule absolute. ANALYTICAL DIGEST OF CASES, REPORTED IN ALL THE COurts. the proper officer, and the sum of 21. 10s. in part of the said plaintiff's costs of the reference; and I do award," &c., "that except as aforesaid, each party shall pay his own costs of the said reference, and that the costs of this my award shall be paid and borne by them in equal Common Law Courts. moieties." The plaintiff having signed judg ment accordingly: Held, 1st, that the arbitraLAW OF ARBITRATION. tor had exceeded his authority in ordering a [IN order to afford space in the present judgment to be entered up; and that, therenumber for the long and important act which fore, the judgment must be set aside. And comes into operation on the 29th September, aside the award; as that portion of it which re2ndly, that there was no ground for setting for the Recovery of Small Debts in the City of lated to the judgment must be rejected as surLondon, this short section of the Digest, relat-plusage, and a good award would still remain. ing to the Law of Arbitration, has been taken Doe d. Body v. Cox, 4 D. & L. 75.a See Inconsistent Findings. rather out of its order.] ARBITRATOR'S AUTHORITY. 1. Reference before verdict.-Entry of judgment.-Finality of award.-An arbitrator to whom a cause is referred after issue, but before proceeding to trial and without the verdict of This case was first reported in the Legal Observer, and the head-note of the decision is given above. It has been deemed useful to add the subsequent version of Messrs. Dowling and Lowndes. Analytical Digest of Cases: Common Law Courts. ARBITRATOR'S INCAPACITY. See Incapacity of Arbitrator. AWARD. 495 Held, 1. That the first plea put in issue only the continuance of the nuisance by the defendant, and that the finding thereon was therefore not inconsistent with that on the second plea. See Inconsistent Findings; Production of 2. That the arbitrator was not bound to direct Award. ENLARGEMENT OF TIME. See Time Enlarged. EXAMINATION OF PLAINTIFF. anything to be done. Held, further, that, although the award was bad for not giving damages on the first issue, the objection could not prevail, because the rule nisi had not been obtained on that ground. Grenfell v. Edgcome, 7 Q. B. 661. NUISANCE. See Inconsistent Findings. PARTIES, EXAMINATION OF. POWER OF ARBITRATOR. See Arbitrator's Authority. PRODUCTION OF AWARD. A cause having been referred to arbitration, it was expressly stipulated on the part of the defendant that the plaintiff should not be examined as a witness at the reference in support of his claim, and the usual clause in the order of reference giving the arbitrator power to examine the parties to the suit was struck out by consent. At the reference the arbitrator allowed the plaintiff to be called, and heard his evidence, against the consent and express protest of the defendant. A motion being made on the part of the defendant to set aside the award, Held, that the arbitrator had ex- by order of reference at N. P., the order of receeded his authority, and that the award was ference does not belong exclusively to either bad. Held, also, that the fact of the defend- party, but the party holding it holds it for the ant's counsel having after protest cross-benefit of both parties, and is bound to produce examined the plaintiff and gone into the de- it in order to its being made a rule of court. fendant's case, did not preclude him from Bottomley v. Buckley, 4 D. & L. 157. moving to set aside the award. Semble, That if the defendant had been examined as a witness in support of his case, it would have disqualified him from taking any objection to the admission of the plaintiff as a witness. Smith v. Sparrow, 34 L. O. 154. INCAPACITY OF ARBITRATOR. Where a cause was referred by order of nisi prius, and the arbitrator, after proceeding with the reference, was incapacitated by mental affliction from making an award: Held, that the court had no power to allow judgment to be signed and execution issue, unless the defendant would consent to the appointment of another arbitrator. Holmes v. Carden, 33 L. O. 503. INCONSISTENT FINDINGS. Erection and continuance of nuisance.-Plaintiff declared in case, alleging that he was entitled to the reversion in a close; that H. had wrongfully and injuriously erected incumbrances thereon; and that defendant wrongfully and injuriously kept and continued the incumbrances so wrongfully erected. Pleas: 1. Not guilty; 2. That H. did not erect incumbrances on the close. PROOF OF SUBMISSION. Rule of court.-A submission to arbitration by agreement written and attested is not sufficiently proved by evidence of a rule making such agreement a rule of court under stat. 9 & 10 W. 3, c. 15, s. 1. But a judge's order for referring a cause may be proved by such rule of court. Berney v. Read, 7 Q. B. 79. Case cited in the judgment: Still v. Halford, 6 RULE OF COURT. Submission.-Construction.-9 & 10 W. 3, c. 15, s. 2.-It is unnecessary that a party desirous of making a submission to an award a rule of court, should apply within the period setting aside the award. Where the notice of limited by the 9 & 10 W. 3, c. 15, s. 2, for motion stated that the application would be made to make the "submission and the award" mission" alone could be made a rule of court. a rule of court, it was held, that "the subSwinnerton v. Heming, 33 L. O. 429. See Proof of Submission. SETTING ASIDE AWARD. The cause was referred to an arbitrator, who was to direct how the verdict was to be entered order of reference at N. P., and the defendants Rule of court.-Where a submission was by on the issues, and to say what should be done in whose favour the award was made had posbetween the parties respecting the land or session of the order of reference, and although premises. He awarded that the first issue requested by the plaintiff, delayed making it a should be entered for the plaintiff, without rule of court till it was too late to move within damages, and the second issue for defendant; the time ordinarily limited for setting aside an and that nothing should be done by the parties award, the court ordered the defendants either respecting the land or premises. On motion to set aside the award, on the to make the order of reference a rule of court, ground that the findings were inconsistent, and or to file it with one of the Masters, so as to that the arbitrator had not awarded what was and allowed the plaintiff to move to set the enable the plaintiff to make it a rule of court, to be done by the parties. 496 Analytical Digest.—Sittings of the City of London Small Debt Court.—Letter Box. award aside in a subsequent term, nunc pro | SITTINGS OF THE CITY OF LONDON tunc. Bottomley v. Buckley, 4 D. & L. 157. See Arbitrator's Authority. SUBMISSION. See Proof of Submission; Rule of Court; Suit in Equity. SUIT IN EQUITY. An agreement to refer, and arbitrators named, and a covenant not to sue, and a power to examine witnesses upon oath, and to make the submission a rule of court, prevent a party from filing a bill with the view of withdrawing the case from the arbitrators. Dimsdale v. Robertson, 2 J. & L. 58. Case cited in the judgment: Halfhide v. Fenning, 2 Bro. C. C. 336; 2 Dick. 705. A party to a suit cannot set up an objection which grew out of his own conduct. Dimsdale v. Robertson, 2 J. & L. 58. Cases cited in the judgment: Morse v. Merest, 9 Mod. 56; Pope v. Lord Duncannon, 9 Sim. 177. TIME ENLARGED. SMALL DEBT (OR SHERIFFS') COURT. The report also stated, that the act came into operation on the 29th of September, and the court must give at least one month's notice of the place where, and of the day or days on Umpire-Two arbitrators were named in a which, the Sheriff's' Courts were to be held; submission to refer; and they, or other the and that the committee, after consulting Mr. persons appointed in their place, were, before Bullock, recommended that till such time as they proceeded, to appoint a third arbitrator; the Court of Requests may be in readiness, the any two of the arbitrators for the time being, said courts be holden in the Guildhall, and that might, at any time, or from time to time, make the first be held on Tuesday, the 12th of awards or orders, provided the last of such October, at 10 o'clock in the forenoon; the awards should be made before the 1st of July, second, at 10 o'clock on the 19th; and the 1843, or before such other later time as any third, at 10 o'clock on the 26th of the same two of the arbitrators for the time being should month, the judge having advised that the appoint and any two of the arbitrators for the holding of the court once in every week will be time being, might extend the time for making sufficient at the commencement. the last award, whether such time should have THE EDITOR'S LETTER BOX. previously expired or not. And it was provided, that X. should, as soon as conveniently might be, appoint an umpire; and that if no two of the arbitrators for the time being, should be able to agree in making the award or order concerning any matter which ought to be WE give this week a double number, awarded or ordered by them, such matter should (without any extra charge,) in order to include be awarded or cadered by the umpire; and if in it the City of London Small Debts Act, at any time befor the several powers, authori- which will come into operation on the 29th ties, covenants, and provisions, in the deed of submission were executed, either of the arbitrators named by the parties should refuse to act, the party whose arbitrator so refused, should appoint another in his place, and if he did not do so within fourteen days, then that the third wife's sister shall be inquired into. The prinarbitrator, and if none such, the umpire should ciple involved in the decision, our corresappoint such arbitrator. The plaintiff's arbi-pondent will observe, is undergoing investitrator refused to act, and nothing was done in gation before commissioners, with a view, probably, to the alteration of the law. the matter of the reference before the 1st of July, 1843. The plaintiff having, after that day, refused to appoint an arbitrator, the defendant procured X. to appoint an umpire, who appointed an arbitrator on the part of the plaintiff, and the two arbitrators appointed a third, and then the time was extended by the three arbitrators: Held, that the time was duly extended. Dimsdale v. Robertson, 2 J. & L. 58. UMPIRE. See Time Enlarged. instant. The case mentioned by "Tacitum," relating to the validity of a marriage with a deceased The forthcoming new edition of the Legal Almanac and Year-Book for 1848, will be much enlarged under the several departments of—1st, The Courts, Commissioners, Officers, &c. 2nd, Parliamentary. 3rd, The Bar. 4th, Attorneys and Solicitors. 5th, General. The Diary, also, will be improved in form and extent. New names for the Lists should be sent soon. The Legal Observer, DIGEST, AND JOURNAL AND JOURNAL OF JURISPRUDENCE. SATURDAY, SEPTEMBER 25, 1847. Quod magis ad NOS HORAT. FREEDOM OF MEMBERS OF PAR:LIAMENT FROM ARREST. assumed maximum of the time during which an indebted M. P., who is not engaged in his legislative duties, may be suffered to elude the grasp of his creditors. THE subject of parliamentary privilege, by which members and ex-members of the There is something very much beneath legislature are enabled to claim exemption the dignity of both Lords and Commons in from arrest for debt, has again been brought their entering thus into a sort of manœuvre into notice by the publicity given to the for the purpose of enabling some two or three case of one of the honourable members for of their body to escape the ordinary legal Finsbury. We are not about to enter into consequences of contracting pecuniary the question of law, which will be found liabilities without the means or intention stated in a former number of the present of meeting them. If our own were a revolume of our work,a for there is no doubt pudiating legislature, like some of those in that the House of Commons, which is the the United States, we could understand only judge of its own privileges, has been the members claiming for themselves in hitherto determined to regard the con- their private dealings the same glorious tinual freedom of its members from arrest privilege of non-payment that is adopted as a right to be maintained with the wholesale with reference to the public strictest jealousy. It is vain to speculate | creditor. When, however, we remember upon what the law may be, as it affects the wealth and integrity of which by far those who can put upon it whatever inter- the greatest part of the British Parliament pretation they please, and who by a reso- is composed, we cannot help wondering at lation of their own can scatter to the winds the tenacity with which it adheres to an the most elaborate argument that could be invidious distinction, of which in general raised as a reason for the curtailment of none but the unprincipled, or those who their privilege. It is true, they might be from their pecuniary embarrassments ought disposed to pay some attention to prece- not to take any part in legislation, will dents, but these precedents are of their desire to avail themselves. The scandal own making, and we believe not one can brought upon the House of Commons by be found which places any limit on the some recent instances of evasion of the immunity claimed by insolvent legislators ordinary laws of debtor and creditor, will from the penalty of imprisonment. There damage and degrade the parliament to a is no doubt that, in the words of Blackstone, far greater extent than it can possibly gain the privilege "is now in effect as long as in dignity by the possession of a power the parliament lasts," for the prorogations which requires a somewhat ignominious seem to be expressly arranged with a view occasion for its exercise. to allowing between each not more than an interval of four-score days, which is the a * Ante, p. 336. VOL. XXXIV. No. 1,020. No one can pretend that any dignity is derived from a privilege which enables a member of the House of Commons, without denying a debt, to free himself from the conse |