1818. WHITE V. REEVES. diverting, and stopping up both of public and private roads, and has enacted, that all roads which should not be set out, should be extinguished.' The legislature, therefore, could not contemplate the construction which my brother Best has put on this statute, the most operative words of which are, that the commissioners may stop up roads for ever, which shall not be set out,' which clearly show that no affirmative act of the commissioners is necessary for that purpose. Judgment for the plaintiff. Wednesday, If it appear trators had of a deed of the court will not stay the proceedings, but leave the party to plead such award puis darrein continuance. LOWES V. KErmode. MR. Serjt. Pell, in the last term, had obtained a rule nisi, that the proceedings in this cause should be stayed, on the ground that an action had been commenced against the defendant, by the present plaintiff, in the month of November, 1816; that the action being then at issue, mutual bonds of arbitration were afterwards duly entered into between the parties, to submit all matters in difference between them to the award of two arbitrators, and of such third person as they should appoint; that a third arbitrator was accordingly appointed, and that on the 25th of October, 1817, the defendant was informed by one of the arbitrators, that the award had been duly made by them on the preceding day; and that on the first day of last Michaelmas term, he was served with a notice of trial for the adjourned sittings after that term. The rule was duly enlarged to the present term, and Mr. Serjt. Best now shewed cause on affidavits, which stated that about half-past twelve o'clock in the afternoon of the 24th of October, being the day on which the award was made, the arbitrators were requested to deliver up the papers relative to the matters in dispute, which on their refusing to do, the plaintiffs, about half an hour afterwards, executed a deed of revocation of the bonds of arbitration, copies of which were duly served on the arbitrators before four o'clock in the afternoon of that day. That on the 25th, an award bearing date the preceding day, under the hands, and seals of the arbitrators, was left at the counting-house of the plaintiffs. He insisted that there were no grounds for this application, and as it was doubtful whether the award was made by the arbitrators previous to the deed of revocation, that it would be a question proper to be raised in the cause; that if the award were good, the defendant might plead it puis darrein continuance, when the plaintiff might have an opportunity of answering it. If a release had been given, it would be no ground to stay the proceedings, but constitute a mere matter of defence; and as it does not appear but that this award was made after the authority of the arbitrators had been countermanded by the deed of revocation, it was therefore bad, and not binding on the parties. In support of this assertion, he relied on the case, of Milne v. Gratrix (a). The time when the award was made, and the circumstances attending the delivery of the deed of revocation to the arbitrators, cannot be examined in the present stage of the cause; but if the defendant pleads the award, the arbitrators may be called on at the trial to prove the precise time when it was (a) 7 East, 608. 1818. LOWES V. KERMODE. made, and whether it was fully completed before they received notice of the deed of revocation. Mr. Serjt. Lens (and Mr. Serjt. Pell was with him) in support of the rule observed, that if the award were duly made, the court might interfere in a summary way, and stay all further proceedings in the cause; that it had been merely assumed that the award had been made subsequent to the deed of revocation; that there was no proof of fraud or collusion between the arbitrators, nor any inference to be drawn, that the revocation was served on the arbitrators before they had made their award, as it might have been executed in the previous part of the day on which such deed of revocation was made. If the award were taken to be the subject matter of a plea, it might be pleaded puis darrein continuance, but still the court might interfere. The notice of trial was given, not only after the plaintiff had agreed to the reference, but even after the award had been duly made; and that therefore, under the circumstances, the proceedings might be stayed. Mr. Justice DALLAS.-The authority of the arbitrators to make the award in question has been denied in the plaintiff's affidavits. If the award had been good, the case would have been different; but the court cannot decide on this motion in the first instance, when it may be doubted whether the award has been duly made. The defendant is bound to plead the award puis darrein continuance, and verify his plea by affidavit, when the plaintiff may either reply or demur, and the award will appear on the face of the record. Mr. Justice PARK.-The court will not exercise an equitable jurisdiction in any case, where the plaintiff has disclosed circumstances, similar to the present, by affidavit. The question must be left to a jury, whether the arbitrators were authorised to make their award or not, and whether such award was duly made, previous to their receiving notice of the deed of revocation. 1818. LOWES υ. KERMODE. Mr. Justice BURROUGH concurred. Rule discharged. LEIGH V. SHERRY. Thursday, The court will not grant an order to com Ma. Serjt. Pell applied for an order to commit the defendant to the custody of the warden of the Fleet, on an affidavit which stated that he had been committed to mit a defendant Ilchester gaol, on an extent issued against him at the to the custody suit of the crown, for certain excise penalties. That the of the warden plaintiff had sued out a writ of habeas corpus, to bring who had been him to London, as he required his testimony as a witness, charged in cusin a cause which was about to be tried in the court of King's Bench. The crown had objected to his removal under this writ; and the only question was, whether the plaintiff was to be deprived of the testimony of the defendant, as the crown had not given its consent to the change of custody. Mr. Justice DALLAS.-This court cannot interfere without the express consent of the crown. I remember a case, where Mr. Justice Heath sent back a prisoner under similar circu nstances. Mr. Justice BURROUGH.-The plaintiff might have obtained his object by suing out a writ of habeas corpus ad testificandum. ΤΟΣ. 11. The application was accordingly refused. Ꭰ tody of the sheriff upon an extent, and brought up on a habeas corpus, for the purpose of being ex amined as a witness in a civil suit, without the express consent of the crown. 1818. Tuesday, The plaintiff' being resident LEVY V. BARNARD. THIS was an action of trover, for a policy of insurance abroad, ordered on goods in a ship called the Aurora, at and from Pillau B. & Co. in London, to effect an insurance on his account, who not being in the habit of effecting their own insurances or those of their correspondents, delivered an order to the defendant being their broker, who accordingly effected it in their names, when he handed over the policy, and debited them with the premiums. The plaintiff paid to Swinemunde. The defendant pleaded the general issue of not guilty. The cause came on to be tried before Lord Chief Justice Gibbs, at the sittings at Guildhall, after the last Trinity term, when a verdict was found for the plaintiff, subject to the opinion of this court, on the following case: On the 23d of December, 1813, Messrs. Spitta, Molling, & Co., of London, received an order from the plaintiff, who resides at Berlin, in Prussia, to effect an insurance on his account on goods therein described, and valued at £2160, per the ship Aurora, from Pillau to Swinemunde, in a sufficient amount to cover such interest, premiums, commission, &c. :-The said Spitta, Molling, & Co. being merchants, and not in the habit of effecting their own insurances, or those of their corre spondents, delivered to the defendant, then an insurance broker, in partnership with his father, since deceased, the following written order, requiring him to effect the in the amount of surance on the same day. those premiums to B. & Co., without the defendant's knowledge; a loss being subsequently claimed by the plaintiff, the policy was re-delivered by B. & Co. to the defendant, for the purpose of his procuring an adjustment; there was an open account between the defendant, and B. & Co., and in 1813, they were indebted to him in 21,000l. in such open account, including the premiums in question, and, in 1814, they paid him 33,000l. on account of losses and returns on insurances effected for them; and in the latter part of that year, the defendant was a considerable creditor on such account.-Held, that under these circumstances, the defendant had not a lien on the policy, either for premiums or his general balance. Although a broker may have parted with the possession of a policy, still if he become repossessed thereof, he has a lien on it for premiums which may be unpaid. |