t.

HARRISON.

[ *433 ]

DUCKWORTH the now plaintiff was defendant; and thereupon heretofore, to wit, on the 27th May, 1836, by a certain agreement made by and between the now plaintiff and the now defendant, they did agree to leave the said action to the arbitration and award of John Berry, William Bowman, and Harwood Banner, and to perform, fulfil, and keep the award, order, and determination of the said John Berry, Wm. Bowman, and Harwood Banner, or any two of them, of and concerning the said premises, so as such award, order, and determination should be made in writing and signed by the said arbitrators or any two of them, on or before the 31st of December, 1836, or on or before such other day as the said arbitrators or any two of them should by writing under their hands for that purpose appoint; and it was by the said agreement agreed that the said parties to the said agreement and their respective witnesses should be examined by the said arbitrators or any two of them, upon oath if required; and that the said arbitrators or any two of them should be at liberty to require the production of and to examine and inspect all contracts, agreements, accounts, writings, books, letters, papers, documents, and *evidences whatsoever, in the possession or power of either of the said parties thereto, touching or in any way relating to the matters in difference: and it was thereby agreed that the costs of the said reference and award should abide the event of the award. And thereupon afterwards, to wit, on the day and year first aforesaid, in consideration of the premises, and that the now plaintiff, at the now defendant's request, had then promised the said defendant to perform the said agreement and said award in all things on plaintiff's part to be performed; the defendant then promised the plaintiff to perform the same in all things on defendant's part to be performed. And the plaintiff saith, that afterwards, and before the said 31st day of December, 1836, to wit, on the 18th of June, 1836, the said John Berry, William Bowman, and Harwood Banner, having taken upon themselves the burden of the said reference, did make and publish their award, order, and determination, in writing, of and concerning the said matters in difference so referred as aforesaid, and did respectively sign the same, and did thereby award and determine that the now defendant was not entitled to recover in the said action against the now plaintiff, and that the now defendant had not, at the time of commencing the said action, or at any time afterwards, any cause of action against the now plaintiff; and the now plaintiff further saith, that thereby the event of the said award was in his the plaintiff's favour: and the

v. HARRISON.

plaintiff further saith, that his the plaintiff's costs of the said DUCKWORTH reference and award, to wit, his costs thereof, which he bore and paid, and became liable to pay, amounted to the sum of 581. Ss. Od., and that a certain sum, to wit, the sum last aforesaid, was afterwards, to wit, on the 3rd of August, 1836, by the said Court of Common Pleas, at Lancaster, taxed and allowed to the now plaintiff for his said costs pursuant to the said award: of all which the defendant afterwards, to wit, on the day and year last aforesaid, and before the commencement *of this suit, had notice, and was then requested by the plaintiff to pay him the said costs; yet he hath disregarded his promise, and hath not paid any part of any of the said costs; but the same, to wit, the said sum of 581. 8s. Od., are still due.

To this declaration the defendant pleaded, thirdly, that the said sum in the declaration in that behalf mentioned never was, nor was any other sum ever taxed or allowed to the said plaintiff by the said Court of Common Pleas at Lancaster, for his the said plaintiff's costs of the said reference and award, in manner and form as the said plaintiff hath in his said declaration in that behalf above alleged; concluding to the country, &c.

The defendant also pleaded, fourthly, that the said action in the Court of Common Pleas at Lancaster, in the declaration and agreement of reference mentioned, was a certain action in which certain issues thereinafter mentioned had, before the making of the said agreement of reference, been therein joined between the said plaintiff and the said defendant, and which said issues, before and at the time of making the said agreement of reference, stood for trial by a jury of the county. The plea then set forth the declaration in hæc verba, which was in debt by the now defendant against the now plaintiff, to recover the sum of 250l., for money paid, money lent, and upon an account stated. It then stated, that the pleas to the action were nunquam indebitatus modo et formâ, and a set-off of 3001. for money found to be due from the plaintiff to the defendant upon an account stated between them: it then set forth the replication, which took issue on the first plea, and to the second, replied that the plaintiff was not indebted modo et formâ, on which the rejoinder took issue. The plea then proceeded as follows: "And the now defendant further says, that he had as aforesaid pleaded and rejoined, and that the said issues had been joined as aforesaid in the said action in the said Court of Common Pleas at *Lancaster, before the making the said agreement of reference, and that the

R.R.-VOL. LI.

43

[ *434 ]

[*435 ]

บ.

DUCKWORTH said issues were matters by the said agreement of reference referred, and were matters to be decided and awarded upon by the said arbitrators under the said submission, and were matters in difference submitted to the said arbitrators: and the now defendant further says, that the said award in the declaration in this suit mentioned and set forth is the only award ever made in, or of and concerning the premises above referred, or any of them, and that there never was any other award ever made of or concerning the premises; and that the said arbitrators did not, nor did any two of them, ever decide or arbitrate, or in any manner adjudicate or award, on the said issues or either of them, save and except as in the said declaration in this cause in that behalf mentioned, which said declaration states and sets forth the whole of the material and operative part of the said award, which is not in anywise affected, altered, or varied by any other part thereof. By means of which said several premises in this plea mentioned, the said award in the declaration mentioned was and is uncertain and not final, and was and is wholly void, &c. Verification.

[ *436 ]

The plaintiff replied to the last plea, that the said issues in the last plea mentioned were not, nor was either of them, matters or matter by the said agreement of reference referred, or to be decided or awarded upon by, or submitted to the said arbitrators, except or otherwise than by the said reference of the said action in the declaration mentioned. And the plaintiff saith, that the said arbitrators were not, nor were nor was any two or any one of them, at any time during the said reference, required or requested by the now defendant to decide, arbitrate, adjudicate, or award specifically on the said issues in the said plea mentioned, or either of them. Verification.

To the third plea the plaintiff demurred, assigning for causes, that it traverses the averment in the declaration, of the taxing and allowing of the plaintiff's costs of the said reference and award, which is an immaterial allegation, and the plea therefore contains no defence to the action; that the declaration avers that the plaintiff incurred and paid and became liable to pay certain costs of the reference and award, of which the defendant had notice, and his plea ought to have put some of those matters in issue; that even if any taxation of those costs were necessary, it was the defendant's duty to have procured such taxation, and he cannot take advantage of his own default, which, by his third plea, he attempts to do; and for that the said third plea contains new matter,

and should have concluded with a verification, and not to the DUCKWORTH country.

The defendant joined in demurrer, and demurred also to the replication to the fourth plea, assigning for causes, "that it does not contain any answer to that plea, and neither traverses nor confesses and avoids it; and that the same is argumentative, hypothetical, and uncertain; and that it does not distinctly appear by it whether the plaintiff means to assert that the issues were matters referred by the agreement of reference or not; and that if it means that the issues were not matters referred as stated in the fourth plea, the allegation in that plea that they were so referred should have been traversed, and that in such case the replication should have concluded to the country; and that if it be meant that the issues were matters so referred, that the plaintiff hath not in anywise answered the plea, and that it was quite immaterial whether the arbitrators were or were not requested to make any award concerning the said issues; and for that it does not appear that the arbitrators were only to decide on the same issues, if they were required so to do; that it appears on the plea, and is confessed by the replication, that they were bound so to decide whether they were requested or not; that the replication is double, in stating two distinct matters of defence, viz. one that the issues were not matters *referred, and the other, that there was no such request as therein mentioned."

Joinder in demurrer.

HARRISON.

[ *437 ]

[ 445 ]

The judgment of the COURT was afterwards delivered by LORD ABINGER, C. B.:

The question in this case turns upon the construction to be put upon a rule of reference to arbitration, by which a cause was referred, and the costs of the reference and award were to abide the event of the award. The action was brought to recover those costs, and the pleadings raised the question whether the award was final, and could be sustained. It appeared that the defendant had pleaded two pleas, the general issue and a set-off; and it was said, that as the arbitrator had found merely that the plaintiff had no

DUCKWORTH cause of action, and had not decided upon each of the issues HARRISON. Specifically, he had not in fact determined the action. The Court

at first entertained some doubts upon this objection, but they have finally come to the conclusion, that if the parties had intended that the arbitrator should award distinctly upon each issue in the action, they ought to have stated it. The arbitrator has decided the action, by saying that the plaintiff was not entitled to recover; and we think that the words "event of the award" must mean the event as to the action itself, and do not mean the event as to the determination of the particular issues, which therefore become immaterial. On this ground our judgment will be for the plaintiff. Judgment for the plaintiff.

1838. Exch, of Pleas [ 446 ]

BOYDELL v. JONES.

(4 Meeson & Welsby, 446–450; S. C. 1 H. & H. 408; 7 Dowl. P. C. 210.)

Declaration in libel stated that the plaintiff was an attorney, and that certain orders had been made by the Court of Queen's Bench, for setting aside proceedings with costs, in an action in which the plaintiff was the attorney of the then defendant, and the defendant was the attorney of the then plaintiff, and that the costs had been ascertained and taxed by one of the Masters that sharp practice in the profession of an attorney is, and is considered to be, disreputable practice, and discreditable to the attorney adopting it; yet that the defendant, intending to cause it to be believed that the plaintiff had been guilty of such sharp practice as aforesaid in the said action, and had been reprimanded for it by the Master, published of him the following false, ironical, and libellous matter: 'An Honest Lawyer" (thereby meaning the plaintiff, and meaning to represent that he was not an honest lawyer)-"A person of the name of C. B., &c., was severely reprimanded the other day by one of the Masters of the Queen's Bench for what is called sharp practice in his profession" (meaning and alluding to the plaintiff's practice with respect to the said orders, and that such practice was sharp practice as aforesaid): Held, that that part of the statement which imputed to the plaintiff sharp practice, was sufficiently explained by the introductory matter to show that it was libellous.

Semble, also, that the allegation that the libel was ironical was sufficient, coupled with the innuendo, to show that the phrase "an honest lawyer" was used in a libellous sense.

LIBEL. The declaration stated, that whereas the plaintiff, for a long time before and at the time of the committing of the grievances by the defendant as hereinafter mentioned, resided and still does reside in Devonshire Street, Queen Square, London, and had been and was and still is an attorney of the Court of our Lady the Queen before the Queen herself, and had used, exercised, and carried on the profession and business of an attorney-at-law, with great credit and reputation; and whereas before the time of the committing of