the suit; and, consequently, that it was not final. In the matter of Arbitration between Leeming and Fearnley, T. 3 W.4. Page 403

2. A party to an arbitration cannot object to the award, that the arbitrators chose an umpire by lot, if he expressly agreed to, or acquiesced in, that mode of choice.

Where a submission to arbitration under seal, has been varied by indorsing on it a new agreement (as, for changing one of the arbitrators,) to which both the principal parties have expressly assented, one of those parties cannot afterwards move to have the award set aside on the ground that the indorsement was not under seal.

An umpire, being furnished by the arbitrators with the evidence taken before them, and having himself viewed the premises, the condition of which was in question, made his award without calling for further evidence, or giving any notice on that subject to the parties: Held, that the award could not be objected to on that ground by a party who knew that the case had gone before the umpire, and made no application to him to hear further evidence. In the matter of Arbitration between Tunno and Bird, M. 4 W. 4. 488

3. On a reference of a cause and all matters in difference by a Judge's order, one of the parties moved, after the proper time, to set the award aside: Held, no excuse for the delay, that the arbitrator made an exorbitant charge for the award, in consequence of which the party now applying did not take it up.

An award is published when the arbitrator gives the parties notice that it may be had on payment of his charges; whether they be reasonable or not. Macarthur v. Campbell, M. 4 W.4.

518

4. No precise form of words is necessary to constitute an award; it is sufficient if the arbitrator express by it a decision upon the matter submitted to him. But where an arbitrator, to whom a dispute between an architect and his clerk, respecting a claim by the latter to wages, was referred, stated in a letter that he had examined drawings made by the clerk, with an account of his time, which did not shew experience or ability to the extent to justify a demand for remuneration under the circumstances; but in consideration of the clerk's services out of the office on some occasions, and to meet the case in a liberal manner, he proposed that the architect should pay the clerk 101.:

Held that the latter part of the letter was a mere suggestion of the arbitrator and not a decided opinion that the clerk was or was not entitled to recover 10., and therefore not a good award. Lock v. Vulliamy, M. 4 W. 4. Page 600

ARREST.

1. By the 32 G. 2. c. 28. s. 1., it is enacted that no sheriff's officer shall carry any person arrested by him to gaol within twenty-four hours from the time of such arrest, unless such person shall refuse to be carried to some safe and convenient dwelling-house of his own nomination or appointment; and by s. 12. a penalty is imposed on any officer offending against the

act:

Held, in an action brought for the penalty, for taking a party to gaol within twenty-four hours, contrary to the statute, that the officer who made the arrest ought to have required the party arrested to nominate some convenient dwel ling-house to be taken to; for the

latter

latter could not be said to have refused till the proposal had been made, and a mere omission by him to nominate a place did not justify carrying him immediately to gaol. Simpson v. Renton, T. 3 W. 4. Page 35 2. Plaintiffs having obtained a verdict against defendant under an award, in a cause in K. B., the Court of Chancery, upon bill filed, and matter appearing on the award itself, granted an injunction to stay further proceedings. Plaintiffs nevertheless signed judgment, and took defendant in execution.

On application to this court for a rule nisi to discharge the defendant out of custody, (it being stated amongst other things, that the plaintiffs could not be met with for the purpose of attaching them by process out of Chancery,) this Court refused to interfere. Foreman & Lloyd v. Jeyes, M. 4 W. 4.

835

ASSUMPSIT.

See LIEN.

1. Defendant was office-keeper of an Exeter and London coach, and servant to C., a proprietor at Exeter, where the office kept by the defendant was. Defendant from time to time made up accounts of the shares of profits due to the several proprietors, and sent them to those parties, taking the money from a balance of C.'s which he had in hand. On one occasion defendant sent to plaintiff, a proprietor, a packet purporting to contain 237., which was due to him, but in reality containing 201. only. Plaintiff sued defendant for 31. had and received to his use:

Held that defendant was not liable, there being no privity of contract between him and the plaintiff; and that he was not precluded from this defence by having told the plaintiff (after action brought) that he, defendant, had had the 231. of C. and sent it to the plaintiff, and debited C. with it. Howell v. Batt, M. 4 W. 4.

Page 504

2. A brewer, who delivered beer to be used in a particular publichouse on the credit of a person, not the licensed keeper of the house, may maintain an action against the latter for goods sold and delivered. Brooker v. Wood, H. 4 W. 4. 1052

ATTAINDER OF FELONY. See EJECTMENT, 1. LEASE 6.

ATTORNEY.

See EVIDENCE, 3. LIEN. PRACTICE, 11. 1. Where an attorney, defendant in assumpsit, sets off the amount of c 3 his

his bill, the plaintiff cannot deduct from that set off costs of taxation allowed against the attorney, pursuant to 2 G. 4. c. 23. s. 23. Field v. Bezant Gt. one, &c., T. 3 W. 4. Page 357 2. The Court of King's Bench does not exercise any common law jurisdiction in taxing attornies' bills.

The court, in the exercise of its statutory jurisdiction, refused to order an attorney's bill to be taxed at the instance of a third person, where the client had before admitted the amount to be due and declined taxing the bill; such client having since become bankrupt, and the application being made for the purpose of reducing his claim so as to prevent his being a good petitioning creditor. Clutterbuck v. Combes, T. 3 W. 4. 400 3. The Court of King's Bench will not grant a rule calling on an attorney to shew cause why he should not be struck of the roll, if the affidavits in support off the rule state an offence for which he would be liable to indictment. Anonymous H. 4 W. 4.

AWARD.

1089

See ARBITRAMENT, 1, 2, 3, 4.

BAIL.

See PRACTICE, 2.

BANKER.

1. V. and Co. bankers, were assignees of a judgment obtained in Scotland against M. H. for 4100l. In 1829 M. H. deposited with V. and Co. 41007., and by a memorandum in writing it was agreed that that sum should be deposited in their hands for safe custody, on

BANKER.

account of M. H., and that from the time such deposit should be made and during its continuance V. and Co. were not to pay any interest thereon, and all interest should cease in respect of the amount due upon the judgment. M. H. afterwards became bankrupt, and his assignees on the 12th of Nov. 1831, demanded from V. and Co. the 41007, which they refused to pay: Held, that they were not liable to pay interest on that sum from the time when payment of the principal was demanded. Edwards v. Vere, T. 3 W. 4. Page 282 2. Where a person lends money

nominally on his own account, but really on account of another, the real lender cannot recover the money unless he prove distinctly that the loan was in reality intended to be his and was received as such. And therefore where A. as the managing owner of a vessel, was permitted by the other owners to have the possession of two warrants or orders of the East India Company, to pay to the said owners or bearer the sum of money therein mentioned, for freight; and A. deposited these warrants in the hands of his bankers, and they received the money due on them, and gave him credit for it on account: it was held on assumpsit brought after A.'s death by the surviving part owners against the bankers, that on proof of the above facts, they could not recover the money because it was not shewn that the loan was upon their account, for the fact of the warrants being the property of all the part owners, when placed in the bankers' hands was, upon the evidence, consistent with the supposition that the loan of the proceeds to the bankers was A.'s loan. Sims v. Bond and another, T. 3 W. 4.

$89 BANK

BANKRUPT.

See STOPPAGE IN TRANSITU, 2.

1. A steam engine erected for the purpose of working a colliery to be used by the lessee of such colliery during his term, but to be held as the property of the landlord subject to such use, will not pass to the assignees of the tenant on his bankruptcy, for it does not come within the description of

66

goods and chattels," in the 6 G. 4. c. 16. s. 72. nor had the bankrupt the actual or apparent own ership. Coombs and another v. Beaumont, T. 3 W. 4. Page 72 2. A party who seeks to avoid a payment, or transfer of goods, on the ground that it was voluntarily made by a trader in contemplation of bankruptcy, must shew, not merely that the trader was insolvent when it was made, but also that he then contemplated bankruptcy. Morgan v. Brundrett, Gt. one, &c. T. 3 W. 4. 289

3. R. C. borrowed a sum of money

one of them against the party who had been bankrupt for contribution: Held that they could not have proved under the commission by s. 52. of the bankrupt act, and, therefore, that the certificate was no answer to the action. Clements v. Langley, T.3 W. 4.

Page 372 4. The bankrupt act, 6 G. 4. c. 16. s. 72., vests in the assignees such goods whereof the bankrupt was reputed owner at the time when he became bankrupt, by the consent and permission of the true owner. But where the true owner had permitted his goods to remain in the order and disposition of A. until the day before he became bankrupt, and then demanded the possession of them, which A. refused to deliver: Held, that they did not pass to A.'s assignees. Smith v. Topping, M. 4 W. 4.

BARON AND FEME. See FEME COVERT.

674

which he and four others bound themselves jointly and severally in a penalty, for the regular payment of interest, and for the discharge of the principal, and all interest which might be due at the end of five years, or, if sooner called upon, then at twenty-one days after demand. One of the coobligors of R. C. became bankrupt, and obtained his certificate. At the time of the bankruptcy, a forfeiture had accrued by nonpayment of interest, but it was not insisted upon, and the interest was subsequently paid up. After the

certificate, R. C. was called upon for the principal but did not pay, and payment was enforced from the four co-obligors who had continued solvent. In an action by

See CUSTOM, 1.

BILL OF EXCHANGE.

See STAMP, 1.

1. In an action by drawer against acceptor of a bill of exchange for 1017. defendant proved that he was under age when he accepted the bill. Plaintiff then produced in evidence a letter in the defendant's handwriting, purporting by its date to have been written after he came of age, addressed to a third person in these words: "I request you pay to H." (plaintiff)" 101% at your earliest convenience, after the date of this letter, from the money left me by my late grandfather, for which I have given my bill."

C 4

This

This letter was proved to have been delivered to the plaintiff's clerk, but it did not appear when. Held, that the letter must, primâ facie, be taken to have been written and issued at the time when it bore date; and that having been written after defendant came of age, and before the bill became due, it would support a count on a promise to pay according to the tenor and effect of the bill. Hunt v. Massey, H. 4 W. 4. Page 902 2. In an action by the the indorsee against the drawer of an accommo dation bill, which had been fraudulently disposed of by the first indorsee, and afterwards discounted by the plaintiff, it is no defence that the plaintiff took the bill under circumstances which ought to have excited the suspicion of a prudent man that it had not been fairly obtained: the defendant must show that the plaintiff was guilty of gross negligence. Crook v. Jadis, H. 4 W. 4.

909 3. To an action by an indorsee against the indorser of a bill of exchange who had lost the bill by accident it is a good defence that the plaintiff took the bill fraudulently, or under such circumstances that he must have known that the party from whom he took it had no title, or that he was guilty of gross negligence in taking it; but it is no defence that he took it under such circumstances that a prudent cautious man would not have taken it. Backhouse v. Harrison, H. 4 W. 4. 1099

BOND.

1. On a bond with a penalty, conditioned for the payment of money at a given day, and interest in the mean time, with a stipulation that on any default in paying the interest, the whole sum should be demandable; the obligee, on the interest falling into arrear, brought an action to recover the whole principal and interest: Held, that the case was not within 8 and 9 W. 3. c. 11. s. 8., and therefore that the plaintiff was entitled after verdict to have judgment and execution for the whole principal sum, and not merely for the arrears of interest.

James.

Page 40

Thomas, T. 3 W. 4. 2. An action on a bond, conditioned generally for payment of a specified sum with interest, may be brought without a demand being made. Gibbs v. Southam, H. 4 W. 4. 911

3. Debt on bond. The condition, after reciting that the obligor was about to marry with A.awidow, and thereby to become possessed of a stock in trade, and that it was agreed that he should execute a bond to pay to the children of A. by her late husband 3007. within twelve months after her death in the event thereinafter specified, was that, "if the obligor should within twelve months after the decease of A. pay to her children 300l., if, upon an account taken, the stock in trade and effects in the business (if then carried on by the obligor) should amount to 400/. ; but in case upon such account to be taken, the stock in trade should amount to less than 4007., then if if the obligor should pay to the children of A, 120, the bond should be void.”

Plea, that long before the death of A., the obligor retired from and ceased