this term, accordingly obtained a rule nisi, submitting, that, as the plaintiffs had held the defendant to bail for 100l. and upwards, for work and labour; and the arbitrator had found that 391. 18s. only were, in fact, due, the defendant had been arrested for the larger sum without any reasonable or probable cause.

Mr. Serjeant Taddy now shewed cause.By the terms of the submission, the costs of the cause were to abide the event of the award; and as the arbitrator directed that the defendant should pay these costs, his award is conclusive, particularly as the plaintiffs were thereby entitled to retain their verdict. In Keene v. Deeble (1), where a defendant was arrested, and held to special bail for 281., and paid 21. into court, and afterwards, the cause, before it came on for trial, and all matters in difference were referred to an arbitrator, who had power to examine the parties, and call for books, &c.; and it was agreed, that the costs should abide the event: the arbitrator having awarded to the planitiff the sum of 1l. 19s. only, a motion was made to allow the defendant his costs, it was held, that this was not a case within the 48 Geo. 3. c. 46. s. 3, and that the defendant was not entitled to costs: and Lord Chief Justice Abbott there said, that the cause was stopped in its progress by an agreement to refer all matters in difference; and it was made a part of the rule, that the costs should abide the event of the award. He was, therefore, of opinion, that money awarded on such a reference is not money recovered, within the meaning of the act, and that the rule must be discharged. In Paine v. Acton (2), it was held, that if a defendant be arrested for 100., and the cause be afterwards referred to an arbitrator, who finds that 201. only are due to the plaintiff, still that the defendant is not entitled to his costs, under the statute 43 Geo. 3. c. 46 ; and Mr. Justice Richardson there said, that the defendant litigated the question before the arbitrator, and depended on the agreement entered into between him and the plaintiff. So here, there was a complicated account between the parties, and the arbitrator might have received evidence which the defendant might not have been able to

(1) 3 B. & C. 491; s. . 5 D. & R. 383; s. C. S Law Journ. K.B. 76.

(2) 3 B. Moore, 605.

avail himself of at the trial: and in Bryson v. Simcox (3), which is the latest decision on this subject, where the defendant was arrested for 30%., and it appeared, at the trial, that the plaintiff was indebted to the defendant in a small sum, a verdict was taken for the former, for nominal damages, subject to a reference to an arbitrator for ascertaining the amount, and he found that 121. only were due from the defendant to the plaintiff, —it was held, that the defendant was not entitled to costs under the statute 43 Geo. 3. c. 46. s. 3, although he had tendered the sum awarded before the commencement of the action, as he ought to have pleaded the tender.

Mr. Serjeant Wilde, in support of his rule. Even admitting, that, by the terms of this submission, all matters in difference between the parties were referred to an arbitrator, yet they could only relate to the subject-matter of the agreement between the plaintiffs and the defendant, which was the only question in the cause, and if the arbitrator had taken any other matters into his consideration, he would have exceeded his authority and, although the plaintiffs might, in strictness, be entitled to charge the defendant with the full amount of the extra work, yet they must have been aware that he was entitled to deduct the sum allowed by the arbitrator, and to which the defendant was entitled by the express terms of the agreement. The plaintiffs therefore ought not to have arrested the defendant for the whole amount: and in Summers v. Formby (4), the Court said, that a reference is equivalent to a trial, and that it has been so held, so as to entitle the defendant to costs where the plaintiff does not recover the sum for which the defendant was arrested under the 43 Geo. 3. c. 46. s. 3. But

By the Court.-Although a defendant may, in some cases, be entitled to his costs under the statute, where he has been arrested for 100%., and the plaintiff recovers only 40%., yet it must be a strong case. Here, the transactions between the plaintiffs and the defendant arose from the terms of an agreement, and the account being of a complicated nature, it was highly prudent to refer it to an arbitrator; and he might either (3) 1 Moo.& Pay. 355; s. c. 3 Law Journ. C.P. 90. 1 B. & C. 100; s. c. 1 Law Journ, K,B. 34.

have examined the parties, or heard evidence which could not be admitted at the trial. But the case of Thompson v. Atkinson (5) appears to be decisive of the question. There, the defendant was arrested for 1791. At the trial, a verdict was found for the plaintiff, subject to the award of an arbitrator, to whom the cause, and all matters in difference between the parties were referred, and the costs of the cause were to abide the event of the award. The arbitrator by his award found, that, at the commencement of the suit, there was due from the defendant to the plaintiff the sum of 45l. 10s., and that the plaintiff had no rea sonable or probable cause for arresting the defendant for 1797.; and that the defendant, by reason thereof, was entitled to compensation or damages to the amount of 201. The arbitrator then ordered the verdict to be finally entered for the plaintiff, for 251. 18s., the balance due to him, after deducting therefrom the damages awarded to the defendant. The Court refused to allow the defendant costs under the statute 43 Geo. 3. c. 46, inasmuch as, by the terms of the reference, the costs were to abide the event of the award, and that was in favour of the plaintiff.

Rule discharged.

1828. Nov. 19. Award-When, and on what terms, set

CHRISTIE v. HAMLET AND
OTHERS.

aside.

By a Judge's order, made at chambers, upon hearing the attornies on both sides, and by their consent, the cause was referred to arbitration. It was recited in the award, that the cause was referred by an order of Nisi Prius :-Held, that such award was bad, and that the performance of it could not be enforced by attachment; but the rule nisi for selling it aside, not stating it to have deen drawn up on reading the order of reference,-held irregular.

On the 17th June last, Lord Chief Justice Best made an order at chambers as follows, namely, "Upon hearing the attornies on both sides, and by their consent, I order, that

(5) 6 B. & C. 193; s. c. 5 Law Journ. K.B. 101.

this cause, and all matters in difference between the above parties, be referred to the award of Thomas Ashton the younger, and Joseph Soames; and, by the like consent, I further order, that this order shall be made a rule of the Court of Common Pleas, if that Court shall think fit." The arbitrators made their award on the 10th September last, and which began by reciting, that, at the Sittings of Nisi Prius, held at Guildhall, in and for the city of London, on the 17th June 1828, before Sir William Draper Best, Lord Chief Justice, &c., a cause came on to be tried between the above-named plaintiff and defendants; and that, upon such trial, with the consent of the plaintiff and defendants, their counsel and attornies, an order or rule was made, that it should be referred to the arbitrators named in the order, to settle and ascertain what damages the plaintiff had sustained, and that a verdict should be entered accordingly.

Mr. Serjeant Wilde, on a former day in this term, upon an affidavit stating, that no such order of Nisi Prius as that set forth in the award had been at any time made in this cause, as it was made by the Lord Chief Justice at chambers, obtained a rule nisi to set aside the award, which was drawn up upon reading the above affidavit, and a paper writing thereto annexed, which was a copy of the award.

Mr. Serjeant Taddy now shewed cause ; and submitted, that, as the order of reference was merely recited in the award, it was no ground for setting it aside; and that, as it was a mere technical objection, the rule for setting it aside was also objectionable, as it was not drawn up on the reading the rule or order of reference, under which alone the arbitrators had power to act. Besides, the Court of King's Bench requires the objections to an award to be stated in the rule nisi, and the same practice prevails here.

By the Court.-We are of opinion, that an attachment cannot be issued against the defendants to enforce performance of the award, as no such order of Nisi Prius existed, or was ever made as is recited in the award. But the rule for setting it aside should certainly have been drawn up on reading the order of reference, and the objections to the award should also have been stated in the

rule: (1) the rule, therefore, must be discharged, but without costs.

1828.

Rule discharged accordingly.

AMNER AND ANOTHER, EXECU-
TORS, V. CATTELL.

Nov. 24. S Practice.-Venue—on what terms changed. The defendant obtained a rule nisi to change the venue from London to Warwick, on the usual affidavit. Cause was shewn on an affidavit, which stated, that the defendant's attorney had declared that he should change the venue, to postpone the trial till the Assizes, when Lord Tenterden's Act, 9 Geo. 4. c. 14, would have come into operation, and thereby beat the plaintiffs, as they had no promise in writing. The Lord Chief Justice, and Mr. Justice Park, were of opinion that the rule should be discharged. Mr. Justice Burrough, and Mr. Justice Gaselee thought, that the defendant's attorney should have an opportunity of answering the affidavit; but as he did not do so effectually, the rule was ultimately discharged.

This was an action of assumpsit for goods sold and delivered by the plaintiffs' testator, in his lifetime, to the defendant.

Mr. Serjeant Adams, on a former day, obtained a rule nisi, on the part of the defendant, to change the venue from London to Warwick, on the usual affidavit, that the plaintiffs' cause of action, if any, arose in that county, and not elsewhere.

Mr. Serjeant Merewether shewed cause, on an affidavit of the plaintiffs' attorney, which stated, that, before the commencement of the action, he wrote to the defendant's attorney, informing him of the defendant's admissions and promises of payment of the debt in this suit; that he called on the defendant's attorney for his undertaking for the defendant's appearance, when the attorney said, that he should plead the Statute of Limitations, and that Lord Tenterden's Act came into operation on the 1st of January, and that he should change the venue and beat the plaintiffs, as they had no promise in writing. For the plaintiffs it was submitted, that under these circumstances the defendant ought not to be allowed to change the venue, as the only (1) But on this point, see post 80.

object of his attorney was to postpone the trial of the cause until after the statute 9 Geo. 4. c. 14. came into effect, and by which the plaintiffs' claim would be wholly defeated (1).

(1) The 1st section, after reciting an act passed in the 21st year of the reign of King James I., whereby, it was among other things enacted, “that all actions of debt for arrearages of rent, should be commenced within three years after the end of the then session of parliament, or within six years next after the cause of such action or suit, and not after;"and that various questions had arisen in actions founded upon simple contract, as to the proof and effect of acknowledgments and promises offered in evidence, for the purpose of taking cases out of the operation of the said enactment; and that it was expedient to prevent such questions, and to make provision for giving effect to the said enactment, and to the intention thereof:-it was enacted, “that in action of debt, or upon the case, grounded upon any simple contract, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract, whereby to take any case out of the operation of the said enactment, or to deprive any party of the benefit thereof, unless such acknowledgment or promise shall be made or contained by or in some writing to be signed by the party chargeable thereby; and that where there shall be two or more joint contractors, or executors or administrators of any contractor, no such joint contractor, executor or administrator, shall lose the benefit of the said enactment, so as to be chargeable in respect, or by reason only of any written acknowledgment or promise made and signed by any other or others of them: Provided always, that nothing therein contained shall alter or take away, or lessen the effect of any payment of any principal or interest made by any person whatsoever: Provided also, that in actions to be commenced against two or more such joint contractors, or executors or administrators, if it shall appear, at the trial or otherwise, that the plaintiff, though barred by the said recited act, or this act, as to one or more of such joint contractors, or executors or administrators, shall nevertheless be entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment or promise, or otherwise, judgment may be given, and costs allowed for the plaintiff, as to such defendant or defendants against whom he shall recover, and for the other defendant or defendants against the plaintiff.”—And by the tenth section it is enacted, "that the act shall commence and take effect on the first day of January 1829."

Mr. Serjeant Adams, in support of the rule, submitted, that the affidavit of the plaintiff's attorney was no answer to the application to change the venue; and that the plaintiff could be only entitled to retain it, upon undertaking to give material evidence in London. The rule, therefore, must be made absolute, or, at all events, the Court ought to allow the defendant's attorney to answer the matters of the affidavit of the solicitor for the plaintiffs.

The Lord Chief Justice and Mr. Justice Park were of opinion, that the venue ought not to be changed, and that the plaintiff was entitled to retain it, without undertaking to give material evidence in London, where it was laid: as, if a cause of action arise in two counties, or the witnesses reside in a distant county, or a material witness be confined to his bed by illness, or if a fair trial cannot be had in the county where it was originally laid; either of these circumstances is a ground for discharging a rule to change the venue. It seems that the late statute was intended to apply to parol acknowledgments made before its provisions came into actual effect; for it was with a view to prevent an ex post facto operation, with respect to actions already commenced, that the period of the act's coming into force was postponed for six months after it had passed and if the trial of this cause were delayed until the next Assizes, the act would have previously come into operation; whereas, if the venue be not changed, the plaintiffs may try their cause at the Sittings after this term.

Mr. Justice Burrough and Mr. Justice Gaselee, were inclined to think, that the rule should be made absolute, as the defendant had applied to change the venue on the usual affidavit, and the plaintiff had not denied that the cause of action did not arise in Warwickshire, nor had he given an undertaking to give material evidence in London; -that, at all events, the defendant' sattorney ought to have an opportunity of answering the affidavit of the plaintiffs' attorney.

The rule was accordingly enlarged for that purpose; and, the defendant's attorney not having denied the facts as sworn to by the attorney for the plaintiffs,—

The Court ordered the rule to be
Discharged.

If a plaintiff direct the sheriff to return nihil to a writ of scire facias, and the latter refuse to return the writ until he has been paid a fee, the plaintiff is not entitled to the costs of applying to the Court, in calling on the sheriff to return the writ.

Quære-Whether, hereafter, two nihils will be permitted to operate as a scire feci.

Mr. Serjeant Wilde, on a former day in this term, obtained a rule calling on the sheriff to shew cause, why he should not return a writ of scire facias, which had been left with him by the plaintiff, to be returned nihil. And it was also prayed, that the sheriff might pay the costs of this application, which was founded on an affidavit by the plaintiff, which stated, that the sheriff would not return the writ, because the plaintiff had refused to pay him a sum which he demanded, and to which the plaintiff thought he was not entitled, it being more than the usual fee. The sheriff, on being served with the copy of this rule, returned the writ.

Mr. Serjeant Russell now shewed cause against that part of the rule which required the sheriff to pay costs, and relied on the case of The King v. Jones (1), where it was held, that a sheriff is not liable to an attachment for not returning a writ, if not called upon by a rule of court within six months after the expiration of his office, notwithstanding he was requested by the party to return it before the six months were expired and the Court there said, that if this mode of desiring the return of a writ were to be allowed, it would be productive of numberless questions, as to what should be deemed a calling on the sheriff; and here, the moment the sheriff had notice of the rule, he caused the writ to be returned.

Mr. Serjeant Wilde, in support of his rule, submitted, that, as the plaintiff was compelled to apply to the Court, he was entitled to the costs of the motion; and the under-sheriff did not demand a fee until after the return of nihil had been indorsed upon the writ.

(1) 2 Term Rep. 1.

By the Court. The greatest injustice is done by parties directing a return of nihil to be made to a writ of scire facias. The defendant always ought to have notice of such a writ. We cannot say, whether the sheriff attempted to exact a fee to which he was not entitled; and if the plaintiff had not directed him to return nihil, the Court might have directed him to pay the costs of the application; and we will take care in future, that if two nihils be returned, it shall not operate as a scire feci, and we trust, that the commissioners will not only notice this practice in their report, but discountenance it altogether.

In assumpsit against an attorney for negligence in the conduct of a suit, the declaration contained several special counts, and the usual money counts ; the defendant paid money into court sufficient to cover the plaintiff's demand on the latter counts. The cause being referred under an order of Nisi Prius, the arbitrator found that the plaintiff had good cause of action for a certain sum, and directed a verdict to be entered for him for such sum:-Held, that the award was sufficiently certain. Although the objections to an award should be stated in the rule nisi to set it aside; yet if it be not done, the Court is not precluded from entering into any valid objection that may be raised to the

anard.

Mr. Serjeant Cross, on a former day in this term, obtained a rule nisi, that an award which had been made in this cause might be set aside, on an affidavit, which stated, that the plaintiff had commenced an action of special assumpsit against the defendant, as his attorney or agent, for negligence in the conduct of a suit; that the declaration contained eleven special counts, assigning several special breaches for neglect, and the usual money counts, and that the defendant had paid a sufficient sum into court to cover the plaintiff's demand on the latter counts;

that the cause was referred to arbitration, under an order of Nisi Prius, and that the arbitrator had found by his award, that the plaintiff had good cause of action against the defendant for 23l. 148. 10d., and directed a verdict to be entered for the plain tiff for that sum accordingly. Under these circumstances, it was submitted, that, as the arbitrator must have received evidence of the general causes of action referred to him, namely, the negligence of the defendant, as well as a pecuniary demand on him by the plaintiff, the arbitrator should have stated on which of the causes of action he had founded his award; and that he should have directed a verdict to be entered for the plaintiff on the counts to which the finding applied.

Mr. Serjeant Wilde and Mr. Serjeant Jones now shewed cause; and as the grounds on which it was sought to set aside the award were not mentioned in the rule nisi, it was objected, that the Court in the exercise of their discretion, and according to the late practice, would not entertain the application at all events, the objection which has been raised, is no ground for setting aside the award, as it must be assumed that the arbitrator found that the plaintiff had a good cause of action on the whole declaration, and costs have been taxed accordingly.

Mr. Serjeant Cross and Mr. Serjeant Russell, in support of the rule, observed, that, although there was a rule in the Court of King's Bench, that when a rule to shew cause is obtained to set aside an award, the objections intended to be insisted upon at the time of making such rule absolute must be stated in the rule to shew cause; yet there is no such rule in this Court, nor does the practice require it—and even if it did, it would not preclude the Court from entertaining any valid objections that may be raised to the award, which in this case is void for uncertainty; for as the plaintiff charged the defendant with negligence, and also sought to recover a sum due to him for monies advanced during the progress of the cause, the arbitrator should have specified on which of those causes the plaintiff was entitled to recover; and in Dillon v. Rimmer (1), where the defendant, being indebted

(1) 1 Bing. 100; s. c. 7 B. Moore, 427.