1850.

FEEEMAN

ข.

WHITAKER.

the learned counsel for the defendant, as we are all clearly of opinion that the fiat had not issued within the true construction of the Act of Parliament in question, as long as it remained in the hands of the Lord Chancellor's secretary, for the purpose of being transmitted to the commissioners of the country Court of Bankruptcy. At all events, it was not issued until it was put into the post. Our judgment, therefore, must be for the defendant.

PARKE, B.-In the case of Pewtress v. Annan, which no doubt was rightly decided, the fiat was delivered to the petitioning creditor; but nothing is said in the 5 & 6 Vict. as to the delivery of the fiat to the petitioning creditor, or to any one on his behalf. Whilst the fiat remains in the hands of the secretary, in point of law it continues in the custody of the Lord Chancellor, who may counter-order its transmission, without the adoption of any formal process for that purpose; after the fiat is put into the post-office he may have lost that power. But it is not necessary to decide that point in the present case, for I entirely agree that the fiat at all events was not issued until it was put into the post-office.

ALDERSON, B.-I am of the same opinion. There was no issuing within the meaning of the Act in the present case, until it was put into the post-office. It may be, that, by putting it into the post, it may be said to have been issued; or the commencement of the issuing may take place when it is put into the post-office, and is finally complete upon its arrival in the hands of the commissioners of bankruptcy in the country.

PLATT, B.-I am of the same opinion. The execution preceded the issuing of the fiat.

Judgment for the defendant.

1850.

Jan. 11.

In the Matter of an Arbitration between J. M. COOMBS and J. W. FRESHFIELD, two of the Directors of the Globe Insurance Company, and J. FErnley.

IN this case Martin, on the part of the directors, had ob- An arbitrator or

tained a rule calling on the said J. Fernley to shew cause why the award of W. Tate (the umpire), made between the said parties, or so much thereof as related to the sum of 5271. 7s. 9d. therein mentioned as alleged costs and expenses, should not be set aside, unless the said J. Fernley and the said umpire and arbitrators should consent that the amount of their costs and expenses be referred to one of the Masters of this Court, to be taxed and settled.

It appeared by the affidavits, that Fernley had a claim against the Company, and that the subject-matter of it (no action having been brought by him for the recovery of it) was referred to two arbitrators, who were empowered, in case of disagreement, to appoint an umpire.

umpire has no

power to fix his

own fee in the make the takin up of the

award, and to

award conditional upon the payment of the

fee, unless the cifically give him that power. Certain matters in difference between

submission spe

A. B. and C. D. having been referred to two

arbitrators, with

power to appoint an umpire,

where, by the terms of the submission, the

mission and award were to

be in the discre

tion of the arbi

trators or um

pire, who, by

their award, might direct by

and to whom

By the terms of the submission, it was agreed that the costs of the subcosts and expenses of the submission and reference, and award to be made in pursuance thereof, should be in the discretion of the arbitrators or umpire, who might award and direct by and to whom the same should be paid, &c. Power was also given to make the submission a rule of Court; which was done. Tate having been appointed as umpire, made his award, and found thereby a sum to be due to Fernley by Messrs. Coombs and Freshfield, as directors of the said Company; and did also thereby direct and award, that all the costs and expenses of the said submission and reference, and of the award, should be borne

the same should be paid, with power also to mission

make the submission a rule

of Court, (which

was done). An

umpire was appointed who made an award, and thereby found a certain

sum to be due from A. B. to C. D.; and he awarded and directed all the costs (specifying the sum) of the submission and award, including therein the costs of taking up the award, to be paid by the party taking up the award, to be paid on a specified day by A. B. The fees of the arbitrators and umpire were included in the costs:-Semble, that the award was bad; and, C. D. having paid the amount to take up the award, that he might recover back the amount beyond what was reasonably due, in an action for money had and received.

1850.

In re COOMBS.

by the said T. M. Coombs and J. W. Freshfield, directors &c.; and he also found and adjudged the amount of the said costs and expenses, other than and besides costs and expenses incurred by and for the said T. M. Coombs and J. W. Freshfield, directors &c. but including the costs and expenses to be paid on taking up the award by the party or parties taking up the same, to be 5271. 7s. 9d., which he ordered and directed to be paid by the said T. M. Coombs and J. W. Freshfield, directors &c., to the said J. Fernley, on &c., unless they should be paid before that day. Fernley received notice that the award had been made, and was ready for delivery, and that the sum of 3791. 10s. 9d. was to be paid on taking up the award. He accordingly, supposing the award would be in his favour, paid that sum, and took up the award, when it appeared by a memorandum attached thereto, that the sum of 1477. 178. was allowed to him for his costs, making together 5271. 78. 9d. It also appeared by the affidavits, that the fees of the arbitrators amounted to 1097. 6s., and 1071. 6s. respectively, and those of the umpire to 108l. 9s. 3d.

The above rule was obtained upon the ground (inter alia), that the award of 5271. 78. 9d. as a gross sum, including the costs of the said J. Fernley, and of the award and reference was owing; and that the arbitrators and umpire had no power to fix the amount of their fees, and those of others to whom the costs were awarded, &c. .

Watson now shewed cause on the part of Fernley.-The first objection intended to be raised to the award is, that the umpire had no power to assess the amount of his own fee by the award. But there are two answers to that objection: First, the submission gave the umpire the power to do so; and secondly, if that assumption be wrong, the Court has no power to refer the umpire's fee to be taxed. It It may also be added, that, inasmuch as Mr. Fernley paid the money upon taking up the award, he would have

no means of obtaining repayment. The umpire could not be compelled to give up the award without the payment or tender of his due fee. That the Court has no such power as that contended for, was distinctly held in Dossett v. Gingell (a), in which case Tindal, C. J., in delivering the judgment of the Court, after stating that it was contended that the rule ought to be made absolute, on the ground that the Court has a general jurisdiction over the amount of fees paid in cases of arbitration under a rule of Court, said, "Several cases have indeed been cited, in which, as between the parties to a rule of reference, the amount of fees paid to an arbitrator has been ordered to be taxed. But no instance has been found in which such as that now sought to be obtained has been made against an arbitrator." [Parke, B.-The case of Bates v. Townley (b) is an authority in your favour, that the arbitrator is no party to the rule of Court, and therefore that he is not bound by it. But what right has he to fix the amount of his fee in and by the award?] By the terms of the submission, all the costs are to be in his discretion. [Parke, B.—The amount of his own fee is to be excluded, by natural justice; for it is contrary to reason that an arbitrator or umpire should be sole and uncontrolled judge in his own cause. No doubt he has a lien upon the award for his services, or perhaps he might maintain an action for work and labour; and as to the supposed difficulty to which the party may be subjected, who has taken up the award and paid the money, I am inclined to think that he might maintain an action for money had and received, on the ground that the payment was not voluntary. In the present case, the umpire has awarded a gross sum, and we cannot see how much of that is to go to him as his fee.]

Martin, who appeared in support of the rule, referred to

(a) 2 M. & G. 870.

VOL. IV.

(6) 2 Exch. 152.

III

EXCH.

1850.

In re COOMBS.

1850.

In re COOMBS.

Robinson v. Henderson (a), in which the Court were of opinion that there would be danger in permitting arbitrators to award a definite sum, of which a part, including a definite allowance to themselves, was ordered to be paid to the arbitrators. [Platt, B., referred to George v. Louseley (b).] The cases of Miller v. Robe (c), Fitzgerald and Graves (d), Barrett v. Parry (e), Shephard v. Brand (ƒ), and Musselbrook v. Dunkin (g), were also cited.

J. Henderson appeared on behalf of the umpire and one of the arbitrators, and contended that the affidavits shewed that the charges were all fair and reasonable; whereupon the Court proposed that the matter should be referred to one of the Masters, which, after some discussion, was agreed to.

Martin and Sir J. Bayley appeared for the directors.

PARKE, B.-I give no opinion on the facts which have been brought before us in the present case, upon the question which has reference to the charges being reasonable or not. But I think that the award is bad, on the ground that the umpire had no jurisdiction to fix his own fee, and to direct the manner in which it was to be paid under the terms of this submission; and as that part of the award, which is made without jurisdiction, is not separated from that portion of it which is so made, the award cannot be supported. The difficulty as to referring the case to the Master has been surmounted by the parties having consented to that arrangement.

(a) 6 M. & S. 276.

(6) 8 East, 13.

(c) 3 Taunt. 461.

(e) 4 Taunt. 657.

(f) Ca. temp. Hardw. 53. (g) 9 Bing. 605.

(d) 5 Taunt. 342.