1847. WILLOUGHBY V. part (as to which the jury were properly called upon Queen's Bench. to decide) the award he ultimately made was not binding: and, if he neglected to make his award, he neglected to act. (The arguments as to the proof of mis- WILLOUGHBY. carriage, and its effect, are omitted.) This view appears correct, if the traverse only, in the first plea ("without this, that that the said E. G. A. neglected" &c. for six calendar months), be taken into consideration. But the inducement avers that Atherley, in pursuance of his powers, "made and published his award " of and concerning the matters referred. The inducement ought to contain, in substance, the answer formally given by the traverse; Stephen on Pleading, 212, 5th ed. and an inducement satisfying this rule so far limits the traverse that, to prove the traverse, the inducement must be proved; Wilson v. Craven (a). The doctrine on this subject is also discussed in Craven v. Sanderson (b). Then, to prove the first plea, the defendant was bound to shew that Atherley made an award: but that means a good award; Gisborne v. Hart (c). Sir F. Thesiger, Solicitor General, Cowling and Montagu Smith, contra. If the direction as to six months in sect. 30 be imperative, that objection is on the record. The excuse really offered by the inducement to plea 1 is that the plaintiff acquiesced in the award; if the inducement ought to contain the substance of the traverse, the plaintiff might have demurred on this ground. The real question is, what is meant, in the issue on that traverse, by neglecting to act, and whether the question upon it was properly left to the jury. The (a) 8 M. & W. 584. 593. (b) 4 A. & E. 666. (c) 5 M. & W. 50. See Dresser v. Stansfield, 14 M. & W. 822. 1847. Volume IX. delay of the inclosure commissioner was good ground for delay in making the award as to commutation of WILLOUGHBY tithe. Division of the lands was the primary object of WILLOUGHBY. the statute; the fixing of a corn rent in lieu of tithe V. was only subsidiary. Accordingly, the limitation of time for the latter proceeding is not made in peremptory words. The arbitrator is "authorized and empowered" to award "within six calendar months:" the power is not given him with the words "so that," which are words of condition; Litt. s. 329: the language is directory. Doe dem. Nicholson v. Middleton (a) was a very different case; there the statute appointed three commissioners, and declared that the act of any two of them should be as valid as if done by all; but two acted when there were no longer three in existence. In The Conservators of the River Tone v. Ash (b), where it was held that a navigation act obliged the company therein named to contract with the Conservators within three months, Bayley J. laid stress on the word “required." The object of the present enactment is to settle public rights; it is necessary that the intention of the legislature should be carried into effect: and, in such a case, provisions as to time are held directory only; Rex v. The Mayor of Norwich (c): the omission or unavoidable failure of the party charged with a duty is not allowed to defeat the public purpose. Bosanquet v. Woodford (d) also bears on this point. If the time for making the award is not peremptorily fixed, it cannot be said that the arbitrator is in any default unless he has been requested to make it by the parties interested; Curtis v. Potts (e). Here no (a) 3 Brod. & B. 214. (e) 3 M. & S. 145. (b) 10 B. & C. 349. 381. 1847. request is shewn; and the award actually made by Queen's Bench. Atherley appears to have been acquiesced in for a considerable time. The real question here is, not whether as may WILLOUGHBY V. Mr. Atherley made an award within any given time, but WILLOUGHBY, whether he neglected to act; the word "neglect," in sect. 39, accompanied by the words "shall die" or "refuse," or "become incapable," implies such a neglect be deemed final. No objection being raised on the record, it was for the jury to say, under the direction of the Lord Chief Justice, whether the arbitrator's conduct in not making an award amounted to a neglect of this kind. The evidence shewed not a neglect to act, but an acting. Secondly. Partial or irregular conduct in the arbitrator, even if proved, could not support the allegation of a neglect within the meaning of the act or of the plea. If the limitation of time be out of the question, an award was made: and the party dissatisfied might have tried the right by a feigned issue. This is expressly authorised by sects. 14 and 33(a). (The further argument on this point is omitted. The defendant's counsel cited note (3) to Veale v. Warner (b), and Grazebrook v. Davis (c). Also, as to the effect of the inducement, Negelen v. Mitchell (d). ) Cur, adv. vult. Lord DENMAN C. J., in this term (January 19th), delivered the judgment of the Court. This was an action of debt for money payments alleged to be due from the landowner as compensation for tithes to the plaintiff, who was rector of the parish, by virtue of an award made under an inclosure act. (a) It has not been considered necessary to set them out. (b) 1 Wms. Saund. 327 a. (d) 7 M. & W. 612. (c) 5 B. & C. 534. Volume IX. 1847. The verdict passed for the plaintiff on the three first issues, raised by the three first pleas; and a rule was granted for a new trial on the ground of misdirection. WILLOUGHBY. The question was argued upon the first issue only. WILLOUGHBY The declaration shewed that, under the inclosure act, an arbitrator, Mr. Atherley, was named, who was authorised aud empowered to make his award within six months after the passing of the act. It is alleged that he neglected to act in the matter submitted to him, and did not make his award within the six months, but neglected so to do for the space of six calendar months. It then averred the appointment of another arbitrator, Mr. Herbert, by the Bishop of Oxford, under the provisions of the act, and the making by him of the award declared upon. The first plea, after an inducement that Mr. Atherley, on a day laid under a scilicet, and in pursuance of the act, published his award, of which the plaintiff had notice, and to which he submitted, and acted on it, concluded with a special traverse; without this, that Atherley neglected to act in the matters submitted to him, and neglected to make his award within six months; on which the issue was taken. Upon the evidence it appeared that Atherley had not made any award within the six months; but that he subsequently had made a bad one; this was for some time acquiesced in by the plaintiff; but ultimately the Bishop was applied to to appoint, and did appoint, another arbitrator, who had made the award now declared on. It was contended for the defendant at the trial that, under the provisions of the act, Atherley could not make his award until the Inclosure Commissioner had made his; he was not limited in point of time, and in fact had not made his award within six months. 1847. On this question, it appeared to me at the trial that Queen's Bench. the word neglect imported some degree of blame; that that issue could not be proved without shewing Atherley WILLOUGHBY V. to have done wrong; and that he did nothing wrong in WILLOUGHBY. suffering the six months to elapse, because it was assumed that he could not make his award till the Inclosure Commissioner should have made his, for doing which the time was unlimited. I thought also that his making an award, after the six months, which was bad for some inherent defects, was a neglect which authorised the Bishop to appoint another arbitrator. But the view now taken by my brothers Coleridge and Wightman, who have heard the case, is, that Mr. Atherley, in permitting six months to elapse without making an award, has neglected to make one within the meaning of the act. In this view I concur. The consequence is that the Bishop's power to appoint another arbitrator attached: Mr. Herbert was well appointed; and his award is binding. If, then, a new trial took place, the Judge would be bound to direct the jury that the plaintiff was entitled to the verdict on the proof of facts which are not nor can be disputed. The defendant, however, has a right to question this direction: and we would suggest, for saving expense and further delay, that he should now be at liberty to tender a bill of exceptions, and have the same opportunity of arguing it on a writ of error as if our present opinion had been declared at the trial, and the jury directed accordingly. agreed to, Unless this is Rule absolute (a). (a) No further proceeding has hitherto been taken. |