beneficially interested in the result. There the Court observed, "that even in the case of an uncertificated bankrupt, security could not be required where the action had been brought for his own benefit." So in Wray v. Brown (a), it was held, that the fact of the plaintiff having been three times insolvent and once a bankrupt, and that he was only suing as a trustee for a third person, afforded no ground for calling on him to give security for costs. [Alderson, B.-There the action was not brought for the benefit of the assignees, which distinguishes it from the present case.] In Day v. Smith (b), which was an action on an award by a party who had assigned his interest in it to another, the Court would not, on that ground, compel the plaintiff to give security for costs.

M'Mahon in support of the rule, cited Hearsey v. Pechell (e), and was stopped by the Court.

POLLOCK, C. B.-The rule must be absolute. Where at bankrupt or insolvent sues not for his own benefit, but for that of his assignees, he may be required to give security for costs. In this case the real plaintiffs are the assignees of this portion of the plaintiff's property, in trust for the body of the creditors.

(a) 6 Bing. N. C. 271; See S. C. 8 Scott, 557; 8 Dowl. 279. (b) 1 Dowl. 460.

Rule absolute.

(c) 7 Dowl. 437; See S. C. 7 Scott, 477; 5 Bing. N. C. 466.

1845.

PERKINS

v.

ADCOCK.

COCK v. GENT and Others.

THIS cause was referred by a Judge's order, in the usual

Where a cause

was referred

terms, to two arbitrators, but the order gave them no power by Judge's to direct a verdict to be entered for either party.

The order, and the

arbitrator directed a

verdict to be entered for the plaintiff, the order giving him no power so to do, the Court refused to set aside the award on motion.

In such a case, the Court will not enforce the award by attachment, but will leave the party to his remedy by action.

1845.

Соск

v.

GENT

and Others.

arbitrators awarded, that a verdict should be entered for the plaintiff, with 40s. damages, and that the costs of the cause should be paid to him by the defendants.

Wordsworth moved for a rule, to shew cause why the award should not be set aside, on the ground that the arbitrators had exceeded their authority. An arbitrator has no power to direct the entry of a verdict, unless he be expressly authorized by the submission, or a verdict have been taken at Nisi Prius; Hutchinson v. Blackwell (a); Jackson v. Clarke (b); Donlan v. Brett (c). [Parke, B.In the case of Cartwright v. Blackworth (d), Littledale, J. considered the direction to enter a verdict for a certain sum as equivalent to an order to pay that sum.] That decision has been overruled by Donlan v. Brett, in which Littledale, J. said, that had he been aware of the case of Jackson v. Clarke, he should not have decided as he did in Cartwright v. Blackworth.

PARKE, B.-The cases cited only shew, that the Court will not grant an attachment. We are now asked to set aside the award; and that we ought not to do unless it be perfectly clear that it is void. If the plaintiff enter a verdict, the defendants may move to set it aside; or if the plaintiff seek to enforce the award by action or attachment, the question may then be raised whether he be entitled to do so.

POLLOCK, C. B., and ROLFE, B., concurred.

Rule refused.

A rule was afterwards obtained, calling on the defendants to shew cause why an attachment should not issue against

(a) 1 Dowl. P. C. 267; See S. C. 8 Bing. 331; 1 M. & Scott, 513.

(b) M'Clel. & Y. 200; S. C. 13 Price, 208.

(c) 2 A. & E. 344; See S. C. 4 N. & M. 854.

(d) 1 Dowl. 489.

them for non-payment of the sum of 381. 15s., pursuant to the award, rule of Court, and Master's allocatur.

1845.

COCK

v.

GENT

Wordsworth shewed cause. Where there is any question and Others. as to the validity of an award, the Court will not entertain it upon motion for an attachment, but will leave the party to his remedy by action. In the present case the award is clearly bad, inasmuch as the arbitrators have exceeded their authority in directing a verdict to be entered. The Court called on

Petersdorff, to support the rule. The award may be supported so far as it directs the defendants to pay the costs, and the present application is to give effect to that part of it, which is totally distinct from the direction to enter the verdict. [Alderson, B.-The award must be final as to all matters referred. Here there are two matters, the damages and costs; and if the arbitrator have made a valid adjudication as to one only, the award is not final.] It is conceded, that such is the case where the award is not divisible; but here the adjudication as to the costs may be separated from the other part. [Alderson, B.-What is there to determine the matter in dispute between the parties but the entry of the verdict, and that cannot be done?]

POLLOCK, C. B.-The rule must be discharged. In Jackson v. Clarke (a), the arbitrator awarded in these terms, "I award and direct, that a verdict in this cause be finally entered for the said plaintiff, with 2847. 12s. damages;" and it was expressly decided, that as the award consisted of only one sentence, that direction could not be rejected, and the residue considered as an award that so much was due, and to be paid. And in Donlan v. Brett it was decided, that an award, that a verdict be entered for the plaintiff

(a) M'Clel. & Y. 200; See S. C. 13 Price, 208.

VOL. III.

T

D. & L.

1845.

Соск

v.

GENT

and Others.

for a sum named, is not tantamount to an order that the defendant shall pay so much to the plaintiff.

PARKE, B.-The arbitrators had authority to decide the action, and the costs of the action; but as to the former, they make no valid award. There is a case of Hawkyard and Another v. Stocks and Others (a), which is precisely in point. There my Brother Coleridge says, "the rule as to redundancy not vitiating an award, only applies where the redundant matter being struck out, the sense of the award remains the same."

ALDERSON, B.-If an action be brought on the award, and ultimately decided in favour of the defendants, it would shew that an attachment ought not to have been granted. As there is another remedy, I think this rule should be discharged.

(a) Ante, vol. 2, p. 936.

Rule discharged.

BARTLETT V. BENSON.

A declaration ASSUMPSIT. The declaration stated that one Tem

alleged that T. made his bill of ex. change, and thereby required G. & Co. to pay to the order of the defendant 2007.; that the defendant indorsed the

bill to the plaintiff; and that

pest, on, &c., made his bill of exchange in writing, and directed the same to Messrs. Glyn & Co., and thereby required them to pay to the order of the defendant 2007. two months after the date thereof: that the defendant indorsed the bill to the plaintiff, and that Messrs. Glyn & Co. did not pay the bill, although it was duly presented to them for payment, of which the defendant had notice.

G. & Co. did not pay it, although it was duly presented to them for payment. Plea, that after the indorsement to the plaintiff, and before it was due, he indorsed it to some person unknown, who presented it to G. & Co. for acceptance; that G. & Co. refused to accept it; and that the defendant had no notice of non-acceptance. On motion to enter judgment for the plaintiff, non obstante veredicto; Held. that the plea was good.

Semble, that it would have been a departure to have replied that the person unknown indorsed the bill to the plaintiff for value, and that the plaintiff had no knowledge of the dishonour by non-acceptance.

The defendant pleaded, secondly, that after the indorsing of the bill by the defendant to the plaintiff, and before it became due, the plaintiff being the holder and owner of the bill, indorsed it to some person unknown, who then presented it to Messrs. Glyn & Co. for acceptance; that they refused to accept it; and that although a reasonable time for the defendant to have had notice of the said presentment and dishonour had elapsed after the said presentment and dishonour, and before the defendant had the notice in the declaration mentioned; yet that the defendant had not due notice of the said presentment and dishonour.

Thirdly, a similar plea, except that it stated that after the plaintiff had indorsed the bill to some person unknown, that person indorsed it to some other person unknown, who presented it to Messrs. Glyn & Co. for acceptance, &c. Replication, de injuriâ.

At the trial before Pollock, C. B., at the London Sittings after Easter Term, a verdict was found for the defendant on both pleas.

A rule had been obtained to enter up judgment for the plaintiff non obstante veredicto, against which,

The pleas afford a

Dundas and Addison shewed cause. complete defence to the action, since the defendant's liability was discharged by the omission to give notice of the nonacceptance of the bill; Roscow v. Hardy (a). It is true that the want of notice is no answer where the bill has passed into the hands of a bonâ fide indorsee for value who had no knowledge of the dishonour; Dunn v. O'Keeffe (b); but that fact should come from the plaintiff by way of replication. It is sufficient for the defendant to shew a primâ facie answer to the declaration: he need not negative every state of things which may create a title in the plaintiff. Where the Statute of Limitations is pleaded, it is not necessary to aver that there was no part payment and

(a) 12 East, 434.

(b) 5 M. & S. 282.

1845.

BARTLETT

v.

BENSON.