can grant this application without acting expressly contrary to the decision in that case. Cur, adv. vult. 1845. Doe dem. WILLIAMSON v. ROE. On a subsequent day, PATTESON, J.-I have looked into the case of Doe d. King William the Fourth v. Roe, and I find that it is so directly in point upon the present occasion, that supposing I had any doubt, which I have not, as it is a decision of the full Court, I should not feel myself justified in deciding against it. As, however, it appears to me not unreasonable to suppose that this case has escaped attention, and as there is another case in this Court in which no such objection was taken (a), I think, that under these circumstances, the rule must be discharged, but without costs. (a) 4 Dowl. 222. Rule discharged accordingly (6). (b) The case of Doe d. Simpson v. Roe, 6 Dowl. 469, was not brought under the notice of the Court, where, on motion to set aside a declaration in ejectment for not containing in it an at torney's name, Mr. J. Patteson ADAM V. ROWE. ASSUMPSIT. The declaration contained three counts. The first was for goods sold and delivered; the second for Assumpsit. The declara tion contained counts for goods sold and delivered, for money had and received, and for money due on an account stated. The defendant pleaded, 1. Except, &c., non assumpsit. 2. As to the sum excepted, tender. 3. Except, &c., setoff. 4. Except, &c., payment. On these pleas issue was joined. At the trial, a verdict was taken by consent for the plaintiff, subject to the certificate of an arbitrator, who made his certificate in the following terms: "As to the issues firstly, thirdly, and lastly joined between the parties in the said cause, I do find and certify that the verdict so found as aforesaid ought to stand, and that the same shall and do stand upon and so far as the same relates to the said first, third, and last issues:" Held, on motion to set aside the above certificate, that the "issue firstly joined" meant the issue of non assumpsit to the whole declaration; and that it was not necessary to find separately on the issue of non assumpsit as to each count. 1845. ADAM v. RowE. money had and received; and the third for money due on an account stated. The defendant pleaded, 1. Except as to 297. 11s. ld., non assumpsit. 2. As to that sum, tender. 3. Except as to that sum, set-off. 4. Except as to that sum, payment before action brought. On these pleas, issue was joined. On the cause coming on to be heard before Williams, J., at the sittings in last Hilary Term, a verdict was found for the plaintiff by consent, damages 807., and costs 40s., subject to the award or certificate of order, arbitrament, final end and determination of a gentleman at the Bar, to whom all matters in difference in the cause were referred, to order and determine what he should think fit to be done by the parties respecting the matter in dispute; and that the costs of the cause, and the costs of the reference and award, or certificate, should abide the event and determination of the said award or certificate. The arbitrator made his certificate of and concerning the matters and premises to him referred as aforesaid, in the following terms: "As to the issues firstly, thirdly, and lastly joined between the said parties in the said cause, I do find and certify, that the verdict so found as aforesaid, ought to stand, and that the same shall and do stand upon, and so far as the same relates to the said first, third, and last issues; but that the amount of the verdict be reduced from the sum of 801., to the sum of 31. 18s. 11d. And as to the issue secondly joined in the said cause between the said parties, I do find and certify for and in favor of the defendant, and I find and certify that the verdict so found for the plaintiff as aforesaid, so far as the same relates to the said second issue, ought to be set aside, and a verdict on the said second issue entered in lieu thereof for the defendant, and that the same be done accordingly." A rule having been obtained, calling on the plaintiff to shew cause why the award made between the parties should not be set aside, on the ground that the arbitrator had not adjudicated upon each of the issues raised, and that the award was, therefore, not final. Mellor shewed cause. It is submitted that the certificate is good. It is said, that the first issue on non assumpsit, contains in reality three issues; one on each count in the declaration; and that the arbitrator should have found on each of these issues: and the case of Kilburn v. Kilburn (a), is relied on as supporting this objection. Although that case may seem to be against the validity of this certificate, there is this strong distinction to be drawn, that there the arbitrators awarded a certain sum to be due, and that judgment should be entered for that sum, but did not find on any of the issues specifically. Here the arbitrator has specifically found, as to the issue firstly above joined, which is the issue of non assumpsit, that the verdict should stand for the plaintiff. Now, whether the plea of non assumpsit contains a denial of one or of several promises, the arbitrator has equally found that issue or issues for the plaintiff. In Stonehewer v. Farrar (b), this Court guarded itself against being supposed to hold that the arbitrator must in terms find each issue. If from his award it may be clearly inferred, that a substantial finding on the issue exists, that is sufficient. In Cooper v. Langdon (c), the arbitrator found a general verdict for the defendant, and the Court held, that that was a sufficient determination of the several issues in that cause. Lush, in support of the rule. The question is, whether the present case can be distinguished from Kilburn v. Kilburn, and it is submitted, that the judgment in that case, applies equally to a case like the present. There the Court said, "the difficulty as to the plea of non assumpsit (a) Ante, vol. 2, p. 633; See S. C. 13 M. & W. 671. (b) Q. B. Hil. Term, 1845. (c) 9 M. & W. 60; S. C. 1 Dowl. 392, N. S. 1845. ADAM v. Rowe. 1845. ADAM v. ROWE. is this; the declaration consists of several counts, and the plea of non assumpsit is a denial of the liability of the defendant on each count. Now the award does no more than determine that, on some one or more of the counts in the declaration, the defendant was liable; it does not necessarily, or even reasonably, determine that he is liable on all; nor does it determine each so as to be equivalent to an express determination of the whole issue of non assumpsit." The real test is, that the verdict might have been for the plaintiff on the first count, and for the defendant on the account stated; and the latter would have been entitled to the costs of the last issue, however small they might be. The subsequent case of Morgan v. Thomas, which is only to be found reported in the Jurist, vol 9, p. 92, was another decision to the same effect, pronounced by the Court of Exchequer in the same Term. COLERIDGE, J.-I think Mr. Mellor has succeeded in shewing, that there is a material distinction between the present case and those which have been cited; and I certainly would not wish to extend them beyond the limits to which they are fairly applicable. In the cases of Kilburn v. Kilburn (a), and Morgan v. Thomas, there is no finding upon any particular issue; but only that the defendant owed the plaintiff a certain sum of money, which certainly leaves it uncertain on which count or counts the plaintiff is entitled to recover. Now let us see what is the finding in the present case. The certificate is, "as to the issues firstly, thirdly, and lastly joined between the said parties in the said cause, I do find and certify, that the verdict so found as aforesaid," (that is for the plaintiff) "ought to stand; and that the same shall and do stand upon, and so far as the same relates to the said first, third, and last issues." Here there were four issues, in one sense (a) Ante, vol. 2, p. 633; See S. C. 13 M. & W. 671. at least, and by the finding as to the issue "firstly" joined, no one can doubt that the issue on non assumpsit is meant. Therefore, although it may be that by the finding on the first issue, the issue of non assumpsit as to the first count only is in strictness described, there can be no doubt that the arbitrator meant to describe by it the issue of non assumpsit on all the counts. It is said, that the first issue is divisible, and raises several sub-issues; and no doubt it does, and if there were any real ambiguity as to the arbitrator's intention, if it could be a question whether he meant to fix it on any one of these sub-issues, and not on the whole, there might be some weight in the objection. But I understand him clearly to mean by the issue "firstly" joined, the issue of non assumpsit on the whole declaration. Then this difficulty is said to arise, that it does not appear how much the arbitrator has found to be due to the plaintiff on each count; but that can make no difference now. The only question is one of costs, and that will offer no difficulty; for it must be taken that the arbitrator has found something to be due to the plaintiff upon each count. Without interfering, therefore, with either of the two cases which have been cited, I think that I must hold upon the present occasion that this rule must be discharged. Rule discharged (a). (a) This case was decided in Easter Term, 1846. 1845. ADAM v. Rowe. |