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could not have reference to that matter (a). It is submitted, however, that this award is clearly bad. The reference is of “all matters in difference between the parties in this cause, the costs of the action to abide the event of the award;" and the arbitrator never so much as alludes to the action in his award. The event of the award must mean the legal event. There are two counts in the declaration: and the Master cannot tell upon this award, whether it was the intention of the arbitrator that the plaintiff or the defendant should recover the costs of the action; or whether in respect of both the counts, or only of one, and of which. The case of Pearson v. Archbold (6) strongly resembles the present. There the defendant in an action of assumpsit having pleaded non assumpsit, payment, and a set-off, and issues having been joined thereon, the cause and all matters in difference were by a Judge's order referred to arbitration, the costs of the cause to abide the event, and the costs of the reference and award to be in the discretion of the arbitrator. The arbitrator awarded “ that the plaintiff should pay to the defendant the sum of 161. 10s. 2d., being the balance which I find to be due from the plaintiff to the defendant;" and that each party should pay his own costs of the reference, and a moiety of the costs of the award. It was held upon motion, that the award was bad, on the ground of uncertainty as to the finding of the issues, and there being no adjudication at all upon the cause. Here the reference is of “all matters of difference between the parties in the cause,” which is to the same effect. That the cause in the present case had not proceeded as far as plea pleaded and issue joined, can make no difference. In Kilburn v. Kilburn (c), the Court in delivering judgment said, “the award does no more than this: it determines that on some one or more of the counts in the declaration
the defendant is liable; but it does not necessarily or even.. reasonably determine that he is liable on all or on any particular counts, so as to be equivalent to an express determination of the whole, or any definite part of the issue of non assumpsit in the plaintiff's favour.” The same reason applies to the present case. In Watson on Awards (a), the rule is stated to be, that where the costs of the action are to abide the event of the award, “the arbitrator must make a determination of the suit in favour of one party or the other as to the several counts or issues.” No distinction is there made between several counts and several issues ; nor on principle, it is submitted, can any be supported.
WILLIAMS, J.—The objection is that the arbitrator has omitted to decide with respect to the action, which was clearly submitted to him, together with all matters in difference between the parties. The reference is “of all matters in difference between the parties in this cause," and “that the costs of the action shall abide the erent of the award,” &c. The award is, that the defendant should pay a certain sum of money to the plaintiff, and that the costs of the reference and of the award, and all other costs connected therewith, should be paid by the defendant. It is impossible to collect from this award whether this sum is to be paid in respect of the action, or of any other matters in difference between the parties. Unless, however, he has decided in respect of the action, and, moreover, that the plaintiff is entitled to recover in the cause, how can the costs, which were to abide the event of the award, be taxed for the successful party? In Gray v. Gwennap (6), a case often cited, the words de præmissis seem to have been considered of considerable weight in sustaining an award. Whether they would obviate the present objection it is immaterial to consider, as they do not occur here. I
therefore think that the award leaves it uncertain in respect of what the finding is, and that the rule must therefore be made absolute.
PATRICK v. RICHARDS. W ARREN moved to make absolute a rule to compute. An affidavit
of service of The affidavit stated the rule had been served on a Mr. a rule to Strick, “who acts as the attorney or agent for the defendant pute, stated
the service to in this cause.” He submitted that that was equivalent to a have been on
A, B., “ who statement that the party served was the attorney.
acts as the attorney or
agent of the WILLIAMS, J.—The service should be on the attorney in defendant in
this cause :" the cause; but I think this amounts to the same thing. Held sufficient.
REGINA v. The Justices of SURREY. (St. Anne, Westminster v. St. Mary Magdalen, Bermondsey.) A RULE had been obtained, calling upon the justices of A notice of the peace for the county of Surrey, to shew cause why a apparden patin writ of mandamus should not issue directed to them, com
the following manding them to enter continuances, and hear an appeal terms: “take
notice, that against an order for the removal of Rebecca, the wife of we being a Thomas Brown, and her two children, from the parish of
wh of majority of St. Mary Magdalen, Bermondsey, in the said county, to and on behalf
of the church. the parish of St. Anne, Westminster.
wardens and overseers of,"
&c., "and that the grounds of our appeal,” &c., and was signed by one person, “ churchwarden of,” &c., and by four persons, “overseers of,” &c. It appeared that there were two churchwardens and four overseers of the appellant parish, and no more. The quarter sessions having decided that the notice was insufficient, and refused to hear the appeal : Held, that the notice was good, as sufficiently shewing that it was an appeal by and on behalf of the whole body of parish officers ; and that the decision of the quarter sessions on the point was a decision on a preliminary objcction, and, therefore, that this Court would grant a mandamus, commanding them to enter continuances and hear the appeal.
It appeared that a copy of the order, examinations, and notice of chargeability had been forwarded to the appellant parish by post, and that they had been received on the 16th of April, 1845. That at the July sessions following, which were held at Guildford, for the county of Surrey, the appeal was entered, and on its coming on to be tried, the appellants were called upon to prove their notice of appeal. That they called the clerk to the guardians of the appellant parish, who proved that he had served the following notice and ground of appeal upon the removing parish, fourteen clear days before the sessions :
“ To the church wardens and overseers of the
poor of the parish of St. Mary Magdalen,
Bermondsey, in the county of Surrey. “ Take notice, that we, being a majority of, and acting for and on behalf of the churchwardens and overseers of the poor of the parish of St. Anne, Westminster, in the county of Middlesex, do intend, at the next general quarter sessions of the peace to be bolden in and for the county of Surrey, to prosecute an appeal, &c., bearing date, &c., whereby, &c. And also take notice, that the grounds of our appeal are, &c. And further take notice, that we hereby require you to produce at the hearing of the said appeal the said order of removal, dated the 15th day of April, in the year of our Lord 1845, together with the original examinations on which such order was made, and that at the hearing of the said appeal, we, on behalf of the said parish of St. Anne, Westminster, will avail ourselves of all or some one or more of the grounds of appeal herein stated. Dated this 11th day of June, in the year of our Lord 1845." “ F. FIELDER,
s Churchwarden of the said parish
of St. Anne, Westminster.
It was then objected by the respondent parish, that the notice of appeal was insufficient; because it purported to give notice of an appeal by the majority of the churchwardens and overseers only, instead of by the whole body; and counsel having been heard on both sides, the quarter sessions decided that the objection was fatal, and refused to hear the appeal. It appeared that there were two churchwardens and four overseers in the appellant parish, and no more.
A rule, similar to the above, had also been obtained in another case of St. Anne, Westminster v. Oxted, in which the sessions refused to hear the appeal on the same grounds as the above.
Baldwin shewed cause (a). The Court of Quarter Sessions have decided that this notice was insufficient, and this Court will not interfere with their decision. In Regina v. The Justices of Kesteven (6), the question on which the sessions had decided was the sufficiency of a notice of grounds of appeal in its statement of the facts on which the appellants meant to rely; and this Court refused to interfere with their decision. And in Regina v. The Justices of the West Riding, (Beckington v. Elland) (c), where the sessions had refused to hear evidence on an appeal, on the ground that the examinations were deficient in particularity, this Court refused to interfere by mandamus. So in the present case, the question of whether the notice of appeal was sufficient, was a proper question for the sessions to determine ; and having determined it, this Court will not interfere. The proper course for the appellants would have been, if they questioned the propriety of the decision, to have requested the sessions to state a special case for the opinion of this Court. The Court, in giving judgment in the last cited
(a) It was arranged that the second rule should abide the event of the first.
(6) 3 Q. B. 810; S. C. 1 D.
& M. 113.
(c) i Car., Ham. & Allen's New Sess. Cases, p. 247.