and wife, that in such a case, we should probably not feel
ourselves warranted in deviating from the ordinary course;
but in the case of a rightful judgment against a married
woman alone, there is no decided case authorizing the
Court in discharging her when she has been taken on a ca.
sa., and there is certainly a distinction between that case
and the case of a judgment against husband and wife. In
the former case, the discharge of the wife deprives the
plaintiff of all possible chance of recovering his debt;
whereas in the latter, he still has the husband to whom he
may resort.
The distinction is not indeed at all satisfac-
tory. There seems to be no more principle to warrant the
Court in depriving the plaintiff of part of his legal right,
than in depriving him of the whole: still it may be said,
that in one case, the practical injustice is less than in the
other, and therefore finding the practice established in the
case of a judgment against husband and wife, we might not
feel justified in refusing to act, in the case of a joint execu-
tion, on what must be considered as the established prac-
tice; yet seeing no principle to warrant us, and it being
admitted that no case can be found in which a married
woman has been discharged when she has been the sole
defendant, and has been taken on a ca. sa., we do not feel
warranted in discharging her in this case, and so altogether
depriving the plaintiff of the fruits of his judgment. The
consequence is, that the rule discharging my Brother Rolfe's
order, and directing the sheriff to retake the defendant
must be made absolute.

Rule absolute (a).

(a) See Thorpe v. Argles, ante, vol. 1, p. 831.

1846.

BANIN

v.

JONES.

1816.

When a verdict is taken

at nisi prius by consent,

certificate of

an arbitrator,

when given,

relates back

CREMER v. CHUCK.

THIS cause came on for trial at the Summer Assizes at Croydon, 1845, when a verdict was taken for the plaintiff subject to the subject to the award, or certificate of an arbitrator, so that the award were made or certificate given before the fourth the certificate, day of the then next Michaelmas Term, with power for the arbitrator to enlarge the time as he should think fit. to the time of The time was enlarged accordingly, and on the 20th of March (which was several months after the return-day of certificate was the distringas juratores) the arbitrator certified in favour given in Vacation, and of the plaintiff for a smaller amount. Upon production of several months this certificate, the associate delivered the postea to the plaintiff's attorney, who signed final judgment on the 7th of April.

the verdict ;

therefore

where such

after the

return day of
the distringas:
Held, that
the successful

party might

A rule had been obtained, calling on the plaintiff to shew sign judgment cause why judgment should not be set aside for irregularity, immediately, on the ground that the plaintiff was not entitled to sign judgment until the expiration of the first four days of the Term after the certificate was given.

and was not

bound to wait

until after the

first four days of the ensuing Term.

Martin and Willes shewed cause. In ordinary cases final judgment may be signed at any time after the expiration of four days from the return-day of the distringas; Reg. Gen. Hil. Term, 2 Wm. 4, r. 67; Aymes v. Lettice (a); Mason v. Clarke (b) and it is submitted that the practice is not affected by the circumstance of the verdict being entered in pursuance of an arbitrator's certificate. The object of a certificate would be defeated, unless the amended verdict could be entered on the record as if it had been the verdict of a jury. There is no case precisely in point, but analogy is in favour of the plaintiff. Thus it is the constant practice at Nisi Prius, to order speedy execution; although the

(a) 8 Dowl. 202; S. C. 6 M. & W. 216.
(b) 1 Dowl. 288; S. C. 1 C. & J. 411.

defendant may, within the four first days of the ensuing Term, move to set aside the verdict. In Little v. Newton (a), where a cause and all matters in difference were referred by articles of agreement, and the award directed the costs of the cause and award to be paid by the defendant, it was held, that the plaintiff was entitled to have those costs taxed, without waiting for the period during which the defendant would be at liberty to move to set aside the award. Reference is there made to Hobdell v. Miller (b), in which the Court intimated an opinion at variance with the case of Little v. Newton; but Manning, Serjt., in his note, p. 979, observes, that "neither of those cases was founded on the statute 9 & 10 Wm. 3, c. 15, and where the reference is under the general authority of the Court at common law, there is no time absolutely fixed for moving to set aside the award, though it is usually required that the application be made within the statutable period." And in another note, p. 980, he says, "it would be a novel objection to the issuing of a fieri facias on a judgment that the twenty years allowed by 10 & 11 Wm. 3, c. 14, for bringing a writ of error upon that judgment, had not expired." The present point is said to have been decided by Parke, B., at Chambers.

[Atherton, amicus curiæ, mentioned a case which was referred at the summer assizes, and in Michaelmas Vacation, the arbitrator made his award. The plaintiff proceeded to tax his costs, when it was objected that the taxation was premature, as the defendant might, in the ensuing Hilary Term, move to set aside the award. The matter came before Parke, B., at Chambers, who said that the right to move to set aside the award, did not prevent the plaintiff from taxing his costs in the mean time, and that he would not interfere, unless a case of bad faith could be made out.]

(a) 1 M. & G. 976; S. C. 2 Scott, N. R. 159.

(b) 2 Scott, N. R. 163.

1846.

CREMER

v.

Сниск.

VOL. III.

X X

D. & L.

1846.

L

CREMER

v.

CHUCK.

Jervis, in support of the rule. The order of reference having enabled the arbitrator to enlarge the period for delivering his certificate, has conferred on him by implication all the consequences of that power; so that the verdict is not in effect given, until it is entered up according to the certificate. Suppose a jury desired a view, and counsel consented to postpone the cause for that purpose until the next assizes, the judgment could not be entered up until the usual period after the verdict was given. Or, suppose the assizes extended over part of a Term, could the plaintiff sign judgment immediately after the verdict, and so deprive the defendant of his four days to move. The question is not affected by the return-day of the distringas; for a trial might be regular, although it took place after the time for the return of the distringas had expired; Cheetham v. Sturtevant (a). Allenby v. Proudlock (b), decided that an award made in pursuance of an order of nisi prius may be objected to at any time before the end of the Term next after publication. In Little v. Newton (c), Maule, J., says, "How can the plaintiff have costs taxed before it is certain that he can sustain the award?”

POLLOCK, C. B.-The rule must be discharged. The question is simply this, whether in cases of this nature, the verdict is to be considered as delivered, when it is in fact pronounced by the jury at nisi prius, but subject to alteration by the arbitrator's certificate; or, whether it is to be considered as not delivered until the moment when the arbitrator sends in his certificate. If we examine the question by any test which can be applied to it, it is perfectly clear that the verdict exists from the time when it is taken from the mouth of the foreman of the jury. It is true, that it is delivered subject to future alteration; but the alteration when made relates back for all purposes to the time when the verdict was delivered. If this were

(a) 12 M. & W. 515; S. C. ante, vol. 1, p. 631.

(c) 2 Scott, N. R. 159; S. C. 1 M. & G. 976.

(b) 4 Dowl. 54.

not so, and if the jury were to be considered as giving their verdict at some time subsequent to the trial, the plaintiff might in the mean time elect to be nonsuited; whereas it is quite clear, that if the verdict is to be considered as taken at the trial, he could not afterwards say, "I will be nonsuited and thus stop the arbitrator from giving his certificate." There is no test by which we can come to any other conclusion than that in point of form the verdict is given when the jury deliver it at nisi prius, and why should we hold that it is not so in reality? There is always a Judge sitting who can prevent any injury from being done, and besides when persons enter into these arrangements, they must be understood to do so with reference to that which is a reasonable construction of them. I therefore think that the verdict must be considered as delivered when it is pronounced by the jury, and that what took place afterwards was a mere completion of it.

reasons.

ROLFE, B.-I am of the same opinion, and for the same When parties agree that the jury shall give their verdict for a certain amount, liable to be altered generally, and not at any particular distance of time, and the arbitrator says that the verdict ought to be altered, it is to be considered as if originally given for the sum he names. Suppose the arbitrator had been of opinion that the amount of damages for which the verdict was taken was the correct one, then the verdict would have stood as pronounced by the jury. If, as suggested, the construction impose any hardship on the defendant, by depriving him of his four days to move to set aside the certificate, the answer is, that the parties have agreed that the arbitrator should certify within a certain time, and not at any particular moment; and if there be any misconduct, the remedy has been pointed out by my Lord.

PLATT, B., concurred.

1846.

CREMER

v.

CHUCK.

Rule discharged.