and according to other particularities. The declaration states, it is true, that the Judge's order was made by consent, but that consent would only give the Judge jurisdiction to make the order, and there is no agreement averred to have been made between the parties to perform the award, for the breach of which agreement an action might have been brought. Without, however, such an agreement, it is submitted no such action as this will lie. It was expressly held by the Court of Exchequer in Hookpayton v. Bussell (1) that an action does not lie for disobedience to a Judge's order, whether made by consent or not. In that case, the defendant having been arrested in respect of a debt, from which he was protected by an order of the Insolvent Court, applied for his discharge to a Judge at chambers, when the following order was made: "Upon hearing the attorneys or agents on both sides, I do order that, upon payment by the defendant of 51. forthwith, the defendant be discharged, the defendant hereby undertaking to pay the rest of the debt and costs." And it was held that a declaration for breach of this agreement was bad, although it stated that the order was made with the consent of the plaintiff and the defendant. The Court of Exchequer in that case, on being referred to what was said by Mr. Justice Parke in Wentworth v. Bullen (2), to the effect that, where a Judge's order is made by consent, and is founded on a binding agreement, an action will lie on such agreement stated, that that was only a dictum, and that it did not meet with their assent.

[MONTAGUE SMITH, J.-In the notes to Williams's Saunders, vol. 2, p. 62 b, it is said, "so assumpsit will lie upon a submission by rule of Nisi Prius-5 East, Bonner v. Charlton. So on a submission by a Judge's order-4 Camp. 19, Still v. Halford."]

The case of The Thames Iron-Works and Ship-Building Company v. the Patent Derrick Company (3) was one in which Vice Chancellor Wood decided that a Judge's order made by consent, whereby it was ordered that proceedings in an action

(2) 9 B. & C. 840; s. c. 9 Law J. Rep. (N.s.)

should be stayed upon certain conditions, does not amount to an agreement to perform those conditions, and that a bill for a specific performance would not lie.

Holker, contra, was not heard.

ERLE, C.J.-I am of opinion that our judgment should be for the plaintiff. The declaration sets out an action brought by the plaintiff against the defendant, and a Judge's order to refer such action, and all matters in difference, and it states that such order was made by mutual consent, and that, by the like consent, it was ordered that the parties should abide by and perform the award. There was then an agreement that the cause and all matters in difference should be referred, and that the award should be performed; and, besides this, there was the Judge's order, for disobeying which an attachment would lie. Afterwards, on a meeting before the arbitrator, an indorsement was made by mutual consent on the Judge's order, giving the arbitrator power to order what the parties, or either of them, should do to prevent a continuance or repetition of what had been complained of. Now, I am of opinion that that indorsement, being on an agreement to refer, and to abide by and perform the award of the arbitrator, constituted an agreement that the arbitrator, should have power to order what should be done, and that the parties should perform what he should order. I am therefore of opinion that the action lies. It is said that such an action is inconvenient, and that an attachment would be the proper remedy. I think that an action in which damages may be recovered for not performing the award, is a more convenient remedy than an attachment and the putting a party in prison for disobedience. But Mr. Crompton says that no action will lie; and certainly the case of Hookpayton v. Bussell (1), in terms, supports his argument; but I think when that case is looked at it will be found that the order there did not contain an agreement to perform the order. The defendant by the order in that case "consenting that, in default of payment of either of the said instalments, the plaintiff be at liberty to issue execution by fieri facias or capias ad satisfaciendum.” That was all the defendant there consented to,

which is very different from an agreement to do anything. The other case which was cited, of The Thames Iron-Works, &c. Company v. the Patent Derrick Company (3), in like manner provided a particular penalty in case the defendants made default in performing the terms of the order. The judgments were right in both those cases, though they were expressed in terms wider than was necessary; and I must say that the opinion of Mr. Justice Parke, in Wentworth v. Bullen (2), is perfectly sound where he says, "But in considering the terms of this order, I am inclined to think that there is evidence of a mutual agreement between the parties upon good consideration to forego the action for charging the plaintiff in execution for too much." "Now, though there is no remedy for disobedience of a Judge's order as such by one of the parties against another by action, but by attachment merely; yet if it be made by the consent of both and is founded on a binding agreement, an action will not the less lie upon that agreement, though it have also the additional sanction of a Judge's order. The contract of the parties is not the less a contract and subject to the incidents of a contract, because there is superadded the command of the Judge."

BYLES, J.-I am of the same opinion. There are many authorities to shew that an order of reference by consent implies an agreement to perform the award. We were much pressed by the argument of the inconvenience which might arise where an action was brought in a case like the present, if the action should be again referred, and so a series of actions created. But if an action should be improperly But if an action should be improperly brought, and there should be such an abuse of the process of the Court as has been suggested, I have no doubt there is power in the Court to provide a remedy for it.

MONTAGUE SMITH, J.-I think the action will lie on an agreement embodied in the Judge's order. Here the particular agreement was not in the order but indorsed on it, and apparently without the Judge's consent; but it was an agreement between the parties, and for the breach of it an action would lie at common law. Then, how is that right of action ousted? It is said it is because the parties impliedly promise not to bring an action, and that NEW SERIES, 35.-C.P.

the only remedy should be by attachment. Now, I do not think that there is any such implied promise; neither do I feel pressed by the argument as to inconvenience. It seems to me that where an act is to be done, as was here, to build a wall, the performance of that can be better ascertained by a jury or another arbitrator than by the Court on affidavits. With regard to authority, the cases are strong to shew that we are not deciding anything as law for the first time. There are the cases I have already referred to in the notes to 2 Wms. Saund. 62 b, and also the case of Wharton v. King (4), where the precise point was taken which has been now contended for, and overruled by Lord Tenterden.

Judgment for the plaintiff.

Attorneys-E. K. Randell, agent for Cobbett & Wheeler, Manchester, for plaintiff; Gregory & Rowcliffes, agents for R. Howard, Stockport, for defendant.

1866. June 21.

THE

LONDON AND SOUTHWESTERN RAILWAY COMPANY, appellants, v. REEVES, respondent.

Turnpike Act-3 Geo. 4. c. 126. s. 32.Exemption from Toll-Stores for the Use of Troops-Carrier.

The exemption from toll in the Turnpike Act, 3 Geo. 4. c. 126. s. 32, in favour of carts conveying stores for the use of Her Majesty's forces, applies, although the cart conveying such stores be the cart of a common carrier hired for that purpose by the contractor for such stores, and although the contract contains a power to the officer in command at the depot to which they are being conveyed, of rejecting them if they should not be of a certain quality.

[For the report of the above case, see 35 Law J. Rep. (N.S.) M.C. p. 239.]

(4) 1 Moo. & R. 96. 2Z

Office of Clerk of the Peace-Misdemeanor -1 W. & M. c. 21. s. 6.-Impeaching Adjudication of Sessions.

A contumacious refusal by a clerk of the peace to record an order of the Court of Quarter Sessions is a misdemeanor in the execution of the office of such clerk within the meaning of section 6. of 1 W. & M. c. 21, and for which therefore the Justices may discharge him from such office.

Where a judgment of the Court of Quarter Sessions shewed that charges in writing, under the 1 W. & M. c. 21, had been exhibited before such Court against the clerk of the peace, alleging that he had wilfully and contumaciously refused to enter and record a certain order of that Court, ordering certain costs incurred by the Justices to be paid, and that having heard the same and what the clerk had to allege in defence, the said Court had adjudged the charges to be proved, and had adjudged such clerk to be guilty of the misdemeanor in his office with which he was so charged, and had on account thereof dismissed him from his said office,-Held, that such judgment, being good on the face of it, was conclusive, and could not be reviewed by a jury in an action by such clerk against a subsequently appointed clerk to try the right to the fees of the office.

Held, also, that such judgment could not be impeached in such action, on the ground that the Justices who had adjudged had a pecuniary interest in the order being recorded which the clerk had so refused to record, nor on the ground that the charges

against the clerk had been exhibited at the instigation of the Justices who afterwards adjudged him guilty thereon.

[For the report of the above case, see 35 Law J. Rep. (N.S.) M.C. p. 241.]

1866. June 21.

}

BUDENBERG, appellant, v.
ROBERTS, respondent.

Customs Amendment Act, 1859, 22 & 23 Vict. c. 37. ss. 6. and 8.—Importing Goods of one Denomination concealed in those of another "Cause to be imported."

It is an offence, under section 6. of the Customs Act, 22 & 23 Vict. c. 37, to cause to be imported goods of one denomination concealed in packages of goods of any other denomination, though the goods be such as are not subject to any duty on importation.

The 6th section imposes a penalty on any person who "shall cause to be imported goods of one denomination concealed in packages of goods of any other denomination”; and the 8th section enacts, that the word "importer" in any act relating to the Customs is "to apply to and include any owner or other person for the time being possessed of or beneficially interested in any goods imported":-Held, that the words

cause to be imported" in the 6th section are not to be interpreted according to the meaning given to the word "importer" in the 8th section, which includes many persons who would not come within the 6th section.

[For the report of the above case, see 35 Law J. Rep. (N.s.) M.C. p. 235.]