The Property Lawyer.-Points in Common Law. 231 purpose of maintaining an action of eject-, that the award is set aside, or cannot be enment. Donningham's case, Owen, 17; forced, from some technical error of omission Doe d. Tressider v. Tressider, 1 Ad. & E. 1 C. & K. 558. MORTMAIN. or excess wholly beside the merits of the real On the other hand, where it is clearly shown question submitted for the arbitrator's decision. remarkable absence of uniformity. that the arbitrator has made a mistake in law or in fact, in a matter involving the substantial question submitted to him, "if the mistake does not appear on the face of the award, it is The shares in the London Gas Light interfere." every day's practice for the courts to refuse to These results are occasionally and Coke Company are not within the matter of lamentation, and have in some inStatute of Mortmain. Thompson v. Thomp- stances induced a departure from what had son, 1 Coll. 381. Where certain persons heretofore been considered established rules. by indentures of lease and release con- The recent decisions, however, manifest a veyed lands to C. upon trust that he might convey the same to certain persons therein named, upon such trusts as appeared and were expressed and declared by an indenture of bargain and sale already prepared, and intended to bear date the day following, which lease was subsequently executed, and the trusts declared were for certain charitable purposes. It was held by the Court of Exchequer that the deeds of lease and release not having been attested by two witnesses, were void, under the Mortmain Act, although the bargain and sale declaring the uses was duly attested and enrolled under the act. Doe. d. Barbour v. Monro, 12 M. & W. 845. POINTS IN COMMON LAW, In Hall and Hinds, the question being, whether two sums or only one were due from Hall to Hinds, the arbitrator thinking both sums to be due, instead of adding them together and awarding them to Hinds, deducted the smaller sum from the greater, and instead of directing the balance to be paid to Hinds, by mistake ordered it to be paid to Hall; and the Court of Common Pleas held, that the conduct, in the judicial sense of the term, on carelessness was so gross as to amount to misthe part of the arbitrator, and therefore set aside the award. In a subsequent case in the Court of Exchequer, however, where an arbitrator omitted by mistake to take into calculation a sum admitted to be due to the plaintiff, and in consequence of such omission, awarded that the defendant's set off exceeded the plaintiff's damages; and it appeared upon affidavit that the arbitrator afterwards admitted his mistake, regretted that he could not rectify it, his authority having expired, and unsuccessfully endeavoured to induce the defendant to PRACTICE ON ARBITRATIONS. REMITTING allow him to reconsider his award, the court BACK DISPUTED AWARD. refused to interfere, on the ground that although PERHAPS there is no branch of common law it may do some injustice in particular cases, it practice productive of so much well grounded was better to adhere to the principle of not alcomplaint, or which is so uniformly unsatisfac-lowing awards to be set aside for mistakes of the tory to all parties, as the proceedings upon rearbitrator. And in a very recent case in the ferences to arbitration. No doubt actions are same court, where the arbitrator received in frequently brought, involving the settlement of evidence books tendered by the plaintiff concomplicated questions of account and other taining entries in his own hand-writing, almatters, which could be more conveniently though such entries had been objected to, the determined by a patient investigation before a court affirmed the principle laid down in Philcompetent arbitrator, than by the verdict of lips v. Evans, and suggested that the decision twelve men, however intelligent, sitting in a in Hall v. Hinds was only to be reconciled with jury box, restrained by the formalities and dis-other cases on the ground that the arbitrators tracted by the strepitus of a nisi prius court. had not, by their award, done what they had Causes are sometimes referred, however, which, intended to do. The more recent decisions of in the opinion of the parties most interested, the Court of Queen's Bench appear to proceed might be properly submitted to the considera- upon the ground that no award should be tion of a jury; and in a large majority of the cases submitted to arbitration, the reference takes place by an order of nisi prius or assize, after the jury has been sworn, and when all the expenses of a trial had been already incurred. It is the proceedings consequent upon, rather than those preliminary to, the reference, however, which occasion the largest amount of annoyance and disappointment to the suitor. It constantly happens, after all the delay, expense, and anxiety attending an arbitration, upheld where there has been any deviation from the established principles of justice, whether occasioned by the inadvertence or ignorance of the arbitrator. This principle was acted upon by that court in the case of Dobson v. Groves, and in a more recent case," The action in which this clause became the where the arbitrators, who were not professional subject of discussion was brought by one men, agreed between themselves that one of mill owner against another, for penning back them, in the absence of his colleague and of the water of a mill stream so as to impede the the parties, should examine a witness relative working of the plaintiff's mill. The cause was to an item of a few shillings in an account, taken down to Essex for trial, and, by an order although it appeared on affidavit that the arbi- of assizes, referred to a legal arbitrator, who trators (one nominated by each party) entirely was to direct for whom the verdict was to be agreed in their judgment, yet the court decided that the award could not stand. Lord Denman, C. J., in that case, with the concurrence of the other members of the court, thus expressed himself: "I am of opinion that any award must be considered as procured by undue means," which has been obtained by a departure from those principles of natural justice on which judicial proceedings should be conducted. When the arbitrators agreed that they would proceed to make inquiries out of court, and of a witness himself interested, they clearly departed from that essential principle of law and justice which requires that all persons should have an opportunity of knowing by what evidence their rights are to be affected. This ground alone is quite sufficient for us to say that this award must be set aside." finally entered, to determine generally all matters in difference between the parties, and also to determine to what head of water the occupier of defendant's mill was entitled, as well as the rights of the parties as regarded the use of the stream. The order of reference contained the clause adverted to, empowering the court, in case of dispute relative to the award, "to remit the matters thereby referred to the reconsideration and determination of the said arbitrator." The arbitrator by his award merely directed, that the verdict should be entered distributively, on certain issues for the plaintiff and on certain issues for the defendant. A rule nisi having been obtained to set aside the award, on the ground of want of finality, as the arbitrator had not awarded to what head of water the defendant, as occupier, Without stopping to discuss how far these was entitled, or in any respect determined the decisions are reconcileable upon principle, it rights of the parties as regarded the use of the may not be uninstructive to direct attention to stream, the court, in pursuance of the terms an attempted improvement in the practice as contained in the order of reference, directed regards disputed awards. A member of the the matters referred to be remitted back to the Oxford circuit, who has lately retired from arbitrator for his reconsideration. Upon this practice at the bar, some years since suggested order, the arbitrator further awarded, that the that a clause should be introduced in orders of occupiers of defendant's mill were entitled to reference empowering the courts, in case of any retain the penstock then attached to the said dispute relative to the award, to remit the mill, and to maintain therein a head of water matters referred to the reconsideration of the of the depth of fifteen inches, and no more. arbitrator, who, it was before held, was functus The case was subsequently brought before the officio as soon as he had made his award. court, upon a rule to set aside the further This clause having been found to operate ad-award, upon the ground of the improper revantageously, was gradually adopted in prac- jection of evidence by the arbitrator. It aptice, and is now generally found in the nisi peared by affidavit that at a meeting fixed by prius orders of reference issued by all the the arbitrator, in pursuance of the order of the courts. This clause became, for the first time, court, the plaintiff's counsel tendered witnesses the subject of judicial criticism in a late case to prove that the penstock at the mill of the in the Court of Queen's Bench, when the defendant had been so raised from time to time extent of the authority conferred by it on the as to disentitle him to retain the head of water court became the subject of consideration, and two of the learned judges recommended an amendment of the form in which the clause has been usually introduced." in his present penstock, mentioned in the further award of the arbitrator. It was also sworn, that this evidence came to the knowledge of the plaintiff since the making of the original award, but that the arbitrator refused to admit such evidence, or to receive any In re Plews and Middleton, 14 Law J. 139. further evidence in respect of the matters in Q. B. e 14 Law J. 17. Q. B. Vide stat. 9 & 10 Wm. 3, c. 15, s. 2, which authorises the courts to set aside any arbitration or umpirage which has been procured by corruption or "undue means." difference. In support of the rule it was argued, that the cause having been remitted to the arbitrator, he was bound to hear any evidence tendered to him on the points on which he had h The form, which has not yet, as we are omitted to award; whilst on the other side it aware, found its way into any of the books of was contended, that it was in the discretion of practice, is as follows: "And it is further the arbitrator to decide the matter on the eviordered, by and with such consent as aforesaid, that in the event of either of the said parties disputing the validity of the award or certificate remit the matters, hereby referred to the reconso to be made as aforesaid, or moving the sideration and determination of the said arbicourt to set the same or any part thereof addet detrator." any of the said court of Shall have power to i Nickalls v. Warren, 2 Dowl. & L. 549. Points in Common Law.-The Small Debts Bill, No. 3. 233 dence already before him, or to hear further truly suggested in the argument on the rule, evidence. that in order to deprive a defendant of the Lord Denman, C. J., said, the clause recently benefit of the rule of court, a larger sum might introduced into orders of reference, empowering always be indorsed upon the writ than was the court to remit the matter to the arbitrator really due; but, as observed by Patteson, J., for reconsideration, was not very happily in such a case the defendant is not without worded, as it contained no words of limitation as to the matters to be remitted. It would be better if the court had power to remit the matters "or any of them." Here, however, all the matters were remitted back to the arbitrator, who was in a position to rehear the whole case, and was bound to hear any additional evidence tendered by either party. The other judges of the court concurred, and Coleridge, J., repeated the suggestion of the learned Chief Justice, that the clause should be so worded as to enable the court to remit the matters or any of them," so as to modify the inquiry before the arbitrator when his award was sent back to him. 66 It was then proposed, on behalf of the defendant, that the matter should be again sent back to the same arbitrator; which was opposed, on the ground that the court having once exercised the power conferred on it by the clause in question, that power was exhausted. The court thought it doubtful if they had the power to remit the cause a second time, but at all events considered it expedient that the cause should nct be sent back again to the same arbitrator. The rule was therefore made absolute for setting aside the award. TAXATION OF COSTS INDORSED ON WRIT OF remedy, for he may come to the court for a stay of proceedings, on payment of the sum really due; and if the plaintiff choose still to proceed, he does so at his own peril, and must abide the consequences. It may be observed, that in the argument, as well as the judgment pronounced in the Bail Court, the case of Hunter v. Russell,' in which nearly the same point was brought under the consideration of the Court of Common Pleas, appears to have been overlooked. In that case, 27, was indorsed on the writ for costs, and 17. 17s. 6d. was all that was really paid; but the court thought that the defendant had nevertheless a right to have the sum so received referred to taxation under R. H. 2 Wm. 4, r. 2. Upon the clear construction of the rule, the defendant is only entitled to the benefit of it as regards a stay of proceedings where the payment has been made within four days; but in a late case in the Common Pleas," where the writ appeared to have been served on the 7th June, and the defendant paid the full amount of the debt and costs on the 13th, to the clerk of the plaintiff's attorney, the court held, that the attorney was not at liberty to proceed with the action, although the four days had expired, unless he first returned the money he had received from the defendant. The court in this case seem to have considered that the acceptance and retention of the money on the sixth day, was a waiver of the neglect to pay it within the time limited by the rule. THE SMALL DEBTS BILL, No. 3. By Reg. Gen. H. T. 2 Wm. 4, r. 2, declared applicable to writs of summons by Reg. Gen. M. T. 3 Wm. 4, r. 5, the amount claimed for debt and costs is to be indorsed upon the copy of the writ, "and upon payment thereof within four days to the plaintiff or his attorney, further proceedings will be stayed. But the THIS bill has been amended or altered defendant shall be at liberty, notwithstanding such payment, to have the costs taxed; and if several times. When it first came down more than one-sixth shall be disallowed, the from the hands of Lord Brougham, it was plaintiff's attorney shall pay the costs of taxa- thrown out of the Commons' on account tion." To avail himself of the concluding pro- of a clause relating to fees, which belong vision of this rule, the defendant, it seems, exclusively to the Lower House. according to a recent decision of Mr. Justice Bill No. 2 was then sent down, with the Patteson, in the Bail Court, must bring himself within the strict terms of the rule, by objectionable clause expunged, and it does payment of the amount of debt and costs in- not appear very distinctly why this second dorsed on the writ; for when the amount edition was abandoned; but we have now indorsed for debt and costs was 47. 15s., and a reprint of the bill marked No. 3, as the defendant within four days remitted a post-amended by the committee, and containing office order for 47. 11s. 5d., which the plaintiff's attorney accepted as the amount of the debt many new clauses. We shall therefore and costs, it was holden that the defendant state the marginal abstract of the original was not entitled to tax the costs claimed on the copy of the writ, as it did not distinctly appear that the deduction made by the defendant was from the debt, and not from the costs. It was Young v. Crompton, 2 Dowl. & L. 557. clauses, and give the new ones rather his court, and the judgment creditor had obfully: 1. Creditor obtaining judgment or order in respect of debt not exceeding 201., may summon debtor before a commissioner of bankrupts or court of requests, &c. any tained a summons for such defendant from the same court under this act, and all the provisions of this act shall be deemed to apply to such case as if such summons had been obtained. 6. Where several courts exist in the same town, &c., business not to be transferred from one to the other. 7. Application to commissioners, &c. need not be made by counsel or attorney. 5&6 Vict. c. 116. 8. Affidavits in bankruptcy and insolvency may be sworn before keepers of prisons. 9. Interim orders to persons in custody to be granted, upon petition, without delay. any 2. That in making such order for payment as aforesaid, it shall be lawful for such commissioner or court and they shall be authorised and required to order such debtor to make payment of his debt out of any salary or wages, or pay or half-pay or pension, which he may be entitled to receive, after making such reasonable deduction thereout as to the commissioner or court shall seem necessary for the subsistence of the debtor and his or her family, 10. (Clause D.) Enlarging jurisdiction of inand the not paying as ordered out of such ferior courts to 151., and their districts. That salary, wages, pay, or pension, shall be deemed it shall be lawful for one of her Majesty's such disobedience as authorises the said comprincipal Secretaries of State at any time, by missioner or judge to order the imprisonment order to be by him made under his hand and of the debtor: Provided always, That no such seal, to enlarge the jurisdiction of such order for imprisonment shall be made for court of requests or conscience, or inferior longer time than forty days. court of record, for the recovery of debts, or 3. (Clause A.) That every bailiff to whom other court for the recovery of small debts, to any such order shall be issued shall be thereby all debts and demands, whether on balance of empowered to take the body of the person account or otherwise, or damage arising out of against whom such order shall be made, and any express or implied agreement, not exceedall constables and other peace officers within ing fifteen pounds, and in such cases as he their several jurisdictions shall aid in the exe- may think fit to enlarge the district of any cution of every such order; and no protection, such court, or where any part of the district of or certificate, or interim order issuing out of such court is comprised within the jurisdiction any Court of Bankruptcy, or for the relief of of any other like court, to contract the same, insolvent debtors, or otherwise howsoever, and all powers and authorities now vested in shall be available to any debtor taken in execu- any such court the jurisdiction or district tion under such order as aforesaid. whereof shall be so enlarged or the district 4. (Clause B.) That no imprisonment under whereof shall be so contracted, shall apply and this act shall in anywise operate as satisfaction extend to the jurisdiction or district given or of extinguishment of any debt or demand; limited under the powers of this act, and that but any person imprisoned under this act who as fully as if such jurisdiction or district had shall have paid or satisfied the debt or demand been given by the act or acts establishing or and costs remaining due at the time of the regulating such court and its proceedings: order of imprisonment being made, and all Provided always, That no such order shall be subsequent costs, may be discharged out of made in respect of any court which shall not custody by leave of the commissioner or judge have a judge who is either a barrister-at-law or of the court by whom the order of imprison ment was made. special pleader, or an attorney of one of her Majesty's superior courts of common law at 5. (Clause C.) That the judge of every court Westminster, (such attorney being of at least of requests or conscience, and of every inferior ten years' standing,) and who shall be approved court of record for the recovery of debts, and of by the Secretary of State making such of every other court for the recovery of small order; and it shall be lawful for the commisdebts, of which the judge is a barrister-at-law sioners of any court in which there shall be no or special pleader, or an attorney of ten years' such judge, or a majority of those who shall standing of one of her Majesty's superior courts be present at a meeting called for the purpose, of common law at Westminster, in which court to appoint a judge qualified as aforesaid, subproceedings shall be heard for the recovery of ject to the approval of the said Secretary of any debt or demand within the jurisdiction of State. the said court, shall have the like powers in 11. (Clause E.) That no such order shall the suit instituted for recovery of such debt or demand, of examining the parties to the suit, and upon occasion of pronouncing judgment thereon, if judgment be given for the plaintiff, shall have the like powers of further examining the parties, and in the several cases hereinbefore specified of committing the defendant to prison, which he might exercise under the provision herein before contained, if judgment for such debt or demand had been obtained in avail to extend the jurisdiction of any such court for the trial of any cause in the absence of the judge; and that whenever the number of commissioners present at any court shall not be sufficient for the trial of causes according to the constitution of the court before the passing of this act, the judge shall act alone with all the powers of the court, whether or not enlarged or altered under this act, and shall determine all questions, as well of fact as Review: Stephens' Ecclesiastical Statutes. of law, in the causes which shall be brought | 12. (Clause F.) Appointing a deputy. table of fees. 14. (Clause H.) Poundage to be demanded from suitors upon sum claimed. 15. (Clause I.) Lists of unclaimed suitors' money to be made out. a 235 The notes evince great research, learning, and judgment. The text-books and reports, old and new, have been consulted with great diligence, and the result stated with clearness, force, and due brevity. It is difficult to select the best example of the manner in which Mr. Stephens has illustrated this vast collection of statutes; 16. (Clause K.) All suitors' money paid into but we take the following from his notes to court and unclaimed for six years, to go into the act for the better regulation of Ecclesithe court fund. 17. (Clause L.) That any suit to be insti-astical Courts in England, and for the more tuted in any such court wherein the claim or easy recovery of church rates and tithes, 53 demand shall exceed the sum of five pounds, Geo. 3, c. 127, so far as they relate to the shall be removable by certiorari or otherwise Jurisdiction of the Ecclesiastical Courts on into any of her Majesty's superior courts of the subject of Church Rates. We are incommon law at Westminster, or into the Court duced to make this extract on account of of Common Pleas at Lancaster, by leave of a its involving points of interest, as well to judge of any one of the said courts, and upon practitioners at the quarter sessions and in such terms as he shall order. 18. (Clause M.) Power to execute warrants and levy executions out of jurisdiction. 19. (Clause N.) Interpretation of the word “judge.” NOTICES OF NEW BOOKS. The Statutes relating to the Ecclesiastical and Eleemosynary Institutions of England, Wales, Ireland, India, and the Colonies; with the decisions thereon. By ARCHIBALD JOHN STEPHENS, Barrister-at-law. 2 Vols. London: Parker. 1845. Pp. 2,278. the courts at Westminster Hall, as in Doctors' Commons. This extract has also the advantage of including within it the substance of the judgment of Lord Cottenham on the subjects in question. "Jurisdiction of the ecclesiastical courts:Whether stat. 53 Geo. 3, c. 127, s. 7, which gives power to justices to enforce the payment of a sum not exceeding 101. due upon a church rate, where neither the validity of the rate nor the liability of the party has been questioned, takes away the jurisdiction of the ecclesiastical court in such cases, is questionable. "But, assuming that it does, it seems that it is still competent to institute a suit in that court for payment of a sum under 107. due upon a THIS work supplies the legal and clerical church rate, because, until the defendant has profession with a complete collection of appeared in such a suit, there may be no means the statutes relating to ecclesiastical and of knowing whether the validity or liability is eleemosynary institutions. The statutes, in dispute or not. Therefore, where a signifiwhich commence with the 9 Hen. 3, and cavit, as recited in the return to a writ of habeas corpus, stated that the prisoner had been proterminate with 7 & 8 Victoria, are accom-nounced guilty of contumacy, for non-payment panied by notes of the decisions of the of 27. 5s. to certain churchwardens, with their several courts upon the various enact- costs of suit, pursuant to a monition duly issued in a certain case of subtraction of church rate, The repealed statutes which affect ex- the proceedings wherein were carried on in pain isting interests or illustrate the present of the contumacy of the prisoner, who though law, have been printed at length; but duly cited with the usual intimation, had not where these reasons did not require their appeared, an objection, that the cause was not sufficiently described, for want of an averment insertion, the titles only have been stated, that the validity of the rate or the liability of with references to the repealing statutes. party was in dispute, was over-ruled. 'ments. The notes comprehend not only all the "The object of the control which the Court statutes expressly relating to the church and of Chancery has over the ecclesiastical courts, its property, but all the great heads of eccle- by means of the writ of habeas corpus, is to siastical law; as, administrations and wills;- keep those courts within the jurisdiction which advowsons and presentations;-charities; the law has assigned to them, and not to correct residence of clergy;-church discipline ;any error into which they may fall in the exerecclesiastical courts and their jurisdiction, cise of it. And, therefore, objections taken to a significavit upon the ground, that it did not including prohibitions from other courts ;sufficiently show that the defendant had been church rates;-marriage and divorce;regularly cited, and upon the further ground, mortmain;-tithes;-temporalities;-tole- that the ecclesiastical court was not, according ration. to its own practice, authorized to proceed to 0 5 |