Digest of Cases.

COMMON LAW.

Comprising the Common Law Cases (not previously inserted) in the following

12 Queen's Bench, part 4.

1 Queen's Bench Practice, part 5. 4 Exchequer, part 5.

Reports:

20 Law Journal (N. S ), parts 2, 3 and 4. 6 Railway and Canal Cases, part 2. Moore, part 1.

ANNUITY DEED.-It is no ground for setting aside an annuity deed under the 53 Geo. 3, c. 141, s. 16, that upon the execution of the deed, and immediately after the consideration money had been handed over to the grantor by his agent J. G., who acted also as the agent of the grantee, the grantor voluntarily returned to J. G. a part of such consideration money, in payment of a debt due from the grantor to J. G., and of the costs and expenses relating to the annuity transaction. Aberdein v. Jerdin, 20 Law J. (N. S.) Q. B. 111.

ARBITRATOR.-Power of, over his own fees.—An arbitrator or umpire has no power to fix his own fee in the award, and to make the taking up of the award conditional upon the payment of the fee, unless the admission specifically give him that power. Certain matters in difference between A. B. and C. D. having been referred to two arbitrators, with power to appoint an umpire, where, by the terms of the submission, the costs of the submission and award were to be in the discretion of the arbitrators or umpire, who by their award might direct by and to whom the same should be paid, with power also to make the submission a rule of court (which was done). An umpire was appointed who made an award, and thereby found a certain sum to be due from A. B. to C. D., and he awarded and directed all the costs (specifying the sum) of the submission and award, including therein the costs of taking up the award, to be paid by the party taking up the award, to be paid on a specified day by A. B. The fees of the arbitrators and umpire were included in the costs: Semble, that the award was bad, and C. D. having paid the amount to take up the award, that he might recover back the amount beyond what was reasonably due in an action for money had and received. Coombs, in re, 4 Exch. 839.

VOL. XIV. NO. XXVII.-DIG.

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ARBITRATION.-By an agreement referring certain disputes to two arbitrators, and, upon failure to make an award within a specified time, then to an umpire, to be appointed by them; the costs of the reference, award and umpirage were to be in the discretion of the arbitrators and umpire respectively. By agreement between the parties, the umpires sat with the arbitrators up to the time when their power to make the award expired, and afterwards the arbitrators sat with the umpire, and being scientific persons acted as his assessors and assisted him in making his umpirage. The umpire made his award, and gave notice that it might be taken up "on payment of the costs of umpirage and award," and specified the amount, including charges for the attendance of the arbitrators. E. paid the fees and took up the award. The award directed that each party should pay their own costs of the reference, and that " the costs of the said umpirage, and of this my award," should be paid by A. to E.: Held, on motion to review the taxation, that the charges of the attendance of the arbitrators were part of the costs of the umpirage, which A. by the terms of the award was to pay. Ellison v. Ackroyd, 1 Q. B. P. 806.

ATTORNEY.—1. Partnership-Limitations, statute of.—In 1832 A. employed B. and C., then in partnership as attornies, to lay out 500l. on mortgage. It was invested accordingly on a mortgage to D. D. subsequently sold the property, subject to the mortgage, and the purchaser shortly afterwards paid the 500l. to C., who, however, did not inform either B. his partner, or A., of such receipt, and again lent the purchaser 3001, and continued to receive the interest thereon. The partnership was dissolved in 1838; but both before and after the dissolution, and after the death of A., which took place in 1840, interest was paid as upon a mortgage of 500l. to A. and his representatives up to 1848 by C. In 1846 the 300l. was paid to C., and the mortgage deed was given up by C., but no reconveyance was ever executed. Neither A. nor his representatives had any knowledge of these facts until 1848. Entries had been made by Č. in the partnership books of the receipts and payments, but B. had no knowledge of the transactions subsequent to the original advance of the 5007.: Held, in an action by the executors of A. against B. and C., that the Statute of Limitations was a bar to the action. And, semble, that B. was not liable for these acts of C., as they were not within the scope of his partnership authority. Sims v. Brutton, 20 Law J. (N. S.) Exch. 41.

2. Álteration of name of, on the roll.-On the application_of an attorney to be allowed to substitute the name of J. Heaton D. on the roll of attornies in the place of J. D., the court directed the master to enter on the roll, opposite the name of J. D., a memorandum, that by rule of this court J. D. should be known by the name of J. Heaton D., and that the master should be at liberty to make such indorsement of such alteration of the name on the admission of the applicant. Dearden, in re, 20 Law J. (N. S.) Exch. 80.

AWARD.-1. Rule for payment of money under 1 & 2 Vict. c. 110,

s. 18.-Where a cause and all matters in difference are referred, an award, reciting the order of reference, and purporting to be made "de præmissis," is final, although it does not in express terms notice a matter brought before the arbitrator. Semble, that the 18th section of the 1 & 2 Vict. c. 110, has not given the courts power to make orders in cases in which it was not their practice to make any before the passing of that act; but has only given orders for paying money made in their ordinary practice the effect of judgments. But even if they had the power of making such orders, they will not exercise it except in cases where they would grant an attachment. Creswick v. Harrison, 1 Q. B. Pr. 721.

2. When a cause was referred with all matters in difference at nisi prius, and the order of reference empowered the Court of Queen's Bench, in the event of any application being made on the subject of the award, to refer the matter back to the arbitrator for further consideration: Held, that the application to refer back must be made within the same time as an application to set aside an award. d. Banks v. Holmes, 12 Q. B. 951.

Doe

BAIL.-Deposit in lieu of Payment to plaintiff.-Where a defendant is arrested under 1 & 2 Vict. c. 110, and is released on depositing with the sheriff the amount indorsed upon the writ, with 101. for costs, which sums are afterwards paid into court, the plaintiff is entitled to have the money paid out of court to him (subject to taxation) if the defendant neglects to pay an additional 101. into court pursuant to 7 & 8 Geo. 4, c. 71, s. 2. Nyssen v. Ruysenaers, 20 Law J. (N. S.) Exch. 33.

BANKRUPT.-1. The plaintiff recovered judgment against the defendant in the Court of Exchequer. Afterwards, on the 1st of January, the defendant, being in custody at the suit of W., petitioned the Insolvent Court, and inserted in his schedule the plaintiff's judgment debt and costs. On the 12th the plaintiff lodged a detainer against the defendant upon the judgment. On the 25th he withdrew the detainer, and petitioned the Court of Bankruptcy for adjudication of bankruptcy against the defendant, who was on the same day adjudged bankrupt. On the following day he was discharged by the Insolvent Court. On the 23rd of July the Court of Bankruptcy granted a certificate, under the 257th section of the 12 & 13 Vict. c. 106, certifying that the plaintiff was a judgment creditor of 711. 78., which was the amount of the judgment minus the costs. The defendant having been taken in execution upon a ca. sa. issued out of this court upon that certificate: Held, upon motion for his discharge, first, that the defendant's discharge from arrest upon the judgment did not preclude the plaintiff from arresting him upon the certificate; secondly, that the defendant was not protected from such arrest by the 1 & 2 Vict. c. 110, s. 90. Whether a judgment creditor, who has taken his debtor in execution, is a good petitioning creditor to support a commission of bankruptcy, quære. But whether he is not, held, thirdly, that where no steps have been taken to supersede the