[*728

on the motion), *that the said award was signed by the said Richard Wilson and John Anson Whealler at different periods and at different places, and in the absence of each other; for, this deponent saith that the said award was signed by the said Richard Wilson and John Anson Whealler as hereinbefore stated, and not in any other manner." [MAULE, J.-It seems pretty clear from that affidavit, that the award was executed by the two arbitrators in the same place, but at different times, and in the absence of each other, though in the presence of the attesting-witness. The rule is pointed to the objection; and the affidavit does not exactly answer it, but skilfully shaves round it.] It is submitted that that is putting too strict a construction upon the affidavit. [JERVIS, C. J.-The attention of the party who makes the affidavit is drawn to the fact that the two arbitrators did not execute the award in each other's presence. Why did he not, if the fact were so, state shortly and distinctly that the two executed it together?] If the former part of the affidavit leaves the matter in any doubt, the latter part clears it up.

MAULE, J.-I have not the smallest doubt about the fact. It is quite obvious, from the interlineations therein, that the affidavit has been very carefully constructed, and that these two arbitrators did not execute this award in the manner required by law, otherwise the fact would have been stated in a direct and simple manner. back to them again.

The rest of the court concurring,

Where arbitrators, having agreed on their award, adjourned for the purpose of having it drawn up in form, and did not meet again pursuant to the adjournment, but the report was drawn up by

The matter must go

Rule accordingly.

the counsel, carried to the arbitrators separately, and separately signed by them, it was held that the separate execution of the power vitiated the award: Moore v. Ewing, Coxe, 144.

*GILLOW v. RIDER. Jan. 31.

[*729

An order for the taxation and payment of an attorney's bill (after a previous order to change the attorney) cannot be made upon an ex parte application.

LUSH, on a former day in this term, obtained a rule nisi to set aside an order of Crowder, J., referring an attorney's bill for taxation, with an order for payment, under the 6 & 7 Vict. c. 73, s. 37, on the ground that such order was obtained upon insufficient materials, and upon an ex parte application.

Piggott now showed cause.-The order is perfectly regular. [JERVIS, C. J.-I find, upon inquiry of the Master, that the practice is, to hear both parties, and not to make these orders on an ex parte application.]

This being an application after an order to change the attorney, there could be no necessity for a summons to show cause, inasmuch as the retainer could not be disputed.

JERVIS, C. J.-The order is to be made with such directions and subject to such conditions as the court or judge making such reference shall think proper." The judge has to exercise a discretion. There must be a previous summons.

The rest of the court concurring,

Rule absolute.

*730]

*CHILTON, Assignee of WILLIAM PHILIP MASTERS CROFT, an Insolvent Debtor, v. CARRINGTON and WHITEHURST. Jan. 26.

The discretion of a judge at Chambers to make an order in an action of detinue, under the 78th section of the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, for the delivery up of the chattel detained, is subject to review by the court.

Such an order cannot properly be made in a case where by agreement of the parties the jury are discharged from finding the value of the chattel.

THE 78th section of the Common Law Procedure Act, 1854,-17 & 18 Vict. c. 125,-enacts that "the court or a judge shall have power, if they or he see fit so to do, upon the application of the plaintiff in any action for the detention of any chattel, to order that execution shall issue for the return of the chattel detained, without giving the defendant the option of retaining such chattel upon paying the value assessed, and that, if the said chattel cannot be found, and unless the court or a judge should otherwise order, the sheriff shall distrain the defendant by all his lands and chattels in the said sheriff's bailiwick, till the defendant renders such chattel, or, at the option of the plaintiff, that he cause to be made of the defendant's goods the assessed value of such chattel; provided that the plaintiff shall, either by the same or a separate writ of execution, be entitled to have made of the defendant's goods the damages, costs, and interest in such action."

An action of detinue had been brought by the plaintiff as assignee of the insolvent, Croft, to recover a lease of certain premises in Great Windmill Street, Haymarket, and also certain wine, spirit, and beer licenses, which had been deposited by Croft with the defendants as security for an advance of 150l. made by them to him: see a report of a former stage of the cause, antè, p. 95.

At the trial, before Cresswell, J., at the sittings in London after last Trinity Term, it was proved that the plaintiff had tendered to the defendants the 150l., and the interest due thereon, and demanded the lease, which the defendants refused to deliver up. The jury returned a verdict for the plaintiff, with 607. damages for the

*731]

detention of the lease; and they were, by consent, discharged from finding the value of the lease.

The agreement entered into at the trial appeared upon the postea thus," And the said parties within named consent that the jurors shall be discharged from finding the value of any of the said goods and chattels, and that neither party shall be prejudiced by such consent, or by the want of such finding; and the jurors accordingly are discharged by such consent from finding, and do not find, the value as aforesaid." Upon the plaintiff's application, Cresswell, J., afterwards made an order upon the defendants, upon the supposed authority of the section of the Common Law Procedure Act, 1854, above set out, to deliver up the lease to him.

Montague Smith, on a former day in this term, obtained a rule nisi. to rescind that order, on the ground that this was not a case to which the 78th section of the statute was intended to apply.

Aspland now showed cause.-No appeal lies from the decision of a judge under this section. The general rule laid down in Rex v. Almon, Wilmot's Notes, 264, and recognised and acted upon by this court in Darrington v. Price, 6 C. B. 309 (E. C. L. R. vol. 60), does not apply where the power to dispose of the matter is substantively given to a judge at Chambers. [MAULE, J.-The power to make an order to charge stock, under the 1 & 2 Vict. c. 110, ss. 14, 15, is expressly given to a judge at Chambers; and it has been held to be reviewable. by the court.(a)] It was not necessary that the jury should *as[*732 sess the value of the lease: Williams v. Archer, 5 C. B. 318 (E. C. L. R. vol. 57): and therefore the absence of an assessment of the value was immaterial. By refusing the sum tendered, the defendants at law lose the benefit of their security: and the court has no equitable powers, except where they are expressly given. [JERVIS, C. J.The order to deliver up the chattel is given in lieu of the option which the defendant had under the old law, of retaining the chattel on paying the value assessed by the jury. Suppose the value had been assessed at 500l., would the defendants have paid the 500l. without reference to the mortgage?] The charge was absolutely gone: the tender was equivalent to payment. Littleton, § 238, says,- Note, that, in all cases of condition for payment of a certain sum in gross touching lands or tenements, if lawful tender be once refused, he which ought to tender the money is of this quit and fully discharged for ever afterwards." Upon this Lord Coke observes,- This is to be understood that he that ought to tender the money is of this discharged for ever to make any other tender; but, if it were a duty before, though the feoffor enter by force of the condition, yet the debt or duty remaineth. As, if A. borroweth 100l. of B., and after mortgageth land to B. upon condition for payment thereof, if A. tender the money to B., (a) See Robinson v. Burbidge, 9 C. B. 289 (E. C. L. R. vol. 67).

VOL. XV.-62

and he refuseth it, A. may enter into the land, and the land is freed for ever of the condition, but yet the debt remaineth, and may be recovered by action of debt. But, if A., without any loan, debt, or duty preceding, enfeoff B. of land upon condition for the payment of 100l. to B., in nature of a gratuity or gift, in that case, if he tender the 1007. to him according to the condition, and he refuseth it, B. hath no remedy therefor; and so is our author in this and his other cases of like nature to be understood." In Coggs v. Bernard, 1 Lord Raym. 909, Com. 133, 1 Salk. 26, 3 Salk. 11, Holt, 13, speaking of lost pledges, *Lord Holt says,-" If the money for which the goods were *733] pawned be tendered to the pawnee before they are lost, then the pawnee shall be answerable for them; because the pawnee, by detaining them after the tender of the money, is a wrongdoer, and it is a wrongful detainer of the goods, and the special property of the pawnee is determined." In the notes to that case, in 1 Smith's Leading Cases, 100, it is said," After the debt has been discharged or tendered, it of course becomes the pawnee's duty to return the pawn; Isaack v. Clark, 2 Bulstr. 306; Anonymous, 2 Salk. 522; Bull. N. P. 72. And, if the pawnor have, as he may do, assigned his property in the pledge, subject to the pawnee's rights and special property, the assignee will have, it is said, the same right as the pawnor, both in law and equity: Kemp v. Westbrook, 1 Ves. sen. 278, Franklin v. Neate, 13 M. & W. 481:† whereas, it is clear that the assignee of the equity of redemption in a thing mortgaged could have no rights at law. There may, however, be a mortgage, properly speaking, of chattels, which will be subject to the same incidents as any other mortgage. If the pawnee, after payment or tender, insist upon retaining the goods pledged, he is a wrongdoer, and becomes liable to an action, and chargeable with any damage which may afterwards happen to the pledge, whether with or without his default: Anonymous, 2 Salk. 522; Comyns's Digest, Mortgage, (B).” In Clark v. Gilbert, 2 N. C. 343, 2 Scott, 520, the defendant held a lease on which he had a lien for 300l. as attorney of S.: a commission of bankrupt was issued against S. in December, 1829; the defendant acted as attorney under that commission; and, in 1831, after notice of

petition to supersede it, he joined with the assignee under the commission in a sale of the lease, and out of the proceeds was paid the 3001. due to him from S. The commission of bankrupt having been superseded in 1832, for want of a sufficient petitioning-credi*734] tor's debt, and a new commission having issued,-it was held, that the defendant was liable to refund the 3007. in an action for money had and received to the use of the assignee under the second commission, and also money received in 1831, for rent, &c., accruing to S. In giving judgment, Tindal, C. J., said: "As to two of the sums in dispute, viz. the sum of 300l., and the sum of 31. 148., it appears they were part of the proceeds arising from the sale of a lease belonging to

the bankrupt. Now, that lease, at the time of such sale, was in the possession of the defendant as a pledge or security for the payment of his demand against the bankrupt; being either in his possession as solicitor, under a claim upon it for his lien which the law gives him; or having been expressly deposited with him as a security for his demand, according to the evidence of Stevens. In either case, the right and power of the defendant over the lease was precisely the same: he had the right to retain the lease in his possession until his demand was paid, and so far, by means of the possession of the lease, to enforce payment of his demand: but he had that right only: he had no right to sell the lease, and to pay himself his demand out of the proceeds. So long as the lease remained in his possession, neither the bankrupt nor his assignee could retake it, without either payment of the demand, or a tender and refusal, which is equivalent to payment." This question is, in effect, disposed by the observation of Maule, J., antè, p. 105, where he says, "As to the supposed equitable claim, nothing has been cited on the part of the defendants to show that the rights of the defendants would have been at all different if the question had arisen directly between them and Croft, the pledgor. No court of equity would have interfered with the right of the pledgor to have the note and the lease delivered up to him on payment or tender of the amount of the note and interest." Here, *the plaintiff has been guilty of no default, no [*735 laches; and the court will not substitute a new contract for the general one which the law will in such a case imply. Upon the money being tendered, the defendants ought to have returned the lease, their special property therein being determined. The rule is thus stated in Story on Equity Jurisprudence, § 1032,- In cases of pledges, if a time for the redemption be fixed by the contract, still the pledgor may redeem afterwards, if he applies within a reasonable time. But, if no time is fixed for the payment, the pledgor has his whole life to redeem, unless he is called upon to redeem by the pledgee; and, in case of the death of the pledgor without such a demand, his personal representatives may redeem. (a) Generally speaking, a bill in equity to redeem will not lie on the behalf of the pledgor or his representatives, as his remedy upon a tender is at law. But, if any special ground is shown, as, if an account or a discovery is wanted, or there has been an assignment of the pledge, a bill will lie."(b) It is clear, therefore, that the plaintiff has no remedy in equity, but only at law. [MAULE, J.-By agreeing that the jury should be discharged from assessing the value of the lease, have not the parties in effect agreed that such an order as

(a) Citing 4 Kent. Comm. Lect. 58, p. 138 (4th edit.); Story on Bailments, 308, 345, 346, 348; Glanville, Lib. 10, cap. 6, 8; Cortelyou v. Lansing, 1 Cain. Cas. Err. 200, 203 (American); Demandray v. Metcalf, Pre. Ch. 419, 2 Vern. 691, 698, Gilb. Eq. R. 104; Vanderzee v. Willis, 3 Bro. Ch. R. 21; Kemp v. Westbrook, 1 Ves. sen. 278.

(6) Citing Kemp v. Westbrook, 1 Ves. sen. 278; Demandray v. Metcalf, Pre. Ch. 419, 420; Jones v. Smith, 2 Ves. jun. 372.