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CASES

ARGUED AND DETERMINED

IN THE

COURT OF COMMON PLEAS

IN

Easter Term, 1836.

Com. Pleas. CLARKE v. STOCKEN.

April 23rd. R. ALEXANDER obtained a rule nisi to show cause why a judge's order Apuder not

to revoke a submission to arbitration should not be set aside. The under 3 & 4 submission to arbitration had been by rule of Court; and after the arbitrator W:.4. c. 42, had heard the evidence, the defendant's attorney finding that the arbitrator's a submission to opinion, upon a point of law, was against his client, applied to a judge without arbitration to

, giving notice to the other side ; and by great importunity induced him to upon an revoke the submission (a).

ex-parle appli.

cation.

R. V. Richards shewed cause. It may be assumed that if the learned judge had not been satisfied with the grounds which were urged in support of the application, he would not have revoked the submission. The Statute 3 & 4 W. 4, c. 42, s. 39, affords sufficient authority to enable a judge to act upon an er-purte statement; and if it were not so, the other side might keep out of the way until the award was made, and then the provisions of the statute would be altogether nugatory. A defendant is held to bail in an action of trover, or he is arrested a second time for the same debt, by judge's orders, which

(a) 3 & 4 W.4, c. 42, sec. 39; ' And whereas it is expedient to render references to arbitration more effectual; be it further enacted, that the power and authority of any arbitrator or umpire appointed by or in pursuance of any rule of court, or judge's order, or order of nisi prius, in any action now brought, or which shall be hereafter brought, or by or in pursuance of any submission to reference containing an agreement that such submission shall be made a rule of any of his majesty's courts of record, shall not be revocable by any party to such

VOL. 11.

reference without the leave of the court by
which such rule or order shall be made, or
which shall be mentioned in such submis-
sion, or by leave of a judge ; and the arbi-
trator or umpire shall and may, and is
hereby required to proceed with the re-
ference, notwithstanding any such revoca-
tion, and to make such award, although
the person making such revocation shall
not afterwards attend the reference; and
that the court or any judge thereof may
from time to time enlarge the term for any
such arbitrator making his award."

B

Com. Pleas.

CLARKE

are granted on ex-parte applications. [Tindal, C. J.—That is not always the case; sometimes a summons is issued, and both parties are heard). No fraud is imputed; the judge having exercised his discretion, the revocation is complete, and the authority of the arbitrator cannot be restored.

STOCKEX.

Alexander, contrà, was stopped by the Court.

Tindal, C. J.—The only question before us is, whether this order should be set aside, and I am of opinion that the rule should be made absolute. By the thirty-ninth section of the statute, a submission can now only be revoked by the leave of the Court, or by leave of a judge; and the section ought to be construed secundum subjectam materiem. If an application were made to the Court, a rule nisi only would be granted, and the other side would be heard before it was made absolute. So, also, if the application is made to a judge at chambers, both parties ought to appear before any order is made. Here it was made on an ex-parte application, and it is the same as if the submission had never been revoked, and the arbitrator has still authority to make his award.

Park, J.-We have been asked to act in opposition to one of the first principles of justice, which requires that both parties shall be heard, or at least, be summoned that they may be heard, before any decision is pronounced.

It is not because the Act of Parliament authorizes a judge to revoke the submission, that it can therefore be done without hearing both parties. The practice as to arresting defendants is not applicable to this case. It is then sometimes necessary to proceed without notice, to prevent debtors from making their escape.

VAUGHAN, J.-I am of the same opinion. The thirty-ninth section of the statute is highly beneficial, because it was formerly the practice for parties to revoke the authority of the arbitrator, if they discovered an unfavourable expression of his opinion during the proceedings. It was desirable to take away

this power of revocation from the parties, and to place it in the hands of the Court or of a judge; but I am of opinion that the order ought not in any case to be made on an ex-parte application.

BOSANQUET, J.-I am of opinion that the authority given by the statute should not be exercised without notice being given to the other party. It is admitted that the former grievances required a remedy, but all the evils would be restored if a revocation could be obtained upon an ex-parte statement.

It is said that there would be danger in giving notice, but that is not so, for if the arbitrator acted corruptly his award would be set aside.

Rule absolute.

Com. Pleas, MELIN v. TAYLOR.

April 20th. WILDE, Serjt., applied for a rule nisi for a new trial in this cause, upon Where inad

two grounds :—First, that the verdict was against evidence; and dence was resecondly, for misdirection. The action was for criminal conversation with ceived without the plaintiff's wife; it was tried before Lord Denman, C. J., at the last York the judge in assizes, when a verdict was found for the defendant.

summing up,

made strong The defendant called witnesses to show that during the period that the observations adulterous intercourse was suspected, he was living upon terms of affection upon its effect: and harmony with his own wife, and the plaintiff's counsel offered no objec- amount to a

misdirection. tion to the reception of this evidence. The learned judge, in giving his charge to the jury, said he was of opinion that the evidence so offered was not receivable; but that as it had been admitted without objection, he was of opinion that it raised a great obstacle to the plaintiff's case, as he thought it was entitled to considerable weight in favor of the defendant.

In support of the latter part of the rule it was contended, that this topic, eloquently urged to the jury, amounted to a misdirection; and that evidence which was so irrelevant as not to be receivable at all if objected to, was not entitled to

any

consideration whatever.

Tindal, C. J.—The plaintiff is not entitled to have a new trial on the ground of misdirection. The effect of this evidence was stated by the learned judge as it occurred to him at the time, and the observations do not amount to a misdirection in point of law.

PARK, J.—This evidence having been admitted, I do not see how the learned judge could have omitted to remark upon it. The observations do not amount to a misdirection, and some judges may be more eloquent than others, but I never heard that stated as being a ground for granting a new trial.

VAUGHAN, J., agreed.

BOSANQUET, J.-It is not usual to grant a new trial for misdirection upon the ground that the observations of the judge were more or less strong. (a)

Rule refused.

(a) See also Simpson v. Clayton, 1 Hodges, 464.

Com. Pleas.

May 3rd.

Lewis v. BRIGGS.

fused to compel TALFOURD, Serjt, applied for a rule to show cause why the defendant, an attorney to who was an attorney, should not shew the plaintiff several letters which the shew letters written to him plaintiff had written to him; and also deliver up an order for a piece of plate by his client, which he had received from the plaintiff. The facts of the case were these:—the able the latter defendant had been the plaintiff's attorney; and in order to induce the attorney to prosecute an to expedite certain professional business, the plaintiff had given him the order action for uegligence; and upon a silversmith, which would enable him to obtain a piece of plate of the the client was left to bring

value of 501. at the plaintiff's expense. The letters were required to enable trover to recover the plaintiff to prosecute an action for negligence which he had commenced piece of plate, against the defendant. [Tindal, C. J.-Can you cite any authority in support which he had of this application ?] There is no similar case in the books; but this differs intended to pre from ordinary cases, because the defendant was acting as the plaintiff's attortorney, and

ney when the letters were written. which was in his possession.

Tindal, C. J.—The production of the letters by the defendant is a matter of good feeling, upon which he must exercise his own discretion. As to the order for the piece of plate, the plaintiff may bring an action of trover, if he attaches

any value to it.

Park, J., and VAUGHAN, J., concurred.

BOSANQUET, J.—The defendant does not hold these letters as a trustee.

Rule refused.

April 29th.

Hollis 0. FREER and others.

replevied her REPLEVIN for taking the goods of the plaintiff, one Hannah Hollis, at goods, which Silver Hill, in the county of Stafford. The defendants, by their plea, prayed had been dis. trained, and

judgment of the original writ, “because they say that the plaintiff, before and at afterwards the time of the suing forth of the original writ in this behalf, was and still is married: the defendants re

married to one John Osborne, then and yet her husband, who is still living, and moved the pror this the said defendants were ready to verify; wherefore, because the said ceedings out of the Sheriff's J. Osborne is not named in the said original writ, the said defendants pray Court by be.fl. judgment of the original writ, and that the same may be quashed.” The defenoriginal writ dants then avowed the taking the distress for rent due from the plaintiff. was issued in The name of the

The plaintiff replied that the suit was commenced by plaint, and without any feme sole:- writ in the county court of the sheriff of the county of Stafford; and that Held, that the coverture was

after the same was so commenced as aforesaid, and while it was pending in that a good plea in court, the said defendants, for the purpose of removing the same therefrom abatement of the writ. into the court of our lord the king before the justices of our said king of the

bench, issued and prosecuted a certain writ of our said lord the king, being the writ in the said plea mentioned, called a recordari facias loquelam, to the tenor and effect following, that is to say,

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“ William the Fourth, &c., to the sheriff of Staffordshire, greeting. We command you that in your full county you cause the plaint to be recorded, which is in the same county, without our writ, between Hannah Hollis and W. H. Freer, &c., of the cattle, goods, and chattels of the said Hannah taken and unjustly detained.” (Here the remainder of the writ was set out.)

Demurrer and joinder in demurrer.

FREER.

Addison, in support of the demurrer.—The plea of the defendants cannot be resisted. In Milner v. Milnes (a), it was held, that an action of trespass for an injury done to the property of the wife dum sola must be brought by the husband and wife; and it also appears, that if such an action be brought by the wife alone, the defendant must plead the coverture in abatement and not in bar; and Morgan v. Painter (b) shows that it is immaterial whether the plaintiff take husband before suing out the writ, or after suing out the writ and before declaration.

R. V. Richards, contrà.—Here the plaint was levied in the sheriff's court, and the replevin-bond was given by the plaintiff in her own name, and her marriage did not take place until after the commencement of the proceedings. If the plaintiff had discontinued the action, she would have forfeited the bond. The defendants sued out the writ of re. fa. lo., and that distinguishes this case from Morgan v. Painter (6); for the Court will not permit the defendants to object to their own proceedings. The general rule is laid down in Bac. Abr., tit. Abatement, G.:-“ If an action be brought in an inferior court against a feme sole, and, pending the suit, she intermarries, and afterwards removes the cause by habeas corpus, and the plaintiff declares against her as a feme sole, she may plead coverture at the time of suing the habeas corpus, because the proceedings here are de novo, and the Court takes no notice of what was precedent to the habeas corpus; but upon motion on the return of the habeas corpus, the Court will grant a procedendo: for though this be a writ of right, yet where it is to abate a rightful suit, the Court may refuse it; and the plaintiff had bail below to this suit, which by this contrivance he is ousted of, and possibly, by the same means, of the debt;” and in a note it is added, “But if she remove the plaint, coverture is not a good plea,” citing Barnes, 355. Here the plaint was removed by the defendants, and the case from Barnes is not, therefore, in point.

Addison, in reply, contended that the authorities cited for the plaintiff were rather in favour of the defendants.

TINDAL, C. J.-Our judgment must be governed by the case of Morgan v. Painter (b). The parties, when brought here by a writ of recordari facias loquelam, are like a plaintiff and defendant in a new cause; and when the original writ is sued out, it is subject to be abated by the ordinary causes, one of which is, where the plaintiff being a feme sole, marries after the writ, and before declaration. It is said that the removal of the proceedings into this

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