1841. SPAIN v. CADELL. entered for either party, and the arbitrator accordingly Exch. of Pleas, directed a verdict for the defendant, the Court set it aside, holding that the sheriff had no power to delegate his authority under the writ, but was bound to try the issue. sent to him. So here, the legislature has expressly vested the power of certifying for this purpose in the Judge, and he cannot delegate it to an arbitrator. [Alderson, B. -The question here turns upon the agreement of the parties. In the case you cite, it is not clear that the award itself was bad; all that the decision amounts to is, that the verdict could not stand, because the arbitrator had no power to direct a verdict to be entered.] But further, even if the statute is not conclusive as to the person by whom the certificate is to be granted, it is clearly imperative as to the time and mode of granting it, viz. by indorsement on the record, immediately after the trial. This is a mere statement of his opinion subsequently made by an arbitrator in his award, and is in no respect a compliance with the statute. ALDERSON, B.-I think no rule should be granted in this case. The parties are concluded by their own agreement, which must be reasonably construed, and to which we must give effect in a reasonable manner. By the order of reference, they have agreed that the arbitrator is to be in the same situation, and to have the same powers, that a Judge has under the 3 & 4 Will. 4, c. 24, and have given him the same authority to determine whether the verdict shall or shall not carry costs. No doubt, the arbitrator, who is invested with this power by the consent of the parties, must, in all substantial matters, follow the rules laid down in the statute for the guidance of the Judge: that is, he must give his opinion upon the matter immediately; he cannot make his award at one time, and certify as to the costs at a subsequent time. That is in substance the power possessed by the Judge at nisi prius, which the arbitrator, 1841. SPAIN บ. Erch. of Pleas, although he cannot follow it literally, is bound to follow cyprès-the mode of doing which is by immediately inserting his certificate in the award, which has been done in the present case. By this construction, the intention and agreement of the parties are carried into effect, and we think they may be so carried into effect consistently with the provisions of the statute. CADELL. GURNEY, B., and ROLFE, B., concurred. Rule refused. April 20. become lame at is not an un- ASSUMPSIT BROWN V. ELKINGTON. on the warranty of a horse. Pleas, first, non assumpsit; secondly, a denial of the unsoundness, on which issues were joined. At the trial before Lord Abinger, C. B., at the last Warwick Assizes, it appeared that at the time of the sale of the horse to the plaintiff, he remarked that the horse had "curby hocks," and objected to him on that ground. The defendant, however, gave a general warranty of soundness, and the plaintiff bought the horse for £60. He was ridden hunting by the plaintiff, and on the third day's hunting, about a fortnight after the sale, he sprung a curb. Veterinary surgeons were called on the part of the plaintiff, who stated that the term "curby hocks" indicated a peculiar form of the hock, which was considered as rendering the horse more liable to throw out a curb, but did not of itself occasion lameness; and that the horse in question had curby hocks at the time of the sale. The Lord Chief Baron, in summing up, told the jury that a defect in the form of the horse, which had not occasioned lameness at the time of the sale, although it might render the animal more liable 1841. to become lame at some future time, was no breach of Exch. of Pleas, the warranty. A verdict having been found for the defendant, Balguy now moved for a new trial, on the ground of misdirection, and contended that a malformation, the natural consequence of which was lameness, amounted to an unsoundness. ALDERSON, B.-Dickinson v. Follett (a) is expressly in point for the defendant, and the law, as laid down by me on that occasion, has not been questioned in any subsequent case. Lord ABINGER, C. B., and ROLFE, B., concurred. BROWN บ. ELKINGTON. Rule refused. (a) 1 M. & Rob. 299. LOCKLEY V. PYE. April 21. in the occupa tion of a house, and on taking possession agreed with B. for the lease at THIS was an action of trespass against the sheriff of Staf- A. succeeded B. fordshire. The first count was for seizing and taking certain goods, the property of the plaintiff: the second was for breaking and entering his house, pulling down and severing certain fixtures therein, and turning himself and his servant out of possession. Pleas, first, not guilty; secondly, to the first count, that the goods were not the goods of the plaintiff; and thirdly, to the second count, that the house and fixtures were not the plaintiff's. At the trial before the sum of £80, and to take the furniture and fixtures at a vatween an outgoing tenant. The ing and incomgoods were accordingly valued luation as be at 109. 15s. 10d., and the amount paid by A., and an assignment executed. The plaintiff afterwards commissioned the auctioneer who had valued the goods, to sell them, but before he could do so the sheriff entered and seized them under an execution against B., and (the same auctioneer being employed by the sheriff) the goods were sold, and produced only £73, the plaintiff himself being a purchaser to the amount of £20. In an action of trespass brought by A. against the sheriff:-Held, that the jury were justified in giving damages for the full amount of the valuation. 1841. LOCKLEY บ. PYE. Exch. of Pleas, Gurney, B., at the last assizes for the county of Stafford, it appeared that the plaintiff, who was a chemist residing at Westbromwich, had some time previously to the alleged trespass taken possession of the house, fixtures, and furniture in question, under an assignment from a person named Mason, the former tenant of the premises. The plaintiff paid £80 for the lease, and the fixtures and goods were purchased at a valuation as between an outgoing and incoming tenant, for 1097. 158. 10d. The plaintiff afterwards commissioned the auctioneer who had valued the goods to sell them, but before he could do so, the defendant, as sheriff of Staffordshire, entered, and seized them under colour of a writ of execution against Mason, and (the same auctioneer being employed by the sheriff) the goods were sold, and produced only £73., the plaintiff himself being a purchaser to the amount of £20. The learned Judge told the jury that, as to the amount of damages, he thought the least they could give the plaintiff was the sum he had paid for the goods. The plaintiff had a verdict with 1097. 15s. 10d. damages on the first count, and £25 on the second count. Bayley now moved for a rule to shew cause why there should not be a new trial, or why the amount of the verdict on the first count should not be reduced to the sum of £40. The damages were assessed on a wrong principle; the plaintiff had no just cause of complaint, inasmuch as he had himself directed that the goods should be sold, and the sale was conducted by the auctioneer whom he had commissioned for that purpose. The fact of the sale being directed by the sheriff could not damnify the plaintiff; the jury ought, therefore, to have assessed the damages at the amount which the goods produced, minus the expenses of the sale. The observation of the Judge, though perhaps it may not amount to a misdirection, was calculated to mislead the jury. [Alderson, B.—A trespasser has no right 1841. to value the goods on which he commits a trespass.] The Exch. of Pleas, plaintiff was at all events not entitled to make a profit of the trespass. ALDERSON, B.-It was entirely a question for the jury what damages they would allow. Juries have not much compassion for trespassers, and I do not think they are bound to weigh in golden scales how much injury a party has sustained by a trespass. GURNEY, B., and ROLFE, B., concurred. LOCKLEY V. PYE. Rule refused. Ross v. JACQUES. CROSS applied for a rule to shew cause why all further proceedings in this cause should not be stayed, or why the plaintiff should not give security for costs. It was sworn in the affidavits on which he moved, that a former action had been brought by the plaintiff against the defendant for the same cause of action, which was settled by the defendant paying the debt and costs. The affidavits also stated certain facts from which it might be inferred that the plaintiff was in insolvent circumstances, and the defendant swore that he verily believed, that in the event of his obtaining a verdict, he should not be able to recover his costs.-Cross urged, that under these circumstances the Court would stay the proceedings. It is true that the Courts will not in general adopt this course, but will put the defendant to plead the former recovery in bar of the action; but it is stated in the books of practice, that they will sometimes interfere in a summary way: Chitty's Archb. Pr. 1036 (a). At least, under the circumstances, (a) 6th Edition. |