some years, and had also promised
to pay the principal. The defend-
ant's case was, that this item was
originally brought into the account
between him and the plaintiff in
consequence of a written undertak-
ing by him (which he had since
taken from the plaintiff and de-
stroyed in an indefensible manner),
by which the defendant undertook
to remit the plaintiff 501., which
sum I (the defendant) hold of H.
Pugh, and by him authorized to
pay you" (the plaintiff). Pugh
was called, and swore that he never
gave the defendant any such au-
thority to pay 50l. for him, Pugh,
to the plaintiff; and that he had
since settled all the debts he owed
the plaintiff. Held, that Pugh's
evidence was admissible for the
defendant, and, if believed, entitled
him to a nonsuit; and the court
having been substituted for the
jury, by agreement between the
parties, made a rule absolute for
entering a nonsuit. Pierce v. Evans,
T. 1835.
1042
An affidavit of debt, stating a party
to be indebted to the plaintiff in
201. on a promissory note, without
stating the amount for which the
note was made or payable, will be
set aside on motion for irregula-
rity. Riddell v. Pakeman, E. 1835.
721
But where, in an action for false
imprisonment, the defendant pleads
the return of non est inventus to a
writ of capias, and justifies arrest-
ing the plaintiff on an exigi facias,
and after replication that no affi-
davit of debt was duly made and
filed, the defendant in his rejoinder
avers that there was, and sets
forth an affidavit open to have
been set aside for irregularity in
the above respect:-Held, on spe-
cial demurrer to the rejoinder, that
the defendant was entitled to judg-
ment, because trespass is only
maintainable where the process is
an absolute nullity, not where it is
merely erroneous in form, and has
not been set aside on that account
by authority of the court. Ib.
AFFRAY.
AGREEMENT.
The declaration stated that the de-
fendant guaranteed the payment of
goods furnished by plaintiff to H.
at the defendant's request. Plea,
that before breach of that under-
taking, it was agreed between
plaintiff and defendant, that plain-
tiff should supply goods to H.,
and that they should be paid for
at the end of three months by a
joint bill at four months to be ac-
cepted by the defendant; which
agreement of defendant, plaintiff,
before breach of the former under-
taking declared on, accepted in full
discharge of such former agree-
ment, and released the defend-
ant from performing it :-Held, on
demurrer, that the second agree-
ment did not require to be in writ-
ing, pursuant to 29 Car. 2. c. 3.
being a provision by which the
defendant became absolutely bound To interrogatories.
as an original debtor; and not
being an accord and satisfaction,
but a substituted contract, afforded
a good defence to the action with-
out alleging performance. Taylor
v. Hilary, H. 1835,
373
The following agreement was held
to show sufficient consideration
moving from the plaintiff by way
of detriment to him in giving up
the security of the debtor C. for
1501. at the defendant's request.
"I undertake on behalf of Mr.
P. (the plaintiff) in consideration
of Mr. D. (the defendant) having
this day given me an undertaking
to procure Mr. W.'s check or note
in favour of Mr. P. for 150. on
account of a debt due from Mr. C.
to Mr. P., that Mr. C. shall have
credit for that sum in his accounts
with Mr. P., and that Mr. W. shall
stand in the place of Mr. P. to that
amount; and I further undertake
that Mr. P. shall not personally
dispute Mr. W.'s right to deduct
that sum from the accounts owing
by the colliers of the B. P. colliery
to Mr. C." The declaration alleged
D., (the defendant's) promise to be
in consideration of that of P. the
plaintiff, by way of mutual pro-
mise: Held good, and that it was
sufficient to aver that plaintiff was
ready and willing to perform his
part. Peate v. Dicken, M. 1834.
116
By parol does not affect prior deed.
Lane v. Drinkwater.
Of record, at nisi prius.
See PRACTICE.
By deed T. D. and R. D., of the one
part, severally and respectively,
and for their several and respective
heirs, executors, and adminis-
trators, granted, covenanted, and
agreed to and with T. L. (the
plaintiff) and A. B., their heirs,
executors, administrators, and as-
signs, to pay to T. L. and A. B.,
their executors, &c., one annuity
or clear yearly sum of 301. in the
shares and proportions following;
viz. the sum of 15l., being one
moiety of the said annuity, unto
T. L., his executors, &c., and the
sum of 15l., the remaining moiety,
unto A. B., his executors, &c., to
be respectively paid quarterly.
Land and stock were secured to
T. L. the plaintiff and A. B. jointly,
by way of securing the annuity.
They also had joint powers to
enter up a joint judgment against
T. D. and R. D., and to sell the
land and transfer the stock in order
to obtain payment of arrears of the
annuity. By proviso in the deed
the annuity might be redeemed,
on seven days' written notice, by
payment to T. L. (the plaintiff)
and A. B. of 3077. 10s. and all
arrears of the annuity. An action
having been brought by T. L.
alone for arrears of the annuity,
the covenant to pay it as well as
the interest in it, were held to be
joint in him and A. B., so that
T. L. could not sue alone. Semble,
the provision for paying the an-
nuity in moieties to each cove-
nantee, being only a mode of pay-
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ARBITRATION AND AWARD.
A cause in the stage after
appearance
and before plea was referred to
arbitrators, with all matters in dif-
ference between the parties, the
costs of the cause as well as of the
reference and award, to abide the
event of the award. It appeared
before the arbitrators that the de-
fendant had a larger cross demand
against the plaintiff than he, plain-
tiff, could establish in the action.
The award directed that the action
should cease and be no further
prosecuted; that on the balance of
accounts 6617. was due from the
plaintiff to the defendant, and that
the plaintiff should pay that sum
to the defendant. It was argued
that as this award did not state that
the plaintiff had no cause of action
against the defendant, no event
was found which the costs might
follow; so that the award was not
final. The court held that it suf-
ficiently showed the decision to be
in favour of the defendant, and
accordingly refused to set it aside.
Eardley v. Steer, T. 1835. 1071
The arbitrator could not order a
verdict to be entered. Per Parke
B. Ib.
A defendant applied to a judge at
chambers to order a third party to
appear and maintain or relinquish
his claim to the subject-matter in
suit, and in the meantime to stay
proceedings, under 1 & 2 W. 4,
c. 58. s. 1. Instead of directing
an issue, the judge, by consent of
the parties in the cause, and a
third party, and administratrix,
made an order referring the cause
to an arbitrator. The third party
afterwards applied to the court to
vary the order, by introducing a
fresh direction to the arbitrator,
in consequence of some admission
of the defendant since the meeting
at chambers, which went to fix his
liability to a claim by the third
party, and to establish his defence
to the action by the plaintiffs. The
court refused to grant even a rule
nisi without the defendant's con-
sent. Drake and another v. Brown,
T. 1835.
1067
Where an arbitrator is a member of
the profession of the law, the court
will not on that ground examine
into a supposed defect in his deci-
sion on a point of law, unless ap-
parent on the face of the record;
and there is no distinction in this
respect between legal and other
arbitrators. Jupp and others v.
Grayson. Grayson v. Jupp and
others, M. 1834.
Where all the costs, as well of
an action as of the reference and
award, are to abide the event, they
need not be mentioned in the
award. Ib.
An arbitrator decided in favour of
plaintiff, and then stated facts on
his award, ordering that if the
court should differ from him in
opinion on considering those facts,
a nonsuit should be entered. The
court refused to set aside the
award, on the ground that he had
come to a wrong conclusion on the
evidence, for though they did not
concur in it, it did not appear
that there was no evidence in sup-
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