1819.

DEVEREUX

against BARCLAY.

ABBOTT C. J. What effect the production of further evidence may have, the Court cannot anticipate at present; it is quite sufficient to say that this cause having been stopped too soon, the plaintiffs are entitled to a new trial. This is not the case of an innocent delivery, for it is one contrary to the knowledge which, in point of law, the defendants ought to have had. There is a great distinction between an omission and an act done. In the case cited from Burrow no act was done, and Lord Mansfield expressly said that it was a mere omission. But here there is an act done by the defendants, which, in its consequences, is injurious to the plaintiff. Upon this evidence, therefore, I am now of opinion, that trover may be maintained.

BAYLEY J. The case of Youl v. Harbottle(a) shews that a carrier is liable in trover for a mis-delivery.

HOLROYD and BEST J. concurred.

(a) Peake, N. P. C. 49.

Rule absolute.

Wednesday,
June 16th.

Where it was stipulated that in case of the breach of an agreement the sum of 1001. should be received as a stipulated debt

PINKERTON against CASLON and Another.
CASLON and Another against PINKERTON.

THESE two actions were referred to arbitration.
The former was brought to recover a compensation
for work and labour and materials found in erecting a
gasometer and other works near Burton Crescent. The

binding on each party, as to the amount; and an action for damages generally, for the breach of this agreement, was referred to an arbitrator, who awarded only 101. damages. Held, that in order to entitle the party to come to set aside this award, it was necessary expressly to state in the affidavit, that this clause was pointed out to the arbitrator at the time, and that he was required to act upon it.

agreement

agreement under which the work had been done, contained the following clause: "And the said James Pinkerton and James Pausey (his surety) do hereby jointly and severally promise and agree that in case James Pinkerton shall fail to perform his part of the agreement, they will pay to the said William Caslon and William Symmons the full sum of 100%.; to be paid, or in case of non-payment, to be recovered and levied as a stipulated debt binding on each party as to the amount, and not as a penalty, or in the nature of a penalty." The latter action was brought by Caslon and Symmons against Pinkerton generally for damages for the breach of this agreement. The arbitrator made his award, finding that 140l. was due to Pinkerton for his work and labour, &c., and that Caslon and Symmons had sustained 107. damages for the breach of the agreement by Pinkerton, and awarded that they should pay 1307, being the balance due to Pinkerton. A rule nisi having been obtained to set aside this award, on the ground that the arbitrator ought to have awarded 1007. damages in the latter action,

Scarlett shewed cause. The action by Caslon against Pinkerton is for damages generally. If it had been founded on the agreement, the sum of 100l. would have been claimed as a specific debt. There could be no reason for referring the case to an arbitrator if he was bound to find 100%. damages without any discretion to be exercised on his part. The party had an option either to go for 1001. or for damages generally, and he has chosen the latter alternative. Besides it does not appear from the affidavits, that the attention of the arbitrator was expressly called to this clause of the agree

ment,

1819.

PINKERTON

against CASLON.

1819.

PINKERTON against CASLON.

ment, or that any claim was made for the 100%. stipulated debt.

Gaselee and Stephen, contrà. Although the affidavits do not expressly raise that point, yet no reasonable doubts can be entertained that it was submitted to the arbitrator. Here it is clear that the parties themselves chose to assess their own damages in case the agree ment was broken; and the moment the arbitrator found that a breach had been committed, he was bound to have awarded 1007. as the stipulated damages.

ABBOTT C. J. The words of the agreement are not stipulated damages but stipulated debt, and it does not appear that any distinct claim was made before the arbitrator for the 100%., nor that this clause in the agreement was at all submitted to his consideration. All that does appear is, that the case went before him on an order of reference, stating that an action for damages for the breach of the agreement had been brought, and was then depending. The party seems to me to have taken his chance of getting more damages than 1007., and having failed, now comes to the Court to ask that this award may be set aside on a point which was never submitted to the arbitrator. This clause in the agreement is an attempt to evade the provisions of a most beneficial act of parliament, and may produce great injustice. For what can be more unconscientious, than that a party, who is only damnified to the extent of 57., should, notwithstanding that fact, recover the sum of 100%.? Under these circumstances, I am of opinion, that the party who seeks to set aside this award ought at least to have distinctly pointed

out

out the clause in the agreement to the arbitrator, and expressly required him to act upon it; and this not being stated in the affidavit to have been done, the rule must be discharged with costs.

Rule discharged with costs.

1819.

PINKERTON

against CASLON,

The KING against PLAYER.

WE. TAUNTON had obtained a rule nisi for a quo
warranto, calling upon the defendant to shew by
what authority he exercised the office of a freeman of
the city of Gloucester. It was stated by the affidavits,
in support of the rule, that the defendant had, at a meet-
ing of the common council of the city of Gloucester, been
nominated an honorary freeman of that city; and that
the question put upon that occasion was this, as appeared
from the corporation book, "Whether the several per-
sons hereafter named shall be admitted to the freedom
of this city?" The defendant, together with seventy-
nine other persons, were then named in one body, and
the question being put thereon, was carried. The ob-
jection was, that the question ought to have been put
separately on each individual; and in support of it,
Rex v. Munday (a) was cited.
swer stated, that the corporation had always exercised
the right of appointing honorary freemen, and that the
charter was wholly silent as to the mode of admitting
them; and they further stated, that the mayor and de-
puty town-clerk, upon this occasion, read over the list

(a) Cowp. 530.

The affidavits in an

of

1819.

The KING against PLAYER.

of names twice to the persons assembled at the meeting, and asked whether any one of the members of the council had any objection to the persons so proposed, or either of them; and no objection being made, the votes were taken, and the several persons unanimously elected; and they added that if any objection had been made by individual, the name objected to would, according to the practice of the corporation, have been immediately withdrawn. The number of freemen was sworn to be indefinite.

any

Scarlett and Carter shewed cause. The case of Rex v. Munday is distinguishable on two grounds: first, that the body, in that case, consisted of a definite number; and, secondly, that the list of names was not carried unanimously. But here the body is indefinite; and it is expressly sworn, that if any one of the council had made any objection to any of the names proposed, it would have been instantly withdrawn. The mode of election, therefore, is substantially the same as if the question had been put separately upon each freeman; for the question put was, "Whether any one of the council had any objection to them, or either of them?" The principle upon which these elections have been held bad is this, that by putting up a list of names, the individuals of the corporation have not an opportunity of fairly judging of the merits of each freeman; but the special circumstances stated in the affidavits take this case out of that rule.

Per Curiam. This mode of electing freemen by putting up a list of names, upon the whole of which the members of the corporation are called upon to give one