See ACKNOWLEDGMENT OF MARRIED 1. Where a plaintiff has made too many persons defendants, the Court will, previous to trial, allow the name of one to be struck out of the proceedings, subsequent to the writ, on payment of costs, the remaining defendant being allowed to plead de novo. Palmer v. Beale and Another, 529 2. After an insufficient levy, under a fi. fa., in Yorkshire, where the venue in the action was laid, the plaintiff, on the 6th of July, issued a ca. sa. reciting the fi. fa. and return, into Middlesex, for the residue. On the 31st of August, and before the Middlesex writ was executed, he issued a ca. sa. for the residue into Yorkshire, under which the defendant was taken and discharged, in September, on the ground of privilege. In January following, the defendant was taken under the writ into Middlesex. Held, on motion to discharge him out of custody, that the writ into Middlesex ought to have been a testatum ca. sa. founded on a ca. sa. into Yorkshire, and was irregular, and that the Court could not amend it by the ca. sa. into Yorkshire, which bore a later date. Towers v. Newton, 576 3. In a declaration in ejectment to recover possession of premises, by reason of a forfeiture, the day of the demise was stated to be the 15th of January. At the trial, it appeared that this was a date antecedent to the day on which the right of entry accrued. Held, that this was a case in which the learned judge was authorized under the 3 & 4 Win. 4, c. 42, s. 23, to amend the record by altering the day of the demise, and that the power of amendment was not affected by the applicability of the consent rule, to confess lease, entry, and ouster, to the declaration as it originally stood, but that the terms of that rule would apply themselves to the declaration as soon as the amendment was made. Doe d. Edwards v. Leach, 877 APPEAL (TO QUARTER SESSIONS.) See CERTIORARI, 2. NOTICE TO PRODUCE. Where a parish gives notice of appeal under the 4 & 5 Wm. 4, c. 76, s. 79, against an order of removal, within twenty-one days after service of the order of removal, but does not prosecute the appeal at the next practicable sessions, and the respondent parish does not remove the pauper for a considerable time afterwards, the appellants may give fresh notice of appeal, pursuant to 13 & 14 Car. 2, c. 12, s. 2, when the pauper is actually removed. Regina v. The Justices of Middlesex, 163 APPEAL (HEARING). Where a notice of appeal described the order of removal as made by R. H. Cundy, and another magistrate, instead of B. Cundy, there being two magistrates in the county, whose re zzz 2 See DEPOSIT (IN LIEU OF BAIL), 5. 1. Where a cause in the Exchequer has been referred by a judge's order, and it is part of the order that it shall be made a rule of the Queen's Bench, there is no objection to its being so made. Milstead v. Craufield, 124 2. By an agreement of reference to arbitrators, with power to appoint an umpire, it was covenanted that the umpire should make his award two calendar months after his appointment. He was appointed on the 29th of June, and afterwards the time for making his award was enlarged by consent for three months further. The Court held that the 29th of June was to be excluded from the calculation of time, and, therefore, that the award being made on the 29th of November, was made in due time. In the matter of Arbitration between Higham and Jessop, 203 3. The 3 & 4 Wm. 4, c. 42, s. 39, is not confined to cases in which either party has attempted to revoke a submission to arbitration, therefore, where two causes were referred to an arbitrator, so that he should make his award on a particular day, or on such ulterior day as he should appoint, and the arbitrator allowed the time limited for making his award to expire: Held, that the Court had power, under the above act, to enlarge the time. Newman v. Parbury. Parbury v. New 6. An action of trespass was referred by order of nisi prius. The defendant pleaded, first, not guilty, and secondly, a justification. The arbitrator awarded "that as the defendant has not proved his plea, the verdict for the plaintiff ought to stand," and then stated a number of reasons for his opinion, which could not be considered as satisfactory. The Court held the adjudication sufficient, and declined to consider the sufficiency of the reasons assigned by the arbitrator. Archer v. Owen, 341 7. Where an arbitrator awards damages for an injury caused by the defendant to the plaintiff's property, by acts done in the adjacent property of the former, and then having power to direct the mode of enjoying the property for the future, he awards that the parties shall respectively enjoy it as heretofore, the award is not final, and, therefore, bad. Ross v. Clifton, 356 8. The Court will not allow cause to be shewn against a rule for setting aside an award on the last day of Term. Bignold v. Gale, 393 9. A cause and all matters in dispute were referred to the decision of two merchants and a legal arbitrator; the arbitrators met, and two of them agreed, upon the merits, to find in favour of the plaintiff, but the lay arbitrators agreed to leave a point of law which had arisen, to the decision of the barrister. The legal arbitrator decided that point in favour of the plaintiffs, and executed the award at Birmingham, in accordance with his own views on the next day, the award was executed in London by one of the lay arbitrators also in favour of the plaintiffs: Held, that the award was bad as being a decision by one arbitrator, pursuant to a power delegated to him by the other arbitrators, they having no authority so to delegate. Little and Others v. Newton, 437 10. A clause in a partnership deed, authorizing a reference in case of disputes between the partners, and the making the "award" of the arbitrator, instead of the "submission" a rule of Court, if it does not appear that "award" was used by mistake for " submission," is not within the meaning of the 8 & 9 Wm. 3, c. 15, s. 1, and, therefore, a judge has no power to order witnesses to attend an arbitrator acting in such a matter. In the Matter of Arbitration between Woodcroft and Jones, 66 538 11. Where there did not appear to have been any misconduct on the part of the parties or arbitrators, the Court refused to direct a submission to arbitration to be revoked, Ib. 12. In order to justify an arbitrator proceeding ex parte, a very strong case must be shewn of wilful delay by the party not attending; and, therefore, if a reasonable excuse for his not attending is shewn, the Court will set aside an award made pursuant to such a proceeding. Gladwin v. Chilcote, 550 13. The Court will not, on disposing of a rule for setting aside an award on that ground, decide the question whether the party against whom the award is made, shall pay the costs arising from his delay; but a separate motion for that purpose must be made, Ib. 14. An arbitrator to whom a cause in which several issues were joined, was referred, the costs to abide the event, disposed of each issue, and then, although no power for that purpose was given to him, awarded a stet processus: Held, that although this was an excess of authority, the award was only bad as to that part, and good as to the rest, and the parties might proIceed to tax their costs on it. Ward v. Hall, 610 15. The defendant moved to set aside an award which had been made by two arbitrators against him, upon the grounds that the arbitrators had improperly received evidence in the absence of the defendant, and had also been guilty of improper conduct in holding meetings, and conferring with the plaintiff's attorney, with respect to the matters in difference, in his absence. It appeared that the defendant was aware of the existence of these grounds of objection, many days before the award was made, but that he made no objection before the arbitrators, and also that he had had notice of the meetings, at which the evidence was received, and had been summoned to produce books at them, but that he had omitted to attend: Held, that although it would have been more regular for the arbitrators to send notice of the result of the examinations, to the defendant, yet that the Court would not, under the circumstances, set aside the award for such irregularities as were disclosed. Gale, Bignall v. 631 16. A cause, and all matters in dispute at the time of an order of reference were submitted to the decision of an arbitrator, by the order of a judge: The arbitrator awarded, that the defendant should pay to the plaintiff the sum of 184l., for a balance and interest found to be due at the date of the order of reference, "excluding from such an account, a claim on the part of the plaintiffs, for a loss alleged to have been sustained by them to the amount of 321. 19s. on certain varnished hats ;" and as to the said claim, in respect of the said varnished hats, he found "that no sufficient evidence had been laid before him by the plaintiffs to shew, that at the date of the said order of reference, they had sustained any loss on the said hats, and upon that ground, and for want of sufficient evidence of such loss, he awarded that the plaintiff's were not entitled under the reference to recover anything in respect thereof:" Held, a final adjudication of the matters submitted to reference. Cockburn and Another v. Newton, 676 17. By an order of reference, the costs of the cause were ordered to abide the event of the award; the arbitrator decided the suit in favour of the defendant, and ordered the plaintiff, on a certain day, to pay him those costs: Held, no objection to the award, for that the defendant was not deprived of any right which he possessed to recover the costs at an earlier date, lb. 18. An action of trespass was referred to arbitration, and by the order of reference, the arbitrator was to have the same power to certify as a judge at nisi prius. The arbitrator found for the plaintiff, with 1s. damages, and certified in his award, under the 3 & 4 Vict. c. 24, that the action was brought to try a right besides the mere right to recover damage. Held, that the certificate was valid, and that it need not be indorsed on the back of the record. Held, also, that in such case, the certificate must be given at the time of making the award. Spain v. Cadell. Same v. Same, 745 19. Testator, by his will, devised an annuity, or yearly rent-charge of 201. to Sarah, the wife of Julius Wynne " so long as her conduct and behaviour should be discreet, and meet with the approbation of his (the testator's) wife, or which, in case of her death, should be approved of by the survivor or survivors of his trustees;" In an action of replevin, in respect of a distress made for arrears of the annuity, the plaintiff pleaded to the avowry that the conduct of Sarah was not discreet, and that the same was not approved of by the survivor of the trustees of the testator. Issue. At the trial, a verdict was taken for the plaintiff, subject to the award of an arbitrator, to whom "the whole of the said cause, and all matters relating to the annuity in the said cause in question" were referred. At a meeting held by the arbitrator, the defendants offered in evidence, a certificate of two trustees, one of whom was since dead, that the conduct of Sarah had been approved of; the arbitrator rejected the evidence, and stated that the issue was not proved; at a subsequent meeting, evidence was given of the payment on the annuity for a series of years, and the arbitrator eventually made his award for the defendants. Upon an application, by the plaintiff, to set aside the award, on the ground that he had been misled by the declaration of the arbitrator, that the issue was not proved, the Court refused to grant the motion, there being no statement made, that the plaintiff would have called the surviving trustee to nega tive the allegation of approbation of the defendant's conduct, and it being consistent with the facts proved that the arbitrator might have drawn his conclusion from them, without reference to any evidence of approval of the defendants' conduct. By his award, the arbitrator directed the payment of two sums, namely, 50%., in respect of arrears, due before the commencement of the action, and 40%. in respect of the amount which had since accrued due : Held, that the award was good, the terms of the order, referring "the whole of the said cause, and all matters relating to the annuity in the said cause in question," including not only the subject matter of the action, but all matters relating to the annuity in question in the cause. The sums awarded to the defendants, who were husband and wife, were directed to be paid to the wife Sarah. Upon a former application to the Court, to which the plaintiff was made a party, that the husband of Sarah might appear by a separate attorney to represent his separate interests, the motion had been refused upon an indemnity being given to the husband: Held, that the award was not bad, by reason of the payments being ordered to be made to the wife. Wynne v. Wynne and Wife, 901 20. Affidavits used in answer to an application to set aside an award made pursuant to a submission to arbitration by deed, must be stamped, notwithstanding the 5 Geo. 4, c. 41, which repeals the 54 Geo. 3, c. 184, as to stamps on legal proceedings in general. In the matter of Arbitration between Templeman and Reed, 962 21. A cause, and all matters in difference, were referred to the award of two named persons, and such third person as they should appoint, or of a majority of them. A difference having arisen between the originally named arbitrators, a statement was made by each to the third as to what he thought the award should be. An award having been made by an umpire and one of the arbitrators, without any further meeting, the Court set aside the award, 16. 22. An arbitrator on a reference with respect to the right to a certain house and premises, directed certain conveyances to be executed by one party to the other, and awarded, that in case of any dispute arising with respect to the form of those conveyances, those disputes should be settled by such counsel or solicitor as he should appoint. The Court set aside the award, on the ground that the arbitrator, by reserving a future power to himself to delegate the authority to determine disputes between the parties was an excess of authority, and, therefore, set aside the award, as this direction could not be separated from the rest of the award. In the matter of Arbitration between Tandy and Tandy, 1044 23. Where a cause in which several issues are raised on the pleadings is referred, the arbitrator is bound to find expressly on each, although he is not requested to do so by the parties. Therefore, where to a declaration, a defendant pleaded several pleas, and the arbitrator was not requested to find specifically on each, and he awarded merely that the plaintiff had no cause of action, and directed a verdict to be entered for the defendant, the award was held to be bad. England v. Davison, 1052 ARBITRATOR, (POWER OF.) See ARBITRATION, 9, 11. ARGUMENTATIVE TRAVERSE. See PLEA, 10. REPLICATION, 10. |