of the arbitration, and a verdict was to be entered for such sum only, if any, as should be found to be due. The arbitrators awarded 70l. to be due: Held, that the plaintiff could not, on this award, recover either the 70l. or the 30l. For the arbitrators had no power to award more than 30l. and it is probable they might not have awarded even 30l. had they not taken something into their consideration which they ought not to have done. Semble. If the arbitrators had awarded the 30l., distinctly, according to their authority, and added an adjudication that 40l. more was still due, the court might have held the award good in part.-Q. Whether the court, upon motion, will permit the plaintiff to have execu tion for 30l. costs ?

ASSUMPSIT for 701. upon an award made under an order of nisi prius, and afterwards made a rule of court, together with 731. for the costs in the cause. This case was tried, last summer assizes at Newcastle, before Mr. Baron THOMPSON, and there was a verdict for the plaintiff for 1431. subject to the opinion of the court, on a case which stated in substance as follows:-That by an order of reference made at nisi prius, it was ordered "that there should be a verdict for the plaintiff, 301. damages and 40s. costs, subject to the award of three persons, to whom all matters in difference were referred; and that the costs of the cause should abide the event of the award, and the costs of the arbitration be in the discretion of the arbitrators, who might direct by, and to whom, and in what manner the same should be paid; and that a verdict should be entered for such sum only, if any thing, as the said arbitrators should find to be due. The arbitrators afterwards and in due time made their award, and adjudged that there was due from the defendant 701. and awarded the defendant to pay the same, and that the costs of the award should be borne equally; and that the defendant should pay 51. 5s. to the plaintiff, being a moiety of the same costs, and that the plaintiff should pay the costs, of the arbitration. The costs of the cause were taxed at 781. The defendant paid 51. 5s. into court, which the counsel for the plaintiff contended was an adımission of the order of nisi prius, and the award; but there was

1804.

BONNER

versus

CHARLTON.

1

1804.

BONNER

versus

CHARLTON,

not any other proof of any promise by the defendant to pay the 701. The question for the opinion of the court wasWhether the plaintiff was entitled to recover any, and what sum ?

The case being opened, Lord ELLEN BOROUGH, C.J. said "The party has a right only to have the damages liquidated by the award as to the Sal. The arbitrators notwithstanding make it 701. and award costs: this is an excess of their authority. The award is bad, and it can never be supposed that the payment of 51. into court can give them a power over the 701."

RICHARDSON, for the plaintiff. "Admitting that the arbitrators have exceeded their authority in giving the award for 701. yet still the plaintiff must be entitled to his 301."

Lord ELLENBOROUGH, C. J. "If they were distinct things, and you could sever them, I would hold it to be good; but have you any case to shew that we can do so where they are not distinct? if they had awarded 301. and then 701. ultrà provided we the arbitrators have authority,' I might have held the award good."

RICHARDSON then contended that this award was, in effect, the same thing.

Lord ELLEN BOROUGH, C. J. " Suppose the damages in an action are laid at 2001. and the jury find a verdict for 300l. would not that be error; and could the court of error cut it down to 2001. ?

RICHARDSON was desirous that the case might stand over, and pressed the court with the hardship upon the parties.

Lord ELLENBOROUGH, C. J. "The arbitrators had a limited jurisdiction to assess the damages as to 301. only, and they could not exceed it.

3

This limitation to their

We

1804.

versus

authority is like the case of damages laid in a declaration which are the extreme of what the jury can give, and if BONNER they exceed that amount in their verdict, and the party CHARLTON. does not remit it, the court cannot cut it down. have nothing here to give us information as to the proper sum due, and we cannot take upon us to direct or controul the arbitrators now. They might say that unless they applied certain principles which induced them to give 701. they should have said that not even 301. ought to have been awarded. And we can now only say, that the arbitrators having exceeded their authority, we cannot make an award for them."

GROSE, J. mentioned that an application was made in this very cause to sue out execution for the 701. which was refused. [See Law Journal, vol. i. p. 343]

LAWRENCE, J. "If this had been an award divisible into two parts, we might have said it was good for the one and bad for the other. At present I do not know that the arbitrators did not take some matters into consideration which they had no power over at all, and that if they had not done so, they might not have said that the 301. is not due. If there had been a motion on the ground that the arbitrators by mistake had awarded 701. when they had only power over the 301. we might probably have helped the plaintiff. But the former application was not upon that ground, but was such that the court was obliged to refuse it, because they had not power to grant it."

LE BLANC, J. "No action could be sustained upon this award. There is no assumpsit implied, on the part of the defendant, beyond the 301. For he consents only to a verdict for that sum, to be moulded by the arbitrator; therefore, on that ground alone, the action could not be sustained.*

JUDGMENT FOR THE DEFENDANT.

• The court seemed to blame the plaintiff for bringing an action after failing in the former application; and HALL, amicus curia,

BOLTON versus GLADSTONE.-May 9.

A sentence of a foreign court, after reciting that having seen the verbal process of the capture of the ship, carrying Danish colours, and having examined the papers, and considering that the ship's built was not known, and that the transfer thereof to a neutral subject was made since the war, and that the mate and three officers were naturalized subjects, only since the war, decreed the vessel to be good prize according to the ordinances of 1744, which require some document to be produced of the transfer of a ship, being enemy's built, before the war, and that the owners or masters shall be naturalized subjects of a neutral power before the war, aud direct that all foreign vessels shall be good prize when the merchant, supercargo, clerk, or marine officer on board, shall be an enemy's subject: Held, this is conclusive, that the ship is not neutral under a warranty that the ship is Danish.

ACTION upon a policy of insurance on the ship Orholme and cargo, warranted Danish, at and from the island of St. Thomas to the coast of Africa, and from thence to Surinam, &c. ; averring interest in James Hazzel & Co. who, during the time of the insurance and loss, were and still are Danish subjects, and that the ship and cargo were Danish; loss by capture. Plea, the general issue. At the trial at Guildhall a special verdict was found. The case turned upon the warranty of neutrality, and the effect of a foreign sentence, as to which the facts were found in substance as follows:

stated that when he moved on a former occasion, he understood the court to say that the parties should be left to proceed on their award. But in the report of it in this work it is not so stated.

Afterwards, in the Trinity Term, June 14, PARKE, for the plaintiff, moved that the plaintiff might be permitted to take out execution for 301. and the costs of the cause, and produced an affidavit of the arbitrators, stating that they took into consideration nothing but what was litigated in the original cause, and that they thought the plaintiff had sustained damage to more than 301.; a rule to shew cause was therefore granted.

The ship Orholme, during all the time, was a Danish ship, and the property of the said J. H. &c. as was also the cargo, and the said J. H. &c. were, during all the time aforesaid, subjects of the king of Denmark, residing and domiciliated at the Danish island of St. Thomas, and interested therein to the amount insured. The ship, during the whole time of her voyage and until the capture, had on board, together with all other papers and documents usually carried by Danish ships, to shew that she was a Danish ship, a Latin pass, a Mediterranean pass, a bill of sale, a muster-roll, a measure brief, a certificate of property, and every other document generally carried by Danish ships. The first and second mate and other of ficers and crew were Danes and Swedes, except one man, who was the only subject of a nation hostile to France. It then stated the capture by the French, and her subsequent condemnation at the French island of Senegal. The material part of the sentence was as follows:-" Having seen the verbal process of the capture of the said ship Orholme, carrying Danish colours, &c. having examined and compared all the instruments and papers relating to the said ship, particularly two muster-rolls, the one in the Danish language, the other in the English language, and the bill of sale of the said ship, dated 24th of May, 1796, signed J. H. J. Plewsher; considering that the vessel, of what built unknown, was sold to a subject of a neutral power only since the declaration of the present war; that the bill of sale makes no mention of her place of built, or of her original owner; that the mate and the third officer were naturalized Danes only since the present war; and the greater part of the white men of the crew are subjects of hostile powers; I decree the said vessel, the Oxholme, to be good and lawful prize, conformably to the 10th, 11th, and 12th articles of the regulations concerning prizes of the 21st of October, 1744, which are thus worded: "Every vessel of enemy's built, or which shall have been owned by an enemy, shall not be deemed to be neutral or belonging to an ally, if there be not found on board some authentic instruments certified by public officers who may

1804.

BOLTON

versus

GLADSTONE.