Thus, where a sheriff returned A. B. as guilty of a rescue, an attachment of course issued against A. B. on the return, and he was imprisoned, and subsequently fined in the Queen's Bench without being allowed to traverse the return (h). But the rule was that a return was only conclusive in the cause in which it was made, and not in actions or proceedings to which the sheriff was not a party (i). Thus, a return that A. B. was guilty of a rescue, might be traversed in a subsequent indictment against A. B. for the offence ().

And it appears that now a sheriff's return is not necessarily conclusive against him, except in the case abovementioned, either in actions brought by the sheriff (1), or against him (m), although they arise out of the execution on which the return was made.

The award of an arbitrator is conclusive between the parties for certain purposes, but does not create any merger of the original cause of action (n). And, although the award of an arbitrator on a matter of title referred to him, is conclusive evidence as to the title in a subse

Flud v. Pennington, 2 Cro. Eliz. 872; Harrington v. Taylor, 15 East, 378; Whitrong v. Blaney, 2 Mod. 11; 2 Inst. 452. See contra Com. Dig. Retorn (G), p. 290; 2 Ro. Ab. Return, p. 462.

(h) R. v. Ekins, 4 Burr. 2129. (i) Jackson v. Hill, 10 A. & E. 477.

(k) Gyford v. Woodgate, 11 East, 297.

(1) Standish v. Ross, 3 Ex. 527. (m) Brydges v. Walford, 6 M.

& S. 42. And actual damage must be shown; Stimson v. Farnham, L. R. 7 Q. B. 175.

(n) Allen v. Milner, 2 C. & J. 47; Gascoyne v. Edwards, 1 Y. & J. 19; Parkes v. Smith, 19 L. J. Q. B. 405. So, too, an action might be brought on a reference at nisi prius, afterwards made a rule of court, if the rule was made with the consent of the parties, Tremenhere v. Tresillian, 1 Siderfin, 452.

quent action of ejectment between the parties (o), it is not as a rule conclusive generally as to title or property. Thus, property does not pass by the mere force of an award, so as to prevent an action of trover being maintainable for its recovery subsequent to the award (p). And where a bill in chancery was filed by A. against B. for infringement of a patent, and the matter being referred to arbitration, the arbitrator, after hearing the arguments, awarded that the letters patent which had been granted for the invention were not illegal or void, it was held that in subsequent proceedings by A. against B. for another infringement of the same patent, B. was not estopped by the award from pleading, inter alia, that the invention was not one for which letters patent could be legally granted (q).

The award, however, by an arbitrator, of a money claim, is conclusive as to the amount awarded, and, therefore, precludes the party to whom the sum is awarded, from bringing a subsequent action for a larger amount than the sum awarded (r). Thus where A.

and B. submitted the amount of damages accruing from a breach of covenant between them to an arbitrator, it was held that in an action on the covenant, the arbitrator's award was conclusive as to the amount of damages, unless the award itself could be impeached (s). And it may be stated generally, that in all

(o) Doe d. Morris v. Rosser, 3 East, 15.

(p) Hunter v. Rice, 15 East, 100; Thorpe v. Eyre, 1 A. & E. 926.

(9) Newall v. Elliot, 32 L. J. Ex. 120.

(r) Per Lush, J., in Commings v. Heard, L. R. 4 Q. B. 669; Gascoyne v. Edwards, 1 Y. & J. 19; Parkes v. Smith, 19 L. J. Q. B. 405.

૨.

(s) Whitehead v. Tattersall, 1

actions where damages only are to be recovered, arbitrament, or accord with satisfaction, is a good plea (†).

As an award creates no merger of the original cause of action, the mere fact that the award was made upon a reference of all matters in difference between the parties, does not preclude the plaintiff from suing upon a cause of action subsisting against the defendant at the time of the reference, upon proof that the subject-matter of the action was not laid before the arbitrator, nor included in the matters referred (u). But where all matters in difference were referred to arbitration, and the subject in question was a matter of difference at the time, and within the scope of the reference, and the defendant might have brought the whole under the consideration of the arbitrator, but kept part of it back, he was precluded from using the amount kept back as a set-off, and from claiming a deduction in respect thereof in proceedings of attachment against him for non-payment of the sum awarded (x).

As regards the effect of the judgments or decisions of courts of inferior or limited jurisdiction, it may be observed in the first place, that the proceedings of a court of inferior jurisdiction must show, upon the face of them, that the court had jurisdiction in the matter which

Ad. & E. 491. See further as to awards, Com. Dig. Tit. Arbitrament, vol. i., p. 208; Crofts v. Harris, Carth. 187.

(t) Blake's Case, Co. Rep. vol. iii. 342; Morris v. Creach, 1 Levinz, 292. As to a conditional award, see Crofts v. Harris, Carth. 187.

(u) Ravee v. Farmer, 4 T. R.146; and Golightly v. Jellicoe, note ibid.

(x) Smith v. Johnson, 15 East, 213; Dunn v. Murray, 9 B. & C. 780. As to the conclusiveness of the finding on a reference, see Ex parte Harper, re Bremner, L. R. 10 Ch. App. 379.

it professed to decide, or they are altogether void,(y) unless, in the course of such proceedings, there has been a waiver by the opposite party of any objection to the jurisdiction (2).

The light in which judgments of courts of limited jurisdiction are regarded by the High Court, is well explained by Lord Brougham, in his judgment in Taylor v. Clemson (a). He says: "Now it cannot be doubted, that where a court of limited jurisdiction, limited either in point of place or of subject-matter, assumes to proceed, its judgment must set forth such facts as show that it has jurisdiction, and must show also in what respect it has jurisdiction. But it is another thing to contend that it must set forth all the facts or all the particulars out of which its jurisdiction arises. Thus, if a power of commitment, or other power, is given to two justices of a county, their conviction or their order must set forth that they are two such justices of such county, in order that it may be certainly known whether or not they constitute the tribunal upon which the statute they assume to act under has conferred the authority to make that order, or to pronounce that conviction." And again, later on in his judgment, he says: "It is necessary that the jurisdiction should appear, but there is no particular form in which it must be made to appear. The Court above, which has to examine, and may control, the inferior Court, must be enabled, somehow or other, to see that there is jurisdiction, such

(y) Per Tindal, C. J., in Taylor v. Clemson, 2 Q. B. at p. 1031. (z) Taylor v. Clemson, 11 Cl. &

Fin. at p. 644.

(a) 11 Cl. & Fin. at p. 640.

jurisdiction as will support the proceeding: but in what way it shall so see is not material, provided that it does so see" (b).

And in an important case (c), in which the jurisdiction of the Mayor's Court (d) was in question, the judges said: "The rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior Court but that which specially appears to be so; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior Court but that which is expressly so alleged. Another distinction is that whereas the judgment of a superior Court, unreversed, is conclusive as to all relevant matters thereby decided, the judgment of an inferior Court, involving a question of jurisdiction, is not final. If the decision be for the defendant, there is nothing to estop the plaintiff from suing over again in a superior Court, and insisting that the decision below had turned, or might have turned, upon jurisdiction. If the decision were in favour of the

(b) 11 Cl. & Fin. at p. 641; see also the cases referred to by Ld. Cottenham in his judgment, at pp. 647, et seq.

(e) Mayor, &c., of London v. Cox, L. R. 2 H. L. 239. And see the opinions of the judges at p. 259, citing Peacock v. Bell, 1 Wm. Saund. pp. 97, et seq. But even courts of general jurisdiction may exceed their jurisdiction, and in such case their decrees, &c., will be null and void see the judgment of James, L. J., in Robinson

v. Duleep Singh, L. R. 11 Ch. D. at p. 813.

(d) From the above case it appears that the Mayor's Court is a local and inferior court, subject to the jurisdiction of the High Court. See, however, as to appeals from the Mayor's Court, Le Blanch v. Reuter's Telegraph Co., L. R. 1 Ex. D. (C.A.) 408; Appleford v. Judkins, L. R. 3 C. P. D. (C.A.) 489; Pryor v. City Offices Co., L. R. 10 Q. B. D. (C.A.) 504.