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in not obeying an award; the alleged disobedience being, the not paying the money to one to whom the arbitrator has not awarded it. It is an application which the court ought not for a moment to listen to.

TALFOURD, J. I am entirely of the same opinion. The court clearly has no power to do what is asked. The 93rd rule of Hilary term, 2 W. 4., which it is sought to apply here, was made for the purpose of regulating the discretionary power of the court under circumstances widely different from those of the present case.

Rule discharged, with costs.

1850.

DUNN

17.

WEST.

JONES v. IVES.

Nov. 12.

and all

matters in

THE
HE cause and all matters in difference between the A cause
parties were referred by an order of nisi prius,
made in Easter term last, the costs of the cause to
abide the event, and the costs of the reference and
award to be in the discretion of the arbitrator.

The arbitrator made his award on the 13th of June last, by which he ordered that the verdict entered for the plaintiff should stand, and that the defendant should pay to the plaintiff the costs of the reference and award: and he further found that there were no matters in difference between the parties other than the action.

difference between the parties were referred by an order of nisi prius, by which a verdict was taken for the plaintiff, subject to

an award,

The master having refused to grant his allocatur for the costs of

the cause to

abide the event, and the costs of the reference and award to be in the discretion of the arbitrator. The arbitrator by his award ordered that the verdict entered for the plaintiff should stand, and directed that the defendant should pay to the plaintiff the costs of the reference and award : Held, that the plaintiff was not entitled to have an allocatur for the costs, or to sign judgment, until the expiration of the proper time for moving to set aside the award.

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the plaintiff's costs, on the ground that the defendant had the whole of the present term in which to move to set aside the award,

T. Jones now moved for a rule to shew cause why the plaintiff should not be at liberty to sign judgment forthwith, and why the master should not make his allocatur. [Jervis, C. J. I think the master is right. Where the reference is of the cause only, the unsuccessful party has only the first four days of the ensuing term to move to set aside the award: but, where the reference is also of matters in difference, he has the whole term to move in.] Assuming that the defendant has the whole term to move in, it by no means follows that the plaintiff may not sign judgment. In Cromer v. Church (a), a verdict was taken, by consent, for the plaintiff, at nisi prius, subject to the certificate of a barrister, to be given in the following Michaelmas term, with power to him to enlarge the time for making it: the arbitrator enlarged the time till the following Easter term; and in the month of March gave his certificate, directing that the verdict should stand for a smaller amount and it was held that final judgment might be signed immediately on the entry of this verdict upon the postea, and that the plaintiff was not bound to wait until after the expiration of the first four days of Easter term. Pollock, C. B., there says: "The verdict is to be considered as having been given at nisi prius: what has since been done relates back to that time; and the certificate was a mere completion of the verdict really delivered at nisi prius." [Maule, J. That was the case of a certificate, which in this respect differs materially from an award.] In Little v. Newton (b), it was held,

(a) 15 M. & W. 310.

(b) 1 M. & G. 976., 2 Scott, N. R. 159.

that, where, upon a reference of a cause and all matters in difference, by articles of agreement, an award is made, under which the costs of the cause and of the award are to be paid by the defendant, the plaintiff is entitled to have the costs taxed, without waiting for the period during which the defendant would be at liberty to move to set the award aside. [Jervis, C. J. The case of Hobdell v. Miller (a) is more like this: there, the court intimated an opinion that what you now seek cannot be done; Maule, J., asking,—“How can the plaintiff have costs taxed, before it is certain that he can sustain the award?"] That is answered by Little v. Newton. [Maule, J. The distinction between the two cases is pointed out by the solicitor-general in Little v. Newton.

JERVIS, C. J. The two cases of Hobdell v. Miller and Little v. Newton are perfectly reconcilable with each other, and both are correct. In the former, as was observed by the solicitor-general in moving for the rule in Little v. Newton, the reference was by order of nisi prius, with a nominal verdict entered for the plaintiff': whereas, in the latter, the reference was by agreement between the parties. That makes all the difference. There is consequently no ground for this application.

The rest of the court concurring,

Rule refused.

(a) 2 Scott, N. R. 163. See 1 M. & G. 978 (b).

1850.

JONES

v.

IVES.

1850.

MUNDAY V. STUBBS.

Nov. 16.

A messenger THIS was an action of trespass, for breaking and

in bankruptcy, who, intending to act bonâ fide, under a warrant directing him to seize

the goods of A., seizes goods belonging to B., is

not within the

protection of

the 12 & 13 Vict.

c. 106. s. 107., and therefore is liable in trespass at the suit of B., without a previous demand of the perusal and copy of the

entering two dwelling-houses of the plaintiff, expelling him therefrom, and seizing and carrying away his goods.

Plea, not guilty "by statute."

The cause was tried before Wilde, C. J., at the sittings for Middlesex after last Trinity term. The facts were as follows:- One Bartlett, being indebted to the plaintiff, on the 22nd of October, 1849, made over to him all his goods on premises whereon Bartlett had

carried on his business. Bartlett afterwards became bankrupt. The plaintiff continued the business on his own account, upon the same premises, down to the 19th of November, when the shop was closed. On the 27th of November, the defendant, a messenger of the court of bankruptcy, entered the premises, and seized the goods, which remained thereon, acting bonâ fide under a warrant of a commissioner, which, after reciting that warrant under property of the bankrupt was reasonably suspected to be upon the premises in question, proceeded as follows, "These are, therefore, to authorise and require you, with necessary and proper assistants, to enter, in the day time, into, &c., situate, &c., and there diligently to search for the said property; and, if any property of the said bankrupt shall be found by you on such search, that you seize the same, to be disposed and dealt with according to the provisions of the said act," -12 & 13 Vict. c. 106.

which he pro

fessed to be, and believed

he was, acting.

On the part of the defendant, it was submitted, that inasmuch as it was not disputed that what was done

by him was done bonâ fide in obedience to the warrant of the commissioner, and there had been no demand. of the perusal and copy of the warrant, the defendant was within the protection of the 107th section of the statute 12 & 13 Vict. c. 106., which enacts "that no action shall be brought against any messenger, or his assistants, or other person appointed by the court, for anything done in obedience to any warrant of the court, unless demand of the perusal and copy of such warrant hath been made or left at the usual place of abode of such messenger, or his assistant, or other person, by the party intending to bring such action, or by his attorney or agent, in writing, signed by the party demanding the same, and unless the same hath been refused or neglected for six days after such demand; and if, after such demand, and compliance therewith, any action be brought against such messenger, or assistant, or person so appointed, without making the petitioning-creditor defendant, if living, the jury, at the trial of such action, on the production and proof of such warrant, shall give their verdict for the defendant, notwithstanding any defect of jurisdiction in the court by which such warrant shall have been granted; and, if such action be brought against the petitioningcreditor and the messenger, or assistant, or person so appointed, the jury shall, on proof of such warrant, give their verdict for such messenger, or assistant, or person so appointed, notwithstanding any such defect of jurisdiction; and, if the verdict shall be given against the petitioning-creditor, the plaintiff shall recover his costs against him, to be taxed so as to include such costs as the plaintiff is liable to pay to the messenger, and his assistant, or person so appointed as aforesaid.”

Under the direction of the lord chief justice, the jury found for the plaintiff, in respect of the seizure of the goods only, the subsequent sale of them having taken

VOL. X.

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1850.

MUNDAY

บ.

STUBBS.

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