Volume XIV. 1849. Tuesday, December 18th. The QUEEN against the Inhabitants of the Reported, 12 Q. B. 98. Tuesday, KEENE against WARD. Reported, 13 Q. B. 515. Tuesday, DOE, on the several demises of The QUEEN and Vigers against The Dean and Chapter of St. Paul's, decided in this vacation, will be found at the end of the volume. END OF MICHAELMAS VACATION. CASES ARGUED AND DETERMINED IN THE QUEEN'S BENCH, IN HILARY TERM AND VACATION, XIII. VICTORIA. The Judges who usually sat in Banc in this Term Lord DENMAN C. J. was absent during the whole Term and Vacation, on account of ill health. Queen's Bench. 1850. The QUEEN against JAMES JOSIAH HARDEY. In the Matter of the Arbitration in The QUEEN against HARDEY, in MIDDLESEX, and The QUEEN against HARDEY, in LONDON. HURLSTONE, in last Michaelmas term, obtained a rule calling upon the above named defendant to shew cause why an attachment should not issue against Friday, January 11th. Two indictperjury, an ments, one for other for con spiracy, were removed into this Court by certiorari. The indictment for perjury came on for trial at Nisi prius, when, under the advice of counsel, it was agreed that no evidence should be tendered, a verdict of Not guilty taken on both indictments, and that all matters in difference between the prosecutor and defendant should be referred to a barrister; the costs of the indictments, 1850. The QUEEN V. HARDEY. Volume XIV. him for his contempt in prosecuting a suit in equity in respect of certain matters relating to the said arbitration; and for his contempt in revoking the authority of the arbitrator to proceed in the said arbitration or why the said defendant should not pay to the prosecutor John Hovell Triston the costs of and occasioned by the said arbitration, or such costs as this Court should think reasonable: or why the verdict of Not Guilty entered on the indictments after made a rule of mentioned should not be respectively set aside and writs of procedendo issue. reference and form, was after wards drawn up, and was court. After several meetings, the defendant re voked his sub mission, and took steps in a Chancery suit, which was one of the matters in difference so referred. On motion to attach him for contempt, or verdict on the The rule was obtained on reading the after mentioned rule of Court, and on an affidavit (by Triston and his clerk) which stated the following, among other, facts. Messrs. John Hovell Triston and Sebastian Crespel Hardey carried on business in London as solicitors, in partnership. In 1843 they dissolved the partnership, and appointed a trustee, Edward Taylor Dartnell, to to set aside the wind up the affairs. In January 1847 Hardey died: and, in the same month, his brother, James Josiah Hardey, claimed certain balances as due to him upon accounts stated between him and the firm, and filed a bill in Chancery against Triston and Dartnell for but that the in an account of the sums due to him, J. J. Hardey, dictments were from the firm, and for an injunction to restrain not referred, Triston and Dartnell from receiving certain moneys then due from Sir Matthew Barrington, or any other indictments: Held, that it would have been illegal to refer an indict ment for per jury, or, semble, for conspiracy; and the verdicts of acquittal, given on the ground that no evidence was produced, must at all events stand; and there was nothing illegal in referring all matters in difference and at the same time consenting to a verdict of acquittal, unless there was a corrupt agreement to stifle a prosecution, which in the present case did not appear to be the fact. debts or sums due to, or other the effects of, the said Held, also, that the arbitrator could not be considered as appointed by an order or rule made in an action, within the first branch of stat, 3 & 4 W. 4. c. 42. s. 39., and it was doubtful whether the order of Nisi prius could be treated as an agreement within the second branch. Quare, also, whether the order of Nisi prius was good, there being at the time it was made no cause before the Court. The Court, under the circumstances, discharged the rule without costs. 1850. The QUEEN V. HARDEY. firm; and from negotiating certain bills &c.: also Queen's Bench. that the sum due from Sir M. B. might be paid to J. J. Hardey, or brought into Court &c.: that an account might be taken of the assets got in by Dartnell, and that the same might be applied in part payment of the debt due from the firm to J. J. Hardey &c. and that Dartnell might be removed from the trust, and a receiver appointed. J. J. Hardey afterwards moved the Court of Chancery, upon several affidavits, made by him, for an injunction and appointment of a receiver, pursuant to the bill. The Court, on May 3d, 1847, made an order accordingly; and it was, by consent, referred to the Master to take an account. Triston afterwards preferred bills of indictment against J. J. Hardey for having conspired with the said S. C. Hardy to defraud Triston by the said alleged accounts stated and otherwise, and also for perjury in the said affidavits in the Court of Chancery. The bills were found at the Central Criminal Court, and removed into the Queen's Bench by certiorari at the instance of J. J. Hardey: and the indictment for perjury came on for trial before Wightman J., at Westminster, on 27th June, 1848, when Triston attended with witnesses; but it was then arranged in Court between the leading counsel for the prosecution and the defence that a verdict of Not Guilty should be entered on both indictments (the indictment for conspiracy being then about shortly to come on in London), and all disputes between Triston, J. J. Hardey and Dartnell be referred to arbitration. An order of nisi prius was drawn up accordingly as of 27th June; but Dartnell refused to be party to the reference: and it was thereupon agreed between Triston and Volume XIV. 1850. The QUEEN V. HARDEY. J. J. Hardey that all matters in difference between themselves only should be referred to arbitration, and that such reference should be made a rule of Court. The order of reference finally stood as follows. "Middlesex, to wit. At the sitting of Nisi prius holden at Westminster Hall on Tuesday the 27th day of June in the 12th year" &c., "before the Honourable Sir W. Wightman” &c. The QUEEN against HARDEY; and The QUEEN against HARDEY, in London. "It is ordered by the Court, by and with the consent of the parties, their counsel and attorneys, that the jury find a verdict of Not Guilty, no evidence being offered on either side in either indictment; subject to the award or certificate, order, arbitrament, final end and determination of Frederick Robinson Esquire, barrister at law, to whom these several indictments and all matters in difference between Triston and defendant are hereby referred, to order and determine what he shall think fit to be done by the said parties respecting the matters in dispute, so as the said arbitrator do make and publish his award or certificate in writing of and concerning the matters hereby referred" &c. (clause, as usual, for the award being made and ready for delivery) on or before the fourth day of Michaelmas term next." Liberty to the arbitrator to enlarge the time. Also: "That the said arbitrator shall have all the powers of certifying and otherwise of a judge at Nisi prius, and shall be at liberty to state any question for the opinion of the Court. And that a verdict of Not guilty in the said indictment in London shall be entered when the said case is called on. It is also ordered " &c.: power reserved to the Court, in case of objection, " to refer back the said |