PART II. CH. VI. S. 2. Sum due in respect of all matters referred. Issue on non assumpsit. Costs, issue made up. that on some one or more of the counts the defendant was liable, it did not necessarily determine the issues raised by that plea on each of the counts (k). But an award that a certain sum was due from the defendant to the plaintiff "in respect of all the matters referred” was treated by Wightman, J., as a finding on all of several counts in indebitatus assumpsit in the plaintiff's favour (1). So also an award that the plaintiff had good cause of action, 66 as stated in the declaration," was held to mean on the whole declaration (m). But when to a declaration containing several of the ordinary indebitatus counts, the defendant pleaded, first non assumpsit, and also three other pleas, and the arbitrator found, as to the issues, firstly, thirdly, and lastly joined," that the verdict should stand for the plaintiff, and on the second issue for the defendant, this was sufficient; since it amounted not merely to an award on the issue raised by the plea of non assumpsit on the first count in the declaration, but to a finding in the plaintiff's favour of all the sub-issues raised by the issue on the plea of non assumpsit on the whole declaration; and it was unnecessary for the award to show how much was due in respect of each count, as the object of the separate finding was only to dispose of the question of costs, which was determined sufficiently by the arbitrator's finding that the defendant owed something on each count (n). Where after issue joined in an action of covenant, but joined but not before the issue was made up, all the matters in the suit, specified in the particulars, were referred by agreement, the costs of the suit to abide the event of the award, and the arbitrator found that the plaintiff had sustained certain damages on one of the breaches specified, but that in respect of the other matters he had no cause of action, the court held that though the cause were not strictly at issue, yet that the defendant was, according to the Reg. Gen. H. T. 2 W. IV. r. 74, entitled to the costs of the issues substantially found for him (0). (k) Kilburn v. Kilburn, 13 M. & W. 671; Morgan v. Thomas, 9 Jur. 92. 20. (1) Baker v. Cotterill, 7 D. & L. (m) Phillips v. Higgins, 20 L. J. Q. B. 357. (n) Adam v. Rowe, 3 D. & L. 331, S. C. 10 Jur. 840. (0) Daubuz v. Rickman, 4 Dowl. For the like reason respecting costs, in ejectment, if there were several demises, the arbitrator was bound to find on which demise the plaintiff was entitled to recover, and to award for the defendant on the other demises; since the defendant was entitled to the costs of the issues on the demises found in his favour. Merely directing the general verdict taken for the plaintiff to stand was insufficient, and the award would have been bad for leaving it uncertain on which demise the plaintiff was entitled. The court would not presume one part of the land recoverable on one demise, and another part on another. If such were the fact, the arbitrator should have stated how the right was (p). But an award "in favour of the lessors of the plaintiff" was decided in the Court of Common Pleas to be a sufficient decision of both of two demises in ejectment for the plaintiff (q). PART II. CH. VI. S. 2. Ejectment. Though formerly, if the plaintiff proved his title to any Should portion of the lands claimed, the practice was to enter the specify lands. verdict for him for the whole (possession, however, only being taken for the part on which he succeeded), yet, since it had been decided that the verdict in ejectment was distributable, the arbitrator, if he were of opinion that the plaintiff had made out his claim to a part of the lands only, with a view of entitling the defendant to costs on the issue raised by the plea of not guilty as to the residue of the lands, should have awarded for the defendant as to that portion, even where other provisions of the award might render such finding for the defendant immaterial for any other purposes than those of costs (?). The award will be bad if the arbitrator omit to decide all the issues raised on the pleadings. Thus where the arbitrator merely awarded that the plaintiff had no cause of action, and directed a verdict to be entered for the defendant, and neglected to decide the issues on the pleas, the court held that the award was bad, but that it was not to be set aside, (p) Doe d. Madkins v. Horner, 8 A. & E. 235, S. C. 3 N. & P. 344; Doe d. Starling v. Hillen, 2 Dowl. N. S. 694; Harrison v. Creswick, 13 C. B. 399. (9) Mays v. Cannell, 24 L. J. C. P. 41; Law v. Bluckburow, 14 C. B. 77. (r) Doe d. Bowman v. Lewis, 13 M. & W. 241, S. C. 2 D. & L. 667. Finding on each plea. PART II. CH. VI. S. 2. Whether substantial finding sufficient. provided the defendant would permit the costs of the issues on those pleas to be taxed for the plaintiff (s). Where, on the reference of an action of debt for moneylent, money paid, interest, and for money due on an account stated, to which the pleas were, nunquam indebitatus, and payment, the arbitrator awarded that the plaintiff had good cause of action against the defendant, and directed the defendant to pay the plaintiff a specified sum, the award was set aside for not deciding on each issue (t). It is to be observed that the award did not show on which count in the declaration the money was recovered, though it substantially decided the issue on the plea of payment. Relying on the above case of Bourke v. Lloyd (u), Patteson, J., held bad, for not specifically deciding each issue, the certificate of an arbitrator, who in an action of debt for work and labour, where the defendant had pleaded nunquam indebitatus, payment, and a set-off, had certified that a verdict should be entered for the plaintiff; though it was urged that by finding a verdict for the plaintiff for a sum certain, the arbitrator must have found the issues on the pleas of payment and set-off against the defendant, and so substantially decided each issue (). This view of the law, that such a substantial decision was quite sufficient, was adopted by the Court of Exchequer, in a case where both the above cases were brought before their notice (y). That it was enough, had indeed been previously, laid down by the same judge, who decided the case of Brooks v. Parsons (z) just cited (a). The Court of Common Pleas also decided that a finding of the arbitrator, leading by necessary inference to the decision of the issue, is sufficient (b). More recently, it was decided that where an arbitrator found that the plaintiff had good cause of action in respect of a count to which several pleas were pleaded, each of which, if true, was a sufficient answer to the count, (8) England v. Davison, 9 Dowl. 1052. See Williamson v. Locke, 2 D. & L. 782. (t) Bourke v. Lloyd, 2 Dowl. N. S. 452, S. C. 10 M. & W. 550. (u) 2 Dowl. N. S. 452. (x) Brooks v. Parsons, 1 D. & L. 691. See Stonehewer v. Farrar, 6 Q. B. 730, per Patteson, J., 742. (z) 1 D. & L. 691. (a) Hunt v. Hunt, 5 Dowl. 442. (b) Avelett v. Goddard, 11 L. J. C. P. 123. as, for example, in trover, where the defendant pleaded not guilty and not possessed, such a finding amounted in fact to a distinct finding in the plaintiff's favour on each issue (c). In a still later case, affirming the same principle, Brooks v. Parsons (d) is in terms expressly overruled (e). PART II. CH. VI. S. 2. verdict a finding on each issue. A question of importance arises here, whether directing a Whether a general verdict for either plaintiff or defendant can be treated general as a finding on each issue. In one case (ƒ), where there were several special inconsistent pleas, the court treated the awarding a general verdict for the defendant as a finding on all the issues in his favour; and in a more recent case, Parke, B., said that awarding a general verdict for the plaintiff means a verdict on all the issues (g). Such, however, was not the course pursued by the court in other cases, for in England v. Davison (h) it was held two issues were left undecided, though there was a direction to enter a general verdict for the defendant; and in Doe d. Starling v. Hillen (i) there was a general verdict for the plaintiff, yet it was not considered as a finding in his favour on each of the three demises. Awarding verdict to stand, but be reduced. In indebitatus assumpsit where the defendant pleaded the general issue, payment, and set-off, and in trover where the pleas were not guilty and not possessed, and payment into damages to court as to part, verdicts were taken by consent for the damages in the declaration subject to arbitration. The award in each case directed that the verdict found for the plaintiff should stand, but that the damages should be reduced. It was held in each case that the award sufficiently disposed of the issues (k). In an action on the usual money counts, with pleas never indebted, Statute of Limitations, payment, set-off, accord, and satisfaction, an award that the defendant was not at the time of action indebted to the plaintiff, and finding a verdict for (c) Hobson v. Stewart, 16 L. J. (d) 1 D. & L. 691. 696. (f) Cooper v. Langdon, 9 M. & W. 60, S. C. 1 Dowl. N. S. 392. (h) 9 Dowl. 1052. (i) 2 Dowl. N. S. 694. (k) Wilcox v. Wilcox, 4 Ex. 500; Smith v. Reece, 6 D. & L. 520. PART II. CH. VI. S. 2. Proper mode of awarding on the issues. Awarding on pleas of setoff and payment. the defendant, was held sufficient by the Court of Common Pleas (1). Many nice questions may, however, be avoided, if the arbitrator adopt the course recommended by the Court of Queen's Bench, who laid it down that the best and most proper mode for an arbitrator to decide the issues was to give his award in the very terms of the issues themselves. And now, if any difficulty is felt under the present system of pleading about what the exact issue is, it would be prudent for the arbitrator to affirm or negative the propositions set forth in the statement of claim or defence in their very words. It is not necessary for him to set out the pleadings in his award, or to add any general statement that he decides in favour of the plaintiff or the defendant (m). Formerly, as pleas of set-off or payment (unless, when taken together with other pleas, they answered the whole of the plaintiff's demand intended to be covered by them) were not divisible in law, it was the arbitrator's duty, although the defendant were entitled to some set-off or had made some payment, to find the issues joined on such pleas for the plaintiff. He might, however, have given the defendant the benefit of any smaller counter claim, or part payment, in reduction of the plaintiff's damages (»): and a finding of part of such pleas for the defendant, and the other part for the plaintiff, was construed to be an informal award of damages for the portion or amount found in favour of the latter (o). But by the Common Law Procedure Act, 1852 (15 & 16 Vict. c. 76), s. 75," pleas of payment and set-off, and all other pleadings capable of being construed distributively, shall be taken distributively;" the arbitrator, therefore, ought, it seems, to have found for the defendant in respect of so much of the cause of action as should be answered by such pleas, and for the plaintiff in respect of so much of the causes of action as should not be answered. (1) Holland v. Judd, 3 C. B. N. S. 826. (m) Stonehewer v. Farrar, 9 Jur. 203, S. C. 6 Q. B. 730; Allen v. Lowe, 4 Q. B. 66; Clarke v. Owen, 2 H. & W. 324. (n) Moore v. Butlin, 7 A. & E. 595; King v. Earl of Dundonald, 5 Dowl. 589; Tuck v. Tuck, 7 Dowl. 373, S. C. 5 M. & W. 109. (0) King v. Earl of Dundonald, 5 Dowl. 589. |