LORD v. HAWKINS. (2 H. & N. 55-57.) By an order of reference an action was referred to the award of twelve persons, six to be named by each party to the action; and it was ordered that in the event of either of the parties disputing the validity of the award, &c., the Court should have power to remit the matters thereby referred or any of them to the reconsideration of the said twelve persons; and in the event of either of the said parties declining to act, or dying before they or he should have made their or his award, the parties might, or if they could not agree, one of the Barons of the Court might appoint fresh arbitrators. After the arbitrators had made an award one of the twelve died. On motion to set aside the award, which was admitted to be bad: Held, that the Court had power to remit back the matters referred, to the surviving eleven and a fresh arbitrator to be appointed in pursuance of the power in the submission. DASENT had obtained a rule nisi to set aside the award made herein, on the grounds that it was not final, and that the arbitrators had no power to order a discontinuance. The order of reference provided that the action should be "referred to the award, order, arbitrament, final end and determination of twelve parties, six to be named by each party to the action, or in the event of their not agreeing, to an umpire to be named by the arbitrators." The costs of the cause and of the reference and award to abide the event of the award, and it was ordered "that in the event of either of the parties disputing the validity of the award, or moving the Court to set the same aside, the Court shall have power to remit the matters hereby referred, or any or either of them, to the reconsideration of the said twelve parties or umpire. And that in the event of any of the said parties declining to act, or *dying before they or he shall have made their or his award, the said parties may, or if they cannot agree one of the Barons of the Court of Exchequer may, on application by either side appoint such arbitrator or umpire." The twelve arbitrators having been nominated, made an award directing that the action should be discontinued and stayed, and that each of the said parties thereto should pay his own costs of the said action and of the reference. One of the arbitrators had died since the making of this award. Lush showed cause: It must be admitted that the award cannot be sustained, because it contains nothing to prevent the bringing of a fresh action. But as the award is a nullity, it may be referred back to the eleven surviving arbitrators and such new one as may be appointed in pursuance of the power contained in the submission. The cause is referred to the award of the arbitrators, and the words "dying before they or he shall have made their or his award" refer to the final award; that award which the arbitrators have power to make. 1857. May 8. [55] [ *56] Dasent, in support of the rule: The award must be set aside. The power to appoint a new arbitrator only applies when no award has been made in fact. The arbitrators having made an award, cannot make another, because, though bad, it is still their award; therefore the power does not apply in the present case. It was never contemplated that the award should be referred back to persons other than those who made the original award. POLLOCK, C. B.: I am of opinion that Mr. Lush's argument is well founded. MARTIN, B., BRAMWELL, B., and CHANNELL, B., concurred. SHARPLES AND OTHERS v. RICKARD (1). (2 H. & N. 57–61; S. C. 26 L. J. Ex. 302; 29 L. T. O. S. 201; 5 W. R. 568.) A bill drawn and indorsed at Quebec was transmitted by post to the indorsee at Liverpool, and presented by him to the drawee, who resided in England, for acceptance: Held, that the 17 & 18 Vict. c. 83 (2), did not render it necessary for the indorsee to affix a stamp on such a bill before presenting it for acceptance. DECLARATION that defendant at Quebec, in Canada, by his bill of exchange now overdue, required C. Jones to pay to the order of C. and J. Sharples in London 3047. thirty days after sight; that C. and J. Sharples indorsed the bill to the plaintiffs; that the bill was duly presented for acceptance and dishonoured, &c. (1) Griffin v. Weatherby (1868) L. R. 3 Q. B. 753, 37 L. J. Q. B. 280. (2) Now s. 35 and schedule of the Stamp Act, 1891. Pleas. First: that the bill of exchange in the declaration mentioned was not duly presented for acceptance *and dishonoured Secondly, that the defendant had not due notice. of the dishonour of the said bill; whereupon issue was joined. At the trial before Crowder, J., at the last Gloucestershire Assizes it appeared that the bill was indorsed by Messrs. C. and J. Sharples & Co. of Quebec, and forwarded by them in a letter to the plaintiffs, merchants at Liverpool, who presented it for acceptance to the drawee, who resided at Gloucester. When produced, the bill was unstamped. It was objected on the part of the defendant that, by the 17 & 18 Vict. c. 83, an adhesive stamp should have been affixed to it. The learned Judge being of that opinion, and considering that the first plea made it incumbent on the plaintiff to produce the bill, the plaintiff was nonsuited. Keating had obtained a rule nisi to set aside the nonsuit, and for a new trial, on the grounds that upon the pleadings it was not necessary to produce the bill, and that no stamp was required. J. J. Powell now showed cause: First, whether it was necessary to produce the bill or not; it was voluntarily put in at the trial. Then it appeared that nothing had been presented but an unstamped piece of paper. Secondly, the bill required a stamp. The 17 & 18 Vict. c. 83, s. 3, sched., imposes on foreign bills of exchange drawn out of the United Kingdom, and payable within the United Kingdom, the same duty as on an inland bill of the same tenor and date. Section 5 provides that "the holder of any bill of exchange drawn out of the United Kingdom, and not having a proper adhesive stamp affixed thereon, as therein directed, shall, before he shall present the same for payment, or indorse, transfer, or in any manner negotiate *such bill, affix thereon a proper adhesive stamp, for denoting the duty by such Act charged on such bill.” Here, though the bill had been presented, it had no stamp. (POLLOCK, C. B.: There may be a distinction between presenting a bill for acceptance only, and presenting it for payment. MARTIN, B.: A bill drawn and indorsed abroad does not require a stamp merely because it is sent here for acceptance.) The indorsement or transfer was not completed until the bill had been received by the plaintiffs in this country. The mere writing of the name of the indorser on the back of the bill abroad SHARPLES ፖ. RICKARD. [ *58 ] [59] was not enough to constitute a complete indorsement of the bill. It does not appear but that the drawers may have written the indorsement on the bill in this country. Keating and Gray appeared to support the rule, but were not called on. POLLOCK, C. B.: This was an application to set aside a nonsuit, which proceeded on the ground that the bill on which the action was brought was unstamped when produced at the trial. Mr. Powell argued that the bill required a stamp because it had been negotiated in this country. The facts appear to have been, that the bill was indorsed by Messrs. C. and J. Sharples, who resided at Quebec. If, in fact, the bill had been indorsed by them in this country, it was for the defendant to have shown that, in order to raise the objection that a stamp was requisite. But no such evidence was adduced. The arrival of the letter from Quebec, and the receipt. of the bill by the plaintiffs, at Liverpool, did not amount to a negotiation of the bill in this country. The Act does not require a bill to be stamped before it is presented for acceptance. Indeed I believe that the Act was expressly framed to exclude the necessity of stamping a foreign bill *before it has been accepted by the drawee here, unless it has been indorsed or negotiated in this country. MARTIN, B.: I am clearly of opinion that this nonsuit must be set aside. I am not by any means satisfied that it was necessary to produce the bill of exchange at the trial. In the case of Chaplin v. Levy (1), under circumstances somewhat analogous to those of the present case, it was held unnecessary to produce the bill. However I give no opinion on that point. As to the stamp, the 3rd section of 17 & 18 Vict. c. 83, provides that the duties by that Act "granted in respect of bills of exchange drawn out of the United Kingdom, shall attach and be payable upon all such bills as shall be paid, indorsed, transferred or otherwise negociated within the United Kingdom wheresoever the same may be payable." The Act does not provide for the case of a bill merely sent here to be presented for acceptance. The Legislature affixes a stamp only when there is a contract in this country. I think, therefore, that it never became necessary to affix the adhesive stamp to the bill of exchange on which this action was brought. BRAMWELL, B.: I am of the same opinion. There was no evidence that this (1) 96 R. R. 826 (9 Ex. 531). bill was indorsed in England. The payees at Quebec having indorsed the bill there and sent it to England, the indorsement was in law an indorsement where the payees resided: Gibbs v. Fremont (1), Allen v. Kemble (2). Then, treating the indorsement as made at Quebec, the statute does not apply. I do not know whether it was reasonable to incumber foreign bills with a stamp duty, but it would be highly unreasonable to make foreigners suffer for not affixing stamps of which they know nothing, and which they might not be able to *procure out of this country. Where however a bill is indorsed in England so that the indorsement is an English contract, or where it is presented for payment in England, it is a different matter. It was never meant if a Frenchman draws a bill in Paris to be sent to his correspondent in London to be presented there, that a stamp is to be put on the bill before it comes to this country. CHANNELL, B.: I also think that the rule must be absolute. I am not satisfied that it was necessary to produce the bill. However that may be, there is nothing to show that the bill required a stamp. The duty is not imposed on all foreign bills. It was argued that the bill was indorsed in this country, but that is a fallacy. The bill was drawn abroad payable not to the drawer's order, but to C. and J. Sharples in London. It cannot be presumed that it was indorsed in London, because it was made payable in London. Then the receiving of the bill by the plaintiffs at Liverpool, is not a transfer or negociation here. Therefore the bill was neither paid, indorsed, transferred or negociated in this country. Rule absolute. SHARPLES v. RICKARD. [ *61 ] CLEMENTS AND OTHERS v. M'KIBBEN. (2 H. & N. 62—63.) A trader bought goods to be paid for by bill. A few days after the goods had been delivered the seller called and demanded a return of his goods, and at the same time threatened to have the trader arrested for swindling in taking in the goods when he knew he was in insolvent circumstances. He requested to see the trader who refused to see him: Held not sufficient to raise a presumption of 66 а beginning to keep house with intent to delay a creditor" so as to constitute an act of bankruptcy within the 67th section of the Bankrupt Law Consolidation Act (3). THIS was a special case stated for the opinion of the Court without pleadings. The action was brought by the plaintiffs as assignees of one Phillips, a bankrupt, to recover 981., the value of twenty tierces of beef sold by the defendant, a provision merchant at Liverpool, (1) 96 R. R. 526 (9 Ex. 25). (3) Cf. Bankruptcy Act, 1883, s. 4 (1) (d). (2) 79 R. R. 66 (6 Moo. P. C. 314). 1857 April 22. [ 62 ] |