arbitrator to have full authority over the costs of the suit and reference. The order expressly provided, that the death of any of the parties should not operate as a revocation of the arbitrator's authority, but that his award should be delivered to the personal representatives of the deceased party or parties. During the reference, one of the relators, being a party thereto, died; and afterwards the arbitrator made his award, and thereby directed that the costs of the reference should be borne and paid by the parties by whom they were incurred. The plaintiff, who was one of the relators, paid the solicitor, who had been retained for them in the conduct of the reference, his bill of costs, and brought an action for money paid, against the executors of the deceased relator, for his proportion of the costs incurred after his death, including the costs of the award:-Held, that the executors were liable in such action for their testator's proportion of the costs of the reference incurred after his death, and also of the costs of the award. Prior v. Hembrow,

873

II. Award, execution upon. 1. Trespass for breaking and entering the plaintiff's house and seizing his goods. Plea, that the defendant brought an action against the plaintiff, which was referred to arbitration by an agreement afterwards made a rule of Court; that the arbitrator awarded a certain sum to be due to the defendant, and ordered the plaintiff to pay it on a certain day, which he refusing to do, the defendant issued a writ of fi. fa., and levied on the plaintiff's goods. Replication, that by a rule of Court it was ordered that the said writ should be set aside for irregularity. Rejoinder (by way of estoppel) that, after the making of that rule of Court, the plaintiff ruled the sheriff to return the writ of fieri

| facias:-Held, on special demurrer to the rejoinder; first, that the replication was good, and that it was unnecessary to aver that the rule of Court was acted on.

Secondly, that the plaintiff, by ruling the sheriff to return the writ, was not estopped from shewing that it was not a good writ, for although it might be bad as against the party suing it out, it might still be good as respected the sheriff; and that the filing of record did not affirm the existence of a void writ; and therefore that the replication was bad.

Thirdly, that the 1 & 2 Vict. c. 110 does not authorize a party to issue execution for money awarded by an arbitrator.

Fourthly, that the words in the 18th section, "monies or costs, charges or expenses," mean money decreed or ordered to be paid, together with the costs, &c., to be ascertained on taxation by the officer of the Court, and that no order to pay costs is requisite after taxation. Jones v. Williams, 349

2. The Court has authority, under the stat. 1 & 2 Vict. c. 110, ss. 18 & 19, to order a party by rule to pay a specific sum of money awarded by an arbitrator to be paid by him; and on such rule being made absolute, execution may issue against the party for the amount so specified in the rule. Doe v. Amey,

ASSUMPSIT.

565

For Breach of Contract-What Deductions allowable in Mitigation of Damages.

Special assumpsit on a contract to build a ship according to a specification, assigning a breach in not building the ship with scantling, fastening, and planking, according to the specification, and alleging special damage. Plea, that the defendant had sued

0002

the plaintiff for the balance of the agreed price of the ship, after payment of £3,500, and also for a sum of £150 for extra work, in the form of an action for work and labour, and for goods sold and delivered; that issue was joined, and, on the trial of the cause, the now plaintiff gave evidence in his defence of the same breach of contract alleged in the declaration, and insisted, if the amount of compensation to which he was entitled exceeded or equalled the balance and value of the extra work, that he the now plaintiff was entitled to a verdict; if less, then he was entitled to a deduction upon the amount of both, to the extent of such amount of compensation: that the Judge who tried the cause so directed the jury, and the jury found that the now defendant had committed a breach of the contract, and that the now plaintiff was entitled to some compensation, which they deducted from the price of the ship and the value of the extra work that the now defendant had judgment for the amount, after such deduction had been made, since the commencement of this suit:Held, that the plea was bad on general demurrer.

Held, also, that all that the plaintiff could by law be allowed in diminution of damages on the former trial, was a deduction from the agreed price, according to the difference between the ship as she was at the time of delivery, and what she ought to have been according to the contract: but that any claim for damages on account of the subsequent necessity for repairs could not be allowed in the former action, and might be recovered in this.

In all actions for goods sold and delivered with a warranty, or for work and labour, as well as in actions for goods agreed to be supplied according to a contract, it is competent for

the defendant to shew how much less the subject-matter of the action was worth by reason of the breach of the contract: and to the extent that he obtains, or is capable of obtaining, an abatement of price on that account, he must be considered as having received satisfaction for the breach of contract; and he is precluded from recovering in another action to that extent, but no more. Mondel v. Steel, 858

ATTORNEY.

Taxation of Bill.

Where, in an attorney's bill of costs, several items, not for fixed fees but of a discretionary nature, had no charges set opposite to them, and others were charged, some too low and some too high; and the Master, on taxation, reduced the latter to the proper scale, but declined to increase the former, or to insert the charges omitted altogether; the Court refused to review the taxation. Eyre v. Shelley,

a

BAILMENT. See CARRIER, (1).

BANKRUPTCY. See DISTRESS.

PROCHEIN AMY.

154

(1). Operation of 1 & 2 Vict. c. 29. Where an execution by fieri facias on judgment on a warrant of attorney (not given by way of fraudulent preference) was executed by seizure after a secret act of bankruptcy, but not completed by sale of the goods seized before the issuing of the fiat, which was subsequent to the passing of the 2 & 3 Vict. c. 29:-Held, that the execution creditor was not entitled to the benefit of it, as against the assignees of the bankrupt; the stat. 2 & 3 Vict. c. 29, not having had the effect of rendering valid such executions, so as

to entitle the execution plaintiff to the benefit of them as against the assignees, nor repealed the 108th section of 6 Geo. 4, c. 16. Whitmore v. Robertson, 463

(2). Liability of Bankrupt for Rent. The 74th section of the Bankrupt Act, 6 Geo. 4, c. 16, applies only to rent accrued due before the bankruptcy.

Where the assignees of a bankrupt, under the 7 Geo. 4, c. 16, s. 75, have declined a lease to which the bankrupt was entitled, but the bankrupt has not delivered up the lease to the lessor, the property in the demised premises, in the mean time, continues vested in the bankrupt, and the lessor retains, until such delivery up to him, his right of distress for the rent.

Semble, that the effect of that section is only to exempt the bankrupt from personal liability, and not to affect the landlord's right of distress.

Semble, also, that it applies only to cases where covenants are broken or rent becomes due after the delivery up of the lease by the bankrupt.

Quare, whether it applies to the case of a demise not in writing. Briggs v. Sowry, 729

(3). Mutual Credits. Assumpsit by the assignees of a bankrupt for goods sold and delivered by the bankrupt, with counts for money paid, had and received, and on an account stated. The defendant pleaded by way of set-off, that before notice of any act of bankruptcy, and before the issuing of the fiat, and before action brought, the defendant gave credit to the bankrupt, by accepting certain bills of exchange for his accommodation, and at his request, without any consideration or value, which said bills were, before notice of the bankruptcy, negotiated by the bankrupt for his own use and benefit; that the credits so given were likely

to end in debts from the bankrupt to the defendant; and that afterwards, and before the commencement of the action, the defendant paid the said bills:-Held, a good set-off under the 6 Geo. 4, c. 16, s. 50, on the ground that a mutual credit was shewn. Held, also, that the assignees could not reply a fraudulent delivery of the goods. Russell v. Bell, 277

(4). Assignment, what passes by.

1. Assumpsit by the assignees of T. H., a bankrupt. The declaration stated that T. H., before he became bankrupt, at the request of the defendant, bargained for and agreed to buy from the defendant 2000 quarters skreened Odessa linseed, at the rate of 30s. 10d. per quarter, free on board at Odessa, the shipment to be made on board the buyer's vessel, on arrival at Odessa, which vessel was to be forthwith chartered for thence, and the amount of invoice was to be paid on handing over the same and the bill of lading to the buyers in London, in ready money, less two and a half per cent. discount. The declaration then averred that T. H. did, after the making of the promise and before the bankruptcy, forthwith dispatch a vessel to Odessa, chartered by him, which vessel arrived at Odessa within a reasonable time; that the vessel arrived at Odessa after the bankruptcy of T. H., and within a reasonable time after such arrival was ready and willing to receive the linseed on board, and that one N. H., the master of the vessel, was ready and willing to deliver to the defendant bills of lading for the linseed, of which the defendant had notice, and was requested by the said N. H., the agent of the plaintiffs in that behalf, to deliver the linseed on board the vessel; that the defendant refused to deliver the linseed on board, or any part thereof, by reason whereof

the plaintiffs, as assignees of T. H., had sustained damage. The declaration then went on to allege that, although the defendant had notice of the bankruptcy, and that the plaintiffs, being duly appointed his assignees, were, within a reasonable time, ready and willing, and then tendered and offered to pay for the linseed, and then requested the defendant to hand over to them bills of lading for the linseed in London, or to deliver the linseed to their assignees in London, yet the defendant wholly refused so to do.

Plea, that the plaintiffs did not, within a reasonable time after the bankruptcy of T. H. and the arrival of the vessel at Odessa, give notice to the defendant of their intention to adopt the contract for the purchase of the linseed, and to abide by the terms thereof:

Held, on special demurrer to the plea-per Parke, B., Gurney, B., and Rolfe, B.; Lord Abinger, C. B., dissentiente

1st. That the declaration disclosed a good cause of action, and that the plaintiffs were entitled to recover.

2ndly. That the matter contained in the plea formed no answer to the action. Gibson v. Carruthers, 321 2. The right of action for the seduction of a servant does not pass to the master's assignees on his bankruptcy. Howard v. Crowther, 601 3. Assumpsit by husband and wife for money lent to the defendant by the wife whilst she was sole and unmarried. Plea, that B., the husband, became bankrupt, and that his assignees were duly appointed, and accepted the appointment before the commencement of the suit, by reason whereof the assignees became entitled to the supposed debts and causes of action in the declaration mentioned. Replication, that before the intermarriage of the plaintiffs, and whilst C., the

wife, was sole and unmarried, to wit, on &c., by an indenture then made between the said B. of the first part, the said C. of the second part, and T. H. and R. T. J. of the third part, (being a settlement entered into before the intermarriage of the plaintiffs), the sums of money in the declaration mentioned were assigned to the said T. H. and R. T. J., to have, receive, and recover, and to hold the same to them, upon certain trusts in the indenture mentioned, in favour of the said C., and for her sole and separate use during her life, and for the child or children of the intended marriage. The replication then stated, that the plaintiffs appointed T. H. and R. T. J. as their attornies to recover the said sums from the defendant, for the purpose of holding the same upon the trusts aforesaid, and that the action was commenced and prosecuted in the names of the plaintiffs at the instance and by direction of the said T. H. and R. T. J., by virtue of the power given to them, and for the purpose of recovering, receiving, and holding the said sums of money as the trustees named in the said indenture, and upon the trusts in favour of the said C., and of the children of the said marriage, and not for the use or benefit of the plaintiff B., or of his creditors under the fiat:-Held, on demurrer, that the replication was good, and that the debt did not pass to the assignees under the bankruptcy of the husband, but might be sued for by the husband and wife. Parnham v. Hurst, 743

4. A. agreed in writing with B. and C., on behalf of themselves and D., as partners in the business of typefounders, faithfully to serve them, and the survivor of them, for seven years, as their foreman, and not to engage in trade on his own account for that period without their consent; and B. and C. agreed to pay him wages after