some years, and had also promised to pay the principal. The defend- ant's case was, that this item was originally brought into the account between him and the plaintiff in consequence of a written undertak- ing by him (which he had since taken from the plaintiff and de- stroyed in an indefensible manner), by which the defendant undertook
to remit the plaintiff 501., which sum I (the defendant) hold of H. Pugh, and by him authorized to pay you" (the plaintiff). Pugh was called, and swore that he never gave the defendant any such au- thority to pay 50l. for him, Pugh, to the plaintiff; and that he had since settled all the debts he owed the plaintiff. Held, that Pugh's evidence was admissible for the defendant, and, if believed, entitled him to a nonsuit; and the court having been substituted for the jury, by agreement between the parties, made a rule absolute for entering a nonsuit. Pierce v. Evans, T. 1835. 1042
An affidavit of debt, stating a party to be indebted to the plaintiff in 201. on a promissory note, without stating the amount for which the note was made or payable, will be set aside on motion for irregula- rity. Riddell v. Pakeman, E. 1835. 721
But where, in an action for false imprisonment, the defendant pleads the return of non est inventus to a writ of capias, and justifies arrest- ing the plaintiff on an exigi facias, and after replication that no affi- davit of debt was duly made and filed, the defendant in his rejoinder avers that there was, and sets forth an affidavit open to have been set aside for irregularity in the above respect:-Held, on spe- cial demurrer to the rejoinder, that the defendant was entitled to judg- ment, because trespass is only maintainable where the process is an absolute nullity, not where it is merely erroneous in form, and has not been set aside on that account
by authority of the court. Ib. AFFRAY.
AGREEMENT.
The declaration stated that the de- fendant guaranteed the payment of goods furnished by plaintiff to H. at the defendant's request. Plea, that before breach of that under- taking, it was agreed between plaintiff and defendant, that plain- tiff should supply goods to H., and that they should be paid for at the end of three months by a joint bill at four months to be ac- cepted by the defendant; which agreement of defendant, plaintiff, before breach of the former under- taking declared on, accepted in full discharge of such former agree- ment, and released the defend-
ant from performing it :-Held, on demurrer, that the second agree- ment did not require to be in writ- ing, pursuant to 29 Car. 2. c. 3. being a provision by which the defendant became absolutely bound To interrogatories. as an original debtor; and not being an accord and satisfaction, but a substituted contract, afforded a good defence to the action with- out alleging performance. Taylor v. Hilary, H. 1835, 373 The following agreement was held to show sufficient consideration moving from the plaintiff by way of detriment to him in giving up the security of the debtor C. for 1501. at the defendant's request.
"I undertake on behalf of Mr. P. (the plaintiff) in consideration of Mr. D. (the defendant) having this day given me an undertaking to procure Mr. W.'s check or note in favour of Mr. P. for 150. on account of a debt due from Mr. C. to Mr. P., that Mr. C. shall have credit for that sum in his accounts with Mr. P., and that Mr. W. shall stand in the place of Mr. P. to that amount; and I further undertake that Mr. P. shall not personally dispute Mr. W.'s right to deduct that sum from the accounts owing by the colliers of the B. P. colliery to Mr. C." The declaration alleged D., (the defendant's) promise to be in consideration of that of P. the plaintiff, by way of mutual pro- mise: Held good, and that it was sufficient to aver that plaintiff was ready and willing to perform his part. Peate v. Dicken, M. 1834. 116
By parol does not affect prior deed. Lane v. Drinkwater.
Of record, at nisi prius. See PRACTICE.
By deed T. D. and R. D., of the one part, severally and respectively, and for their several and respective heirs, executors, and adminis- trators, granted, covenanted, and agreed to and with T. L. (the plaintiff) and A. B., their heirs, executors, administrators, and as- signs, to pay to T. L. and A. B., their executors, &c., one annuity or clear yearly sum of 301. in the shares and proportions following; viz. the sum of 15l., being one moiety of the said annuity, unto T. L., his executors, &c., and the sum of 15l., the remaining moiety, unto A. B., his executors, &c., to be respectively paid quarterly. Land and stock were secured to T. L. the plaintiff and A. B. jointly, by way of securing the annuity. They also had joint powers to enter up a joint judgment against T. D. and R. D., and to sell the land and transfer the stock in order to obtain payment of arrears of the annuity. By proviso in the deed the annuity might be redeemed, on seven days' written notice, by payment to T. L. (the plaintiff) and A. B. of 3077. 10s. and all arrears of the annuity. An action having been brought by T. L. alone for arrears of the annuity, the covenant to pay it as well as the interest in it, were held to be joint in him and A. B., so that T. L. could not sue alone. Semble, the provision for paying the an- nuity in moieties to each cove- nantee, being only a mode of pay-
ARBITRATION AND AWARD.
A cause in the stage after appearance and before plea was referred to arbitrators, with all matters in dif- ference between the parties, the costs of the cause as well as of the reference and award, to abide the event of the award. It appeared before the arbitrators that the de- fendant had a larger cross demand against the plaintiff than he, plain- tiff, could establish in the action. The award directed that the action should cease and be no further prosecuted; that on the balance of accounts 6617. was due from the plaintiff to the defendant, and that the plaintiff should pay that sum to the defendant. It was argued that as this award did not state that the plaintiff had no cause of action against the defendant, no event was found which the costs might follow; so that the award was not final. The court held that it suf- ficiently showed the decision to be in favour of the defendant, and accordingly refused to set it aside. Eardley v. Steer, T. 1835. 1071 The arbitrator could not order a verdict to be entered. Per Parke B. Ib. A defendant applied to a judge at chambers to order a third party to appear and maintain or relinquish
his claim to the subject-matter in suit, and in the meantime to stay proceedings, under 1 & 2 W. 4, c. 58. s. 1. Instead of directing an issue, the judge, by consent of the parties in the cause, and a third party, and administratrix, made an order referring the cause to an arbitrator. The third party afterwards applied to the court to vary the order, by introducing a fresh direction to the arbitrator, in consequence of some admission of the defendant since the meeting at chambers, which went to fix his liability to a claim by the third party, and to establish his defence to the action by the plaintiffs. The court refused to grant even a rule nisi without the defendant's con- sent. Drake and another v. Brown, T. 1835.
1067 Where an arbitrator is a member of the profession of the law, the court will not on that ground examine into a supposed defect in his deci- sion on a point of law, unless ap- parent on the face of the record; and there is no distinction in this respect between legal and other arbitrators. Jupp and others v. Grayson. Grayson v. Jupp and others, M. 1834.
Where all the costs, as well of an action as of the reference and award, are to abide the event, they need not be mentioned in the award. Ib.
An arbitrator decided in favour of plaintiff, and then stated facts on his award, ordering that if the court should differ from him in opinion on considering those facts, a nonsuit should be entered. The court refused to set aside the award, on the ground that he had come to a wrong conclusion on the evidence, for though they did not concur in it, it did not appear that there was no evidence in sup-
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