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case of Jenkins v. Betham (1) turned on pointed on each side, and in case the
the fact of the persons not being arbi. valuers disagreed, by an umpire to be
trators, but only valuers, who warranted appointed by the valuers, and yet the de-
competency. Here, however, even assum- fendant, who was appointed as one of such
ing incompetency, the defendant is not valuers, and so. might be said to be a
liable, because he is an arbitrator whose quasi arbitrator, was held liable for want
decision is to be final against both sides, of competency in the discharge of his duty
and who is not merely to consider the as such valuer,
interests of his employer.

[Bovill, C.J.-There the defendant was
Sir J. Karslake, Sir G. Honeyman and employed by one of the parties, and the
Watkin Williams, in support of the rule. complaint was that he did not use compe-
-As to nonsuiting the plaintiff on the tent skill in what he had undertaken to do
ground that the defendant was acting as for such employer.]
an arbitrator, and therefore the action So here it submitted the defendant
would not lie, the defendant cannot was employed as a broker to make a con-
be considered to have been an arbi- tract, and to give an opinion. It was part
trator in the matter. He was employed of his duty to his employer to give that
by the plaintiff as a selling broker, and it opinion, and he was not an arbitrator
was part of the contract that the selling between the parties any more than the
broker should decide the quality of the defendant in Jenkins v. Betham (1). In
raisins-by that contract he undertook to Russell on Arbitrations, 4th ed. p. 38, it is
examine the raisins, and give his opinion said, “ It is not in every case where two
as to their quality. He therefore under parties intend to be concluded by the de-
took to exercise due and competent skill cision of a third, that that third person
in the performance of his duty. The is an arbitrator."
principle was thus laid down by the Court
in Harmer v. Cornelius (2), that “when a KEATING, J.—This was an action against
skilled labourer, artisan, or artist is em- the defendant, a broker, for unskilfully
ployed, there is on his part an implied acting as selling broker for the plaintiff

, warranty that he is of skill reasonably by reason of which the plaintiff was dacompetent to the task he undertakes." maged. In October, 1809, the contract And in Chitty on Contracts, 9th ed. p. 515, in respect of which the action has been it is also stated that “wherever there is brought was entered into between the a contract to perform any work or to plaintiff and defendant, and it was in transact any business, the law implies an these terms. [The learned judge here engagement on the part of the person read the contract.] At the trial, which undertaking to do the work, that it shall took place before my Lord, the plaintiff be performed with due care, diligence, and gave evidence to shew that the defendant skill, according to the orders given and refused to pass the raisins as of the fair assented to.” Then, if the defendant was average quality of 1869, and also to shew bound to exercise competent skill in the that the defendant had not exercised any performance of the duty which he had proper skill in examining the quality of contracted to perform, why is he not to the raisins. The plaintiff

, moreover, called be liable to this action ? it being assumed evidence to prove that the raisins were of for this purpose that, though he acted bona the average quality of 1869 growth, and fide, he shewed a want of competent skill. that they ought to have been passed by In Jenkins v. Betham (1), there was an the defendant. On this state of things agreement between an in-coming incum- my Lord nonsuited the plaintiff, and he bent and the executors of the late incum. did so on two grounds. In the first place, hent, that dilapidations should be valued he was of opinion that, looking at the as between them by valuers to be ap- contract, the term “fair average quality,"

which occurs therein, meant fair average (1) 15 Com. B. Rep. 168; 8. c. 24 Law J. Rep. quality generally, and not of the growth (x.s.) C.P. 91.

(2) 5 Com. B. Rep. N.S. 236 ; s. c. 28 Law J. of 1869. Now, if that be the true con. Rep. (N.S ) C.P. 85.

struction of that part of the contract,


there is no doubt but that the plaintiff two parties were appointed to value, and failed to give evidence in support of it, if they differed as to the valuation it was and that, therefore, the nonsuit was right. to be referred to an umpire, but they did My Lord was further of opinion that the not differ, and the matter never went to an terms of the contract and the evidence umpire, so that it was the same as if there placed the defendant in the position of an were no umpire at all. Williams, J., in the arbitrator, not that he was an arbitrator course of the argument of that case, points in the ordinary acceptation of that term, this out, saying, “the substance of the but that he was to decide such disputes as thing is that there is no submission until might arise between the parties as to the the matter goes to the umpire.' raisins being of the quality required by That was therefore the ordinary case the terms of the contract. A rule nisi of a person employing a valuer to value was granted to set aside the nonsuit, and for him, and the person so employed not the question is whether my Lord was right possessing competent skill for what he in directing a nonsuit to be entered on had undertaken to do, was held liable. I either of these two grounds to which I therefore think that the nonsuit was have referred. Now with respect to the right, and that this rule should be disfirst ground, I confess that I entertain very charged. considerable doubt, and if it had been BRETT, J. - The plaintiff was necessary to decide the same, I should suited on two grounds, and it is agreed have desired further time for considera- that the plaintiff was properly nonsuited tion; but it appears to me that we are not if the Chief Justice was right on either of called on to decide it because, in my opi- the two grounds, and that to upset the nion, the Chief Justice was right on the nonsuit it must be shewn that he was second ground, and that the defendant wrong on both of them. Now it is also stood in the quasi position of an arbitrator. admitted that if the construction which

The argument on the part of the plain- my Lord put on the words of this contract tiff has been that the defendant contracted was the right one, the plaintiff was in the capacity of broker, and that he was properly nonsuited. What is the true bound to bring ordinary skill in doing construction of the contract is, I think, what he had so undertaken to perform, very doubtful. My own impression is and that if he did not possess such skill that there were not sufficient materials at he was liable to an action. I think, how- the trial to enable anyone to say what hver, that what the defendant did which was the true construction. I think that is complained of, was not done by him in if there was an average quality of raisins his ordinary capacity of a broker. It is known and recognised in the trade, the true that he was a broker, and that he construction which my Lord put on the made this contract by which he was to be contract was the correct one, and that the person who was to decide between the this contract would apply to such quality. parties as to the quality of the raisins de- But if there were no such known and livered under such contract ; but he was recognised average quality, then that the only to decide if any dispute should arise raisins were to be of the average quality as to the quality. It was quite possible

of 1869 growth.

There seems to have for the quality of the raisins which were been no evidence as to this at the trial delivered to have been such that the pur- one way or the other ; but I think it chaser would have accepted them without unnecessary to determine the true condispute, and that the defendant would struction of the contract, because I agree never have been required to act as arbi. that my Lord was clearly right on the trator at all, but I think that from what other ground on which the plaintiff was occurred he was afterwards put in the

nonsuited. I think that the defendant, quisi condition of an arbitrator, and that though not strictly an arbitrator, was in he is therefore not liable in this action. the position of one, so as to bring him

The case of Jenkins v. Betham (1) ap- within the exception of the law applicable pears to me to be quite distinguishable to arbitrators, as to whom there is not from the present. There the valuers of any implied promise to bring any know


ledge or skill in the performance of their the points on which I gave my decision duty. It appears to me that everyone is and nonsuited the plaintiff. With regard in the condition of an arbitrator who has to the first point, which raised the quesundertaken to give an opinion which is tion as to the meaning of the contract, to determine the disputes of others when I retain the opinion I expressed at the those persons have agreed to be bound by trial, for it seems to me that “1869 such opinion. Now here I think the growth " cannot be inserted after fair parties had so agreed to be concluded by average quality.” On the other point the opinion of the selling broker as to as to the question whether any action the quality of the raisins; but if there can be maintained agaii st a broker who were no dispute as to the quality such had acted bona fide for having given a opinion could not be called for. That agree- wrong decision in a matter which was ment would make such broker, though not left for him to decide, I see no reason for strictly an arbitrator, a quasi arbitrator, differing from my learned brothers, or according to the definition given in for altering the opinion I had formed at Russell on Arbitrations, 4th elit., p. 38, the trial. The parties had agreed in where it is said, "the parties must case of any dispate as to the quality of the manifestly intend to be concluded by the raisins to leave the matter to the opinion decision of the person called in, in order of the selling broker, who was the defento clothe him with the authority of an dant. It by no means follows that in such arbitrator."

cases the parties agree to leave the decision It is said on the part of the plaintiff to one who can bring the best skill to bear that the defendant was not only to on the subject, but they are often content determine such dispute (if any) as to take the opinion merely of an honest to the quality of the raisins, but also person, and to be bound by that. The to act as a broker to make the contract; defendant, in the present case, is said to but I cannot see how his freedom from have formed a wrong judgment as to the liability as an arbitrator is taken away quality of the raisins, but if so, that was merely because he has also undertaken only from his not using proper skill. He the other duty of broker. The case of was, however, I think, in the position of an Jenkins v. Betham (1) only shews that arbitrator, whose decision it was intended the present defendant would be liable for by the parties should be final; and, therewant of competent skill as a broker in fore, there was no implied contract on making the contract, for the want of skill, his part, except that he would act for which the defendant in that case was honestly in deciding the matter. I think held liable, was in respect of what he had he so acted, and consequently he is not done as a valuer before any submission responsible in this action for not using to arbitration was made at all. A passage due skill. was cited by Sir Geo. Honyman, from

Rule discharged. Russell on Arbitrations, 4th ed. p. 38, to shew that the defendant, in the present case, did not occupy the position of an arbitrator. The passage may be correct in itself, but the cases there given by no Attorneys - Thomas & Hollams, for plaintiff; means support it, and are, indeed, wholly

Stibbard & Beck, for defendant. inapplicable. For the reasons I have mentioned I think that the ruling of the Chief Justice on the second point was right, and therefore that this rule must be discharged.

Bovill, C.J.-At the trial the case was treated by both sides as one depending upon the construction of the contract to be decided by the judge. I consulted my brother Willes at the time on both

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(Appeal from Revising Barrister's Court.) low v. Mumford (3) the Court distinctly 1871.

decided that this is so. There can be no BENDLE (appellant) v. WATSON Nov. 17. (respondent)

valid distinction between the insertion

and alteration of a number, and if it be Parliament-County Vote-Description

said this is not an insufficient description, of Qualification, Wrong Number of House - Amendment-6 Vict. c. 18. 8. 40.

but an erroneous description describing

another house, the answer is that the Where the number of a house has been man's qualification in reality is the same, some years back changed by competent au- though by error a wrong description has thority, and the old number is used in the been used, and that an erroneous descripdescription of a man's qualification to vote

tion is not the less an insufficient one. in the parliamentary election in respect of [KEATING, J.-In Luckett v. Knowles (4), such house, the revising barrister has power Tindal, C.J., laid down that a wrong deand ought to amend under 6 Vict. c. 18. scription was an insufficient one within s. 40, by substituting the new number, on

this section.] proper evidence being given.

The case also falls within 6 Vict. c. 18.

s. 101, because, looking to the fact of the This was a case stated by the revising house having formerly borne the number barrister of the Eastern Division of Cum- four, it might be said to be commonly berland, under the following circum- understood to indicate it. stances :

Fawcett, for the respondent. -As numAn objection was duly made to the ber four cannot be said to be commonly name of J. S. Baker remaining on the

understood to mean number nine, section list of voters, and it was proved that,

101 does not apply, and the question is, though the description of the house in whether section 40 does. An inaccurate respect of which he was on the list was description of this house might have been 4, English Street, Carlisle, in the fourth amended, but this was an accurate decolumn, and that had been right when the scription of another house, and therefore name was first put on, some six years ago the section does not apply. In Bartlett the number had been altered by compe- v. Gibbs (5) and Onions v. Bowdler (6) it tent local authority to nine, whilst another was held that where it turned out that a house became and now was four, but the man had occupied two houses in succession description had remained on the list un- there was no power to insert one of them altered and unobjected to. The revising if omitted, and here, instead of adding barrister was asked and refused to amend, another house, the barrister substituted and struck the name off, but asked the The observations of Tindal, C.J., Court whether he had power and ought in Hitchins v. Brown (7), also seem to to have amended, the name to be restored favour the present argument. if the answer was in the affirmative.

Sharpe, for the appellant. This was WILLES, J.-By the 40th section of 6 only an insufficient description of the

Vict. c. 18 it is enacted that, “if any persame qualification, and therefore the re- son whose name is included in any such vising barrister ought to have amended list, or his place of abode or the nature ander 6 Vict. c. 18. s. 40. No doubt, if or description of his qualification," that the alteration would substitute another is, the qualification he really has, “shall, in qualification, as was the case in Nicholls the judgment of the revising barrister, be v. Bulwer (1), it could not be made. But insufficiently described for the purpose in Flounders v. Donner (2) it was laid (3) 36 Law J. Rep. (N.s.) C.P. 65. down by Erle, C.J., that where the number (4) 2 Com. B. Rep. 187; 8. c. 15 Law J. Rep. of the house is required but omitted, it (N.s.) C.P. 87. ought to be inserted under this section,

(5) 5 Man. & G. 81; s. c. 13 Law J. Rep. (N.s.)

C.P. 40. if supplied to the barrister; and in Bar

(6) 5 Com. B. Rep. 65; s. c. 17 Law J. Rep. (1) 40 Law J. Rep. (N.s.) C.P. 82.

(n.s.) C.P. 70. (2) 2 Com. B. Rep. 63 ; s. c. 15 Law J. Rep. (7) 2 Com. B. Rep. 25; s. e. 15 Law J. Rep. (n.s.) C.P. 81.

(N.s.) C.P. 38.



power to

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of being identified, such barrister shall ex- cient in my understanding, and it appears punge the name of every such person from that this consideration was applied in such list, unless the matter or matters so Luckelt v. Knowles (4). The result is omitted or insufficiently described be sup- that as far as respects these words of plied to the satisfaction of such barrister the section in this case (there is not a before he shall have completed the revision mistake here), there of such list, in which case he shall then amend. The description was unquesand there insert the same in such list.” tionably insufficient, and the matter is This is sufficient to shew that the place of not different because it was erroneous. abode and the nature and description of the The intention was to describe a house qualification (the nature of which is con- formerly numbered four, the description tained in the third and the description in was insufficient, and there was power to the fourth column of the form) stand amend. But then comes the proviso, and on the same footing, and that if the was this amendment a description of an barrister may amend the place of abode, “other qualification than that which is and may, where the place of abode in described?” Taking this proviso in con. the list intelligibly describes another junction with the words, * his qualificaplace, amend by inserting another tion," previously used, and seeing that to number, namely, that of the house in- a person leaving the street when this tended, on the ground of the place of house was number four, and returning abode being "insufficient," which includes without knowing of the alteration, it would erroneous ; he may similarly also amend indicate this house, it is impossible to as erroneous the description of the quali- say this is a description of another qualification. Unless it be something entirely fication, it is an insufficient description of different so as to come within the proviso the claimant's qualification, not a descripthat, whether any person shall be ob

tion of another qualification; it is the old jected to or not, no evidence shall be given description, which at one time was true. of any other qualification than that which And as respects the exception, "except is described in the list of voters or claim, for more clearly and accurately defining as the case may be, nor shall the barrister the same," the same rule applies; it be at liberty to change the description of would be a true description to a person the qualification as it appears in the list, who left the street several years back, except for the purpose of more clearly and a false one to a person who only knew and accurately defining the same," which the new state of things. Throughout the makes a distinction between the case of the section, so far as it applies, the word qualification, or description of it, and that hisgoverns the meaning, and as the of the description of the place of abode. qualification is the same, and the descripIt is necessary, therefore, for us to see tion one which might in a sense be true, if the barrister can alter an erroneous de- inasmuch as it might indicate this house scription of the qualification, looking to to some people, and there was no falsificathe former words and this proviso, which tion, the revising barrister ought to have is a proviso with an exception. As to amended. The cases relied on by the rethose former words, suppose the case of spondent do not apply, as will appear when a street with numbered houses, and that those cases, namely, Bartlett v. Gibbs (5) number four is described as forty, objec- and Onions v. Bowiller (6) are taken in tion taken, and it turns out there is no connection with Flounders v. Donner (2), nu ver forty in the street, this would be and also Hitchins v. Brown (7), in one of not an erroneous but an insufficient num- which, Flounders v. Donner (2), Erle, C.J., ber; it would be just as if there were explains that there were no sufficient no number in the description, and it materials to amend by inserting the seems to me that the barrister could number; for in those two cases the amend as if there were a total omission character of the qualification would have of any number, and if there be a number been entirely changed by the proposed forty in the street his power is clearly not amendment, the true qualification being taken away, the description is still insuffi- houses in succession, and no particular


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