[*340

opinion, fairly taken, *and by the recommendation, of a gentleman at the bar, whose ability and experience they might reasonably trust. But the advice of barristers, though it may prove the bona fides of those who follow it, cannot alter the nature of the thing done. The client takes the chance of such advice turning out to be unwarranted by law and condemned by the Court. We are not called upon to observe minutely on the advice here given: but we cannot refrain from saying that the contrivance for enabling the overseers to do, indirectly and at considerable cost, what was felt to be impossible if attempted directly, appears to us to be so very questionable, that neither the attorneys, nor perhaps even the officers, can be quite excused for adopting it.

There is a second certiorari: in so far as it comprises the same items it must succeed, and those items must be disallowed. By the act which gives the certiorari to remove audits, we have no power to take any middle course.

By that act we are also empowered to order the costs to be paid out of the parish rates. But, considering all the circumstances, that the conduct of the officers has been free from all ill intention, and the opposition to their proceedings harassing, we do not think ourselves bound to award any costs to the prosecutors. On the other hand, the act provides for reimbursing the auditor his costs out of the parish rates, unless this Court shall make any order to the contrary. We are of opinion. that this auditor ought not to be so reimbursed: and we order that he bear his own costs of this proceeding. Rule accordingly.(a)

(a) Reported by C. Blackburn, Esq.

*In the Matter of Arbitration between BUTLER, BAKER,

and MASTERS.

[*341

In showing cause against a rule for attachment for non-performance of an award, affidavits cannot be used to show that the award is impracticable, uncertain, or not final, nor can the award be impeached except for defects apparent on the face of it.

The rule, that an application once disposed of cannot be renewed under the same circumstances and for the same object, is not binding in all cases. Where an award directed that A. should pay the arbitrator's costs, and should be reimbursed by B., a rule for an attachment against B. for not reimbursing A. was discharged, because the affidavits did not show that A. had paid them to the arbitrator. A. had not then paid them, but had given his note for the amount, which he afterwards paid. On a second motion, then made, an attachment was granted, on the ground that the payment by A. was a new fact, which took the case out of the ordinary rule; it appearing also that there had been contumacy in the party against whom the rule was directed, and hardship on the applicant.

In this case, on a reference of two actions, Butler v. Masters and Masters v. Butler, Baker being also a party to the reference, the arbi trators had awarded that Butler and Baker should make a carriage-way, a right to which was claimed by Masters, over certain and, of which Butler was the occupier and Baker the owner, and a drain at the end

of the said carriage-way, in manner specified; that Butler should pay the costs of the actions, except the costs of certain issues; that Masters should, in the first instance, pay the arbitrators their costs and charges in respect of the reference and award, to be taxed by the Master, and that he should be reimbursed by Baker, who was also to pay the taxed costs of Masters in respect of the reference. The submission having been made a rule of court,

Watson, in Michaelmas term 1846, obtained a rule nisi to set aside this award on several grounds, and, among others, on the ground that the award, with respect to the manner specified of making the carriageway and drain, was impracticable; and, in support of the rule, affidavits were used to show this and other *matters dehors the award.

*342] This rule was argued in Easter term (May 5th) 1847, (a) and was

discharged in Trinity Term (May 25th) 1847.

Barstow, in Michaelmas term 1847, obtained a rule calling upon Butler and Baker to show cause why an attachment should not issue against them for contempt in not paying the taxed costs to be paid by them respectively, and in not making the carriage-way and drain to be made by them, in obedience to the said award and rule of Court.

The affidavits in support of the rule stated the necessary formalities as to the service of the rule of Court, award, and allocatur, and as to the demand of performance, but did not state that Masters had himself paid the charges of the arbitrators, which were to be reimbursed to him by Baker.

In Hilary term (January 28th) 1848,

Watson and Arney, on showing cause, referred to affidavits to show that the award was impracticable, unintelligible, uncertain, and not final. [Sir F. Thesiger here objected that matter not apparent on the face of the award could not be shown for cause against a rule for an attachment, and cited Macarthur v. Campbell, 2 A. & E. 52 (E. C. L. R. vol. 29), and Paull v. Paull, 2 C. & M. 235,† S. C. 4 Tyrw. 72.] They then contended that anything which would be a defence to an action on an award might be set up in answer to the rule for an attachment for disobeying the award; that an award might direct an impossible thing to be done; that this defect might not be apparent on the award itself; and *that it would be absurd to attach a person for not performing an impossibility.

*343]

Lord DENMAN, C. J.-We cannot go into extrinsic matters on this rule. The practice is well established.

PATTESON, J.-It would be a monstrous injustice to go into this extrinsic matter. The rule for an attachment is obtained on affidavit merely that the necessary formal steps have been taken. It would be unjust to act upon affidavits from the other side, which the party obtaining the rule would have no opportunity of answering. COLERIDGE and WIGHTMAN, Js., concurred.

(a) Before Lord Denman, C. J., Patteson, Wightman, and Erle, Js.

Watson and Arney then objected that the award, on its face, was uncertain; and also that the affidavits did not state that Masters had himself paid the arbitrators the costs which were to be reimbursed to him by Baker.

Sir F. Thesiger, and Barstow, contrà, contended that the award was sufficiently certain, and also that the payment by Masters sufficiently appeared from the affidavits.

The Court (Lord DENMAN, C. J., PATTESON, COLERIDGE, and WIGHTMAN, Js.) held the objection, that the payment by Masters was not stated, to be valid; and the rule was made absolute, that a writ of attachment should issue against Butler only, for not paying the costs of the actions; but that the rule should lie in the *office for a fortnight; and that the residue of the rule should be discharged.

[*344 Barstow, in Trinity term, 1848, obtained a second rule for an attachment, on affidavits showing all necessary formalities as on the first rule, and also the payment by Masters to the arbitrators. It appeared that, when the former rule for an attachment was obtained, Masters had not actually paid the arbitrators, but they had taken his promissory note for the amount. In Michaelmas term 1848, (a)

Watson and Arney showed cause, on the ground that the present rule was the renewal of an application which had been disposed of on the former rule; that the subsequent payment by Masters did not make the present a new case, because his promissory note had been taken in payment, and the argument in support of the former rule had been that the payment sufficiently appeared from the materials then before the Court. They cited Regina v. The Manchester and Leeds Railway Company, 8 A. & E. 413 (E. C. L. R. vol. 35), Rex v. Orde, 8 A. & E. 420, note (a) (E. C. L. R. vol. 35), Regina v. Barton, 9 Q. B. 982, note (b) (E. C. L. R. vol. 58), Regina v. The Great Western Railway Company, 5 Q. B. 597 (E. C. L. R. vol. 48), Regina v. Pickles, 3 Q. B. 599, note (a) (E. C. L. R. vol. 43), Rosset v. Hartley, 7 A. & E. 522 (E. C. L. R. vol. 34),(6) Bodfield v. Padmore, 5 A. & E. 785, note (a) (E. C. L. R. vol. 31), Saunderson v. Westley, 8 Dowl. P. C. 652, Regina v. Harland, 8 Dowl. P. C. 323, Ex parte *Hasleham, 1 Dowl. P. C. [*345 (N. S.) 792, Levi v. Coyle, 2 Dowl. P. C. (N. S.) 932, Dodgson v. Scott, 2 Exch. 457,† Ex parte Thompson, 6 Q. B. 721 (E. C. L. R. vol. 60), Stulz v. Wyatt, 6 Q. B. 666 (E. C. L. R. vol. 60).

Sir F. Thesiger, contrà.-The defect in the affidavits on the former rule could not have been then supplied; for an essential fact, the payment by Masters, did not exist. The present is a new case; and a fresh contempt has been committed. In Dixon v. Oliphant, 15 M. & W. 152,† a second rule for an attachment was made absolute, after a former motion nad failed on the ground of the defective service of a power of attorney.

(a) November 22d. Before Lord DENMAN, C. J., COLERIDGE, WIGHTMAN, and ERLE, Ja. (b) See Peterson v. Davis, 6 Com. B. 235 (E. C. L. R. vol. 60).

It is true that leave was given to make the second application; but the Court, referring to Levi v. Coyle and Ex parte Hasleham, observed that in those cases "the same questions were brought before the Court on amended materials; but here there has been a fresh demand of the costs, and a fresh contempt, after a proper service of the power of attorney has been effected. The defendant proceeds upon new matter, and does not bring into question the former decision of the Court." [Lord DENMAN, C. J.-There is no rule in this respect binding upon the Court in all cases.] Cur. adv. vult.

Lord DENMAN, C. J., in this vacation (February 24th), delivered the judgment of the Court

This motion for an attachment for a contempt of Court in neglecting to pay the costs of a reference and award was resisted on a preliminary ground. A similar motion was made some time ago and refused; and the Court has often said that they will not permit the renewal *346] of an application to their discretion which they have refused under the same circumstances and for the same object. This rule of practice, which has been laid down for the protection of parties against vexation, and to prevent the waste of public time, is by no means a privilege of the party, especially an offending party, and does not apply in the present case, because the circumstances were altered, no demand (a) of the money having been made before the first application, but such a demand having been made in the mean time.

On this ground of distinction, and the peculiar circumstances of this case, which displayed an unusual degree of contumacy and hardship, we think the rule must be absolute. Rule absolute.(b)

(a) See p. 342, antè. The word "demand" seems to have been written, by mistake, instead of "payment."

(b) Reported by H. Davison, Esq.

See Regina v. The Deptford Pier Company, 8 A. & E. 910, 917 (E. C. L. R. vol. 35). Regina v. East Lancashire Railway Company, 9 Q. B. 980 (E. C. L. R. vol. 58).

As to motion in Court on new materials, after failure at Chambers, see Peterson v. Davis, 6 Com. B. 235 (E. C. L. R. vol. 60).

*347]

*SHAW v. The YORK and NORTH MIDLAND Railway Company.

Case. The declaration alleged that defendants were proprietors of a railway and of carriages for the conveyance of passengers, cattle, goods, &c., for reward; that plaintiff delivered to them, and they received from him, a horse of plaintiff to be "safely and securely" carried by them upon their carriages, and to be safely and securely delivered to plaintiff, at a place mentioned, for reward. That thereupon it was their duty" safely and securely" to convey and deliver the horse as aforesaid; yet that defendants did not use due care about its conveyance, but so negligently conducted themselves therein, that, by reason of the defective state of the carriage in which the horse was conveyed, it was killed. Plea, denying that the horse was delivered and received "to be safely and securely" carried as alleged. Issue thereon. It appeared at the trial that the plaintiff had pointed out a defect in one of the partitions of a horse-box shown to him for the reception of his horse; that a servant of the defendants then, endeavoured to secure the partition, and assured the plaintiff that he had done so; that the

horse was carried in that box; and that the horse's death was occasioned during the journey by the insecurity of the partition. A receipt was given to plaintiff for the amount paid for conveyance of the horse, at the foot of which receipt was written: N. B. This ticket is issued subject to the owner's undertaking all risks of conveyance whatsoever, as the Company will not be responsible for any injury or damage (however caused) occurring to horses or carriages, while travelling, or in loading or unloading." Held:

That the terms of the memorandum formed part of the contract for the conveyance of the horse, and that they disproved the averment in the declaration that the defendants received the horse "to be safely and securely" carried.

Quare, whether, notwithstanding the terms of the memorandum, the plaintiff might not have alleged that it was the duty of the defendants to provide a sufficient carriage, and have charged them with the damage arising from a breach of that duty.

CASE. The declaration stated that the defendants were proprietors of a certain railway, to wit, The York and North Midland Railway, and of certain carriages used by them for the conveyance therein of passengers, cattle, goods, &c., in and upon the said railway, and other railways, for hire and reward; that the plaintiff, on, &c., at the request of the defendants, caused to be delivered to the defendants, and defendants then received from plaintiff, nine horses of the plaintiff to be safely and securely carried by defendants in and upon the carriages of defendants, and by the said railway and certain other railways, to wit, from York to Watford, &c., and to be safely and securely delivered *to the [*348 plaintiff at Watford aforesaid, for certain reasonable reward to defendants in that behalf. That it thereupon became and was the duty of defendants safely and securely to carry and convey and deliver the said horses of the plaintiff as aforesaid. Yet defendants, not regarding, &c., did not, nor would, use due and proper care in and about and for the carriage and conveyance as aforesaid of the plaintiff's said horses from York to Watford, but took so little and such bad care in this behalf, and so wrongfully, improperly, and negligently conducted themselves in and about the carrying and conveying of the said horses, that, by reason and in consequence of the insufficiency and defective state and condition of a carriage of the defendants wherein one of the said horses was then being carried and conveyed by defendants on the occasion aforesaid, the said horse, whilst being carried and conveyed therein by defendants, was killed.

Pleas 1. Not guilty. Issue thereon.

2. That defendants did not receive from plaintiff the said horses, or any of them, to be safely and securely carried by defendants in and upon the carriages of defendants, as in the declaration mentioned, to Watford, &c., to be safely and securely delivered to plaintiff at Watford aforesaid, modo et formâ, &c. Issue thereon.

3. That defendants received from plaintiff the said horses to be carried by defendants from York to Watford, subject to a certain contract between plaintiff and defendants that plaintiff should undertake all risks of conveyance of the said horses whatsoever, and that defendants should not be responsible for any injury or damage, however caused, occurring to the said horses while travelling on the said railway, or in loading or