judgment is correct. A summons is a stay of proceedings from the time it is returnable; and there is no difference in that respect between a third and a second summons. [Rolfe, B.-After a second summons, the party has the remedy in his own hands; and therefore there is no need of a stay of proceedings.] Formerly there must have been three summonses, and an affidavit of attendance thereon, before a judge would make an order ex parte (a). The alteration in the practice is an indulgence to the party, which he may waive. [Parke, B.-As the defendant did not avail himself of his remedy, the other side might reasonably suppose that he did not intend to pursue that course.] A party who is compelled to take out a third summons has the same privilege as before. [Platt, B.-Suppose the defendant had taken out a fourth or a fifth summons, would that be a stay of proceedings? It is difficult to see what limit there is. Parke, B.-The defendant should have taken care that the affidavit and order were made on the day the second summons was returnable.] Lush appeared to support the rule, but was not called upon. Per CURIAM (6).—The judgment being regular, the rule must be absolute for setting aside the judge's order; but the defendant may have liberty to set aside the judgment on payment of costs. (a) 1 Tidd. Prac. 511. Rule accordingly. (b) Pollock, C. B., Parke, B., Rolfe, B., and Platt, B. 1848. HAWKINS บ. WILKINSON. 1848. May 11. A cause and all matters in difference be THIS TATTERSALL v. PARKINSON. was a rule calling on the plaintiff to shew cause why he should not pay to the defendant the sums of 217. 16s. 2d. tween the par- and 12s. Od., pursuant to an award. ties were re ferred to two arbitrators and costs of the cause to abide the result. The umpire awarded that all further proceedings in the cause should thenceforth cease and be no further prose It appeared from the affidavits, that an action was brought an umpire: the by the plaintiff against the defendant, in which several issues were raised; and that, by a judge's order, all matters in difference between the parties were referred to two arbitrators, with power to appoint an umpire: the costs of the cause to abide the result, and the costs of the reference and award to be in the discretion of the arbitrators. The umpire awarded, "that all further proceedings in the said cause shall henceforth cease, and be no further prosecuted;" that the plaintiff should, on a certain day, "pay to the defendant 12s. Old., being the amount found due to him, and that, to him. Ad upon payment thereof, the defendant should deliver to the plaintiff the four ash-pans mentioned in the particulars of the matters in difference;" and "that each of them, the plaintiff and defendant, should bear and pay his own costs of the 128.04d. of the reference, and that the costs of the award should be A rule having cuted, and that the plaintiff should pay to the defendant 128. 0 d., found to be due mand was made of 217. the costs in the cause, but not been obtained, borne and paid by them in equal moieties." A personal calling on the plaintiff to shew demand of the sum of 217. 16s. 2d., being the costs in the cause, had been made upon the plaintiff, and payment refused; but no demand had been made of the sum of 12s. Old. cause why he should not pay the defendant both those sums, the Court, con sidering the Pashley shewed cause.-First, the award is bad upon the validity of the face of it. The costs of the cause are to abide the result; award doubtful, the rule abso lute even as to the sum demanded. refused to make but there is no result in favour of either party: the umpire only awards that all proceedings in the cause shall thenceforth cease. Where a replevin suit was referred to arbitration, the costs of the suit to abide the event, and the arbitrators awarded that the plaintiff should pay to the defendant 67., and that the action should be no further prosecuted, 1848. v. PARKINSON. it was held, that the award did not shew who ought to pay the costs, and consequently was not final: In re Leeming TATTERSALL and Fearnley (a). The Court there say, that "it must appear by the award that the action is finally determined in favour of one of the parties, or else it cannot be ascertained how the costs are to go." Blanchard v. Lilly (b) is distinguishable; for there the arbitrator awarded that certain actions be discontinued, and that each party pay his own costs, which was, in effect, an award of a stet processes. Secondly, there has been no demand of the sum of 12s. Old.; and the authorities shew that, in a case of this kind, a demand is equally necessary as on a motion for an attachment: Rickards v. Patterson (c), Winwood v. Hoult (d). Hugh Hill, contrà.-First, the rule may be absolute, at least as to the 217. 16s. 2d., which sum has been demanded. [Parke, B.-You do not release the 12s. Od.] It may be made part of the rule, that the claim to the 12s. Old. has been abandoned. [Parke, B.-You cannot have a rule absolute in this case, unless you could have an attachment. The defendant ought not to make this application as it were piecemeal.]-Secondly, the award is sufficient. The costs are to abide the result, not the event. It is clear that nothing is due to the plaintiff; therefore the decision in the action is against him. In addition to that, he is ordered to pay the defendant the sum of 12s. Od. found due to the latter. [Rolfe, B.-If the defendant were indebted to the plaintiff in 201., and the plaintiff indebted to the defendant in 201. 12s. O d., then the award would be correct.] Every intendment will be made in favour of the award; and, in the view suggested, it is perfectly correct. (a) 5 B. & Ad. 403. (b) 9 East, 497. (c) 8 M. & W. 313. (d) 14 M. & W. 197. 1848. TATTERSALL v. PARKINSON. POLLOCK, C. B.-I do not come to that conclusion with sufficient certainty to induce me to think that we ought to exercise the extraordinary power of the Court in enforcing the award. The rule must be discharged with costs. PARKE, B., and ROLFE, B., concurred. Rule discharged with costs. May 11 & 26. FAVIELL V. THE EASTERN COUNTIES RAILWAY A writ having MARTIN moved for a rule calling on the plaintiff to shew issued in an action of debt against an incorporated railway company, the defendants' attorney consented to a judge's order referring to ar bitration" the claims of the plaintiff in the The action." The plaintiff claimed, before the arbitrator, a sum for extra work occa cause why the award made in this cause should not be set aside. In the year 1841, the plaintiff entered into a contract under seal with the Eastern Counties Railway Company for the construction of certain portions of their line at a stipulated price, and according to certain drawings, plans, and specifications. The deed contained a clause that the plaintiff should not be entitled to charge for any alteration or addition, unless made under the sanction of a note in writing signed by two of the directors of the Company. The deed also contained a covenant by the Company to deliver possession of certain land to the plaintiff within a specified sioned by the defendants' breach of covenant in not giving the plaintiff possession of certain land at a stipulated time. The arbitrator entertained this claim, though objected to, and awarded the plaintiff a sum in respect of it. The Court having refused to set aside the award-Held, (on motion to enforce it under the 1 & 2 Vict. c. 110), first, that if the matter in dispute were not within the jurisdiction of the arbitrator, the defendants should have applied to the Court to revoke the submission; but not having done so, and the plaintiff having set up this matter as a claim in the action," and the arbitrator having so decided in respect of it, his award was binding, how ever erroneous. Secondly, that the submission was valid, though the attorney had no authority, under seal, to defend or refer the cause. time, for the purpose of executing his contract. A portion of the work consisted of an extensive embankment, which the nature of the soil rendered difficult and expensive to construct, and which, as the plaintiff alleged, was rendered the more so by reason of the defendants' having failed to put him in possession of the land at the stipulated time. The plaintiff proceeded with the work, and sent in a claim of 10,3071. Os. 1d. for extra expenses incurred by him in the execution of his contract, by being, as he alleged, delayed by the Company in getting possession of the land. This claim having been disallowed, the plaintiff brought the present action of debt for work and labour, to recover that sum, together with a portion of the stipulated price, amounting in the whole to about 15,000l. The writ was tendered to the defendants' attorney, who thereupon consented to refer the matter to a legal arbitrator, and a judge's order was drawn up, by which "the claims of the plaintiff in this action, and the set-off of the defendants' therein," were alone referred. It was urged before the arbitrator, that the plaintiff was not entitled to recover in this action of debt the amount of the extra work occasioned by the non-delivery of the land, and that his only remedy was by action for damages for the breach of covenant. The arbitrator, however, received evidence of the extra work, and awarded "that the plaintiff was entitled to recover, in respect of his said claim, the sum of 14,4107. Os. 7d., and that the defendants were entitled, in respect of their set-off in the said action, to the sum of 18207. 11s., and that the plaintiff was entitled to recover the balance, the sum of 12,589l. 9s. 7d." The defendants' attorney deposed, that he had no authority under the seal of the Company to sign the consent to the reference, but was only verbally authorised by the chairman of the directors, and that he had no warrant to defend made out or executed in any way, and that there was no entry of record ever made in respect of any such warrant. 1848. FAVIELL v. EASTERN COUNTIES RAILWAY Co, |