termination, it was for the plaintiff to show satisfactorily why he NICHOLLS had not proceeded with it.

V.

WILSON.

ALDERSON, B., and GURNEY, B., concurred.

Rule refused.

LEWIS v. LORD TANKERVILLE.

(11 Meeson & Welsby, 109-110; S. C. 12 L. J. Ex. 234; 2 Dowl. N. S. 754;

7 Jur. 204.)

An application to set aside a warrant of attorney, on the ground of its not having been duly attested in compliance with the statute, can only be made by the party himself, or by an attorney employed and authorized by him for that purpose.

BUTT had obtained a rule, calling on the plaintiff to show cause why a warrant of attorney given and executed by the defendant should not be set aside, on the ground that it was not attested by an attorney nominated by the party executing it, as required by stat. 1 & 2 Vict. c. 110, s. 9(1). It appeared from the affidavits, that the defendant had been for some years resident abroad, and that the application was made by an attorney on his behalf, who stated, in the affidavit on which the rule was obtained, "that for many years previous to the execution of the warrant of attorney in question, and at the period at which the same bears date, and thenceforth hitherto, this deponent was, and still is, the attorney for the defendant."

Jervis showed cause:

It does not appear that the person who makes this application. has any instructions from Lord Tankerville, or any authority from him to make this application, and the Court will not set aside a warrant of attorney except at the instance of the defendant himself, or on the application of an attorney employed by him for that purpose.

Butt, contrà:

*

The statute does not contain any provision as to the party applying; nor is there any authority to support such an objection as the one here made.

(ALDERSON, B.: There is no affidavit that the application is made on behalf of and by the desire of the defendant.)

(1) Repealed by 32 & 33 Vict. c. 83, s. 20. See now Debtors Act, 1869 (32 & 33 Vict. c. 64), s. 24.—A. C.

1843.

Jan. 28.

Exch, of
Pleas.

[109]

LEWIS c.

LORD TANKER

VILLE.

[110]

*The authority sufficiently appears, for it may very well be inferred that an attorney who has a general authority to act for another, has power to do so in a particular instance.

LORD ABINGER, C. B.:

There should have been either an affidavit made by Lord Tankerville himself, or one stating an authority from him to make the application, so as to show that it was made by a party acting as attorney for him in the particular transaction. This is too obvious to require any authority, and I think the rule ought to be discharged with costs.

PARKE, B.:

It ought to be the application of the party himself, or that of some one standing in the same position, as for instance, his assignees in case of bankruptcy.

ALDERSON, B.:

There is no statement in the affidavit that the attorney is Lord Tankerville's attorney for this particular purpose, and I think the Courts have never interfered without the application being made by the party himself or some one claiming under him.

Rule discharged, with costs.

1843. Jan. 31.

Exch. of
Pleas
[110]

[111]

LEWIN v. HOLBROOK.

(11 Meeson & Welsby, 110-112; 12 L. J. Ex. 269; 2 Dowl. N. S. 991.)

A cause and all matters in difference were referred by an order of reference to the decision of an arbitrator, the arbitrator to make and publish his award, ready to be delivered to the parties, or either of them, "or if they or either of them should be dead before the making of the said award, to their respective personal representatives who should require the same," on or before a certain day. Several meetings were from time to time held, but one of the parties died before the reference was concluded. After his death, the arbitrator was requested to proceed with the reference, but he declined doing so, the executrix of the deceased party having refused to attend, and protested against his proceeding: Held, that the Court had no power to direct the arbitrator to proceed, or to compel the executrix to attend before him.

THIS was an action by landlord against tenant for injuries and dilapidations to certain demised premises. After issue joined, the cause and all matters in difference were by the consent of the

LEWIN

attornies on both sides referred to arbitration, under a Judge's order dated the 18th March, 1841, whereby "the arbitrator was to HOLBROOK. make and duly publish his award in writing of and concerning the matters, ready to be delivered to the said parties or to either of them, or if they or either of them should be dead before the making of the said award, to the respective personal representatives who should require the same, on or before the 1st day of Trinity Term next ensuing the day of the date thereof, or on or before any other day to which the said arbitrator should by any writing under his hand from time to time enlarge the time for making his said award." And the arbitrator was to be "at liberty, if he should think fit, to examine the parties to the suit, who were to produce before him all such books, deeds, papers and writings in their or either of their custody or power relating to the matters in difference, as he should require." Meetings were from time to time held before the arbitrator until the 27th of December, when the defendant died. During the month of January, 1842, several applications were made to the arbitrator to proceed with the reference, who declined to do so until there was a legal representative of the defendant. In August, the defendant's will was proved in the Prerogative Court of Canterbury by Elizabeth Holbrook, the widow and sole executrix of the defendant. After several applications, the arbitrator appointed a meeting for the 6th January, 1843, notice whereof was given to the defendant's attorney. The plaintiffs accordingly attended by counsel before the arbitrator, but no one appeared on the other side; and the arbitrator stated that the defendant's attorney had served him with notice on behalf of the executrix, that in consequence of the defendant's death the cause had abated, and protesting against his making any award thereon. He then declined to proceed with the reference, and recommended an application to the Court. *The time for making the award had been from time to time duly enlarged.

Montagu Chambers now moved for a rule to show cause why the arbitrator should not proceed with the reference, and make and publish his award as if the defendant were still living: Although in ordinary cases the death of one of the parties operates as a revocation of the arbitrator's authority, it is not so where, as in this case, the order of reference expressly provides for the event, by directing the award to be delivered to the personal representatives.

[ *112 ]

LEWIN

v.

HOLBROOK.

1843. Jan. 27.

Erch. of
Pleas
[113]

(LORD ABINGER, C. B.: What power have we to compel the executrix in this case to go before the arbitrator: how can we enforce this agreement after the death of one of the parties? We cannot attach the executrix.)

It must be implied here that the intention of the parties was, that the death of either should not revoke the arbitrator's authority; and if the arbitrator proceeds, his award will be good (1), though it cannot be enforced by attachment.

PARKE, B.:

If you go on with the reference and get your award, then you have a remedy against the personal representative, because the defendant has agreed that his assets shall be bound thereby; but the Court has no power to direct the arbitrator to proceed.

WILSON v. BRETT.

Rule refused.

(11 Meeson & Welsby, 113-116; S. C. 12 L. J. Ex. 264.)

A person who rides a horse gratuitously, at the owner's request, for the purpose of showing him for sale, is bound, in doing so, to use such skill as he actually possesses; and if proved to be a person conversant with and skilled in horses, he is equally liable with a borrower for injury done to the horse while ridden by him.

CASE. The declaration stated, that the plaintiff, at the request of the defendant, caused to be delivered to the defendant a certain horse of the plaintiff of great value, to wit, &c., to be by the defendant shown to a certain person to the plaintiff unknown, and to be re-delivered by the defendant to the plaintiff on request, and that thereupon it then became and was the duty of the defendant to take due and proper care of the said horse, and to use and ride the same in a careful, moderate, and reasonable manner, and in places fit and proper for that purpose: yet the defendant, not regarding his duty &c., did not nor would take due and proper care of the said horse, but on the contrary used and rode the same in a careless, immoderate, and improper manner, and in unfit and improper places, &c., whereby the said horse was injured, &c. Plea, not guilty.

At the trial before Rolfe, B., at the London sittings in this Term, it appeared that the plaintiff had intrusted the horse in question to

(1) See Clarke v. Crofts, 29 R. R. 527 (4 Bing. 143; 12 Moore, 349).

the defendant, requesting him to ride it to Peckham, for the purpose of showing it for sale to a Mr. Margetson. The defendant accordingly rode the horse to Peckham, and for the purpose of showing it, took it into the East Surrey Race Ground, where Mr. Margetson was engaged with others playing the game of cricket and there, in consequence of the slippery nature of the ground, the horse slipped and fell several times, and in falling broke one of his knees. It was proved that the defendant was a person conversant with and skilled in horses. The learned Judge, in summing up, left it to the jury to say whether the nature of the ground was such as to render it a matter of culpable negligence in the defendant to ride the horse there; and told them, that under the circumstances, the defendant, being shown to be a person skilled in the management of horses, was bound to take as much care of the horse as if he had borrowed it; and that, if they thought the defendant had been negligent in going upon the ground where the injury was done, or had ridden the horse carelessly there, they ought to find for the plaintiff. The jury found for the plaintiff, damages 51. 10s.

Byles, Serjt., now moved for a new trial, on the ground of misdirection:

There was no evidence here that the horse was ridden in an unreasonable or improper manner, except as to the place where he was ridden. The defendant was admitted to be a mere gratuitous bailee; and there being no evidence of gross or culpable negligence, the learned Judge misdirected the jury, in stating to them that there was no difference between his responsibility and that of a borrower. There are three classes of bailments; the first, where the bailment is altogether for the benefit of the bailor, as where goods are delivered for deposit or carriage; the second, where it is altogether for the benefit of the bailee, as in the case of a borrower; and the third, where it is partly for the benefit of each, as in the case of a hiring or pledging. This defendant was not within the rule of law applicable to the second of these classes. The law presumes that a person who hires or borrows a chattel is possessed. of competent skill in the management of it, and holds him liable accordingly. The learned Judge should therefore have explained to the jury, that that which would amount to proof of negligence in a borrower, would not be sufficient to charge the defendant, and that he could be liable only for gross or culpable negligence.

R.R.-VOL. LXIII.

34

WILSON

v.

BRETT.

[114]