aforesaid, in the said county, servant to the said C. Granville, that he, the said E. Copestick, hath, in his said service, been guilty of certain misconduct, miscarriage, and misbehaviour towards him the said C. Granville, in that he, the said E. Copestick, did, on, &c., absent himself from the said C. Granville's service, without his consent; and whereas, in pursuance of the statute, &c., I have duly examined, &c., and have adjudged and determined that he, the said E. Copestick, hath been guilty, &c., in that he, the said E. Copestick, did, on &c., absent himself, &c. These are to command you," &c.

Bodkin, Fry, and Huddleston, for the prisoner:

The warrant of commitment is insufficient in not stating that the prisoner was servant in any particular character or capacity, Reg. v. Lewis (1); unless it appears that the prisoner was employed in one of the capacities mentioned in 4 Geo. IV. c. 34, s. 2, there is nothing to give the magistrate jurisdiction: Rex v. Hulcott (2).

Whitehurst, contrà, being called upon, admitted that the commitment was not sustainable.

Prisoner discharged.

REGINA v. HARRIS (3).

(13 L. J. M. C. 162-163; S. C. 8 Jur. 516.)

Criminal information-Time of moving for.

The applicant for a criminal information must make his motion either in the Term immediately succeeding the time when the circumstances come to his knowledge, or so early in the next Term as to afford the defendant a reasonable opportunity to show cause in that Term.

In re COPESTICK.

F. V. LEE moved for a criminal information against Mr. Harris, the mayor of Abingdon, upon affidavits which stated that an information was laid before him on the 30th of January last, under the 57 Geo. III. c. 93, and 7 & 8 Geo. IV. c. 17, charging a person with having extorted from one Westbrook, the complainant, 2s. 3d. for a warrant of distress, 2s. 6d. for an appraisement stamp, and 6d. for an appraisement, when no appraisement had been made and no stamp used. The summons was issued on the 6th of February, and the case was heard on the 13th of that month, when the charge was dismissed, an appraisement on a stamp being produced. It had been subsequently ascertained that Harris, in the interval between the lodging of the information and the hearing, had gone (3) C. O. R. 48, p. 524.

(1) 13 L. J. M. C. 46.
(2) 6 T. R. 583.

1844. June 8.

Bail Court.

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with an attorney's clerk named Godfrey and induced the appraiser to make out the appraisement on a stamp. The complainant had first received the intelligence about the 10th of April, and on the 4th of June he sent copies of the affidavits, on which this motion was made, to Harris. No reason was assigned for this delay.

WIGHTMAN, J.:

I have always understood the rule to be, that a party applying for a criminal information must come either in the same Term as that in which he obtains intelligence of the matter, or within such a period in the succeeding Term that the person against whom the application is made may show cause against it in that Term. Now here the applicant does not come promptly; he *was acquainted with the facts in the middle of April, and he might at all events have come on the 5th of June. Without offering any excuse, however, or assigning any reason for the delay, he has permitted one whole Term and so much of another to elapse, that it is impossible for the party to show cause in this Term. An accusation of this kind is not to be kept hanging over a man's head the whole of the long vacation. According to the rule of practice, a party making an application like this must either come in the Term after he knows of the matter, or within such time in the next Term that the accused may be reasonably called upon to show cause. That rule has not been complied with, and consequently there will be no rule.

Lee therefore

Took nothing.

PRACTICE CASES.

IN THE MATTER OF ARBITRATION OF JENKINS AND WIFE
AND OTHERS.

(1 Dowling, N. S. 276–277; S. C. 11 L. J. Q. B. 71.)

Where arbitrators differ, and the case is referred to an umpire, and one of the parties requests him to recall the witnesses, and he declines to do so, and decides on the notes of the arbitrators, the award will be set aside. M. SMITH showed cause against a rule nisi obtained by Smirke for setting aside an award on the ground, and among others, that the umpire had not examined the witnesses himself, but had formed his opinion on the case by the note of the two arbitrators. It appeared from the affidavit, that the matter in difference had been referred to two arbitrators, and in the event of their differing, to an umpire. The case having been considered by them, and the witnesses examined, they differed, and the umpire was accordingly appointed. He was requested by one of the parties to re-examine all the witnesses who had been called before the arbitrators, this he declined doing, as the request for him to do so was not the joint request of both parties. He therefore merely read the notes of the arbitrators taken during the enquiry, and on them he founded his opinion. M. Smith contended that on the affidavits it would appear that this objection was clearly waived, and that therefore it could not now prevail to invalidate the award.

Erle and Smirke submitted that the statement made in the affidavits, in answer to the present rule, did not show a waiver of the objection urged against the award.

PATTESON, J.:

The question of waiver must depend on looking closely into the affidavits, I will therefore read them.

Cur, adv. vult.

1841.

[ 276 ]

PATTESON, J.:

The only objection which I have to consider, is that with respect to the conduct of the umpire in not examining the witnesses, although requested to do so. I am bound on that objection to set it aside. It appears that the umpire was specifically requested to

In re JENKINS. [ *277 ]

B.

Q.

examine the witnesses himself, and he declined to do so, unless requested by both parties. He seems to have thought that he was not authorized to examine them at the request of one. But it was his duty to do so at the request of either. The only case where the notes of the arbitrators can be made the foundation of an umpire's judgment, is where it is done by consent. Here, no consent was given. If either party requires him to examine the witnesses, he is bound to do so, and here he was requested to do so. Then it is said that the objection was waived, but from the contents of the affidavits, it does not appear to me that what passed amounted to a waiver. The present rule must, therefore, be made absolute.

Rule absolute,

1841.

[ 325 ]

[ *326 ]

BARTLE v. MUSGRAVE (1).

(1 Dowling, N. S. 325–326; S. C. 5 Jur. 1661.)

Where the Master has taxed costs, as between attorney and client, pursuant to the directions of an award, which directions, it is suggested, are an excess of authority on the part of an arbitrator, the Court will not direct the taxation to be reviewed, the proper preliminary step being to move to set aside the award.

BUSBY moved for a rule, to show cause why the Master's taxation should not be reviewed. The objection to the taxation was, that he had taxed the costs as between attorney and client, instead of taxing them as between party and party. The taxation had taken place in pursuance of an award, by which the arbitrator directed that the costs should be taxed as between attorney and client; but on examining the order of reference, it would be found that the arbitrator had no power to direct the costs to be taxed in such a manner. It was a clear excess of jurisdiction on his part. The case of Seccomb v. Babb (2), was an authority to show that it was an excess of jurisdiction on the part of the arbitrator. There, the form of the submission was in the same terms as the present case; and there, the arbitrator awarded costs to be payable as between attorney and client, and the Court of Exchequer held that such an award was an excess of jurisdiction on the part of the arbitrator. The money directed by an award to be paid, had been paid, and therefore, the only remedy which remained to the party aggrieved was to apply to review the taxation.

(1) Arbitration Act, 1889, (52 & 53 Vict. c. 49), s. 2, Sched. 1 (i).

(2) 6 M. & W. 129,

PATTESON, J.:

BARTLE

v.

I do not see how I can interfere. I have no authority to alter MUSGRAVE. the award. The award being produced before the Master, for the

purpose of taxing, the successful party his costs, must tax according to the language of the award. But the present application, in fact, asks the Court to alter the award. If the decision by the arbitrator is an excess of jurisdiction on his part, the application should be made to set aside the award pro tanto. I do not see why you should not move to set aside the award. The fact of having paid the money awarded, does not appear to me to make any difference, or prevent your moving.

Busby then obtained a rule nisi for setting aside the award, on the ground of excess of jurisdiction on the part of the arbitrator. Rule accordingly.

WYATT v. CURNELL.

(1 Dowling, N. S. 327.)

Where a cause and matters in dispute, are referred to an arbitrator, it is sufficient for him, in his award, to state that he finds the plaintiff "has no cause of action," without making any reference to matters in dispute, independent of the action, it not being shown that any matters in dispute beyond the action are brought before him.

SEWELL moved for a rule to show cause why the award in this case should not be set aside, on the ground that the arbitrator had not decided on all matters referred to him. The matter in dispute was a builder's account. The declaration was dated the 2nd of February, 1841, and the plea was dated the 15th of June, 1841. The order of reference was made on the 19th of July, 1841. By the order, the cause and all matters in dispute between the parties, were referred to the arbitrator. On the 10th of October he made his award in these terms, "I do award, order and adjudge, that the plaintiff has no cause of action." These words only referred to the time of making the award, and not to the time of making the submission. From what appeared, therefore, on the face of the award, non constat, that several causes of action might not have arisen between those two periods. Besides, the award did not refer at all to the maters in dispute, independent of the cause.

(WIGHTMAN, J.: He has awarded upon all the matters, which, a far as you show, were submitted to him.)

1841.

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