pleading "not guilty, by statute," under the 14 Geo. 3, c.78 ? Supposing the Court to be of opinion that the above statutes did not take away the power of pleading not guilty; then the next question for the opinion of the Court was, whether the defendant was entitled to the protection of the statute by pleading the general issue, and giving the matter in evidence, although the said wall, which was built upon, and added to by the defendant, was not a party wall or fence wall, and although the venue was improperly laid, as it ought to have been laid in Middlesex. If the Court should be of opinion that the above statutes, or either of them, applied, it may not be material to advert to this point. Then the arbitrator directs that the verdict for the plaintiff shall be set aside, and the verdict entered for the defendant in lieu thereof, if the Court should, on such application, be of opinion, that the above statutes, or either of them, have not taken away from the defendant the power of pleading "not guilty," and of giving the special matter in evidence. The arbitrator then directs, that if the Court of Exchequer should think, that upon the common plea of "not guilty" the defendant was entitled to avail himself of the objection, under the provision of the 14 Geo. 3, c. 78, s. 100, that the venue was laid in Surrey, and not in Middlesex, the verdict entered for the plaintiff was to be set aside; but if the Court were of opinion, that he was not able to avail himself of the objection that the venue was laid in Surrey, then he awarded, that the verdict entered for the plaintiff should stand, and that the damages in the declaration should be reduced to 40s. The first question which the arbitrator refers to us is, whether the right of pleading the general issue, and giving the special matter in evidence, given by the statute 14 Geo. 3, c. 78, is taken away by the statute 5 & 6 Vict. c. 97. We, who heard the argument, My Lord Chief Baron, my Brother Platt, and myself, all agree that the right was taken away. That statute provides, in section 3, "that so much of any clause or provision in any act or acts, commonly called public, local and personal, or local and personal, or in any act or acts of a 1846. RICHARDS v. EASTO. 1846. RICHARDS v. EASTO. local and personal nature, whereby any party or parties are entitled or permitted to plead the general issue only, and to give any special matter in evidence without specially pleading the same," shall be repealed. The act of the 14 Geo. 3, c. 78, was not an act "commonly called public, local and personal." That designation did not take place until long after the statute passed. On the 1st of May, 1797, the House of Lords resolved, that the Queen's printer should class the general statutes, and special and public, and local and private, in separate volumes; and on the 8th of May, 1801, there was a resolution of the House of Commons, agreed to by the House of Lords, that the general statutes, public, local and personal, in each session, should be classed in separate volumes: that was the commencement of that division of the statutes. The question, however, is, whether the act does not fall within the description of an act "of a local and personal nature." It seems singular that the 7 & 8 Vict. c. 84, should not have been classed among public, local and personal acts; for it is confined in its operations to districts in and about the metropolis, with power to her Majesty to extend its limits. How this has happened cannot be explained, for it is clearly of a local and personal nature, local in being confined to local limits, and personal as affecting a particular description of persons only, as distinguished from that of all the Queen's subjects. The 14 Geo. 3, c. 78, is of the same character in its general scope, the only doubt that can be raised as to its being of a local and personal character is, that it is not of a local and personal character only, as some of the clauses affect all the Queen's subjects, namely, the 84th and 86th relating to accidental fires, and the statute is in that respect public. If the defence in the action arises out of either of these clauses, it would probably be held that the statutable plea was not taken away; but the defence in this case arises under that part of the act which is not public. In all other respects than as far as it relates to accidental fires, the act falls under the category of a statute of a local and personal nature; and we, therefore, all agree that the statutable plea of the general issue, which away The only remaining question, which according to the finding of the arbitrator becomes material, is, whether the non-compliance with the requisites of the statute 14 Geo. 3, c. 78, could be given in evidence under the ordinary plea of "not guilty." Unless the privileges are meant by that statute to be available to the defendant as a good defence without pleading, or independent of the form of plea, as want of an apothecary's certificate has been held to be, the defendant cannot avail himself of the defence on a plea of "not guilty," which merely denies the fact of a trespass having been committed. We think, too, that the meaning of the clause on which the question arises is, that under the plea of not guilty given by the statute, the non-compliance with the form prescribed would be a defence; but not generally, whatever the form of plea might be. That section is the 100th, which enacts, "that no action, or suit, shall be commenced against any person or persons for anything done in pursuance of this act," &c. (His Lordship here read the clause). "The defendant may plead the general issue, and give this act and the special matter in evidence at any trial or trials to be had thereupon." The special matter, which the defendant is permitted to give in evidence, consists of all that the statute makes a defence; that is, either that the act was done by the authority of the statute, and then the defence is complete; or, that it was done in pursuance of it, in the sense properly given by the addition of those words; in which case there may be a defence, if the defendant proves, that there was a sufficient tender of amends, or, that the plea was within the statutable limits, and that the venue was wrong, or unless the plaintiff prove that the action was commenced in due time, which will primâ facie appear by the record, or that he gave a notice as required by the act. We think that none of these defences are available except under the statutable plea of not guilty, 1846. RICHARDS v. EASTO. 1846. RICHARDS v. EASTO. and that the right of giving evidence of special matter under that plea being taken away, the defendant must plead such matter specially in order to avail himself of it. The award, therefore, will stand as a verdict for the plaintiff, and the rule must be discharged. Rule discharged. An action on deed was PROUDFOOT v. POILE. THIS was an action of covenant on an apprentice deed, an apprentice and having come on for trial, was referred to arbitration, together with two other actions, in one of which the infant apprentice sued by his next friend; the costs of the causes to abide the event, and the costs of the reference and award to be in the discretion of the arbitrator, who was to certify referred to arbitration by order of nisi prius, together with two other actions, in one of which the infant appren tice sued by to whom and by whom the same were to be paid. The his next friend, submission contained a clause, enabling the Court to order the award to be amended. The arbitrator awarded that abide the event, the verdict in the above cause should be entered for the the costs of the causes to and the costs and award to of the reference defendant, that the two other actions should be no further prosecuted, and that the infant should pay the costs of the reference and award. be in the dis- arbitrator. the above cause the defendant, that the two other actions should be no further prosecuted, and that the infant should pay the costs of the reference and award. award was not Humfrey had obtained a rule nisi to set aside the award on the grounds, first, that the arbitrator had exceeded his authority in ordering an infant to pay costs; secondly, that the award was not final, inasmuch as the costs of the reference were ordered to be paid by a person who was no party to the cause. Lush shewed cause. The arbitrator had power to order the costs to be paid by any one party to the reference. A Held, that the submission to arbitration by an infant is voidable only, not bad by reason void. After he is of age he may apply to set it aside, but of its directing an infant to if he does not, he admits that he was a competent party to pay costs. the reference, and that the arbitrator had jurisdiction over him. So far as regards the infant himself, the Court cannot The Court Humfrey, to support the rule. The submission must receive a reasonable construction. There is a reference of three actions, to one of which the infant is no party, and the costs of the causes are to abide the event; the costs of the reference and award are to be in the discretion of the arbitrator; the plain meaning of which is, that the costs of the reference and award of each particular cause shall be in the discretion of the arbitrator, in the same way as if it had been separately referred. [Alderson, B.- How is the arbitrator to divide the costs of the award? Pollock, C. B.Suppose several causes are referred to the arbitrator to say by whom and to whom the costs are to be paid, and a person not a party to any one of the causes comes in by rule of Court, and makes himself a party to the reference, the arbitrator might direct him to pay the whole costs.] There would have been no difficulty in apportioning the costs according to the expenses of the different actions. [Pollock, C. B.-If there be any state of circumstances under which such an award could be made, that is enough to support it. Now suppose, in this case, the plaintiffs in the two actions admitted before the arbitrator that they had no cause of action, and the whole costs of the reference and award had been occasioned by the other plaintiff persevering in his action; could not the arbitrator make him pay all 1846. PROUDFOOT v. POILE. |