on the several days and times aforesaid, the said game so preserved by the defendant upon the said last-mentioned farms as aforesaid, did great damage to the said last-mentioned farms, to wit, to the amount of 1607. 12s. 6d. during the first year of the said term, and to the amount of 1837. 78. during the second year of the said term. And the defendant after the doing of the said damage to the amounts aforesaid by the said game, and within a reasonable time in that behalf, and before the commencement of the suit, to wit, on the 3rd day of September, A. D. 1845, had notice of the said damage, and was then requested by the plaintiff and the said John Edwards, as such tenants to the said plaintiff of the said last-mentioned farms as aforesaid, to choose, nominate, and notify within a reasonable time, to wit, within ten days from the day and year last aforesaid, some indifferent person on his the defendant's part and behalf to ascertain, together with one indifferent person to be chosen and nominated on behalf of the other party, as in the said agreement mentioned, the amount of the damage so done to the said last-mentioned farms by the game so preserved thereon by the defendant during the said term as aforesaid. Averment, that although the said term of two years and a reasonable time for the ascertaining of the said damage as in the said agreement mentioned, and for the choice, nomination, and notification of such indifferent person on his the defendant's part and behalf, for the purpose of ascertaining the amount of the said damage so done during the said term as aforesaid, and for the making of satisfaction to the said John Edwards, as such tenant to the plaintiff as aforesaid, for the said damage so done by the said game on the said last-mentioned farms as aforesaid, had elapsed long before the commencement of this suit; and although within such reasonable time, to wit, on the 20th August, 1845, one indifferent person, to wit, one William Moody, on the part and behalf of the other of the said parties as in the said agreement mentioned, was chosen and nominated, and notice thereof afterwards, and within such reasonable time as aforesaid, to wit, on the 3rd September, 1845, given to the defendant by and on the behalf of the plaintiff and the said John Edwards, as such tenant to the plaintiff, of the said last-mentioned farms as aforesaid; and although the defendant was then, to wit, on the day and year last aforesaid, requested by the plaintiff and the said John Edwards to apprise the said John Edwards, on behalf of the plaintiff, and the said John Edwards, as such tenant as aforesaid, within a reasonable time, to wit, within ten days from the day and year last aforesaid, of the name and address of some person chosen, and appointed by the defendant, to act as such referee on his the defendant's part as aforesaid, and to fix the time and place for meeting the said William Moody, as the referee appointed by the plaintiff and the said John Edwards, as such tenant as aforesaid, to ascertain the said damage; and although notice was then, to wit, on the day and year last aforesaid, given by the plaintiff and the said John Edwards, that, in default of the defendant complying with the said last-mentioned notice and request, within such reasonable time, to wit, within the ten days last aforesaid, the said William Moody would immediately, on the expiration thereof, proceed alone to ascertain the aforesaid damage; and although such reasonable time, to wit, the ten days last aforesaid, had elapsed long before the commencement of this suit, yet the defendant never at any time gave notice to the plaintiff or to the said John Edwards, or to the said William Moody, so chosen and nominated by and on the behalf of the said plaintiff and the said J. Edwards, for the purposes aforesaid, of any person chosen or nominated on his the defendant's part and behalf, to ascertain the amount of such last-mentioned damage so done by the said game preserved by

the defendant upon the said last-mentioned farms during the said term as aforesaid; nor hath the defendant ever at any time made satisfaction to any amount or any extent whatever, to the plaintiff or the said J. Edwards, as such tenant to the plaintiff as aforesaid, for the damage so done by the said game to the said last-mentioned farms, and so preserved on the said last-mentioned farms by the defendant during the said term as aforesaid. Averment, that, after the doing of the said damage, and the expiration of the said two years, and after the choice and nomination of the said William Moody, by and on the behalf of the said plaintiff and the said John Edwards, as his the plaintiff's tenant as aforesaid, to ascertain the amount of the said damage so done during the said term; and after notice of such choice and nomination, to the defendant as aforesaid, and after the lapse of a reasonable time, to wit, of the said last-mentioned ten days, for the choice, nomination, and notification of an indifferent person, by and on the behalf of the defendant, for the ascertaining of such damage as aforesaid, and at the expiration of a reasonable time for the ascertaining of such damage as aforesaid, and before the commencement of this suit, and on the expiration of the said last-mentioned ten days, to wit, on Sept. 27, 1845, the said W. Moody, on the part and behalf of the plaintiff and the said John Edwards, as such tenant to the plaintiff of the said lastmentioned farms as aforesaid, ascertained the amount of the damage aforesaid. That, at the said time of the ascertaining of the said damage, no person attended on the behalf of the defendant to ascertain the amount of the aforesaid damage, whereupon the said William Moody, so nominated by and on the behalf of the plaintiff and the said J. Edwards as aforesaid, ascertained the aforesaid damage so done during the said term as aforesaid, to amount to certain large sums of money, to wit, to the sum of 1607. 12s. 6d., for the said damage so done during the first year of the said term as aforesaid, and to the sum of 1831.78. for the said damage so done during the second year of the said term as aforesaid. Averment of notice to the defendant of the premises and of request by the plaintiff and Edwards to make satisfaction to Edwards, as such tenant to the plaintiff, for the aforesaid damage, yet the defendant then and thenceforth hitherto wholly neglected and refused so to do, or to make any satisfaction or compensation to the plaintiff or the said John Edwards, as such tenant to the plaintiff as aforesaid, for the said damage so done during the said terms as aforesaid, to any extent, or any amount, or in any way whatever. That the plaintiff, the landlord of the said J. Edwards, of the said last-mentioned farms, of which the said J. Edwards was tenant to the plaintiff during the said term of two years, in the said agreement mentioned, was bound, and had agreed with the said J. Edwards, by the terms of the said last-mentioned tenancy, to compensate him the said J. Edwards for all damages done upon the said last-mentioned farm by game preserved, or caused or permitted to be preserved by the plaintiff thereon during the said tenancy of the said J. Edwards to the plaintiff, whereby he the plaintiff became, and was, and still is, liable to pay to him the said J. Edwards the amount of the damage so done by the game preserved by the defendant on the last-mentioned farms, during the said terms in the said agreement of the defendant mentioned, amounting, to wit, to a large sum of money, to wit, to the sum of 3401.; and the plaintiff, by means of the premises, hath been, and is, otherwise greatly injured and damaged, to wit, to the damage of 4007. Pleas, first, non assumpsit; second, that the said game did not, during the said time, do damage to the farms, in manner and form &c.; third, that the defendant had not notice of the damage in the declaration mentioned, in manner and form &c.; fourth, that, although the defendant had notice of the da

mage, yet he had not notice within such reasonable time as in the declaration mentioned, in manner and form &c.; fifth, that the defendant was not requested by the plaintiff and the said John Edwards, or either of them, to choose, nominate, and notify some indifferent person, in manner and form &c.; sixth, that the defendant was not requested within a reasonable time, in manner and form &c.; seventh, that notice that one indifferent person on the part and behalf of the other of the said parties had been chosen and nominated, was not given to the defendant, in manner and form &c.; eighth, that, although notice that one indifferent person on the part and behalf of the other of the said parties had been chosen and nominated was given to the defendant, yet such notice was not given to the defendant within such reasonable time, as in the declaration mentioned, in manner and form &c.; ninth, that the defendant was not requested to apprise the said J. Edwards on behalf of the said plaintiff and the said J. Edwards, as such tenant, of the name and address of some person chosen and appointed by him the defendant to act as such referee on his the defendant's part, and to fix the time and place for meeting the said William Moody, as the referee appointed by the plaintiff and the said John Edwards, as in the said declaration mentioned, to ascertain the supposed damage therein also mentioned, in manner and form &c.; tenth, that the said William Moody did not ascertain the amount of the supposed damage alleged to have been done by the said game during the said term to the said last-mentioned farms, or any or either of them, as in the declaration mentioned, in manner and form &c. On the trial, before Wightman, J., at the Caermarthenshire Spring Assizes, in 1846, it appeared that, after the refusal of the defendant to appoint a referee, in pursuance of the agreement, the plaintiff gave notice that he had appointed such a person, and that, if the defendant did not appoint one, he should proceed ex parte, which he did. On the trial, the witnesses for the plaintiff, as to the amount of the damage done, were unable to separate the amount of damage done by hares and pheasants from the amount of damage done by rabbits. A verdict was given for the plaintiff on all the issues except the eighth; and the damages were assessed at 1057. for damage done by the game and the rabbits, in case the Court should think that issue immaterial. In the following Easter Term, April 17,

Chilton moved for a rule nisi to enter judgment for the plaintiff, notwithstanding the verdict for the defendant on the eighth issue-.The agreement does not provide for the case of the party who has committed damage refusing to nominate an indifferent person. What is done after the cause of action is complete will not vary the rights of parties, and the defendant cannot take advantage of his own wrong.-Rule nisi.

done by the rabbits. The defendant had not exclusive right of shooting the rabbits.—Rule nisi. In last Trinity Term,*

Chilton and Peacock shewed cause against the rule in arrest of judgment.-First, though there is no clause in the agreement declaring that the party who appoints a referee shall be entitled to recover the sum ascertained ex parte, if the other neglects to appoint a referee on his part, there is a good cause of action. The ascertain ment of the amount of damage by the referee would not bind the jury. This is substantially an action against the defendant for refusing to appoint a referee on his part. A nomination is not complete without giving notice of the name and address of the referee to the other party upon request.

Butt and Gray, contra.-As to the breach for not making compensation, the damage could be ascertained in no other way than that prescribed by the agreement. [Erle, J.-The thing to be done under the agreement is to compensate the tenant.] But in a particular manner, viz. by each party nominating an indifferent referee. There is no breach of the stipulation to nominate a referee. It was not necessary that the defendant should give notice of the nomination: upon notice that he would attend with his referee, it would be the duty of the other party to attend. [Coleridge, J.-Can the choice be complete till notice of it? Erle, J.-Would it be a good choice, if the one party said to the other, “I have chosen a referee, but will not notify him to you?"] Lord DENMAN, C. J.-This objection would be the ground of a very special demurrer. As to the breach of the stipulation to choose and nominate a referee, nomination implies notice to the other party: neither party chooses and nominates a referee until he informs the other party who the referee is. It was impossible to proceed under this reference until a nomination.

PATTESON, J.-The question, in effect, is, whether this would be a negative pregnant on special demurrer: it is clearly sufficient after verdict.

COLERIDGE, J.-It is sufficient to say, that a breach of an essential part of the agreement is shewn.

ERLE, J.-A breach of the agreement in not making compensation is clearly shewn.

Chilton and Peacock further shewed cause.-The other ground for arresting the judgment is, that the agreement, being for the purpose of letting the exclusive right of sporting, should have been under seal; but here the declaration alleges that the defendant has had the benefit of the license. [Lord Denman, C. J.—A mere license to sport does not require to be under seal. (Wood v. Leadbitter, 13 Mee. & W. 838, 845). If the defendant has had what he bargained for, that is a good consideration.] Suppose A. used a right of way for a certain time by allowance of B., could he at the end of the time say to B., "I will not pay you, because I could not have enforced the agreement against you." Here the plaintiff has allowed the defendant to have the benefit of the game, in consideration of his taking upon himself certain burthens.

agreement to grant a right of sporting by deed, and a deed was afterwards executed granting such right, without any stipulation as to compensation to the tenant, and the declaration contained an averment that the plaintiff granted such right, this objection would be removed. An agreement to let a house and to grant a * May 22.—Before Lord Denman, C. J., Patteson, Coleridge, and Erle, JJ.

† See Tew v. Harris, infra, p. 947.

tage of objecting to the finding of the issues under the pretext of objecting to the amount of damages, and that his rule must be discharged.-Rule discharged. On the following day, (June 11),

Lord DENMAN, C. J., delivered the further judgment of the Court.-In this case we are of opinion that the rule ought to be made absolute for judgment for the plaintiff, notwithstanding the verdict for the defendant on the eighth issue, finding that the plaintiff did not notify to the defendant his choice of an arbitrator within a reasonable time.

Cur, adv. vult. Butt and Gray then shewed cause against the rule obtained on behalf of the plaintiff.-The eighth issue is not immaterial: it is the same in effect as that the plaintiff did not appoint an arbitrator within a reasonable time. The plaintiff must have averred that he nominated, or was ready and willing to nominate a referee.

Chilton and Peacock, contra.-The nomination of a referee is necessary in order to enable the party to proceed to an ex parte valuation. But there is nothing in the agreement which makes it a condition precedent to the bringing of this action that the plaintiff should nominate a referee or give notice of such nomination. Cur, adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the Court. In this case a motion was made in arrest of judgment, on two grounds, one of which was disposed of during the argument; the other was, that the agreement set out in the declaration to let the shooting over the manor was void, because it agreed for an incorporeal right lying in grant and passing only by deed. But it appears to us that this ground cannot be sustained; for although the agreement did not pass the right to the shooting, still it is not for that reason void. An agreement to execute a conveyance is valid as an agreement, though it does not operate to pass an estate, and its validity is not affected by the question whether the subject of the deed be incorporeal.

It was also contended that the declaration ought to have shewn a grant by deed, and that it was therefore bad for not averring performance of a condition precedent; but as the right is stated to have been enjoyed during the whole period agreed for, and as the absence of a grant would not occasion any damage to the defendant, we should hold that he had received the substance of the consideration agreed for, even if after verdict it must be intended that a grant was not made, This decision is not at variance with Bird v. Higginson, (2 Adol. & Ell. 697). The plaintiff there failed in an action for rent, or payment in the nature of rent, claimed to be due under a similar agreement, because enjoyment of the right for the time agreed for did not appear on the declaration, but only an entry by the defendant.

The defendant also moved for a new trial, because the jury included in their verdict the damage by rabbits as well as that by game. But inasmuch as the trial was properly conducted down to the assessment of the damages, and as the defendant has refused every offer of the plaintiff to rectify any mistake in that assessment (if there be any) without setting aside the verdict on the issues, and as the injury done by the rabbits may be considered a consequence from the preservation of the game, we think that he ought not to obtain the advan- |

SITTINGS IN BANC AFTER TRINITY TERM.
LEWIS v. HOLMES.-July 7.

Proceedings to Outlawry on final Process cannot be
grounded on a Ca. Sa. made returnable immediately
after Execution, under Stat. 2 & 3 Will. 4, c. 39,
although returned non est inventus, because such Writ
can only be executed by arresting the Defendant.
Quære, whether such Writ must not be returnable on some
Day in Term, not being one of the three last Days of Term.
Quare, whether the Writ of Exigi Facias should not be
tested on the quarto Die post of the Return of the Ca.
Sa.; and also, whether it must not be made returnable on
some Day in Term, not being one of the three last Days.
In Trinity Term, (May 25),

Archbold obtained a rule calling upon the defendant to shew cause why an order of Erle, J., by which the proceedings in outlawry in this action were set aside should not be rescinded. It appeared from the affidavits that judgment having been signed in this action, the plaintiff on the 7th July, 1846, sued out a writ of ca. sa., returnable "immediately after the execution thereof." The sheriff was ruled to return the writ; and it was returned on the 20th January, 1847, the return being dated the 20th and filed on the 21st. On the 21st January the plaintiff sued out a writ of exigi facias returnable on the 8th May. This was returned, and a writ of allocatur exigent issued. On the 28th April last the defendant presented a petition to the Court of Bankruptcy in pursuance of stat. 7 & 8 Vict. c. 96, and on the 29th protection from arrest was granted to him. In the interval between the month of December, 1846, and the month of May the defendant had been absent from his place of business; he had no notice of these proceedings. On the 1st May he first became informed of the defendant having sued out a writ of ca. sa, and proceeded to outlawry, and he took immediate steps to render himself pursuant to the writ, but in consequence of erroneous information obtained at the Secondaries Office, he attended too late on the 4th May, the next court day, and was consequently proclaimed an outlaw. An application was thereupon immediately made to set aside the writs and proceedings, upon which Erle, J., at chambers, made the order in question. In Trinity Term*,

Dowdeswell shewed cause.-The Uniformity of Process Act (2 & 3 Will. 4, c. 39) contains provisions for two purposes, the one for proceeding to outlawry on mesne, and the other on final, process. With respect to the former, it provides that a writ of summons may be issued, and then that a writ of distringas shall be resorted to in order to found the writs of exigi facias and proclamation, where the proceeding is, as it now must be, by summons; and then it proceeds by

* June 12.-Before Lord Denman, C. J., Patteson, Coleridge, and Erle, JJ.

the letter of the statute must be followed; and the provisions of the Uniformity of Process Act, as to proceed ings of this kind on mesne process, shew that time was to be allowed, and ample means of notice afforded to the defendant. It will, however, be said, that, so far s the writ of capias is concerned, its return is authorised by sect. 2 of stat. 3 & 4 Will. 4, c. 67, which enacts "that all writs of execution may be tested on the day which the same are issued, and be made returnable in mediately after execution thereof;" but upon looking at the preamble of that section, it is obvious that enactment was only intended to enable a person to reap the fruit of his judgment, by a writ which he intended to execute, as a fi. fa. or ca. sa., on which the money would be paid, and not to proceedings which required the intervention of a term. The very language, "inmediately after the execution thereof," implies this, and it is difficult to conceive how such a writ can be properly returned till it is executed. In Kemp v. Hao, (1 Mee. & W. 58; 1 Tyrw. & G. 77; 4 Dowl. P.C. 687) the Court of Exchequer held, that the statute was not applicable to a writ issued to fix the bail, and the reasons which influenced the Court attach to the present writ. If this practice were allowed, proceedings might be taken to outlawry against a man at any time by surprise, for the writ not being returnable until executed, the plaintiff might issue it, keep it in his pocket for nineteen years, and then, without any scire facias or warning, when the claim had been long settled, proceed in this penal manner. With respect to the lapse of time, the defendant had no notice of these preceedings to outlawry till the 1st May; he certainly knew of the writ of ca. sa. having been issued, but he could not set that aside, as it was perfectly regular for the purposes of the execution The irregularity arises from the subsequent proceedings being founded upon it. Then the defendant took steps immediately he became acquainted with the writ, and the application to the Court would have been too late in that term for it to be heard, therefore it was made to a judge at chambers as soon as counsel could be heard there. [The further argument on the other points is omitted, as the Court expressed no opinion on them.]

sect. 5 to provide, "that every such writs of exigent, proclamation, and other writ, subsequent to the writ of capias or distringas, shall be made returnable on a day certain in term, and every such first writ of exigent and proclamation shall bear teste on the day of the return of the writ of capias or distringas, whether such writ be returned in term or vacation, and every subsequent writ of exigent and proclamation shall bear teste on the day of the return of the next preceding writ; and no such writ of capias or distringas shall be sufficient for the purpose of outlawry or waiver, if the same be returned within less than fifteen days after the delivery thereof to the sheriff or other officer." The object of that statute was to produce uniformity with regard to proceedings on mesne process, all of which would be commenced after the passing of that statute, and it was easy so to do. With respect, however, to proceedings on final process there would be a difficulty, for a great number of the cases would arise on actions which had been commenced before, and it would be necessary to provide either an entire new machinery with special directions, as in the case of proceedings on mesne process, and apply it to all cases arising either before or after, or to adopt the more simple alternative, and declare that the old practice on final process should in all actions be observed. The Legislature adopted the latter course by sect. 6, and declared, "that, after judgment given in any action commenced by writ of summons or capias, under the authority of this act, proceedings to outlawry or waiver may be had and taken, and judgment of outlawry or waiver given, in such manner and in such cases as may now be lawfully done after judgment in an action commenced by original writ: Provided always, that every outlawry or waiver had under the authority of this act, shall and may be vacated or set aside by writ of error or motion, in like manner as outlawry or waiver founded on an original writ may now be vacated or set aside." [Patteson, J. -The statute, then, has introduced the absurdity, that the proceedings as far as judgment are to take place under one system, and the subsequent proceedings under another.] That may be so, but the words of the statute are express; for this Court has no inherent power to make writs returnable at any time or on any day certain in term. It becomes necessary, therefore, to see what was the course of proceeding by original, and it is laid down in Tidd's Practice, that in such actions the process must be returnable on a general return day. That, however, was altered by 11 Geo. 4 & 1 Will. 4, c. 70, and subsequently by 1 Will. 4, c. 3, which enacted, (sect. 2), "that all writs now usually returnable before any of his Majesty's Courts of King's Bench, Common Pleas, or Exchequer, respectively, on general return days, may be made returnable on the third day, exclusive, before the commencement of each term, or on any day, not being Sunday, between that day and the third day exclusive, before the last day of the term." It is evident, therefore, that both the writ of capias as well as the writ of exigi facias are irregular in the return day, the former being returnable on no day certain, the latter being returnable on the last day of term. The latter is also objectionable, as not having issued according to the old practice; it should have issued on the quarto die post of the return day of the preceding week, there being only a day intervening, for the writ was returned on the 20th January, though it was not filed till the 21st. The date of the filing is merely a date required by a rule of court, to bring the sheriff into contempt upon the record, the return is made on the date it bears as signed by the sheriff. That would be a defect of the practice directed to be pursued on mesne process were it to govern this case. In such a case as this, where the proceeding is to put a man beyond the pale of the law, and highly penal consequences

Archbold, contra.-First, it was too late to take objection for irregularity: a motion to reverse out lawry, on the ground of irregularity, must be mad promptly. (Lewis v. Davison, 3 Dowl. 272). Secondly, there was no irregularity. In Sandford v. Wyatt, Dowl., N. S., 2), a similar application, on the same ground, was made to Wightman, J., but he declined to interfere.-[He also cited Kemp v. Hyslop, (4 Dowl. 687; 1 Mee. & W. 58; 1 Tyrw. & G. 77). [Pattern, J.-According to Lewis v. Davison, in the Exchequer, (3 Dowl. 272; 1 C., M., & R. 655), it was contended, that the return of the ca. sa. being on the 17th, and the filing on the 18th, the writ of exigi facias ought to have been tested on the 18th, making a distinction between the return and the filing.] The date of the return by the sheriff is nothing, except with reference to suing out writs of continuance. The important time is that of bringing the return to the office. [Pattes J.-The rule was, that the capias should follow the mesne process, but now, the mode of commencing an action being by summons, that rule does not apply. Upon outlawry on final process, a writ of proclamation is not necessary; and, therefore, the statutes relating to outlawry do not apply. [Erle, J.-If the teste of the exigi facias is held regular, all the other proceedings would be regular.] By stat. 3 & 4 Will. 4, c. 67, 8.2 all writs of execution may be tested on the day on which the same are executed, and be made returnable immediately after the execution thereof. [Patteson, J.-In Archbold's Practice, by Chitty, 540, it is stated, "In the case of a ca. sa. sued out for the purpose

as

of

in term time, the above act applying, it seems, only to cases where the writ is intended to be executed."] That must be a mistake. There may be a difficulty in the case of a writ of ca. sa. sued out for the purpose of fixing bail. [Lord Denman, C. J.-We will confer with the other judges.] Cur. adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the Court. In this case, the plaintiff having obtained judgment, issued a writ of capias ad satisfaciendum on the 7th July, 1846, returnable immediately after execution, under 3 & 4 Will. 4, c. 67, s. 2. This writ was returned by the sheriff non est inventus: the return is dated the 20th January, 1847, but it was not filed till the 21st January.

On the 21st January, a writ of exigi facias issued tested on that day, returnable on the 8th May, being the last day of Easter Term.

The writ of exigi facias was set aside by an order of Erle, J., and this rule was obtained to review his decision. The objections to the writ are various. First, it is said that no proceedings to outlawry can be grounded on a capias ad satisfaciendum returnable immediately after execution, as such writ can only be executed by arresting the defendant, in which case there is no ground for proceeding to outlawry. If he be not arrested, the writ does not become returnable, and the fact of its being returned cannot help, whether it be done by a judge's order or not; for, strictly speaking, no writ can be returned before it is returnable, although a judge may order the sheriff to return what he has done upon it, and so in some sense to return the writ. The Court of Exchequer strongly inclined to this opinion in Kemp v. Hyslop, (1 Mee. & W. 58; 1 Tyrw. & G. 77; 4 Dowl. 687), which was a proceeding against bail after a similar writ of capias, giving also as an additional reason, that, as the writ to fix the bail must lie four clear days in the sheriff's office, it ought to have a fixed return, in order to enable the bail to know when to search the office, otherwise they must search from day to day from the time of the writ issuing. We are of opinion that this is a fatal objection, for the reasons given in that case.-Rule discharged, with costs.

MICHAELMAS TERM. TEW v. HARRIS.-Nov. 3. Agreement for the Sale of Crops, the Price to be paid on the 5th June, the Valuation to be made by two Persons, one named by each Party, and, if they disagree, by a third Person, to be named by them before entering upon the Valuation; the Valuation to be made by the 3rd June, and each Party to appoint a Referee by the 31st May; and, in case either Party neglects or refuses to nominate a Referee within the Time appointed, the Referee of the other Party alone to make a final Decision: -Held, that the Nomination of a Referee included Notice of it to the other Party; and, therefore, that a Nomination on the 31st May, and Notice of it to the other Party on the 1st June, did not satisfy the Agree

ment.

Assumpsit. The declaration set out the following agreement, dated 25th May, 1847, between the plaintiff and the defendant:-"The said W. Tew agrees to sell and the said J. W. Harris agrees to purchase, at a valuation to be made as hereinafter mentioned, the crops in and upon a piece of garden ground, situate &c., the price to be paid on the 5th June next, the valuation to be made by two persons, one named by each party, and, if they disagree, then by a third person, to be named by them before entering upon the reference or valuation. It is agreed, that such valuation shall be made by the 3rd June next, and that each party shall, by the 31st May, instant, appoint a referee; and, in case either party neglects or refuses to nominate a referee within the time appointed, the referee of the other party alone may make a final decision. In case either party, or the

referee of either party, shall neglect or omit to attend any reference after notice in writing given to or left at the last place of abode of such party or referee, then the party or referee attending shall enter on the reference ex parte, and make a final decision." Averment of mutual promises; and that the plaintiff within the time in that behalf appointed, viz. on the 31st May, nominated and appointed J. Cowday to be his referee, and then, and within a reasonable time, gave due notice to the defendant of such appointment and nomination. Averment, that defendant neglected to appoint or nominate any person as referee on his behalf, according to the said agreement, whereof the plaintiff had any notice within the time so in that behalf appointed; and, thereupon, the plaintiff, on the 30th May, 1847, and within a reasonable time before the day next hereinafter mentioned, did, in pursuance of the said agreement, cause notice in writing to be given to the said defendant, to wit, by leaving the same at his last known place of abode, of the intention of the said J. C. to proceed in the said valuation on the day therein named after 31st May, viz. on 2nd June; and that he accordingly entered on the valuation, and made his final decision, and awarded 1327. 4s. to the plaintiff. Breach, non-payment of the said sum. There were also counts for crops bargained and sold, and upon an account stated. Pleas, first, non-assumpsit. Second, to the first count, that the plaintiff did not, within the time appointed or according to the agreement, nominate or appoint the said J. Cowday to be his the plaintiff's referee in manner and form, &c. Third, that the plaintiff did not, within a reasonable time before entering on the said reference ex parte, cause notice in writing to be given of the intention of the said J. Cowday to proceed in the_said valuation, in manner and form, &c. Fourth, that Cowday did not make his final decision, in manner and form, &c. On the trial before Lord Denman, C. J., at the Summer Assizes for the county of Warwick, it ap peared that the plaintiff resided at Walsall and the defendant at Gloucester; that, the plaintiff, on the 31st May, nominated J. Cowday as his referee, and gave notice to the defendant of such appointment by letter posted on the evening of that day at Birmingham. No answer was received to that letter, and Cowday proceeded ex parte to make his award. It was contended on behalf of the defendant, that the second plea was proved, inasmuch as the required nomination must be taken to mean a notification to the other party of the person so nominated. The Lord Chief Justice directed the jury that nomination included a notification to the other party of the name of the person; and, under his direction, a verdict was entered for the defendant on the second issue, and for the plaintiff on the other issues, with leave to the plaintiff to enter a verdict on the second issue.

Whitehurst now moved for a rule nisi accordingly. COLERIDGE, J.-I think that my lord put the right construction upon this agreement. The substance of the agreement is, that each party should, on a certain day, name a referee, and communinate that nomination to the other. The question is, what is the meaning of the word "nominate" in the first step of the transaction. It is contended for the plaintiff, that, inasmuch as the nomination was to be made on the 31st May, each party had until twelve o'clock on the night of the 31st for making his appointment, and so no time would be allowed for communicating the fact of the nomination to the other party. But I am of opinion, that there was no effective nomination until it was communicated to the other party. Considering the whole object and purpose of the agreement, it will not be satisfied without such a communication; otherwise each party might name the same person, or one of the parties might name a person to whom the other party had a valid and legal objection. The right construction