Upon these grounds I think the attestation sufficient, and that the judgment of the Queen's Bench is right, and ought to be affirmed.
As the majority of the Court therefore is for reversing the judgment, the judgment of the Court of Queen's Bench will be reversed; and I may mention that as the late Mr. J. Park and Mr. B. Bolland also differed in opinion on the question, the result would have been the same if judgment had been also pronounced by those learned individuals.
IN Hilary Term Mr. Baron Bolland resigned his seat in the Court of Exchequer on account of continued indisposition, and in the vacation following, William Henry Maule, Esq., one of her Majesty's counsel, was appointed to succeed him, and having been first called to the degree of the Coif, gave rings with the motto "Suum cuique," and took his seat in the same Court on the first day of Easter Term.
In Hilary Vacation, William Goodenough Hayter, Esq., of Lincoln's Inn, received a patent of precedence; and John Stuart, Esq., of Lincoln's Inn, Samuel Girdlestone, Esq., of the Middle Temple, and Robert Vaughan Richards, Esq., and Griffith Richards, Esq., of the Inner Temple, were appointed her Majesty's counsel.
Alteration of instrument, when spe-
cial plea necessary to take advan-
tage of. See PLEADING, 13.
ANNUITY DEED.
Nominal consideration, paid to a sure-
ty, need not be contained in the
memorial of. Few v. Backhouse. 34
See EVIDENCE, 2-POOR, 5-SES-
SIONS, 1.
Against Borough Rate.
1. The power of appeal against a
borough rate under 5 & 6 Will. 4,
c. 76, is confined to the grounds of
appeal against a county rate, under
55 Geo. 3, c. 51, s. 14, and there-
fore an individual cannot appeal
for any personal grievance, or on
the ground of the rate being retro-
spective. The Queen v. Bath. 622
Against Order of Removal.
2. No objection, which is not stated
in the grounds of appeal, can be
taken to an order of removal, al-
though such objection appear on
the face of the case sent up from
the sessions. Reg. v. Costock. 414
APPROPRIATION.
By way of payment. See STAMP, 1.
Property in goods sold. See VEN-
DOR AND PURCHASER, 1.
ARBITRATION.
1. Where, by rule of a savings' bank,
no claim for any sum of money
could be made more than seven
years from the death of a depositor,
the Court discharged a rule for a
mandamus to the trustees of such
a bank, to appoint an arbitrator,
under 9 Geo. 4, c. 92, s. 45, to de-
cide a dispute as to money, the
alleged depositor of which had
been dead more than seven years.
The Queen v. Northwich Savings
Bank.
477
2. Where an umpire in an arbitration
is chosen by lot, the consent of the
parties to the umpire chosen does
not make the election good, unless
they know the mode in which the
umpire was chosen, and all the
circumstances relating to his elec-
tion. In re Greenwood and another.
461
3. Where a cause was referred by
order of nisi prius, with power to
the arbitrator to certify whether
the cause was a proper one to be
tried before a judge, and the arbi-
trator certified to that effect, but
the judge died before the arbitra-
tor's certificate was made known to
him-Held, that the full Court
had no power to make the order
for full costs, Astley v. Joy. 460
4. An action at law, and a suit in
equity by the defendants in that
action, for an injunction to restrain
the plaintiffs from proceeding in it,
were referred to an arbitrator, the
costs of the action and of the suit to
abide the event of the award. There
were several issues in the action;
as to some of them he found for
the defendants, and as to so much
of the suit as regarded them,
against the defendants, on the
ground that they had a defence at
law. As to the other issues he
found for the plaintiffs with 57.
damages, but as to so much of the
suit as regarded them he awarded
that the plaintiffs should not pro.
ceed to recover the damages nor
costs-Held, that the arbitrator
had not exercised such a discretion
over the costs as the reference
meant to exclude, but that he had
merely exercised a power over
them necessarily resulting from the
reference, and without which he
could not properly have adjudi-
cated upon the suit in equity.
Reeves v. M'Gregor.
5. Where parties by mutual bonds
submitted all matters in difference
to arbitration, and the award, after
reciting the submission, awarded
(without stating it to be of and
concerning the premises) that a
certain sum was due and owing from
one party to the other:-Held,
that the award must be intended
to be made on all the matters re-
ferred.
It also appeared by affidavit
that the claims of one of the parties
consisted of items for money due,
and also for prospective damages,
in consequence of a contract be-
tween the parties being put an end
to by the other side, but as it also
appeared that each of the claims
was investigated before the arbitra-
tors:-Held, that the general find-
ing was sufficient to shew that a
balance was due to one of the par-
ties.
Where on a reference one of the
parties admits the claim of the
other, but seeks to reduce the ba-
lance by a set-off, it is sufficient
for the award to state that a sum
is owing to one side or the other,
without further noticing the set-off.
Brown v. The Croydon Canal Com-
pany.
391
See MALICIOUS ARREST.
Under the 1 & 2 Vict. c. 110, s. 7, a
judge has no authority to make an
order for the detention of a pri-
soner in custody, at the time of the
passing of the act," until he shall
give bail, or until further order."
ARTICLED CLERK.
Examination of. See ATTORNEY.
1. Defendant granted and
signed by indenture certain de-
mised premises to the plaintiff,
who having been distrained upon
for rent in arrear to the superior
landlord, before the assignment,
brought assumpsit to recover mo-
ney paid under the distress, and
relied upon an express promise by
defendant to repay it:-Held, that,
as covenant would lie on the cove-
nant implied in the word " "grant,"
assumpsit would not lie on any
implied contract to indemnify the
plaintiff, nor on the express pro-
mise, as it was not founded on a
new consideration. Baber v. Har-
ris.
2. T. S. was lord of the manor of T.,
and the office of steward of the
manor was in his gift. The former
steward resigned his office, upon
T. S. agreeing to execute a bond
to him for an annuity for his life.
The defendant, in consideration of
T. S. permitting the defendant to
hold the office at the will of T. S.,
promised T. S. to pay out of the
fees of the office, the above an-
nuity to the late steward during his
life, and to indemnify T. S. there-
from so long as he, the defendant,
should execute the said office,
either by himself or deputy, to be
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