arbitrator to determine what was due from the defendant to the plaintiff; the arbitrator ordered a verdict for a certain sum to be entered for the plaintiff, and that the defendant should pay the costs of the reference; and Littledale, J., granted a rule absolute for an attachment, saying, that the arbitrator, by directing a verdict to be entered for the sum, had done that which was tantamount to directing that sum to be paid by the defendant to the plaintiff. But the report of that case does not set out the terms of the award, on which much may depend. [Lord DENMAN, C. J. It must be assumed that there was no direction to pay the sum due, nor any finding that any sum was due, since the report mentions that there was a direction to pay the costs.] If so, the decision is at variance with other authorities, and cannot be supported. In Hutchinson v. Blackwell, 8 Bing. 331, the court held that a submission, after issue joined and before trial, by which the parties, reciting the cause, agreed "to leave the same, and the subject-matter thereof, and the issue therein, and the costs of such action," to the determination of an arbitrator, gave him no authority to order a verdict to be entered. That case came before the court on a motion to enter *346] *the verdict in pursuance of the award; and it might have been contended that the court might refuse this, and yet support the award itself, or even grant an attachment for non-performance of an express order in the award; the judgment of the court, however, as reported, seems to have proceeded upon the supposition that the award was bad. In Jackson v. Clarke, M'Clel. & Y. 200, S. C. 13 Price, 208, (which was not mentioned in the argument in Cartwright v. Blackworth, 1 Dowl. Pr. Ca. 489,) an arbitrator, to whom a cause was referred before plea pleaded, awarded that a verdict should be entered for damages to an amount named; the court refused an attachment for non-performance, and afterwards held that no action lay on the award. In Edgell v. Dallimore, 3 Bing. 634, the court refused an attachment for non-payment of money, in a case where the award had only found the party to be indebted, and this on the ground that, as the award made no order to pay, the party could not have been guilty of a contempt by disobedience. If the arbitrator here had no power to enter a verdict, the cause is not put an end to; and this vitiates the award, for he was bound to put an end to the suit in some way, since the event of the award was to determine the costs of the suit.

Justice, contrà. This case cannot be distinguished from Cartwright v. Blackworth, 1 Dowl. Pr. Ca. 489. In Doe dem. Williams v. Richardson, 8 Taunt. 697, the court granted an attachment for non-performance of part of the order in the award, though the reference was confined to a cause then pending, and though the arbitrator, in awarding money to be paid to the plaintiff, did not *347] award that he had any cause of action. In the present case there is a *direction to enter a verdict, which not only presupposes the sum to be due, but is virtually an order to pay. In Jackson v. Clarke, M'Clel. & Y. 200, S. C. 13 Price, 208, the only argument urged in support of the award was, that a part might be rejected; which was there impossible, as the award consisted of a single sentence: the interpretation now suggested was not offered there.(a) In Edgell v. Dallimore, 3 Bing. 634, although the award found that the money was due, there was no order to pay: here the verdict has that effect. In Hutchinson v. Blackwell, 8 Bing. 331, the attempt was to give to the award the technical effect of a verdict. The Highgate Archway Company v. Nash, 2 B. & Ald. 597, illustrates the present case. [TAUNTON, J. That case turned entirely on the attorney's claim for costs.] Cur. adv. vult.

Lord DENMAN, C. J., now delivered the judgment of the court. In this case it was contended, in support of the rule, that an award, that a verdict for a sum named should be entered for the plaintiff, is tantamount to an order that

(a) In the argument as to the attachment, this interpretation was suggested; 13 Price, 210 on shewing cause against the motion for a nonsuit, the point, if made, is less distinctly stated, the main argument being that mentioned in the text; M'Clel. & Y. 201.

the defendant shall pay so much to the plaintiff. My brother Littledale's decision in Cartwright v. Blackworth, 1 Dowl. P. C. 489, is in favour of this view; on the other side, a case in the Exchequer, (Jackson v. Clarke, M'Clel. & Y. 200,) S. C. 13 Price, 208, was cited as being opposed to it. We have conferred with my brother Littledale, and he agrees with us that the rule cannot be made absolute; and he informs us that he should not have decided as he did in Cartwright v. Blackworth, 1 Dowl. P. C. 489, if he had been aware of the case in the Exchequer. Rule discharged.

*NICHOLAS, Gent., One, &c., against HAYTER. Monday, Nov. 24. [*348 An attorney, employed to transfer stock, found that a distringas had been entered at the Bank to prevent the transfer. He thereupon made several inquiries respecting the transactions, on behalf of his client, and prepared a notice to the solicitor of the Bank, to file a bill in consequence of the writ being entered: Held, that his charges for this business were not taxable items, between him and his client, it not appearing that the distringas originated in any suit, or that the business had reference to any proceeding in a court. Per Patteson, J., if the distringas had been in a suit, the steps taken by the plaintiff did not form taxable items.

Charges for inquiries made, and attendances in the course of such inquiries, relating to a suit of which another attorney had the management, and in which, after such inquiries, the attorney making them did not further interfere, are not taxable items. On motion for costs under 43 G. 3, c. 46, s. 3, though the defendant need not prove malice, the burden of proving want of probable cause lies upon him; but it is sufficient if he establishes a prima facie case which is not satisfactorily answered.

ASSUMPSIT for work and labour, money lent, &c. At the trial before Patteson, J., at the last Summer Assizes for Cornwall, it appeared that the plaintiff, an attorney, had made a journey to London, by the desire and on the business, as he alleged, of the defendant, and had there transacted certain business on his behalf, respecting a transfer of money which the defendant had in the funds. The plaintiff, according to the case which he endeavoured to prove, had prepared and taken to London a power of attorney for the transfer, but found, on his arrival there, that the bank would not transfer unless the power were prepared by themselves; whereupon he procured a power from the bank, and sent it to the defendant for his signature. The rest of the business, so far as it is material, is stated in the following items, forming part of the plaintiff's particulars of demand:

"1834. March.-Calling at the Bank of England with Mr. Whitmore, when we found that a distringas was entered against your drawing out the money. Calling on the solicitor of the Bank of England to know who it was that filed the distringas, when he informed us it was your brother, Mr. G. H.Letter to you informing you thereof.-Paid postage of the same.-Paid [*349 postage of your answer with instructions to give notice to the bank for them to file a bill within a week, otherwise to adopt such steps as I should think proper, and with instructions to proceed against your brother for false imprisonment.-Drawing notice to deliver to the solicitor of the bank.-18th. Attending you on my return from London; reading my agent's letter with your brother's remarks, when you informed me that the action commenced was for money given you by your uncle, and not for false imprisonment.-Attending on Messrs. Tresidder & Co., respecting the action they had commenced against your brother for 2007., and ascertaining the facts.-Postage of letter from agent, informing me that he had been at Mr. Freshfield's, and he would send his clerk and take off the distringas.-Postage from Messrs. Whitmore, informing me that they had been at the bank, and that the distringas had not been taken off." The amount of these items was 37. 11s. The plaintiff's whole demand was 547. 14s., but of this, 407. were charged for the journey to London

and back, and expenses there. The rest was for other journeys, letters, attendances, and the power of attorney first mentioned. The items began in February, and ended in April, 1833. The plaintiff delivered no bill. To shew that the defendant employed the plaintiff to go to London on the business of the transfer, the plaintiff proved a conversation between the defendant and him, and the execution by the defendant of a power of attorney (which appeared to have been the power sent from London) in the plaintiff's office in March, 1833. The only further evidence to prove business actually done in London, was a letter received there by the plaintiff from the defendant, dated March 11th, 1833, acknowledging the receipt of one from the plaintiff respecting the defendant's *350] property, and saying, among other things, "I think it would first be preferable to proceed against my brother, G. H., to shew cause why he placed me in confinement, and afterwards oblige him to shew cause for preventing my property from being removed from the Bank of England." "Will it not be possible to proceed against him in both the instances I mention above? if so, and you think it desirable to do so, do it without fail." He then gave the names of the parties whom he charged with having placed him in confinement. The letter denied that there was any cause "mental, moral, or physical," for such confinement. The learned judge, after remarking that it was extraordinary that an attorney should accept a retainer to go to London to sell out stock, stated to the jury that there was some direct evidence of the defendant having employed him to go there; that as to any thing done there, there was little proof, but that on this point the jury were to take into consideration the defendant's letter, coupled with the evidence of previous employment: and he left it to them whether the defendant had employed the plaintiff to go to London, and, independently of such employment, whether he had transacted any business for him there, as charged in this action. The jury found that the plaintiff did not go to town on purpose to transact the defendant's business; but for any business done by him there for the defendant, they gave a verdict of 127. In this term (November 4th),

Follett moved (by leave reserved) for a rule to show cause why a new trial should not be had, or a nonsuit entered, on the ground that there was no evidence to go to the jury, of a retainer or of business done; and on the further ground (as to a nonsuit) that the plaintiff ought to have delivered a bill, there *351] being taxable items in his particular of demand. The items as to transactions arising from the distringas were taxable. A distringas of this kind is a proceeding in a suit. The nature of it appears from the two cases of Toulmin v. Copeland and the Bank of England, 6 Price, 405, 7 Price, 631, and Grant's Chancery Practice. (a) [TAUNTON, J. This seems to be in the nature of a caveat to the Bank.] It appears to have originated in a supposition that the defendant was of unsound mind, and therefore it is probable that some proceeding took place first in Chancery. [PATTESON, J. It does not appear that any bill had been filed; by the particular of demand, which alone explains these transactions, it seems that he was to require the Bank to file a bill: according to you that would be a cross-bill.] Any item for matters done, relating, or with a view to business done in Court, makes a bill taxable; Sandom v. Bourn, 4 Camp. 68, Weld v. Crawford, 2 Stark. N. P. C. 538, Ex parte Prickett, 1

(a) It is there described as follows:-"This writ is the first process against a corporation aggregate (against whom an attachment does not lie), after the defendants have refused to appear to and answer the bill, having been regularly served with subpana or other process." "As to restraints laid upon the Bank of England against paying dividends or making transfers, that in many cases requires the filing of a bill against the Bank, under which the writ will be issued; and then the restraint can only be removed by the removal of the occasion of it, and consequent application to the Bank through the Governor or Solicitor, or both, as circumstances may require. But sometimes a distringas may be obtained without or before a bill filed from the Exchequer." Vol. i., c. 22, p. 95, 2d ed., 1829. See also p. 563, same vol.

New Rep. 266, Wardle v. Nicholson, 4 B. & Ad. 469. [PATTESON, J. At the trial of this cause, nobody could explain the distringas.] Even if there was no suit commenced, it cannot be said that these were not "fees, charges, or disbursements at law, or *in equity," within the stat. 2 G. 2, c. 23, s. 23.

There are, besides, the items respecting the law suit against the brother. [*352 [PATTESON, J. There another attorney was employed in the cause; the plaintiff only made some inquiries.] Still there was service performed by him as an attorney, in relation to a suit, and that was sufficient; Wardle v. Nicholson, 4 B. & Ald. 469. [TAUNTON, J. The proceeding there was in an action; so far at least that, if the bond had not been given, the suit was at an end.] Attending bail to ascertain whether they could justify, and arranging with a plaintiff to accept cognovits from the defendant, have been held taxable items; Watt v. Collins, Ry. & M. 284. [PATTESON, J. None of the cases you mention introduce a different attorney.] Though another commences the action here, the plaintiff takes it up. It is immaterial who commenced it.

Lord DENMAN, C. J. It would be going farther than any case warrants, to hold these taxable items. As to the distringas, respecting which the proof is not satisfactory, it only appears, at most, that it was a bar, which the plaintiff found at the Bank, to his effecting the transfer. It is not shown that any proceeding had been taken at law or in equity, with which this was connected. As to the letter, I doubt whether it ought to have gone to the jury as proof of the business done in London; and upon the question as to the evidence, I think there ought to be a rule nisi for a new trial.

TAUNTON, J. I think there was no item here requiring taxation. In 1 Tidd, ch. 14, p. 328, 9th ed., several *instances are given of items held not taxable; as a charge for preparing an affidavit of the petitioning credi[*353 tor's debt, and a bond to the Chancellor, to obtain a commission of bankruptcy, the affidavit not having been sworn, nor the commission issued: so, charges for searching to see whether satisfaction of a judgment was entered, or whether an issue was entered and docketed. And money paid by an attorney in consequence of his undertaking to pay the debt and costs, was held not a disbursement within the statute. These, especially the first two, are much stronger cases in favour of taxation than the present, where none of the items purport to be for any proceeding in court, or act done in a suit.

PATTESON, J. I also think there was no taxable item in the particular. I am still unable to understand what was meant by the distringas in this case. But the first charge respecting it is, "calling on the solicitor of the Bank to know who it was that filed the distringas, when he informed us it was your brother." Some step, therefore, had been taken by the brother; but, supposing even that he had filed a bill, the plaintiff does not charge anything as done by him in that suit. Again, the instructions received by the plaintiff to give notice to the Bank to file a bill, and the drawing of such notice, are not steps taken in a cause, but only preparatory to something contemplated in one. There was no suit, nor proceeding in any court. As to the proceedings against the brother, it seems, by one of the items, that the plaintiff was told by the defendant of an action to be commenced against his brother for false imprisonment. If such an action had been prosecuted, and the plaintiff had interfered in it, we should probably *have found something relating to it in the subsequent charges; but it appears from them that the plaintiff, upon further in[*354 quiry, found that the action really commenced was for a claim of money, and was in the hands of Tresidder & Co.; and that, having ascertained this, he left it in their hands, and, as we find by the subsequent items, went on with the business relating to the distringas, and that only. I think, therefore, that there was no necessity in this case for delivering a bill, and that the rule, as to this point, ought not to be granted. As to the letter, I certainly doubt if it was evidence of any thing done in London; if not, there was a misdirection on this point, but no ground for a nonsuit.

WILLIAMS, J. I also think that there is no ground of nonsuit for the nondelivery of a bill, as the plaintiff did not distinctly shew that there was any proceeding in any court, in which he acted on behalf of the defendant. Rule nisi for a new trial only.

On a subsequent day in the term, Follett obtained a rule to show cause why the defendant should not have his costs under stat. 43 G. 3, c. 46, s. 3, the plaintiff having caused him to be arrested on an affidavit of debt to the amount of 50%., which sum the defendant deposited in lieu of bail. The affidavit in support of this motion set out as much as was material of the facts above stated, and alleged that the plaintiff had no reasonable or probable cause to arrest the defendant for 50%. The defendant, in his affidavit in answer, stated, that the defendant was leaving the country when he caused him to be arrested; that the *355] *defendant's attorney had subsequently offered to settle the action for 30%.; and, further, that the plaintiff could have proved his whole demand at the time of the trial, but that, of two persons, lately his clerks, who would have been material witnesses for that purpose, one had died, and the other had gone to America. The affidavit did not state when these last-mentioned facts

took place.

Crowder, now shewed cause, and contended that, although it had been held unnecessary on a motion of this nature to prove malice, Donlan v. Brett, 10 B. & C. 117, yet it lay on the defendant to give proof of the want of probable cause, as was held by Tindal, C. J., in Spooner v. Danks, 7 Bing. 772; and this had not been done in the present case.

Follett, contrà, was stopped by the Court.

Lord DENMAN, C. J. It certainly lies on the defendant to shew the want of cause; but if he gives prima facie evidence of that, the plaintiff must meet it by satisfactory proof. In this case, the disproportion between the sum for which the plaintiff arrested, and that which he was found entitled to recover, added to the other circumstances, required better evidence in answer than he has been able to give. The rule must be absolute.

TAUNTON, J. The defendant was certainly bound to shew that there was no reasonable or probable cause for the arrest: but here he states that in his affidavit, and the facts by which the allegation is supported form a prima *356] facie case, to which no satisfactory answer has been given. PATTESON and WILLIAMS, Js., concurred.

Rule absolute.

In the Matter of Arbitration between J. MACKAY, Executor, &c., J. U. WEST, and W. A. WEST, Executors, &c., T. HOLT, the said J. U. WEST, the said W. A. WEST, and the said J. MACKAY. Monday, Nov. 24.

A clause in a deed of submission to arbitration, "that no action or suit at law or in equity shall be commenced or prosecuted against the arbitrators concerning their award when made, nor to impeach the said award, unless some collusion or other fraud be discovered or appear therein," does not prevent a party to the deed from moving to set the award aside (for illegality upon the face of it), though no fraud or collusion appear. Upon a reference of partnership disputes, a direction in the award that some of the parties to the reference pay a sum of money (which is one of the matters included in the submission) to the arbitrator, and that he apply the same to the payment of certain specified demands (also part of the matters submitted), is bad, and vitiates the award, although the payments appear by the tenor of the award to be for the benefit of the parties submitting, and not of the arbitrator.

THE several parties to this arbitration had been partners in two trading establishments in the county of Lancaster, under the names of Mackay, West, and Co., and Thomas West and Co. By indenture, reciting that disputes had arisen