declared and determined them not to be so; and he then awarded as to other matters, in respect of which he gave a verdict to the plaintiffs. On motion to set aside an award as not being final, it appeared, by affidavit, that, upon the above sums being claimed, on the reference, by the plaintiffs (who had specified them in their particular of demand), the defendants objected that they were not matters in difference, nor within the arbitrator's authority, part of them being recoverable, if at all, in equity and not at law, and part being claimable against one only of the defendants whereupon, the plaintiffs abandoned their present demand as to these. Held, that the award was bad, for not deciding upon all the matters in difference referred. [*753 THIS was an action for work and labour, for commission, and on money counts. The cause coming on for trial at Guildhall (February, 1833), a verdict was taken for the plaintiffs, subject to the award of a barrister, to whom all matters in difference in the said cause between the plaintiffs and defendants were referred, to order and determine what he should think fit to be done by the parties respecting the matters in dispute. The arbitrator awarded as follows::-"Whereas the said plaintiffs have claimed upon the said reference before me that four several checks, that is to say, (describing four checks for 507. each,) and the sums of money secured by the said checks respectively, or paid in respect thereof, were matters in difference in the said cause; now, therefore, I do declare and determine that they are not matters in difference, and that neither of them is a matter in difference in the said cause: and whereas, on or about, &c., a certain agreement was made between the said plaintiffs and the said defendants, whereby the said defendants engaged that the amount of sundry hosiery, sixty-four puncheons of rum, and twenty-nine pipes of Geneva, to be consigned to New South Wales, and amounting to 1,584, less the freight, 2087., to be paid by the said defendants," &c., "should be remitted to the said plaintiffs, with the half amount of profit arising on the sale:" "and whereas the said plaintiffs have claimed upon the said reference that the profits arising on the said sale and transaction were a matter in difference in the said cause, I do further declare that the said profits are not a matter in difference in the said cause, but I have treated the price of the said goods as a matter in difference in the said cause." And the arbitrator awarded that there was due to the plaintiffs, in respect of the matters in difference in the cause between the said parties, 12,9297., for which sum he directed a verdict to be entered. Sir John Campbell, in this term, (January 27th,) moved for a rule to shew cause why the award should not be set aside, on the ground that it was not final. The affidavits upon which he moved stated, "that the profits *arising upon the hosiery, Geneva, and rums in the said award mentioned, as well as [*754 the principal sum in respect thereof in the said award mentioned, were by the plaintiffs debited to and charged against the said defendant, and composed part of the particulars of demand in this action, and of the claim against the defendants carried in before the arbitrator, and was insisted upon by the plaintiffs before him to be due and owing to them by the defendants, and a matter in difference in this cause; and that the plaintiffs still claim the profits aforesaid to be due and owing to them by the said Daniel Cooper as surviving partner of the said firm of Cooper and Levey." It was also stated that the four sums of 501 were debited to the defendants by the plaintiffs, and formed part of their particulars of demand, and of the claim insisted upon by them before the arbitrator, and were a matter in difference in the cause. Sir J. Campbell contended that the arbitrator ought to have determined whether the defendants were liable to the plaintiffs upon these items or not; that these were in fact matters referred, and that the arbitrator could not exclude them from consideration by finding that they were not in dispute. [LITTLEDALE, J. Some one must determine whether they are so or not; and with whom does the decision rest?] With this Court. The Court granted a rule nisi. An affidavit was made in opposition, stating, among other things, that although the four sums of 507. were claimed by the plaintiffs on the reference, the defendants' counsel objected before the arbitrator that those sums, or any question relating thereto, were not matters in difference *755] in the cause, nor within the authority of the arbitrator, inasmuch as the sums were not advanced to or on the *credit of the defendants jointly, but to and on the credit of Levey, whereupon it was admitted by the plaintiffs' counsel that those sums were not a matter in difference as between the parties in the present cause, and the demand as to them was abandoned as a demand in this cause, it being agreed on all hands that the only matters in difference in this cause were matters in which the defendants were liable jointly. The affidavit further stated, as to the profits on the sale of goods, that the defendants' counsel also objected before the arbitrator that these were not a matter in difference in the cause, nor within the arbitrator's authority, and could be recovered only by bill in equity; which objection, being discussed, was held good by the arbitrator, and the claim as to the said profits was abandoned, as a demand in this action. In this term, (January 30th,) Sir F. Pollock, Attorney-General, Kelly, and Martin, shewed cause. (a) The arbitrator, by awarding that the several sums in question were not matters in difference in the cause, has substantially awarded that no recovery for them can be had in this action, which is a finding for the defendants as to so much. It is as if he had said, for instance, as to the sums of 50l., “this is a good claim against one of the defendants, but not against the two jointly." There can be no question that the matters were brought before the arbitrator, and they were decided by him. The defendants are protected as to these sums for the future, for they will be entitled to say, that if the plaintiffs had had any *756] joint demand respecting them they would have insisted on it, and, *therefore, that it has been settled by the award: Dunn v. Murray, 9 B. & C. 780; 4 Mann. & R. 571. A party who sues for less than he knows to be recoverable in that action, cannot afterwards sue for the sum omitted; Lord Bagot v. Williams, 3 B. & C. 235. Besides, here the defendants themselves objected that the items were not matters in difference in the cause, and acquiesced in the arbitrators ruling in favour of their objection. Sir John Campbell, and Maule, contrà. First, these sums were matters in difference in the cause for they were in the particular of demand, and were claimed before the arbitrator; and they are within the scope of the declaration. If these had been the only sums in the particular, it is clear the award must have decided upon them; and, if so, it ought to have decided upon them in the present case. Then, has that been done which would enable the defendants, upon any future controversy, to treat the question as to these sums as a res judicata? The award does not include, but expressly excludes them. It would not protect the defendants against an action hereafter. Dunn v. Murray, 9 B. & C. 780, 4 Mann. & R. 571, is not applicable, because there it was evident that the arbitrator had awarded upon all that the plaintiff brought before him; here the contrary appears. In Lord Bagot v. Williams, 3 B. & C. 235, the plaintiff waived a part of his demand; here the plaintiffs urged it, but without success. It is consistent with the award that, as to some part of the money at least, there may have been an unexpired credit at the time of *757] commencing the suit. There was no consent by the defendants to the *omission of these sums in the award; they resisted the claim of them, as one which could not be enforced in this action, and against these parties; but they did not give up their right to have an award as to that claim; they could not intend that it should remain open to be litigated in a future action. And the arbitrator, by his award, does in fact undertake to "declare and determine" as to these demands. If they had not been a matter in difference, he could (a) Before Lord Denman, C. J., Littledale, Williams, and Coleridge, Js. not, by his finding have made them one; nor can he, by his finding, make them otherwise, if they are a matter in difference. Cur, adv. vult. Lord DEMMAN, C. J., now delivered the judgment of the Court as follows. We have considered the affidavits in this case, and have reluctantly come to the conclusion that the rule must be made absolute. All matters in difference in the cause between the parties were referred to the arbitrator, and there are matters in difference so referred upon which he has not decided. We do not see any means of avoiding the consequence, which is, that the award must be set aside. Rule absolute.(a) *HOLL and BEVAN against HADLEY and BROWN, Executrix and Executor of NATHANIEL HADLEY. Saturday, January 31. [*758 H. gave plaintiffs a guarantee for the value of coals to be supplied to N. H., on condition that no application should be made to H. for payment but on failure of the "utmost efforts and legal proceedings" of the plaintiffs to obtain payment from N. H. Coals were supplied under the guarantee, and remained unpaid for till April, 1820, when H., in consideration of plaintiffs giving N. H. "two years and upwards" for the liquidation of his then debt, agreed to reserve to the plaintiffs all claim that they might have upon him, H., by virtue of the former security, and "to be bound by the consequence thereof, if, at the expiration of such period," the plaintiffs should not have been paid. N. H. never paid the debt. In April, 1824, he went to France, but was occasionally in England, privately, and for short periods, from that time till 1830, when he finally returned. The plaintiffs issued process against him in June, 1826, and continued it till 1830, when they arrested N. H. upon it, on his return to England. Soon afterwards he took the benefit of the Insolvent Debtors' Act. In July, 1828, the plaintiffs com. menced an action against H., on his guarantees: that action abated by his death in 1829, and in June, 1829, the plaintiffs brought an action upon the guarantees against his executors, who pleaded the Statute of Limitations. Issue was tendered and joined on that plea. Held, assuming that the first guarantee was incorporated with the second, and that a reasonable time must be allowed after the expiration of the two years for the plaintiffs to endeavour to obtain payment from H., nevertheless that the plaintiffs, having allowed two years to pass without proceeding against N. H., after which he went abroad, had at all events exceeded such reasonable time, and were barred of their remedy against H. by the the Statute of Limitations in July, 1828. Also that, independently of the statute, the plaintiffs ought to have shewn that they had used their utmost efforts against N. H. before commencing this action; which, upon their case, did not appear. ASSUMPSIT for the sums of 10007. and 3007., upon the several guaratees after mentioned. Pleas, non assumpsit, and the Statute of Limitations, upon which issues were joined. The plaintiffs had a verdict for 13007., subject to the opinion of this Court upon the following case. The plaintiffs were coal-merchants in London. Before March 1818, the tes tator's son, a dealer in coals, had been supplied by them with coals, upon the credit usually allowed in the trade to dealers. On the 23rd of March 1818, the testator signed the following guarrantee: "Gentlemen,-My son, Nathaniel Hadley, having stated to me that he has opened an account with you, and that you are not willing to supply him to the extent that he will require without having security, and in consideration of your agreeing to give him credit for *any sum not exceeding 15007., for the purpose of enabling him to carry on his business, I do hereby hold [*759 myself liable to you for a sum not exceeding 10007., under this my guarantee for him for that amount; but upon the express condition, that no application shall be made to me on your part for the same sum of 10007., or any portion (a) See in the matter of Robson and Railston, 1 B. & Ad. 723. thereof, but on the failure of your utmost efforts and legal proceedings to obtain the same from him the said Nathanial Hadley, my son. I am," &c. "Messrs. Holl and Bevan." The plaintiffs, on the faith of this guarantee, supplied the son with coals, and, on the 28th of March, 1819, drew a bill on him, at one month, for 15007. for the balance due to them in respect of such supply, down to the preceding 28th of February, when the supply under the first guarantee ended. This bill he accepted, and dishonoured: but he paid the plaintiffs interest upon it to the end of 1819. On the 20th of May, 1819, the testator signed the following agreement: "Memorandum of an agreement entered into this 20th day, &c., between Joseph Holl and Paul Bevan, of, &c., coal merchants, Nathaniel Hadley, the younger, of, &c, coal merchant, and Nathaniel Hadley, of, &c., esquire as follows: Whereas the said J. H. and P. B. have for some time past supplied the said N. H. the younger with coals, on a credit of two months from the delivery; and having been requested to furnish coals to an increased amount, which they have declined to do without having some security for the payment thereof, and accordingly the said N. H. the younger had requested the said N. H. to become such security, which he has consented to do; and the said N. H. doth *760] in *pursuance of such consent, hereby agree to and with the said J. H. and P. B., that he will pay and discharge all such sums of money as may hereafter become due to the said J. H. and P. B. for coals sold by them to the said N. H. the younger, to any amount not exceeding the sum of 3007., in case the said N. H. the younger shall not pay the same within one month after the expiration of the aforesaid credit of two months; and the said J. H. and P. B. agree to give the said N. H. a further period of three months for making good any claim which they may have to make under this guarantee, and which shall be in equal proportions with Caroline Mary Hadley, (See Holl v. Hadley, 5 Bing. 54,) and Charles Simpkin, who are guarantees for N. H. the younger; and this guarantee shall by no means vitiate or make void any former guarantee given by the said N. H. to the said J. H. and P. B.; and the said N. H. may get rid of his responsibility under this guarantee at any time by giving notice in writing of such his intention to the said J. H. and P. B., when it shall wholly cease and become void from the time of the delivery to them of the said notice. "Nathaniel Hadley." After the signing of this agreement, the plaintiffs supplied Hadley the younger with coals till the 28th of October, 1819, when they refused to deliver any more, and the supply under this guarantee ended. Several applications were made to him for payment; and, on the 25th of April, 1820, the following agreement, signed by the testator, Caroline Mary Hadley and Charles Simpkin, was delivered to the plaintiffs: *761] "*To Messrs. Holl and Bevan. "Gentlemen-We the undersigned, N. H. the elder, C. M. H., and C. S., at the request of N. H. the younger, do hereby respectively consent and agree, in consideration of your extending to the said N. H. the younger the period of two years and upwards for the liquidation and settlement of his debt. due to you upon your present settled account, to reserve to you all right and claim that you may now have against us by virtue of the securities we have heretofore entered into with you on his behalf, and as particularized hereunder, and to be bound by the consequence thereof, if at the expiration of such period your demand shall not have been fully discharged; such securities, however, not to extend to any transactions between yourselves and Mr. Hadley, junior, beyond the day of the date hereof. Witness our hands this 25th day of April, 1820. "N. H. C. M. H. C. S. "From N. H. the elder, under date of 23d March, 1818, for 10007. "Also from the same, under date of 20th May, 1819, for 3001. The plaintiffs afterwards supplied Hadley the younger with coals, taking in payment the testator's acceptances, which have since been paid. They also occasionally lent money to and discounted bills for Hadley the younger. In April, 1824, Nathaniel Hadley the younger went to France. In 1830, he returned finally to England, and in the meanwhile was several times in this country; *but on those occasions he did not shew himself when he came [*762 over, and his stay was short. In 1830 he was arrested on process which had been issued against him on the 6th of June, 1826, and continued on the roll at the suit of the plaintiffs; went to prison; and was afterwards, in the month of October in that year, discharged under the act for the relief of insolvent debtors. The plaintiffs commenced proceedings against the testator in July, 1828. That action, however, having abated by his death on the 9th of March, 1829, the now pending action was commenced against the defendants as his representatives on the 6th of June following. Upon the transactions above stated, a large balance remained unpaid to the plaintiffs for coals delivered under the first two guarantees; and they claimed to recover, in respect of such balance, the sum of 10007. and 3007. from the representatives of Hadley the testator. A copy of the accounts transmitted by the plaintiffs to Hadley the younger, and by him to the testator, was annexed to and formed part of the case. If the court should be of opinion that the testator in his lifetime was liable to pay the plaintiffs the whole or any part of the said 13007., and that their remedy against the defendants was not, on the 6th of June, 1829, barred or discharged in any manner, the verdict was to stand for its present amount, or be entered to the extent of the testator's liability; but if the court should hold that the testator never was liable, or that the plaintiffs' remedy was barred or discharged, a nonsuit was to be entered. The case was argued in last Trinity term. (a) *Platt, for the plaintiffs. (A part of the argument is omitted, for [*763 reasons which will appear from the judgment.) The result of the transactions, as stated in the case and appearing by the accounts, is, that debts to the amount of 1000l., to which the first guarantee was applicable, and debts amounting to 3007., for which the testator was answerable under the second guarantee, remained unextinguished at the time of the last agreement. That agreement incorporated the condition of the first guarantee, that the testator should not be applied to but on failure of the "utmost efforts and legal proceedings" against the son. And it expressly stipulated that the plaintiffs should bring no action against Hadley the younger for any demand then existing, till the expiration of two years "and upwards" from the 25th of April, 1820. The earliest period, therefore, at which the Statute of Limitations could begin to run as against the testator would be the 25th of April, 1822. But Hadley the younger left England in 1824, and did not return to it for a permanent residence till 1830. He was then arrested on process which had been issued by the plaintiffs in June, 1826, and regularly continued from that year. In October, 1830, he took the benefit of the Insolvent Debtors' Act. It was not till then that the plaintiffs had a complete right of action on the guarantee of April, 1820, coupled with that of March, 1818, having then failed in their "utmost efforts and legal proceedings" to recover against Hadley the younger. When the plaintiffs so acquired a perfect cause of action against the testator, and not sooner, the statute began to run as to him, according ta the principle which has been recognised in (a) June 6th and 9th, 1834, before Lord Denman, C. J., Littledale, Taunton, and Williams, Js. |