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amounts due to the several persons whose property had been Action for sold as aforesaid, in respect of the proceeds thereof, were average. ascertained, and the said sum of £2000 was apportioned to and among the said persons accordingly, and by the said average statement, the sum of £100, part of the said amount of £2000, was ascertained to be due to and was apportioned to the plaintiff, in respect of his aforesaid goods, and the said sum was and is in fact due to him as the proceeds of the said goods, and the defendant has reserved the said sum to his use.
4. The plaintiff has applied to the defendant for payment of the said sum, but the defendant has not paid the same.
The plaintiff claims :-
action until payment.
Statement 1. In or about the month of October, 1874, the defendants were, under the power and authority of a certain Act of action on
(a) An award can be enforced by bringing an action upon it. The How award plaintiff must then aver in his statement of claim the submission to arbi- enforced. tration, the making of the award within the time limited, its effect, the
Averment fulfilment of all conditions precedent by him, and the failure of the
in claim. defendant to pay the sum awarded or to otherwise comply with the terms of the award. "It can scarcely be said to be a violation of Order XIX. r. 24, to set out the award in full in the statement of claim ; but it is submitted that it is not generally necessary to set out the submission at length. If the time for making the award has been enlarged, and the award made within the enlarged time, the plaintiff must show that the enlargement was duly made according to the terms of the submission, or by the consent of the parties or under the powers granted by the statute 3 & 4 Wm. 4, c. 42, s. 39, or the C. L. P. Act, 1854, s. 15; In re Dare
Valley Railway Co., L. R. 4 Ch. 554 ; Denton v. Strong, L. R. 9 Q. B. 117. Any irregularity as to the enlargement of the time is cured by the Irregulari. parties appearing before the arbitrator, but not though they take part in ties in the reference if they protested against the irregularity (Ringland v. relation to Lowndes, 17 C. B. N. s. 514 ; L. J. 33 C. P. 337); neither is the objec. the award. tion waived by appearance if it goes to the jurisdiction of the arbitrator over the subject matter. (Daries v. Price, L. J. 34 Q. B. 8.) Corruption or misconduct of the arbitrator is no defence, at least where application might have been successfully made to the Court to set the award aside. (Grazebrook v. Davis, 5 B. & C. 534 ; Whitmore v. Smith, 7 H. & N. 509; L. J. 41 Ex. 107.) It is misconduct of the arbitrators within the mean. Misconduct ing of this rule not to hear one of the parties, and therefore not a good of the arbi. defence to an action on the award, but a ground for applying to have trator. the award set aside. (Thornburn v. Barnes, L. R. 2 C. P. 384.) It is no defence that the decision of the arbitrator has proceeded on a mistake,
Statement Parliament made in that behalf, constructing a railway through of claim in certain lands, the property of the plaintiff's company, and a an award. dispute arose between the plaintiff's company and the de
fendant as to the amount of compensation to be paid by the defendants to the plaintiff's company in respect of the injury done to the said lands by the construction of the said railway.
2. By an agreement dated the 10th October, 1874, it was agreed by and between the plaintiff, acting on behalf of the said Y. Iron Company, and the defendants, that the question of the amount of the said compensation should be referred to the arbitration of one W. A., of C., in the county of G., civil engineer, and by the said agreement the said plaintiff and defendants mutually agreed to abide by the award of the said W. A.
3. The said W. A. took upon himself the said reference, and the time for making his award in the premises having been duly enlarged until the 1st of January, 1875, and afterwards until the 10th of April, 1875, did, before that day, make and publish his award in writing respecting the matters referred, ready to be delivered to the said parties, and thereby recited and awarded as follows :
[Here follows the award at full length.]
4. The plaintiff's costs of the said arbitration were afterwards taxed at £590.
5. All conditions have been fulfilled, and all things have happened, and all times have elapsed necessary to entitle the plaintiff to be paid the said sums so awarded as aforesaid, and the said £590; yet the defendants did not pay to the plaintiff the said sums, or any of them, or any part thereof, and they still remain due and unsatisfied.
The plaintiff claims £3000.
Law as to awards not affected by Judica. ture Acts.
(Johnson v. Durant, 2 B. & Ad. 925); but it is a defence that the award is not conformable to the submission.
The Judicature Acts have not affected the law in any way as to arbitrators and awards. Parties can still refer their disputes to arbitration and the award can be enforced in the same way as before. (Re an Arbitration between Robert Phillips and John Brook Gill, 45 L. J. Q. B. C. P. & Ex. D. 136.) What the Acts have done is to establish several subordinate judicial officers called "official referees," to whom certain classes of cases are referred ; but their functions are merely to report to the Court certain findings, and they can in no sense be regarded as arbitrators, nor their judgments as awards.
Bail (a). Action on Recognizance against Bailors. 1. The plaintiff is a general merchant, carrying on business Action on
a recogniin the City of London, and on the 1st of January last he com
zance of menced an action against one
to recover the amount of bail. £100 on a promissory note of which he was, at the commencement of such action, the holder for a valuable consideration.
2. Shortly after the commencement of such action, namely, on the 10th of January, he caused the said to be arrested on a writ of capias ad respondendum, which was issued on the usnal evidence.
3. On the 15th of the same month the defendant duly and in regular form became bail for the said -- and bound himself by his recognizance to be answerable for the amount of any judgment for debt and costs, or either, which should be recovered in the said action against the said should the said not pay the same.
4. On the 2nd of March last the plaintiff obtained judgment in the said action for the sum of £150 for debt and costs.
5. The said has not paid such debt and costs, and the plaintiff has not obtained any execution or satisfaction of the said judgment, and the same remain wholly due and unpaid and unsatisfied.
6. The defendant has not paid the said amount, or any part thereof, and the said recognizance still remains in force.
The plaintiff claims as follows:
(a) The liability of a defendant to be held to bail or arrested on a Arrest on capias ad respondendum where the debt is £20 or over, and there is reason capias not to believe that the defendant is about to quit the jurisdiction, has not abolished. been affected by the Act which abolished imprisonment for debt.
Action for Misusing a Horse and Dog-cart hired by the
Defendant. Action for injury to 1. On the 19th September, 1875, the defendant, who resides horse and
at M., in the county of C., hired from the plaintiff, who is a cab cart by hirer. What is a (a) A bailment is constituted by the delivery or transfer of a chattel bailment. from one person to another, in order that something may be done with
it, either for the benefit of the owner or of the party who receives it as the temporary possessor, or for the mutual benefit of both of them, and the word is applied to contracts for the letting and hiring of chattels, as well as to contracts for the delivery of them to persons for safe custody, or to workmen to be worked upon or dealt with in the course of their
Liability of hirer of chattels.]—The hirer of a chattel is bound to use of a hirer it in a proper and reasonable manner, to take the same care of it that a of chattels. prudent and cautious man ordinarily takes of his own property, and to
return it to the bailor at the time appointed for its return, or within a reasonable period after request, if no such time has been fixed, in as good condition as it was at the commencement of the bailment, subject only to the deterioration produced by ordinary wear and tear and reasonable use, and by injuries caused by accidents which have happened without any default or neglect on the part of the hirer.
If the chattel is secretly stolen, the hirer is liable, unless he proves that he took such precautions for its safety as a prudent man ordinarily takes. In case of robbery, the hirer must show that it was taken by force. If the chattel is destroyed by fire or perishes, the hirer is not liable if he has not been guilty of neglect or want of due care. (Taylor v. Caldwell, 32 L. J. Q. B. 164.) A hirer of a ship for a particular voyage will not be liable for her loss in a storm unless he has deviated from the ordinary course, and needlessly encountered risks not contemplated by the owner at the time of the hiring.
Whenever a chattel bailed to a hirer has sustained a partial injury through an inherent defect in the article itself, or by reason of some inevitable accident, which threatens its total and immediate destruction, and the effects of such partial injury may be obviated, and the chattel preserved for future use by repairs promptly provided, there is an implied authority from the owner to the hirer to order the necessary repairs, and
incur the necessary expense. (See Addison, Contr., 7th ed. 619, 620.) Of a bor- Liability of gratuitous borrower of chattels.]-There are two kinds rower of of gratuitous loan of chattels, viz., the mutuum or loan of things which are chattels. consumed in the use, or the use of which puts it out of the borrower's
possession, such as wine or corn, and the commodatum or loan of a chattel which not destroyed by the use, such as a horse or carriage. In the former case the liability is to return an equivalent in value or quality. In the latter, viz., the commodatum, the borrower is bound to return the chattel in as good a condition as when it was borrowed, subject only to the deterioration resulting from inherent defects or produced by ordinary wear and tear, and the reasonable use of it for the purpose for which it was known to be required. But the borrower is bound to the strictest care and diligence to keep the goods so as to restore them back again to the lender, and if guilty of the least neglect, will be liable for injury or loss. (Coggs v. Bernard, 1 Sm. L. C. 188, 6th ed.) He is bound to that degree of care and diligence which the most prudent man exercises with regard to his own property, But he cannot be made liable for inevitable accidents or casualties he could not have foreseen, and which no human prudence
proprietor at M., and licensed to let horses and vehicles for hire, Misusing a a mare and dog-cart, for the purpose of carrying himself and horse and one other person from M. to C. and back ; and it was expressly agreed that the defendant and one other person only should be carried on any part of the journey in the said dog-cart, and that the mare should be driven from M. to C. and back, and not elsewhere.
2. The defendant, in violation of the aforesaid conditions carried, on the return journey, three other persons besides himself in the dog-cart, and also drove the mare a greater distance than from M. to C. and back, namely to B., which is four miles beyond C., and then back to M.
could have guarded against. If a horse is put into his stable by the borrower and is stolen therefrom, the borrower is not liable, unless he or his servant has left the door of the stable open. (Coggs v. Barnard, 2 Ld. Raym. 916 ; Doctor and Student, Dialogue 2, ch. 38.)
If a person use a thing lent to him for another purpose than he stated to the lender when borrowing it, then he will be liable for an injury or accident to it while so used, even without the least neglect. horse is lent for an ordinary journey, if the borrower travel by bye-ways dangerous to the horse's footing, he is liable in the event of accident (ib.); but if a horse is lent to a person to ride it at a hunt, the borrower is not liable for an accident to it while being ridden at the hunt after the usual fashion, as the risks must have been in the contemplation of the lender. (Williams v. Jones, 33 L. J. Ex. 297.)
Liability of pawnbroker.]-If the chattels pawned be such as will be Liability of deteriorated by wear, the pawnee may not wear them ; but if not such as
a pawn. are damaged by wearing, as jewellery, the pawnee may wear them subject broker. to liability, if they are stolen or robbed from his or her person, whereas he would not be liable if stolen from the proper place for depositing such things for safe custody. The pawnee is bound to use ordinary diligence (the media diligentia of the Roman law); and if he uses such diligence be is not liable in the event of loss or injury, and may claim the amount of the advance from the pawner. (Donald v. Suckling, L. R. 1 Q. B. 585.) If, however, the principal and interest are tendered to the pawnbroker and he does not deliver them, he then becomes absolutely liable in the event of loss or injury, apart from any question of negligence, as he became a wrongdoer by detaining them. (Maughan v. Sharpe, 34 L. J. C. P. 19.)
Liability of gratuitous mandatory.)—The mandatory is liable for Of a gradamage caused by his neglect, after he has undertaken to do something tuitous to goods and entered on the doing of it. (See Coggs v. Bernard, 1 Sm. mandatory. L. C. 6th ed. 188.) But he is not responsible for neglecting to do what he has merely undertaken to do. (16.)
Liability of paid mandatory.]—Paid mandatories are divided into two of a paid classes, viz., 1. Those exercising a public employment in virtue of which mandatory. they receive the chattel, such as common carriers, hoymen, &c., as to whom the law is that they are liable at all events, being insurers. (See post, 254.) 2. Private persons to whom the thing is delivered to have it carried or something else done with it. These mandatories are bound to use the best diligence they can, and are not liable should the chattel be stolen, lost, or injured notwithstanding.