tually stayed, but I want to remove the stay. The Court would not have issued the order had they known that the attorney was uncertificated. PIGOT, C.B.-This case involves two questions,one of law, on which I must decide ex debito justitiæ, the other a discretional one. The first is whether the order should be set aside, the second as to the costs of the motion. With respect to the first I have not a shadow of doubt. The only thing to make me at all hesitate is the case in the JURIST, but the argument there is very short, no authorities are cited, and the circumstances of the cage indicate that it ought not to govern the present case. It was there decided The case was submitted to arbitration, and it was agreed that "it shall not be necessary for the arbitrators to find specifically on each of the several issues, but that they shall be at liberty to make an award generally either for plaintiff or defendant." It was agreed also that the costs should follow the event of the award. The arbitrators found that the close was plaintiff's, and therefore found for him, but made no mention of damages. Defendant refused to pay the costs, £45 11s. 5d., alleging that the award was not final as it did not give damages, whereupon plaintiff brought an action against defendant for the costs. The jury, by direction of his Lordship, found for plaintiff. Held, (Fitzgerald, B., dissentiente) on motion to set aside the verdict, or for a new trial, or to reduce it to £35 138. 1d., the sum found to be due on taxation, that the award was good, but that the verdict should be reduced as above. that where a case is brought before the Court as that was, and when the Court can do so without substantial injury to the client, it will set aside the proceedings. There was a subsequent decision in this Court in the case of Colclough v. Colclough, where by inadvertence a licence had not been taken out by an attorney, this being without his knowledge or that of his client; and on that ground we ordered that the THE summons and plaint was as follows:—“ Victoria, proceedings adopted by the uncertificated attorney &c. Nathaniel M'Curdy, defendant, is summoned to should not be a nullity, and that the client ought not answer the complaint of Hugh M'Lees, who complains to suffer. That case established a principle wholly at that before and at the time of making the agreement variance with that which is contended for here by Mr. herein-after mentioned, matters in difference were deExham. A party ought to see if there is not a con- pending between plaintiff and defendant, and thereflicting authority later than some former decision upon by an agreement dated 6th day of March, 1862, which was in his favour. I must decide this case ac- it was agreed by and between plaintiff and defendant cording to Colclough v. Colclough and the authorities that the said matters in difference should be, and the cited by Mr. Keogh, and also from my recollection of same were thereby referred to the arbitration of Dathe other authorities in England; and I must refuse vid Wilson and James Sinclair, and such other person this motion so far as it seeks to set aside the condi- as the said David Wilson and James Sinclair should tional order; and if in doing so it were necessary for appoint, the decision of the said arbitrators, or any me to overrule the case in the JURIST, I would over-two of them, to be final and binding upon the parties, rule it; but I think it is not necessary so to do, for provided their award should be made and signed the Court there acted of its own motion and did no by the said arbitrators, or any two of them, in writprejudice to the client. But it is not so here, for ir-ing, on or before 1st day of November then next; reparable damage would be done to the client if I and that all costs incurred in the case up to the date granted this motion. As to the costs, if it were not of said agreement, as also the costs of said award, for the case in the JURIST I would order that the should follow the award made by the said David Wilcosts be paid by the party who fails in the motion; son, James Sinclair, and such other person to be apbut we are in the habit of taking into consideration pointed as aforesaid, or any two of them. And the the fact, that there are decided cases which may have said David Wilson and James Sinclair, before promisled a party into making a motion which he other-ceeding to the said reference, to wit, on the 14th day wise would not have done. I do not feel at liberty, on account of that case, to give the costs of this motion; but if another motion such as this should hereafter arise, I would refuse it with costs. I now give an opportunity to either party to apply for his costs against the uncertificated attorney. Motion refused, but without costs. of August, 1862, duly appointed one John Woods to be the third arbitrator together with them, the said David Wilson and James Sinclair, in and concerning the matters in difference so referred as aforesaid. And the said David Wilson, James Sinclair, and John Woods, afterwards and before the time so appointed for making the said award, to wit, on the day and year last aforesaid, took upon themselves the burthen of said arbitration, and afterwards, before the time for making the said award, to wit, on the said day and year last before-mentioned, the said David Wilson, James Sinclair, and John Woods having [BEFORE THE LORD CHIEF BARON AND FITZGERALD taken upon themselves the burthen of the said arbi AND HUGHES, BB.] M'LEES . M'CURDY.--June 1. tration, the said David Wilson and John Woods, being two of the said arbitrators, made and published their award in writing, under their hands, of and con New trial motion-An award finding for plaintiff, cerning the matters in difference so referred to them without damages, is good. A. brought an action for trespass qu. cl. fr. against as aforesaid, and thereby determined the said matters in favour of plaintiff. And plaintiff's costs incurred in said case up to the date of said agreement, together with his costs of the said award, amounted to the sum of £45 11s. 5d.; and plaintiff avers that all conditions were fulfilled, and all things happened, and all times elapsed necessary to entitle plaintiff to be paid the said sum of £45 11s. 5d., yet the said sum of £45 11s. 5d., the particulars of which are annexed hereto, is still due and unpaid by defendant to plaintiff. And plaintiff prays judgment against the said defendant to recover the said sum of £45 11s. 5d., and interest thereon, and his costs of suit." Defence Nathaniel M'Curdy, defendant, appears and takes defence to the action of the said Hugh M'Lees, plaintiff, and says that the said arbitrators did not make any such award as in the summons and plaint is averred, and therefore he defends the action." The last paragraph of the submission to arbitration referred to in the summons and plaint, upon which the sole question in the motion turned, was as follows "And it is hereby further agreed by and between the parties aforesaid, that it shall not be necessary for the said arbitrators to find specifically on each of the several issues in this cause, but that they shall be at liberty and have full power to make an award generally either for plaintiff or defendant." The pleadings in the former action were as follows: Summons and plaint:-" Victoria, &c. Nathaniel M'Curdy, defendant, is summoned to answer the complaint of Hugh M'Lees, who complains that defendant, to wit, on 15th day of July, 1861, broke and entered certain land and premises of plaintiff situate at Ballyclough in the County of Antrim, and cut down and carried away certain grass and herbage of the plaintiff then growing thereon, to wit, of the value of £5. and took and carried away the same, and converted and disposed thereof to his own use. And also for that defendant converted to his own use plaintiff's goods, that is to say, certain grass and herbage, to wit, of the value of £5, to plaintiff's damage of £20. And plaintiff prays judgment against said defendant to recover the said sum of £20 and his costs of suit. last Belfast Spring Assizes, and the jury, by direction of his Lordship, found for plaintiff for the sum claimed, the learned Baron reserving leave to defendant to move to have the verdict entered for him. Falkiner, for defendant, having obtained a rule nisi accordingly, Harrison, Q.C., (with him Seeds) for plaintiff, showed cause against the conditional order obtained that the verdict had for plaintiff be set aside, and instead thereof that a non-suit or a verdict for defendant be entered, or that a new trial be had on the ground of misdirection of the learned judge, or that the verdict for plaintiff be reduced from £45 11s. 5d. to £35 13s. 1d. pursuant to leave reserved. The only question is, was the alleged award an award, as it does not give damages to plaintiff though finding for him. It is a good award, for by the terms of the submission, the arbitrators are not bound to find spe cifically, but may make a general award unbound by technicalities.-Jebb v. M'Keirnan (Moo. & M. 340); Strangford v. Green (2 Mod. 228). I give up the other point as to the reduction of the verdict. Falkiner, contra, for defendant.-This award cannot stand. It is the duty of arbitrators to award damages, and the clause in the submission relied on by plaintiff does not discharge them from what is a legal obligation.-Morgan v. Thomas (9 Jur. 92) cited in Russell on Awards, ed. 1856, p. 340, where other authorities are referred to. Mortin v. Burge (4 A. & E. 973); Wakefield v. Slanelly Railway and Dock Co. (11 Jur. N. S. 456). Seeds, in reply, relied on Wood v. Duncan (7 June 12.-The judgment of Pigot, C.B., and Hughes, B., was now delivered by PIGOT, C.B.-Courts of justice ought to consider what is the substantial matter, and reject what is forDefence "The said defendant, Nathaniel M'Curdy, mal, and thus give a reasonable construction to an appears and takes defence to the action of the said instrument. In the present case the controversy is Hugh M'Lees, plaintiff, and as to the first count in whether plaintiff or defendant is entitled to a small the summons and plaint says, that the land and pre-piece of ground. The action was for trespass qu. cl mises in the said count mentioned were not the land fr. with a count de bonis asportatis. Defendant traand premises of plaintiff, as therein alleged. And for versed the trespass and asportation, and pleaded also a further defence to the said count defendant says leave and licence. The controversy was referred for that he did the acts in the said count complained of, settlement to two arbitrators, who had power to apand every of them, by the leave and licence of plain-point a third if they thought fit. The submission to tiff. And as to the second count of the said summons arbitration provided that all costs should follow the and plaint, defendant says that the goods therein event of the award, and there was a further provision mentioned were not the goods of plaintiff, as therein in the following terms-" And it is hereby further averred. And for a further defence to the said se- agreed by and between the parties aforesaid that it cond count, defendant says that he did the acts in the shall not be necessary for the said arbitrators to find said second count complained of by the leave and specifically on each of the several issues in this cause, licence of plaintiff, and therefore he defends the action. but that they shall be at liberty and have full power The award was as follows-"We find that the to make an award generally either for plaintiff or deground claimed by plaintiff belongs to the mill hold-fendant. The arbitrators entered on the reference, ing, and we find for plaintiff accordingly. We recommend that the banks of the stream be repaired and clearly defined on the east side. Dated, Bushmills, 14th August, 1862. David Wilson, John Woods, arbitrators." The case was tried before Fitzgerald, B., at the and made their award as follows-" We find that the [BEFORE THE FULL COURT.] FITZPATRICK V. MOYLAN.-June 8th. Practice-Motion to send back a case to the Master. A case was referred to a Master for arbitration. H. made his award in favour of A. but gave him no costs, though thinking him entitled to costs, because he did not know if he had jurisdiction to give costs. Upon motion to send back the case to the Master to certify in respect of the costs, Held that the matter should be sent back to him for that purpose. THIS was a complicated matter of account; there was also a cross-action of Moylan v. Fitzpatrick; both cases were by consent referred to Mr. Cathrew to arbitrate, and he made his report in favour of Mr. Moylan in both cases, but conceived that he had no jurisdiction to deal with the question of costs; and though he thought Mr. Moylan entitled to costs, yet was of opinion that the matter should be brought before the Court, that it might make the proper order. ciple that this was a finding for plaintiff, and defendant refused to pay the costs, whereupon plaintiff brought an action to recover them. The action was tried before Baron Fitzgerald, who saved the point as to whether plaintiff was entitled to the costs, defendant contending that the award was not final, as the arbitrators did not award any damages. It is much to be lamented that the course was not adopted of making the submission a rule of Court-the Court might then have made an amendment in the award. We must now construe the submission. What, then, were the matters in controversy? Whether the millholding was the property of plaintiff. On that depended the decision of the issues. If the case had been before a jury, and they found for plaintiff, they must have given some damages, nominal at least, else the plaintiff would not have judgment: and costs under the statute of Gloucester, would only follow the damages. But here the submission gave power to the arbitrators to determine the question unbound by technicalities. We ought to construe the submission by considering the subject-matter. Plaintiff and defendant were farmers, whose land adjoined, and the law allowed them to refer the matter in dispute to unprofessional men, and I do not think it otherwise Martin accordingly (with him Heron, Q.C.), for than natural to hold that the parties gave the arbitra- Mr. Moylan moved that Mr. Moylan might be declared tors power to find generally, and thus the arbitrators entitled to have final judgment entered up in his fawould have done all that was required of them. I vour in both causes, and that he might be declared think the finding of damages was not required if the entitled to his costs of the reference to the Master arbitrators thought it unnecessary. Suppose the ar- and his report; and, if necessary, that the report bitrators thought the land and herbage belonged to might be remitted to the Master to certify in respect plaintiff, but that there was no appreciable injury done of the said costs. Counsel moved on an affidavit of to him, and therefore awarded him no damages, would one Michael Reddin (who deposed to the facts as that be a bad award? It would be clearly within the above stated), and relied on Cross v. Cross (13 C.B. terms of the submission, and this appears to me to be N. S. 253); Bell v. Postlethwaite (5 E. & B. 695); what the arbitrators have done. They derive their Caswell v. Growcutt (31 Law Jour. Exch. 361). authority by consent of the parties, and are not bound to find damages if none have been sustained. The Duke of Beaufort v. The Swansea Harbour Trustees (8 C. B. N. s. 146) shows the disposition of Courts to hold an award sufficient when the arbitrators decide the question submitted to them, though in an irregular way. The following cases are in point also-Gray . Gwennap (1 B. & Al. 106); Dunn v. Warlters (9 M. & W. 293); In the matter of arbitration between Brown and the Croydon Canal Co. (9 A. & E. 523). I have entered into this question at some length, because I have considerable difficulty in the case, especially when I find that my brother Fitzgerald differs from me. On the whole, this award in substance determined the question in the case, and we must therefore hold it to be a good award. The verdict, therefore, will stand, but will be reduced to £35 13s. 1d., and we will give no costs of this motion, as both plaintiff and defendant have succeeded in part and have failed in part. FITZGERALD, B.-I regret that I cannot concur in I need the judgment of the majority of the Court. only refer to the ground of my dissent, which is, that Rule absolute for reducing the Palles, Q.C., contra for Mr. Fitzpatrick.-A case will not be sent back to an arbitrator unless his award has been clearly bad.—Oldfield ▾ Price (6 C.B. N.s. 539); Phillips v. Evans (12 M. & W., 309; C. L. P. Act, sec. 11); Duke of Beaufort v. Swansea Harbour Trustees (8 C. B. N. s. 146); Leggov. Young (16 C. B. 626); Hutchinson v. Shefferton (13 Q. B. 955); Cleary v. Cleary (10 Ir. C. L. R. 329). The arbitrator did not make any affidavit. Heron, Q.C. in reply. PIGOT, C. B.-We must make the order. We are within the power given to us by the statute. We so hold upon the ground that the arbitrator has made a mistake, which is sufficient ground for sending the case back to him. Motion granted. t Court of Chancery. 9th May, 1839, purporting to be a settlement mad previous to the marriage of Esther Jane Carey with her husband, Connell Wilkins Macnamara, was executed by the parties to said indenture, being Connell Wilkins Macnamara, of the first part, Charlotte¡Macnamara, widow, of the second part, Esther Jane Carey, spinster, Trustee-Marriage settlement-Recital in, of agree-of the third part, and Francis Pratt Smith and Henry Reported by Oliver J. Burke, Esq., Barrister-at-Law. MACNAMARA V. CAREY.-May 8; June 22. ment to convey certain premises-Omission of conveyance thereof in operative part of deed Omission to register deed. A marriage settlement recited the title of M. the intended husband, to various properties, and then recited an agreement to settle all the said several properties upon the trusts of said settlement. The operative part, however, omitted two of said properties from the grant to the trustees. The intended husband was a solicitor, and he it was who had prepared the said settlement. C. one of the said trustees and the brother of the lady was a practising barrister, and it was in the petition alleged, but not proved, that he had acted professionally for his sister in the approval of the draft of the settlement. After the marriage, M. the husband mortgaged the very lands omitted from the operative part of the settlement, and they were lost. It was not proved that the trustee C. was aware of the omission of the lands from the settlement before the loss occurred after M's death. In a suit against C. as surviving trustee by the eldest son of M. to make him liable for the loss resulting from the omission of the lands from the settlement. Held-That C. was not liable for the loss. A trustee is not liable for the non-registration in the Registry office of a deed conveying lands to him, when his attention has not been called to the fact of the non-registry thereof. THIS was a cause petition presented by the petitioner, Richard Francis Macnamara, against the respondents, Henry Carey, Esther Jane Macnamara, George Mathews, and Elizabeth Agnes Mathews, his wife, Sheffield Beetham and John G. Tatlow. The petition prayed that the trusts of a certain indenture of 9th of May, 1839, might be performed and carried into execution under the direction of the Court, and that it might be declared that Henry Carey had been guilty of breaches of trust, and that he might be removed from being a trustee of the same indenture, and for a reference to the Master to appoint two fit and proper persons to be trustees in the place of the said Carey, and of another trustee, named Smith, deceased, and that Carey might be ordered to procure proper conveyances to such new trustees, when appointed, of the several lands and premises agreed by the said indenture of settlement to be settled, including certain lands called the lands of Quilty, and the house No. 24 Gardiner's-place, free from any incumbrances charged thereon, by one Connell Wilkins Macnamara since the execution of the said indenture. The petition also prayed for a reference to the Master to inquire and report what loss had been occasioned to the trust estate, and which loss respondent, Henry Carey, might be ordered to recoup to the estate. The petition opened by stating that a certain indenture of Carey, barrister-at-law, one of the respondents, of the fourth part. This indenture amongst other things recited that said Connell Wilkins Macnamara was under the singular the interest which the said Dillon Macnamara The the lands of Quilty, situate in the County of Clare, as held under and by virtue of an indenture of lease dated the 6th of November, 1782, for the residue of a term of 900 years, and producing a profit rent of £40 a year, and was also entitled to the house No. 24 Gardiner's place, in the city of Dublin. That upon the treaty of the said intended marriage it was agreed between said Esther Jane Carey and Connell Wilkins Macnamara that the said lands of Quilty and the said house and premises in Gardiner's place should be granted and assigned to said trustees upon the trusts of said indenture, yet that the said indenture did not contain any clause directly granting or assigning the said lands of Quilty or the said house and premises in Gardiner'splace to the trustees thereof; but petitioner submitted that the aforesaid agreement to settle the same was binding in equity on the parties to the said settlement, and that according to the true construction thereof it should be held that the said lands of Quilty and the said house and premises in Gardiner's-place became, on the execution thereof, subject to the uses and trusts therein declared concerning the said lands and premises, and that under the covenants and agreements therein contained the said Connell Wilkins Macnamara could have been compelled immediately thereafter to grant and assign the said lands of Quilty, and the said house and premises in Gardiner's-place, to the trustees of the said settlement, upon the trusts aforesaid. The petition then stated that the said Henry Carey, one of the trustees named in the said settlement, was the brother of the said Esther Jane Macnamara, and acted as her professional adviser and agent in and about the preparation of the said deeds, and did not employ any solicitor on her behalf, but allowed the said Connell Wilkins Macnamara, who was himself a solicitor, to prepare the draft of said indenture of settlement, and that he, the said Henry Carey, who was a bar rister, approved of the draft on behalf of Esther Jane Carey, and acted with such negligence with regard to the settling, comparing, engrossing, and executing of the said indenture of settlement that he allowed the said lands of Quilty, and the said house and premises of No. 24 Gardiner's-place, to be left out of the granting part of said deed contrary to the agreement recited therein as aforesaid. That immediately after the execution of said marriage settlement the same was handed to said Henry Carey, and that the same remained in his possession for about two months, and during that period the said Henry Carey neglected to have same registered in the Registry of Deeds Office in Ireland, as petitioner submitted he was bound to do, and afterwards, contrary to his duty as such trustee, handed the original indenture of settlement after its execution, and unregistered, to the said Connell Wilkins Macnamara, to deal therewith, and with the lands and premises thereby granted and assigned, as he should think fit. Petitioner further charged that from the time of the execution of said indenture of settlement on the 9th of May, 1839, to the year 1843, said Henry Carey allowed the original indenture of settlement to remain in the hands of Connell Wilkins Macnamara, and beyond the control of him the said Henry Carey, without taking any steps to have the said indenture of settlement registered so as to pre vent the said Connell Wilkins Macnamara dealing ever interfered |