know without such notice that no funds have been provided to answer it. In the present case there is no pretence to charge the drawer with fraud. The Defendant drew upon Cullen in the character of agent, and no evidence has been adduced to shew that he had not a right to do so. It has been assumed for the purpose of the argument, that he was to send over money to answer the bill. It is true that the drawee had effects in América; and that before the drawer knew what was become of the bill, he had reasou to apprehend that it might probably be returned upon the indorsers. In consequence of this apprehension he deposited effects with the indorsers by way of indemnity, and I think it cannot be disputed that those effects belonged to the drawee, and that they were deposited for the purpose of paying the bill. Now in what right did the drawer deposit these effects? So long as he himself or the indorsers remained liable upon the bill, he had a right to retain effects to the amount of the bill against the assignees of Cullen, or to protect the indorsers by the application of that property; but the moment that by the laches of the holder he and all the indorsers were discharged, his right to dispose of the property ceased, and he was bound to transfer it immediately to the assignees of Cullen. The acknowledgment of Miller and Robertson, and Booth and Co., was to this effect; for they engage to return the deposit as soon as they should be exonerated from the payment of the bill. Now they were exonerated at the same time that the Defendant was exonerated: and consequently from that moment the money deposited belonged to the assignees of Cullen. The Defendant in saying that he intended to pay over the money to the assignees of Cullen, expressed his intention of doing nothing more than the law would have compelled him to do: for the law would have obliged him to account with the assignees. I think therefore that he was well advised in resisting the action upon this bill, for had he paid the amount after he had been once discharged by want of notice, he might possibly have been compelled to pay the money over again to the assignees of Cullen. (a) (a) See Whitfield v. Savage, ante, vol. 2. p. 277. But in that case the indorser, who had been furnished with money to answer the bill, paid over that money to Rule discharged. the holder, notwithstanding an intima- 1802. CLEGO บ. COTTON. 1802. Nov. 25th. a Plaintiff be taken at Nisi to the award of an arbitrator, reference be mnade a rule of court, the verdict may be entered according to the award of the arbitrator, without any application to the Court for that purpose. If in such case the award be made before the term, the BORROWDALE v. HITCHENER. If a verdict for IN this case the parties having agreed at Nisi Prius, that a verdict should be taken for the Plaintiff for 1501. damages, and Prius, subject 40s. costs, subject to the award of an arbitrator, to whom all matters in difference were referred, with a proviso that the arbiand the rule of trator should make his award by the first day of this term, and the arbitrator having accordingly before the term made his award in favour of the Plaintiff for 1137., and the rule of reference having been made a rule of court, the verdict was reduced according to the award, and judgment was entered up by the Plaintiff for that sum, together with his taxed costs, without any previous application to the Court for that purpose, and a writ of execution was sued out and executed. On a former day a rule nisi was obtained by the Defendant, calling on the Plaintiff to shew cause why the writ of execution issued and the levy made thereon by the sheriff should not be set aside for irregularity with costs. The grounds of this application were; 1st, that the Plaintiff was not at liberty to reduce the verdict according to the award, without an express application to the Court for that purpose, and that he was premature in entering up his judgment before the end of the term. 2dly, That the execution was irregular, because the Defendant had never had personal notice of the award. The facts of the case as to the last point were, that the Defendant before the award made went into Scotland and had not returned since; but it appeared that his attorney had been served with notice of the award, and had received a copy of the same. Defendant can only impeach it within the four first days of term. Personal service of the award is not necessary to warrant the issuing of exe cution in such case, if the at torney of the Defendant has been served with the award.* Shepherd and Bayley Serjts. shewed cause, and insisted that where a verdict is taken at Nisi Prius, subject to the award of an arbitrator, the functions of the jury are thereby vested in the arbitrator; and when he has ascertained the sum due, the verdict may be altered accordingly, and the judgment entered thereon, without any other interference of the Court than that of making the rule of reference a rule of court; in support of this proposition, they referred to Grimes v. Naish, ante, vol. 1. p. 480. and Lee v. Lingard, 1 East 401. (a) They observed that if it were otherwise, a Plaintiff consenting to a reference, and taking a (a) But see Kettle v. Grove, Burnes, 57. where the Court approved a contrary practice, saying" Plaintiff had not a right to enter judgment without leave of the Court." And see Touissaint v. Hartop, 7 Taunt. 571. Bower v Taylor, 7 Taunt. 574. verdict 1802. BORROWDALE verdict for his security, would be in a worse condition than if he abided the decision of the jury; whereas the object of taking a verdict was to place him in the same condition as if he obtained a verdict. With respect to the 2d objection, they contended HITCHENER. that personal service was only necessary in order to bring a party into contempt, whereas the proceedings against the Defendant were not of that nature, but mere civil process founded on the judgment obtained by the Plaintiff. Best Serjt. contrà, admitted that the cases of Grimes v. Naish, and Lee v. Lingard, were an answer to the 1st part of his 1st objection, but insisted that according to the words of the 9 & 10 W. 3. c. 15. s. 2. "any arbitration or umpirage made under a rule of reference might be set aside by the Court upon application made within the term immediately following the publication of the award," and consequently the Plaintiff had no right to enter up his judgment and proceed to execution till the expiration of the term, as the Defendant would thereby be precluded from applying to the Court to set aside the award. He also referred to Read v. Garnett, Barnes 58. to shew that where a Plaintiff takes a verdict for security, and refers the cause at Nisi Prius, the Court of Common Pleas had held that an affidavit of the due execution of the award, and of a demand of the money is as necessary where the application is to have the postea delivered to the Plaintiff, in order that he may take out execution, as where the application is for an attachment. Lord ALVANLEY Ch. J. It appears to me that the present application to the Court is without any foundation in reason. By consent of the parties an arbitrator is at Nisi Prius substituted in the place of the jury, and when his award is made the verdict must of course be entered so as to correspond with that award. It is not pretended that the Defendant was not informed of the arbitrator having made his award; but it is contended that he ought to have had personal service previous to the execution. But that I conceive to be perfectly unnecessary as a foundation for civil process. The 9 & 10 W. 3. does not apply to such a case as this. If therefore the Defendant wished to impeach the verdict as founded on the award, he should have applied to the Court for that purpose within the four first days of term. HEATH J. The 9 & 10 W. 3. has no operation in this case. With respect to the case cited from Barnes, that has been overruled by subsequent authorities and practice; indeed many of the cases reported in that book are not law. ROOKE 1802. BORROWDALE บ. ROOKE J There can be no doubt that 9 & 10 W. 3. does not apply to an award made under a submission of this kind. The award of the arbitrator is the verdict of the jury, and if that HITCHENER is not satisfactory the party aggrieved should come to the Court as in other new trials within the four days. The reason upon which the decision in Read v. Garnet is founded proves it to be a case of no authority; for a demand of the money is there said to be as necessary before execution is taken out, as it would be in moving for an attachment. Now the former is civil, the latter criminal process. CHAMBRE J. The limitation of time reserved in 9 & 10 W.. 3. is for the party to apply to the equity of the Court. But the present judgment and execution are founded on a verdict. Personal service is only necessary in cases of criminal process, and not in cases of civil process. Rule discharged with costs. In an action of THIS assumpsit for non-performance of a contract for the sale of a house, with counts to recover back the deposit, the Plaintiff having in his first count alleged that the Defendant, who was to make a good title, had deli. vered an abstract which was "insuffi cient, defec❝tive, and ob"jectionable;" the Court obliged the A Plaintiff to givo a particalar of all ob jections to the abstract arising COLLETT V. THOMPSON. HIS was an action brought to recover damages for the breach, of an agreement for the sale of a house and a sum of money paid by way of deposit on the purchase of the premises. The 1st count was in assumpsit on the agreement to sell; and after alleging that the Defendant was to make a good title to the premises, stated in the breach that he delivered an abstract of title which was insufficient, defective, and objectionable, and that the premises were liable to incumbrances. There was also a count for money had and received. A rule nisi having been obtained on a former day, calling on the Plaintiff to shew cause why he should not deliver to the Defendant's attorney an account in writing of the insufficiencies, defects, and objections to the abstract delivered, and also of the incumbrances to which the premises were in the declaration alleged to be subject; Shepherd Serjt. now shewed cause, and contended that the Court would not entertain this application, which was in the nature of a bill in equity, without any mutuality in the advantages to be derived under it, for that if the objections already within the Plaintiff's knowledge should be stated by way of particular, and previous to the trial it should be discovered that other objections existed, * Suivre ell A Vide Squire v. Tod, 1 Campb. 293. Attorney General v. Lambirth, 5 Price, 386 —, upon matters of fact 9m 389. the the Plaintiff would not be able to avail himself of them, but would be precluded by the particular. He observed that the abstract had been returned to the Defendant's attorney, with marginal notes pointing out as objections that two annuities, creating a charge upon the premises, had not been accounted for, and that an inspection of some deeds having been required, the Plaintiff had only been referred to a third person, in whose possession they were. The objections noticed in the margin of the abstract were, he insisted, sufficient notice to the Defendant; and the application to a third person for the inspection of deeds, was not for the party purchasing, but the party selling, to make. Best Serjt. contrà, observed that this, like other applications for particulars of a Plaintiff's demand, was only to prevent surprise, and was made necessary by the generality of the allegations in the Plaintiff's declaration; that it fell within the principles acted upon in the King's Bench, where in ejectments for -re-entry under breaches of covenant, the Plaintiff had been compelled to specify the breaches upon which he meant to rely (a), and that it was warranted by an opinion thrown out in this Court some few terms back in a case of M'Connell v. Hector, where on an issue from the Court of Chancery to try a question of bankruptcy and an application for a particular of the acts of trading meant to be relied on, the Court held it a reasonable application. (b) The Court were of opinion that the Plaintiff was not bound to state in his particular any of the objections in point of law arising upon the abstract delivered, but that he ought to specify every matter of fact which he meant to rely upon at the trial, as having been a cause of his not being able to complete the purchase. Accordingly with this qualification they made the (a) Doed. Birch v. Phillips, 6 T.R.597. 16) Note; This intimation was thrown Rule abolute. out in that case on the rule nisi, which 37037 A WENNALL v. ADNEY. SSUMPSIT to recover the amount of a surgeon's bill. The cause was tried before Le Blanc J. at the last Shrewsbury assizes, when it appeared that the action was brought to re Nov. 26th. A master is not liable upon an implied assumpsit to pay. for medical at tendance ona! servant who has met with an accident in his service. And see Lamb v. Bunce, 4 M. & S. 275. |