1822. HILL

บ.

CHING.

ever, that the statute must receive the strict construction as contended for by my brother Vaughan, and that money alone, and not money's worth, must be deposited with the officer at the time of the arrest, still, it is here positively sworn by the defendant that the sums in question were deposited at that time. They possibly were; and the officer is totally silent on the subject. The exigency of the writ was complied with by the surrender of the defendant on the 11th, two days after which, those sums were paid into Court. The defendant could not have been required to do so, as they could only be demanded in lieu of bail.

Mr. Justice BURROUGH.-In every view of this case it appears to me that the defendant is clearly entitled to have the two sums in question paid over to him as prayed for. If the money was paid in under the statute, the officer received it in lieu of bail; if not, the defendant would be equally entitled to it: and even if bail had been taken, the recognizance would have been satisfied by the render of the defendant.

Rule absolute.

Monday, Nov. 25th.

CRAMP, Clerk, v. SYMONDS, Clerk.

The Court will THIS was an action of assumpsit for money had and re

not set aside

an award or

ceived, and brought to recover the amount of certain the arbitrator payments made to the defendant as fees payable to him has been mis- on account of burials in the chancel of a church, of

taken in the

law, unless the which the plaintiff was rector, and the defendant the viprinciples of law

upon which he has decided appear upon the face of the award itself:-Where, therefore, the question was whether fees for the interment of bodies in the chancel of a church were payable to the rector or vicar, and the arbitrator awarded that the latter was entitled to them, the Court refused to set aside the award.

IN THE THIRD YEAR OF GEO. iv.

car; and the question was, to which of these parties the fees belonged. On the cause coming on for trial it was referred to a barrister, who awarded that there was nothing due from the defendant to the plaintiff, and that the latter had no right to bring the action, and he ordered each party to pay his own costs. The plaintiff being dissatisfied with the award, wrote to the arbitrator for the purpose of ascertaining the grounds on which he had made it; and he returned for answer, that he was of opinion that the vicar was legally entitled to the fees, and that as they had been paid to him, the plaintiff had no right to recover them back.

Mr. Serjeant Lens now applied for a rule to shew cause why this award should not be set aside, on the ground that the arbitrator had decided against law, as the only question left to him was, to ascertain the rights of the parties to the fees in question, and to which the rector alone was by law entitled. This, therefore, cannot be considered as embracing a question both of law and fact; and more particularly so, as the arbitrator has since avowed his opinion to have been founded solely on a point of law.

Lord Chief Justice DALLAS.-It is a general rule, that where matters of law and of fact are referred to an arbitrator, his award is final and conclusive, and cannot be set aside unless some objection be apparent on the face of it; and if parties choose in a question of this description to substitute a barrister for the Court, on the supposition that he will decide according to the law of the case, it would be too much to allow his award to be set aside on the application of one of them, when the award is silent as to the principles on which the arbitrator has decided; and I cannot but observe, that it is highly improper for a party to make an application to an arbitrator to

1822.

CRAMP

V.

SYMONDS.

ascertain the principles on which he has acted, after he has made his award.

Mr. Justice PARK.-It does not appear on the face of the award that the arbitrator has decided contrary to law the merits, as well as the law of the case, were left to him; and in Chace v. Westmore (a), where a cause involving a question of law, was referred to a barrister under a rule of Court, to settle all matters in difference between the parties, and he made his award thereupon; but the question of law did not appear upon the face of the award; the Court, considering that it was the intention of the parties to refer the decision of the merits, as well upon the matter of law as of fact, to the arbitrator, refused to open the award, upon a suggestion of the arbitrator's mistake in point of law upon the construction of a contract between the parties.

Mr. Justice BURROUGH.-The rights of the parties to the fees in question were left to the arbitrator, and he has awarded that there was nothing due from the defendant to the plaintiff, and that the latter had no right to bring the action. There is consequently no objection as to the legality of the award for any thing apparent on the face of it; and as the arbitrator was a barrister, it must be taken that he has decided according to the principles of law.

The learned Serjeant therefore took nothing by his motion (b).

(a) 13 East, 357.—(b) See also Richardson v. Nourse, 3 Barn. & Ald. 237. Anonymous, 1 Chit. Rep. 674. Doe d. Bullock v. Thomson, Id. 674, n. Sharman v. Bell, 5 Maul. & Selw. 504. Bouttilier v. Thick, 1 Dow. & Ryl. 366; and the cases collected in Caldwell on Arbitration, 53 to 62.

1822.

Ex parte HALL, in re KNIGHT.

Monday, Nov. 25th.

Where it appeared by affidavit, that a client had given his attorney two bills for the purpose of getting them and that he

of exchange

discounted,

but applied
the proceeds to

had done so,

his own use;

MR. Serjeant Lens, on a former day in this Term, (viz. on the 23d) applied for a rule, calling on Mr. Knight, an attorney of this Court, to shew cause, why he should not pay over to the applicant Hall, a sum of money received by Knight on two bills of exchange, which Hall had given him for the purpose of being discounted, or that the bills themselves might be delivered back, or that Knight might give security for their amount. He founded his motion on affidavits, which stated that Hall had employed Mr. Knight as his attorney; that the bills in question had been accepted by Inglis and Co. and left with Knight for the purpose of getting them discounted on Hall's account, and that he had done so, but applied the proceeds to his own use.-Under these circumstances, the learned Serjeant contended, that the Court would exercise its summary though he was jurisdiction over one of its ministers, who had at all events been guilty of a breach of faith, and who had been previously employed by Hall to transact all his business in his professional character of an attorney.

But the Court refused to interfere, on the ground that the subject matter of the complaint did not arise in the course of any cause or legal proceeding in which Mr. Knight had been employed, or was then depending. The merely requesting him to procure the bills to be discounted, did not fall within his province of an attorney. He might have acted as a bill broker as well as an attorney; and as the request was not made to him in his professional character, it would be too much for the Court to interfere summarily against him. The party may have his remedy by an action for money had and receiv-.

the Court granted a rule

nisi, that the

attorney might

pay over their

amount to the

client, or deli

ver up the bills

to him, al

not employed in any suit at the time the application was

1822.

Ex parte

HALL.

ed; and In re Lowe (a) the Court would not compel an attorney, upon an application of this nature, to deliver up, on payment of his demand, a lease put into his hands for the purpose of making an assignment of it; there being no cause then in Court.

Mr. Serjeant Lens on this day renewed his application, and referred to the case of In re Aitkin (b), where it was decided, that if the employment of an attorney is so connected with his professional character as to afford a presumption that his employment was in consequence of that character, the Court would interfere in a summary way to compel him faithfully to execute the trust reposed in him; although he had never been employed in prosecuting or defending any suit on behalf of the party making the application. So, in the case of De Woolfe v. (c) it was held, that a summary application might be supported against an attorney, to compel him to pay monies received by him, though he was not employed in any suit, and he was required to pay such monies into Court, for the benefit of the parties interested.

The Court, observing that these cases ran into nice distinctions, granted a rule to shew cause.

Rule nisi accordingly (d).

(b) 4 Barn. & Ald. 47.

(c) 2 Chit. Rep. 68.

(a) 8 East, 237. (d) In justice to Mr. Knight it must be observed, that this rule was discharged with costs in the following Term, when the affidavits in support of it were fully and satisfactorily answered; and the Court animadverted most severely on the conduct of the applicant Hall.