Exch. of Pleas, tered into mutual promises to abide by the award, and the 1831. ALLEN v. MILNER. plaintiff can have a remedy for the 137. upon the award itself. An award differs materially from an accord; it is in the nature of a judgment, and is therefore final. All the cases on this subject were considered in Gascoyne v. Edwards (a), which settled conclusively, that an award is a bar to an action for the original demand, even though unperformed after the time for performance has expired. That case is precisely in point; Freeman v. Bernard (b), is to the same effect; so also is Crofts v. Harris (c), in which one count was for wares sold and delivered. Cowling, in reply.-Gascoyne v. Edwards was a case of unliquidated damages. In Crofts v. Harris, all matters in dispute between the parties were referred, which included damages for the detention of the debt, as well as the debt itself. The award only suspends the right of action, which revives on non-performance of the award. It is like a debtor making a composition with his creditors-they cannot sue him so long as he performs his agreement, but if he breaks it, they are remitted to their original rights. Cramley v. Hillary (d). Cur, adv. vult. Lord LYNDHURST, now delivered the judgment of the Court. This was an action of indebitatus assumpsit, for tolls, &c. The defendant pleaded, as to the count for tolls, that differences had arisen between him and the plaintiff, touching the said claim, and that they mutually submitted themselves to refer, and did refer, the said matter in difference to arbitration; that they mutually promised to abide by the award; and that the umpire made his award of and concerning the said premises, and did thereby award, that the (a) 1 Y. & J. 19. (c) Carth. 187 MICHAELMAS TERM, 2 WILL. IV. 1831. ALLEN v. MILNER. defendant should pay to the plaintiff the sum of 137. To Exch. of Pleas, this plea, the plaintiff demurred specially, because the plaintiff did not aver payment of the 137., or any other satisfaction of the plaintiff's demand. The question, therefore, is, whether this award is, of itself, without payment or satisfaction, any bar; and considering the nature of the plaintiff's demand, and the nature of the award, we are of opinion that it is not. The plaintiff''s demand is for a debt, and the award is not for the performance of any collateral act, but for the payment of money. The matter, therefore, for the consideration of the arbitrator was, whether there were any, and what debt; the award only ascertains that there is a debt, specifies the amount, and directs the payment; but the money, till paid, is due in respect of the original debt, i. e. for tolls; its character remains the same, nothing is done to vary its nature or destroy its original quality. Had the demand been of a different description, as for the delivery of goods, and the award had directed a payment of money in satisfaction of the demand, it might then have been said that the award had changed the nature of the original demand, that the right to have the goods was gone, and the only right remaining was the substituted right, i. e. the right to have the money; or, had the demand been for a debt, and the award had directed not payment in money, but payment in a collateral way, as by delivery of goods, performance of work, &c., it might, perhaps, have been said, that the right to have payment in money was gone; but here the 137. is to be paid for the original demand, i. e. for the tolls, and it is to be paid as that demand was to to have been paid, i. e. in money. In the case of Crofts v. Harris (a), the declaration contained three counts: one, for not shipping and consigning cotton wool; one, upon an indebitatus for goods sold, with a conditional promise to pay in money, if the de (a) Carth. 187. 1831. ALLEN V. MILNER. Exch. of Pleas, fendant did not ship and consign cotton wool to the plaintiff; and the third, upon a general indebitatus assumpsit, for goods sold; the defendant pleaded a submission of all matters, and an award thereon, which he set out, but he did not allege performance on his part; what the matter awarded was, whether the payment of money, or the performance of any other matter, does not appear. It turned out on demurrer, that the award related only to the cottonwool, not to the other matters; so that it was pleaded to what it could not bar, and, as to the cotton-wool, it was conditional only, and therefore void. The plaintiff, therefore, had judgment. But, Carthew says, the following diversities were taken by the Court to be law :-First, That an award without performance is a good bar to an action on the case, if the parties have mutual remedies against each other, to compel the execution of the matters awarded; and (after other two positions, not bearing upon this case), that if the award in that case had been general, the defendant might have pleaded it in bar of all the promises in the declaration, and it would not have amounted to the general issue. In this case, therefore, there was no decision upon the point. The position, that an award without performance would be a good bar to an action upon the case, would be within the distinction we have taken, if by an action on the case were meant, as it probably was, not an action for a debt, but a special action on the case for damages; and, as we are not apprized what the award there was, it does not follow, that, because the award in that case would have been a good bar, the award here, which is only an award of payment, is. In Allen v. Harris (a), relied upon in Gascoyne v. Edwards, it is certainly said by counsel, arguendo, that arbitrament may be pleaded without performance, because the parties may have reciprocal remedies, and the Court is represented to have said, that "if ar (a) Ld. Raym. 122. MICHAELMAS TERM, 2 WILL. IV. The 1831. ALLEN บ. MILNER. bitrament be with mutual promises to perform it, though Exch. of Pleas, the party has not performed his part, who brings the action, yet shall he maintain his action, because an arbitrament is like a judgment, and the party may have his remedy upon it." But this was not the point in judgment before the Court, the defendant had pleaded not an arbitrament, but an accord, which was held bad; and the action was not an action for a debt, but an action of trover. case of Gascoyne v. Edwards (a) admits (if not of both the answers we have mentioned) clearly of the first, viz. that the demand was for general damages, and not for a debt. The first count of the declaration, we have ascertained from the pleadings, was covenant for not repairing; the award was pleaded to that count only, and it directed the payment of 51. for damages, the repair of the premises, and the quitting them at a given period. That case, therefore, according to the distinction we have taken, does not govern the present, because the action there was not for a debt, but for general damages for not repairing. Upon the ground, therefore, that the present action is for a debt, that the award only ascertains the amount of that debt, and that the money payable under the award is nothing but the original debt so ascertained in amount, we are of opinion that this plea is bad, and that the plaintiff is entitled to judgment. Judgment for the plaintiff. (a) 1 Younge & Jervis, 19. Exch. of Pleas, 1831. Where the agent for the defendant had not time to com municate with WHITEHEAD v. MINN. ALEXANDER applied under the rule of Court, Trinity Term, 1 W. 4 (a), to be at liberty to change the bail in this case. The ground of his application, supported by affidavit, was, that the agent for the defendant had not had time to communicate with his principal in the country, so as to obtain the names of good bail; and was therefore allowed the bail obliged to put in bail who were insufficient. his principal in the country, so as to obtain the names of good bail, the Court to be changed upon payment of costs, and putting the plaintiff in the same situation as if good bail had been put in in the first in stance. BAYLEY, B.-This rule of Court was framed after much consideration, with a view to secure, in the first instance, the sufficiency of bail put in for defendants; and this application is made after the rule was known to be in force. However, as this is the first application under the rule, and some excuse is offered, you may take a rule to shew cause, upon an undertaking to pay the costs occasioned by putting in insufficient bail, and placing the plaintiff in the same situation as if good bail had been put in in the first instance. No cause was shewn against the rule. (a) Ante, Vol. 1, p. 470, pl. 5. It is not neces sary to state in the notice of bail, that the FENTON V. WARRE. JOHN JERVIS objected that the notice of bail in this case did not state that the bail had respectively resided at their places of residence, described in the notice, for the last six months, according to the rule of Court, Trinity the places of re- Term, 1 W. 4 (a). bail have resid ed for the last six months at sidence describ ed in the notice. (a) Ante, Vol. 1, p. 470, pl. 2. |