chequer on the equity side; the fact is usually sent to be tried by the court of Chancery to the King's Bench, and sometimes to the Common Pleas; but the court of Exchequer to the law side of their own court upon a feigned issue; wherein the plaintiff declares, that he laid a wager of 51. with the defendant, that A. was heir at law to B. and then avers that he is so; and brings this action for the 51. The defendant allows the wager, but avers that A. is not the heir to B.; and thereupon the issue is joined.

The interlocutory order in Chancery directs, in what court the issue is to be tried, and what the question should be, who is to be plaintiff and defendant, and any and what particular fact to be admitted at the trial; and in some cases that the plaintiff or defendant be examined as witnesses, and that the judge should indorse upon the postea, such special facts as should appear in evidence. To proceed, the order passed and entered, with one of the counsel's brief at the hearing, and other necessary instructions, should be given to a common law barrister, or a special pleader, to prepare a draft of the issue, a copy of which must be delivered to the adverse solicitor, and if any material objection should be made to the draft, an appointment should be made between the counsel on each side; and if they cannot agree, the original order with the draft of the issue, must be left with the master in Chancery, to whom the order refers to settle the issue in case the parties differ; a warrant must be taken out from the master's office upon leaving the draft of the issue, and successive warrants taken out to settle the issue, and served upon the adverse clerk in court: the master may be attended by counsel; but if the question directed to be tried by the order is to be varied, an application must be made to the court; the issue being finally settled, the record is to be made up as in common causes, and the usual proceedings had, for which abundant instruction is given in the former part of this work.

If the parties are desirous of trying the issue by a special jury, it seems that the application for that purpose should be made to the court of Chancery. 2 P. Wms. 68. After trial present a petition for leave to set the cause down to be heard upon the equity reserved, leave with the petition a copy of the decree and of the record and the postea thereon, for the Lord Chancellor. For much information upon this head, see Turner's Practice in the Court of Chancery by Venables, 1 Vol. 314, &c.

When a feigned issue is directed by a court of law, the costs follow the verdict; but when an issue is directed by the court of Chancery, then this court gives no costs. Herbert v. Williamson, 1 Wils. 324. 1 Wil. 261. Vide Hoskins v. Lord Berkeley, 4 Term Rep. 402, where two issues were directed, plaintiff succeeded on the first issue, and the defendant on the second issue; defendant obtained a rule why the master should not tax his costs on the second issue. The court thought themselves bound at first by the authority of Herbert v. Williamson; but strongly intimated an opinion, that as feigned issues were only granted by leave of the court, it would be prudent in future, when they permitted such issues to be tried, to compel the parties to consent, that the costs should be in the discretion of the court. But it afterwards appearing in this case, that these issues had been tried without consent of the court, they ordered all the proceedings to be staid, adding, that such a proceeding was a contempt of the court.

Court of

fer to the

But if a question of mere law arises in the course of a cause, as whether by the words of a will, an estate for Chancery relife or in tail is created, or whether a future interest K. B. or C. P. devised by a testator shall operate as a remainder, or an on the words executory devise: it is the practice of the court of Chan- of a will, by cery, to refer it to the court of King's Bench or Common way of case. Pleas, upon a case stated for that purpose; wherein all the material facts are admitted, and the point of law is submitted to their decision; who thereupon hear it solemnly argued by counsel on both sides, and certify their opinion to the chancellor. But the Exchequer direct the issue to be tried on the plea side of their own

court.

To proceed therefore in this matter, a case is settled by How to procounsel on both sides, and signed; then move for a conci- ceed. lium, the same as on a special case; set down the case with the clerks of the papers, and deliver each judge a copy of the case, as settled, before argument.

Issue directed by the court of Chancery, which defen- Court will dant was desirous of trying, but which (it was suggest- dant to carry permit defened) the plaintiff wished to delay, and on that ground, a record of an motion that the defendant might be at liberty to carry issue directed the record down to trial at the next assizes, observing down to trial, that by the common law the defendant could not carry it on a sugges down by proviso; court thought the application reasona- tiff intends to tion that plainble, and granted rule absolute in the first instance; saying delay it. that the plaintiff would not be damnified by it, for that

if he chose to take the record down himself, the costs of
this application must be paid by the defendant.
abs. Humpage v. Rowley, 4 Term Rep. 767.

No informer

with defen

dant, but by the consent of the court,

made perpetual by 27

POPULAR ACTIONS.

Compounding them.

By stat. 18 Eliz. c. 5. sect. 3. "No informer or plaintiff can compound" shall compound or agree with persons that shall offend "against any penal statute for an offence committed; "but after answer made in court unto the information or "suit; nor after answer, but by order of that court; that "if any person shall offend, make any composition, or "take any money, reward, or promise of reward, for "himself, or to the use of any other, without order or "consent of some of her majesty's courts at Westminster, "and be convicted, shall stand on the pillory, &c. and "be disabled to be plaintiff or informer in any suit upon "any statute, popular or penal; and forfeit 101. &c."

Eliz. c. 10.

Penalties

given to persons certain, not generally.

To what the act extends.

Leave to compound denied upon the statute.

Sect. 4.

This act not to restrain any certain person, body politic or corporate, to whom or to whose use any forfeiture, penalty, or suit, is or shall be specially limited or granted, by virtue of any statute; and not generally to any person that will sue.

Sect. 6.

It seems clear, both from the preamble and the whole tenor of the statute, that it extends only to suits by common informers, and not to those by a party grieved. 2 Haw. 279. 1 Salk. 30.

In an action for making and selling gold rings, of less fineness than statute directs, moved for leave to compound without consent. Per Cur.-It is in the discretion of the court to give leave to compound; and afterwards they refused the motion. Howell, qui tam, v. Morris, B. R. 1 Wils. 79.

Leave given Poole moved for leave to compound on the part of the to compound prosecutor, upon the statute of gaming, upon an affidaon the statute vit that the defendant and one A. B. used to play at of gaming. cards together, and that the defendant had won divers sums of A. B.; that A. B. was become a bankrupt, and that the assignees who set this prosecution on foot, were satisfied with respect to the defendant; and the court granted the motion. Ibid. 130.

If in a penal

action, a rule

be obtained

On an affidavit of the defendant's poverty, the court Poverty. will give leave to the prosecutor qui tam to compound, though in execution. Str. 167. Bradshaw v. Mottram. Rule last term was obtained to stay proceedings in an action on penalties under the lottery act, on payment of 201.; for the non-payment of which, an attachment was to stay the now moved for.-Lord Kenyon said, the court would not proceedings grant a rule to stay the proceedings in a penal action, on on the sum paying the sum agreed upon, but upon a supposition, agreed on; an that the defendant undertook by his application to pay may be moved that sum. Rule abs. Rex, qui tam, v. Clifton, 5 Term for the nonRep. 258. E. 33 Geo. 3.

attachment

payment of that sum. After verdict

The court gave leave to compound in an action for usury after verdict, favorable circumstances appearing, granted, which would have justified a motion for a new trial. Maughan, qui tam, v. Walker, 5 Term Rep. 98. (a)

Ordered, that in future every rule to be drawn up for Defendant compounding any qui tam action do express therein, now to underthat the defendant doth thereby undertake to pay the take to pay sum, for which the court hath given him leave to com

sum.

This motion is made upon the affidavit of one of the How to proparties, stating, that an action is brought upon such an ceed. act of parliament, and that the declaration contains pe- Affidavit, nalties to the amount of 1501. that since, the said defendant has pleaded nil debet, and that the plaintiff and defendant have agreed to compound the same for the sum of 501. and that no more is given or taken, nor is it compounded in any other way than by leave of the

court.

Give this affidavit to counsel, likewise the plaintiff must give a brief upon a slip of paper to consent to the motion on payment of the sum of 501. agreed, his fee half-a-guinea.

The court made a rule, that where they give leave to To whom the compound a penal action, the king's half of the composi- money is to tion shall be paid into the hands of the master of the be paid. Crown-office, for the use of his majesty, and it is now paid before the rule drawn up. Brown, qui tam, v.

(a) See Bosanq. and Puller, 18. It was refused where action brought on 25 Geo. 3, c. 36, for keeping a disorderly house. Bellis v. Peale. See 38 Geo. 3. Tidd, 471. 2 Black. Rep. 1157.

See 2 Burr. 701.

If no action

Bailey, 4 Burr. 1929. The receipt of the master of the Crown-office, is taken to the clerk of the rules, before he will draw up the rule.

ARBITRATION.

ARBITRATION, or arbitrage, is where the parties injuring and injured, submit all matters in disputes concerning any personal chattels or personal wrong, to the judgment of two or more arbiters or arbitrators, who are to decide the controversy: and if they do not agree, it is usual to add that another person be called in as umpire (imperator or impar,) to whose sole judgment it is then referred; or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award: and thereby the question is as fully determined, and the right transferred or settled as it could have been by the agreement of the parties, or the judgment of a court of justice.

A submission to arbitration may be before any action brought, or after the action commenced, and before the trial, or when the cause is called on for trial.

1. If before any action brought, it is in the power of the parties to refer the dispute to arbitration by bonds; 2. Where an action is depending, and before the cause is set down to be tried, the parties may consent by their counsel, to refer the matters in difference to arbitration, by a rule or order of the court; 3. But if the cause is entered for trial, then on its being called on, the parties may agree to refer under an order of nisi prius, which order is afterwards made a rule of court.

Without any action depending, it is in the power of is depending. the parties submitting to arbitration, to proceed upon the following statute, and have the summary remedy by

attachment.

By stat. 9 & 10 W. 3. c. 15. reciting that whereas it hath been found by experience that references made by rule of court hath contributed much to the ease of the subject, in determining of controversies, &c. for promoting trade, and rendering awards of arbitrators the more effectual in all cases for the final determination of controversies referred to them by merchants and traders, or others, concerning matters of account, or trade, or other Merchants de- matters, it enacts, that it shall be lawful for all mersiring to end chants, traders and others desiring to end any controver

controversies