and the payment of the said money claimed by the plaintiff in this present action before the plaintiff should have paid, satisfied or discharged the said debts of his said creditors, or taken such proceedings in the said court of law in France that the said seizure, arrest, and attachment should be wholly ended and determined, would not according to the law of France in any way excuse or discharge the defendant from the payment to the said creditors of the plaintiff of the said amounts of their said debts, or any part thereof, but the said John Punton, as such master, and the defendant, and each of them, would, according to the law of France, be liable to pay to the said creditors the said amounts of their said debts, notwithstanding his payment to the plaintiff in the present action of the money so claimed to be payable as in the declaration mentioned: and that the plaintiff has not paid, satisfied, or discharged the said debts, or any part thereof, nor taken any proceedings to end or determine the said seizure, arrest, and attachment; but that the debts remained wholly unpaid, unsatisfied, and undischarged, and the said seizure, arrest, and attachment still remained in full force and effect according to the law of France aforesaid, and that, according to the law of France, no action could be brought by the plaintiff against the defendant in respect of the said claim of the plaintiff, during such continuance of the said seizure, arrest, and attachment as aforesaid.

The plaintiff's attorney having signed judgment, on the ground that the fifth plea was not issuable, a summons was taken out before Crowder, J., at Chambers, to *set aside that judgment for irregularity; and, that learned judge having referred the matter to the court,

[*689

R. Clarke, on a former day in this term, obtained a rule nisi to the same effect. He referred to and proposed to distinguish from the present the cases of Mines Royal Societies v. Magnay, 10 Exch. 489,† Wodehouse v. Farebrother, 25 Law Journ. Q. B. 18, and Wood v. The Copper-Miners Company, 17 C. B. 561 (E. C. L. R. vol. 84.)(a)

(a) The affidavit upon which cause was shown set out a statement of facts, and an opinion of a French advocate as to the French law upon the subject, of which the following are copies :"Messrs. M'Gregor & Co., residing in Scotland, are owners of English steamers which have made on account of the French government various voyages from Marseilles to Constantinople and other ports of the Mediterranean and Black Sea. Mr. Simian, of Marseilles, was employed to furnish provisions for the passengers on board those vessels. This undertaking has not succeeded; and Mr. Simian, to escape the proceedings of his creditors, has fled to England, where he has been declared bankrupt. On the other hand, certain creditors have made attachments in the hands of the captains of the three steamers. The attachments in the hands of Captain Fraud, commanding the Empress, one of the said steamers, are in the possession of the undersigned; those intimated to the other two captains have not been handed to him; but the exist ence of those documents could be easily established. Under these circumstances, Mr. Simian, or the syndic of the bankruptcy declared in England, demands of the owners of these vessels the payment of the sums due from the captains.

"The question proposed to the undersigned, is, whether, according to the French law, the payment demanded can be made under the circumstances of the said attachments, and before they be removed.

"There can be no doubt on the point. The attachment is an act by which a creditor seizes

*Montague Smith, Q. C., and H. Lloyd, showed cause.-The *690] judgment was properly signed, the fifth plea clearly not being an issuable plea. It sets up a supposed suspension of the plaintiff's remedy in France, which undoubtedly affords no answer at law. The rule upon this subject is well stated by Parke, B., in delivering *the judgment of the Exchequer Chamber in Ford v. Beech, 11 *691] Q. B. 852, 867 (E. C. L. R. vol. 63),-"It is a very old and well-established principle of law, that the right to bring a personal action, once existing, and by the act of the party suspended for ever so short a time, is extinguished and discharged, and can never revive. It is said in Platt v. The Sheriffs of London, Plowd. 35, 36, And, if a personal thing is once in suspense, or the person of a man once discharged for a personal thing, it is a discharge for ever.' And in Lord North v. Butts, 2 Dyer, 139 b, 140 a, it is said: A thing personal suspended, or action personal suspended for an hour, is extinct and gone for ever, when it is by the act and consent of the party himself who has the thing suspended.' And in Woodward v. Lord Darcy, Plowd. 184, it is said: for, a personal action once suspended by the act or agreement of the party is always extinct, and then if a personal thing cannot be had but by action, if the action is extinguished, the thing itself is extinguished.' The principle thus laid down is repeated throughout the text-books of authority, and recognised and applied

a sum due to his debtor by other parties. The effect of it is, to prevent that third party from paying, and to place the sum due from him under the hands of justice. If, notwithstanding the the attachment, the third party should pay his creditor, he would be obliged to pay a second time, from having disregarded the force of an attachment legally laid. This results from Article 557 of the Code of Civil Procedure,- Every creditor may by virtue of titles authenticated, or privés, attach in the hands of a third party the sums and effects belonging to his debtor, or oppose their transmission.'*

"The attachments made in the hands of Captain Fraud have been made in the form prescribed by the above article. One of them, made in the name of three creditors, Mr. Simian and Messrs. Michel and Chobert, has been even declared valid [valable], by judgment of the court of Mar seilles, of the 19th of April, 1856; and it has been ordered that Captain Fraud should pay into the hands of those creditors the sums he may owe, without prejudice to the rights of the other creditors who have taken similar proceedings. That judgment is added to the present note. Thus, Captain Fraud or his owners will be obliged to pay to the creditors in France the sums due from them to Simian. They cannot be obliged to pay a second time in England.

"The attachments in the hands of the captain evidently prevent the owners from paying: that is a consequence of Article 216 of the Code de Commerce,- Every proprietor of a vessel is civilly answerable for the acts of the captain, and bound by the engagements contracted by the latter for whatever relates to the vessel and the voyage.'

"Thus, if the captain paid Simian, he would commit a wrong towards the attaching creditors, for which the owners would be responsible; and the latter would personally do the same wrong if they themselves paid.

"I therefore declare, that, according to the French law, Mr. Simian, or the syndic of his bankruptcy, cannot proceed against the owners until after removing the attachments. "AM. ESTRANGIER, Advocate.

"Marseilles, 13 Dec. 1856."

"Tout créancier peut, en vertu des titres authentiques, ou privés, saisir-arrêter entre les mains d'un tiers les sommes et effets appartenant à son débiteur, ou s'opposer à leur remise."

"Tout propriétaire de navire est civilement responsable des faits du capitaine, pour ce qui est relatif au navire et à l'expédition."

through a long course of decision. And in Cheetham v. Ward, 1 Bos. & Pul. 630, 633, it is said by Lord Chief Justice Eyre that the principle is now acknowledged, that, where a personal action is once suspended by the voluntary act of the party entitled to it, it is for ever gone and discharged.' "(a) Then, does the plea *present any [*692 equitable defence? It has been decided over and over again, that, to make a good equitable defence, the plea must show a complete bar, and present grounds upon which a perpetual and unconditional injunction would be granted in a court of equity: Mines Royal Societies v. Magnay, 10 Exch. 489;† Wodehouse v. Farebrother, 25 Law Journ. Q. B. 18; Wood v. The Copper-Miners Company, 17 C. B. 561 (E. C. L. R. vol. 84). [WILLES, J.-This was put rather upon the ground that it amounted to an assignment.] It is somewhat analogous to a plea of foreign attachment, which, in Magrath v. Hardy, 6 Scott, 627, 4 N. C. 782 (E. C. L. R. vol. 33), was held to be no answer unless it showed that execution had been executed. [WILLES, J.-That turned upon the particular. terms of the custom. COCKBURN, C. J.-Is it competent to the French creditor to substitute himself for Simian, and compel the defendant to pay the debt to him?] No: it is a mere stop or distringas, which may be removed in many ways, and then the plaintiff's right would revive; and this shows that the plea cannot be good either as a legal or an equitable defence. It is not like the plea in Gould v. Webb, 24 Law Journ. Q. B. 205. There, the defendant pleaded, as to 50l., part of the plaintiff's demand, &c., that an action had been brought against the plaintiff in the Supreme Court of the state of New York, for a sum exceeding 50l.; that, by process duly issued out of the said court, and executed on the defendant, the said sum of 501. due and owing from the defendant to the plaintiff, was attached in the defendant's hands, according to the laws of the said state, to satisfy the demand in the action; that judgment was afterwards recovered in the said court, and execution was issued to the sheriff of New York, whereupon the defendant was obliged, by the laws of the state, to pay, and did pay, over to the sheriff the value of the said sum of 50l., deducting the necessary expenses of the *attachment. The plea [*693 further alleged that the plaintiff and the defendant were citizens of the said state, and the defendant was resident there, and subject to the jurisdiction and process of the said court; and that, by the laws of the state, the defendant was discharged and acquitted of the said sum of 501. Lord Campbell said: "I think the thirteenth is a good plea. It substantially avers that the law of foreign attachment prevails at New York, and that the defendant as garnishee had by process of law been compelled to pay over to the sheriff of New York a debt of 501. which he owed to the plaintiff. Pro tanto, I think that is a good answer to the present action."

(a) And see Gibbons v. Vouillon, 8 C. B. 483 (E. C. L. R. vol. 65).

Byles, Serjt., and R. Clarke, in support of the rule.—It is enough that the plea presents a fair question. It may be open to a demurrer, or it may be that the plaintiff might have applied under the 52d section of the Common Law Procedure Act, 1852, 15 & 16 Vict. c. 76, to strike it out as an embarrassing plea. This action is brought in respect of a contract made and to be performed in France, and the interpretation of which must consequently be according to the laws of that country and it appears that by the law of France the debt may be attached, and that such attachment has the effect of completely defeating (until removed) the remedy of the creditor. It is not like the case put, of a suspension of a cause of action by consent of the parties. An attachment under the Common Law Procedure Act, 1854, 17 & 18 Vict. c. 125, s. 61, may be pleaded. [CRESSWELL, J.-Have you any authority for that? COCKBURN, C. J.-Could the creditor in this case put himself in the place of the plaintiff, and sue the debtor? H. Lloyd. -He could not. By the law of France, a debt may be attached by what is called an arrêt. By another proceeding, called a saisie-arrêt, the creditor may entitle himself to judgment *and execution.] *694] At all events, the plaintiff, by applying for leave to reply and demur, admits that there is something to reply to: Trott v. Smith, 2 Dowl. N. S. 278. [CRESSWELL, J.-In Trott v. Smith, an application for time to reply was held to be a waiver of an objection to a plea on the ground that it was not issuable. But the question here is, whether the plaintiff precludes himself from objecting that the plea is not issuable, by merely asking leave to reply and demur. We must consider whether the plea is issuable or not.]

PER CURIAM. We think the rule may be made absolute, upon the defendant's bringing the money claimed into court to abide the order of the court on the result of a judgment on a demurrer to the plea. Lloyd.-The defendant should abandon the other pleas.

COCKBURN, C. J.-I see no reason why the defendant should be shut out from his set-off. The rule must be made absolute, the costs to abide the event. Rule absolute accordingly.

*In the Matter of the Arbitration between EDWARD BECK and FRANCIS JACKSON. Jan. 28.

[*695

Upon a reference to three arbitrators, or any two of them, an award made by two, in the absence of, and without finally consulting, the third, cannot be supported.

By articles of agreement made the 26th of August, 1856, between Edward Beck, of Newcastle-upon-Tyne, slater, of the one part, and Francis Jackson, of the same place, agent, of the other part, reciting that disputes and differences had arisen and were pending between the said parties thereto touching or concerning or arising out of certain goods alleged to have been sold and delivered by the said Edward Beck to the said Francis Jackson, and at his request, but which sale and delivery were disputed by the said Francis Jackson, and in order to put an end to the said differences and disputes, and to obtain an amicable adjustment thereof, the said parties thereto had respectively agreed to refer the same to the award, arbitrament, final end, and determination of John Edward Watson, of Newcastle-upon-Tyne, architect, a person chosen by or on behalf of the said Edward Beck, and John Wardle, of the same place, architect, a person chosen by or on behalf of the said Francis Jackson, and to such third person as should be chosen and agreed upon by the said John Wardle and John Edward Watson before proceeding on the said reference, to arbitrate, adjudge, and determine jointly with them of and concerning the said matters in difference, in manner thereinafter mentioned,—it was witnessed, that the said Beck and Jackson did for themselves severally and for their respective partners, heirs, &c., agree to stand to, obey, abide by, and perform the award, &c., of Wardle and Watson and of such third person as should be chosen by them to arbitrate, adjudge, and determine jointly with them *as afore[*696 said, or any two of them, of and concerning all the said matters in difference between the said parties thereto, so as the said award of the said arbitrators, or any two of them, were made in writing under their hands, ready to be delivered to the said parties in difference, &c., on or before the 14th of September next, or on or before such subsequent day or days as the said arbitrators, or any two of them, should at any time or from time to time, by writing under their hands, appoint for making and publishing their award in the premises, and which award of the said Wardle and Watson and such third person as aforesaid, or any two of them, so made as aforesaid, should be binding, final, and conclusive upon all the said parties thereto, and their respective executors, &c.: And it was thereby further agreed that the costs of the action brought by Beck against Jackson, and of preparing, engrossing, stamping, and executing that agreement, and of the said reference, and of the award to be made in pursuance thereof, including a reasonable compensation to the said arbitrators for their trouble, should be in the discretion of the N. S., VOL. I.-30