1833. Νου. 19. By order of a cause was referred to arbitration, with liberty THIS SMITH V. FIElder. HIS cause was referred to arbitration by an order of nisi prius, under which the arbitrator was to be at liberty to examine the parties; the death of either of them was not to operate as a revocation of his authority; for the arbitra- nor the reference to be any impediment to protor to examine ceedings in equity. After the arbitration had been the parties, but entered on, the Plaintiff died; the Defendant, by deed, the death of either was not revoked his submission before the arbitrator had made to operate as a his award; and the cause went down to trial again: revocation of the reference. whereupon, a verdict having been obtained for the The Plaintiff Plaintiff, died before he was examined, Wilde Serjt. obtained a rule nisi for the Defendant to and before the defray the costs of bringing the cause to trial, the arbitrator had arbitration having been rendered fruitless by his reaward; where- voking the arbitrator's authority, contrary to the terms upon the De- of the order of nisi prius. fendant having made his revoked his he alleged, of In answer to this rule the Defendant made affidavit submission, on that his chief object in submitting to a reference was, the ground, as that the arbitrator might have the faculty of examining his having lost the Plaintiff, such examination being material with a view to ulterior proceedings in equity, and that he had revoked his submission because the Plaintiff's death had rendered the examination impossible. the opportunity of examining the Plaintiff, the Court ordered him to pay the costs of a trial occasioned by the termination of It appeared, however, from several circumstances disclosed in the affidavits, that the faculty of examining the Plaintiff could not have been the Defendant's chief motive for submitting to arbitration, and it might even be the reference. doubted whether it weighed with him at all. However, Taddy Serjt., who shewed cause against the rule, endeavoured to shew that it was the Defendant's chief motive; and assuming that to be so, argued that the the Court would not look at the bare fact of the revocation, although the order of Nisi Prius had stipulated that the death of either party should not be a ground of revocation, but would see whether under all the circumstances the revocation was bona fide or not. In Aston v. George (a), where an authority to refer was revoked because the party could not procure the attendance of material witnesses before the arbitrator, the Court refused to allow any costs. Wilde, in support of his rule, disputed the good faith of the Defendant's proceeding. TINDAL C. J. The question is, whether under the circumstances the Defendant has wrongfully revoked his submission. By the order of Nisi Prius, it is expressly provided that the death of either party is not to operate as a revocation; and therefore if the Defendant proposed that the examination of the Plaintiff should be a condition of his consenting to a reference, he ought to have stipulated for the insertion of such a condition. Instead of that, the rule is drawn in the ordinary way, providing merely that the arbitrator shall be at liberty to examine the parties, and there are many circumstances which shew that such could not have been the sole ground of the Defendant's entering into the rule. It seems, therefore, that there was no reasonable cause for the revocation, and the Defendant should pay the costs of the trial. GASELEE J. concurred. BOSANQUET J. I was in doubt at first whether this revocation did not fall within the principle laid down in Aston v. George, and thought that the Defendant had revoked the submission because he was deprived of the 1833. SMITH v. FIELDER. 1833. SMITH V. FIELDER. advantage of examining the Plaintiff. It appears, however, from the affidavits, that such was not the true ground, and therefore this rule ought to be made absolute. ALDERSON J. I entirely concur. The arbitration was entered into under special circumstances, for the parties were not to be bound except at law, and there was an express stipulation with respect to further proceedings. If the Defendant meant that the death of the Plaintiff before examination should be a ground of revocation, he ought to have expressly stipulated for it, and also for the examination of the Plaintiff, if he meant it to be a condition of the reference. Rule absolute. Nov. 20. By a deed of lease it was stipulated that the lessees should be at liberty to retain a rent of 1100l. a year, or any part thereof, upon giving the lessor a bond to pay whatever they so retained, at the end of seventeen years, with interest. BY JONES v. WINKFIELD and Another. a deed of July 1832, the Defendants covenanted to pay the Plaintiff, for certain machinery, a rent of 1200l. a year by twelve monthly instalments, and 1100%. a year by four quarterly payments. The machinery was demised for seventeen years, and the Defendants were to be at liberty to retain the rent of 11007., or any part thereof, upon giving the Plaintiff a bond to pay whatever they so retained, at the end of the seventeen years, with interest. The Defendants having omitted to pay the 11007. rent, or to give a bond in lieu, the Plaintiff brought this action for five quarters thereof, or 1375l. Upon an affidavit by the Defendants, that it had been The lessees having omitted to pay the rent or give a bond, and the lessor having sued for the rent, the Court refused to stay proceedings on affidavit that since the commencement of the suit the lessees had executed and tendered to the lessor, a bond for the amount retained and to be retained. under 1833. JONES understood they were to retain the 1100l. rent; that up to the time of this suit they had omitted to execute a bond through inadvertence, but that since the suit had commenced, they had executed and tendered to the WINKFIELD. Plaintiff a bond for the amount retained and to be retained in future, Wilde Serjt. obtained a rule nisi to stay proceedings on payment of costs. Stephen Serjt. shewed cause on an affidavit from the Plaintiff, which denied the existence of any such understanding as that which had been deposed to by the Defendants. He contended, that if this application could prevail, the statute of Anne for staying proceedings on bonds on payment of principal and interest would be useless, and referred to Bac. Abr. Condition, and Vin. Abr. Condition. Wilde relied on the Defendants' affidavit. TINDAL C. J. I think the Court has no jurisdiction to interfere under the circumstances of this case. The language of the proviso is, that the Defendants shall be at liberty to retain the rent of 1100l. a year, or any part of it, upon executing to the Plaintiff a bond to pay at the end of seventeen years, with interest, whatever they so retain. If the bond had been executed, that might have been an answer to the action; but we cannot furnish the Defendants with an answer which is wanting from their own negligence. No bad faith is imputed to the Plaintiff; the rule, therefore, must be discharged. The rest of the Court concurred. Rule discharged. V. 1833. Nov. 22. January 1832 Defendants, bankers, received from B. C. a bill BELCHER and Others, Assignees of MABERLY, a Bankrupt, v. LLOYD and Others. On the 2d of THE Plaintiffs, as assignees of Maberly, having sued the Defendants as acceptors of a bill of exchange. for 1000l., drawn at Edinburgh on the 30th of December 1831 by the Commercial Banking Company of Scotland, payable ten days after date to the order of John Stephens, and by Stephens indorsed to Maberly, of exchange for 7601., drawn by M., on his partners, indorsed by him to B. C., and by B.C. to Defendants. On the 6th the bill be came due, and M. having failed the same day, the bill was dishonoured. On the 7th the Defendants, who then had in their hands sufficient assets The Defendants paid 2577. into court, and sought to set off against the Plaintiffs' demand the sum of 760%., in respect of a bill of exchange for that amount, drawn at Aberdeen, December the 24th 1831, by Maberly's Aberdeen bank on Maberly's London bank; payable ten days after date to Alexander Blackie or order; by Blackie indorsed to the Commercial Banking Company; and by the Commercial Banking Company indorsed to the Defendants. The Defendants, bankers in London, were engaged in very extensive banking transactions with the Commercial Banking Company, when, on the 2d of January 1832, they received from that company the two bills above set out. of B. C. to cover the bill, returned it to B. C. with a receipt for the amount indorsed on it, and having on the 2d entered the bill to the credit of B. C. now entered it as a debit. The Defendants were also the acceptors of a bill for 1000l., drawn by B. C., indorsed to M., and due on the 12th of January. On the 9th B. C. sent back the 760l. bill to the Defendants, with instructions to carry into effect views expressed by B. C. in a letter addressed to Defendants on the 6th in anticipation of M.'s failure. That letter was as follows: "We think that you would be entitled to retain the 1000l. as a set-off for the 760l.: at all events we will trust to your doing the best for us in this matter." In an action brought against the Defendants by the assignees of M. on the 1oool. bill, the jury having found that the transaction between the Defendants and B. C. on the 760%. bill was closed on the 7th, Held, that they could not set off that bill against the 1000l. bill. The |