ley (a) has been relied upon. That case, however, is very distinguishable from the present. There it appeared upon the face of the plaintiff's count, that the award was made after one of the parties to the submission had become a feme covert. Her marriage was in itself a revocation of the authority of the arbitrators, and therefore was a breach of the covenant to abide by the award. In this case, the breach of that covenant is disclosed only by the defendant's plea, and it never has been held, that a plaintiff who seeks to recover damages for one ground of action stated in his count, is entitled to recover in respect of another disclosed by the defendaut's plea. I am of opinion, that a plaintiff can recover only in respect of the ground of action stated in his declaration. As to the demurrer to the last count, I cannot distinguish this from Vynior's case. There the allegation was, that the party by his deed revoked the authority of the arbitrator, and the decision was, that that allegation imported notice to have been given to the arbitrator, and that being so, the case is expressly in point with the present. If the declaration in this case had alleged, that the party had sealed and delivered a certain deed, containing therein as follows, and setting out the deed, and thereby revoked the authority of the arbitrators, it would not have been sufficient, for that would only have been an allegation of the effect of the deed. Here the allegation is, that there was an express revocation by deed. BAYLEY J. It is laid down by Lord Coke in Vynior's case, that "there is a difference when two things 1822. MARSH against BULTEELS 1822. MARSH against BULTEEL. are requisite to the performance of an act, and both things are to be done by one and the same party, as in the case of feoffment, gift, demise, revocation, &c., and when two things are requisite to be performed by several persons, as in the case of a grant of a reversion; attornment is not implied in it; and yet without attornment the grant hath not perfection; but, forasmuch as the grant is made by one, and the attornment is to be made by another, it is not implied in the pleading of the grant of one; but, in the other case, both things are to be done by one and the same person, and that makes the difference.". Now, here the allegation is, that the defendant by deed revoked the authority, and that is a double allegation, importing, first, that the party executed a deed of revocation, and, secondly, that he gave notice to the arbitrators. The plaintiff, therefore, may put in issue, either the execution of the deed, or the fact of notice. I think, therefore, that Vynior's case is an express authority to shew that the last count of the declaration is properly framed, and for the reasons given by my Lord Chief Justice, I am also of opinion, that the defendant is entitled to judgment on the demurrer to the plea to the first count. HOLROYD J. I am of opinion that the defendant is entitled to judgment upon the demurrer to the first plea. This case is very distinguishable from Charnley v. Winstanley for the reasons already given by my Lord Chief Justice; and I think that the plaintiff, who, by his declaration, seeks to recover damages for the causes of action therein stated, ought not to be allowed to recover in respect of another cause of action, disclosed by the defendant's plea. As to the demurrer to the last count, Vynior's Vynior's case is an authority to shew that it is sufficient Judgment for the defendant upon the demurrer to (a) Best J. was absent at Chambers. 1822. MARSH against BULTEEL. DRONEFIELD against ARCHER. TINDAL, in Michaelmas term last, obtained a rule nisi for taxing the defendant's costs under 43 G. 3. c. 46. s. 3. the plaintiff having held the defendant to bail without any reasonable or probable cause. It appeared upon the affidavits, that the plaintiff, in September, 1817, entered into the defendant's service under a verbal contract, under which he claimed, as due from the defendant, a sum of 231. and upwards. Against this demand, however, the defendant had a set off, which was proved. And it further appeared, that on the 8th July, 1820, when a tender of 21. 19s. 84d., as the balance due, was made, the plaintiff refused to receive it, claiming as the balance then due to him, the sum of 67. 19s. 8 d. only. The jury were of opinion at the trial, that this was the true balance, and thereupon found a verdict for the plaintiff, damages 4l., in addition to the sum tendered. On the 10th July, the defendant was held to bail in the sum of 15%. and upwards. 1822. DRONEFIELD against ARCHER. D. F. Jones shewed cause, and contended that here there was a reasonable and probable cause for the arrest, the amount due from the defendant being upwards of 15. As to the set off, it was not material, because the statutes of set off are not compulsory, and the plaintiff could not be certain whether the defendant would set off the debt due to him. In Brown v. Pigeon (a), it was held, that where a party who owed another 237, and had a debt of 101. due to him, arrested the other party for 10., although upon the balance no debt whatever was due to him, no action could be maintained for a malicious arrest. Tindal contrà was stopped by the Court. Per Curiam. It is an arrest without reasonable or probable cause, if, where the plaintiff knows that the defendant has a set-off reducing the balance below 157., he holds the defendant, nevertheless, to bail for the whole amount. The effect of the statute of set-off is to make the balance really due the debt for which the arrest ought to be made. The stat. 43 G. 3. c. 46. s. 3. directs, that if a plaintiff holds the defendant to bail in any amount without reasonable or probable cause for so holding him to bail, he shall pay costs. Now, what is a reasonable and probable cause for arrest? Is it not the obtaining security for that which is fairly due? Now that must be the balance. It is said, that a defendant is not bound to set-off the debt due to him. That is a very good reason why the plaintiff should be allowed to include in his declaration the whole sum due to him, (a) 2 Campb. 594. but but it is no ground for contending that a party should thus be deprived of his liberty. Suppose a plaintiff has made advances to a merchant to the amount of 100,000l., the true balance being, after allowing the defendant's set-off, only a small sum, can it be contended that he may be held to bail to the full amount of the advances made? If so, it might be impossible for him to obtain bail; and he might, by lying in prison, commit an act of bankruptcy. In this case the plaintiff, when the tender was made to him, admitted the balance to be under 7., and yet, notwithstanding, two days after that, he caused the defendant to be held to bail for 157. and upwards. He had therefore no reasonable or probable cause for holding him to bail in that amount. The rule must be made absolute. Rule absolute. (a) 1922. DRONEFIELD against ARCHER. (a) In Feely v. Reed, on a later day in the term, a question arose, whether executors, having held a party to bail without reasonable or probable cause for a debt due to their testator, were within the act. And the Court held that they were, because an action for a malicious arrest would lie against them, and this was an analogous remedy. |