1849. HOWE V. РІКЕ. The venue had been brought back from Dorset to Middlesex, on the usual undertaking to give material evidence in the latter county. During the progress of the work, some springs became necessary for the repair of the engine, which were bought in the county of Middlesex by the plaintiff's order, and were sent down into the country. These springs were charged at the price of 88. in the particulars of demand. This being the evidence offered in support of the plaintiff's undertaking, it was thereupon objected, on the part of the defendant, that the plaintiff had failed in giving any material evidence in the county of Middlesex, and of that opinion was the learned Judge; but, under his Lordship's direction, the plaintiff obtained a verdict for the amount claimed, leave being reserved to the defendant to move for a rule nisi to enter a nonsuit. Wilkins, Serjt., having obtained a rule accordingly, T. Atkinson now shewed cause.- -The evidence was sufficient. Crozier v. Hutchinson (a) was an action by shipbrokers for commission for procuring charters for the defendant's ships, including the amount of the stamp, and the plaintiffs were under an undertaking to give material evidence in the county of Middlesex; and this Court held, that the undertaking was satisfied by proof that the plaintiffs, within twenty-one days from the time of the execution of the charter party, caused it to be stamped at Somerset House. The venue would become important upon the question as to the value of these articles. [Pollock, C. B.-There is this difference between the case cited and the present: the plaintiffs there had a right to make a charge of that specific sum for the stamp. Alderson, B.— There the broker was engaged to effect a charter party and to get it properly stamped, and the money so paid was (a) 18 L. J., Exch. 316. paid at that particular place to the defendant's use. Parke, B.-It was quite an immaterial fact, as between the plaintiff and the defendant, where the springs were obtained. If this evidence were held to be sufficient, a plaintiff might, as I suggested at the trial, bring his action in almost any county he pleased. If the plaintiff could have established it as a fact, that he was entitled to be paid for these springs as for so much money paid out of pocket, the case would be similar to that cited; but here the plaintiff could not make any demand for them until they had been affixed to the engine which he was engaged to repair.] Wilkins, Serjt., and Hoggins, in support of the rule, were not heard. PER CURIAM (a).—The rule must be absolute to enter a nonsuit. Rule absolute. (a) Pollock, C. B., Parke, B., Alderson, B., and Rolfe, B. 1849. HOWE v. РІКЕ. HORTON V. THe Earl of DEVON and Others. MILWARD had, on the part of the defendants, ob- Nov. 24. The defendants, ingers, had cer tain goods de who were wharf posited at their wharf by A. & Co., who transferred them to B. B. by order transferred them to the plaintiff, at the same time acquaint ants with that fact. The de ing the defend fendants there upon placed the goods to the plaintiff's account in their books, and informed him of their having done so. A. & Co. and other parties subsequently laid claim to the goods, on the ground that the transfer to the plaintiff was fraudulent:Held, that the defendants were not entitled to the benefit of the Interpleader Act. 1849. HORTON V. EARL OF transferred it to one Poolley. By two written orders of Poolley, the iron was to be transferred to the plaintiff, in consideration of certain advances made by him to Poolley. The defendants, upon the instructions received from Poolley, placed the iron to the plaintiff's account in their books, and at the same time informed him by letter that they had done so. A claim having been subsequently made to the iron in question, by certain persons who were the assignees of one Fitzgerald, as well as by the Coalbrook Dale Company, on the ground that the property had been fraudulently transferred to the plaintiff, and the defendants, by reason of such claims, having refused to give up the iron to the plaintiff, he thereupon brought the present action against them. An application was made for an interpleader order to a Judge at Chambers, who refused to make the order, and referred the parties to the Court. Martin and Hugh Hill now shewed cause. The defendants are not entitled to an interpleader order, for there exists a contract between the plaintiff and the defendants that the latter are to hold the iron for the plaintiff. The defendants, therefore, have given the plaintiff a personal right against them. It will no doubt be contended, that the plaintiff is not entitled to the goods, as the transfer was fraudulent; but that fact does not affect the present question. The right of the plaintiff as against the defendants is altogether independent of the question to whom the iron in truth belongs. The case of Crawshay v. Thornton (a) is precisely in point. There A. deposited certain iron with B. & Co., who were wharfingers, and afterwards directed them to deliver it to C. C. applied to B. & Co. to know the particulars of the iron held by them on his account, and B. & Co. then wrote a letter to C., stating that in (a) 2 Myl. & Cr. 1. compliance with his instructions, they annexed a note of the landing weights of the iron transferred into his name by A., and now held by them, B. & Co., at the disposal of C. B. & Co. subsequently received notice from D. that the iron belonged to him, and that it had been deposited with A. as an agent for sale, and that he had, without authority, pledged it to C.; and under this state of facts it was held, that after B. & Co.'s letter to C. they could not maintain a bill of interpleader against him. In Patorni v. Campbell (a), which is a similar decision, it is stated that the Courts of law follow the rule of equity. [They also referred to Hawes v. Watson (b), and Hardman v. Willcock (c).] The Court then called upon Milward to support the rule.-The ground upon which the defendants now seek to found this application is, that they were induced by fraud to enter into the alleged contract with the plaintiff. In point of fact there was no contract between the plaintiff and the defendants. [Alderson, B.—That is the difficulty which the defendants have to surmount; the plaintiff says, the defendants have put themselves under an obligation to him; the defendants deny that, by saying that they were induced to make it by fraud. How can we try that question upon affidavits?] The letter of the defendants was a mere notification that they held the goods-that they were in their hands. [Pollock, C. B.-That would be evidence to go to a jury that the defendants had contracted to hold the goods for the plaintiff. The question whether there was or was not a contract is a fitting one for a jury; and if there was a contract there ought to be no interpleader order. Parke, B.-The case of Crawshayv.Thornton, when considered, is precisely in point. Alderson, B.-The defendants must try the question by an action, to which they say they have a good defence.] (a) 12 M. & W. 277. (b) 2 B. & C. 540. (c) 9 Bing. 382, n. 1849. HORTON v. EARL OF DEVON. 1849. HORTON V. EARL OF PER CURIAM (a).-The rule must be discharged with costs. Rule discharged. Ball, who appeared for the Coalbrook Dale Company, and Lush, for the assignees of Fitzgerald, applied for costs occasioned by their appearance, which were granted. (a) Pollock, C. B., Parke, B., Alderson, B., and Rolfe, B. Nov 6. In an action of trover, to which the defendant pleaded, except as to a certain sum, not guilty, and not possessed, and as to WILCOX v. WILCOX. THIS was an action of trover for the conversion of certain goods. The defendant pleaded, first, except as to the sum of 41. 16s. &c., not guilty; secondly, except as aforesaid, not possessed; and lastly, as to that sum, payment of so much into court. At the trial, a verdict was by consent taken for the amount of damages claimed, subject to be reduced by arbitration. The cause having been referred, the arbitrator made his award on the 28th of April last, and directed that the verdict found for the plaintiff claimed, subject should stand, but that the damages were to be reduced to Judgment having been signed thereon, that sum, payment thereof into court, a ver dict was taken for the plaintiff for the amount of damages to an arbitra tion, and the arbitrator found generally that the verdict for the plaintiff was to stand, mages were to be reduced to a certain sum:Held, that the award was good, as the 917. Alexander now moved for a rule, calling on the plaintiff and that the da- to shew cause why the award, or the judgment signed thereon, should not be set aside.-The arbitrator has not disposed of the issues, and therefore the award is bad on the face of it. [Parke, B.-Is not the application too late to set the award aside?] It would seem, from the cases of Brooks v. sufficiently dis- Parsons (a), and Manser v. Heaver (b), that the defendant is entitled to have the judgment set aside, where the award is bad. [Parke, B.-Then the only question will be, whether the finding by the arbitrator, of a verdict generally arbitrator had posed of all the issues. (a) 1 D. & L., P. C., 691. (b) 3 B. & Ad. 295. |