1850.

FREEMAN

บ.

WHITAKER.

by the Lord Chancellor; but the fiat did not become an operative instrument, until delivered as such by the Lord Chancellor to the petitioning creditor, or to some person on his behalf; and accordingly, in the case of Pewtress v. Annan (a), it was held, that the time of delivery out of a fiat in bankruptcy, as an operative instrument, is the "date and issuing" within the 2 & 3 Vict. c. 29, and primâ facie the time of delivering it out of the bankrupt office is that time. The present case turns upon the 5 & 6 Vict. c. 122, which altered the practice as to the issuing of fiats. The 59th section provides for the appointment of additional commissioners of bankruptcy in the country. The 4th section enacts, that every fiat shall, after it be granted, be forthwith issued and transmitted by the Lord Chancellor's secretary of bankrupts, in such manner as the Lord Chancellor by any general or other order shall direct, to the Court to which such fiat shall be directed, &c. By an order made in pursuance of that Act (b), it was ordered, "That every fiat in bankruptcy hereafter granted, shall be forthwith issued and transmitted by the Lord Chancellor's secretary of bankrupts, to the Court to which such fiat shall be directed, in manner hereinafter in that behalf mentioned; that is to say, every such fiat directed to the Court of Bankruptcy shall forthwith be sent, by a messenger to be appointed by the said secretary for that purpose, to the office of the chief registrar of such Court, at the said Court in Basinghall-street, and there delivered by such messenger; and every such fiat directed to any District Court of bankruptcy shall forthwith be sent (except where the Lord Chancellor shall by any special order hereafter otherwise direct) through the General Post Office, to the deputy registrar, or the deputy registrars of such District Court." The fiat, therefore, issued immediately on its leaving the hands of the Lord Chancellor, which in this case was upon the de

(a) 9 Dowl. & L. 828.

(6) 2 Mont. & Ayr, App. 357.

livery of it to the secretary. [Alderson, B.-The word "forthwith" may mean within a reasonable time, so as to enable the fiat to be in time for the next post.] Many serious inconveniences might arise if the issuing of the fiat were to depend upon its being put into the post. In Watkins v. Maund (a), Lord Ellenborough held, that a commission of bankrupt which had passed the Great Seal, although it had never been opened or acted upon, had issued within the true meaning of the 49 Geo. 3, c. 121, s. 2. [Parke, B.-The Lord Chancellor might have countermanded the issuing of the fiat whilst it remained in the hands of his secretary, by simply giving such a direction to him; but if the fiat had reached the hands of the commissioners in the country, it is extremely doubtful whether he would have the power to do so without a regular supersedeas. Alderson, B.--I do not see how the fiat can be said to be issued, until the secretary has either put it into the post, or disposed of it in some way in accordance with the directions of the Lord Chancellor. In Ex parte Freeman (b), it was held that, although the seal had been affixed, the commission was in fieri as long as it remained in the hands of the Chancellor.] Three periods may be suggested at which it may be contended that the fiat issued: first, when it leaves the hands of the Chancellor; secondly, when the secretary disposes of it; and thirdly, when it arrives at the Court in the country: and it is submitted that the first of these periods is the correct one.

Martin, contrà.-The true meaning of the Act is, that the fiat is to be granted by the Lord Chancellor, and issued by the secretary. Here the fiat was not issued until after the execution. [He was then stopped by the Court.]

POLLOCK, C. B.-We do not think it necessary to hear

1850.

FREEMAN

v.

WHITAKER.

1850.

FEEEMAN

ข.

WHITAKER.

the learned counsel for the defendant, as we are all clearly of opinion that the fiat had not issued within the true construction of the Act of Parliament in question, as long as it remained in the hands of the Lord Chancellor's secretary, for the purpose of being transmitted to the commissioners of the country Court of Bankruptcy. At all events, it was not issued until it was put into the post. Our judgment, therefore, must be for the defendant.

PARKE, B.-In the case of Pewtress v. Annan, which no doubt was rightly decided, the fiat was delivered to the petitioning creditor; but nothing is said in the 5 & 6 Vict. as to the delivery of the fiat to the petitioning creditor, or to any one on his behalf. Whilst the fiat remains in the hands of the secretary, in point of law it continues in the custody of the Lord Chancellor, who may counter-order its transmission, without the adoption of any formal process for that purpose; after the fiat is put into the post-office he may have lost that power. But it is not necessary to decide that point in the present case, for I entirely agree that the fiat at all events was not issued until it was put into the post-office.

ALDERSON, B.-I am of the same opinion. There was no issuing within the meaning of the Act in the present case, until it was put into the post-office. It may be, that, by putting it into the post, it may be said to have been issued; or the commencement of the issuing may take place when it is put into the post-office, and is finally complete upon its arrival in the hands of the commissioners of bankruptcy in the country.

PLATT, B.-I am of the same opinion. The execution preceded the issuing of the fiat.

Judgment for the defendant.

1850.

Jan. 11.

In the Matter of an Arbitration between J. M. COOMBS and J. W. FRESHFIELD, two of the Directors of the Globe Insurance Company, and J. FERNLEY.

In this case Martin, on the part of the directors, had ob- An arbitrator or

tained a rule calling on the said J. Fernley to shew cause why the award of W. Tate (the umpire), made between the said parties, or so much thereof as related to the sum of 5271. 7s. 9d. therein mentioned as alleged costs and expenses, should not be set aside, unless the said J. Fernley and the said umpire and arbitrators should consent that the amount of their costs and expenses be referred to one of the Masters of this Court, to be taxed and settled.

power to fix his umpire has no own fee in the

award, and to

make the taking up of the award conditional upon the payment of the

tion

fee, unless the cifically give

submission spe

him that power. Certain matters in differ

ence between

A. B. and C.D. having been referred to two arbitrators, with power to ap

It appeared by the affidavits, that Fernley had a claim against the Company, and that the subject-matter of it (no action having been brought by him for the recovery of it) was referred to two arbitrators, who were empowered, point an umpire, in case of disagreement, to appoint an umpire.

where, by the terms of the submission, the

mission and award were to

be in the discre

tion of the arbi

trators or umpire, who, by

their award, might direct by

and to whom

By the terms of the submission, it was agreed that the costs of the subcosts and expenses of the submission and reference, and award to be made in pursuance thereof, should be in the discretion of the arbitrators or umpire, who might award and direct by and to whom the same should be paid, &c. Power was also given to make the submission a rule of Court; which was done. Tate having been appointed as umpire, made his award, and found thereby a sum to be due to Fernley by Messrs. Coombs and Freshfield, as directors of the said Company; and did also thereby direct and award, that all the costs and expenses of the said submission and reference, and of the award, should be borne

the same should be paid, with

power also to

make the sub

mission a rule of Court, (which

was done). An umpire was appointed who made an award,

and thereby found a certain

sum to be due from A. B. to C. D.; and he awarded and directed all the costs (specifying the sum) of the submission and award, including therein the costs of taking up the award, to be paid by the party taking up the award, to be paid on a specified day by A. B. The fees of the arbitrators and umpire were included in the costs:-Semble, that the award was bad; and, C. D. having paid the amount to take up the award, that he might recover back the amount beyond what was reasonably due, in an action for money had and received.

1850.

In re COOMBS.

by the said T. M. Coombs and J. W. Freshfield, directors &c.; and he also found and adjudged the amount of the said costs and expenses, other than and besides costs and expenses incurred by and for the said T. M. Coombs and J. W. Freshfield, directors &c. but including the costs and expenses to be paid on taking up the award by the party or parties taking up the same, to be 5271. 7s. 9d., which he ordered and directed to be paid by the said T. M. Coombs and J. W. Freshfield, directors &c., to the said J. Fernley, on &c., unless they should be paid before that day. Fernley received notice that the award had been made, and was ready for delivery, and that the sum of 3791. 10s. 9d. was to be paid on taking up the award. He accordingly, supposing the award would be in his favour, paid that sum, and took up the award, when it appeared by a memorandum attached thereto, that the sum of 1477. 178. was allowed to him for his costs, making together 5271. 78. 9d. It also appeared by the affidavits, that the fees of the arbitrators amounted to 1091. 6s., and 1071. 6s. respectively, and those of the umpire to 1087. 9s. 3d.

The above rule was obtained upon the ground (inter alia), that the award of 5271. 7s. 9d. as a gross sum, including the costs of the said J. Fernley, and of the award and reference was owing; and that the arbitrators and umpire had no power to fix the amount of their fees, and those of others to whom the costs were awarded, &c.

Watson now shewed cause on the part of Fernley.-The first objection intended to be raised to the award is, that the umpire had no power to assess the amount of his own fee by the award. But there are two answers to that objection: First, the submission gave the umpire the power to do so; and secondly, if that assumption be wrong, the Court has no power to refer the umpire's fee to be taxed. It may also be added, that, inasmuch as Mr. Fernley paid the money upon taking up the award, he would have