SUPREME COURT, Thursday, May 15, 1845. RAE V. BOWLER AND OTHERS, IN THE MATTER OF GEORGE SMITH.

New Zealand Spectator and Cook's Strait Guardian, Volume I, Issue 34, 31 May 1845, Page 3

SUPREME COURT, Thursday, May 15, 1845. RAE V. BOWLER AND OTHERS, IN THE MATTER OF GEORGE SMITH.

I Mr. Ross moved to have the writ of execution in this cause set aside, and the defendant George Smith discharged out' of custody on the following grounds : — A verdict had been taken subject to a reference ; the arbitrators had awarded a sum of £365 to be paid to the plaintiff, and that the plaintiff should give a release. This the agent of the plaintiff had not done, and, therefore, the execution was irregular. It was also bad in another respect,- as the costs had" been improperly taxed. Mr. Hanson showed cause. The plaintiff was clearly entitled to take out execution under the verdict ; and that was the Registrar's authority

to tax the costs. The tender was not sufficient, it was merely a tender of debt without costs, and the release was demanded. To entitle the defendants to release, they must first pay the money. Supposing the principal sum could only be en • forced by giving the release, the costs were clearly independent of" it, and the writ must be supported for so much. Mr. Ross contended that the execution must b6 set aside in loto, Tilby v. Best, 1 Chitty, 150. The defendants could not be called on to pay the sum awarded, unless the plaintiff or " his lawful attorney" executed a release. Upon the award, the Registrar had no authority to tax the costs. Judge Chapman — I can discover no ground whatever for saying that the taxation was irregular. When the arbitrators reduced the damages, the plaintiff Was entitled, as soon as the rule for setting aside the award was discharged, to get an appointment to tax costs. The order" of reference was in the usual terms, and the taxing officer derived his authority from the verdict. Mr. Ross — at all events the plaintiff could~ not take our money without giving us a release, and how, then, can he take the defendant's* person, restrained as the verdict is ? On Friday, Mr. Justice Chapman gave judgment as follows :—»: — » When, at the trial of this cause, I suggested a reference, it was with the hope that irregularities on either" side would be thereby cured, and litigation between the parties brought to an end ; and this, perhaps, would have been the case, had the power of the arbitrators been confined to the reduction of damages. But the rule was drawn by the parties in such a manner, as to embrace' not merely the subject matter of the action, but also "allmatters in difference between the parties;" and the award is that the damages shall be reduced to £i65:l6:10 which the defendants are directed to pay in a certain manner, prescribed by the award, and'th'at at the same time, and once for all, the plaintiff or his lawful attorney shall sign, seal, and deliver a valid release of the said debt, and also of all actions, and causes of action, claims, and demands whatsoever, &c. Now, it is at least doubtful, whether the agent of the plaintiff has sufficient authority to bind his principal by deed, but as " all matters in difference" were referred, the Court cannot treat the release as mere surplusage (if, indeed, it could under any circumstances), but must presume that it was intended to make the award final, by guarding the defendants against some claim or demand legal or equitable, not covered by the verdict. It has been settled, that before a party can take advantage of that portion of an award which is in his favour, he must shew that he has performed, or has offered to perform, all conditions precedent, or concurrent acts directed by the award to be done by him. In Standley v. Hemington (a), the award directed payment of a sum of money by one party, and the execution of a conveyance by the other;- and the Gourt of Common Pleas held, thaft ai the acts were concurrent, the plaintiff could not have an attachment, without an affidavit that he had tendered a conveyance, executed and made a demand of payment, and that the defendant had refused to accept the conveyance, and pay the money. I think it makes no difference in principle, that a verdict has been taken. In such a case, an award may certainly postpone and controul execution, especially where " all matters in difference" are referred. In Callard v. Patterson (b), it was h«ld, that where a verdict has been taken, subject to a reference, and the award names a distant day for payment, although judgment may perhaps be signed, yet execution cannot be sued out before the day named in the award. There the expiration of the time is the condition which controuls the execution ; here it is the release which has that operation. The true test, indeed, seems to be this : — Could the Court compel a release without being satisfied by affidavit of payment, or of an offer oT payment of debt and costs, Callard v. Patterson is an authority in the negative. The defendants' tender would have been insufficient for that purpose, and, therefore, c converso, the Court cannot compel payment without a release. By the very terms of the award (simul et semel being thewords used), the acts are clearly concurrent and mutual, and as the costs cannot be separated from the princii)al sum, the execution without the release is irregular, and must be set aside. Rule absolute, with costs. (a) 6 Taunt, 561. (b) 4 Taunt, 219: