detention, and long before his discharge thereinafter mentioned, was able and willing and offered to pay, and always afterwards during the said detention was able and willing to pay, and afterwards was discharged from imprisonment under the said writ on, and satisfied the said judgment by, payment of the said sum of 2447. 158. 7d. and no more: and the plaintiff, by reason of the premises, was necessarily put to and incurred divers costs and expenses in and about his maintenance during the said detention, and in and about obtaining his discharge as aforesaid: and the plaintiff claimed 5001.

The defendant demurred, on the ground that the declaration did not show that the plaintiff sustained any damage in consequence of the arrest. Joinder.

Manisty, in support of the demurrer. (a)-The *declaration is [*469 bad in substance. It states the recovery of the judgment by the defendant against the now plaintiff, and avers that the defendant afterwards wrongfully and maliciously (not saying without reasonable or probable cause) sued out a ca. sa. thereon. It then goes on to aver that the defendant wrongfully and maliciously, and without reasonable or probable cause, endorsed the writ with directions to levy the whole of the debt for which the judgment was signed. But there is no allegation showing that any special damage resulted to the plaintiff from that act. If there were, then, possibly, according to the authority of Churchill v. Siggers, 3 Ellis & B. 929 (E. C. L. R. vol. 77), the plaintiff might have had a good cause of action. The plaintiff, however, does not allege that he was at the time able to pay the smaller sum, but merely that, after the taking, and during his detention, he was able and offered to pay the sum actually due upon the judgment. [COCKBUrn, C. J. Surely, from the moment he was in a position to pay the amount which would entitle him to be discharged, he was damaged by the detention.] It is not suggested that the proper sum was not accepted as soon as tendered. If it had been so alleged, the fact might have been traversed.

Cur. adv. vult.

D. D. Keane, contrà, was not called upon. COCKBURN, C. J., now delivered the judgment of the court:*This was an action for maliciously and without reasonable or probable cause causing the plaintiff to be arrested under a writ of execution issued upon a judgment obtained by the defendant against

(a) The points marked for argument on the part of the defendant, were,—

[*470

"1. That the act complained of, viz., causing the plaintiff to be arrested on a writ of ca. sa. endorsed for too much, was not necessarily and per se injurious to the plaintiff, and no ground of action, without special damage.

"2. That the declaration states no special damage: it appears thereby that the plaintiff paid no more than the amount really due; and it does not appear that his imprisonment was prolonged or expenses incurred by him increased by the excessive claim.

"3. That it is not alleged that the writ was issued without probable cause; and it is to be inferred that the defendant had probable cause for issuing it for the full amount of the judg

ment."

N. S., VOL. II.—21

the plaintiff, and upon which the defendant, as the declaration alleges, maliciously and without reasonable or probable cause endorsed a direction to levy the whole amount recovered by the judgment, whereas, a portion of that amount had been previously satisfied: and the declaration proceeds to allege, as damage caused by the arrest for the greater amount, that the plaintiff was, after he was taken, during his detention, and before his discharge, able and willing and offered to pay, and always afterwards during his detention was willing to pay, and was finally discharged from imprisonment upon paying, and discharged the judgment by paying, the smaller sum; and that the plaintiff, by reason of the premises, was necessarily put to and incurred divers costs and expenses in and about his maintenance during the said detention, and in and about obtaining his discharge as aforesaid. To this declaration the defendant demurred; and the case was argued on his behalf by Mr. Manisty, who admitted the authority of the case of Churchill v. Siggers, 3 Ellis & B. 929, where the Court of Queen's Bench, in an elaborate judgment, held an action to be maintainable for a malicious arrest without reasonable or probable cause for more than remained due upon the judgment, as in the present case, special damage being shown to have been sustained by the plaintiff in consequence of such arrest. He, however, insisted that such damage was not sufficiently shown by the declaration in the present case.

We are, however, of opinion that special damage is sufficiently alleged. It would not be competent for the plaintiff at the trial to obtain a verdict by proving merely that he was arrested and kept in custody for a greater amount than was due, however improperly *endorsed; *471] but he must also prove, that, by reason of the arrest and detention for the larger sum, his imprisonment was prolonged, or the expense of obtaining his discharge increased.

Judgment must, therefore, be for the plaintiff.

Judgment for the plaintiff.

TALBOT v. FISHER. June 1.

Quare, whether an award made upon a reference under the 3d section of the Common Law Procedure Act, 1854, is enforceable by attachment or order under the 1 & 2 Vict. c. 110, s. 18?

THE matters in dispute between the parties in this cause were by a judge's order, under the 3d section of the Common Law Procedure Act, 1854, referred to the arbitration of a county court judge, who made an award in favour of the plaintiff.

Streeten moved to make the order a rule of court.-The 3d section of the 17 & 18 Vict. c. 125, enacts, that, "if it be made to appear, at any time after the issuing of the writ, to the satisfaction of the court

or a judge, upon the application of either party, that the matter in dispute consists wholly or in part of matters of mere account, which cannot conveniently be tried in the ordinary way, it shall be lawful for such court or judge, upon such application, if they or he think fit, to decide such matter in a summary way, or to order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties, or to an officer of the court, or, in country causes, to the judge of any county court, upon such terms as to costs and otherwise as such court or judge shall think reasonable; and the decision or order of such court or judge, or the award or certificate of such referee, shall be [*472 enforceable by the same process as the finding of a jury upon the matter referred.' [CRESSWELL, J.-A verdict cannot be enforced by attachment. COCKBURN, C. J.-The language of the section is very precise.] No doubt the plaintiff may sign judgment: but the question is whether he may not also take the course pointed out by the 1 & 2 Vict. c. 110, s. 18.

Cresswell, J.—There can be no objection to your taking the first step, by making the order a rule of court. But you must not assume that you receive any encouragement from the court as to the second. WILLES, J. Before you draw up your rule, you had better look at the case of Kendil v. Merrett, 18 C. B. 173 (E. C. L. R. vol. 86). Rule absolute.(a)

(a) The 7th section enacts that "the proceedings upon any such arbitration as aforesaid shall, except otherwise directed thereby or by the submission or document authorizing the reference, be conducted in like manner, and subject to the same rules and enactments, as to the power of the arbitrator and of the court, the attendance of witnesses, the production of documents, enforcing or setting aside the award, and otherwise, as upon a reference made by consent under a rule of court or judge's order."

*The Vestry of the Parish of ST. PANCRAS v. BATTER

BURY. June 2.

[*477

Where a pecuniary obligation is created by a statute, and a remedy expressly given for enforcing it, that remedy must be adopted.

An action in a superior court will not lie against the owner or occupier of a house, for the recovery of his proportion of the expenses of paving a street, under the Metropolis Local Management Act, 18 & 19 Vict. c. 120; but recourse must be had to the remedy pointed out by the 225th section of the act, viz. by a proceeding before two justices.

THE declaration stated, that the first election of vestrymen and auditors of accounts of the parish of St. Pancras, in the county of Middlesex, under the act of the session of parliament holden in the 18th and 19th years of the reign of Queen Victoria, intituled, “An act for the better local management of the metropolis," took place, to wit, on the 15th of November, 1855, according to the provisions of the said act, and the full number of elective vestrymen to be elected at such election according to the provisions of the said act were then

elected, and all things necessary to be done and performed for the due election of such full number according to the provisions of the said act then took place and were performed; and that afterwards, after the commencing and coming into operation of the said act, a certain street in the said parish, called The Prince of Wales's Road, Haverstock Hill, one part of which is called or known as Prince's Terrace, Prince of Wales's Road, and another part of which is called Roxburgh Terrace, Prince of Wales's Road, was a new street laid out or made, not paved to the satisfaction of the plaintiffs, and the owners of the houses forming the greater part of the said street were then desirous of having the same paved either throughout the whole breadth of the carriageway and footpaths thereof, or some part of such breadth, and the plaintiffs deemed it necessary or expedient that the same should be paved in manner following, that is to say, that the road should be made of twelve inches of hard core or burnt ballast, four inches of pit ballast, and four inches of flints; that the channels should be paved with *478] granite not less than *eighteen inches wide and seven inches deep; that the footways should be paved with 2 inch York stone, and be kerbed with granite kerb twelve inches by eight inches, upon hard foundation; and that the amount of the estimated expenses of providing and laying such pavement was determined by the surveyor for the time being of the plaintiffs; and that the defendant then was and is the owner of some of the houses forming the said street, that is to say, of the houses known as and numbered Nos. 1, 2, 3, 4, 7, and 11, Prince's Terrace, Prince of Wales's Road, and the house known as and numbered 3 in Roxburgh Terrace aforesaid; and that other persons were and are owners respectively of the other houses forming the said street; and that, by virtue of the said act, the defendant and the said other owners were or might be directed by the plaintiffs to join in paying the sum of money determined by the said surveyor to be the amount of the estimated expenses of providing and laying such payment; and that the plaintiffs considered it just and reasonable to apportion and did apportion the sum of money or expenses so to be paid between the defendant and the said other owners in manner following, that is to say, that the sum to be paid by each owner of the said houses should be the amount of the actual cost of providing and laying so much of such pavement as might be in front of his said house or houses up to the middle of the carriage-way so in front of the same inclusively, together with a sum bearing such a ratio to the whole cost of the intersections as the frontage of his property might bear to the whole length of frontage; and that the value of the materials found on the property of each owner should be allowed in payment of the sum to become due from him on such apportionment; and that, by such apportionment and allowance, which were made before the demand thereinafter mentioned, the sum of 17197. 12s. 9d. became and was the

*sum due to the plaintiffs, and the sum of 70l. 18s. 2d. became [*479 and was the sum which it was the duty of the defendant as owner of the said houses in Prince's Terrace, and the sum of 127. 168. 11d. became and was the sum which it was the duty of the defendant as owner of the said house in Roxburgh Terrace, to pay to the plaintiffs in respect of the said estimated expenses; and that, after the said apportionment and deduction had been made, the said sums of 701. 188. 2d. and 127. 168. 11d. were demanded of the defendant by the plaintiffs; and the defendant, by reason of the premises, and by force of the said statute, became indebted to the plaintiffs in the said sums of 701. 188. 2d. and 127. 16s. 11d.; and that all things had happened and by the plaintiffs been done to entitle the plaintiffs to have the said sums of 70l. 188. 2d. and 127. 168. 11d. paid to them by the defendant, and to maintain this action; yet that the defendant had not paid the said sums of 701. 188. 2d. and 127. 168. 11d., or either of them: and the plaintiffs claimed 837. 158. 1d.

The defendant pleaded, that the said street was not a new street laid out or made as alleged. He also demurred, the ground of demurrer stated in the margin being, "that the action is for expenses by statute 18 & 19 Vict. c. 120 directed to be paid, and that a special remedy for enforcing payment thereof is provided by s. 225 of the said act, and therefore an action does not lie for them.'

The plaintiffs joined in demurrer.

Lush (with whom was Shee, Serjt.), in support of the demurrer.-The declaration in this case is founded upon the 105th section of the Metropolis Local Management Act, 18 & 19 Vict. c. 120, which enacts, that, in case the owners of the houses forming the greater part of any new street laid out or made, or hereafter to be laid out or made, which is not paved to the satisfaction of the vestry or district board of the parish or district in which *such street is situate, be desirous of having the same paved, as hereinafter mentioned, or if such [*480 vestry or board deem it necessary or expedient that the same should be so paved, then and in either of such cases such vestry or board shall well and sufficiently pave the same, either throughout the whole breadth of the carriage-way and foot-paths thereof, or any part of such breadth, and from time to time keep such pavement in good and sufficient repair; and the owners of the houses forming such street, shall, on demand, pay to such vestry or board the amount of the estimated expenses of providing and laying such pavement (such amount to be determined by the surveyor for the time being of the vestry or board); and, in case such estimated expenses exceed the actual expenses of such paving, then the difference between such estimated expenses and such actual expenses shall be repaid by the said vestry or board to the owners of houses by whom the said sum of money has been paid; and, in case the said estimated expenses be less than the actual expenses of such paving,