of Limitations, this note became payable as soon as it was made. Another test is, that no demand is necessary before bringing an action upon such a note-its payment is a duty which attaches the moment the note is made. Therefore this note was payable as soon as it was made, but, in fact, proceedings were not taken upon it until more than six months after it was due; and consequently the case is not within the provisions of the 18 & 19 Vict. c. 67. There is another ground upon which it appears to me that this case is not within that Act, because I think that Act was intended to give a speedy remedy to bonâ fide holders of bills of exchange and promissory notes payable at a time certain, as against persons who made default in payment on the day when they became due. A person who accepts a bill of exchange or makes a promissory note, payable on a given day, is liable to pay it when that day arrives although no demand is made. He must be aware of the contract which he has entered into; and he has no right to say that he is taken by surprise, for he is bound to provide for payment on the day when the bill becomes due. But the case of a promissory note payable on demand is very different. Such a note is usually given as a security, and without any intention on the part of holder of calling for immediate payment. I am therefore disposed to think that such a note cannot be enforced under this Act. Here, however, the objection is, not that the note cannot be so enforced, but that more than six months elapsed from the date of the note before the Act was put in force; and that being so, the question is whether we ought to set aside the proceedings. I think we must treat the application as if it was made by the defendant. Now, the first question is whether the proceeding is a nullity, incapable of being waived, or a mere irregularity, which may be waived. It certainly is not a nullity apparent on the record. It is true that proceedings

VOL. V.-N. S.

HHH

EXCH.

1860.

MALTBY

v.

MURRELLS.

1860.

MALTBY

v.

MURRELLS.

in error are taken away by a few words within a parenthesis in the first section; but I will, for the present, read the section as if those words were omitted. Schedule B. contains a form of judgment, and if that form had been adopted in this case no error would be apparent on the record, because the judgment would not shew that the action was not brought within six months after the promissory note became payable, since the date of the writ is not shewn. If the proceeding was a nullity which appeared on the record, I should have entertained considerable doubt whether it could be waived; but in my opinion, whether it is a nullity of a different description, or an irregularity, it is one which might be at some time, and has been, waived. Then are the circumstances sufficient to support this application, if made by the defendant? I am of opinion that the defendant has precluded himself from asking the Court to set aside the writ, and as his assignee is in the same situation, the rule ought to be discharged.

Rule discharged.

June 6.

WHITMORE V. GILBERT SMITH.

On a reference DECLARATION.-F. Whitmore, the official assignee

to two arbitrators, the parties con

arbitrators

of W. Bainbridge, who has filed his petition in the Birmingsented that the ham Court of Bankruptcy under the 211th section of the might consult Bankrupt Law Consolidation Act, 1849, by &c., his attorney, The arbitrators sues Gilbert Smith for that, before the making of the agreement hereinafter mentioned, the said W. Bainbridge being then a trader and unable to meet his engagements with his

a third

person.

agreed to

be bound by his opinion

on two of the questions

referred, and having adopted this opinion without exercising their own judgment upon the matters, made their award accordingly.-Held: First, the award was invalid. Secondly, that the defence was admissible under a plea of “nul tiel agard."

creditors, duly presented his petition to the Court of Bankruptcy holden at Birmingham, &c., in pursuance of the provisions of and in the form directed by the 211th section of the Bankrupt Law Consolidation Act, 1849 (the said Court being within the district of which the said W. H. Bainbridge had resided for six months next immediately preceding the time of filing such petition and making the said agreement), and duly and in pursuance of the 211th section of the said Act made, at the private sitting therein mentioned, held under the said petition, a proposal for the future payment of his debts, &c., namely, by conveying and assigning by deed to the plaintiff all his estate and effects, as trustee, upon trust to realise, collect and receive the same, and to divide the same amongst the creditors of him, the said W. Bainbridge, in full satisfaction and discharge of their debts, and which said proposal was afterwards duly assented to and confirmed in the manner mentioned in the 215th section of the said Act, and the said conveyance and assignment was afterwards duly made accordingly; and such proceedings were taken in the said Court upon the said petition that the plaintiff was, before the making of the said agreement, appointed by the said Court to be the official assignee to act in the matter of the said petition, in pursuance of the 213th section of the same Act; and all the estate and effects of the said W. Bainbridge became and were vested in the plaintiff as such official assignee, under and in pursuance of the 218th section of the same Act. That at the time of the making of the agreement hereinafter mentioned, certain differences were depending between the plaintiff, as such official assignee and trustee as aforesaid, and the defendants, respecting certain unsettled accounts and cross claims between the said W. Bainbridge and the defendant; and thereupon it was mutually agreed between the said plaintiff, as such official assignee and

нин 2

1860.

WHITMORE

v.

SMITH.

1860.

WHITMORE

v.

SMITH.

trustee as aforesaid, and the defendant, that the said accounts should be taken by J. Percival and S. Daniel; that afterwards the said J. Percival and S. Daniel made their award, &c., and did thereby find that at the time of the filing of the said petition there was due from the defendant to the said W. Bainbridge 3641. 2s., of which the defendant afterwards had notice, &c.-Breach: Nonpayment. Pleas. First, that it was not mutually agreed between the plaintiff and the defendant as alleged. Secondly, that J. Percival and S. Daniel did not take upon themselves the burden of the reference. Thirdly, that J. Percival and S. Daniel did not make their award.

At the trial, before Bramwell, B., at the last Stafford Assizes, it was proved that Bainbridge's petition for arrangement was filed in April, 1858: that, there being unsettled claims against the defendant, the following agreement was entered into :

"In the matter of a private arrangement of W. Bainbridge, it is agreed that the accounts between W. Bainbridge and G. Smith (the defendant) shall be taken by J. Percival and S. Daniel, and the balance ascertained, &c., and any balance found due from Smith shall be recoverable by the trustee under the petition for private arrangement; and in case of any disagreement between the above accountants, they shall have power to nominate an umpire. Dated this 30th August, 1858. Edw. H. Collis, attorney for W. Bainbridge. W. Morgan, attorney for G. Smith."

On the 10th of December the two arbitrators, the plaintiff's solicitor, and the defendant and his solicitor, met at Percival's office, when one Rotton was named as umpire. The arbitrators left the room to wait upon him. On their return, in the presence of all the parties, they stated that Rotton would not have time to attend the meeting or hear the evidence, and all that they should require would be to

ask his advice and assistance. Rotton said he would accept the office, to give his advice and assistance; and the defendant's solicitor assented to that. Percival, being called as a witness, stated that he and Daniel took Rotton's opinion upon two of the questions submitted to them. The parties knew that they did so they left the room to consult him, leaving the parties to wait their return. They referred two questions to him, without any attempt to agree, and without discussing the matters. They agreed to be bound by his opinion, and acted upon it, notwithstanding a protest by the defendant's solicitor against their going before Rotton without the parties and their solicitors.

Upon this evidence the learned Judge said, that where two persons are appointed to make an award, it must be their independent opinion, and directed a verdict to be entered for the defendant on the third plea, reserving leave to the plaintiff to move to enter a verdict for 3647. 2s., the amount of the award.

Huddleston, in Easter Term, had obtained a rule to enter a verdict for the plaintiff, on the ground that the award was the award of the arbitrators: that the fact, that the arbitrators had taken and acted upon the opinion of Rotton, did not vitiate the award; and that even if they acted improperly in this respect, such misconduct was not admissible in evidence under the third plea, or pleadable in bar of the action.

Gray and Field now shewed cause. - First, assuming that the arbitrators had a right to consult Rotton if they differed, they had no right to act upon his opinion without exercising their own judgment upon it. The decision is not the act of the mind of the arbitrators. Eads v. Williams (a) shews that there may be no objection to an arbi(a) 4 De G. M. & G. 674.

1860.

WHITMORE

v.

SMITH.