SEFARATE OllDERS OF EEFEEENCE. 419 



who distinguished the case from Nethorpe v. Ilolgate, which was cited in 

 support of the bill, that the bill could not be sustained {Beeston v. Stutely). 

 And where an agreement recited that the defendant had, as he was advised, 

 legally put an end to a lease of a farm Inj virtue of a 'power in it to that 

 effect, in case of the tencmfs hankrnptcy, and that the lease to the plain- 

 tiff (who was admitted into possession and paid £250, or half of the bonus 

 agreed on for the lease so to be granted) should commence on a day cer- 

 tain, if the defendant could then legally make it, or as soon as he was in 

 a situation to do so ; and the defendant after the plaintiff had occupied 

 the farm two years was unable to grant the lease, owing to his former 

 tenant's commission of bankruptcy being superseded, it was held that the 

 granting of the lease being the consideration for the bonus, the plaintiff 

 could recover back his £250, as money paid on a consideration that had 

 failed, although he had had such beneficial occupation {Wright v. Colls). 



An action by A. against B., and a cross action by B, against A., were 

 referred by separate orders of reference made under the 3rd section of the 

 Common Law Procedure Act, 1854. The latter action contained counts 

 for not using a farm in a tenant-like manner, and for goods sold ; and 

 the defendant pleaded to the first count a denial of the tenancy upon the 

 terms alleged, and performance of the agreement ; and to the last count 

 — never indebted, payment and set-oflf. The arbitrator made his award 

 on one piece of paper, awarding for the plaintiff in the first action, and 

 that in the second action there was nothing due or payable from the de- 

 fendant to the plaintiff, and he ordered that the costs of the award should 

 be paid by B. ; but the Court of Exchequer remitted the award to him that 

 he might make two awards, and find the issues specifically {Rellaby v. 

 Broum, Brown v. HelJaly). A usage for arhitrators appointed to determi?ie, 

 as between outgoing a7id incoming tenants of a farm, the value of the away- 

 going crop, and the deductions for want of repairs of the farm buildings 

 and fences, to make their award, on inspection of their crops and premises, 

 without notice to the parties and without evidence, may be good ; but no 

 usage can justify the arbitrators in hearing one party and his witnesses 

 only, in the absence of and without notice to the other party {Oswald v. 

 Uarl Grey). Behren v. Bremer, which confirmed Galloway v. Keyworth 

 settled that there is no impropriety in arhitrators employing an attorney 

 to prepare their award, and that there is not any necessary impropriety in 

 their employing the plaintiff's attorney for that purpose. 



An authority to an agent, to execute an indenture under seal, must also 

 be under seal. A deed inter partes can only be available between the 

 parties thereto ; therefore where in covenant upon an indenture of lease 

 it appeared that the landlord by writing, not under seal, authorised his 

 attorney to execute the lease for and on his (landlord's) behalf, and the 



