1804.

EVANS against THOMSON.

[190]

of September then next, then to the umpirage of C. so as he
made his umpirage on or before the 24th of September 1803.
By a memorandum on the bonds, dated 21st of September, it
was thereby agreed between the said parties, that the said
arbitrators making their award should be extended from that
day unto the 24th of September aforesaid, and for making
the umpirage to the 1st of October: and by another indorse-
ment on the bonds, signed by the parties on the 28th of
September, the time for making the umpirage was further ex-
tended to the 6th of October, which indorsement was stamped
with an agreement stamp. By an umpirage made on the
5th of October, Thomson was directed to pay 986l. 11s. 2d.
to Evans, by two instalments; one on the 4th of November
last, the other on the 6th of January 1804. In the bonds
of submission it was provided, that the bonds and submission,
thereby made, should be made a rule of Court, pursuant to
the statute, if either of the parties should require the same,
and the Court should so please. But when the time for
making the award was agreed to be enlarged by the indorse-
ment on the bonds before mentioned, it was not added that
that should be made a rule of Court. By a rule of Court
made on Saturday next after the octave of St. Martin in
Michaelmas Term last, reciting the bonds of submission, and
that the submission was agreed to be made a rule of Court,
and that the parties had afterwards, by the said indorsements,
agreed to enlarge the time in the manner before mentioned,
it was ordered that such the presents and submission made in
manner aforesaid, be made a rule of Court. The umpirage
having been made within the enlarged time, and the defend-
ant not having performed what he was therein directed to
do, an attachment was moved for against him; whereupon
a rule was obtained, calling on the plaintiff to shew cause
why the last-mentioned rule of Michaelmas term for mak-
ing the submission, &c. for such enlarged time a rule of
Court, should not be amended by confining such rule to
the submission made by the bond and condition therein
recited, and excluding the two subsequent indorsements
of the 21st and 28th of September for enlarging the
time, &c.

This rule was obtained on the authority of Jenkins v.
Law

Law (a), where it was determined, that an agreement to enlarge the time for making an award must contain a new congent that it shall be made a rule of Court, otherwise no award made within such enlarged time can be enforced by attach

ment.

Wood and Wetherell shewed cause against the rule, and denied the authority of the above-mentioned case, which they said passed without observation; and that it was plainly the intention of parties to an arbitration, who agreed by an indorsement upon the submission bonds to enlarge the time for making the award, to include all the terms of the original submission, one of which was, that it should be made a rule of Court. That without reference to the contents of the submission bonds, such indorsement was not intelligible; and if reference were necessarily made to any part of the contents, it must in reason be made to the whole of them.

Erskine and Marryat, in support of the rule, iusisted on the authority of the case of Jenkins v. Law, which was grounded on the act of 9 and 10 IV. 3, c. 15; which enables litigant parties to agree that their submission of their suit "to the award, &c. shall be made a rule of Court, and to "insert such agreement in their submission, or the condi"tion of the bond or promise whereby they oblige them"selves respectively to submit to the award, &c.; which "agreement being so made, and inserted in their submis. ❝sion or promise, or condition of their respective' bonds, "shall on affidavit, &c., be entered of record in such Court,

and a rule thereupon made, &c., pursuant to such sub"mission," &c. and then it provides that the party neglecting to obey the award, shall be subject to all the penalties of contemning a rule of Court. To give the Court jurisdiction, therefore, the agreement to make the submission to arbitration a rule of Court, must, by the express words of the act, be inserted in the condition of the bond or promise. It was so inserted in the bond; but that by the lapse of time became functus officio; and then the agreement was made, which does not express that the agreement shall be made a rule of Court, but merely that the time shall be enlarged. That agreement is distinct from the bond, and

1804.

EVANS

against

THOMSON.

[191]

1804

EVANS against

THOMSON.

cannot be incorporated into it; for no action would now lie on the bond (a), but it must be brought on the agreement; and the instruments are so far distinct, though on the same piece of paper, that they required, and actually have, dif[192] ferent stamps, It was certainly competent to the parties to agree to enlarge the time, without agreeing to have their submission again made a rule of Court. Then having mentioned the one and not the other, there is no reason for ex: tending their agreement by implication,

[193]

Lord ELLENBOROUGH, C. J. said it was a case of considerable consequence, affecting the practice of all the Courts, upon the construction of a very beneficial act of parliament; and therefore, before the Court gave their final opinion they would consult with the other Judges: though, as at present advised, it appeared to him that the memoranda endorsed on the submission-bond for enlarging the time, did, by necessary construction, virtually incorporate all the conditions in the bond to which they had reference. That they must be taken to do so to a certain extent was apparent; for in themselves the memoranda did not even specify the names of the arbitrators or umpire, nor the subject-matter of the reference; and if any part were adopted, he could not see what line could be drawn, and why the whole must not be adopted. Cur, adv. vult. His Lordship now delivered the opinion of the Court. This matter came on before the Court in the beginning of this term, upon a rule to shew cause why a rule made in last Michaelmas term should not be amended by confining such rule to the submission made by the bond and condition therein recited, and excluding the two subsequent memorandums or indorsements, bearing date the 21st and 28th of September last, &c. By the condition of the arbitration. bond the arbitrators were to make their award on or before the 21st of September last, and the umpire to make his umpirage on or before the 24th of the same month. On the 21st of September the parties agreed that the time for the arbitrators making their award should be enlarged to the 24th of September. And on the 28th of September they

(a) Brown v. Goodman, E. 29 G. 3, B. R. cited in Littler v. Holland, 3 Term Rep. 592.

३

agreed

agreed that the time for the umpirage should be extended to the 1st of October. The umpirage was made within the time to which, by this agreement, the authority of the umpire was extended, and the agreement to enlarge was made a rule of Court. It was objected on the part of the defendant : that the award of the umpire was not capable in this case of being enforced as a rule of Court, on the authority of the case of Jenkins v. Law, 8 Term R. 87.; the agreement to enlarge the time of making the award containing no express consent that such agreement should be made a rule of Court. But, upon considering that case, in which the ob jection appears to have been given way to without any argu ment on the part of the counsel who had obtained the rule for au attachment, and on which account the matter was probably not brought under the immediate view and attention of the Court; and upon conferring, with a view to an uniformity of practice on this subject, with most of the Judges of the other Courts of Westminster Hall, we are of opinion that the case referred to cannot be supported; and that the agreement to enlarge the time for making the award must be understood as by reference, virtually incorporating in itself all the antecedent agreements between the parties relative to that subject, as if the same had been formally set forth and repeated therein, and of course incorporating, amongst the rest, the agreement contained in the condition. of the bond, that the subinission to arbitration should be made a rule of Court; and that, with reference to the enlarged time, instead of the time originally specified in the condition of the bond.

Rule discharged. And
Rule for Attachment absolute,

1804.

EVANS

against THOMSON.

[194]

1804.

Friday,
May 11th.

The London

Court of Requests have. jurisdiction, by the stat. 39 & 40 Geo.

3, C. 104, over

a contract for

retention of tithes by the tenant, the value of which was

under 5l. ; and therefore

if the vicar sue for the

same, and re

cover less

than 57. upon a count in as sumpsit for a quantum vale. bant, the defendant may enter a sug

SANDBY, Clerk, against MILLER.

THE plaintiff brought assumpsit to recover the value of tithes due to him, as vicar of St. Giles, Camberwell, from the defendant, who occupied certain tenements within the vicarage, and for which he had for two years before paid a composition at so much an acre: but latterly the number of acres being in dispute, the defendant refused to pay the sum demanded by the vicar, who thereupon brought this action at the Sittings at Westminster, before Lord Ellenbo rough, C, J., when he recovered a verdict for 7s. 6d. upon a count for a quantum valebant (a); which, together with 21. 14s. 3d. paid into court, constituted the original amount of the plaintiff's demand, as appeared by an account delivered by him to the defendant before the action brought, and also by a bill of particulars obtained afterwards. It appeared that the plaintiff did not reside within the jurisdiction of the Court of Requests in the City of London; but that the defendant, though he resided at times at his house at Peckham Rye, in Surry, yet also kept a shop and carried on trade within the city, The defendant, in the last term, upon an affidavit that he was a freeman and inhabitant within the city of London at the the time when the action, was brought, and that he was served with the writ within the city, obtained a rule nisi for leave to enter a suggestion on the roll under the stat. 39 & 40 Geo. 3,*c, 104 (local acts) "for extending the powers of the Court of Requests in the with the writ, “ city of London ;" that the original cause of action did not the same was recoverable in the said The 12th section of the act enacts, or suit shall be commenced in any other Court than the said Court of Requests for any debt "not exceeding 57. and recoverable by virtue of the recited "acts (3 Jac. 1, c. 15, and 14 Geo, 2, c. 10.) and of this "act or any of them in the said Court of Requests, in every "such case the plaintiff in such action or suit shall not, by "reason of a verdict for him, or otherwise, have or be en

gestion on the
roll, stating
that he was
a freeman

and inhabitant
of the city of

London, trad

ing there at the time he was served

for the pur

pose of oust exceed 57. and that ing the plaint- Court of Requests, under the 12th "That if any action section of the

iff of his costs

act.

*[ 195 ]

(#) The first count of the declaration was on a composition for til he.

"titled