« SebelumnyaLanjutkan »
Evans against THOmsos,
of September then next, then to the umpirage of C. so as he
[ 190 )
Law(a), where it was determined, that an agreement to en 1804. large the time for making an award inust contain a new con
EVANS sent that it shall be made a rule of Court, otherwise no award against made within such enlarged time can be enforced by attach- 1 ment.
Wood and TV'etherell shewed cause against the rule, and denied the authority of the above-inentioned 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 inade to any part of the [ 19 contenis, it must in reason be made to the wliole of them. · Erskine and Blarryat, 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" 10 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 6 agreement being so made, and inserted in their submis. “ sion or pronise, or condition of their respective' bonds, “ shall on affidavit, &c., be entered of record in such Court, for 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 role 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 agreeinent shall be made a rule of Court, but merely that the time shall be enlarged. That agreement is distinct from the bond, and
EVANS against Toomson. [ 192 ]
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, different stamps. It yas 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 men. tioned the one and not the other, there is no reason for ex: tending their agreement by implication,
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 ne. cessary 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 ai bitrators or umpire, por the subject matter of the reference; and if any part were adopted, he could not see what line could be drawn, and wby 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 um pirage 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
( 193 )
(u) Brown v. Goodman, E.,29 G. 3, B. R. cited in Littler v. Holland, 3 Term Rep. 592.
Evans aguinst Tromson.
agreed that the time for the umpirage should be extended to
Rule discharged. And
( 194 )
SANDBY, Clerk, against MILLER. May 11th. The London THE plaintiff brought assumpsit to recover the value of Court of Re. I tithes due to hiin, as vicar of St. Giles, Camberwell, quests have jurisdiction, from the defendant, who occupied certain tenements within by the stat. the vicarage, and for which he had for two years before paid 39 & 40 Geo. z; c. 104, over a composition at so much an acre : but latterly the number a contract for of acres being in dispute, the defendant refused to pay the retention of tithes by the su
sum demanded by the vicar, who thereupon brought this tenant, the action at the Sittings at Westminster, before Lord Ellenbo. value of which was
rough, C, J., when he recovered a verdict for 7s. 6d. upon under sl.; a count for a quantum valebant (a); which, together with if the vicar
ore 21. 145. 3d. paid into court, constituted the original amount sue for the of the plaintiff's demand, as appeared by an account delisame, and re: vered by him to the defendant before thr acriou brought, cover less than sl. upon and also by a bill of particulars obtained afterwards. It a count in ese appeared that the plaintiff did not reside within the jurisdicsurnpsit for a
ntum vale. tion of the Court of Requests in the City of London ; but that bant, the de. the defendant, though he resided at times at his house aç fendant may D enter a sug.
Peckham Rye, in Surry, yet also kept a shop and carried gestion on the on trade within the city, The defendant, in the last term, roll, stating that he was
upon an affidavit that he was a freeman and inhabitant a freeman within the city of London at the the time when the action and inhabitant
was brought, and that he was served with the writ within the of the city of London, trad. city, obtained a rule nisi for leave to enter a suggestion on ing there at the roll under the stat. 39 G 40 Geg. 3, * c, 104 (local acts) the time he was served “ 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 for the pur. pose of oust exceed sl. and that the same was recoverable in the said ing the plaint. Court of Requests. The 12th section of the act enacts, under the izin “ That if any action or suit shall be commenced in any section of the ~ other Court than the said Court of Requests for any debe act. *[ 195 ]
" not exceeding 51. and recoverable by virtųe of the recited " acts (3 Jac. 1, f. 15, and 14 Geo, 2, c. 10.) and of this 6 act or any of them in the said Court of Requests, in every “ such case the plaintiff in such action or suit shall pot, by “ reason of a verdict for him, or otherwise, have or be en.
(c) The first count of the declaration was on a composițion for tithe.