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1804.

Evans against THOmsos,

of September then next, then to the umpirage of C. so as he
made his um pirage on or before the 21th 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 281h of
September, the time for making the umpirage was further ex-
tended to the 6th of October, which indorseinent was stamped
with an agreement stamp. By an umpirage made on the
5th of October, Thomson was directed to pay 9s6l. 11s. 2d.
to Evans, by two instalments; one on the 4th of November
Jast, the other on the 6th of January 1801. 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-
went 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 indorseinents,
agreed to enlarge the time in the inanver 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 make
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 indorse:nents
of the 21st and 28th of September for enlargin: the
lime, &c.
This rule was obtained on the authority of Jenkins v.

Law

[ 190 )

MSON.

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

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1804

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.

agreed

1804,

Evans aguinst Tromson.

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 unpire 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 ex.
press consent that such agreement should be made a rule of
Court. But, upon considering that case, in which the obo
jection appears to have been given way to without any argu.
ment on the part of the counsel who had obtained the rule
for an attachment, and on which account the matter was
probably not brought under the immediate view and atten.
tion 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 Couris 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 tlie condition
of the bond, that the subinission to arbitration should be
inade a rule of Court; and that, with reference to the en-
larged time, instead of the line originally specified in the
condition of the bond. '

Rule discharged. And
Rule for Aitachinent absolute.

( 194 )

SANDBY

1804.

qua

Friday,

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.

” titled

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