CASE S ARGUED AND DETERMINED IN THE COURT OF KING'S BENCH, IN Easter Term, In the Forty-fifth Year of the Reign of GEORGE IIÏ. then HENFREE against BROMLEY. 1805. Thursday, After an award made under the pire, and ready pursuant to the terms of refenotice was given band of an um for delivery, rence, of which to the parties, an alteration by the umpire of the sum award. THIS case was referred to arbitration, and the umpire was to make his award under his hand, ready to be delivered hy a certain day; on which day he accordingly awarded the defendant to pay to the plaintiff 57 2. and signed the award; recommending to the parties at the same time by parol, to pay the costs of the reference in equal moieties: and he put the written award in the hands of his own attorney, who sent notice immediately to the defendant that the award was executed and ready for delivery: but, on the same day, ed, tho' made the umpire having been informed that the defendant refused on the same day to pay his share of the costs of the reference, took the very of the award, before it was delivered by his attorney, and struck award, is voids his pen through the 577. (still, however, leaving it legible) good for the and inserted the sum of 66 1. jn order to include the defend- original sum ant's moiety of the costs; after which he resigned the award with a dry pen, and such his signature was attested by witnesses, and notice of the award so altered was given to the parties. An application was made in the last term for an attach ment for non-performance of the award upon an affidavit of service of it, and a demand of the 667. and there was an adVOL. VI. R and before deli but the award is awarded, which was still legible, the same aa such alteramade by a mere if tion had been stranger, with. out the privity or consent of the party inte rested. verse [310] 1805. HENFREA against BROMLEY. [311] verse application to set aside the award as being vitiated by such alteration. These rules came on together in the last term, when the Court, after hearing counsel, were of opinion that the award having been once complete by the first signature of the umpire, and being then ready for delivery (a), though not attested or delivered, which, by the terms of reference, were not necessary to perfect it, there was an end of the umpire's authority; and he could not afterwards alter the award any more than any other stranger: and, therefore, they refused the rule for an attachment for non-payment of the 667. which they thought there was no authority for demanding; but the other rule for setting aside the award was enlarged to this term, to consider, on the one hand, whether the award were not altogether viti ated by the alteration; and, on the other hand, to enable the plaintiff to make a new demand of the lesser sum originally awarded, and apply for a new rule for an attachment in case of non-payment of it, upon the supposition that the award was good for the original sum inserted in it, notwithstanding the subsequent obliteration made by the umpire without authority. Gurney was now heard in support of the award; and contended, That if the umpire had no authority to make the alteration, that award must be good for the original sum, the alteration having been made by mistake, and not with any fraudulent purpose; and said, that were it not for the opinion expressed by the Court in the last term, he should have contended, that the umpire might have corrected the mistake he had made in putting in a wrong sum at any time before the award was delivered out of his hands. Lord ELLENBOROUGH, C. J. This was not a mere mistake of the umpire in putting down one sum instead of another, as in casting up an account wrong, or the like; but it was a new and distinct act of judgment formed by him after bis authority was spent, and he was functus officio. Still, however, I see no objection to the award for the original sum of 57 l.; for the alteration made by him afterwards, was no more than a mere spoliation by a stranger, which would not vacate the award. He only intended originally (4) Vid. Brown v. Vawser, 4 East, 584. to to give a recommendation to the parties to divide the costs of the reference between them; and not to make it part of his award. Then when he found that the defendant would not pay his share, he tried to resume his authority again, after he had laid it down; which he could not do. 1805. HENFREE against BROMLEY. Erskine and Pooley were to have supported the rule for setting aside the award; upon the ground of the alteration having vitiated it altogether; and referred to Pigot's case (u); where it was resolved," that when any deed is altered in a point material by the plaintiff himself, or by any stranger [312] without the privity of the obligee, be it by drawing of a pen through a line or any material word, &c. the deed thereby becomes void" and so, it is added," although the first word be legible." But finding the opinion of the Court decidedly against them on this point, they did not press the argument further. Lord ELLEN BOROUGH, C. J. I consider the alteration of the award by the umpire, after his authority was at an end, the same as if it had been made by a stranger, by a mere spoliator; and I still read it with the eyes of the law, as if it were an award for 571. such as it originally was. If the alteration had been made by a person who was interested in the award, I should have felt myself pressed by the ob jection; but I can no more consider this as avoiding the instrument than if it had been obliterated or cancelled by accident. 1805. Thursday, May 2d. enter an exone retur on the bail-piece on payment of the sum sworn to and costs, tho' less than the ledged to be due, as well where the action is by original as by bill. JACOB against Bow Es. The Court will THE Solicitor General shewed cause against a rule for en tering an exoneretur on the bail piece on payment of 861. which it now appeared was the sum sworn to, but which was less than the sum due, for which a cognovit was given; the recognizance of bail being in 1721. by each sum acknow- of the bail. He observed, that however the general practice might warrant such an application, it applied only to actions commenced by bill; but this was by original, and, therefore, ought to be governed by the same rule of con struction on the recognizance as prevails in C.-B. where in Dahl v. Johnson, 1 Bos. et Pull. 205, each of the bail were holden liable to the amount of his recognizance, which had been taken in double the sum for which the defendant had been ordered to be bolden to bail by a judge's order. In truth, the recognizance does not mention the sum sworn to, but each of the bail have bound themselves in the sum of 1721. to be levied of his goods, &c. if his principal be convicted and shall not pay what is recovered of him, or render himself. [ 313 ] Lawes, in support of the rule, referred to Clarke v. Bradshaw, East, 86, as in point; the only distinction being, that there the proceedings were commenced by bill; but said that there was no distinction in practice between ac tions by bill, and by original in this respect; and The Court (after consulting the Master) said, "That there was no distinction in practice between the two modes of proceeding; but in either case the bail were entitled to be relieved on payment of the sum sworn to and the costs. The practice, they observed, was founded on the rule of Court (a). of E. 5 Geo. 2, the terms of which were general; whereby it was ordered, that where the plaintiff recovers a greater sum than is expressed in the process, on which he declares, the bail shall be liable for the sum sworn to, and indorsed on the said process, or for any lesser sum which the plaintiff shall recover. That by an extension of the rule, the bail were also liable for the costs (b). Rule absolute. (a) Rules and Orders of R. R. 10. (5) It appeared by affidarit that the costs of this action had been paid. PRIOMORE 1805. PRIGMORE against BRADLEY. MARRYAT moved for a rule to shew cause why a judgment of non pros and execution thereon should not be set aside for irregularity with costs, and the money levied be restored. The plaintiff proceeded by bill; the process was returnable the first return of last Michaelmas term; and the appearance was not entered till the 22d of January, after the essoign day of last Hilary term, the day before the commencement of full term. And the question was, Whether an appearance so entered could be entered as of Michaelmas term preceding? if it might, then the non pros signed on the 6th of March for want of declaring was regular; otherwise not. The stat. 13 Car. 2, st. 2, c. 2, s. 3, enacts, That upon appearance to be entered in the term wherein such process, &c. is returnable, the bond for appearance shall be discharged; and unless the plaintiff shall declare" before the end of the term next following after appearance, then a nonsuit for want of a declaration may be entered. And he cited Holmes v. White, E. 11 Geo. 3, Impey's Inst. Cler. K. B. 415 (a), where, on a motion to set aside a non pros, the master was of opinion that a non pros could never be signed unless bail were filed in the term in which the writ was returnable: and he said, that though in practice judgments of the antecedent term were signed after the essoign day of the next term, yet they were always dated as of the day preceding the essoigo day; but Friday, entered after pros entered An appearance the essoign day and before the day of full term may be entered as of the preced ing term; and, therefore, a non after the second term for want of declaring be fore the end of such second term, is good. The Court (after consulting the master) said, That till the [315] commencement day of full term (the 23d of January) the party was at liberty to enter his appearance as of the antece dent term; and, therefore, the non pros was regular. 3 (4) 4th edit, tit. Non pras. Rule refused. R 3 The |