with them being executors as aforesaid,' it is the same as if it had been' as exccutors as aforesaid." 1804. HENSHALL ver sus ROBERTS Lord ELLEN BOROUGH, C. J. "The count on the in- and Others. simul computassit is better than the other on the forbearance, but if there is one bad count, that is sufficient to reverse the judgment. On that count the question is pretty clear; on the other, as to the account stated, there is a great contradiction of authorities, and I should wish it to be argued on a more formal record." BOSANQUET was, however, allowed to look into the cases and argue it, if he could afterwards, and accordingly, on the last day of the term, he said that he could find no cases to support him in supplying the want of the words 'as executrix,' &c. in the count on an account stated, and, therefore, he declined arguing it; but he moved for a venire facias de novo to assess damages only on the counts in the representative rights of the executors; and he cited Astle v. Grant, where the court permitted the party to enter a nolle prosequi as to certain counts, after demurrer. THE COURT did not at first see any objection to granting a venire facias de novo; but upon recollecting that it was upon a writ of error, they said, they knew of no case in which it had ever been done, after error brought. The rule nisi was therefore refused and there was JUDGMENT FOR THE PLAINTIFFS IN ERROR. 3 Bos. and Pull. 170. 1804. EVANS versus THOMPSON. EVANS versus THOMPSON.-May 11th. Two parties submitted to arbitration by bond, and agreed therein that the submission to the award should be made a rule of court, and afterwards, by a memorandum indorsed on the bond, after the time of making the award had expired, agreed that the time for an umpire to make his umpirage should be extended to a future day, but without expressly mentioning that this new submission should be made a rule of court: Held, that this memorandum was a virtual incorporation of all the terms of the bond not inconsistent therewith, and therefore must be taken as containing an agreement to make the submission a rule of court, under the statute 8 & 9 W. III. c. 15. The case of Jenkins v. Law, 8 Term Rep. 87, was over-ruled, upon consultation with the other courts. ON a rule to shew cause why a rule made in Michaelmas term, should not be amended by confining such rule to the submission made by the bond and condition therein recited, and excluding two subsequent indorsements of the 21st and 28th of September, for enlarging the time for the arbitrators to make their award, &c. it appeared that the parties had entered into a bond of arbitration, with an agreement "that the said bond and submission thereto, should be made a rule of his Majesty's court of King's Bench, if the said parties thereto should require the same." On the 21st of September a memorandum was indorsed, whereby it was agreed that the time for the said arbitrators making their award should be extended from that day to the 24th of September, and for making the umpirage [the bond containing a clause for providing an umpire] to the 1st of October; and on the 28th of September, 1805, another indorsement was made and signed by the parties, by which the time for the umpirage was extended to the 6th of October. An umpirage was accordingly made on the 5th of October. The submission to arbitration was afterwards made a rule of this court, the rule reciting the bonds and the agree 1804. EVANS versus ment to make the same a rule of court; and also that it had been agreed that the time should be enlarged. A motion for an attachment was made for non-perform- THOMPSON. ance of the award of the umpire; and in order to avoid the effect of it, the above rule of court, concerning the submission, was obtained. ERSKINE and MARRYATT, in support of the rule, cited Jenkins v. Law,* and stated that their objection to the rule was, that the party against whom it was made had not consented to make the submission to arbitration a rule of court; and to shew that this consent was necessary to give the court jurisdiction, they read the statute of 9 & 10 W. III. whereby it is enacted "that it shall be lawful for the parties, &c. to agree that their submission of their suit to the award shall be made a rule of court, and to insert such agreement in their submission, or the condition of the bond or promise, whereby they oblige themselves respectively to submit to the award, which agreement being so made and inserted in their submission, or promise, or condition of their respective bonds, shall, on affidavit, be entered of record in such court, and a rule thereupon made pursuant to such submission." And they argued that at the time of making the last agreement, to enlarge the time, the bond, which contained a clause as to making the submission a rule of court, was functus officio, and the parties, to enforce the agreement by action, could only have declared upon the agreement, and not the bond, which, being an instrument of an higher nature, could not, they said, be considered as incorporated into the agreement, which was an inferior instrument, even though it should contain some terms of reference in it. LAWRENCE, J. "It comes to this question, whether it is not a new agreement, adopting every part of the former bond." 8 Term Rep. 87. 1804. EVANS versus THOMPSON. LE BLANC, J. "You must adopt all or none. We must, however, over-rule the case of Jenkins v. Law." Lord ELLEN BOROUGH, C. J. "The question is, whether the parties can annex to this memorandum stipulations tacitly implied in the nature of the reference, though not expressed in the terms of the indorsement, by incorporating those of the former bond. We do not strain the construction of the statute by acting upon this view of the case further than we do in other cases. In the case of holding over a lease, where there are covenants on both sides, the law raises a promise that the party shall hold over, on terms of the most laborious invention, according to the framing of the original covenant. This indorsement will not do at all as an agreement for arbitration without some reference to the bond. Indeed, what writing of any kind can be understood without some reference to something else. Without referring to the bond, what are we to understand that the parties mean here? They do not even specify the names of the arbitraors. It must be considered as a virtual incorporation of all the terms of the bond, for the purpose of avoiding the insertion of a recital in words. It amounts to thisThe day now substituted, shall be the day when the award shall be made, under the terms of the former agreement.' This construction would not strain the terms of the act of parliament. But we will consult the other courts, that there may be an uniform rule." LAWRENCE, J. "No violence can be done to the act of parliament. Suppose there is a short indorsement on a lease for seven years longer, that is an agreement that the parties will continue between them the cha racter of landlord and tenant." The court took time to consider from Hilary Term, when the case was argued; and now the opinion of the court was delivered in substance as follows, by Lord ELLENBOROUGH, C. J. after stating the case, and that the agreement to enlarge the time was made a rule of court. "To this it was objected that the authority given by the indorsements was not sufficient for the purpose, as it did not contain any express consent to make this submission a rule of court, the former agreement having expired; and this objection was founded on the authority of the case of Jenkins v. Law. On considering that case, it appears that the objection was there taken by one counsel, and was acceded to by the other; but the point was not brought directly before the court for their consideration; and, therefore, on the circumstances of this case we are of opinion that the case referred to cannot be supported'; for, the agreement to enlarge the time for making the award, must be considered as virtually incorporating in it all the conditions of the original agreement which are consistent with it, as if it had been formally set forth in terms; and, therefore, not only the agreement to `submit to arbitration is continued, but also the original agreement to make the submission a rule of court." RULE DISCHARGED. 1804 EVANS versus THOMPSON. DOE on the Demise of WHITE versus SIMPSON.-May 9. A testator devis d to three trustees, and the survivor, and the executors of such survivor, messuages, &c. and all arrears of rent, and a bond of one of the tenants for securing such arrears, in trust, that they, out of the Tents and profits, should pay certain annuities for lives, and after payment of the annuities, should pay to his brother 8ool. And from and after payment of the said annuities, and the said sum of 800l. he devised the same to his son William for life, remainder over, for the lives of other persons; remainder to C. W. and his heirs male ; re' mainder to his own right heirs. And he gave to the executors, and the survivor, and the executors of such survivor, power to grant building leases, and he gave to two of the executors 10l. per annum, a-piece, for so long as they should act in the trusts. Held, that the trustees took only |
