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1661. and not to defendant as captain; and he wished to inspect plaintiff's books, to see who was debited (a).
Morgan Howard for the defendant.
Billing for plaintiff.—There has been an abandoned summons for interrogatories in the same matter, and it cannot now be revived in this form. We have also had notice to produce the books on the trial, and the case will be in the paper for trial to-morrow.
His Lordship said the application was late, but defendant was entitled to inspection. The abandonment of the summons for interrogatories did not deprive defendant of his right to inspect, but was evidence only of laches. The order would be that plaintiff undertake to produce the books in Court, if the cause be tried to-morrow; if the cause be not tried to-morrow, defendant to have inspection of the books in the afternoon.
(o) Vide Scott v. Walker, 2 E. L. J., Ex. 259; and Charlton v. & B. 555; Wright v. Aforrey, 24 Allen, Vol. II., p. 549.
Coram Crompton, J.
Qiutre, whether IN this case a rule nisi having been obtained, calling on of "the c. L? p. *ne respondents to show cause why an agreement for a Act, 1854, ap- reference should not be carried out, and why it should not
plies to agree- 'J
ments to sub- be made a rule of Court.
mit disputes to
a reference, Campbell Foster appeared to show cause against the
and to enforce
the award by rule, and
rule of Court,
and whether J. B. Maule in support of it.
that section is
not confined to It appeared that two families of paupers having become
suits com- chargeable to the township of Maningham, in Yorkshire, roenced in the
Superior Courts in which the parties thereto afterwards consented to a reference :—Held, at Judges' Chambers, by Crompton, J., after consulting Martin, B., that he had no powar to make ap order under this section in reference to an agreement to refer to arbitration not arising out of an action or suit.
whose settlement was believed to be in tbe adjoining town- 1861. ship of Bradford, in the same union, the paupers, on the complaint of the overseers of Maningham, were respec- Appellants, tively examined before Justices of the Riding, who made Respondents.' an order of removal of the paupers to Bradford, in each case adjudging their settlement to be in that township. Against this order of removal there was an appeal, notice of which was duly given, and the appeal would have come on for trial in the ordinary course at the Christmas Sessions of 1860 for the West Riding. Usually Mr. Hudson, solicitor, acted for both townships, but on the present occasion, this dispute arising between them, he acted as solicitor for the respondents' township alone. To save the expense of litigating the two appeals, it was agreed between him and the attorney for the appellants, at the latter end of December, 1860, to refer the settlement of the two pauper families to the arbitration of Mr. Barr, of Leeds, the submission providing that the arbitrator should make his award on or before the 1st of April then next, with power, by consent of the parties to the agreement, to further extend the time for making the award, such consent to be indorsed on the agreement, and signed by the parties. No award was made before the 1st of April, and the time for making it was not further extended. In July Mr. Hudson died, and another attorney, Mr. Darlington, having been appointed to the respondents' township, he advised that the agreement for a reference never having been acted upon had become futile, and gave notice to the appellants that the paupers would be removed to their parish in obedience to the order of removal. The affidavit on which the order nisi was obtained set forth, that Mr. Hudson, in his lifetime, had agreed to further extend the time for the award beyond the 1st of April, and that his illness and death had interfered with carrying out this arrangement. The order was obtained under the 17th section of the Common Law Procedure Act, 1854, which
1861. enacts, that "every agreement or submission to arbitration
„' by consent, whether by deed or instrument in writing not
Bradford, J' J O
Appellants, under seal, may be made a rule of any one of the Superior Maningiiam, .
Respondents. Courts of Law or Equity at Westminster on the application
of any party thereto, unless such agreement or submission
contain words purporting that the parties intend that it
should not be made a rule of Court."
Campbell Foster now contended, first, that in such a case as the present a Judge had no power to make the order. The statute contemplated actions or suits commenced in the Superior Courts, and the prior sections all had reference to suits commenced in the Superior Courts and to arbitrations after the issuing of a writ. The old statute of Will. III. (a) gave no such power, as the agreement contained no words purporting that the parties intended that it should be made a rule of Court.
J. B. Maule contended that the 17th section gave his Lordship power to make the order.
Crompton, J., said he would consult Mr. Baron Martin, who was then at Chambers, as to whether a case like the present was within the statute, and whether he had power to make the order. The words of the 17th section seemed large enough. On his return, he said Mr. Baron Martin thought such a case as the present had not been contemplated in the framing of the statute. He himself had great doubt whether he had the power to make the order, and whether the statute applied; and on the whole he should make no order, without prejudice to any other step the appellants might choose to make.
The order was therefore discharged. (0) 9& 10 Will. 3, c. 15, s. 1.
TAYLOR V. SMITH. Michaelmas
STerm. UMMONS to show cause why the declaration should Whereapiain
not be reformed, by stating the covenant sued on cor- contract ac
rectly (a). cording to his
J' construction of
Beresford for the plaintiff. £ -*«
Aspland for the defendant. £TM w?l. not
The declaration stated that the plaintiff by deed cove- J^"^^,im nanted with the defendant, inter alia, to go to Bombay in *tadeD1TMg ^ L. the course of the year 1856, to establish a certain agency P. Act, 1852, there, and, at the defendant's request, certain other agencies also, and to continue to act in the management of one of such agencies for a certain time in the deed specified. And that by the deed the defendant covenanted with the plaintiff, inter alia, to pay to the plaintiff, during such time as he should continue to act in the management of any one of the said agencies in India, certain salaries and remunerations in the deed specified.
Averment: that he did go to Bombay and establish the said agency there, according to his said covenant, and continue to act in the management of the said agency in India from the time of his arrival in Bombay, for the time in the said deed specified.
General averment of conditions precedent.
Breach: that the defendant had not paid the said salaries or remunerations.
The deed upon which the plaintiff had declared was dated in 1851, and had a covenant to go to Bombay and
(a) Under the C. L. P. Act, strike out or amend such pleading,
1852, s. 52, "if any pleading be and the Court or Judge shall make
to framed as to prejudice, em- such order respecting the same
barrass or delay the fair trial of (and also as to the costs) as such
the action, the opposite party may Court or Judge shall think fit apply to the Court or a Judge to
1861. establish an agency, and, at request of defendant, within ten years, establish such agency in Calcutta or Madras.
Covenant, that Taylor will continue to act in the management of one of the said agencies for ten years from the date of his arrival in Bombay.
Covenant by the defendant, in consideration of the covenants by the plaintiff, that the said Smith will [during such time as the said Taylor shall continue in India], and shall, in conformity with the provisions of the deed, be acting in the management of any of the aforesaid agencies, pay to him the salaries set forth, at rates varying during the ten years.
There was a distinct covenant as to termination of the agreement by notice.
The plaintiff arrived in India on the 27th of June, 1851.
This action was commenced in the year 1861, after the expiration of the ten years, and after he had left India.
[The part of the covenant in brackets was, it will be seen, omitted in the declaration, and there was no averment that the plaintiff was in India.]
Aspland, for the defendant, contended that the declaration did not set out the covenant fairly or truly, according to its legal effect, nor according to its terms, but ambiguously, so that it would be difficult to deal with it, whether by demurring as to its effect, or taking issue as to its being the true statement of the contract, with reference to the obligation to pay while the plaintiff was not in India.
Beresford, for the plaintiff, insisted on his right either to set out the contract in terms, or to state what he deemed to be its legal effect (a); and that if the defendant disputed this statement of it, he could either deny it, or set out the terms of the contract himself in his plea (6).
(a) Robertson v. Showier, 13 M. tract may now be pleaded, or the & W. 609. whole set out in the plea. See C.
(b) Sims v. Edmonds, 23 L. J., L. P. Act, 1854, 8. 36. C. P. 229. Conditions in a con