McClure v. Gulick.

HORNBLOWER, C. J. It is insisted by the counsel for the defendant, that the submission was improperly made a rule of this court; that before it was so done, there had been such an alteration made in the original agreement, as amounted to a new submission that other arbitrators had been substituted by the parties, by whom an award had actually been made :-that the writing substituting such new arbitrators, contained no agreement that the submission to them should be made a rule of court and the counsel contended that in such case, the parties must be left to their legal remedy: in support of this objection, he referred us to Bac. abr. tit. arbitrament and award.

That "it is not too late to make a submission a rule of court, after an award made," we decided in Hazen v. Addis, 2 Green, R. 333, and I am satisfied with that decision. Whether we can make a submission a rule of court, after the original agreement to submit, has been altered by the parties, by changing the arbitrators or otherwise, is another question. The original submission, and which, it was agreed should be made a rule of court, was to three certain persons: the last submission, was to one of those three and to two others associated with him: and it is certainly true, that in the two agreements substituting other arbitrators in the places of those first named, there is no agreement, in terms, that the submission to such new and substituted arbitrators, shall be made a rule of court. But the substitutions were endorsed on the original submission and agreement, and expressly refer to what is therein contained-without such reference, the indorsements would be unmeaning. By such reference, the original submission and all the terms of it, became part of, and incorporated into the new agreements; so that the award of the three arbitrators last named, or of any two of them, of and concerning the matters mentioned in the original submission, should be final and conclusive, and that such submission should be made a rule of court. If the last indorsement refers to and adopts the original agreement, as a valid and subsisting agreement between the parties, for the purpose of making itself intelligible, it must by all fair course of reasoning, be considered as adopting it entire, except so far as that original agreement is expressly altered or rescinded, or rendered inconsistent with the new arrange

ment.

McClure v. Gulick.

The case of Jenkins v. Law, 8 Ter. R. 87, was not like this.The submission had been made a rule of court, pursuant to the agreement of parties, before any award had been made. Afterwards, by an indorsement on the bond, the parties enlarged the time for making the award without adding that this new agreement should be made a rule of court. The arbitrators awarded within the enlarged time, and a rule for an attachment was refused. But even that case has been overruled. In Evans v. Thompson, 5 East, 189, the parties by a general indorsement on the bonds, enlarged the time, and the court held, that such agreement included all the terms of the original submission to which it had reference, and amongst others, the agreement to make the same a rule of court.

In that case, Lord Ellenborough said, in reference to the case of Jenkins v. Law, the objection appeared to have been given way to, on the concession (as the fact was) of counsel: and that upon conferring (with a view to uniformity of practice on this subject) with most of the Judges of the other courts at Westminster Hall, they were of opinion that that case could not be supported: and see Watson on arbits. and awards, 85, in 11 Law Lib. 44.

In the next place it is insisted that the plaintiff's right to an attachment, for not paying the sum awarded, is not ex debito justitiæ, but a matter at the discretion of the court. (Bac. abr. tit. arbit. and award, letter H.:) that an attachment is not granted now in cases like this, as for a contempt of the court, but is in the nature of a civil execution. Bac. abr. tit. attachment, let. A. 285; The King v. Myers, 1 T. R. 265. And that therefore, the court ought not to grant this attachment, simply on the ground that the party has not paid the money. He may be unable to do so, and then his imprisonment will be perpetual : whereas if the plaintiff proceeds against him in an action upon the award, he may, if insolvent, be relieved from imprisonment.

Nevertheless an attachment for not performing an award, strictly speaking is a criminal proceeding, though in some respects it is considered as in the nature of civil process. Wats. on arb. and awards, sect. III. p. 183. It is, however, under the control of the court, and upon a proper case made, such as insolvency of the defendant, clearly established, it might be re

Houston et al. adsm. Woodward.

fused, and the plaintiff left to his remedy on the arbitration bond, or the award. But here the defendant sets up no excuse for not obeying the award. It is not enough for his counsel to say, that he may be a bankrupt or unable to pay.

He has refused obedience to the rule of this court, without offering any excuse for doing so, or shewing any cause why an attachment, pursuant to the statute, should not issue against him. Let the rule be made absolute.

CITED in Den, Hendrickson v. Hendrickson, 3 Harr. 367.

Rule absolute.

HOUSTON ET AL. ADSM. WOODWARD.*

In case for overflowing lands, &c. Matter of practice, respecting rules for jury of view.

H. W. Green for the defendant, stated, that a rule had heretofore been granted in this cause for a jury of view, but the cause had not been tried at the Circuit to which such jury had been awarded. He now inquired if it was necessary to enter a new rule for a struck jury; the rules of practice being silent upon the subject.

He suggested that it had been usual to renew the rule in conformity to the practice of the courts at Westminster Hall. But here the same reason did not exist. In the English practice, the rule uniformly specifies the time and place of the view: and therefore it became necessary if the cause was not tried at the next term, to renew the rule. The rule in this court does not specify the time for the view-which is fixed by the sheriff or the attorneys, and there appeared no necessity for a renewal of the rule.

* Decided orally at September Term, 1839.

McKelway and Gray ads. Jones.

PER CUR: Juries of view are ordered by thi court in pursuance of statute; El. Dig. 268, pl. 11, and when a rule for such a jury is once entered, it continues in force, until the cause is tried, or the rule discharged.

In trespass.

MCKELWAY AND GRAY ADS. JONES.*

Process issued against both defendants, served on one only, and no appearance entered for the other; but a plea, without his authority, filed for both of them; the cause tried and he on whom process was served being acquitted, and the other defendant found guilty by the jury, without notice of the suit or trial: proceedings and verdict set aside, as against him.

H. W. Green, for defendant Grav.

W. Halsted, for plaintiff.

HORNBLOWER, C. J. The summons in this case was returned, served on McKelway, and non est, as to Gray. The former resided at Trenton, in the county of Hunterdon, and the latter at Camden, in the county of Gloucester. McKelway handed the copy of the summons which had been served on him, to Mr. Hamilton an attorney and counsellor of this court, requesting him to take care of his interests in the cause. The plaintiff filed a declaration against both defendants, as if both had been served with process, or appeared to the action, although in point of fact, no appearance had been entered for either of the defendants. Some time after the declaration had been filed, Mr. Hamilton, inadvertantly, or if by design, without any authority from Gray, put in the plea of the general issue for both defendants. On the

* Decided orally at February Term, 1839.

McKelway and Gray ads. Jones.

trial of the cause at the Circuit, the jury rendered a verdict in favor of the defendant McKelway, but found Gray guilty of the trespass, and assessed damages against him, to the amount dollars.

of

It now appears by the affidavit of Gray, and the fact is not denied, that he never heard of this suit, until since the trial; and upon this ground, he moves to set aside the proceedings and verdict as against him. This motion is resisted: First, upon the ground, that, if one defendant be acquitted, and the other found guilty, the defendant so convicted, cannot have a new trial: in support of which, is cited, the note of the reporter, in Parker et al. v. Godin, 2 Str. 814; and the case of The King v. Mawbry, et al. 6 T. R. 639. But the cases referred to, do not support the proposition; and if they did, they would have no applicaton to the question before us. This is not a motion for a new trial, on the part of Gray; but a motion to set aside the whole proceeding, as against him, on the broad ground, that he has been condemned without notice, and without a hearing.

It is insisted however, that an attorney of this court, having appeared and pleaded for the defendant, this court cannot relieve him, but that he must be left to his remedy against the attorney, who without a warrant, has compromitted his rights: and the case of Den v. Hendrickson, 3 Green, 102, is supposed to sustain this position. In this, I think counsel are mistaken. My own opinion of the law on this subject, as reported in that case, (and which, the more I have reviewed, the more I am confirmed in,) affords not the shadow of an argument in favor of the doctrine now contended for; and the opinion of justice Ryerson, with whom justice Ford concurred, was evidently based upon the particular facts of that case. Allen the complaining defendant had been regularly served with process; and though he had no defence to the action, and intended to make none, yet he committed the management of the case, to Hendrickson; and by his equivocal, if not fraudulent conduct in the matter, deprived himself, in the opinion of a majority of the court, of any right to its protection and upon that part of the case, I am not certain my brethren were not right; indeed upon reviewing the facts, as they appear in the report, I am inclined to think, were the matter now before us, I should concur with them. But the abstract