the present, and therefore our judgment must be for the Plaintiffs. VAUGHAN J. I think it impossible to say that the Defendant has brought himself within the statute. He claims a credit for 47,000l., which he has not been called on, and never may be called on to pay. COLTMAN J. I am of the same opinion. It is clear that a contract to indemnify against contingent damages does not constitute a mutual credit within the meaning of the statute, and here it is uncertain whether the Defendant will ever be called on to pay the sum in respect of which he seeks credit, or any part of it. In Wood v. Dodgson the solvent partner had paid the debt of the firm, against which he was to have been indemnified by the bankrupt partners; he was therefore entitled to prove, as a surety, the debt he had so discharged: but the Defendant here, who has paid nothing, could not claim to be admitted to proof as a surety. And this is not a case within s. 56 (6 G. 4. c. 16.) which provides, "that if any bankrupt shall, before the issuing of the commission, have contracted any debt payable upon a contingency which shall not have happened before the issuing of such commission, the person with whom such debt has been contracted may, if he think fit, apply to the commissioners to set a value upon such debt, and to admit such person to prove the amount so ascertained." It would be impossible to set any value on this liability. I think, therefore, the Defendant is in no way entitled to the set-off claimed in his plea. ERSKINE J. This may be a hard case upon the Defendant; but it is the consequence of his own over 1839. ABBOTT v. HICKS. sight in not making Henry Hicks a party to the agreement for the discharge of the debts of the firm and I think he has no debt, demand, or claim, which he can set off in this action. At the time of the arrangement with his partners, he had no claim against them; but in consideration of his agreeing to pay them 68177. 9s. 8d. and to give up his share in the effects and assets of the firm, they agreed to pay the 51,8917. 12s. due from the firm to Henry Hicks. That gives the Defendant no claim against the bankrupts; it amounts only to an agreement that they should indemnify him against the debt which all three owed to Henry Hicks. If, in consequence of the bankruptcy, he had paid the whole to Henry Hicks, he might have proved under the commission; and any debt or demand provable under the commission may be set off where there has been mutual credit. But here, as there has been no payment, there is no debt or demand, and the Defendant has given no credit to the bankrupts. Nor is this one of the contingent debts provided for by s. 56., on which the commissioners are to put a value, in order to proof. It is no debt at all; and as the Defendant may never be called on to pay it, it would be impossible to put a value on it. Ex parte Myers was a case under peculiar circumstances, and the guarantor had become liable before the bankruptcy, as was explained in Ex parte Marshall. This is not a debt payable on a contingency, but a mere liability which may or may not become a debt hereafter. Judgment for Plaintiffs. 1839. In re DODINGTON and BAILWARD. June 1. THE submission between these parties was to abide Two arbi to make an August, or the award of Davis and Perry, so as they should trators were make their award on or before the 20th of August 1838, award by the or such other day as they should appoint; and in case 20th of they did not agree, the parties were to abide by the award of Knight, an umpire, so as his umpirage should be made on or before the 20th of September, or such other day as he should appoint. such other day as they should ap point; in case they dis Enlargements of the time were made by Davis and agreed, an Perry, umpire was to decide by the 20th of On the 14th of August to the 2d October ; On the 28th of September to 1st of November; which September, or enlargements were recited on the award: And by Knight, On the 17th of September to the 1st of December; such other day as he should appoint: The arbitrators enlarged their time to the The time when the enlargement of the 17th of Sep-1st of Notember was made did not appear on the award; that of vember; and, the 26th of November was stated according to the fact. Davis and Perry being unable to agree, gave notice thereof to Knight on the 28th of October. Knight made his award on the 19th of December, directing Bailward to remove certain hatches. in October, gave the um umpire notice of their being unable to agree: In September the umpire enlarged his Bailward refused to perform the award, and alleged, among other objections, that the umpire had not en- time till Delarged the time. On the 18th of April 1839, he was informed, letter, that the umpire had enlarged the time on 17th of September. cember, in by he made his the award: Held, which month that he had jurisdiction in September so to enlarge the time. 1839. In re DODINGTON and BAILWARD. A rule nisi having been obtained for an attachment for non-performance of the award, on affidavits stating the foregoing facts, Sir F. Pollock and Kinglake, who shewed cause, objected that it did not appear that Bailward had received due notice of the enlargement of the time by the umpire; Davis v. Vass (a), Wohlenburgh v. Lageman (b); That it did not appear the arbitrators had disagreed before the 28th of October, or that the parties had notice of their disagreement: in which case The umpire had no authority, on the 17th of September, to enlarge the time. Per Lord Ellenborough, in Sprigens v. Nash. (c) Wilde Serjt., Bere, and Butt, in support of the rule, contended that the notice by letter, on the 18th of April, was sufficient to warrant an attachment for nonperformance of the award. The notice was not required to be in any particular form; and knowledge obtained by a letter was equivalent to notice; In re Bower. (d) It was not necessary it should appear, on the award, that the arbitrators had disagreed; George v. Lousley (e), Trew v. Burton. (g) But the circumstance of their not having made an award by the 17th of September was a sufficient proof that they had disagreed. TINDAL C. J. I think the objections to this rule have been answered. Undoubtedly, according to Davis v. Vass and Wohlenburgh v. Lageman, when it appears on the face of an award that the time has been enlarged, upon moving for an attachment, that fact should be verified by affidavit, and it should also be sworn that (a) 15 East, 97. (d) 1 B. & C. 264. 1 Cr. & Mee. 533. 1839. In re DODINGTON and the party had notice of the enlargement. But it is not necessary that the notice should be in any particular form, and it was sufficiently conveyed here by letter on the 18th of April. The case falls within the principle of In re Bower, where it is laid down that personal BAILWARD. knowledge of an award and rule of Court, makes the party liable to an attachment for not performing the award, although he has not been personally served. The second objection is, that in order to give authority to the umpire, the disagreement of the arbitrators should be clear to the Court, and made known to the party. But in such a case non-agreement is disagreement, and it abundantly appears here that the arbitrators did not agree. Their omitting to make an award would be a sufficient notice of that. VAUGHAN J. It appears by affidavit, though not on the award, that the umpire enlarged the time on the 17th of September; and whether the arbitrators had then disagreed or not, the umpire must have that power to keep the proceedings alive. But non-agreement, or omission to make an award, is disagreement. Then, the knowledge of the enlargement conveyed to the party by the letter of the 18th of April, was sufficient notice. COLTMAN J. expressed a similar opinion. ERSKINE J. I think the authority of the umpire, and the evidence of his having enlarged the time, sufficiently clear and whether the arbitrators acted up to October or not, it appeàrs to me that authority to enlarge the time must necessarily vest in the umpire when the arbitration bond is executed, in order to keep his jurisdiction alive. With regard to the notices, I think the party had notice of the disagreement of the arbitrators in finding the award made by the umpire; |