Exch. of Pleas, Queen herself, and that the defendant, before and at the time of the commencement of this suit, was, and still is, such attorney.-Verification. 1841. WINDSOR v. HERBERT. Special demurrer, assigning for causes, that the averment in the replication is immaterial and impertinent, and does not amount to an avoidance of the matter alleged in the plea, and admitted by the replication: that the replication does not aver, that at the time of the accruing of the said causes of action to which the plea is pleaded, the defendant had been duly admitted and inrolled an attorney of any court: that it does not shew that the business done by the plaintiff for the defendant was agency business by the plaintiff as an attorney, and that the defendant was then an attorney: and that it does not aver that a month, from the delivery of the bill mentioned in the plea, had expired before the defendant was admitted and inrolled an attorney as in the said replication mentioned, &c.-Joinder in demurrer. W. H. Watson, in support of the demurrer.-The stat. 2 Geo. 2, c. 23, s. 23, is general in its terms, and applies to all persons to be charged by the bill, whether attornies or not. Then the stat. 12 Geo. 2, c. 13, s. 6, limits it to some extent; providing that the former statute shall not extend "to any bill of fees, charges, and disbursements due from any attorney or solicitor to any other attorney or solicitor; but every such attorney, &c. may use such remedies for the recovery of his fees, &c. against such other attorney or solicitor, as he might have done before the passing of the said act." The object of this enactment clearly was to protect non-professional persons, who were so when the bill was contracted; supposing an attorney to be sufficiently cognizant of the course of business to protect himself. But is it not preposterous to say, that because the party is admitted an attorney after he has become indebted for fees, but within the month after the delivery 1841. WINDSOR บ. HERBERT. of the bill, he is not to be allowed to have the bill taxed? Exch. of Pleas, If so, the only mode of trying the charges will be before the jury. The Court have no authority to direct the taxation of an agency bill: Waymouth v. Knipe (a). Where the party is an attorney at the time the business is done, the legislature supposes him cognizant of the terms on which it is done, so that there is no dispute about them: but that does not apply to a party who afterwards becomes an attorney. [Rolfe, B.-When the action is brought, the defendant does understand the terms.] The case of Ford v. Maxwell (b) is undoubtedly a decision against the defendant, but it may be doubted whether it was well decided, and it does not appear to be warranted by the terms of the statute. [Parke, B.-As soon as the defendant was made an attorney, the bill became due from one attorney to another.] Lush, contrà, was stopped by the Court. Lord ABINGER, C. B.-I think the case is within the words of the statute. The Court of Common Pleas have already construed it so, and I see no reason why we should construe it differently. PARKE, B.-It is enough to say that the point has been already considered, and that the statute has been construed to apply to the case of a person who becomes an attorney after the business is done. The defendant knows well enough what he has to pay upon the bill: it is not the case of an inexperienced person. GURNEY, B., and ROLFE, B., concurred. Judgment for the plaintiff. (a) 3 Bing. N. C. 387; 3 Scott, 764. (b) 2 H. Bl. 589. Exch. of Pleas, 1841. Jan. 20. The Court has power, under the stat. 3 & 4 Will. 4, c. 42, s. 39, to enlarge the time for an arbitrator to make his award, PARBERY V. NEWNHAM. NEWNHAM v. PARBERY. THESE causes were referred to arbitration under an order of Tindal, C. J., (which was afterwards made a rule of Court), “so as the arbitrator should make and publish his award in writing, ready to be delivered to the parties, or any or either of them, if they should require the same, on or before the 27th day of May, 1840, or on or before power to do so, such further or ulterior day as the arbitrator should from time limited by time to time appoint, and signify in writing under his for making the hand on the said order." The arbitrator proceeded with award to elapse the reference, and held several meetings; but before the where the arbitrator, having has allowed the the submission without doing So. cases were brought to a conclusion, the time limited in the order of reference had expired, without the arbitrator's having made any indorsement on the order enlarging it. No application was made to him by either of the parties to enlarge the time; but when he was about to make his award, the plaintiff objected that his authority was at an end. It appeared also, that, after the time had expired, the defendant's attorney informed the plaintiff's attorney of the circumstance, when the latter answered—“ Very well, I suppose the time can be enlarged by a Judge's order:" and both parties afterwards attended meetings before the arbitrator. In Michaelmas Term, Gaselee, Serjt., obtained a rule to shew cause why the time for making the award should not be enlarged until the first day of Hilary Term. In the same term, Sir F. Pollock and Macaulay shewed cause.-The question is, whether under the circumstances of this case the Court have power to enlarge the time for making the award, under the stat. 3 & 4 Will. 4, c. 42, s. 39, which enacts, "that the power and authority of any arbitrator 1841. PARBERY บ. NEWNHAM. or umpire appointed by or in pursuance of any rule of Exch. of Pleas, Court or Judge's order, or order of Nisi Prius, in any action now brought or which shall hereafter be brought, &c., shall not be revocable by any party to such reference, without the leave of the Court by which such rule or order shall be made, or which shall be mentioned in such submission, or by leave of a Judge: and the arbitrator or umpire shall and may and is hereby required to proceed with the reference notwithstanding any such revocation, and to make such award, although the person making such revocation shall not afterwards attend the reference; and the Court, or any Judge thereof, may from time to time enlarge the term for any such arbitrator making his award." That enactment appears to give the Court power only in cases where there has been an attempt to revoke the submission. Its object was, that if the arbitrator were disposed to assist either party by not making his award, he should not have power to do so, but should be compellable to proceed. The words "such arbitrator" mean the arbitrator who has been required to proceed with the reference notwithstanding the revocation. In Burley v. Stephens (a), this Court intimated an opinion that the statute was not so restricted, but extended to all cases of arbitration falling within the commencing words of the clause: but the observation of the Court in that respect was not necessary to the decision of the case. In a subsequent case of Doe d. Jones v. Powell (b), Patteson, J., expressed a contrary opinion. His Lordship, referring to the clause which gives the Court power to enlarge the time, says, "That means rather that the Court may enlarge the time, where no power is given to the arbitrator to do so; if there is such a power, it is for him to do it; but I doubt if the Court would do it in a case where the parties, or the arbitrator, will not consent to proceed with the reference." [Parke, B. - He does not express any opinion that the clause is (a) 1 M. & W. 156, (b) 7 Dowl. P. C. 539, 1841. PARBERY ข. NEWNHAM. Exch. of Pleas, not general, or that it is confined to cases in which the parties have attempted to revoke the submission.] The learned Judge thought that where power is given to the arbitrator to enlarge the time, and he fails to do so, the Court had no power to do it in his stead. In Potter v. Newman (a), it was undoubtedly decided that the clause was not so limited as has been suggested. But this case goes much further: because here the time is already extinct; and it is a misapplication of language to speak of enlarging it. If the Court should now interfere, it is granting a new term: they cannot enlarge that which is altogether gone. This is in effect asking the Court to make a new submission. Cresswell and Gaselee, Serjts., contrà.-The Court have now power, under the statute, to enlarge the time for making the award. It is conceded that they would have authority to do so, if there had been an attempt at revocation by one party; and there is no reason why an equal power should not exist, when both parties have been willing to proceed. Burley v. Stephens and Potter v. Newman are sufficient authorities to shew that the clause in question applies to all cases where the parties have agreed to submit themselves to the Court. But it is said the authority of the Court cannot be applied, where the time originally limited has already expired. But an order of reference does not become a nullity by the time limited for making the award having been allowed to expire: Hall v. Rouse (b). There, by an order of Nisi Prius, a verdict was entered for the plaintiff, subject to a reference. The plaintiff's attorney neglected to deliver the order of reference to the arbitrator until after the time for making the award had expired, and on the parties afterwards meeting before the arbitrator, the defendant refused to proceed |