for a new trial, Lord Ellenborough said that he could not agree that it amounted to a consent on the part of the defendant, because, being, as it were, tied to the stake and dragged on to trial, he endeavoured to make the best of it. The distinction between that case and the present is this,-that, there, the parties were before the wrong tribunal, and here before the right tribunal; there the objection was a substantial one, and here only a shadowy and unsubstantial one. Lycett v. Tenant, 4 N. C. 168, 5 Scott 479, 6 Dowl. P. C. 436, was also cited. In that case there was a variance between the writ of trial and the issue: the objection was not to the jurisdiction of the judge to try the cause, but that the plaintiff had brought down the wrong issue to be tried. That, again, was a substantial and fatal objection; and, although the defendant appeared, yet, inasmuch as he did so under protest, he was allowed afterwards to contest the validity of the proceedings. Then, as to Davies v. Price, 6 Law T. (N. S.) 713, Crompton, J., in delivering the judgment of the court, certainly does say that they were disposed to think, that, as the *arbi*199] trators persisted in going into the consideration of damages

after objection taken by the defendant, he did not waive his objection by attending subsequent meetings under protest. Every word that falls from that very learned judge is entitled to the most respectful attention. But, what was the objection there? The arbitrator had persisted in taking into consideration the question of damages, and thus assumed a power which the submission did not give him. That again, therefore, was a substantial objection. In the case of Re Haigh's Estate, 31 Law J., Chanc. 420,-which was a decision of the Lords Justices, the arbitrator had without sufficient cause excluded from the room the son of one of the parties, and the short-hand writer; and the party affected by this exclusion had nevertheless proceeded with the reference,-whether with or without protest, does not very clearly appear. There the arbitrator had misconducted himself, and consequently there is no analogy between that case and the present. I am of opinion that an objection such as this,-which, after all, amounts to nothing more than the mere omission to pronounce some formal words,-is plainly waived by conduct like that here pursued. I think we should be going against the weight of authority as well as against reason and common sense, if we were to send the parties back to a fresh arbitration on this ground,-more especially in a case where the board seem to have been throwing every possible difficulty in the way of the claimant's obtaining compensation for the damage he has sustained. I make this observation rather with reference to the next point which we have to consider, viz. as to the mandamus.

Now, the granting or withholding of a mandamus under the Common Law Procedure Act, is to a certain extent in our discretion: and the difficulty which has occurred to me, is, that the delay *200] which took place between the year 1856, when the damage was done to the plaintiff's premises, and the year 1858, when his claim for compensation was first brought forward, has not been very satisfactorily accounted for. In construing the 89th section of the Public Health Act, which limits the power of the board to make rates retrospectively to the raising of money for the payment of charges and expenses which may have been incurred within six months, the word

"incurred" must, I think, be read with reference to the ultimate ascertainment of the amount by arbitration or otherwise; for, it would be impossible to make even an approximate rate, which would, I presume, include the costs of the proceedings, until it was known what the decision was. There is, therefore, no objection to the lapse of time since 1858. And, although the delay between 1856 and 1858 is not so satisfactorily accounted for, yet, when we see what the conduct of the defendants has been in that part of the case which is fully before the court, I cannot help thinking, that, if anything could have been said as to that interval which would have assisted them, it would not have been withheld. As, therefore, we decide on all the other points in favour of the plaintiff, I think we are bound to give him the full remedy which the law allows, by directing that a writ of mandamus do issue.

KEATING, J.-I entirely agree with the judgment pronounced by my Brother Byles, and in the reasons which he has given. The distinction which he has pointed out between the cases relied upon and this case, seems to me to be the valid distinction upon the only question which might have presented some difficulty, viz. as to how far the attendance of the parties before the umpire operated a waiver of the objection *(which I think was a valid one) that the umpire had [*201 omitted to enlarge the time for making his award within the twenty-one days prescribed for that purpose by the statute. That distinction runs through all the cases, and will be found on examination to reconcile them all. Wherever it has been held that the continued attendance before the arbitrator waived an objection of which the party was cognisant, it will be found that the objection was to the competency of the tribunal; and that is an objection which cannot be so waived. None of the cases, however, as to arbitrations, struck me with much force except that of Davies v. Price, 6 Law Times (N. S.) 713. But that case, when carefully looked at, will be found rather to be an authority in favour of our present decision. Crompton, J., says that the court are disposed to think, that, as the arbitrators persisted in going into the consideration of the damages after objection taken by the defendant, he did not waive his objection by attending subsequent meetings under protest,-no case having been brought to their notice in which a substantial objection had been held to be waived by subsequent attendance before the arbitrator under protest. The objection there was, that the arbitrators were assuming a jurisdiction over matters which the parties had not submitted to them; and this the court held to be a substantial objection. The judgment of the court, however, did not proceed even upon that, but upon this,-that the declaration was upon the express submission of the parties, and not upon an implied submission arising from the acts and conduct of either of them in the course of the reference, and consequently the evidence of acquiescence was irrelevant and inapplicable. In truth, it was an attempt to alter the nature and extent of the submission by the conduct of one of the parties to it. I must say I should have been surprised if any case could have been cited to *sustain [*202 such an objection as this. It seems to me to be a contradiction in terms, to say that, having protested against the umpire's right to proceed, the party protesting may, nevertheless, not only attend and watch the proceedings, but cross-examine his adversary's witnesses,

and call witnesses on his own part, and then say to the arbitrator,— "If you decide in my favour, I am content; but, if you decide against me, I will stand upon my protest, and move to set aside your award." I entirely agree with my Brother Byles, that that objection cannot be sustained, and that the plaintiff is entitled to our judgment.

That being so, then arises the question as to the mandamus to compel the board to make and levy a rate to satisfy the plaintiff's claim. Notwithstanding the ingenious argument of Mr. Lush, that the board may be so well provided with funds that a rate may be unnecessary, it is highly probable that the only remedy that will be available to the plaintiff is the granting the writ. If the board choose to satisfy the claim without proceeding to make a rate, we might possibly be disposed to accept that as a compliance with the mandamus.

With regard to the effect of the 89th section of the Public Health Act, which was relied upon by Mr. Lush as a bar,-the six months limited by that act for the making of a retrospective rate having elapsed since the time when the injury complained of was sustained,— it seems to me that the time we are to look to, is, the time of making the award and the bringing of the action. Until the award was made, the amount was not ascertained.

For these reasons, as well as for the reasons given by my Brother Byles, I think the plaintiff is entitled to judgment and to a writ of mandamus as prayed. Judgment for the plaintiff.

*203]

*SIR MOSES MONTEFIORE, Bart., Chairman of the Alliance British and Foreign Life and Fire Assurance Company, v. ISAAC LLOYD. Nov. 10.

The defendant executed a bond as surety to an insurance company for the fidelity of A., who was appointed an agent of the company at Adelaide, and who was about to and afterwards did enter into partnership (as merchants) with B., also an agent of the company at that place. The condition of the bond was, that, if A., his heirs, executors, &c., should well and truly pay and account for all moneys received by him, the obligation should be void :-Held, that the defendant was not responsible under this bond for moneys received by the firm of A. & B., notwithstanding he was aware at the time he signed the bond that A. was about to become partner with B. Held, also, that the surrounding or "co-existing" circumstances were admissible for the purpose of explaining what might be ambiguous in the condition.

THIS was an action brought by the plaintiff as chairman of the Alliance British and Foreign Life and Fire Assurance Company,-a company incorporated under an act of 5 G. 4, c. cxxxvii.,-against the defendant upon a bond given by him to the company for 5001. under the circumstances hereinafter set forth. Under a judge's order made by consent, the following case was stated for the opinion of the court without pleadings:

1. In the year 1854, George Henry Fox, who resided and carried on business at Adelaide, in Australia, was the agent of the Alliance company at Adelaide; and by a letter, dated from Adelaide the 27th of November, 1854, the directors of the company were informed of his desire that John Sanderson Lloyd should be associated with him in the agency of the said company at Adelaide. The following is a copy

of that part of the letter addressed to the secretary of the company in which such desire is expressed :—

"I have now to request you will be good enough to intimate to the directors my desire that the name of Mr. John Sanderson Lloyd should be associated with mine in the power of attorney for the conduct of this agency, as I am about taking that gentleman into partnership. I may observe that Mr. Lloyd has been in my counting-house for some time, and is nephew to Mr. J. S., one of the partners of the firm of S. & Co., and you could apply to that gentleman as a referee, in case of need. My more particular object in writing this, is, that I contemplate visiting England next year; and it is [*204 important that the interests of the company should not suffer during my absence. You will be furnished with the necessary security for Mr. Lloyd. I should also further mention that Mr. Lloyd has had for some time the management of this branch of business in our countinghouse; and I consider him in every way fully qualified to manage efficiently the agency of the company."

2. On the 14th of February, 1855, a resolution was passed at a meeting of the board of directors of the company, as follows:-"That Mr. John Sanderson Lloyd, of Adelaide, be associated with Mr. G. H. Fox in the management of the agency there, as suggested in a communication from the latter gentleman dated the 27th of November last, and that he be required to furnish security to the extent of 5001."

3. On the 1st of March, 1855, F. A. Englebach, on behalf of the company, wrote to Fox a letter of which the material portion is as follows:

"I am happy to inform you, that, in accordance with your request, the directors have associated Mr. J. S. Lloyd with you in the control of the Adelaide agency; and a new power of attorney will consequently be prepared, and forwarded by the next mail. It will be necessary that Mr. Lloyd execute a bond for 500l., to which Mr. Theodore Lloyd, of the Stock Exchange, and Mr. Isaac Lloyd, of Bristol, have undertaken to become sureties."

4. The J. S. mentioned in the extract of the letter of the 27th of November, 1854, declined to become one of the sureties for J. S. Lloyd, but wrote on the 7th February, 1855, a letter to the defendant, who is the father of J. S. Lloyd, as follows::

"Dear Isaac,-I send you on the other side an *extract of a letter from G. H. Fox to the Alliance company, whose agency [*205 we were the means of obtaining for him. It will be necessary, if J. S. Lloyd be associated with him in the agency, that a bond signed by two parties for 500l. be entered into. As it is only insuring his integrity, it is a nominal thing: but I cannot be one, on account of my articles of partnership, which expressly prohibit any one of the partners from becoming surety. I should think J. S. Thomas might not have the same objection; and your own name would do for one. I enclose a form."

5. The extract alluded to in the last-mentioned letter was an exact copy of the extract set out in the first paragraph of this case. The said letter, with the aforesaid extract on the other side of it, was received by the defendant shortly after its date; and he as well as

one Theodore Lloyd consented to become sureties for John Sanderson Lloyd.

6. On the 14th of March, 1855, the defendants duly executed and delivered to the company the bond on which this action is brought, which bond was as follows:

"Know all men by these presents, that we John Sanderson Lloyd, of Adelaide, in the colony of South Australia, merchant, Theodore Lloyd, of the Stock Exchange, London, gentleman, and Isaac Lloyd, of Bristol, in the county of Somerset, gentleman, are jointly and severally held and firmly bound to the Alliance British and Foreign Life and Fire Assurance Company in the penal sum of 5001. of good and lawful money of Great Britain, to be paid to the said Alliance British and Foreign Life and Fire Assurance Company, their successors or assigns, for which payment to be well and faithfully made we bind ourselves, and each of us our and each of our heirs, executors, and administrators, *jointly and severally, firmly by these presents, sealed with our seals. Dated the 14th day of March,

*206] 1855:

"Whereas, the above-bounden John S. Lloyd hath been nominated and appointed by the board of directors of the Alliance British and Foreign Life and Fire Assurance Company to be an agent(a)of the said company at Adelaide, and on such his nomination it was stipu lated by or on behalf of the said company and agreed to by the said John S. Lloyd, that he, together with the above-bounden Theodore Lloyd and Isaac Lloyd, should enter into the above-written bond or obligation for securing the fidelity of the said John S. Lloyd:

"Now, the condition of the above-written bond or obligation is such, that, if the said John S. Lloyd, his heirs, executors, or administrators, or some or one of them, shall and do from time to time and at all times hereafter when and so often as he or they shall be thereunto required by the actuary, secretary, or other officer of the said company, well and truly pay or cause to be paid unto the directors of the said company, some or one of them, or to such person or persons as they or he shall order, direct, or appoint, all such sum and sums of money as shall be by the said John S. Lloyd had and received as or by way of premiums for assurances effected with the said company, or otherwise howsoever on account and for the use and benefit of the said company, or with which he shall be intrusted by or on account of the said company; and also shall and do from time to time and at all times hereafter when and so often as he or they shall be thereunto required by the said actuary, secretary, or other officer, render to the said directors, some or one of them, a true, just, and perfect

*207] account of all and every sum and sums of money that shall be by him had and received, or paid, laid out, and expended for or on account of the said company; and also shall and do well, truly, justly, and honestly in every respect behave and conduct himself in his said office or employment of agent to the said company,--then the above-written bond or obligation is to be void, otherwise to be and remain in full force and virtue."

(a) It was stated in the case, that the word " an was, before the execution of the bond, written over the word "the" which last-mentioned word was part of a printed form, and had been preriously struck out.