3000, C. also shipped 3000l. worth of other goods, and Pearson shipped, amongst other things, goods to the amount of 13771. 5s., which he had obtained on credit from the plaintiffs. Pearson having become bankrupt, the plaintiffs discovered that the goods were shipped as a joint adventure, and accordingly sued Dobson for the price.

Pearson, who was called as a witness, swore that he had no authority to pledge the credit of his co-adventurers, otherwise than as might be implied from the agreement.

On the part of the plaintiffs, it was insisted that *this was a [*461 joint-adventure, and constituted a joint liability in the three as partners.

His Lordship, however, was of opinion that the purchase of the goods was the separate adventure of each, and that the circumstance of their having a joint interest in the result of the transaction did not constitute such a relation between them as to give either of them authority to pledge the credit of his co-adventurers for the goods to be supplied by him. He thereupon directed a verdict to be entered for the defendant, reserving leave to the plaintiffs to move to enter the verdict for them for 13771. 56., if the court should be of opinion. that the agreement of the 29th of May, 1862, constituted a partnership between the defendant, Pearson, and C.

Lush, Q. C., now moved accordingly.-He submitted that the outward cargo having been put on board the Peterhoff as the joint adventure of the three, notwithstanding the private arrangement between themselves, they were quoad third persons clothed with all the authority and responsibility of partners, and consequently each of the three was liable for the whole amount of the goods shipped on the joint account. [BYLES, J.-If the agreement had been that each of the three should contribute to the joint adventure 30007. in money, instead of that amount in goods, you would hardly have contended that Dobson would have been responsible to the person from whom Pearson borrowed his 3000l. to come into the concern.] That would be a different thing. The case of Kilshaw v. Jukes, 32 Law J., Q. B. 217, approaches very nearly to this. There, A., an ironmonger, having supplied ironmongery to the amount of 1897. to B. and C., who were builders, agreed to join them in the purchase of some land for building, on the conditions that B. and C. should build the [*462 houses, A. supplying the ironmongery required, and that, on the completion and sale of the houses, A. should be paid the 1897., the price of the ironmongery, and no more, and that, if no profit was realized, A. should be a loser. An agreement was accordingly entered into by all three with the landowner for the purchase of a piece of land, and the three bound themselves to complete buildings. upon it according to certain plans, the vendor agreeing to make advances to the three to enable them to complete the building, and the three being jointly bound to pay the purchase-money, and the convey. ance when all was paid to be to the three, or as they should direct. B. and C. having ordered timber of the plaintiff, it was supplied on their credit (the plaintiff being ignorant of A.'s having any interest in the building), and it was used on the building. It was held by Blackburn, J., and Mellor, J.,-Wightman, J., dissenting, that A. was

not jointly interested with B. and C. in such a way as to make him a partner and liable for the timber. Wightman, J., there says: "The timber, though supplied by the plaintiff upon the application of two of the defendants only, and upon their credit, was ordered and used by them for the performance of a work to be executed by them jointly with Jukes, and for his as well as their benefit. It is true, as between themselves, Wynn and Till were to do the work: but Jukes was as much bound to do it as they were. What they did was in order to fulfil a contract which the three were jointly bound to perform." That, it is submitted, is precisely the case here.

case.

WILLIAMS, J.-I am of opinion that there should be no rule in this There is nothing in the arrangement to authorize one of the three to bind the others as their agent in respect of the third share of the cargo *which he undertook to supply for the joint adventure. There clearly was no partnership.

*463]

BYLES, J.-I am of the same opinion. Each of the parties was to furnish 30007. worth of cargo, which was to be on joint account thereafter. That clearly did not give Pearson any authority to bind his co-adventurers for a contract made by him for the purchase of his proportion of the cargo.

ERLE, C. J.-I retain the opinion I expressed at the trial.

Rule refused.

SMURTHWAITE v. RICHARDSON and Another. Nov. 25.

The court will not allow an amendment so as to introduce a new cause of action, where a cause has been referred by consent under an order which does not reserve power to the arbitrator to amend. Nor will they permit the plaintiff to revoke the submission,-there being no suggestion of any breach of faith on the part of the defendants.

THIS was an action brought by the plaintiff, a merchant at Sunderland, against the defendants, shipbuilders at Low Walker, near Newcastle-upon-Tyne, to recover damages for the alleged breach of a contract for the building of a ship. The original contract was made on the 24th of April, 1860. The material parts of it were as follows:

"It is hereby agreed that the said J. W. Richardson & Co. are to build for the said John Smurthwaite the hull, masts, and spars of an iron clipper sailing vessel to class twelve years A. 1, at Lloyds. [Then followed the specification, price, and terms of payment.] The said ship to be completed and delivered as above on or before the 5th day of December next."

On the 5th of July, 1860, the time for the completion of the vessel was extended by mutual consent to the 5th of February, 1861. One vessel was not complete on the last-mentioned day; but not*464] withstanding such breach of their *contract on the part of the defendants, the plaintiff permitted them to proceed with the construction of the vessel, subject to whatever claim he might have against them in respect of their failure to complete her within the

extended time.

On the 20th of March, 1861,-the vessel being then nearly completed, and her launch being confidently expected by both parties

within a week,—the plaintiff entered into a sub-contract with one John Pantaleone Schilizzi, for the sale of the vessel to him for a certain sum," the said ship to be guaranteed and classed twelve years A. 1, at Lloyds:" and it was agreed that the former agreement (between the plaintiff and defendants) should "form part of that agreement." The last-mentioned contract was accompanied by a memorandum of extras and alterations which Schilizzi required to be supplied and made; and by that memorandum the period of two months from the launching of the vessel was fixed as the time for her delivery to Schilizzi.

The defendants had notice of the above-mentioned contract with Schilizzi: and thereupon the following memorandum was endorsed upon the memorandum of extras and alterations, and signed by the plaintiff and the defendants:

"It is mutually agreed between John Smurthwaite and John W. Richardson & Co., that, on the said John Smurthwaite agreeing not to claim demurrage for overtime, the said J. W. Richardson & Co. will supply the extras and alterations as above described; and the said John Smurthwaite agrees to make the final payments as per agreement within eight days after launching, when the builder's certificate will be handed over and the ship transferred to the said John Smurthwaite. This agreement is in no way to vitiate the contract above referred to." *The launch of the vessel took place on the 26th of March,

1861: but she was not delivered complete with the extras and [*465 alterations and in all other respects according to the original contract until the 6th of July; and consequently the plaintiff was unable to perform his contract with Schilizzi. The cause of the delay was, that Lloyds' surveyor required the masts to be strengthened before he would certify for her classification.

Schilizzi thereupon sued the plaintiff for his breach of contract. The now defendants had notice to come in and defend that action, which they refused to do. The plaintiff, having no defence to the action, agreed to refer the amount of damages to arbitration, and an award was made in favour of Schilizzi for 400l. 10s. 6d., and costs, which latter amounted to 1117. 19s., which, together with his own costs of defence (1207.), the plaintiff paid.

The present action was then brought to recover from the defendants the damages and costs above mentioned, as well as for the recovery of general damages for the defendants' breach of contract. The defendants also brought a cross-action against the plaintiff for the price of certain extras: and it was agreed to refer both actions to Mr. Price, Q. C.

By the order of reference, it was, amongst other things, directed that the arbitrator should be at liberty, at the request of either party, and before making his award or certificate, to state a special case for the opinion of the court upon any point of law which might be raised before him in the course of the said reference; and that the arbitrator should be at liberty to find generally for the plaintiff or for the defendants without finding on any of the specific issues joined in the said cause, unless otherwise requested by either of the said parties. It was further ordered that the *parties should produce and admit before the arbitrator all contracts, &c., relating to the ship, and

[*466

also the contract between the plaintiff and Schilizzi, "and the proceedings, order of reference, award, and bills of costs both of plaintiff and defendant in the action brought by Schilizzi against the now plaintiff." But the order of reference contained no power for the arbitrator to amend the pleadings.

Whilst the reference was proceeding, the plaintiff discovered that the declaration was defective in not containing any averment of a breach of the contract in respect of time. The defendants refused to consent to any amendment. But it was ultimately arranged that the arbitrator should take all the evidence upon the assumption that the declaration and replication had been actually amended, and postpone the making of his award in order to give the plaintiff an opportunity of making such application to the court as he should be advised.

S. Temple, Q. C., accordingly, on a former day in this term, moved for a rule calling upon the defendants to show cause why the declaration should not be amended, or why the order of reference should not be amended by giving the arbitrator therein named all powers of amendment of a judge at nisi prius; or why the plaintiff should not be at liberty to revoke the submission, unless the defendants would consent to such amendments being made as the court should think fit. [ERLE, C. J.-What evidence have you that it was in the contemplation of the parties to refer the matter as altered by the proposed amendment?] In Alder v. Pack, 5 Dowl. P. C. 16, a plea of judgment recovered puis darrien continuance was allowed to be added pending a reference. [BYLES, J., referred to Gibbs v. Knightly, 2 Hurlst. & N. 34, and Thompsett v. Bowyer, *9 C. B. N. S. 284 *467] (E. C. L. R. vol. 99), where the Court of Exchequer and this court amended orders of reference.] There were expressions found there which are not in this order.

A rule nisi having been granted,

E. James, Q. C., and Bruce, now showed cause.-The court has no power to do that which is asked. The order of reference was made by consent. Time and delay formed no part of the cause of action which the defendants have consented to refer. The proposed amendment introduces a totally different matter, and one which possibly the defendants would never have consented to refer. All that this court did in Thompsett v. Bowyer, was, to hold that " usual terms," includes a power to the arbitrator to amend: and Erle, C. J., in giving judg ment, says he entirely agrees "that the parties to the agreement have a right to make what bargain they please, and that the court has no power to add to or subtract from what they have so mutually agreed." Morgan v. Tart, 11 Exch. 82, is a still stronger case. It was there held, that, where a cause is referred to arbitration without power of amendment, a judge has no power, except by consent of the parties, to order the particulars of demand specially endorsed on the writ to be altered by increasing the amount of one of the items.

Temple, Q. C., Udall, and Lewers, in support of the rule.-It may be that the amendment prayed is unnecessary,-the words "according to the said agreement" sufficiently involving time. [BYLES, J.-The amendment is either unnecessary or it is unauthorized.] Since the Common Law Procedure Act, 1852, the power of the court to amend is almost without limit. Assuming that the court cannot grant the

amendment prayed here, they will at all events allow the plaintiff *to revoke the submission, unless the defendants will consent to the record being amended so as to put in issue the matter really in contest between the parties.

[*468

ERLE, C. J.-We have no power to make the parties refer that which they never consented to refer. I think the defendants had a right to look at the cause of action alleged in the declaration, and refer that; and that they had a right to refuse to refer any question of liability arising out of the plaintiff's contract with Schilizzi. Nor will we give leave to revoke a submission, unless satisfied that there has been a breach of faith on the other side.

The rest of the court concurring,

Rule discharged, the defendants' costs of the application to be costs in the cause.

ALLARD v. BOURNE and Others.

Nov. 9..

A benefit building society is bound by orders for necessary repairs given by the secretary though not sanctioned by the number of trustees required by the rules for transacting the ordinary business of the company, or entered in the minute-book.

THIS was an action brought by the plaintiff to recover the price of certain work done by him in repairing certain houses of which the defendants, as trustees of a benefit society established under the provisions of the 6 & 7 W. 4, c. 32, called The Planet Benefit Building and Investment Society, were mortgagees. The plaintiff claimed 397. 14s.

The cause was tried before Keating, J., at the *sittings in [*469 Middlesex after last Easter Term. It appeared that certain of the repairs, which amounted to 297. 14s., had been done by the plaintiff on the order of one Spurgeon, the then secretary of the society. And Spurgeon, who was called as a witness, swore that he as agent for the society was in the habit of giving orders for small repairs, that he did not think it worth while on this occasion to incur the expense of calling a meeting of the directors to discuss the matter, but that he had mentioned the subject of these repairs to two of the directors, and they approved of their being done.

On the part of the defendants, it was submitted that the plaintiff was not entitled to recover in respect of the repairs which had been done upon Spurgeon's orders, such orders not being warranted by the rules of the society.

The rules provided, amongst other things, that the society should be managed by a board of not less than nine or more than twelve directors, of whom five to compose a board; that the directors should meet as often as the business of the society should require their attention, and that they should order the payment of all moneys due from or to be advanced by the society, such order to be entered in the minute-book and signed by the chairman; that the directors should have power to appoint agents or other officers; that each director who should attend the meetings of the board should be allowed the sum of 5s.; that the