Report of Cases Argued and Determined in the English Courts of Common Law Volume 109

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated. 1880 Excerpt: ...formed no part of the cause of action which the defendants have consented to refer. The proposed amendment introduces a totally difl'erent matter, andone 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 judgment, 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 '0. 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" sufiiciently 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 plaintifi' to revoke the submission, unless the defendants will consent U468 to the record being amended so as to put in issue the matter really in contest between the parties. 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 tha...