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Colonial Cases

Myres v. Lazarus, 1879

[civil procedure]

Myres v. Lazarus

Supreme Court for China and Japan
French C.J., 25 January 1879
Source: The North China Herald, 31 January 1879




Shanghai, 25th Jan.

Before G. FRENCH, Esq., Chief Justice.

   Mr. WAINEWRIGHT appeared to support a motion filed on the 20th inst., that the time for objecting to the award made in the suit of Myres v. Lazarus, under an order of reference of the Court, should be extended until the 1st February next.

   After hearing the arguments of Mr. Wainewright on behalf of the applicant, and Mr. Drummond on behalf of the respondent, the chief Justice gave the following decision from which the nature of the application will more fully appear:-

   In this c sae an action was brought by Charles Myres against Henry Lazarus.  Before the cause came to trial, an order by consent was made referring all the matters in difference in the case between the parties to two Arbitrators who were selected by them.  The Arbitrators proceeded with the reference, and made their award.  Nothing has been said in the course of the argument upon which it would appear that the award is, upon the face of it, defective.  Notice of the award was given to the parties on the 13th inst., and on the 20th, the seventh day after such notice, an application was made to extend the time for objecting to the award, until the 1st proximo.   Under Rile 226 of the Rules of this Court,

Any person interested may within seven days after notice of the award apply to the Court by motion to prevent the award, or any specified part of it, from being carried into effect.

That rule comes under a class of rules intituled "Arbitration:" and the prefatory, or first rule under that title is as follows:-

The following rules respecting arbitration apply exclusively to cases where the agreement for reference to arbitration or submission to arbitration by consent is made a rule of Court. 

Having regard to the provisions of this rule, the order of reference must, in order to give the court jurisdiction under rule 226, be made a rule of court. 

   Then by rule 274 the Court has power to enlarge the time appointed by the rules for doing any act.  On the 20th inst., when the application for the extension of the time for objecting to the award was made, the reference to arbitration had not been made a rule of Court; but, on the 24th instant, the reference to arbitration was made a rule of Court; and the question is, whether the defect in the application, by reason of the reference to arbitration not having been made a rule of Court when  such application was first made, was cured by the subsequent order of the 24th instant, making the reference a rule of Court while the application  was pending.

   I am of opinion that the original defect was not cured by such subsequent order.  The making the reference a rule of Court is, according to the rules by which this Court is governed, the foundation upon which an application under rule 225 should be based.  If, then, the Court has not jurisdiction to entertain an application under rule 226, in consequence of rule 217 not having been previously complied with, it cannot under rule 274 enlarge the time for making such application under the first-named of these three rules.

   I think, therefore, the motion must be refused, and with costs.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School