#### Brookins vs. Shumway and another.

Where the award of arbitrators is not made within the time limited in the arbitration bond, a surety on such bond who has not consented to an enlargement of the time, is discharged from his liability.

But a person who has signed the bond either as surety or as guardian of an infant party to the arbitration, remains liable *upon the bond*if the time for the award has been enlarged with his consent.

The complaint alleged that both of the defendants, H. and S., signed the arbitration bond as sureties; but it appeared from the conditions of the bond, as set forth in the complaint, that S. executed it as guardian of an infant party to the arbitration. *Sdd,*that a judgment against S. (upon failure to answer after demurrer overruled) would not be reversed for such defect in the pleading, as it did not affect his substantial rights.

APPEAL from tbe Circuit Court for *Milwaulcee*County.

Tbe complaint in this action alleges that tbe defendants, as sureties for Cross Twinam and James Twinam, on &c., executed to one Halstead, tbe plaintiff’s assignor, a bond in tbe sum of $500. Tbe condition of tbe bond was that said “ Cross Twinam, James Twinam and *P. J.*Shumway, tbeir guardian, and *Oliver Harwood,*tbeir beirs, ■ executors and administrators, on tbe part of Cross Twinam individually and Cross and *99James Twinam,” should perform tbe award of certain arbitrators appointed by consent and on tbe part and behalf of tbe above bounden Cross Twinam, James Twinam and *P. J. Shum-way,*their guardian, as also by consent and on tbe part of said Halstead, to arbitrate certain differences between said Halstead and Cross Twinam individually, and also certain differences between Halstead and Cross and James Twinam (said award to be made in writing on or before the 1st of October, 1857), then tbe obligation should be void. On this bond was tbe following indorsement: “ In consequence of one of tbe arbitrators being absent, it is hereby agreed between the parties to the above bond, that *the*time specified therein for the arbitrators to render their award, is hereby changed so that they may render said award within ten days after hearing the testimony in said case. September 28, 1857.” Signed by Cross Twinam, James Twinam, and *“ P. J. Shumway,*Guardian.” The complaint then alleges that said arbitrators met as in said bond and indorsement required, on the 28th of October, 1857, and made their award in writing, &c., in favor of said Halstead and against Cross and James Twinam, &c. ; that _ on said award judgment was entered up in the circuit court for Milwaukee county for $177.92; that the Twinams had failed and still failed and refused to perform the award; that an execution issued upon said judgment against them and *P. J.*Shumway, their guardian, was returned entirely unsatisfied; that the defendants, *Shumway*and *Harwood,*though often requested, had not performed the condition of the bond, or paid the sum mentioned therein or any part thereof; whereupon the plaintiff demands judgment against them for $177.92, with interest, &c.

A demurrer to the complaint was overruled, with leave to answer. An answer was filed without any affidavit of merits, which the court treated as a nullity; and the plaintiff had his damages assessed as in case of default. From this judgment the defendants appealed.

*100*Palmer & Sharpstdn,*for appellants:

1. *Shvmway*is described in tbe bond, as set forth in tbe complaint, as tbe guardian and not as tbe surety of tbe Twi-nams. If be incurred any liability it was as tbeir guardian. By bis submission of tbeir differences to arbitrament they would be bound, but they could not bind themselves. Caldwell on Arbitration, 24, and cases there cited; *Baker v. Lovett,*6 Mass., 78. 2. It appears that tbe award was not made within tbe time specified in tbe bond, and that *Harwood*did not consent to an enlargement of tbe time, which discharged him from any further liability on tbe bond. 8. Tbe time within which tbe award should be made having been enlarged, no action will lie upon tbe bond, even if all tbe parties to it, by an agreement under their bands and seals, consented that it might be enlarged, and indorsed it upon tbe bond, and tbe award was made within such enlarged time. *Freeman v. Adams,*9 Johns., 115 ; *Peters v. Johnson,*8 Har. & J., 291. If a contract be subsequently changed, no action will lie upon tbe original contract itself. *Philips v. Bose,*8 Johns., 392. Tbe remedy of tbe respondent was upon tbe submission implied in tbe agreement to enlarge the time, and upon tbe bond itself.

*G. S. L. Starks*and *G. W*Lahin, for respondent.

*By the Court,*

DixoN, C. J.

*Harwood,*being a mere surety, was absolved from all obligation upon tbe bond by tbe extension of tbe time in which, tbe arbitrators were to make and publish tbeir award. Of this we think there can be no doubt. He was not a party to tbe stipulation extending tbe time, nor does it appear that be in any manner assented to it. His co-obligors could stipulate for themselves but not for him. Tbe award was not in 'fact made until sometime after tbe day fixed in tbe bond. Tbe complaint, therefore, shows no cause of action against him, and the judgment must be so far reversed. *Thurber v. Jones,*14 Wis., 16.

*101But as to Shumway, wbo did sign tbe stipulation, we think tbe judgment must stand. Some question is made as to bis relation to tbe other parties to tbe obligation. Tbe complaint alleges that both be and *Harwood*executed tbe bond as sureties for tbe Twinams, but by tbe bond, tbe conditions of wbicb are set out in tbe complaint, it appears that be executed it as guardian of tbe Twinams, and that *Harwood*alone was surety. This, however, is not a matter wbicb affects tbe validity of tbe judgment againt him; for whatever were bis relations to the other parties, be is still bound by tbe stipulation. We cannot reverse tbe judgment for any defect in tbe pleadings not affecting his substantial rights. R. S., ch. 125, sec. 40.

It is also urged, tbe time in wbicb the award should have been made having been enlarged, that no action will lie upon tbe bond, but that tbe remedy of the plaintiff was upon tbe submission implied in tbe agreement to enlarge tbe time. In *Evans v. Thompson,*5 East, 189, it was determined by tbe King’s Bench, after full argument and upon conferring with the judges of tbe other courts of Westminster Hall, that an agreement in general terms indorsed on a submission bond, as in this case, to enlarge tbe time for making tbe award, virtually included all tbe terms of the original submission, to which it bad reference, as if tbe same bad been formally set forth and repeated therein, and of course included amongst tbe rest tbe agreement contained in tbe condition of tbe bond, that tbe submission should be. made a rule of court. We are quite satisfied with tbe reasoning and authority of that case, from wbicb it follows that tbe plaintiff was not bound to resort to his action upon tbe submission implied in tbe agreement to enlarge tbe time, but that he might sue directly upon the bond as carried along and incorporated in that agreement.

The judgment must therefore be reversed as to tbe defendant Harwood, and affirmed as to the defendant *Shumway.*