
    CONSTITUTIONAL COURT,
    CHARLESTON,
    MAY, 1805.
    Penman & Co. v. Gardner & Co.
    In an action of debt on an arbitration bond, defendant pleaded no award;'to which the plaintiff replied, that the parties h. d, by a subsequent agreement in writing, sealed and indorsed on the bond, altered the condition-thereof, and extended the time for making an award; and then set forth an award, within the- enlarged; time. Defendant demurred. Adjudged for the plaintiff. The indorsement, signed and sealed, was considered as part of the same bond and condition; and that modified and established the true meaning of the contract, according to the ultimate . agreement of the parties. A deliverv, after indorsement, was presumed a new contract.
    This was an action of debt, on an arbitration bond'. Defendant craved' oyer of the bond and condition ; set forth the condition; and pleaded no award made. The condition Was in the usual form", and required an award to be made in writing, and delivered on or before the 4th day of March, then next, ensuing. The plaintiff replied, and' stated that the parties had mutually agreed to extend the' time» withiu which, the arbitrators, by the condition of the bond,were to make' their award, and had accordingly, by endorsements-written on the bond, and signed and sealed by them, extended the said time, until the day of ; and, that within such ex. tended time, an award' was’ made ; and set forth the award in full. To this replication, ih<>re was a special demurrer, stating for cause of demurrer, that the replication doth not set forth an award, made and delivered on or before the 4th of March, according to the condition of the bond. Plaintiff joined in demurrer; and the question of law was decided by Grimes. J., in Charleston district court, m favor of the defendants. The motion in this court was, to set aside the decision of the district court, and to obtain judgment for the plaint®'It was argued by Parker, for the plaintiff, and W. Drayton, for the defendant, before Waties. Bay, Brevard, and Wilds, J ustices.
    Parker
    cited 1 Esp. D 221. Parties may enlarge the time, substitute one day for another, which is only altering the contract, but not m-iking a new one. Here the same contract was continued.
    "W. Drayton.
    The action is on the bond, a copy of which is filed. The indorsements are not in issue. The plea is, that there was no award, according to the condition. The plaintiff was not at liberty to abandoned his ground, and fly off to other documents to support his action. His replication is a departure in pleading. The indorsements rpake a new contract, and the declaration should have been founded on them. 6 Mod. 237. 3 Bl. Com. 311 3 Lev. 205. The day was material Kvd on Awards, 193, 214- 3 T. R. 592, in the notes. Brown v. Goodman, precisely in point. Vide 3 vol. 66. • 3 Johns. 528.
   The court

were of opinion, that the indorsements on the bond, enlarging the time specified in the condition, and having reference particularly to the condition, without which they cannot bd understood, must be taken as part of the condition, and as modifying, in part, the original contract, or rath pi continuing it.; and, there tore, that the replication was not a departure in pleadmg, ana that the ex. tended time might be consistently set iorth in the replication, as the trae condition substituted in place of the original contract, as the defendant had not set forth the indorsements in his plea.

The indorsements were under seal, and made previously ¡to the 4th of March, in the condition mentioned, it was an action on the bond, after the condition was altered by specialty, and the old contract was done away, and redelivery must have been made. The indorsements part of the contract.

Motion granted.

Note. See 2 Hayw. 111. Bryer’s Executors v. Stewart. Debt. Plea. Non est factum, and null agard fait. Plaintiff replied on award, and set it forth; made before 8th May, after the time limited. Demurrer and joinder

Per cur. The deed in defendant’s bands, with the indorsement on it, proves that the condition was altered by the parties, and a new delivery; and this the true condition. See 6 Mod 237. 3 T. R 592. Cowp See 2 Hayw. 99. The indorsement must appear to be made bsfore the delivery of the bond, in pleading.  