Common Pleas. TUTE v. MATTHEW. T. T. 1866. pleas.-[Having read the pleadings.]-It is unnecessary to go at length through all the arguments which have been put forward upon the first part of the case, as the last point raised by Mr. Sidneythat with reference to the person to whom the warrant was issued— seems to us quite conclusive against the defendant. It is quite plain that, under the statute, the only authority given to the Magistrate is to give a warrant to the officer who made the information; so that in the present case, the Magistrate should have given the warrant (if at all) to the one who had made the information. It appears, further, that mere illicit whiskey, in a condition to be consumed is not the thing for which the statute provides a search. Both of these conclusions follow from the words of the 17th section. The words are these:-"If any officers of excise shall know or have 68 cause to suspect that any private or concealed still, or any back, "vat, cooler, or other vessel used in illicit distillation, or any spirits, "low wines, or wort or wash, or other materials preparing or pre"pared for distillation, are set up or kept in any house or place, or "that any illegally made malt, or any corn or grain making into "malt, is kept or deposited in any house or place, and shall make "oath thereof before a Justice of the county," &c., "where such "officer shall suspect the same to be set up and kept," &c.; "setting "forth the ground of such suspicion, it shall be lawful for the Justice or Justices before whom such oath shall be made, if he or they "shall judge it reasonable, by special warrant under his or their "hands and seals, to authorise and empower such officer, by day or "by night, to break open the doors, or any part of such house or place where he or they shall so know or suspect that any private or "concealed still, back, vat,” &c., “and to enter into such house or "place," &c. So that it appears to us that this section does not at all apply to the case of what is called "potteen," in the finished stage, but that it applies only to whiskey in the process of manufacture, and therefore that the plea is bad on that ground. As to the other pleas, we entertained at first some little doubt. To the two counts in the summons and plaint the defendant has pleaded the privilege of getting a month's notice of action, and that the action has not commenced within three months. It is quite clear Common Pleas TUTE V. that the pleas sufficiently negative malice, to bring the case within T. T. 1866. the class of cases to which such protective statutes are applicable. The plea substantially amounts to this:-" So far as you charge me “with ‘aiding and assisting,' I am entitled to this notice under the MATTHEW. "52nd section of the statute of William, and also to the three months' "bar; and so far as you charge me with breaking and entering, "what I did was but part of my duty as constable, such duty having "been imposed upon the Excise by the 7 & 8 G. 4, c. 53, ss. 114, "115, and 1 & 2 W. 4, c. 55, and transferred from the Excise to the "constabulary by the 20 & 21 Vic., c. 40; and therefore, as such "constable, I am entitled to the same protection." We have, therefore, come to the conclusion that these pleas are well founded. With regard to the venue plea, we do not think it good; it was not indeed much relied on at the Bar; and we do not entertain any doubt but that the Common Law Procedure Act has made the venue transitory, even without any direct repeal of the provision in the former Act. We therefore allow the demurrer to the fourth and seventh defences, and over-rule the demurrer to the fifth and sixth. HEALY v. HEALY.* show In this case a conditional order to confirm an award having been H. T. 1866. After the ser- tice given by the 19 & 20 Vic., c. 113, s. 16, requiring the opposite party to appoint a new arbitrator as a condition precedent to the appointment of a sole arbitrator, seven clear days must elapse, upon any of which the opposite party might appoint an arbitrator; and, therefore, the time that intervened between the expiration of a reference and the subsequent enlargement of the time for making the award by order of a Judge, cannot be counted in the seven days. Quare. Whether the refusal of an arbitrator, after having heard a portion of the case, to act any further in the matter, constitutes such a "disagreement," within the meaning of the Common Law Procedure Act 1856, as would authorise the interposition of the umpire ? * Coram MONAHAN, C. J., CHRISTIAN and O'HAGAN, JJ. 82 L HEALY บ. HEALY. H. T. 1866. matters being in dispute between the plaintiff and the defendant, Common Pleas. an action had been brought and prosecuted until ripe for hearing at the Summer Assizes for 1865, when, on the eve of trial, an agreement was entered into between the plaintiff and the defendant to leave the case to arbitration. A consent was then prepared and signed by the respective attorneys for the parties, referring the settlement of the matters in dispute between them to two gentlemen, one of whom was nominated by the plaintiff, and the other by the defendant-viz., Mr. B. Purser and Mr. J. W. Pim. It was pro-" vided that the arbitrators were to have power to call in an umpire in case of their disagreeing; and that the award was to be made in writing, on or before the 2nd of August, unless the arbitrators should think fit to extend the time for doing so. This consent was made a rule of Court on the 22nd of July. On the 26th of the same month the arbitrators nominated a Mr. James Marks to act as umpire. The arbitrators and umpire then entered upon the arbitration, and from time to time adjourned the same by writing under their hands, the last occasion being the 21st of August, and the adjournment being to the 29th then instant. On the 22nd of August Mr. Pim, the arbitrator nominated by the defendant, wrote the following letter to the plaintiff : "Dear Sir-Since yesterday, I have considered about the arbi"tration of Healy's, and have come to the conclusion of not again "meeting or having anything more to do in this case. Yours very "truly, "JOSEPH W. PIM." It appeared, from an affidavit made by Mr. Pim, that he was induced to withdraw from the arbitration by the nature of the evidence adduced on both sides, and the difficulty arising out of the points of law connected therewith. On the 29th of August the plaintiff, by notice in pursuance of the statute 19 & 20 Vic., c. 113, s. 16, called upon defendant to appoint an arbitrator in Mr. Pim's place within seven days. On the 31st of August the plaintiff's attorney caused a notice to be served on the other party, of an intended application to a Judge in Chamber, that the time for making the award should be enlarged; and on the 12th of September Mr. Justice O'HAGAN made an order HEALY v. that "The time for making the award under the order of reference H. T. 1866. Common Pleas. "in this cause, bearing date the 22nd of July last, be enlarged "until the 20th of October next, on the ground that J. W. Pim, one "of the arbitrators in the said order named, did, at the time and "under the circumstances in said affidavit mentioned, decline to "act further as such arbitrator." The defendant not having appointed any new arbitrator, the plaintiff, on the 15th of September, by writing under his hand, appointed Mr. B. Purser to act as sole arbitrator; and on the 16th of September served the defendant with notice of having done so. On the 17th of October Mr. Purser, as sole arbitrator, made his award in favour of the plaintiff, and directed that the defendant should pay to the plaintiff the costs of the cause, the reference, and the award. Counsel for the defendant now appeared to show cause against the conditional order obtained on a former day, that the said award be confirmed. Sidney, and J. W. Harris, for the defendant. The award is bad for several reasons: 1. Because Mr. Justice O'HAGAN had no jurisdiction to make the order for the enlargement of the time for making the award after the time to which it had been extended by the arbitrator had expired: Doe d. Jones v. Powell (a). 2. Because seven days had not, within the meaning of the 16th section of the Common Law Procedure Act 1856, elapsed from the service of the notice, inasmuch as the seven-day notice was inoperative from the 29th of August to the 12th of September, when the time for making the award was enlarged, and that period cannot therefore count; during all that time the defendant was not in a position to appoint a substitute for Mr. Pim. 3. The award made by the sole arbitrator was wholly void, because such a “disagreement" had occurred as called the umpire into action, and he was the only person whose award would be good : Russell on Arbitration, 3rd ed., p. 225; Cudliff v. Walters (b); In re Tunno v. Bird (c). HEALY. H. T. 1866. Common Pleas. HEALY V. HEALY. Chatterton, and J. B. Murphy, contra. 1. The suggestion that Mr. Justice O'HAGAN had not jurisdiction to make the order enlarging the time, when he did, is met by the case of Ward v. Secretary of State (a), following Browne v. Collyer (b). 2. The moment the order was made enlarging the time for making the award, the immediate effect was to give a vitality to the days which had elapsed since the service of the notice, such as they did not before possess. It is to be presumed that the defendant knew that the Court would make an order having a retrospective operation, and he was not therefore damnified by the course adopted by us. The jurisdiction of the arbitrator was not entirely gone, but only sub modo: omnis ratihabitio retrotrahitur. Even supposing that an act done at the time by the arbitrator would not have been binding, it does not follow that an act done by one of the parties themselves would also be ineffectual: Browne v. Collyer. 3. In order to let in the authority of the umpire, the "disagreement" must be of a distinct and substantial character: see 19 & 20 Vic., c. 113, ss. 16, 17, and 18. A "disagreement" and a "refusal to act" are quite different things. MONAHAN, C. J. In this case we have come to the conclusion that the award cannot stand. The facts of the case are shortly thus:-Certain matters in dispute between the parties had been referred to two gentlemen, named by the plaintiff and defendant respectively, with power to call in an umpire. The arbitrators had duly entered upon their office, had named an umpire, had held several meetings, had adjourned from time to time, and, on the last occasion, had adjourned to the 29th of August last. On the 22nd of August the arbitrator appointed by the defendant wrote to the other, stating that he would have nothing more to do with the case. On the 29th the plaintiff served notice upon the defendant, calling upon him to appoint a new arbitrator; and on the 31st of the same month served him with notice of a motion to enlarge the time for making (a) 32 Law Jour., N. S., Q. B. 53. (b) 20 Law Jour., N. S., Q. B. 426. |