PART II. CH. III. S. 3. Revoking an order of Nisi Prius. Notice of revocation to arbitrator. Revocation breach of submission. Submission, when made rule of court after revocation. Action for damages for revocation. There is, however, one decided authority that a parol prohibition to the arbitrator's further proceeding in the reference was a full repeal of the authority conferred on him by the arbitration bond (i). To revoke a Nisi Prius order of reference, while it was revocable by act of a party, a writing not under seal was sufficient (). From the marginal note of the case last cited (7), it would seem that the courts were of opinion that a revocation signed by the attorney acting for a party was sufficient. In order, however, to make a revocation by act of party complete, notice of it must be given to the arbitrator, or his authority will not be determined; but when the revocation is by marriage or death, no notice of the revocation is necessary (m). The act of revocation, however, we have previously (») seen, is a breach of the submission. The revocation of the submission after it had been made a rule of court was a contempt, and an attachment would issue (o), or an action would lie (p), against the party revoking. A submission under the statute the 9 & 10 W. III. c. 15, could not properly have been made a rule of court after revocation, and if it were, it would have been set aside; for when the submission was gone, there was nothing to make a rule of court; though a submission by judge's order not being dependent on the statute might have been made a rule after revocation to enforce the other terms of the order (q). Where the submission was one that could not be made a rule of court, the only remedy was by action for breach of the bond (), covenant (s), or agreement (t), to refer, for the (i) Barker v. Lees, 2 Keb. 64. (1) R. v. Bardell, 5 A. & E. 619. (n) See P. I. ch. 3, s. 8, p. 106, as to enforcing the submission. (0) Haggett v. Welsh, 1 Sim. revocation is a breach of the promise to "perform" the award, although the usual words "to stand to and abide by the award are omitted (u). The costs already incurred in the reference might be recovered as damages. In such an action it was sufficient to allege that the defendant by a certain. deed revoked the arbitrator's authority. The pleadings need not have averred any notice to the arbitrator, as that was implied in the word revoke, since the revocation was not complete without notice (). PART II. CH. III. S. 3. arbitrator or The defendant might plead in answer that he was justified Justification in revoking the submission, and if he could show that he had may be pleaded. good grounds for the proceeding, judgment would have been given in his favour. If he had discovered that the arbitrator Misconduct of or the opposite party had grossly misconducted themselves, party. that would amount to a defence, for it would be hard that he should have had to pay them damages for depriving them of a power which they had abused (y). So when the bankruptcy Bankruptcy of opponent. of a party to the submission will prevent the other party from reaping any benefit from the award, supposing it to be made. in his favour, that will generally excuse the latter for revoking the authority and incurring no further expense in the reference (z). So in action of covenant against a woman Marriage by and her husband, alleging a covenant of the female defendant, when sole, to abide by and perform an award, and laying as a breach that the female defendant had revoked the authority of the arbitrators by marriage, it is open for the defendants to plead that the marriage took place with the consent of the plaintiff (a). consent. restrain arbitrator. There is, it seems, no instance of the courts of law inter- Court will not fering to restrain an arbitrator from making an award after revocation. Though the award might be a nullity, the courts of law disclaimed the power of preventing him making it (b). II. Revocation by leave of the court.]—The arbitrary power No revocation (u) Warburton v. Storr, 4 B. & C. 103; Brown v. Tanner, 1 C. & P. 651. (x) Marsh v. Bulteel, 5 B. & A. 507; Vynior's case, 8 Rep. 81 b. (y) Brown v. Tanner, 1 C. & P. 651; Stewart v. Williamson, 2 M. & P. 765. (z) Marsh v. Wood, 9 B. & C. 659. (a) Charnley v. Winstanley, 5 East, 266. (b) R. v. Bardell, 5 A. & E. 619. without leave of court, &c. PART II. CH. III. S. 3. c. 42, s. 39. of revocation having been much abused, the legislature provided by the 3 & 4 W. IV. c. 42, s. 39, "that the power and 3 & 4 W. IV. authority of any arbitrator or umpire appointed by or in pursuance of any rule of court or judge's order, or order of Nisi Prius, in any action now brought, or which shall be hereafter brought, or by or in pursuance of any submission to reference containing an agreement that such submission shall be made a rule of any of his Majesty's courts of record, shall not be revocable by any party to such reference without the leave of the court by which such rule or order shall be made, or which shall be mentioned in such submission, or by leave of a judge; and the arbitrator or umpire shall and may and is hereby required to proceed with the reference, notwithstanding any such revocation, and to make such. award, although the person making such revocation shall not afterwards attend the reference," &c. (c). Arbitration Act, 1889 c. 49), submission irrevocable This section is now repealed by the Arbitration Act, (52 & 53 Vict. 1889, but all that the new act substitutes for its plain enactments is by sect. 1, that a submission on a reference by consent out of court shall be irrevocable, except by leave of without leave. the court or a judge, unless a contrary intention is expressed therein. Nothing is directly enacted as to references by consent by order of court being irrevocable: but when the order is made under the powers of sect. 14 as to the cause only and not as to the cause and all matters in difference which cannot be referred under sect. 14, but only under the common law power of the court, it may perhaps be held that the order is sufficient to prevent parties withdrawing their consent (d). Right to re unless sub mission To deprive a party of his common law power of revocation, voke formerly the parties must either have consented to a rule of court, judge's order, or order of Nisi Prius in an action, or the submission must have contained an agreement for making it a rule of "one of his Majesty's courts of record:" this latter being a reference to the statute 9 & 10 W. III. c. 15 (e). within statute of W. IV. (c) The Irish Act (3 & 4 Vict. c. 103), s. 63, has like provisions. (d) Darlington Wagon, &c. Co. v. Harding, (1891) 1 Q. B. 245. (e) R. v. Bardell, 5 A. & E. 619, S. C. sub nom. R. v. Shillibeer, 5 Dowl. 238; Woodcroft v. Jones, In re, 9 Dowl. 538, PART II. CH. III. S. 3. Vice-Chancellor Shadwell, long before the Judicature Acts, stated that the provisions respecting arbitration in the act of W. IV. applied only to courts of law (f). If this were so, Not apply to submission by a submission by order of equity made in a suit remained order of revocable. But a submission by agreement made an order equity made of Chancery under the statute of W. III. seems to have been within the pale of the enactment (g). in a suit. ment. As the whole section of the statute of W. IV. was framed Or to indictto apply to civil actions only, it did not affect the right to revoke, where an indictment and all matters in difference had been referred by order of Nisi Prius (h). Common Law 17 & 18 Vict. c. 125. Where a submission by agreement in writing did not con- Effect of tain a clause for making it a rule of court, the submission remained revocable at the will of either party until the award Act, 1854, the was made, notwithstanding that the agreement might have been made a rule of court under the 17th section of the Common Law Procedure Act (i). A submission was held. to have contained a clause that it should be made a rule of court where it stated that the provisions of the Common Law Procedure Act were embodied in it (j). The statute 3 & 4 W. IV. c. 42, s. 39, did not apply until Arbitrator's the submission was complete, and the arbitrators had authority incomplete. authority to act unclogged by any condition precedent. For if each of two persons named an arbitrator, but stipulated in their submission that the two arbitrators should select an umpire before they commenced proceedings, the submission seems to have been revocable until the condition precedent of fixing upon an umpire had been performed (k). The application for leave to revoke the submission must Court no have been made before the award was executed (7). power after award made. It would not be granted ex parte. If it were so granted Nor on ex inadvertently, it seems it would be set aside as a nullity, parte appli (f) Hall v. Ellis, 9 Sim. 530. (g) Warner v. Powell, L. R. 3 Eq. Cas. 261. (h) R. v. Bardell, 5 A. & E. 619, S. C. sub nom. R. v. Shillibeer, 5 Dowl. 238; Woodcroft v. Jones, In re, 9 Dowl. 538; R. v. Hardey, 14 Q. B. 529. (i) Mills v. Bayley, 11 W. R. 598, S. C. 2 H. & C. 36; Drury v. Lyne, 38 L. J. Ch. 278; Thomp- (j) Mitchell v. Governor of (k) Bright v. Durnell, 4 Dowl. 756. (1) Phipps v. Ingram, 3 Dowl. 669. PART II. CH. III. S. 3. When leave to revoke will be granted. Matter pending in Chancery. Arbitration contract not revocable. for each party, according to the construction put upon the statute, was entitled to be heard before any order for leave to revoke was made either by a judge or by the court (m). In order to prevent a recurrence of the old evils, it was intimated from the bench that the discretion of the court in allowing a revocation under the Statute of W. IV., would be exercised in the most sparing and cautious manner (»). The inconvenience of having the same matters pending before the two tribunals of Chancery and of the arbitrator at the same time, was held an insufficient ground for revocation, when the inconvenience was caused by the act of the party who applied for leave to revoke, in filing a bill in Chancery respecting the subject of the arbitration, and who did not suggest that there had been any misconduct on the part of the opposite party or of the arbitrator (0). The tenants of two adjoining houses referred an action respecting a party wall, and also a Chancery suit. It was held, that the refusal of the landlord of both the tenants, who was also a party to the Chancery suit, to become a party to the reference was no ground for allowing a revocation (p). Where a contract for the purchase of wheat contained a clause part of clause that if any disputes arose they should be referred to two corn factors, and a question of law arose, the court refused to allow a revocation, saying that the arbitration clause formed part of the consideration for the contract of the parties which the court could not alter, and was meant to cover questions of law as well as of fact (g). We have previously seen that an arbitration clause is not revocable at the will of a party (r). Arbitrator admitting evidence objected to. An order of reference gave the arbitrator the same power as a judge at Nisi Prius to decide on the admissibility of evidence, and to reserve points of law for the opinion of the court. It was also expressly stipulated by the defendant that he should retain the power of objecting to the admission |