No. 1. Vynior's Case, 8 Co. Rep. 82 a.

cannot by his act make such authority, power, or warrant not countermandable, which is by the law and of its own nature

should, under certain circumstances, pay to the other such costs as the Court should think reasonable and just; it was held that such order might be made a rule of Court after a revocation, in order to enable the Court to dispose of the question of costs. Aston v. George, 2 B. and Ald. 395; S. C. 1 Chitty, 200, for a judge's order may be made a rule of Court, without reference to any statute, and so differs from a submission by deed, which can alone be made a rule of Court, by virtue of the stat. 9 & 10 W. III. c. 15; and such submission by deed being revoked, there remains nothing to be made a rule of Court, ib. And accordingly in King v. Joseph, 5 Taunt. 452, where the submission was by deed, and was made a rule of Court after the revocation of the arbitrator's authority, the Court set aside the rule for making the submission a rule of Court.

If there be a submission by a feme sole, and she marry before an award made, it will be a revocation, Com. Dig. Arbit. D. 5; Anon., W. Jones, 388; Charnley v. Winstanley, 5 East, 266, and the cases cited there; for her marriage is in law a civil death of all her rights, Andrews v. Palmer, 4 B. and Ald. 252, and such marriage will be a breach of the agreement to submit. Charnley v. Winstanley, ub. sup.

So also the death of either party to a submission before award made is a revocation of the arbitrator's authority, whether the reference is by deed, rule of Court, or whether under an order of Nisi Prius, and a verdict taken subject to the award. Rhodes v. Hargh, 2 B. and C. 345; S. C. 3 Dow. and Ryl. 608, and the cases cited there, Blundell v. Brettargh, 17 Ves. 232. And where two of the plaintiffs in an action were guardians and trustees of an infant tenant for life, and an award was made against them in their characters of trustees, and respecting the infant's property, before which the infant had died, the Court set aside the award as against the trustees. Bristow, and Others v. Binns, 3 Dow. and Ryl. 184. It is now usual to provide in an order of Nisi Prius, that the death of either

party shall not operate as a revocation, but that the award shall be delivered to their personal representatives, according to the suggestion of Abbott, C. J., in Cooper v. Johnson, 2 B. and Ald. 395. Where a verdict was taken subject to the award of an arbitrator, and by the order of reference, the award was to be delivered to the parties; or, if they or either of them were dead before the making of the award to their respective personal representatives, on or before a given day, with liberty to the arbitrator to enlarge the time for making his award : the plaintiff died before the award was made; and after his death, the arbitrator enlarged the time for making the award. The Court held, that the award made within the enlarged time was good. Tyler v. Jones, 3 B. and C. 144; 4 Dow, and Ryl. 740. And in Dowse v. Coxe, 3 Bing. 20, the Court held that where there was a clause in the reference, that it should not abate in case either of the parties should die, an award made after the death of one of the parties was good.

It seems that the death of one of several parties on the same side, to a joint and several submission, is not a revocation as to the others. Therefore where differences arose between the owners of a ship and the freighters (the latter having distinct interests in the cargo), and it was agreed between them, that the matters in difference should be referred to arbitration; it was held that the death of one of the freighters before award made only affected the award as to him, and was no revocation as to the others. Per 3 Js. MSS. Hil. Term, 1820, cited in the Addenda, 2 Archb. Practice, p. 24; and where the interest is joint, and the cause of action survives, an award made after the death of one, and against the survivors, might perhaps be good. Edmunds v. Cox, 2 Chitty, 435. But it would be bad if made not only against the survivors, but also directing the executors of the deceased to give a release, ib. and vid. Bristow and Others v. Binns, 3 Dow. and Ryl. 184.

Where after judgment by nil dicit, in an action of ejectment to recover posses

countermandable; as if I make a letter of attorney to make livery or to sue an action, &c. in my name; or if I assign auditors to take an account; or if I make one my factor; or if I submit myself to an arbitrament; although these are made by express words irrevocable, or that I grant or am bound that all these shall stand irrevocably, yet they may be revoked: so if I make my testament and last will irrevocable, yet I may revoke it, for my act or my words cannot alter the judgment of the law to make that irrevocable, which is of its own nature revocable. And therefore (where it is said in 5 Ed. IV. 3 b, if I am bound to stand to the award which I. S. shall make, I could not discharge that arbitrament, because I am bound to stand to his award, but if it be without obligation it is otherwise) it was there resolved, that, in both cases the authority of the arbitrator may be revoked; but then in the

sion of a mill, the lessor of the plaintiff and the defendant, by bond, submitted the right of the mill to arbitration, and then the lessor of the plaintiff sued out a habere facias possessionem, the Court was of opinion that this act, by taking away the subject matter of the reference, had taken away the possibility of making the arbitration. Green v. Taylor, T. Jones,

134.

As bankruptcy does not put an end to a suit which the bankrupt has instituted, so therefore it cannot put an end to an arbitration founded on such suit. Andrews v. Palmer, 4 B. and Ald. 250, and vid. Snook v. Hellyer, Chit. Rep. 43.

The effect of a revocation of the submission is, to determine the arbitrator's power entirely, and any award made afterwards is a mere nullity. Milne v. Gratrix, Marsh v. Bulteel, 5 B. and Ald. 507; 1 Dow. and Ryl. 106; 2 Chit. 317. And in Clapham v. Higham, ub. sup. where a cause was referred under a judge's order, the Court set aside an award, where the arbitrator's authority had been revoked, and notice thereof given to him before the judge's order had been made a rule of Court. But in King v. Joseph, where the submission was by deed, the Court under similar circumstances, although they set aside a rule that had been obtained for making the submission a rule of Court, refused to set aside the award; Gibbs, C. J., assigning as a reason, that it would de

prive the other party of his action. But as the award would be nullity, an action would be brought, not for non-performance of the award, but for not submitting to arbitration according to the agreement. Indeed if the declaration in an action, founded upon the deed of reference, should under such circumstances aver the making an award, and allege as a breach the non-performance of it; the revocation and notice of it to the arbitrator would be a good plea in bar. Marsh v. Bulteel, ub. sup. Although the reasoning of C. J. Gibbs is not satisfactory, yet the decision in this last case seems more reconcilable to principle than that in Clapham v. Higham; for it is difficult to see what jurisdiction the Court could have over the award, except it was given to them by making the submission a rule of Court. In the case of a deed, by the revocation the submission is gone, and consequently there is nothing to make a rule of Court. So also it would seem that a revocation, made before a judge's order is made a rule of Court, is also a revocation of the submission; and therefore the submission being gone, there remains nothing to make a rule of Court, which can give them power over any act done, by virtue of the submission. Although if the order contain something ulterior the submission, for the purpose of enforcing that part of the order, it may be made a rule of Court, supra, and vid. Aston v. George, ub. sup.

one case he shall forfeit his bond, and in the other he shall lose nothing; for, ex nuda submissione non oritur actio: and there with agrees Brooke in abridging the said book of 5 Ed. IV. 3 b, and so the book of 5 Ed. IV. is well explained. Vide 21 H. VI. 30 a. 28, 29; H. VI. 6 b; 49 Ed. III. 9 a; 18 Ed. IV. 9; 8 Ed. IV. 10, 2. It was resolved, that the plaintiff need not aver, that the said William Rugge had notice of the countermand, for that is implied in these words, revocavit et abrogavit omnem authoritatem, &c. for without notice it is no revocation or abrogation of the authority; and therefore if there was no notice, then the defendant might take issue, quod* non revocavit, &c. and if there [* 82 b.] was no notice, it should be found for the defendant; as if a man pleads, quod feoffavit, dedit, or demisit pro termino vitæ, it implies livery, for without livery it is no feoffment, gift, or demise; but there is a difference when two things are requisite to the performance of an act, and both things are to be done by one and the same party, as in the case of feoffment, gift, demise, revocation, countermand, &c. And when two things are requisite to be performed by several persons; as of a grant of a reversion, attornment is not implied in it, and yet without attornment the grant hath not perfection, but forasmuch as the grant is made by one, and the attornment is to be made by another, it is not implied in the pleading of the grant of one; but in the other case both things are to be done by one and the same person, and that makes the difference. And therewith agrees 21 H. VI. 30 a, where W. Bridges brought an action of debt for £200 on an arbitrament against William Bentley; the defendant pleaded that before any judgment or award made by the arbitrators, the said William Bentley discharged the said arbitrators at Coventry, in the county of Warwick; and it was held a good bar, and yet he did not aver any notice to be given.. So it is adjudged in 28 H. VI. 6 b; 6 H. VII. 10, &c.

1 But an action of assumpsit will lie in case of a breach for revoking the submission, although the submission is not under seal. Newgate v. Degelder, 2 Keb. 10, 20, 24; 1 Sid. 281. So also where an award is made for the performance of a collateral act, where the submission was without deed, the party may have assumpsit to compel performance, although formerly the contrary was held. Vid. n. 5. Hodsden v. Harridge, 2 Saund. 62 a.

2 Where the revocation is by express act of the party, notice must be given to the arbitrator: but where the revocation is by marriage or death, no notice of the revocation is necessary, Roll. Ab. Auth. E. pl. 4. Blundell v. Brettargh, 17 Ves. 232, and vid. acc. with Vynior's case, that there need not be an averment in the pleadings, that the arbitrator had notice. Marsh v. Bulteel, 5 B. & Ald. 507; 1 Dow. & Ryl. 106; 2 Chit. 317.

No. 1. Vynior's Case, 8 Co. Rep. 82 b., 83 a.

3. It was resolved, that by this countermand or revocation of the power of the arbitrator, the obligee shall take benefit of the bond, and that for two reasons. 1. Because he has broken the words of the condition, which are "that he should stand to, and abide, &c., the rule, order," &c., and when he countermands the authority of the arbitrator, "he doth not stand to and abide," &c., which words were put in such conditions, to the intent that there should be no countermand, but that an end should be made, by the arbitrator, of the controversy, and that the power of the arbitrator should continue till he had made an award; and when the award is made, then there are words to compel the parties to perform it, scil. observe, perform, fulfil, and keep the rule, order, &c., and this form was invented by prudent antiquity; and it is good to follow in such cases the ancient forms and precedents, which are full of knowledge and wisdom; and with this resolution agrees the said book of 5 Ed. IV. 3 b, which is to be intended, ut supra, that the obligor cannot discharge the arbitrament, but that he shall forfeit his bond; and the book gives the reason, which is the cause of this resolution, scilicet, because I am bound to stand to his award, scilicet, "to stand to his award," which I do not when I discharge the arbitrator. The other reason is, because now the obligor has by his own act made the condition of the bond (which

was indorsed for the benefit of the obligor, to save him [* 83 a.] from the penalty of the bond) impossible * to be performed, and by consequence his bond is become single, and without the benefit or help of any condition, because he has disabled himself to perform the condition.1 Vide 21 Ed. IV. 55 a, per CHOKE; 18 Ed. IV. 18 b, and 20 a. If one be bound in a bond, with condition that the obligor shall give leave to the obligee for the space of seven years to carry wood, &c., in that case, although he gives him leave, yet if he countermands it, or disturbs the obligee, the bond is forfeited. And afterwards judgment was given for the plaintiff.

1 Accordingly where two parties entered into an agreement to refer a dispute to the arbitration of C. S. and bound themselves mutually in a penalty, "for the true and faithful observance and performance" of the award to be made by C. S., it was held that the penalty was incurred by a revocation of the submission. Abbott, C. J., observed, in delivering the judgment of the Court, that the second reason in Vynior's

case was clearly applicable to the present; and further observed that the distinction drawn between the different words cited, ("observe, perform, fulfil, and keep," &c., and "stand to and abide," &c.), was extremely nice and subtle, and that he could not discover any real and substantial difference between them. Warburton v. Storr, 4 B. & C. 103.

The report of the principal case is taken from the edition of Coke's Reports published by J. F. Fraser in 1826, and the notes by the learned editor contain a full review of the authorities up to that date. These notes have been printed as they stand in the above-mentioned edition; but it should be observed that the learned editor has in several places fallen into the common error of using the word "submission" instead of "authority of the arbitrator," as that which may be revoked.

It will be seen from the note on p. 359, ante, that although a submission had been made a rule of Court under 9 & 10 W. III. c. 15 (which provides for this being done where there is an agreement to that effect in the submission), the authority of the arbitrator was still revocable; although, perhaps, if the submission while standing unrevoked had been made a rule of Court, the party revoking might have been deemed in contempt for breach of the order.

By the Act made in 1833, 3 & 4 W. IV. c. 42, s. 39, it was enacted that the power of the arbitrator appointed in pursuance of a rule of Court made in an action, or in pursuance of a submission containing an agreement that the submission should be made a rule of Court, is not revocable by any party, without the leave of the Court. By the same section power was given to the Court to enlarge the time for making an award.

And by the C. L. P. Act, 1854 (17 & 18 Vict. c. 125), it was enacted (by s. 17) that every submission might be made a rule of Court, unless the agreement expressed a contrary intention.

But, notwithstanding these enactments, it remained the law that where there was no agreement that the submission should be made a rule of Court, and where no action was pending, the authority (although the submission has been made a rule of Court) is revocable. In re Rouse & Meier (1871), L. R., 6 C. P. 212, 40 L. J. C. P. 145; Randell v. Thompson (C. A. 1876), 1 Q. B. D. 748, 45 L. J. Q. B. 713.

Where however by a contract containing an arbitration clause it was agreed that the provisions of the C. L. P. Act, 1854, with regard to arbitrations, should apply to the arbitration thereby agreed to, it was held that the contract by incorporating s. 17 of the C. L. P. Act 1854 impliedly provided for the submission being made a rule of Court; and that consequently the authority of an arbitrator who had been appointed under the submission could not be revoked. In re Mitchell & Izard (C. A. 1888), 21 Q. B. D. 408; 57 L. J. Q. B. 524.

By the Arbitration Act, 1889 (52 & 53 Vict. c. 49, which repealed