The effect of the decision of the House of Lords in East and West India Dock Co. v. Kirk is commented on by the Court of Appeal in a case which came before them shortly afterwards. James v. James (C. A. 1889), 23 Q. B. D. 12, 58 L. J. Q. B. D. 424. The Queen's Bench Division, DENMAN, J., and STEPHEN, J., had refused the leave, and the Court of Appeal (LINDLEY, L. J., and LOPES, L. J.,) affirmed that refusal. LINDLEY, L. J., says in his judgment (23 Q. B. D. 15): "I do not understand the case of East and West India Docks Co. v. Kirk as laying down any general rule opposed to what had been the ordinary practice previously. That case being one of a very exceptional character, the House of Lords took the view that it was expedient and right under the circumstances to compel the arbitrator to state a special case with regard to the purposes for which he had received, and the effect which he had given to, certain classes of evidence as to matters involving enormous expense. It was a question of discretion this Court did not think the circumstances of the particular case such as to render it right to interfere; the House of Lords differed from that view; but I do not think they intended to lay down any general principle on the subject." In the case immediately under consideration the learned LORD JUSTICE went on to observe that the parties asked the arbitrator to decide in the first place the question of liability, and he did decide it; and then the party against whom he decided it comes and asks the Court for leave to revoke the arbitrator's authority. He considered this against good faith; and that the Court ought not to exercise their discretion to interfere. LOPES, L. J., concurred with this judgment.

Doubtless in regard to the "leave of the Court," under the 1st section of the Arbitration Act 1889, the Court has the same discretion as it had under the 39th section of the Act of 3 & 4 W. IV., so that the two last-mentioned decisions will still furnish a rule as to the jurisdiction and discretion of the Court under the later Act. See the reference to the case of East and West India Docks Co. v. Kirk, 12 App. Cas. 738, 57 L. J. Q. B. D. 295, in Tabernacle Permanent Building Society v. Knight (Knight v. Tabernacle, &c. Society), (1892) 1892, A. C. 298, 301, 62 L. J. Q. B. 50, 51.

It was decided by the King's Bench in Cooper v. Johnson (1819), 2 B. & Ald. 394, that where there is nothing in the reference to the contrary the death of either party was a revocation of the arbitrator's authority; and it was suggested that the effect of the common-law rule might be obviated in a reference by order at nisi prius by a clause inserted in the order; and this became the usual practice as mentioned in the note on p. 359, supra. In Macdougall v. Robertson (1827), 2 Y. & J. 11, it was decided by the Exchequer Chamber, affirming a VOL. III. 24

370

No. 1. Vynior's Case. Notes.

judgment of the King's Bench, that where the instrument of submis sion contained a proviso that it should not be determined by death, the proviso was effectual so as to prevent the death operating as a revocation of the authority. In Lewin v. Holbrook (Ex. 1843), 11 M. & W. 110, 12 L. J. Exch. 267, the order of reference provided that the award might be delivered to the personal representatives of a party who might be dead; and one of the parties having died pending the reference, application was made by the other party that the arbitrator should proceed. The application was refused; PARKE, B., saying: "If you get your award, then you have a remedy against the personal representative, because the defendant has agreed that his assets should be bound thereby; but the Court has no power to direct the arbitrator to proceed." In the case of Edwards v. Davies (1854), 23 L. J. Q. B. 278, where the order was in a similar form, application was made under 3 & 4 W. IV. c. 42, s. 39, by the executor of one of the parties who had died, for an enlargement of the time for making the award. The Court refused the application on the ground of special circumstances, as well as on the general ground that an arbitration after the death of one of the parties might not be continued on equal terms. For the estate of the deceased may not be solvent, and his executor is not liable to attachment. It will be observed that the Act of 3 & 4 W. IV., which says that the authority shall not be revoked by any party does not alter the ordinary rule of the common law as to revocation by death. And although the expression of the Act of 1889, 52 & 53 Vict. c. 49 (s. 1) simply says that the "submission" shall be "irrevocable," this probably means no more than that the authority shall not be revoked by any party as in the Act of 3 & 4 W. IV. (per BRETT, L. J., in Smith v. Nelson, 25 Q. B. D., at p. 550).

Though not directly within the rule of the principal case, it may be a convenient place here to refer to the point as to the constitution of the authority of an umpire. The authority of the arbitrators to appoint an umpire is to exercise an act of concurrent judgment and choice, and cannot validly be done by lot or by each arbitrator putting a name or names into a hat, and agreeing to appoint the one whose name should be drawn. Young v. Miller (K. B. 1824), 3 B. & C. 407; In the Matter of Cassell (K. B. 1829), 9 B. & C. 624: Ford v. Jones (K. B. 1832), 3 B. & Ad. 248; Pescod v. Pescod (21 Dec. 1887), 58 L. T. 76. But an appointment by lot out of two, each of whom has been agreed to as a fit person by both arbitrators, has been held good. Neale v. Ledger (K. B. 1812), 16 East, 51, 14 R. R. 283, followed in Re Hopper (1867), L. R., 2 Q. B. 367, 36 L. J. Q. B. 97. But the Court of Session in Scotland have decided differently. Smith v. pool and London, Globe Insur. Co. (1887), Court of Session, 4th series, Vol. 14, p. 931.

Liver

The doctrine that at common law either party may revoke the arbitration before award is stated in Bank of Monroe v. Widner, 11 Paige (New York Chancery), 529; 43 Am. Dec. 769; but this is changed by the New York statute. "There can be no doubt that a submission can be revoked at any time previous to an award," but bringing an action on the same cause of action does not work a revocation. Knaus v. Jenkins, 11 Vroom (New Jersey), 288; 29 Am. Rep. 237. (But bringing suit to enforce a mechanics' lien revokes the submission; Paulsen v. Mauske, 126 Illinois, 72; 9 Am. St. Rep. 532.)

Submissions being naturally revocable, an agreement not to revoke is invalid. People v. Nash, 111 New York, 310; 7 Am. St. Rep. 747; 2 Lawyers' Reports Annotated, 180, citing the principal case. See Buckwalter v. Russell, 119 Penn. St. 495; Tobey v. County of Bristol, 2 Story (U. S. Circ. Ct.) 800; Power v. Power, 7 Watts (Penn.), 205.

Mr. Morse cites the principal case (Arb. and Award, p. 230), although he does not tabulate it, and he also cites Allen v. Watson, 16 Johnson (New York), 205; Marseilles v. Kenton's Executors, 17 Penn. St. 236; Aspinall v. Tonsey, 2 Tyler (Vermont), 328; Tyson v. Robinson, 3 Iredell Law (North Carolina), 333; Peter's Adm'r v. Craig, 6 Dana (Kentucky), 307; Leonard v. House, 15 Georgia, 473.

SECTION II. Where the Court will order (or indirectly compel) a reference.

No. 2. FILMER v. DELBER.
(C. P. 1811.)

RULE.

THE attorney in an action has a general authority to consent to an order of reference; and the Court will not set aside such order on an affidavit of the party denying the authority.

Filmer v. Delber.

3 Taunt. 486 (s. c. 12 R. R. 688).

Clayton, Serj., moved to set aside an order of nisi prius [486] by which this cause had been referred to a barrister, on an affidavit by the defendant, stating that she had expressly desired her attorney not to consent to any rule of reference. No step had

yet been taken by the arbitrator, excepting that he had appointed a distant day for a meeting, in order to give time for this motion. In answer to a question by the Chief Justice, whether there was any precedent for the Court's interference in such a case, Clayton, Serj., cited the case of Doe d. Carlisle v. Morpeth, 3 Taunt. 378, where the Court intimated that an application might be made to them to vary the terms of the rule of reference.

MANSFIELD, C. J. That was where it was thought that the intention of the parties had been misunderstood; but here is an express agreement to refer properly entered into by counsel and attorney; it is now said that they had no authority to enter into that agreement; if so, the defendant's remedy is by action against her attorney. There would be no end to these applications if the Court were to interfere; such interference would lead to collusion; when a party did not like the prospect of the reference, he would say that he had never given his attorney authority to refer.

ENGLISH NOTES.

Rule refused.

In Faviell v. Eastern Counties Railway Co. (1848), 2 Exch. 344, 17 L. J. Ex. 223, the rule was applied to the attorney acting for a corporation, although it was urged that the corporation could itself have entered into a binding agreement of reference only under seal.

The rule was again followed in Smith v. Troup (C. P. 1849), 7 C. B. 757, 18 L. J. C. P. 209.

Biddell v. Dowse
This however does

But an attorney acting for an infant cannot give a valid consent to an order of reference so as to bind the infant. (K. B. as Court of error, 1827), 6 B. & C. 255. not prevent the award being enforced against parties who are sui juris, Wrightson v. Bywater (1828), 3 M. & W. 199. And executors and the estate of a testator may be bound by it, although the persons under disability are not, and may hold the executors liable for a devastavit. In re Warner (1844), 2 Dowl. & L. 148, 13 L. J. Q. B. 370. Although the attorney acting for an infant has not as such any authority to consent to an order of reference, the Court of Chancery has sometimes made such an order on the ground of its appearing to be for the benefit of the infant to do so; and in such a case will make the award binding on the infant. Davis v. Page (1804), 9 Ves. 350; Bishop of Bath and Wells (a decision of Lord NOTTINGHAM), referred to in Harvey v. Ashley, 3 Atk. 613.

Partnership does not of itself constitute an implied authority to a partner to bind the other partners by a submission. Stead v. Salt (1825),

No. 3.-Willesford v. Watson. Rule.

10 Moore, 389, 3 Bing. 101. But the partner submitting for the firm is himself bound to perform the award. Stangford v. Green, 2 Mod. 228.

The attendance of a party at a reference made under a judge's order, is evidence of his consent to the reference. Wharton v. King (1831),

1 Mood. & Rob. 96. So is an indorsement made under the hand of the parties on the order of reference. Lievesley v. Gilmore (1866), L. R., 1 C. P. 570, 35 L. J. C. P. 351. And in either case an action will lie upon the award in respect of the implied promise given by the consent to the reference.

AMERICAN NOTES.

The principal case is cited with approval by Weeks (Attorneys), section 222, citing no others. The attorney may consent to the reference and stipulate as to the referee's compensation. Such a stipulation is "the consent of the parties in writing," within the statute. Mark v. City of Buffalo, 87 New York, 184. The Court said: "In all that properly relates to the conduct of a trial, the attorney represents the party and is his authorised agent. The attor ney's agreement and stipulation within the boundaries of that authority is the agreement and stipulation of the client, and binds the latter as if he himself had personally made it."

WHERE an action is brought upon a contract containing an arbitration clause, the Court will, on the application of a defendant, liberally apply the provision of section 11 of the C. L. P. Act 1854 (now embodied in ss. 4 & 27 of the Arbitration Act 1889) for having the matter referred to arbitration.

It is no valid argument against the application that the arbitrator may give a wrong decision upon a point of law, such as the construction of the contract, and that there will be no appeal. For the finality of the decision is presumably one of the objects intended by the clause.

Nor is it an objection that there may be other defend