and such appointment constitutes a new submission, not under seal, incorporating all the remaining provisions of the former submission (q). The remedy by action on the deed of submission would, however, be lost unless the substitution were also by deed (r). And a recognisance to perform the award of B. is not forfeited by non-performance of the award of C., who by consent of the parties is substituted for B., by rule of court (s). The remedy in such cases is by attachment, or action on the award (t). The same principles seem to be applicable to other alterations. As to amendment of a submission by rule of court, see ante, 1221. SECT. 1. sion, &c. By Leave of Revocation of Submission, &c.] After entering into the sub- Revocation mission, and consenting that it should be made a rule of court, of Submiseither party, before the act of 3 & 4 W. 4, c. 42, might revoke his submission by deed, at any time before the making of the the Court. award, and before the submission had actually been made a rule of court: and this, though the cause was referred by order of Nisi Prius (u); and if the arbitrator had afterwards proceeded and made his award, notwithstanding the revocation, the party would not have been liable to an attachment for a non-performance of it, (particularly if the arbitrator had had notice of the revocation before the award was made) (x), and the court upon application would have set it aside(y); and could not have vacated the revocation (~). Where, indeed, it appeared doubtful whether the arbitrators had made their award previous or subsequent to their receiving notice of a deed of revocation, the Court of Common Pleas would not stay the proceedings, but left the party to plead such matter puis darrein continuance (a). The bond of submission, however, became forfeited by such revocation, and the obligee might immediately have sued upon it (b); or the court might, upon the rule; or upon the judge's order being made a rule of court (c), have ordered the party revoking to pay the other "such costs as the court shall think reasonable and just," according to the terms of the rule or order (d). Where it appeared that the arbitrator's authority had been revoked merely on the ground that the party could not procure the attendance of a material witness before the arbitrator, the court refused to make him pay costs (e). But now, by the 3 & 4 W. 4, c. 42, s. 39, it is enacted, that the power and 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 (q) Re Tunno, 2 Nev. & M. 328. (r) Brown v. Goodman, 3 T. R., 592: post, 1255. (8) R. v. Bingham, 3 Y. & J. 101. (t) Evans v. Thompson, 5 East, 189: Re Tunno, 2 Nev. & M. 328. (u) See Rex v. Burridge, 1 Str. 593: and see Lowes v. Kermode, 2 Moore, 38; 8 Taunt. 146, S. C.: Green v. Pole, 6 Bing. 443; 4 Moo. & P. 198, S. C. (x) Milne v. Gratrix, 7 East, 608: King v. Joseph, 5 Taunt. 452. (y) Clapham v. Higham, 7 Moore, 703; 1 Bing. 87, S. C. (2) Skee v. Coron, 10 B. & C. 483. (b) Warburton v. Storr, 4 B. & C. 103. (d) See Skee v. Coron, 10 B. & C. 483: (e) Aston v. George, 2 B. & Ald. 395; 1 Chit. Rep. 200, S. C. PART II. BOOK IV. 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; and that the court, or any judge thereof, may from time to time enlarge the term (f) for any such arbitrator making his award" (g). It has been decided on this statute, that the court, or a judge, cannot make a rule or order for revoking the arbitrator's authority without hearing both parties; and a judge's order of revocation, made ez parte, was rescinded by the court (h). The statute applies to references of civil proceedings only (i). To bring a case within the act, the reference must be complete, therefore the act does not apply to arbitrators appointed in pursuance of a clause in a deed, that all disputes shall be referred to the arbitration of two persons, who are directed to choose an umpire before they proceed, but which umpire has not been appointed (k). The court cannot give leave to revoke the authority of an arbitrator after he has made an award (7); but they may, of course, set aside the award, if there be grounds for it. Revocation by Death or Bankruptcy. Besides this mode of revocation already mentioned, the authority of the arbitrator may be impliedly revoked by the death of either party, or of only one of several parties, before the award is actually made (m), unless the submission contains an express stipulation to the contrary (n); and such a stipulation may be inserted with effect in an order of reference or rule of court(). Even where a verdict is taken subject to the award, the death of a party after verdict, and before award made, is a revocation (p); unless, indeed, the submission expressly or impliedly provide the contrary (9). And 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 holden, that the death of one of the freighters before award made only affected the award as to him, and was no revocation as U) See post, 1231. (g) See form of order permitting revocation, Chit. Forms, 664, 627; and order, &c., for enlarging the term, Id. 668. (h) Clarke v. Stocken, 2 Bing. N. C. 651; 3 Scott, 90; 5 Dowl. 32; 2 Hodges, 1, S. C. (i) Rer v. Bardell, 1 Nev. & P. 74; 5 Dowl. 238; 5 Ad. & Ell. 619, S. C. (k) Bright v. Downell, 4 Dowl. 756; 1 T. & G. 576, S. C. (1) Phipps v. Ingram, 3 Dowl, 669. (m) Cooper v. Johnson, 2 B. & Ald. 394. and see Bristow v. Binns, 3 D. & R. 184: Lowes v. Kermode, 2 Moore, 30; 8 Taunt. 146, S. C.: Dowse v. Core, 10 Moore, 272: 3 Bing. 20, S. C.: Edmunds v. Cox, 2 Chit. Rep, 432. (n) See Biddell v. Dorse, 6 B. & C. 255: Clarke v. Crofts, 4 Bing. 143; 12 Moore, 349, S. C. (0) Macdougall v. Robertson, 1 Moo & P. 147; 2 Y. & J. 11, S. C. (p) See Toussaint v. Hartop, 7 Taunt. 571; 1 Moore, 287; Holt, 335; nom. Anon., 1 Chit. Rep. 187 n. a, S. C.: and see Tyler v. Jones, 4 D. & R. 740; 3 B. & C. 144, S. C.: M'Dougall v. Robertson, 2 Y. & J. 11; 1 Moo. & P. 147, S. C.: but see Bowyer v. Taylor, 3 D. & R. 610 a. (g) Toussaint v. Hartop, 7 Taunt. 371; 1 Moore, 287, S. C.: and see Biddell v. Dowse, 6 B. & C. 255: Clarke v. Crofts, 12 Moore, 349; 4 Bing. 143, S. C. Wrightson v. Bywater, 6 Dowl. 359. to the others (r). The marriage of a feme sole party, after submission and before award made, is in like manner a revocation of the arbitrator's authority (s); but the bankruptcy of a plaintiff may not (†). Where the rights of the bankrupt having passed to his assignees, and the arbitrator having no power over the latter, there consequently remaining no mutuality, the bankruptcy was held a revocation (u). . SECT. 2. Effect of Agreement to refer on Right to Sue.] An agreement Effect of to refer matters in difference to arbitration does not oust the Agreement to refer on Right courts of law or equity of their jurisdiction, and the party to Sue. thereto may commence proceedings notwithstanding (x); though he might be subject to a cross action if he has refused to enter into such arbitration. And if a reference be pending, and it has been agreed that it shall operate as a stay of proceedings, it may be made the subject of an application to the court for staying the proceedings until an award is made(y). ference. Proceedings upon the Reference.] IT is usual to have those Proceedings persons sworn who give evidence before the arbitrator. For upon the Rethis purpose, before the recent act of 3 & 4 W. 4, c. 42, if swearing the cause was referred at Nisi Prius, and the witnesses were Witnesses. in court, each attorney wrote down the names of his witnesses, together with the name of the cause, upon a piece of paper, and gave it to the crier of the court, who would thereupon swear the witnesses (z). In other cases, the like memorandum was made, stating also whether the persons to be sworn were parties in the cause, or only witnesses. It was taken to the judge's chambers, or to the Court at Westminster, and the judge's clerk had the witnesses sworn, and gave a memorandum to that effect, signed by the judge. This course may still be pursued, but it is more usual to have the witnesses sworn before the arbitrator, under the 3 & 4 W. 4, c. 42, s. 41. By that enactment, it is provided, "that when in any rule or order of reference, or in any submission to arbitration containing an agreement that the rule shall be made a rule of court, it shall be (r) Per three Justices, MS., H. 1820. (s) Charnley v. Winstanley, 5 East, 266: and see Marsh v. Wood, 9 B.& C. 659, 661. (t) Andrews v. Palmer, 4 B. & Ald. 250: Snook v. Hellyer, 2 Chit. 43: but see Marsh v. Wood, 9 B. & C. 659. (u) Marsh v. Wood, 9 B. & C. 659. VOL. II. (r) Thompson v. Charnock, 8 T. R. 139: Hill v. Hollister, 1 Wils. 129: Tattall v. Groote, 2 B. & P. 131: Street v. Rigby, 6 Ves. jun. 815. (y) Ante, 998. (2) See form of this memorandum for the jurat, Chit. Forms, 665. CC BOOK IV. PART 11. Obtaining Appointment for the Arbitrator. Statement of Case, Witnesses, &c., to. Compelling Attendance of Witnesses. ordered or agreed that the witnesses upon such reference shall be examined upon oath, it shall be lawful for the arbitrator or umpire, or any one arbitrator, and he or they are hereby authorized and required, to administer an oath to such witnesses, or to take their affirmations in cases where affirmation is allowed by law instead of oath; and if upon such oath or affirmation any person making the same shall wilfully and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjury, and shall be prosecuted and punished accordingly." A provision, in the order of reference, that the witnesses shall be examined upon oath, “to be taken before me" (the judge) “or some other judge of the Court of Exchequer, or before a commissioner," does not exclude the power of the arbitrator to administer an oath under this act (a). But the court or a judge have still a concurrent jurisdiction to swear witnesses examined before an arbitrator (b). If the witnesses or parties be examined without being sworn, yet, if no objection on that account be made before the arbitrator, the court will not set aside the award (c). The next step is to obtain an appointment from the arbitrator. If the cause have been referred at Nisi Prius, get the order of Nisi Prius from the associate, if the cause was tried at the assizes; or from the clerk of Nisi Prius, if it were tried in London or Middlesex. Then get an appointment in writing from the arbitrator, as to the time and place the parties and their witnesses are to attend before him (d); and make a copy of the order of Nisi Prius and appointment, and serve it on the oppo site attorney: it is usual, also, at the same time, to inform him if you purpose attending by counsel. If the cause were referred by rule of court, draw up the rule with one of the masters; or, if by judge's order, draw up the order, as already mentioned; get an appointment from the arbitrator (d); and serve a copy of the rule or order and appointment, as above directed. In all other cases, a notice of the time and place appointed by the arbitrator will be sufficient. Care must be taken that it be ordered by the rule that all proceedings in the cause be stayed; otherwise the reference will be no stay of proceedings (e). Each party is next to furnish the arbitrator with a statement of his case, and a list of the witnesses he intends to produce. If briefs have been made out, and the arbitrator be a gentleman of the profession, this is usually done by delivering to him one of the briefs on each side. Before the recent statute, there was no mode or power of compelling the attendance of a witness before an arbitrator, even where he had engaged to attend (f). But now, by the 3& 4 W. 4, c. 42, s. 40," when any reference has been made by any such rule or order, or by any submission containing such agreement as aforesaid (g), it shall be lawful for the court by which such rule or order shall be made, or which shall be (a) Hodsoll v. Wise, 4 M. & W. 536; 7 Dowl. 51, S. C. (b) James v. Atwood, 5 Bing. N. C. 628. (c) Ridout v. Pye, 1 B. & P. 91. (d) See the form, Chit. Forms, 666. 359. mentioned in such agreement, or for any judge, by rule or order to be made for that purpose, to command the attendance and examination of any person to be named, or the production of any documents to be mentioned in such rule or order; and the disobedience of any such rule or order shall be deemed a contempt of court, if, in addition to the service of such rule or order, an appointment of the time and place of attendance in obedience thereto, signed by one at least of the arbitrators, or by the umpire, before whom the attendance is required, shall also be served either together with or after the service of such rule or order provided always, that every person whose attendance shall be so required, shall be entitled to the like conduct-money, and payment of expenses, and for loss of time, as for and upon attendance at any trial; provided also, that the application made to such court or judge for such rule or order, shall set forth the county where such witness is residing at the time, or satisfy such court or judge that such person cannot be found; provided also, that no person shall be compelled to produce, under any such rule or order, any writing or other document that he would not be compelled to produce at a trial, or to attend at more than two consecutive days, to be named in such order." Independently of this enactment, as to the production of documents, where a defendant submitted all matters in difference to arbitration, and the arbitrators required him, in pursuance of a power given to them for that purpose, to produce certain books and papers, and an attachment was moved for against him for not producing them, the court held that he could not, by affidavit, bring before the court the question, whether those books related to matters in difference between the parties or not, though it was expressly sworn that the books merely related to old accounts which had been long since settled, and which it had been agreed between them should form no part of the reference, because, by the general terms of the submission of all matters in difference, it was left to the discretion of the arbitrator to say what were matters in difference and what were not (h). Where it is requisite to resort to the above compulsory proceeding, the course is for the attorney of the party desiring the attendance of the witness to lay before a judge at chambers a memorandum, signed by the attorney, stating the existence of the reference, that the witness or the production of the documents is material, and annexing or inserting a copy of the appointment of the arbitrator; and upon which the judge will make his order (i) for the attendance of the witness. Or a motion may be made to the court, and a rule obtained for the attendance of the witness and production of the document. An appointment in writing of the time and place of attendance, in obedience to the rule or order signed by the arbitrator, or, if more than one, by one at least of the arbitrators, should be obtained (i). A copy of the order or rule and appointment should then be served upon the witness, a reasonable time before that appointed for the attendance, the originals being at the same time shewn to him, and a sum sufficient for his expenses and loss of time being paid or tendered to him at the same time. If the witness do not (h) Arbuckle v. Price, 4 Dowl. 174. (i) See Chit. Forms, 657. SECT. 2. |