1821, the parties consented to refer it to an arbitrator under a Judge's order, which was accordingly done. The parties having met three times before the arbitrator, and the defendant having obtained time from him for the examination of a witness and procuring a certain written instrument; he, instead of so doing, revoked the submission by deed, a copy of which he caused to be served on the arbitrator, who notwithstanding proceeded to make his award. The Judge's order was not made a rule of Court until the first day of this Term; and in the course of the last, Mr. Serjeant Hullock had obtained a rule nisi that the award might be set aside, on the ground that it was made after the defendant had revoked the submission; but on cause being shewn by Mr. Serjeant Cross, and it appearing that the order had not been a rule of Court, the rule was discharged with costs. That, however, having been now done,

Mr. Serjeant Hullock, on a former day in this Term, renewed his application, against which

Mr.Serjeant Cross now shewed cause, and submitted, that this being a submission under a Judge's order at Nisi Prius, it was not revocable as in the case of a submission by deed, which was an instrument executed between the parties themselves; and that under the circumstances, the defendant could not be entitled to the indulgence of the Court, as he had been guilty of a contempt, by rescinding or violating the order to which he had assented in the first instance. If an award can be set aside on the ground that the submission was revoked by one of the parties before the order of Nisi Prius was made a rule of Court, a reference under such an order will in future be used as a means of delay, as the order cannot be made a rule of Court until the Term next ensuing the date of the order. In Aston. George (a), the authority was revoked, because

(a) 2 Barn. & Ald. 395. S. C. 1 Chit. Rep. 200.

IN THE THIRD YEAR OF GEO. IV.

com

the defendant could not procure the attendance of material witnesses before the arbitrator; she was, therefore, guilty of no misconduct or delay, within the terms of the order. Here, however, the default arose entirely on the part of the defendant. There, too, it was determined that an order of Nisi Prius, referring a cause to arbitration, might be made a rule of Court after notice of revocation of the arbitrator's authority, on the express ground that such order is not revocable; and both Lord Chief Justice Abbott and Mr. Justice Holroyd there said (a), "supposing that either party might revoke the order, as far as regarded the submission, still it was petent to the other party to make it a rule of Court, in order to enforce the other parts of the order." The power as to the revocation of the submission, was therefore merely put by way of argument or illustration; and not that it could be revoked as a matter of course: and in Wood v. Plant, in error (b), Lord Chief Justice Mansfield said, that "a Judge's order is to be regarded as the order of the Court; that the effect of such orders was much considered in the case of Rer v. Wilkes (c) ; and that they were as binding as any act of the Court, though they were not entered and made rules of the Court, unless it were necessary to enforce them by attachment." A Judge's order, therefore, is not in the nature of an agreement or deed, by which parties submit themselves to arbitration; and after the former has been made a rule of Court, an attachment may be granted for disobedience to the award; and as it has reference to the original order, it must be considered as effectual and binding on the parties; and at all events, the defendant cannot succeed in setting aside the award which has been made under it, and which has not been avoided by his submission, but it may be still enforced against him; and

1822.

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v.

HIGHAM.

(a) 2 Barn, & Ald. 397.

-(6) 1 Taunt. 47.

(c) 4 Burr. 2570.

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υ.

HIGHAM.

more particularly so, as the order has now been made a rule of Court.

Mr. Serjeant Hullock, in support of the rule, contended that a party might revoke the authority of an arbitrator at any time before the submission is made a rule of Court and the award published or delivered; although the reference were made by order of Nisi Prius. The case of Aston v. George is precisely in point, which was an action of slander, and referred to arbitration by an order of the late Lord Ellenborough at Nisi Prius; and the arbitrator having proceeded in his reference, and examined all the witnesses for the plaintiff, and several on the part of the defendant, the latter revoked his power, on the ground that she could not procure the attendance of certain witnesses necessary to her defence, and consequently no award was made, and the cause proceeded entirely on the assumption that the revocation was good; but the Court, under the circumstances, refused to allow any costs: and they had no doubt but that either party might revoke the order, as far as it regarded the submission. So in Trotter v. Moysey (a), which was an action on a builder's bill; the question was, whether the plaintiff was entitled to recover on a quantum meruit, or according to the terms of a contract entered into between him and the defendant; and on its coming on for trial at Newcastle, at the Summer assizes, 1821, it was referred to an arbitrator, under an order of Nisi Prius, before whom the parties attended; and he caused a draft of his award to be made: but as one of the parties had learnt that the arbitrator had awarded against him, from some expressions which had fallen from him, he revoked his submission before the order had been made a rule of Court; notwithstanding which, the arbitrator afterwards

(a) This case has not been reported.

made his award, subsequently to which, the order was made a rule of Court, and an application made by Mr. Serjeant Hullock for an attachment for non-performance of the award; and Mr. Scarlett obtained a cross-motion, that the cause might go down again to be re-tried, which the Court ordered, and refused the attachment, on the ground that the order was revocable, although it had been made a rule of Court, which was necessary in order to empower the Court to grant an attachment for disobedience to the award.

Lord Chief Justice DALLAS.-The principal if not the sole question is, whether the award which has been made in this cause, be valid in law or not. Generally speaking, it is quite clear that the authority of an arbitrator may be countermanded by either of the parties at any time before the award is executed and delivered: and here, it appears that the submission was revoked by the defendant by deed; notwithstanding which, the arbitrator afterwards made his award. It is therefore necessary to consider what there is in this case to take it out of the operation of the general rule. The facts are these: the matters in difference between the parties were referred to an arbitrator under a Judge's order, which had not been made a rule of Court when the deed was executed by the defendant, and by which the submission was revoked: The arbitrator was then only acting under such order. If it had not been since made a rule of Court, there would be no question whatever; but as the award was made by the arbitrator after the revocation, and before the order was made a rule of Court, it has been contended that such award cannot be impugned. The only question therefore is, whether, as the order was made a rule of Court after the award was made, and subsequently to the revocation, it will make any difference as to the ef

1822.

CLAPHAM

V.

HIGHAM.

1822.

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บ.

HIGHAM.

fect of such revocation. In Milne v. Gratrix (a), it was held, that where parties by bond agreed to submit matters in difference between them to arbitration, and that the submission should be made a rule of Court; it was competent to either to revoke his submission by deed, and notify the same to the arbitrator before his authority was executed. If here, therefore, the submission had been by deed, that case would have been precisely in point. In the subsequent case of Aston v. George (b), a distinction was taken between a submission under a Judge's order, and a submission by deed. There, the cause was referred by a Judge's order, which directed, that either party wilfully preventing the arbitrator from making an award by affected delay or otherwise, should pay such costs as the Court should think reasonable and just; and it was held, that such order might be made a rule of Court after one of the parties had revoked the authority of the arbitrator. That case, therefore, sanctions the proceedings which have been adopted in this as to making the order in question a rule of Court after the revocation of the submission by the defendant. The same argument was adopted in Aston v. George as in the present case, viz. that if the application should succeed, on the ground that the submission was revoked before the order was made a rule of Court, a reference under a Judge's order at Nisi Prius would in future be used as a means of delay; for that the order could not be made a rule of Court till the ensuing Term, and that the party might, in the mean time, revoke the authority. Here it is quite clear that the revocation was made before the order was made a rule of Court; and Lord Chief Justice Abbott, after taking a distinction between a reference under a Judge's order and a reference by deed, observed, that (c)" in the latter case the submission was alone made

(a) 7 East, 608.- (b) 2 Barn. & Ald. 395. S. C. Chit. Rep. 200. (c) 2 Barn, & Ald. 396.