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a rule of Court by virtue of the statute ; that it therefore follows, that when the submission is revoked, there remains nothing which can be made a rule of Court; that a Judge's order, on the other hand, might be made a rule of Court, without reference to any statute; that the order in that case contained not only the submission of the parties, but also a direction that either party should, under certain circuinstances, pay such costs to the other as the Court should think reasonable and just; and supposing therefore, that either party might revoke the order, as far as regarded the subinission, it was still competent to the other party to make it a rule of Court, in order to enforce the other parts of the order.” That case therefore, appears to me to be precisely in point; as the Court there took it for granted, that an award could not be sustained which had been made after the submission had been revoked. I am therefore of opinion that this rule must be made absolute.
Mr. Justice PARK.-If this question depended upon the merits of the case, it might be perhaps improper for the Court to interfere. It is quite clear from the case of Aston v. George, that a Judge's order may be made a rule of Court after a party has revoked the submission. It has been said, however, that there has been an infringement of the Judge's order by the defendant by such revocation, and that the Court ought not to assist hiin; but such order cannot be considered to be of so high a nature as a rule of Court. In Milne v. Gratrir the submission was made a rule of Court, and the deed of revocation was executed before the award was proceeded in; and it was held, that the authority of the arbitrator was determined by such revocation; and the Court seemed to infer that it might be a contempt to revoke the submission after it had been made a rule of Court; for Lord Ellenborough there said, " after a submission is
made a rule of Court, the party cannot indeed rescind it without incurring a breach of that rule.” So here, the revocation was made before the award was published, and it therefore appears to me that it must be considered as a nullity, and cannot be enforced.
Mr. Justice BURROUGH. Submission to arbitration is one thing, and revocation another. The former may become void by the death of the parties, or by their express acts, and may be revoked at any time before the award is completed and published; and here it appears, that the revocation was duly made by the defendant before the award was made.
Rule absolute without costs (a).
(a) See King v. Joseph, 5 Taunt. 452. Caldwell on Arbitration, 35-6.
Ex parte CUNNINGHAM.
Saturday, Nov. 23d.
Mr. Serjeant Onslow, on a former day in this Tern, obwho had ceased to practise for tained a rule to shew cause why the above nained applisix years, may cant should not be at liberty to renew his annual certifion payment of cate, and be re-admitted an attorney of this Court, on a nominal fine, without the ar payment of such fine as the Court should think fit. He rears of duty; founded his motion on an affidavit, which stated, that on an affidavit, stating that he Mr. Cunningham was admitted an attorney of this Court had disconti nued to prac
in 1811, and that from that year until 1816 he had practise on account of his affairs
tised as such, and during all that time took out his anhaving become nual certificates; and that from various unexpected embarrassed; that he has not causes, his affairs became embarrassed, and he was induced practised in the interval, and to retire froin the profession in 1816, since which time that no misconduct could be imputed to him in his character of an attorney.
he had chiefly resided with his family in the country, and had pot directly or indirectly carried on or practised his profession of an attorney; and that his discontinuing to CUNNINGHAM. practise was entirely owing to the embarrassed state of bis affairs, and not from fear of any application to the Court relative to his conduct as an attorney or solicitor.
The officer of the Court however thought he could not be re-adınitted without paying the arrears of duty.
The learned Serjeant now renewed his application, and referred to Ex parte — -(a), where an attorney applied to be re-admitted after omitting to take out his certificate for two years, in consequence of ill health and embarrassed circumstances; and the Court of King's Bench allowed him to be re-admitted without payment of the arrears of duty, on his swearing that he had not practised in the interval. And in Er parte Richards (6) an attorney was re-admitted without fine or payment of arrears, on an affidavit that he had been prevented from practising by illness. So also in Er parte Smith (c) that Court allowed an attorney to be re-admitted without payment of arrears of duty, after ceasing to practise for five years, on an affidavit, stating that no cause of complaintexisted against him, although it was not stated therein that he was under no apprehension of any complaint. So in Ex parte Davis (d), it was held that an attorney who had taken out his certificate for one year, but bad never practised, is entitled at any subsequent time to be re-admitted, without fine; but it appears that the practice as to this point differs in this Court from that of the King's Bench. Here, however, the applicant has sworn that he had discontinued to practise from 1816, to the time of making the application, in consequence of his being in embarrassed circumstances, and that no ground of complaint had existed against him, por was he aware that any misconduct could be imputed to him. (a) I Chit. Rep. 646. (6) Id, 101, -(c) Id. 692. (dl) Id. 729.
Er parte CUNNINGHAM.
Mr. Secondary Griffith referred to Ex parte Nicholas (a), and observed, that in this Court he had understood the practice to be, that an attorney might be re-admitted if he had never practised, on the payment of six shillings and eight pence fine, and taking out his certificate and paying the duty from the time of the application ; but that when he had once practised, and ceased to do so in the interval, it was necessary that the arrears, of duty should be paid.
The Court, however, on no cause being shewn, were of opinion that the affidavit was sufficient, and allowed the re-adınission on the terms as prayed for, viz. on the payment of the fine of six shillings and eightpence (6).
(a) 2 Marsh. 123. S. C. 6 Taunt. 408. (6) See Ex parte Matson, 2 Dow. & Ryl. 238, where the Court of King's Bench held, that an attorney who discontinued to practise after his last certificate had expired, might be re-admitted without payment of any arrears of duty, or any fine ; and that the word neglect in the statute 37 Geo. 3. c. 90, s. 31, means culpable neglect, and does not apply to a person who has omitted to take out his certificate during the interval of his ceasing to practise : and Lord Chief Justice Abbott there said, “ The distinction is this, when the party has been practising in the interval, he must pay the arrears of duty, but not so, when he has not practised."
Saturday, Nov. 23d.
ROGERSON and Bovill, Executors of Josiah STEVENS,
deceased, v. LADBROKE and others.
Where A. This was an action of assumpsit to recover the sum of two months before his 14211. 15s. 7d. for money had and received by the dedeath, accepted a bill payable at his bankers in London, which was discounted by them for a customer, who did not indorse it, and they were the holders on the day it became due, on the morning of wbich, they wrote it off, and an hour afterwards received intelligence by post of the death of d. :-Held, that they were entitled to reimburse themselves out of the funds of A. and pass the amount of the bill to their own account. But the bankers having been in the habit of advancing 1000l. to A. by way of loan, for which sum hc gave his promissory note, wbich was renewed every three months, when they debited him with the full discount ;-Held, in an action brought against them by the executors of A. for money had and received, that they could not set off the amount of such note before it became due, upon allowing a re-bate of discount for the time it had to run ;-on the ground that such advance was to be considered as a separate transaction, and not one continued loan; and that no action could be maintained on the note until it became due.
fendants, to the use, first, of the testator Stevens in his lifetime; and secondly, of the plaintiffs as executors. The defendants pleaded the general issue, and gave a notice of set-off, dated the 8th May, 1892; insisting, that the testator Stepens in his life time was, and that the plaintiffs, as his executors since his death, and before the commencement of this suit, were and still are indebted to the defendants in the sum of 25001. upon and by virtue of a certain promissory note, bearing date the 21st January, 1822, made by Stevens, whereby he promised to pay three months after the date thereof, to the defendants or order, the sum of 10001. value received in account; and also upon and by virtue of a certain bill of exchange, bearing date the 1st January, 1821, made and drawn by certain persons by the name and description of William and George Andrews, upon and accepted by Stevens, whereby the said W. and G. Andrews requested Stevens, at two months date, to pay to their order 4671. 5s. 60. for value received in barley, and which bill was afterwards, and in the life time of the testator, endorsed and delivered to the defendants.
At the trial, before Lord Chief Justice Dallas, at the sittings at Guildhall after the last Term, a verdict was found for the plaintiffs for the sum of 1421/. 158. 7d. subject to the opinion of the Court upon the following case:
Josiah Stevens the testator, who was a malster at Kingston, and also occupied a farm near Bristol, kept a cash account with the defendants who were bankers in London, for nine or ten years prior to his decease, which happened on the 2d March, 1822, during which period they had been in the habit of accommodating him with the loan of 10001. upon the security of his promissory nole, which was renewed every three months. The mode of carrying on this system of accommodation was by the testator's delivering to the defendants his promissory note, which they discounted according to the common