81 b VYNIOR'S CASE.
Trin. 7 Jacobi 1.
[See In re Rouse v. Meier, 1871, L. R. 6 G. P. 217; Randall v. Thompson, 1876, 1 Q. B. D. 754.]
Debt upon bond conditioned to stand to, abide by and perform an award, &c, the defendant after demanding oyer of the bond and condition pleaded no award made; the plaintiff replied that the defendant before the time, &c. revoked and recalled his authority; upon demurrer to the replication, judgment was given for the plaintiff; and resolved,—1. Where a man is bound by bond to stand to, abide by, and perform, &c. the award of an arbitrator, he may countermand the authority of the arbitrator. 2. The plaintiff in his replication need not aver that the arbitrator had notice of the countermand, for that is implied in the words revoked and recalled all the authority, &c. 3. By the countermand, the bond is forfeited. S. C. [1 Brownl. 62. 2 Brownl. 290].
Trin' 7 Jacobi, Rot. 2629, Robert Vynior brought an action of debt against William Wilde, on a bond of 201. 15 Julii anno 6 Regis nunc. The defendant demanded oyer of the bond, and of the condition thereon indorsed, which was, " that if the above bounden William Wilde do, and shall from time to time, and at all times hereafter, stand to, abide, observe, perform, fulfil, and keep, the rule, order, judgment, arbitrament, sentence, and final determination of Wm. Rugge, Esq. arbitrator in- differently named, elected, and chosen, as well on the part of the said William Wilde, as on the part of the said Robert Vynior, to rule, order, adjudge, arbitrate, and finally, determine all matters, suits, controversies, debates, griefs, and contentions, heretofore moved and stirred, and now depending between the said parties, touching or concerning the sum of two and twenty pence heretofore taxed upon the said Wm. Wilde, for divers kinds of parish business, within the parish of Themilthorpe in the county of Norfolk, so as the said award be made and set down in writing under the hand and seal of the said Wm. Rugge, at or before the Feast of St. Michael the Archangel
next ensuing, after the date of these presents, that then," &c. And the defendant
pleaded, that the said Wm. Rugge, nullum fecit arbitrium de et super prcemissis, &c. The plaintiff replied, that after the making of the said writing obligatory, and before the said Feast of 7St. Michael, soil. 22 Aug. 1 anno 6, supradicto apud Themiltltorpe prad’
paedict Willihelm Wilde per quodd’ script’ suum cujus datus est eisdem die et anno (a) revocavit et 82 a abrogavit, Anglice, did call back, omnem authoritatem quamcunque quam ulem Willielmus Wilde per praed? scriptum ohligatorium dedisset, et commisisset praefat*
Willielmo Rugge arbitraton suo, et adtunc totaliter deadvocavit, et vacuum tenuit totum et quicquid dict’ Williemus Rugge post deliberationem ejusdem scripti sibi faceret in et circa dict' arbitrium regulam, &c. unde ex quo pried’ Wil’mus Wilde post confectionem praed’ scripti, et ante pried’ Festum Sancti Michadis tunc prox’ sequem’ in forma pried’ eexoneraxit, et abrogavit arbitraiorem praed’ de omni authoritate arbitrandi de et super praemissis in conditione praed superius specific’ contra formam et effectual conditionis illius, et submissionis
in ead’ mention' idem Robertas petit judicium, &c. Upon which the defendant demurred in law. And in this case three points were resolved. 1. That although V. Wilde the defendant was bound in a bond to stand to, abide, observe, &c. the rule, &c. arbitrament, &c. yet he might (a) countermand it (A) ; for a man cannot by his act make such authority, power, or warrant not countermandable, which is by the law and of its own nature countermandable; as if I make a (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 (b) 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. 4. 3 b. (c) 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 one case he shall forfeit his bond, and in the other he shall lose nothing; for, ex (d) nuda submissione non oritur actio (B) : and therewith agrees Brooke in abridging the said book of 5 Ed. 4. 3 b. and so the book of 5 Ed. 4. is well explained. Vide (e) 21 H. 6. 30 a. 28, 29. (f) H. 6. 6 b. 49 E.3.9 a. 18 E. 4. 9. 8 Ed. 4. 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 (C) : and therefore if there was no notice, then the defendant might take issue, quod 82 b non revocavit, &c. and if there was no notice, it should be found for the defendant; -as' if a man pleads, quod (g) feoffavit, dedit, or demisit pro termino vitae, 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 (h) 21 H. 6. 30 a. where W. Bridges brought an action of debt for 2001. 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 (a) 28 H. 6. 6 b. 6 H. 7. 10, &c. 3. It was resolved, that by this ((b) 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 (c) 5 Ed. 4. 3 b. which is to be intended, id 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, (d) 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 from the penalty of the bond) impossible [83 a] to be performed, and by consequence his bond is become (e) single, and without the benefit or help of any condition, because he has disabled himself to perform the condition (D) . Vide f) 21 Ed. 4. 55 a. per Choke, (g) 18 Ed. 4. 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 ease, 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.
(a) March. Arbit. 167.
(a) 2 Vent. 117. 291. March. Arbitrament 165. Br. Arbit. 49. Doct. pi. 40.
(A) Generally speaking, the submission may be revoked at any time before an award is made. Per Dallas, C.J. Clapham v. Higliam, 1 Bing. 89. S. C. 7 B. Moore, 403. Nor has the stat. 9 & 10 W. 3. c. 15., made any difference in this respect, Milne v. Greatrix, 7 East. 611.; and the submission may equally be revoked, whether it be by deed, or other writing, or by a Judge's order, or order of Nisi Prius, Olapham v. HigJiam, Milne v. Greatrix, vh. sup. It seems that where the submission is by deed, the revocation ought to be by deed also, according to the rule.—Unumquodque to dissolvi ligamine quo ligatum est, Vid. Rex v. Wait, 1 Bing. 121. S. C. 7 B. Moore, 473. Contra, Parker v. Lees, 2 Keb. 64. But the party cannot revoke his bond or deed of submission, Milne v. Greatrix, ub. sup. but will be liable to be sued upon it. And if after the submission (whether such submission is by a Judge's order, order of Nisi Prius, or agreement within stat. 9 & 10 W. 3.) is made a rule of Court, either party revokes the submission, such party so revoking will be guilty of and liable to an attachment for a contempt, Milne v. Greatru, Higliam v. Clapham, ub. sup. And where a Judge's order contained not only the submission of the parties, but directed that either party 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 Barn, and Aid. 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. 3. 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. Gharnley 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 Barn, and Aid. 252. and such marriage will be a breach of the agreement to submit, Gharnley v. WinstanUy, vh. sup. So also the death of either part}' 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 Barn, and Cress. 345. S. C. 3 Dow. and Byl. 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 Barn, and Aid. 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 Barn, and Cress. 144. S. C. 4 Dow. and Eyl. 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. Cod, 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, lb. and vid. BrUtow and Others v. Binns, 3 Dow. and Ryl. 184. Where after judgment by nil dicit, in an action of ejectment to recover possession 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 Barn, and Aid. 250. and vid. Snook v. Hellyer, 2 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. Greatrix, Marsh v. Bulteel, 5 Barn, and Aid. 507. S. C. 1 Dow. and Ryl. 106. S. C. 2 Chit. 317. And in Claplmm v. Higham, ub. sap. 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 deprive' the other party of his action. But as the award would be a 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 reconcileable to principle than that in Claphan 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. Iu 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.
(a) March Arbit. 165. Vin. Ab. Auth. A.
(b) March Arbit. 165. Bac. Max. Eeg. 19.
(c) Mar. Arbit. 164. 1 Eoll. 331. Br. Arbit. 35. See 8 E. 4. 10 b. per Catesby.
(d) Mar. Arb. 164.
(B) But an action of assumpsit will lie in case of a breach for revoking the submis- sion, although the submission is not under seal. Newgate v. Degelder, 2 Keb. 10. 20. 24. S. O, 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. Ftdt n. 5. Rodsdeit v. Hanidge, 2 Saund. 62 a.
(e) Postea 82 b. Br. Arbit. 49.
(f) Fitz. Arb. 12. Br. Arb. 4. .
(C) 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. Eoll. Ab. Auth. E. pi. 4. Blundell v. Brettargh, 17 Ves. 232. and vkL ace. with Vynior's case, that there need not be an averment in the pleadings, that the arbitrator had notice, Marsh v. Bulfeel, 5 Barn, and Aid. 507. S. G. 1 Dow. and Eyl. 106. S. C. 2 Chit. 317.
(g) ) Cr. El. 401. Cr. Jac. 411. 637. Cr. Car. 101. 170. Kelw. 7 a. Noy. 118. Doct. pi. 48, 49. 239. Yelv. 135. Br. Pleadings 145. in fine. 22 E. 3. 15 b. per Tremail. Plowd. 149 b. Co. Lit. 303 b. 5 B. and A. 511. 1 D. and E. 109.
(h) Antea 82 a. Br. Arbit. 49.
(a) Antea 82 a. Fitz. Arbit. 12. Br. Arbit. 4.
(b) 1 Brown. 62. 2 Brownl. 290. March Arb. 165, 166.
(c) Anita 82 a. Mar. Arb. 164. 1 Roll. 331. Br. Arbit. 35.
(d) Mar. Arb. 165, 166.
(e) 2 Brownl. 290.
(D) 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. Stoir, 4 Barn, and Cress. 103.
f) 5 Co. 21 a.
(g) 1 Brownl. 62. Br. Condit. 163. Touch. 391.