1819. Thursday, The authority of an arbitrator THIS is determined by the death of either party be fore the award. COOPER against JOHNSON. THIS cause was referred, in June, 1818, by order of Nisi Prius, to an arbitrator, and a verdict was entered for the plaintiff for the damages in the declaration, subject to the award. The parties and their witnesses had attended the arbitrator, but before any award was made, the defendant, on the 29th December died. The arbitrator, after being informed of that fact, made his award in January. A rule nisi had been obtained for liberty for the plaintiff to sign judgment in pursuance of the award, and for reviving the same against the executors. Gurney now shewed cause against the rule, and relied upon the case of Potts v. Ward (a), as an authority, to shew that the death of either party, before the making of the award by the arbitrator, was a revocation of his authority, Adams, contrà, contended, that a verdict having been here taken for the plaintiff, this case fell within the policy of the statute 17 Car. 2. c. 8., by which it was expressly enacted, that the death of either party, between the verdict and the judgment should not be alleged for error, provided the judgment be entered within two terms after such verdict. ABBOTT C. J. It is of great importance, that the decision of both Courts should be the same upon this (a) 1 Mars, 366. point. The Court of Common Pleas has already decided in the case cited, that the death of either party is a revocation of the arbitrator's authority, and that decision ought to be abided by. It may be very proper, in orders of Nisi Prius in future, to insert a clause to obviate the inconvenience arising from the death of either party, before the making of the award. Rule discharged. 1819. COOPER against JOHNSON. ASTON against GEORGE. THIS cause in July, 1817, had been referred to an arbitrator by a Judge's order, directing, among other things, "that if either party should, by affected delay or otherwise, wilfully prevent the arbitrator from making an award, he or she should pay such costs to the other, as this Court should think reasonable and just." In pursuance of this order, the parties and their witnesses attended the arbitrator, and proceeded in the reference for several successive days. On the 18th December, 1817, and before any award was made, the defendant, finding that she could not procure the attendance of several witnesses named in the affidavits, whose expences she had tendered, revoked the submis Thursday, sion. It was positively sworn that she revoked the submission solely on that account, and under legal advice. The Judge's order was not made a rule of court until the first day of this term, and a rule had been obtained by Littledale for taxing the plaintiff's costs, occasioned by and incident to the reference; and on the other hand, Hullock, Serjt. obtained a rule nisi for discharging the rule making the Judge's order a rule of Court, A Judge's order directed that a cause should be re ferred, and that either party wilfully preventing the ar bitrator from award by af fected delay should pay such or otherwise, Court thought reasonable and just: Held that such order might be made a rule of Court after one of the parties had re oked the autho rity of the arbitrator. But, second ly, where the revoked because authority was the party could not procure the attendance of material wit nesses before the arbitrator, the Court re fused to allow any costs. 1819. ASTON against GEORGE. Court, on the ground that it ought not to have been made a rule of Court after the revocation; and against this latter rule Littledale now shewed cause. If this application succeed on the ground that the submission was revoked before the order was made a rule of Court, a reference by order of Nisi Prius will in future be used as a means of delay, for the order cannot be made a rule of Court till the ensuing term; and the party may in the mean time revoke the authority. In the case of a submission by deed, the party has a remedy upon the deed, although the submission be revoked; but in this case he has no other remedy. Hullock, Serjt. and E. Lawes, contrà. The Court of Common Pleas, in King v. Joseph (a), held, that the submission, which was by deed, ought not to be made a rule of Court after it had been revoked. A Judge's order, until it is made a rule of Court, contains only an agreement to refer, and therefore does not differ in principle from the case of a reference by deed or agreement; and they cited Tremenhere v. Tresillian (b), and Milne v. Gratrix. (c) Besides the party is not without a remedy, for he may maintain a special action on the case, for breach of the agreement to refer. ABBOTT C. J. It seems to me, that there is a material distinction between a reference under a Judge's order and a reference by deed. In the latter case, the submission to arbitration is alone made a rule of Court, (b) Sid. 452. (a) 5 Taunt. 452. (c) 7 East, 608. by by virtue of the statute. It follows, therefore, that when the submission is revoked, there remains nothing which can be made a rule of Court. A Judge's order, on the other hand, may be made a rule of Court without reference to any statute. The order in this case contains not only the submission of the parties, but also a direction, that either party shall, under certain circumstances, pay such costs to the other as the Court shall think reasonable and just. Supposing, therefore, that either party may revoke the order, as far as regards the submission, it is still competent to the other party to make it a rule of Court, in order to enforce the other parts of the order. I think, therefore, that the Judge's order was properly made a rule of Court, and that this rule must be discharged. ment. BAYLEY J. I am of opinion that a Judge's order does more than a mere submission by bond or agreeThe Judge's order contains a direction enabling the Court, under certain circumstances, to exercise a discretion on the subject of costs; and how are we to form any judgment what costs are reasonable and just unless the order be made a rule of Court. HOLROYD J. I am of the same opinion. Supposing that the party might revoke his submission, still he had no authority to revoke the other part of the order; that part, at all events, therefore, ought to stand, and the order was properly made a rule of Court. BEST J. concurred. Hullock Serjt. and E Lawes now shewed cause against the rule for taxing the costs of the reference. Under 1819. ASTON against GEORGE. 1819. ASTON against GEORGE. Under the circumstances, the revocation of the submission was justifiable; for the defendant could not obtain the evidence of witnesses who were most material to her defence, and whose attendance might be compelled in a court of law. She cannot, therefore, be said to have wilfully prevented the arbitrator, by affected delay, from making his award within the meaning of the order. Littledale, contrà. The words of the order are affected delay or otherwise, and it is clear that the arbitrator has been prevented from making an award, by the act of the Defendant, who ought, therefore, to pay to the plaintiff the costs which he has incurred in the reference. The defendant, indeed, ought to have ascer tained, before any expence was incurred by the plaintiff in attending the arbitrator, whether she could procure the attendance of those witnesses whom she deemed material to her defence. ABBOTT C. J. By the terms of this order it is directed that if either party shall, by affected delay or otherwise, wilfully prevent the arbitrator from making an award, he or she shall pay such costs to the other as the Court shall think reasonable and just: and I think that giving a fair and liberal construction to these words, the Court has no power to direct any costs except where the party, by wilful, wrongful, or unreasonable delay, has prevented the arbitrator from making an award. The motive here for revoking the submission was because the party could not procure the attendance of material witnesses, and that cannot be considered as an affected delay within the meaning of the |