1841. MURRAY t'. BOUCHER. Per CURIAM.-The judge has rightly exercised his discretion. The issue raised by the plea would not put in issue the real question between the parties. Rule refused. A clause in a partnership deed, authorizing a refer ence in case of disputes between the partners, and the making the "award" of the arbitrator, instead of the "submission" a rule of Court, if it does not appear that award" was used by mistake for "sub mission," is not within the meaning of the 8 & 9 Wm. 3, c. 15, s. 1, and, therefore, a judge has no power to order witnesses to attend an arbitrator acting in such a matter. Where there to have been any misconduct on the part of the parties or arbitrators, the In the Matter of Arbitration between WOODCROFT and JONES. KELLY shewed cause against a rule nisi, obtained by Sir William Follett, calling on Woodcroft to shew cause why leave should not be given to revoke the submission to arbitration, if any had been made, and why the order of Mr. Justice Coleridge, requiring the attendance of certain witnesses, should not be set aside. It appeared that Messrs. Woodcroft and Jones had, by deed dated 15th of May, 1834, entered into partnership for a period of seven years, to be computed from the 31st of July, 1840. The deed contained a clause, "That if any doubt, difference, cause of suit, or dispute should arise at any time or times thereafter between the said parties, their executors or administrators, or any of them, touching the consideration of these presents, or any clause, matter, or thing herein contained, or the said copartnership, trade, or business (and such doubt, or difference, or dispute should not be fully decided between themselves within fourteen days after the same should arise), then that, on the request of either, it should be reduced to writing, and referred to arbitration." Clauses were then introduced did not appear for appointing an arbitrator, and also a provision made, "That for the further and better enforcing of every such award, the same shall from time to time be made a rule of the Court of King's Bench according to the direction of the to direct a sub- statute in that case made and provided." The partnership termission to arbi minated at the end of July, 1840. On proceeding to settle their affairs, it was found that certain disputes arose con Court refused tration to be revoked. cerning the partnership accounts, and Woodcroft accordingly had them reduced into writing, and on the 5th of August, sent them to Jones, requiring his consent to their being submitted to arbitration pursuant to the deed. This he refused, and would not take any step in the matter towards the final adjustment of the dispute. At the instance of Woodcroft, however, arbitrators were appointed to determine the disputes, and they made a peremptory appointment for the 29th of October to proceed with the reference. An order was obtained by Woodcroft from Mr. Justice Coleridge, requiring the attendance of certain witnesses before the arbitrators. On the 15th of August, 1840, Jones filed a bill for an account in the Court of Chancery, and for the final settlement of the partnership affairs. On the 17th, Woodcroft was served with a subpoena to appear to the bill. Proceedings were still pending, and a receiver appointed. On this state of facts, the present application was made for leave to revoke the submission to the arbitrators, and to rescind Mr. Justice Coleridge's order for the attendance of the witnesses before the arbitrator. Kelly now contended, that with respect to the first branch of the rule, there was no ground for revoking the submission to arbitration. With respect to the second branch of the rule, there was as little ground for granting it, as, the order of Mr. Justice Coleridge was perfectly legal and regular. Although the word in the deed describing the instrument to be made a rule of this Court was "award," and not " submission;" it was perfectly clear that the intention of the parties was that the "submission" should be made a rule of Court. In Pedley v. Westmacott (a), it was held, that the Court has jurisdiction in case of an award under the 8 & 9 Wm. 3, c. 15, though the submission bond was to make the award instead of the submission a rule of Court. That case proceeded on the authority of a manuscript case of Powell v. Phillips, (a) 3 East, 603. 1841. In the matter of WOODCROFT and JONES. 1841. In the matter of which was to the same effect. The only objection to the order which could be made, was that the learned judge WOODCROFT had not jurisdiction for that purpose, but the cases cited clearly shewed that he had. The rule ought, consequently, to be discharged. and JONES. Sir William Follett supported the rule, and contended, on the first part of the rule, that as there were now grounds pending with respect to these very matters in dispute before a Court of Equity, it would be exceedingly inconvenient that two litigations should be proceeding at the same time on the same subject. As to the second part of the rule, the deed of partnership only authorizing an "award” to be made a rule of Court, the case did not come within the meaning of the 8 & 9 Wm. 3, c. 15, s. 1, which only applied to "submissions." In Harrison v. Grundy (a), the Court decided, that they could not receive any complaint to set aside an award until the submission was made a rule of Court, and that a consent in the submission bond to make the award a rule of the Court instead of the submission, would not warrant their interposing. That was a direct authority on the point. In the cases cited on the other side, the intention of the parties evidently was, that the submission should be made a rule of Court, although the word "award" was used. As the words of the statute were not pursued, and no intention to make the submission a rule of Court instead of the award could be collected, the learned judge who made the order for the attendance of witnesses, had no jurisdiction for that purpose. Cur. adv. vult. COLERIDGE, J.-This was a rule for leave to revoke the submission to arbitration, if any such had been made, and for the rescinding an order made by me for the attendance (a) 2 Str. 1178. of certain witnesses before the arbitrators. 1841. In the matter of and JONES. The rule was moved in this form, because it was contended, that there had been no submission within the 8 & 9 Wm. 3, c. 15. It is WOODCROFT necessary, however, in considering the first part of the application to treat the submission as made within that statute, because, unless it is, it seems clear that it is not within the 3 & 4 Wm. 4, c. 42, s. 39, and if so, there would be no necessity for any permission to revoke. Making this assumption, and looking only to the facts of the case, I can see no reason for allowing the revocation. It is not averred, that the opposite party has in any way misconducted himself in any matter connected with the reference, or that he has not correctly pursued the provisions of the deed which contains the covenant to refer, nor is it alleged, that according to those provisions, the arbitrators have not been duly appointed, or in any way behaved amiss. Inconveniences indeed are stated, and that the applicant has filed his bill in equity concurrently with his opponent's proceeding on the clause of reference in the partnership deed. But assuming that clause to be valid, I cannot but see that the inconveniences alleged are attributable to the applicant's own wrongful breach of it, and I must not deprive the other party of the benefit of that clause on account of inconveniences so produced, or because the applicant has chosen to file a bill instead of abiding by it. This part of the rule, therefore, might thus be disposed of. If there is no submission, leave to revoke will be nugatory; if there is, the leave ought not to be given. But in order to determine on the latter part of the rule, it is necessary to decide whether there is a valid submission on the two statutes. Because the order for the attendance of witnesses ought not to have been made, unless the case is within them. And although it does not appear clearly that any of the witnesses made the present application, it is not fitting to leave it in uncertainty whether the order ought to be obeyed by them or not. The question arises under the following circumstances, Jones and Wood 1841. In the matter of and JONES. croft enter into partnership by deed, for a term which expired by effluxion of time on the 31st of July, 1840. The WOODCROFT deed contains a clause of reference in these words, "If any doubt, difference, cause of suit, or dispute should arise at any time or times thereafter between them, their executors, &c., touching the construction of these presents, or any clause, matter, or thing therein contained, or the said co-partnership trade, or business." The deed then goes on to prescribe the course to be pursued in the statement of matters of difference, the appointment of arbitrators, and other matters down to the making of the award, and then proceeds thus, "And for the further and better enforcing the observance of every such award, the same shall from time to time be made a rule of the Court of King's Bench, according to the direction of the statute in that case made and provided." It was contended, that the statutes only applied to agreements containing a stipulation that the submission should be made a rule of Court, and although it was not disputed that an agreement to make the award a rule of Court instead of the submission, had been held to warrant the interposition of the Court; those, it was said, were cases in which the Court had seen that the word "award” had been used by mistake for "submission," and that the parties had intended to make the "submission" a rule of Court. But that in this case, the parties had really intended only what they had expressed, namely, to make the award a rule of Court, that this was shewn by the language of the deed speaking of " every such award” being “from time to time” made a rule of Court. It certainly appears, that the parties contemplated the possibility of several differences and several arbitrations occurring in the course of the partnership. The framer of the deed probably thought that awards might be made rules of Court, but it is difficult to suppose that there could have been an intention of making the whole deed a rule of Court, which, as it embraces many objects, there might be frequent need of, and which, even with reference to the arbitration clause, |