David Griffiths and Others against Walter Antony, and Margaret, his Wife, Exectrix of Thomas Griffiths
| Jurisdiction | England & Wales |
| Date | 1836 |
| Year | 1836 |
| Court | Court of the King's Bench |
English Reports Citation: 111 E.R. 1300
IN THE COURT OF KING'S BENCH.
1300 GRIFFITHS V. ANTHONY 8 AD. ft E. 621. of Record." This order of reference contains such an agreement; for the clause which provides for making the order a rule of Court is (like all the other terms of the reference) consented to by the parties; and such a consent, in an order of this kind, is an agreement, under the sanction of [621] the Court. Besides, even if the parties themselves could have revoked, persons claiming to act as their attorneys could not do it on their behalf, in a criminal prosecution. Sir John Campbell, Attorney General, and Humfrey, contra. In the case of an indictment, parties have still the same power of revoking a submission to arbitration which they had at common law. Stat. 3 & 4 W. 4, c. 42, s. 39, contemplates two descriptions of cases : the one, where there are proceedings in Court; the other, where the matter is referred out of Court. If it had been intended, in the first class of cases, to include those arising upon indictment, express mention would have been made of them: but the language used is "in any action now brought or which shall be hereafter brought;" and the words which describe the remaining class evidently relate to submissions by bond or other private agreement. Here, the reference was made by order of Nisi Prius, but not in an action ; and the case, therefore, falls within neither provision of the statute. [Patteson J. Is there any instance in which the Court has interfered to restrain an arbitrator from making an award, after revocation? The award may be a nullity when made; but that is a different point. Platt. Search has been made for precedents; but none has been found.] Lord Denman C.J. I am clearly of opinion that this case of revocation is noc within the statute. To take away the power of revocation which parties had at common law, the enactment ought to be very clear. The thirty-ninth section of stat. 3 & 4 W. 4, c. 42, applies [622J to two distinct cases; first, where the parties consent to a rule of Court, Judge's order, or order of Nisi Prius, in any action ; secondly, where there is a submission containing an agreement for making it a rule of Court. This case does not fall within the first branch of the enactment; and the clause which has been relied upon does not constitute an agreement with the second. But, as to the rule before us, we cannot avoid disposing of it; and I think that it must be discharged. Patteson J. I have not the slightest doubt on this subject. The thirty-ninth section is evidently framed to apply to civil actions. The whole Act is so. The words, "any submission to reference containing an agreement that such submission shall be made a rule of any of His Majesty's Courts of Record," evidently point to stat. 9 & 10 W. 3, c. 15, and the " submission " there spoken of. In 1 Chitty's Statutes, 33, it is said, in note (b) to stat. 9 & 10 W. 3, c. 15, that " criminal offences which are personal, such as assault," &c., " for which an action of damages would lie, may, it is said, be submitted to arbitration;" "and if an indictment haa been preferred in any such case the matter of complaint may still be referred by leave of the Court." But that is at common law, not under the statate. We cannot, however, avoid discharging this rule. It would be a stretch of our authority to restrain the arbitrator. Williams J. Whether or not the Legislature intended to include references on indictment in the thirty-ninth section of stat. 3 & 4 W. 4, c. 42, is immaterial: but the proceeding is so rare that it probably was not thought of. The section clearly refers to cases where there is an ac-[623]-tion in Court, or where parties to an action have consented to a clause for making the submission a rule of Court, and such consent has been given, not through the order of Nisi Prius, but by agreement between themselves. Coleridge J. The provisions of stat. 3 & 4 W. 4, c. 42, s. 39, are for references of actions at common law, and references under the Statute of William 3. Rule discharged. david griffiths and others against walter anthony, and margaret, his Wife, Executrix of Thomas Griffiths. Friday, November llth, 1836, An executor haviug exhibited an inventory in the Ecclesiastical Court, at the instance of legatees, the latter filed exceptions to the inventory, and the executor put in his answer. The Court examined witnesses viva voce as to the correctness of the inventory, and afterwards decreed that the inventory was false and fraudulent, and ordered it to be amended according to tha Judge's minutes. This Court, on motion by the executor, granted a prohibition. S AD. & E. 624,: GRIFFITHS V. ANTHONY 1301 Although the parties had consented to the examination being taken viva vooe, and the executor had, after such examination, applied for leave to...
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