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1864.

difficulty at once by making the present Nov. 4.

Ex parte A. S. DE JIVAS. application. Arbitration - Attorney - Articled Clerk

Per Curiam (2).--He may have leave -IllnessDischarge from Articles.

to enter into fresh articles to serve for such time as will be necessary to make up

the Where an articled clerk had served for five years with the time actually served nineteen months under his articles, and had under the old articles; he being discharged then been compelled from illness and other from the old articles. causes to be absent for more than sixteen

Order accordingly. months, this Court permitted him to be discharged from the old articles and to serve the same master under new ones, for such a

1864. period as with the time during which he

Nov. 10.

ROBERTS V. EVANS. had already served would make up the full period of five years.

Award - Arbitrator Enlargement of

Time-Jurisdiction. This was an application to the Court for an order that A. S. De Jivas might be Where there was cause to believe that an discharged from articles of clerkship then arbitrator had failed to enlarge the time for current, and that he might be allowed to making his award within the time provided enter into fresh articles for the remainder by the order of reference, and he had refused of the time necessary to complete the five to give any information as to whether the years.

enlargement had been duly made or not, It appeared from an affidavit made by this Court, upon the application of one of the clerk that articles of clerkship, dated the parties who wished to make the order of the 18th of November 1861, had been reference a rule of Court, ordered the arbientered into for the period of five years, trator to attend before the Master to be and that he had served the attorney with examined

upon the matter, in order that the whom the articles were made for a period order of reference might be made a rule of of nineteen months and twelve days from Court. their date ; that on the 1st of July 1863 he was compelled from ill-health and other Rule calling upon the defendant to shew causes to leave his occupation, and from cause why a rule obtained to make an order that time to the present, a period of more of reference a rule of Court should not be than sixteen months, he had been absent; discharged on the ground that the affidavits that he was now desirous of continuing his did not verify the time at which the enlargeservice with the same master.

ments of time were made. Peter Williams, in support of the appli- It appeared that, by an order of Blackcation. The clerk wishes to be allowed to burn, J., all matters in difference in a cause enter into fresh articles, and that the time of Roberts v. Evans were referred to an of actual service under the old articles may arbitrator, who, on the 5th of February be allowed to count as good service. 1864, made and published his award in

COCKBURN, C.J.--He does not ask that writing. The proper time for making the the time he was absent should count ?] award, supposing there had been no enlargeNo.

ment, was on or before the 11th of January. [CROMPTON, J.-- Why cannot he continue The award on the face of it shewed an to serve under the old articles till they have enlargement to the 1st of February, and expired ]

another to the 1st of March. It was sworn Even if he did, he would be obliged to that the latter enlargement was not made come to this Court at the expiration of his till the 5th of February, when the award articles-Ex parte Smith (1). It is perhaps and order of reference were delivered. The more prudent that he should get rid of the arbitrator refused to make an affidavit or

(2) Cockburn, C.J., Crompton, J., Mellor, J. (1) 28 Law J. Rep. (N.s.) Q.B. 263.

and Shee, J.

to state whether the enlargements were the arbitrators have exceeded their authority made in due time.

by awarding on the matter. Mellish shewed cause against the rule, and contended that the arbitrator had no This was an appeal, by the plaintiff, right to refuse to give the party the infor- against the decision of the Court of Queen's mation which he asked for.

Bench in favour of the defendant. [COCKBURN, C.J.—What ground can he The action was on an award for 2,0001. have for refusing?)

The declaration alleged that, in pursuance Some strange notion of the dignity of of the terms of a lease between the plaintiff his office.

and the defendant, by which it was agreed [COCKBURN, C.J.-Surely this Court has that in case of differences respecting the power, under either section 46. or section construction of the lease or anything therein 48. of the Common Law Procedure Act, contained, or respecting any other matter 1854, to order him to appear and be or thing connected with or relating to one examined ?]

or more of the subjects thereof, such differYes; he may be ordered to appear in ences should be referred to the arbitration Court for the purpose, or he may be ordered of three indifferent persons, one to be chosen to attend before a Judge or a Master, by each of the parties and the third by such and be examined on oath. The party two persons; and it averred that, differences has a clear right to get the information he and disputes having arisen, the plaintiff requires.

appointed A. and the defendant appointed

B. as the two arbitrators, and that A. and Per Curiam (1). Let a peremptory B. not agreeing in appointing a third arbiorder issue that he shall attend before the trator, C. was appointed third arbitrator by Master to be examined on oath, and let the a Judge under the provisions of the Comrule be enlarged until next term.

mon Law Procedure Act, 1854, and that the Order accordingly.

award was made by A. and C.

The defendant, by his seventh plea, pleaded that he did not choose B. to be

such second arbitrator to whom the said [IN THE EXCHEQUER CHAMBER.) differences and doubts should be referred, (Appeal from the Court of Queen's Bench.) as alleged in the declaration. 1864.

The appointment of B. by the defendant DAVIES V. PRICE. June 14.

in fact was not to determine all the matters

in difference alleged in the declaration, but Arbitration -- Objecting to Arbitrator's conferred only a limited authority to decide Authority -- Attending before Arbitrator on the construction of the lease. under Protest.

On the reference, the defendant objected

to the arbitrators going into any question If a party to a reference objects that the of the amount of damages or anything arbitrators are entering upon the considera- beyond the construction of the lease; but tion of a matter not referred to them, and he did, under protest, attend meetings of the protests against it, and the arbitrators never- arbitrators, when the question of damages theless go into the question and receive evi- was gone into, and cross-examined some of dence on it, and the party, still under protest, the witnesses. continues to attend before the arbitrators The Court below thought by thus apand cross-examines the witnesses on the point pearing under protest to contest the quesobjected to, he does not thereby waive his ob- tion of the damages, the defendant did not jection, nor is he estopped from saying that waive the substantial objection that he had

taken to their authority, and gave judgment (1) Cockburn, C.J., Crompton, J., Mellor, J. in his favour. and Shee, J.

H. Lloyd, for the plaintiff, the appellant. * Decided in the Sittings after Trinity Term,

--The arbitrators clearly had power over coram Pollock, C.B., Williams, J., Willes, J., the construction of the lease, and thereBramwell, B. and Channell, B.

fore the award is good as to that part.

*

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But the power to decide on the lease inci- BAIL COURT. dentally gives a power to award damages. 1864. THE QUEEN V. COLLINGRIDGE. The defendant's protest and objection was June 11.* practically a nullity, as he continued his

Merchant Shipping Act-Local Marine attendance before the arbitrators and cross

Board-Duty of summoning Witnesses for examined the witnesses on the question of

the Defence--Stat. 17 & 18 Vict. c. 104. ss. damages. This conduct on his part was a

15, 241. waiver of all objection to the arbitrators' authority over damages.

A local marine board, appointed under (WILLIAMS, J.-If the parties attend the Merchant Shipping Act, 1854, to inand so give the arbitrators power, is it not quire into a charge of alleged misconduct a new submission ?]

against the master or mate of a vessel, has No; a waiver acts only by way of estop- a discretionary power as to granting sumpel. The defendant cannot be held to say monses for witnesses for the defence. that the arbitrators had not originally It is a proper course for such Court before authority to decide on the question of granting the summonses, to inquire who the damages after he has discussed the ques- witnesses are, and what they are expected to tion before them. Ringland v. Lowndes prove; and to refuse the summons in respect (1) is a clear authority that if a party of any witness who can only speak to matters protests and yet attends before an arbitrator clearly irrelevant. his protest comes to nothing, and his ob- The witnesses summoned for the defence are jection fails.

witnesses of the Court, and their expense is [POLLOCK, C.B.- I cannot distinguish, in borne not by the defendant but by the public. my own mind, between a man being a Judge and a man being a Judge quoad hoc. I do This was a motion for a certiorari to the not see why-if an arbitrator deals with a local marine board of London, to bring up matter beyond his jurisdiction, and the a conviction or finding of the local marine party protests, doubting the arbitrator's board, on a summons for an inquiry into authority, and yet goes on to take care of the conduct of the defendant. his own interests as he best can, saying, I By the Merchant Shipping Act, 17 & 18 am not sure that you are right—he is Vict. c. 104. ss. 241, 242, the local marine to be bound by the award. Why is he dis- board have power of inquiring into any entitled to protect himself from the conse- charges of misconduct of any master or quences of his own view as to the arbitra- mate on board of merchant vessels, and of tor's authority being wrong? I think it a suspending or cancelling any master's or much more difficult question whether the mate's certificates. The defendant, a duly defendant could have availed himself of a certificated master, was prosecuted before decision in his favour.]

the local marine board for alleged misconLush (J. Brown with him), for the de- duct, under section 241. According to the fendant, was not called upon.

affidavits in support of the motion, the

defendant, two days before the hearing, POLLOCK, C.B.—We are of opinion that required the secretary of the board to cause the plea is proved, and that the judgment certain witnesses for him to be summoned, of the Court below ought to be affirmed. giving the secretary a list of them. The The other JUDGES concurred.

secretary told the defendant the board could Judgment affirmed.

not summon witnesses for the defence. It was stated also in the same affidavit that, on the day appointed, the defendant appeared with his solicitor to answer the charge, but that an officer of the court refused to allow the attorney to enter the board-room, and that the case was heard

without him, and the defendant was con(1) 33 Law J. Rep. (N.S.) C.P. 25. But see the victed of misconduct in the absence of his case reversing the judgment below, ibid. p. 337.

* Decided in Trinity Term. NEW SERIES, 34.-Q.B.

с

solicitor, and had his certificate suspended dant should be bound to disclose to the for three months.

other side and to the Court the nature of By the affidavits in answer, it appeared the evidence which he supposed that they that the defendant on entering the room would give. was asked whether he had an attorney, [CROMPTON, J.-It may be that the rule and that in answer he said that he could is framed by analogy to the practice of conduct the case himself; that at the com- parliamentary committees, to require the mencement of proceedings the board offered party to state what the witnesses will prove. to adjourn the hearing, and give the de- They need not disclose the evidence in a fendant an opportunity to insure the attend- way to do any damage.] ance of his witnesses; that the defendant The legislature says, section 241, that the answered that he wished the inquiry then board is to afford the defendant full opporto proceed ; that the inquiry then pro- tunity of defence. The board, therefore, ceeded and witnesses were heard for the has no such discretionary power as the prosecution, and the defendant made a inspectors have. The powers conferred sub statement; that he was then asked to fur- modo on the inspectors are conferred absonish a list of witnesses whom he required, lutely on the board. The inspector could and to inform the board what they were inquire only into certain specified matters likely to prove, that the Court might exer- under section 15, but section 241. gives cise a discretion whether they should be larger powers to the board. Further, the called, and that an adjournment should statute says that the defendant is to have be granted for the further hearing; that full opportunity of making his defence by the defendant, in reply, stated that he would himself or otherwise. That means that he have the case decided then, and that it was may do it either in person or by means of decided accordingly.

his legal advisers. The defendant had H. Giffard shewed cause.-These pro- therefore an absolute legal right to have ceedings are under the Merchant Shipping his attorney present, and the attorney Act, 1864, stat. 17 & 18 Vict. c. 104, and swears positively that he was excluded. are perfectly regular. By section 242. the These proceedings of the Court amount to local marine board has power to suspend a denial of justice. A certiorari is the only or cancel a master's certificate. The objec- remedy. tions proposed to be urged fail in point of law, and are not grounded on fact. First, the CROMPTON, J.—The certiorari can only board was not bound to summon the defen- be granted if it is shewn that the local dant's witnesses. Section 241. gives the marine board have acted beyond their jurisboard all the powers of inspectors, and diction. They were the judges whether the section 15. gives the inspector power to defendant had been guilty of misconduct. summon all such witnesses as he may think If they have decided without hearing the fit. The board has the same discretionary case, I think I ought to grant the certiorari. powers as to what witnesses it will require The question, to my mind, is, whether the to attend, and may decline to summon any defendant has been heard. It is hardly when it is not satisfied that their evidence

necessary to say anything on the points of will be of importance. Further, the defen- law, as I think that the substantial matter dant never put the board into a position to of complaint is answered by the affidavits. decide on the propriety of summoning the Proceedings of this kind, which are penal, if witnesses. With regard to the objection not criminal, should be as public as possible. respecting the exclusion of the attorney, Those who conduct such an inquiry should the affidavits in answer shew clearly that the give the party charged every opportunity of defendant did not complain of his attorney having his attorney and counsel and witnesses being excluded, but said that he would

present. It can hardly be contended that conduct his case himself.

there was no evidence of misconduct under Joyce and Gibbons, in support of the the act of parliament. But the applicant rule. — The defendant had a right to have relies on section 241, which provides that the his witnesses summoned for him. The accused shall have full opportunity of making legislature never intended that the defen- his defence, by himself or otherwise ; and Witnesses,

THE MERCANTILE MARINE

INSURANCE COMPANY V.

the word “otherwise" there seems to mean trial is going on, it is very difficult to say by his counsel or attorney. The only clause that the Court has on that account no under which any power of summoning wit- jurisdiction. On the whole, I think it nesses is given is by the proviso in section cannot be said that in this case there was 241, that the board shall have all the no hearing. If the board has not heard the powers of inspectors appointed by the case, they are liable to a mandamus to Board of Trade ; and by section 15. an hear it. I therefore put my decision upon inspector may, by summons under his hand, this ground, that the defendant said that he require the attendance of all such persons as would go on without witnesses, and would he may think fit to examine.

conduct his case himself, and that he therefore, are to be summoned under the wished the case to go on then and there. power given by section 15; and I think At the same time I own that I think that the local marine board takes the power of there was some obstruction to the admission summoning witnesses with the same dis- of the solicitor. cretionary qualification as an inspector had.

Rule discharged. Those witnesses which are summoned are, I think, to be paid for by the Court which summons them. The statute seems to me to give a discretion to bodies such as

1864. the local marine board, where all the Nov. 18.

TITHERINGTON. expense of the witnesses is to be thrown upon the public. It would be right for

Marine Insurance-Policy-Computation the board to prevent a witness being vexa

of Time. tiously summoned by a party. I think there was nothing wrong in the Court saying By a policy of insurance a ship was into the defendant "give us a list of the sured from Liverpool to any port in the witnesses you wish summoned, and tell us Pacific Ocean, and during thirty days' what they are expected to prove." Here the stay in her last port of discharge.In andefendant was asked twice whether he other part of the policy there was the usual wished the case adjourned for the purpose printed clause, by which she was to be insured of having the attendance of the witnesses, "until she hath moored at anchor twenty-four and was told that it was, to some extent, hours in good safety.She arrived at M, her discretionary with the Court to grant the sum- port of discharge, at 7 p.m. on the 25th of monses. The Court, indeed, would act very May, and anchored there, and at 3:45 a.m. ill if they did not allow a defendant to have on the 24th of June she was driven ashore a summons for any one that, in the widest and lost :-Held, that the loss was covered sense,could be considered a necessary witness. by the policy, as the thirty days had not exBut the defendant does not even allege that pired when she was so lost. it would be inconvenient for him to give a list of the witnesses. It is suggested that This was a SPECIAL CASE stated for the he wanted witnesses to prove that in opinion of this Court under the Common some other cases the local marine board Law Procedure Act, 1852, in an action had not considered the course of conduct for the recovery of money alleged to be charged on him to be misconduct. That due from the defendant by way of contriwas an irrelevant matter which he should bution towards the sum of 3,0001., paid by not have been allowed to prove. But the the plaintiffs upon the total loss of the Albedefendant, in answer to the inquiry by the marle, on the 24th of June 1863. Court, says, in effect, that he does not

CASE. want any witnesses. The same réply may 1. On the 26th of November1862, Messrs. be given to the objection respecting the A. Baruchson & Co., the owners of the ship exclusion of the solicitor. No complaint is Albemarle, effected a policy of insurance on made by the defendant of the absence of such ship for the sum of 2,0001., a copy of his solicitor. He is asked, in effect, whether which is hereunto annexed. he wants his solicitor, and he says I am 2. This policy was underwritten by the going to conduct my case myself.

defendant for the sum of 1001. solicitor be prevented getting in while a 3. On the 26th of December 1862, B. &

If a

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