Arbitration-Attorney—Articled Clerk -Illness-Discharge from Articles.

Where an articled clerk had served for nineteen months under his articles, and had then been compelled from illness and other causes to be absent for more than sixteen months, this Court permitted him to be discharged from the old articles and to serve the same master under new ones, for such a period as with the time during which he had already served would make up the full period of five years.

This was an application to the Court for an order that A. S. De Jivas might be discharged from articles of clerkship then current, and that he might be allowed to enter into fresh articles for the remainder of the time necessary to complete the five years.

It appeared from an affidavit made by the clerk that articles of clerkship, dated the 18th of November 1861, had been entered into for the period of five years, and that he had served the attorney with whom the articles were made for a period of nineteen months and twelve days from their date; that on the 1st of July 1863 he was compelled from ill-health and other causes to leave his occupation, and from that time to the present, a period of more than sixteen months, he had been absent; that he was now desirous of continuing his service with the same master.

Peter Williams, in support of the application. The clerk wishes to be allowed to enter into fresh articles, and that the time of actual service under the old articles may be allowed to count as good service.

[COCKBURN, C.J.-He does not ask that the time he was absent should count?] No.

[CROMPTON, J.-Why cannot he continue to serve under the old articles till they have expired?]

Even if he did, he would be obliged to come to this Court at the expiration of his articles-Ex parte Smith (1). It is perhaps more prudent that he should get rid of the

(1) 28 Law J. Rep. (N.s.) Q.B. 263.

Where there was cause to believe that an arbitrator had failed to enlarge the time for making his award within the time provided by the order of reference, and he had refused to give any information as to whether the enlargement had been duly made or not, this Court, upon the application of one of the parties who wished to make the order of reference a rule of Court, ordered the arbitrator to attend before the Master to be examined upon the matter, in order that the order of reference might be made a rule of Court.

Rule calling upon the defendant to shew cause why a rule obtained to make an order of reference a rule of Court should not be discharged on the ground that the affidavits did not verify the time at which the enlargements of time were made.

It appeared that, by an order of Blackburn, J., all matters in difference in a cause of Roberts v. Evans were referred to an arbitrator, who, on the 5th of February 1864, made and published his award in writing. The proper time for making the award, supposing there had been no enlargement, was on or before the 11th of January. The award on the face of it shewed an enlargement to the 1st of February, and another to the 1st of March. It was sworn that the latter enlargement was not made till the 5th of February, when the award and order of reference were delivered. The arbitrator refused to make an affidavit or

(2) Cockburn, C.J., Crompton, J., Mellor, J. and Shee, J.

to state whether the enlargements were made in due time.

Mellish shewed cause against the rule, and contended that the arbitrator had no right to refuse to give the party the information which he asked for.

[COCKBURN, C.J.-What ground can he have for refusing?|

Some strange notion of the dignity of his office.

[COCKBURN, C.J.-Surely this Court has power, under either section 46. or section 48. of the Common Law Procedure Act, 1854, to order him to appear and be examined?]

Yes; he may be ordered to appear in Court for the purpose, or he may be ordered to attend before a Judge or a Master, and be examined on oath. The party has a clear right to get the information he requires.

the arbitrators have exceeded their authority by awarding on the matter.

This was an appeal, by the plaintiff, against the decision of the Court of Queen's Bench in favour of the defendant.

The action was on an award for 2,000l. The declaration alleged that, in pursuance of the terms of a lease between the plaintiff and the defendant, by which it was agreed that in case of differences respecting the construction of the lease or anything therein contained, or respecting any other matter or thing connected with or relating to one or more of the subjects thereof, such differences should be referred to the arbitration of three indifferent persons,-one to be chosen by each of the parties and the third by such two persons; and it averred that, differences and disputes having arisen, the plaintiff appointed A. and the defendant appointed B. as the two arbitrators, and that A. and B. not agreeing in appointing a third arbitrator, C. was appointed third arbitrator by a Judge under the provisions of the Common Law Procedure Act, 1854, and that the 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 differences and doubts should be referred, as alleged in the declaration.

The appointment of B. by the defendant in fact was not to determine all the matters in difference alleged in the declaration, but conferred only a limited authority to decide on the construction of the lease.

On the reference, the defendant objected to the arbitrators going into any question of the amount of damages or anything beyond the construction of the lease; but he did, under protest, attend meetings of the arbitrators, when the question of damages. was gone into, and cross-examined some of the witnesses.

The Court below thought by thus appearing under protest to contest the question of the damages, the defendant did not waive the substantial objection that he had taken to their authority, and gave judgment in his favour.

H. Lloyd, for the plaintiff, the appellant. -The arbitrators clearly had power over the construction of the lease, and therefore the award is good as to that part.

But the power to decide on the lease incidentally gives a power to award damages. The defendant's protest and objection was practically a nullity, as he continued his attendance before the arbitrators and crossexamined the witnesses on the question of damages. This conduct on his part was a waiver of all objection to the arbitrators' authority over damages.

[WILLIAMS, J.-If the parties attend and so give the arbitrators power, is it not a new submission?]

No; a waiver acts only by way of estoppel. The defendant cannot be held to say that the arbitrators had not originally authority to decide on the question of damages after he has discussed the question before them. Ringland v. Lowndes (1) is a clear authority that if a party protests and yet attends before an arbitrator his protest comes to nothing, and his objection fails.

[POLLOCK, C. B.-I cannot distinguish, in my own mind, between a man being a Judge and a man being a Judge quoad hoc. I do not see why-if an arbitrator deals with a matter beyond his jurisdiction, and the party protests, doubting the arbitrator's authority, and yet goes on to take care of his own interests as he best can, saying, I am not sure that you are right-he is to be bound by the award. Why is he disentitled to protect himself from the consequences of his own view as to the arbitrator's authority being wrong? I think it a much more difficult question whether the defendant could have availed himself of a decision in his favour.]

Lush (J. Brown with him), for the defendant, was not called upon.

POLLOCK, C.B.-We are of opinion that the plea is proved, and that the judgment of the Court below ought to be affirmed. The other JUDGES concurred.

Judgment affirmed.

(1) 33 Law J. Rep. (N.s.) C.P. 25. But see the case reversing the judgment below, ibid. p. 337. NEW SERIES, 34.-Q.B.

Merchant Shipping Act-Local Marine Board-Duty of summoning Witnesses for the Defence--Stat. 17 & 18 Vict. c. 104. ss. 15, 241.

A local marine board, appointed under the Merchant Shipping Act, 1854, to inquire into a charge of alleged misconduct against the master or mate of a vessel, has a discretionary power as to granting summonses for witnesses for the defence.

It is a proper course for such Court before granting the summonses, to inquire who the witnesses are, and what they are expected to prove; and to refuse the summons in respect of any witness who can only speak to matters clearly irrelevant.

The witnesses summoned for the defence are witnesses of the Court, and their expense is borne not by the defendant but by the public.

This was a motion for a certiorari to the local marine board of London, to bring up a conviction or finding of the local marine board, on a summons for an inquiry into the conduct of the defendant.

By the Merchant Shipping Act, 17 & 18 Vict. c. 104. ss. 241, 242, the local marine board have power of inquiring into any charges of misconduct of any master or mate on board of merchant vessels, and of suspending or cancelling any master's or mate's certificates. The defendant, a duly certificated master, was prosecuted before the local marine board for alleged misconduct, under section 241. According to the affidavits in support of the motion, the defendant, two days before the hearing, required the secretary of the board to cause certain witnesses for him to be summoned, giving the secretary a list of them. The secretary told the defendant the board could 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 convicted of misconduct in the absence of his * Decided in Trinity Term.

C

solicitor, and had his certificate suspended for three months.

By the affidavits in answer, it appeared that the defendant on entering the room was asked whether he had an attorney, and that in answer he said that he could conduct the case himself; that at the commencement of proceedings the board offered to adjourn the hearing, and give the defendant an opportunity to insure the attendance of his witnesses; that the defendant answered that he wished the inquiry then to proceed; that the inquiry then proceeded and witnesses were heard for the prosecution, and the defendant made a statement; that he was then asked to furnish a list of witnesses whom he required, and to inform the board what they were likely to prove, that the Court might exercise a discretion whether they should be called, and that an adjournment should be granted for the further hearing; that the defendant, in reply, stated that he would have the case decided then, and that it was decided accordingly.

H. Giffard shewed cause.-These proceedings are under the Merchant Shipping Act, 1864, stat. 17 & 18 Vict. c. 104, and are perfectly regular. By section 242. the local marine board has power to suspend or cancel a master's certificate. The objections proposed to be urged fail in point of law, and are not grounded on fact. First, the board was not bound to summon the defendant's witnesses. Section 241. gives the board all the powers of inspectors, and section 15. gives the inspector power to summon all such witnesses as he may think fit. The board has the same discretionary powers as to what witnesses it will require to attend, and may decline to summon any when it is not satisfied that their evidence will be of importance. Further, the defendant never put the board into a position to decide on the propriety of summoning the witnesses. With regard to the objection respecting the exclusion of the attorney, the affidavits in answer shew clearly that the defendant did not complain of his attorney being excluded, but said that he would conduct his case himself.

Joyce and Gibbons, in support of the rule. The defendant had a right to have his witnesses summoned for him. The legislature never intended that the defen

dant should be bound to disclose to the other side and to the Court the nature of the evidence which he supposed that they would give.

[CROMPTON, J.-It may be that the rule is framed by analogy to the practice of parliamentary committees, to require the party to state what the witnesses will prove. They need not disclose the evidence in a way to do any damage.]

The legislature says, section 241, that the board is to afford the defendant full opportunity of defence. The board, therefore, has no such discretionary power as the inspectors have. The powers conferred sub modo on the inspectors are conferred absolutely on the board. The inspector could inquire only into certain specified matters under section 15, but section 241. gives larger powers to the board. Further, the statute says that the defendant is to have full opportunity of making his defence by himself or otherwise. That means that he may do it either in person or by means of his legal advisers. The defendant had therefore an absolute legal right to have his attorney present, and the attorney swears positively that he was excluded. These proceedings of the Court amount to a denial of justice. A certiorari is the only remedy.

CROMPTON, J.-The certiorari can only be granted if it is shewn that the local marine board have acted beyond their jurisdiction. They were the judges whether the defendant had been guilty of misconduct. If they have decided without hearing the case, I think I ought to grant the certiorari. The question, to my mind, is, whether the defendant has been heard. It is hardly necessary to say anything on the points of law, as I think that the substantial matter. of complaint is answered by the affidavits. Proceedings of this kind, which are penal, if not criminal, should be as public as possible. Those who conduct such an inquiry should give the party charged every opportunity of having his attorney and counsel and witnesses present. It can hardly be contended that there was no evidence of misconduct under the act of parliament. But the applicant relies on section 241, which provides that the accused shall have full opportunity of making his defence, by himself or otherwise; and

the word "otherwise" there seems to mean by his counsel or attorney. The only clause under which any power of summoning witnesses is given is by the proviso in section 241, that the board shall have all the powers of inspectors appointed by the Board of Trade; and by section 15. an inspector may, by summons under his hand, require the attendance of all such persons as he may think fit to examine. Witnesses,

therefore, are to be summoned under the power given by section 15; and I think the local marine board takes the power of summoning witnesses with the same discretionary qualification as an inspector had. 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 the local marine board, where all the expense of the witnesses is to be thrown upon the public. It would be right for the board to prevent a witness being vexatiously summoned by a party. I think there was nothing wrong in the Court saying to the defendant "give us a list of the witnesses you wish summoned, and tell us what they are expected to prove." Here the defendant was asked twice whether he wished the case adjourned for the purpose of having the attendance of the witnesses, and was told that it was, to some extent, discretionary with the Court to grant the summonses. The Court, indeed, would act very ill if they did not allow a defendant to have a summons for any one that, in the widest sense, could be considered a necessary witness. But the defendant does not even allege that it would be inconvenient for him to give a list of the witnesses. It is suggested that he wanted witnesses to prove that in some other cases the local marine board had not considered the course of conduct charged on him to be misconduct. That was an irrelevant matter which he should not have been allowed to prove. But the defendant, in answer to the inquiry by the Court, says, in effect, that he does not want any witnesses. The same reply may be given to the objection respecting the exclusion of the solicitor. No complaint is made by the defendant of the absence of his solicitor. He is asked, in effect, whether he wants his solicitor, and he says I am going to conduct my case myself. If a solicitor be prevented getting in while a

trial is going on, it is very difficult to say that the Court has on that account no jurisdiction. On the whole, I think it cannot be said that in this case there was no hearing. If the board has not heard the case, they are liable to a mandamus to hear it. I therefore put my decision upon this ground, that the defendant said that he would go on without witnesses, and would conduct his case himself, and that he wished the case to go on then and there. At the same time I own that I think that there was some obstruction to the admission of the solicitor.

1864. Nov. 18.

Rule discharged.

THE MERCANTILE MARINE

INSURANCE COMPANY v.
TITHERINGTON.

Marine Insurance-Policy-Computation of Time.

By a policy of insurance a ship was insured from Liverpool to any port in the Pacific Ocean, "and during thirty days' stay in her last port of discharge." In another part of the policy there was the usual printed clause, by which she was to be insured "until she hath moored at anchor twenty-four hours in good safety." She arrived at M, her port of discharge, at 7 p.m. on the 25th of May, and anchored there, and at 3·45 a.m. on the 24th of June she was driven ashore and lost :--Held, that the loss was covered by the policy, as the thirty days had not expired when she was so lost.

This was a SPECIAL CASE stated for the opinion of this Court under the Common Law Procedure Act, 1852, in an action for the recovery of money alleged to be due from the defendant by way of contribution towards the sum of 3,000l., paid by the plaintiffs upon the total loss of the Albemarle, on the 24th of June 1863.

CASE.

1. On the 26th of November1862, Messrs. A. Baruchson & Co., the owners of the ship Albemarle, effected a policy of insurance on such ship for the sum of 2,000l., a copy of which is hereunto annexed.

2. This policy was underwritten by the defendant for the sum of 1007.

3. On the 26th of December 1862, B. &