of the action was held to be good (Bustros v. Lenders (1871), L. R. 6 C. P. 259). But s. 11 provided for the granting of a stay on such terms as to costs or otherwise as to the Court or judge might seem fit, "provided always that any such rule or order may at any time afterwards be discharged or varied as justice may require," and this proviso is not re-enacted in s. 4 of the Arbitration Act, 1889. This case, therefore,. is not now to be relied on. Appcal. In the King's Bench Division an appeal lies from the decision of a Master on an application for a stay to a judge in chambers. Notice of such appeal must be given within five days (Order LIV., r, 21). The order made by the judge in chambers is an interlocutory order within the meaning of s. 1 (1) of the Supreme Court of Judicature Act, 1894, and therefore by clause (b) of that section no appeal lies from it without the leave of the judge, or, in the event of his refusal, of the Court of Appeal. Leave having been obtained, an appeal from the judge in chambers lies to the Court of Appeal, since the matter is one "of practice and procedure" within the meaning of s. 1 (4) of the Supreme Court of Judicature Act, 1894. Notice of such appeal must be given within four days (Order LVIII., r. 3), and the appeal must be entered within fourteen days (Order LVIII., r. 15). In the Chancery Division an appeal likewise lies. SECTION 5. POWER OF COURT TO APPOINT AN ARBITRATOR, Previous law. Lands Clauses and Railways Clauses Acts. Cases within the section. "Submission." "After differences have arisen." "To a single arbitrator." "All the parties do not concur.” "An appointed arbitrator." "Refuses to act." "Incapable of acting." Failure or neglect of arbitrator to act. "Two arbitrators." "Umpire." "And do not appoint him." "Where an appointed umpire or third arbitrator refuses to act." Failure or neglect of umpire to act. "Written notice to appoint." The appointment. Discretion of the Court. Application of section to arbitration under Companies Clauses Act, 1845. 5. In any of the following cases : (a) Where a submission provides that the reference shall be to a (c) Where the parties or two arbitrators are at liberty to appoint any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator. If the appointment is not made within seven clear days after the service of the notice, the Court or a judge may, on application by the party who gave the notice, appoint an arbitrator, umpire, or third arbitrator, who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties. Previous law. S. 12 of the Common Law Procedure Act, 1854, was almost identical in terms and there is no material difference. At common law, if a party failed to appoint or concur in the appointment of an arbitrator pursuant to an agreement to refer, an action for damages would lie (Thomas v. Fredricks (1847), 10 Q. B. 775; 16 L. J. Q. B. 393; Livingston v. Ralli (1855), 5 E. & B. 132; 24 L. J. Q. B. 269; Brunsdon v. Staines Local Board (1884), 1 C. & E. 272); but a party who was bound to appoint an arbitrator performed his obligation by making the appointment, though the arbitrator appointed refused to act (Cooper v. Shuttleworth (1856), 25 L. J. Ex. 114). If an arbitrator died, the effect at common law was to put an end to the submission and reopen the whole matter (Cheslyn v. Dalby (1836), 2 Y. & C. 170; Crawshay v. Collins (1818), 3 Swanst. 90). Lands Clauses and Railways Clauses Acts. The Lands Clauses Act, 1845 (8 & 9 Vict. c. 18), s. 29, and Railways Clauses Act, 1845 (8 & 9 Vict. c. 20), s. 130, provide that "if when a single arbitrator shall have been appointed, such arbitrator shall die or become incapable to act before he shall have made his award, the matters referred to him shall be determined under the provisions of this or the special Act, in the same manner as if such arbitrator had not been appointed." Cases within the section. The Court or a judge has power to appoint an arbitrator, umpire, or third arbitrator under s. 5 in any of the following cases, and not otherwise : (a) Where there has been a valid submission, and Differences within the submission have arisen between the parties, and The submission provides that the reference shall be to a single arbitrator, and All the parties do not concur in the appointment of an arbitrator; (b) Where an appointed arbitrator refuses to act, or Is incapable of acting, or Dies, and The submission does not show that it was intended that the vacancy should not be supplied, and The parties do not supply the vacancy; (c) Where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator, and Do not appoint him; (d) Where an appointed umpire or third arbitrator refuses to act, or Is incapable of acting, or Dies, and The submission does not show that it was intended that the vacancy should not be supplied, and The parties or arbitrators do not supply the vacancy: Provided that a party to the submission has served the other parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator; and The appointment is not made within seven clear days after service of such notice; and Application has been made to the Court to make the appointment by the party who gave the notice. The power of the Court to appoint is limited to cases within the section (Smith and Service and Nelson & Sons, In re (1890), 25 Q. B. D. 545), and does not arise where there is a method provided by the submission for the appointment of an arbitrator, and that method, e.g. the appointment by the President of the Institute of Civil Engineers, is not invoked (Wilson & Son and The Eastern Counties Navigation, &c., Co., In re, [1892] 1 Q. B. 81). "Submission," For what constitutes a valid submission, see s. 27 and commentary thereon, post. To give the Court jurisdiction there must be a submission to arbitration and not a mere valuation (see Boss v. Helsham (1866), L. R. 2 Ex. 72; Collins v. Collins (1858), 26 Beav. 306; 28 L. J. Ch. 184). After differences have arisen." The powers of the Court do not arise until differences have arisen, and it would seem, by analogy to the decisions under s. 4, that it is for the Court to decide whether in fact differences have arisen or not (see ante, p. 91). "To a single arbitrator." S. 5 (a) refers to a submission which provides that the reference shall be to a single arbitrator. Many arbitration clauses merely provide that any disputes which may arise shall be referred to arbitration. In such cases, where the provisions of the First Schedule to the Act are excluded from the submission, it would seem that the provision does not apply, and the Court consequently has no power to appoint an arbitrator if all the parties do not concur in appointing one. But if the provisions of the First Schedule are not excluded the Court has power, because the First Schedule provides that: "(a) If no other mode of reference is provided, the reference shall be to a single arbitrator." An agreement to refer disputes to "an arbitrator or umpire" is in effect a reference to a single arbitrator. Illustration. A contract for the performance of work contained an agreement to refer disputes to an "arbitrator or umpire." Held by the Court of Appeal that the submission provided for reference to a single arbitrator within the meaning of s. 5, the expression "arbitrator or umpire" being tautologous (In re Eyre and Leicester Corporation, [1892] 1 Q. B. 136). "All the parties," it would seem, means "all the parties to the agreement to refer." If the agreement is between the parties, their executors. and administrators, and a party dies before an arbitrator is appointed. the refusal of the executor to appoint amounts to a failure to concur, and the powers of the Court to appoint will consequently arise. But if the agreement to refer is merely a personal agreement between the parties, and is not expressed to be binding on their executors or administrators, then the refusal of an executor to appoint is not a failure to concur within the meaning of the section. Illustration. Held An agreement between P. and S. provided for the reference of disputes to two arbitrators, one to be appointed by each of the parties. Disputes arose, but before arbitrators could be appointed S. died. that P. had no power under the agreement to compel his executors to appoint an arbitrator, since the performance of the agreement entailed an exercise of personal judgment by the parties and, one of them being dead, this was impossible (Re an Arbitration between Percival and Others (1885), 2 T. L. R. 150). Where a contract for the sale of goods, which provided that in all disputes all the parties agreed to submit to arbitration, was signed by the buyers and by the sellers' brokers "by the authority of our principals, as agents," and disputes having arisen, the brokers were called upon to appoint an arbitrator and refused, on the ground that, as mere agents, they were not parties to the submission, it was held that the district registrar was wrong in making an order appointing an arbitrator under the section, because the effect would be to make the brokers parties to an arbitration under the contract when they disputed whether they were liable on the contract at all (Miller, Gibb & Co. v. Smith, [1916] 1 K. B. 419). An appointed arbitrator." "An appointed arbitrator" (s. 5 (b)). This must mean an appointed single arbitrator and not one of two appointed arbitrators. The concluding words of the section seem to make this clear, because it is provided that the arbitrator appointed shall have the like powers to act in the reference and make an award as if he had been appointed "by consent of all parties." It would seem, therefore, that this provision is not intended as an alternative method of appointing one of two arbitrators, but that s. 6 is intended to apply to such a case. It is a common practice to insert a clause in commercial contracts providing that disputes, if they arise, shall be referred to an arbitrator to be appointed by some person holding an official position, but it is not usual in such clauses to provide for the case of the arbitrator refusing to act. Where the agreement to refer provides that the arbitrator is to |