disagreeing made his umpirage. On a rule to enforce the award, there was nothing to show whether the umpirage was made within the time limited for making it, except that it appeared from the jurat of the affidavit of the execution of the award that that affidavit was sworn before the expiration of that time. Held that it must appear that the umpirage was made within the time limited, but that here that fact was sufficiently shown by the jurat (Trew v. Burton (1833), 1 C. & M. 533; 2 L. J. Ex. 236).

2. Arbitrators were to award by 25th June, with liberty to enlarge their time, but not to exceed 31st August; if they did not award within the time limited for them, the matters were to be determined by an umpire to be appointed by them, who was to make his award within two months from his appointment, with liberty to enlarge his time, but not exceeding another two months. On 20th April the arbitrators appointed an umpire, and in the appointment stated that his duties should commence officially on 1st September and terminate before 1st January. The arbitrators could not agree. The umpire did not enlarge his time and 31st October passed. The Court was inclined to the view that the umpire's time should be counted not from 20th April but from 1st September; but without deciding as to the validity or effect of the umpire's appointment, it enlarged the umpire's time until the end of December (Johnson and Collie, In re (1854), 24 L. J. Q. B. 63).

When umpire may exercise express power of enlargement.

Where the umpire is expressly given power to enlarge the time for making his award, he may exercise this power as soon as his jurisdiction arises by reason of the failure of the arbitrators to agree. He is not bound to wait until the time for the arbitrators to make their award has expired.

Illustrations.

1. Under the Public Health Act, 1848, the authority of an arbitrator or an umpire endured for only twenty-one days unless he enlarged the time. Arbitrators under the Act having been appointed in January, appointed an umpire on 3rd February, and enlarged their own time till 30th April. The umpire did not enlarge his time. All three sat together and heard evidence. On 27th April the arbitrators gave notice to the umpire that they could not agree. The umpire made an award on 2nd May. Held that the umpire had power to enlarge his time before the arbitrators' time had expired, but that, as he had not done so, he should have made his award within twenty-one days of his appointment, and as it had not been made within that time, it was out of time and must be set aside (Kellett v. Tranmere Local Board (1864), 34 L. J. Q. B. 87).

2. Under the Public Health Act, 1875, the original limit of time for the award of an umpire was held to be the same as in the case of arbitrators, namely, twenty-one days from the date of the reference to him, and by s. 180 (9) the time may not be extended beyond two months.

Two arbitrators appointed under the Act met on 3rd January, and extended the time for their award to 20th February. On 10th January they appointed an umpire. On 1st February the arbitrators and umpire met and were attended by the parties, but one of the arbitrators retired and refused to proceed further, and the meeting was adjourned sine die. On 19th April the umpire made his award. Held that the award was made too late and must be set aside; and, further, that the original period of twenty-one days was to be reckoned from 1st February, when the arbitrators finally disagreed and not from 20th February, when their powers expired (Yeadon Local Board and Yeadon Waterworks Co., In re (1889), 41 Ch. D. 52).

3. A submission provided that the parties should abide by any award made by two arbitrators on or before 20th August, or such other day as they should appoint; and if they should not agree, the parties should then abide by any award made by the umpire on or before 20th September, or such other day as he should appoint. The arbitrators enlarged the time to 2nd October, and subsequently to 1st November. On 2nd October they gave notice to the umpire that there was no probability of their making any award, whereupon he enlarged the time for making his award to 1st December, and then to 20th December, and made his award on the latter day. Held that the umpire's right to interfere by enlarging the time for his award was not postponed until a disagreement of the arbitrators, but that their nonagreement was sufficient to justify him in doing so (Doddington v. Bailward (1839), 7 Dowl. 640).

When power of enlargement under the Schedule may be exercised. When the provisions of the Schedule are deemed to be included it would seem that the umpire may exercise his power of enlargement as soon as he is entitled to enter on the reference under clause (d) (ante, p. 346) though he has not actually entered on the reference. The reason for this is that the time for making his award is running against him from the expiration of the time appointed for the award of the arbitrators, and if any other construction of clause (e) were adopted, he might be practically deprived of his power to act at all, for he might not be able to enter on the reference until the time for making his award had expired. As to enlargement by arbitrators, the case is different. Time does not run against them until they have entered on the reference or have been called on to act.

Enlargement by umpire does not enure for arbitrators.

Where the jurisdiction of the umpire is limited to those matters upon which the arbitrators have failed to come to an agreement, an enlargement of time by the umpire does not enure to give further time to the arbitrators to make their award upon the matters which have not been referred by them to the umpire.

Illustration.

A submission was made to two arbitrators, and, in the event of their differing, to any umpire they might appoint, and the parties agreed to submit to whatever the arbitrators or umpire should determine by an award or awards within a certain time, and gave them power to enlarge the time. Though the time was more than once enlarged by them, the arbitrators made no award, but, having agreed upon all the matters except two, they appointed an umpire in and concerning these two matters. The umpire then enlarged the time for the award generally, and within that time, but after the expiry of the last enlargement by themselves, the arbitrators made their award as to the matters they had not referred to the umpire. Held by the House of Lords that the award of the arbitrators was not made within the proper time (Lang v. Brown (1855), 25 L. T. (O. S.) 297).

Enlargement of umpire's time by the Court.

S. 9 of the Arbitration Act, which gives power to the Court or a judge to enlarge the time for making an award, whether the time for making the award has expired or not, applies to the award of an umpire as well as to that of an arbitrator or arbitrators (see ante, p. 158).

Illustration.

S. 180 (9) of the Public Health Act, 1875, provides that the time for making an award by arbitrators or an umpire under that Act shall not in any case be extended beyond two months from the date of the submission or the date of the reference of the matters to the umpire respectively. Arbitrators under the Act had been appointed by April 1899. On 25th May they appointed an umpire, and on 31st May they gave him notice that they could not agree. The umpire appointed 19th July for proceeding with the reference, and on that day he and the arbitrators were present, and on 12th August they had a view of the premises in question. On 5th September the umpire made his award, which was thus out of time. Held that, notwithstanding the above subsection, the Court had power, under s. 9 of the Arbitration Act, 1889, to enlarge the time for making the award (Knowles v. Bolton Corporation, [1900] 2 Q. B. 253; 69 L. J. Q. B. 481).

Umpire's refusal or neglect to act, incapacity or death.

The Schedule does not confer any power on the arbitrators who appointed the umpire to appoint another in his place in the event of his refusing to act or being incapable of acting or dying. But by s. 5 of the Act, in any of these events, if "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, any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint an . . . umpire," and then on failure to appoint, an appointment may, on application, be made by the Court (see ante, p. 117 et seq.).

The Act makes no provision for supplying the vacancy in case of the unfitness of the umpire (as distinguished from his being incapable) or of his failure to act, such as is made, for example, in s. 14 of the Railway Companies Arbitration Act, 1859, as follows:

"When two or more arbitrators are appointed, if, before the matters referred to them are determined, their umpire dies, or becomes incapable or unfit, or for seven consecutive days fails to act as umpire, the arbitrators shall by writing under their hands appoint an impartial and qualified person to be their umpire in his place."

FIRST SCHEDULE (f) AND (9).

CONDUCT OF THE REFERENCE.

1. Scope of clauses (ƒ) and (g).

2. Powers and duties of arbitrators generally.

Duty to act fairly to both parties.

Whether arbitrator has greater latitude than the Court.
Principles of justice must be observed.

Must not receive secret information from one side.

Deciding on a view without evidence.

Duty to fix reasonable time and place for hearing.

Effect of erroneous decisions generally.

Effect of departure from rules for administration of justice.

Duty to decide on disputes submitted and no more.

Duty strictly to comply with terms of submission.

Duty to decide according to law.

3. The proceedings in the reference.

Notification to arbitrator of his appointment.

Distinction between arbitrators and referees under order of the Court.
First duties of arbitrator.

To see that appointment in order.

Acceptance of office.

Performance of condition precedent.

Statutory declaration by arbitrator.

Enlargement of time for making award.
The preliminary meeting.

Matters usually dealt with.

Particulars.

Discovery of documents.

Inspection of documents.

Inspection of property and things by the parties.

By the arbitrator.

Points of claim and defence.

Amendments.

No power to require security for costs.

Fixing time and place of hearing.

Discretion of arbitrator as to meetings and adjournments.

Agreement of figures and admission of items not in dispute..

Shorthand notes of proceedings.

Arbitrator should take notes of the evidence.

Persons entitled to be present.

Hearing counsel or solicitors.

Notice of intention to appear by counsel.
Ordinary course of procedure at hearing.
All legal defences available.

Arbitrators bound by rules of evidence.

Arbitrator should generally hear all the material evidence tendered.

Evidence must be tendered.

New evidence after accounts closed.

When arbitrator may refuse to hear evidence.

Misreception of misrejection of evidence.

Prima facie no ground for impeaching award.

Evidence excluded so as to amount to a refusal to decide issue submitted. Receiving inadmissible evidence which goes to the root of the issue submitted.

Receiving evidence of collateral matter.

Arbitrator to take notice of stamps on documents.

Arbitrator himself calling witness.

Examination of witnesses on oath.

Examination of sick or infirm persons.

Applications for adjournments.

Duty to proceed only when both parties present.

Commercial arbitrations.

Mere enquiry as to whether party admits or disputes items.

No notice of meeting at which disputes not entered upon.

Meeting at which points of law alone discussed.

Ex parte statements to accountant.

Statutory arbitrator's absolute discretion.

Assent of parties or their agents to irregularity.

Arbitrator should inform opponent of all communications from a party.

When arbitrator empowered to proceed ex parte.

Party neglecting to attend.

Party attempting to revoke.

Notice of intention to proceed ex parte.

Whether notice requisite when authority denied.

Railway Companies Arbitration Act, 1859.

Lands, Railways, and Companies Clauses Acts.

Requiring matters in difference to be stated in writing.

Making interlocutory award.

Closing proceedings.

Closing case too hastily.

Party asking for time.

Re-opening case.

When award remitted.

4. Delegation of duties by arbitrator.

Delegating performance of ministerial act.

Referring costs to be taxed.

Arbitrators to decide by skill and knowledge may consult other persons

Arbitrators must form their own judgment.

Award not readily set aside, unless injustice done.

Delegation by the award.

Delegation in pursuance of submission or agreement of parties.

Implied authority to obtain professional assistance.

Delegation by judicial arbiters in Scotland.