arbitrator to abide his award, and it was argued that the submission was void because the arbitrator had an interest in making an unreasonable award to obtain the penalty, the objection was overruled (Owdy v. Gibbons (1688), Comb. 100).

5. Several landowners agreed to refer to an arbiter the direction of certain improvements affecting their lands and the apportionment of the expenses among them. The arbiter by his award expressed himself satisfied with the operations and laid the whole expense on the parties. The arbiter's own lands were benefited by the work, but it was known by the parties before they signed the agreement that this would be so. One of the parties having brought an action to reduce the award, it was held that the award was good notwithstanding the interest of the arbiter (Johnston v. Cheape (1817), 5 Dow, 247).

6. When a valuer frequently called in by a railway company to value lands taken by them was appointed umpire to assess the value of neighbouring property which they were about to take, and the landowner made no objection though the position of the umpire was known to him, it was held that he was not entitled to have the award set aside on the ground of the umpire's interest (Clout and Metropolitan Rail., In re (1882), 46 L. T. 141),

7. The fact that an umpire, in a reference to arbitration under the Lands Clauses Acts to determine the value of land compulsorily taken, has during the pendency of the arbitration, and before making his award, acted as a witness on behalf of one of the parties to it in another and similar reference, will not support a motion to set aside his award on the ground of bias (Haigh and London & North Western Rail., and Great Western Rail., In re, [1896] 1 Q. B. 649; 65 L. J. Q. B. 511).

8. A building contract referred disputes to the engineer of the employers as arbitrator. During the course of the work the engineer in the exercise of his duty as such complained of the way in which certain work had been executed. Held that this did not disqualify him from acting as arbitrator as agreed (Scott v. Carluke Local Authority (1879), 6 Ct. of Sess. Cas. (4th series) 616. See also Mackay v. Barry Parochial Board (1883), 10 Ct. of Sess. Cas. (4th series) 1046).

9. A contract between contractors and a dock board for work in connection with the making of a dock provided that all disputes should be referred to the engineer of the board. During the work the board was executing other work in an adjoining dock under the superintendence of the engineer's son, who acted as assistant to his father, and the contractors alleged that owing to the son's negligence water escaped from the adjoining dock and damaged the works of the contractors. dispute having arisen over a claim for damages by the contractors, it was held that the engineer was not disqualified from acting as arbitrator in the matter on the ground of probable bias (Eckersley v. Mersey Docks, [1894] 2 Q. B. 667).

A

10. A building contract provided that the employer's engineer should be the arbitrator if disputes should arise. The contractors raised a claim and the engineer, in writing to his employers, described this as

"outrageous." Held that this did not disqualify him from acting as arbitrator as agreed (Cross v. Leeds Corporation (1902), Hudson on Building Contracts, 4th ed., Vol. II. p. 339. See also Halliday v. Hamilton's (Duke of) Trs. (1903), 5 F. 800).

11. A contract for the construction of waterworks provided that disputes should be referred to the employer's engineer as arbitrator. The scheme proved impracticable and the engineer suggested variations and offered the contractors a sum for carrying these out. The contractors contended that the sum was grossly inadequate, and that the engineer being anxious to support his own estimate was disqualified as arbitrator. Held that this did not so disqualify him (M'Kee & Macnally v. Corporation of Dublin (1912), Hudson on Building Contracts, 4th ed., Vol. II. p. 466).

12. The defendants, who had contracted with a railway company for the construction of a railway, entered into a sub-contract with the plaintiffs for ironwork, the sub-contract providing that the plaintiffs should do the work to the approval of the railway company's engineers, and that all disputes should be referred to the engineers. Disputes having arisen under the sub-contract, the plaintiff brought an action against the defendants. On an application by the defendants to stay the action in view of the agreement to refer: held that the action should be stayed, the mere fact that the engineers had a duty to watch the works on behalf of the company, and might already have formed an opinion upon the matters in dispute, not being enough, in the absence of any evidence that they would not act fairly, to prevent them from being proper persons to decide the disputes (Ives & Barker v. Willans, [1894] 2 Ch. 478).

INTEREST ARISING SUBSEQUENT TO APPOINTMENT.

An arbitrator, notwithstanding his suitability for that office at the date of his appointment, may become unfitted to decide judicially upon the question submitted to him by reason of events between the time of his appointment and the arbitration. This will be so, generally speaking, whenever the arbitrator during this period acquires an interest in the subject-matter of the dispute, or comes into a relationship with either party which, if it had existed unknown to the parties at the time of his appointment, would have operated as a disqualification.

Illustrations.

1. A contract between the town council of a burgh and a contractor for work on a building contained a clause referring disputes to a named arbitrator. The arbitrator was afterwards appointed Dean of Guild and became ex officio a member of the Town Council. Held that he was thereby disqualified from acting as arbitrator, and that the disqualification was not removed by his ceasing to hold the office of Dean of Guild (Edinburgh Magistrates v. Lownie (1903), 5 F. 711. See also Nuttall v. Manchester Corporation (1892), 8 T. L. R. 513). .

2. An action on a fire policy by the assured against the insurance ompany was referred to arbitration under an arbitration clause in the policy. The assured and the company each appointed an arbitrator, and the arbitrators appointed an umpire. The arbitrators and the umpire all sat together, but differed, and the umpire then made an award in favour of the assured for £1200. On its appearing that the assured, after appointing his arbitrator and before the meetings, had assigned to his arbitrator for value his claim under the policy, the Court, on the application of the company, set aside the award (Blanchard v. Sun Fire Office (1890), 6 T. L. R. 365).

THE ARBITRATION ACT, 1889.

(52 & 53 VICT. c. 49).

An Act for amending and consolidating the enactments relating to arbitration.

"AMENDING AND CONSOLIDATING."

The Arbitration Act chiefly follows the provisions of the Common Law Procedure Act, 1854, but it also follows the provisions of the Act of 9 Will. III. c. 15, the Act of 3 & 4 Will. IV. c. 42, and the Supreme Court of Judicature Acts, 1873 and 1884, in important particulars.

The chief feature of the Act is that it removes to a great extent the old distinction between a submission to a named arbitrator and an agreement to refer, and makes a submission, whether to a named arbitrator or not, irrevocable except by the leave of the Court.

It introduces for the first time a kind of model set of provisions which are to be implied in all submissions unless a contrary intention appears therein.

The power of the Court, however, to refer compulsorily to arbitration has not been re-enacted in the Arbitration Act.

RULES OF CONSTRUCTION.

Being a statute of consolidation and amendment it is necessary that a careful comparison should be made between the different repealed sections of the prior Acts and the sections of the Arbitration Act.

Without some such comparison it is difficult to appreciate the weight to be attached to decisions under the repealed Acts or the relevancy of these decisions to questions which may arise under the Arbitration Act. "According to the rules which govern the decisions of the Courts, if decided cases have determined the construction to be placed on the Common Law Procedure Act, we must adhere to those decisions when we are called upon to place a construction upon that part of the Arbitration Act in which the same language is used in respect of the same subject-matter" (per Lord Esher, M.R., In re Keighley, Maxsted & Co. and Durant & Co., [1893] 1 Q. B., at p. 408). "It is a reasonable view that where the Legislature deliberately, as it would seem, incorporates into a statute of consolidation and amendment an expression which has already received judicial construction in one of the statutes so dealt with, there is good ground for interpreting the expression thus adopted in conformity with the decision" (per Wills, J., Hodgson v. Bell (1890), 24 Q. B. D., at p. 305).

"The true rule of interpretation where larger words are used in an amending Act than were used in the principal Act is that such larger words were used intentionally, and must have a meaning given to them accordingly " (per Lord Esher, M.R., Hurlbatt v. Barnett, [1893] 1 Q. B., at p. 79).

PART I.

REFERENCES BY CONSENT OUT OF COURT.

SECTION 1.

REVOCATION OF SUBMISSION AND INJUNCTION.

1. Revocation at common law.

Action for damages for revocation.

Where arbitrator a stakeholder.

2. Previous legislation.

Submission by order of County Court.

Lands, Railways, and Companies Clauses Acts.

Railway Companies Arbitration Act, 1859.

3. Interpretation of the section.

Object of the section.

Meaning of "submission."

"Agreement to refer " as distinguished from "submission."

"Shall have the same effect... as if it had been made an order of Court."

Distinction between arbitration and valuation.

"Unless a contrary intention is expressed therein."

Not necessary to provide that Arbitration Act shall apply.

4. Considerations affecting the grant of leave to revoke.

Whether the arbitrator will obey the directions of the Court.

Whether the parties will agree to statement of a case.

Convenience and expense.

The time when the application is made.

Whether the proceedings would be prolonged by leave being granted.

Whether the application is the means of obtaining an authoritative decision.

The effect of s. 19 of the Act.

Whether a substantial miscarriage of justice will take place if leave is refused.

5. Chief grounds for granting leave to revoke.

Error of law or excess or refusal of jurisdiction by arbitrator.