Appointed under the statute.

such person before any

difference had arisen, and before any proceedings had been taken in the reference, and that such was the proper course to pursue: and the effect of his appointment was, that he was to sit with the arbitrators and hear the evidence, and if they did not agree in an award, to make one himself, not merely in the matters on which they disagreed, but upon the whole of the matters referred (a).

If the parties or arbitrators do not appoint the umpire, or if the umpire die or refuse to act, we have seen (6) that a judge upon application will appoint the umpire (c).

Where an umpire shall have been appointed, it shall be lawful for him to enter on the reference in lieu of the arbitrators, if the latter shall have allowed their time or their extended time to expire without making an award, or shall have delivered to any party or to the umpire a notice in writing stating that they cannot agree (d).

By stat. 17 & 18 Vict. c. 125. s. 14, when the reference is to two arbitrators, and the terms of the document authorising it do not show that it was intended that there should not be an umpire, or provide otherwise for the appointment of an umpire, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award, unless they be called upon by notice as aforesaid to make the appointment sooner (e). When a cause was re

ferred to a mining agent, objection being made to

(a) Winteringham v. Robertson, 27 Law J. 301, ex.

(b) Antè, p. 15.

(c) 17 & 18 Vict. c. 125, s. 12.

(d) Id. s. 15.

(e) Id. s. 14.

any legal arbitrator, the arbitrator, however, called in an attorney to sit with him, whereupon the defendant protested against it, and withdrew from the reference: an award afterwards made in his absence was holden bad (a).

Or if, where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator, such parties or arbitrators do not appoint an umpire or third arbitrator ;-or if any appointed umpire or third arbitrator refuse to act, or become incapable of acting, or die, and the terms of the document authorising the reference do not show that it was intended that such a vacancy should not be supplied, and the parties or arbitrators respectively do not appoint a new one :-then in every such instance any party may serve the remaining parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator respectively; and if within seven clear days after such notice shall have been served no arbitrator, umpire, or third arbitrator be appointed, it shall be lawful for any judge of any of the superior Courts of law or equity at Westminster, upon summons to be taken out by the party having served such notice as aforesaid, to appoint an arbitrator, umpire, or third arbitrator, as the case may be, and such arbitrator, umpire, and third arbitrator respectively shall have the like power to act in the reference and make an award, as if he had been appointed by consent of all parties (b).

(a) Proctor v. Williamson, 29 Law J. 157, cp.

(b) 17 & 18 Vict. c. 125, s. 12. j

When the umpire enters upon his umpirage, he may re-examine the witnesses; but it has been holden not to be objectionable for the umpire to receive the evidence from the arbitrators (a), unless the parties require him to do otherwise (b), or expressly consent to his doing otherwise; if either of them request of him to examine the witnesses, and he refuse to do so, the Court will set aside the award (c). So, if an umpire refuse to receive further evidence, besides that which was given before the arbitrators, his umpirage will be bad, and the Court wiil set it aside; and the fact of one of the parties having taken it up, will be no waiver of the objection (d). And where a matter was referred to two arbitrators, and such third person as they, or the majority of them, should appoint, and the two arbitrators having disagreed, each made a written statement as to what he thought the award should be, and submitted it to the umpire, and the umpire, and one of the arbitrators, without any meeting of the three, made the award this was holden bad (e). He may make his umpirage at any time before the expiration of the time limited for that purpose by the submission; he may do so even before the time limited for the arbitrators making their award (ƒ). Where the umpire was to make his umpirage within six months, and he made it within six calendar months, but not within six lunar months,

(a) Re Firth & Howlett, 19 Law J. 169, qb.

(b) Hall v. Lawrence. 4 T. R. 589.

(c) Re Salkeld et al., 10 Law J. 22, qb.

(d) Re Jenkins et al., 11 Law J.

71, qb.

(e) Re Templeman and Reed, 9 Dowl. 962.

(f) Sprigens v. Nash, 5 M. & S. 193. Smailes v. Wright, 3 M. & S. 559.

the umpirage was holden bad (a); but this perhaps would now be holden otherwise. There is no objection to the arbitrators joining with him in his umpirage; their doing so does not affect the umpirage either one way or the other (b). But it seems that arbitrators cannot decide upon part, and the umpire upon another part, of the matters referred, unless the submission contain a special authority to that effect (c). On the other hand, where by the submission the arbitrators had a power to appoint an umpire, and the parties bound themselves to perform and obey the award of the said two arbitrators and their umpire, an award was made by the two arbitrators only, and it did not appear they had appointed any umpire; the Court held the award bad, and refused to grant an attachment for the non-performance of it (d).

(a) Re Swinford and Horn, 6 M. & S. 226.

(b) Soulsby v. Hodgson, 3 Burr. 1474. Beck v. Sargent, 4 Taunt.

232.

(c) Tollit v. Saunders, 9 Price,

512. See Harlow v. Read, 1 M. Gr. & S. 733.

(d) Hetherington v. Robinson, 4 Mees. & W. 608. See Peterson v. Ayre, 23 Law J. 129, cp.

32

PART III.

THE AWARD.

Time for making the Award enlarged, p. 32.

Under the Submission, p. 32.

By Statute, p. 36.

The Award, p. 38.

The Award, p. 38.

Special Case, p. 41.

Certificate in what Cases, p. 41.

Form of an Award, p. 42.

Costs, p. 43.

Where there is no Cause in Court, p. 43.

Where there is a Cause in Court, p. 44.

Costs of the Reference, p. 48.

Costs of the Award, p. 51.

Costs for delaying the Proceedings, p. 52.

Under the submission.

Time for making the Award enlarged.

Formerly if the submission mentioned a time within which the award should be made, that was a condition which must have been strictly complied with. If that time elapsed before the award was made, the Court could not interfere, either at the instance of the arbitrator or of one of the parties (a),

(a) Burley v. Stevens, 4 Dowl. 255.