evidence the arbitrators arrive at different opinions in some of the matters referred; and he need not, if the time for making the award has expired, wait to see if they ever could agree. Winteringham v. Robertson, 27 L. J., Ex. 301. An express admission of the arbitrators that they cannot agree is not necessary to give the umpire jurisdiction to make an award. Hill v. Marshall, 5 L. J. (0.s.) C. P. 161.

If one of the arbitrators insists upon producing further evidence, and the other refuses to allow it to be done, this is a sufficient disagreement between the arbitrators to authorize the interference of the umpire. Cudliffe v. Walters, 2 M. & Rob. 232.

There may be circumstances in which an umpire may join in an inquiry with the arbitrators before the time of his acting arrives. Elliott and South Devon Ry., In re, 2 De G. & Sm. 17; 12 Jur. 445.

Where arbitrators were to make their award on or before a day certain, and an umpire, if they should differ, before a subsequent day; and the umpire made his award before the time given to the arbitrators had expired-Held, that the award need not state that the arbitrators

had disagreed. Sprigens v. Nash, 5 M. & S. 193.

Computation of Time.]-An umpire's appoint. ment dates from the time when he is appointed by the arbitrators, and not from the time when the duty of determining devolves upon him by reason of the arbitrators disagreeing. Killett and Tranmere Local Board, In re, 34 L. J., Q. B. 87; 11 L. T. 457; 13 W. R. 207.

On a reference it was agreed that the award should be made by the umpire within the two calendar months next after the matters were referred to him; the umpire was appointed on the 29th of June, and the time for making his award was enlarged for three months-Held, that in computing this time, the 29th of June was to be excluded, and that consequently an award made on the 29th of November was within the time limited. Higham, In re, 1 W. P. C. 28; 9 D. P. C. 203.

Where, by deed of arbitration, dated 1st June, the arbitrators were to make their award on or before the 1st of October, with power, in case they should not agree in making their award within the time, to appoint an umpire, and his award to be binding, so as it be made six months after the date of his appointment; and the arbitrators appointed an umpire within the time allowed to them, who made his award within six calendar, but not within six lunar, months of his appointment :-Held, that the award was ill made. Swinford, In re, 6 M. & S. 226.

Submission to an award "so as the arbitrators make their award at or upon the 27th of March then next; and if the arbitrators make no award, then if the umpire make his umpirage on the same day," umpire cannot make his umpirage on the 27th of March, the arbitrators have all that day to make their award. Pring v. Pring, 2 Vern. 100.

Enlargement of Time.]-An umpire immediately upon his appointment, may enlarge the time for making his award. Killett and Tranmere Local Board, In re, supra.

Two arbitrators were to make an award by the 20th of August, or such other day as they should appoint; in case they disagreed an umpire was to decide by the 20th of September, or such

other day as he should appoint. The arbitrators enlarged the time to the 1st of November, and in October gave the umpire notice of their being unable to agree. In September the umpire enlarged his time till December, in which month he made his award :-Held, that he had jurisdiction in September to enlarge the time. Doddington v. Bailward, 5 Bing. (N.C.) 591; 7 D. P. C. 640; 7 Scott, 733; 8 L. J., C. P. 331.

Held, also, that notice of the enlargement of the time in September by the umpire was sufficiently conveyed to the defendant by a verbal intimation from the plaintiff, when the award was served on him, and its performance demanded; and that the non-agreement of the arbitrators so as to entitle the umpire to act, was sufficiently notified at the same time by its appearing on the face of the award. Ib.

If the arbitrators sit with the umpire till the time for making the award has expired, and do not then repudiate his authority, that is a tacit exercise of their power to enlarge the time, so as to enable him to make the award. Winteringham v. Robertson, supra.

Enlargement by Court after Expiration of Time.]-See Johnson, In re, II. 3, b. See Eads v. Williams, II. 4, b. Umpire Joining in Award of Arbitrators.]

3. PROCEEDINGS BEFORE.

Duty as to Hearing Evidence.]-Where an umpire refuses, on express request, either to rehear evidence already given before arbitrators, or to examine new witnesses, the court will set aside the award. Jenkins v. Leggo, 1 D. (N.s.) 277; 11 L. J., Q. B. 71; 6 Jur. 397.

The not insisting on this objection at the time of making the award does not amount to a waiver of it. Ib.

An umpire may make his award on the notes of the arbitrator if no objection is taken. Ib.

Where matters are referred to arbitrators, and, if they disagree, to an umpire, and the arbitrators, after hearing witnesses, disagree, the umpire must rehear the witnesses. Salkeld, In re, 12 A. & E. 767 ; 4 P. & D. 732; 10 L. J., Q. B. 22.

If he omits doing so, and makes his award on the evidence taken down by the arbitrators, the award will be set aside. Ib.

Objections to such proceedings by the umpiremay be waived; but, to prevent the award being set aside, clear proof must be given of the waiver. Ib.

An umpire, being furnished by the arbitrators with the evidence taken before them, and having himself viewed the premises, the condition of which was in question, made his award without calling for further evidence, or giving any notice on that subject to the parties:-Held, that the award could not be objected to on that ground by a party who knew that the case had gone before the umpire, and made no application to him to hear further evidence. James, In re, 2 N. & M. 328; 5 B. & Ad. 488.

Parties to a written submission agreed by parol that notes of the evidence should be taken in writing by a clerk, and signed by the arbitrators, and that in case of their disagreeing the umpire should be at liberty to make his award on the notes so taken, without examining the witnesses. The notes were so taken and the arbitrators disagreed. The umpire having refused to examine

An order was made in an action referring the question in dispute, which was the rent to be paid under a lease of a mill, to two persons, who had acted as agents of the parties, as arbitrators, and in case of their disagreement to a person therein named as umpire. The arbitrators, having disagreed, submitted the matter to the umpire. The latter, without giving any notice to the parties or to their solicitors, and without any witnesses being examined before him, but having merely heard the statement of the two arbitrators and inspected the premises, made his award in writing, in which he recited, that he had "heard, examined and considered the allegations, witnesses and evidence of all the parties" -Held, that there was no ground for disturbing the award, as the arbitrators and the umpire were all experts, and it was evidently the intention of the parties that they should settle the

value and not act as formal arbitrators. Bottomley v. Ambler, 38 L. T. 545; 26 W. R. 566— C. A.

Whether there is or not any general rule that an umpire need not receive evidence or be active in summoning the parties, where the witnesses of one party have not been heard before the arbitrators owing to the non-attendance of that party's arbitrator at the hearing, the umpire ought to make no award without giving the party an opportunity of producing evidence before him and addressing him, although he may be an expert and competent to decide from personal observation. Hawley and North Staffordshire Ry., In re, 2 De G. & Sm. 33; 12 Jur. 389. Affirmed on appeal, 11th March, 1848. Templeman, In re, IV. 4, c.

See

Arbitrators and Umpire Sitting Together.] Where arbitrators have power, if they should not agree, to appoint a third person to be umpire in or to concur and join with them in considering and determining all or any of the matters referred, such third person, when so appointed, is not a third arbitrator, but an umpire, and the effect of his appointment is, that he is to sit with the arbitrators, and hear and consider the matters referred, and if they do not agree in an award, to make an award upon all matters referred, and not merely upon those in which they do not .agree. Winteringham v. Robertson, 27 L. J., Ex.

301.

having proceeded, and the award having been subsequently made:-Held, that it was too late for either of the parties after the award was made to object to it, on the ground of such communication between the umpire and the agents of one of them. Mills v. Bowyer's Society, 3 Kay & J. 66.

Power of Other Party's Arbitrator to Waive Irregularity.]-See Hamilton v. Bankin, IV. 4, c.

Hearing One Party in Absence of the Other.] -See Gregson and Armstrong, In re, II. 4, a, i.

award, choose an umpire, who makes umpirage; Award by.]-Arbitrators, not agreeing in their the arbitrators joining with him does not vitiate it. Soulsby v. Hodgson, 3 Burr. 1474; 1 W. Bl.

463.

officio. Beck v. Sargent, 4 Taunt. 232. Even although the arbitrators were functi

Nor by a stranger joining. Ib.

An award, after reciting that A. and B. had been appointed arbitrators, and that they had appointed C. umpire, proceeded, "We, the said arbitrators, do award," and was signed by the latter, by signing the award, adopted the lan two arbitrators and the umpire :-Held, that the guage as his. Bates v. Cooke, 9 B. & C. 407. If "all or any of the matters in difference between the parties" are referred to arbitrators, who disagree, but only as to costs, yet the umWicks v. Cox, 11 Jur. 542. pire must adjudicate on the whole question.

Where arbitrators determined on five points in dispute, and referred a sixth to an umpire, whom they were authorized to choose, the award made by the arbitrators and umpire was bad, the arbisubmission to make the award upon some points trators not being authorized by the terms of the in dispute, and refer others to the umpire. Tollit V. Saunders, 9 Price, 612; 23 R. R. 732. See Westminster and Brymbo Coal Co. v. Clayton, II. 3, a.; Morgan v. Bolt, IV. 4, c.; and Winteringham v. Robertson, supra.

Costs.]-An award by the umpire as to the costs is good, although, by the submission, they are in the discretion of the arbitrators. Taylor v. Dutton, 1 L. J. (0.s.) K. B. 158.

-

Invalidity Parties by Appearing Waive Objection.]-An award by an umpire is good, although the arbitrators had no authority to ap point one, and although he examined the parties separately, they having attended him, and made no objection at the time. Matson v. Trower, R. & M. 17; 27 R. R. 725.

Umpire Acting as Witness in another Similar Case for One of the Parties not Proof of Bias. ]— See Haigh and L. & N. W. Ry, and G. W. Ry., In re, IV. 4, c.

IV. THE AWARD.

1. MAKING AND PUBLISHING.

To be Made Within Three Months from First Meeting.]—See Baker v. Stephens, II. 3, a. See now Arbitration Act, 1889 (52 & 53 Vict. c. 49), First Schedule (c).

Day of Umpire's Appointment to be Excluded in Computing Time within which his Award to be Made.]-See Higham, In re, III. 2.

Where Umpire's Award to be Made within Six Months from his Appointment, must be within Six Lunar Months.]-See Swinford, In re, III. 2.

Not Made at Appointed Time.]-The amount of damages sustained, and to be thereafter sustained, by reason of the working of a mine, was referred to an arbitrator, who was to make his award, as to the damages already sustained on or before the 20th of December, 1830; and, as to the damages to be thereafter sustained, at the expiration of every two months from the 20th of December. The arbitrator made the first award, but the second was not made until the 13th of July, 1831, and it included damages sustained by the plaintiff from the 20th of December, 1830, to the 26th April, 1831 :—Held, that this was not an award made in pursuance of the reference, and was therefore void. Stephens v. Lowe, 2 M. & Scott, 44; 9 Bing. 32; 1 L. J., C. P. 150.

Prepared by Legal Adviser.]—A recital in an award, that it had been drawn by a person who, under the terms of the submission, attended the arbitrator as an attorney, does not constitute any improper delegation of authority. Baker v. Cotterill, 7 D. & L. 20; 18 L. J., Q. B., 345; 14 Jur. 1120.

Semble, that a lay arbitrator may avail himself of and charge for professional assistance in preparing his award. Galloway v. Keyworth, 15 C. B. 228; 2 C. L. R. 860; 23 L. J., C. P. 218.

As there is no impropriety in arbitrators employing an attorney to prepare their award (confirming Galloway v. Keyworth, supra), so there is no necessary impropriety in their employing the plaintiff's attorney for that purpose. If the circumstances raise any impropriety in that respect, they should be distinctly stated in the affidavit. And even if, upon the affidavits, it is shown that there were circumstances of impropriety in the preparation of the award, as that it departed (as to time of payment, &c.) from the instructions on which it was prepared or from the award as originally declared by the arbitrators, it is questionable whether that is any ground for objecting to the award, if it were afterwards read over to the arbitrators and adopted by them. Behren v. Bremer, 3 C. L. R. 40.

After an arbitrator had made his award, one of the parties discovered that the award had been drawn up by the person who had acted as attorney and advocate for the other party in the reference, and that this person had also advised the arbitrator privately in the matter of the award. This was admitted by the arbitrator; but he positively denied that he had done more than consult the attorney, who was his own ordinary professional adviser, as to the form of the award, or that his decision was in any way influenced thereby. Under these circumstances, the affidavits in exculpation of the arbitrator being very strong, the court refused to set aside the award. Underwood and Bedford and Cambridge Ry., In re, 11 C. B. (N.S.) 442; 31 L. J., C. P. 10; 5 L. T. 581; 10 W. R. 106.

Whether One or Two Awards.]-An action by A. against B., and a cross action by B.

against A., were referred by separate orders of reference under 17 & 18 Vict. c. 125, s. 3. The action by B. against A. contained counts for not using a farm in a tenant-like manner, and for goods sold; and the defendant pleaded a denial of the tenancy and performance of the agree ment; and never indebted, payment and set-off. The arbitrator made his award on one piece of paper, awarding for the plaintiff in the first action, and that in the second action there was nothing due or payable from the defendant to the plaintiff; and he ordered that the costs of the award should be paid by B. The court remitted the award to the arbitrator that he might make two awards and find the issues specifically. Hellaby v. Brown, 1 H. & N. 729; 26 L. J., Ex. 217; 5 W. R. 490.

A suit at law and one in equity depending between the same parties and relating to the same matters being referred to arbitration, two submissions were executed, one in each case, and a document purporting to be an award entitled in both cases was executed by the arbitrators, and subsequently two others, one in each cause: -Held, there should have been only one submission and one award, each entitled in both causes. Gray v. M' Cabe, 7 Ir. Eq. R. 206.

Semble, the first document was an award, and the arbitrators were then functi officio. Ib.

A verdict was taken for the plaintiff in an action on all the issues joined, subject to a reference of that and another cross-action between the same parties. In the latter action issue had not been joined. By an order of reference the arbitrator was empowered to make "an award or a certificate." He signed two separate certificates, and delivered them to the parties :-Held, that as the certificates purported to be made at one and the same time, they might' be considered as one instrument, containing the decision in each cause. Smith, In re, 6 D. & L. 20; 14 Jur. 483. See Winter v. White, IV. 2, b.

How Executed.]-A cause and all matters in difference were referred to the arbitration of three persons, the award of the three, or of any two of them, to be final. The award purported on the face of it to be made by all three, but was executed by two only, the third having refused to sign it when requested to do so :-Held, that the award was good as the award of the two. White v. Sharp, 12 M. & W. 712; 1 D. & L. 1039; 1 Car. & K. 348; 13 L. J., Ex. 215; 8 Jur. 344.

A submission to arbitration provided that the matter in dispute should be referred "to the decision of one or of three disinterested arbitrators, . as mutually agreed. If three arbitrators be appointed, one shall be nominated by the member making the claim, one by the committee, and the third by the two so chosen, before the reference is proceeded with." A dispute arose, and was referred to three arbitrators, who were appointed in pursuance of the submission :-Held, that in order to constitute a valid award under the submission, all three arbitrators must be unanimous, and that therefore an award executed by two only of the arbitrators was invalid. United Kingdom Mutual Steamship Assurance Association v. Houston, 65 L. J., Q. B. 484; [1896] 1 Q. B. 567.

Where agreement of reference provides that award shall be made by four persons, or any three of them, and award purports to be made by