PART I. CH. III. 8. 7. Submission under the ment Act, the Local Board appointed an arbitrator, and even after they had expressed their willingness to concur in the appointment of a single arbitrator (s). It is provided by the Local Government Act, 1888 (51 & Local Govern- 52 Vict. c. 41), s. 11 (6), that any question between a County Council and a highway or sanitary authority in respect of the vesting or user of any sewer or drain, may be referred to arbitration in manner provided by the act. 1888. New quarter sessions boroughs. Lunatic asylums. Adjustment. By the same act, s. 32 (3 b), the amount to be paid by a county borough having a new grant of quarter sessions to redeem its liability to contribute to the expenses of the county quarter sessions, is to be settled by arbitration in case of disagreement; and by s. 244 of the Lunacy Act, 1890, arrangements respecting lunatic asylums are to be settled in like manner after the powers of the commissioners have ceased. So also by s. 62, sub-s. (2) of the Local Government Act, any matter requiring adjustment under the act, if not preAppointment scribed to be settled by the commissioners under the act, may be determined by an arbitrator appointed by the parties, or in case of difference by the Local Government Board. of arbitrator. Arbitrator. Award reopened. Local Government Board. By s. 62, sub-s. (3), the arbitrator is to be deemed an arbitrator within the meaning of the Lands Clauses Acts. He may state a special case and determine the amount of costs and disallow such as he deems incurred unnecessarily. By sub-s. (4), the award may provide for any matter for which an agreement might have provided; and by sub-s. (5), the sum awarded may be paid out of specified funds with consent of the Local Government Board. At the end of every five years the agreement or award between a county and a county borough may be opened if the Local Government Board think that the adjustment has become inequitable, and may be re-settled by an arbitrator appointed by the parties, or in case of difference by the Local Government Board. Sect. 32 (6). By s. 63, when the Local Government Board are required to decide any matter referred to arbitration, the provisions of the Regulation of Railways Act, 1868, respecting arbitration by the Board of Trade are to apply. By the last-named act the Local Government Board may appoint an arbitrator (8) Bayley v. Wilkinson, 16 C. B. N. S. 161, to act for them, whose award is to be their award (31 & 32 Vict. c. 119, s. 30). By a private act of parliament, arbitrators are often appointed by consent of parties to determine questions, such as the amount of a rent-charge to be paid in lieu of tithes (†); or to revise a corn rent (u); or to settle the rights of shareholders, creditors, and mortgagees of an insolvent railway company (x); or disputes between two classes of shareholders in a railway company (y); or to the exclusion of the courts of law, to determine disputes between two railway companies (z). PART I. CH. III. 8. 7. Submission by private act of par liament. Under the Tramways Act, 33 & 34 Vict. c. 78, differences Tramways are to be referred to an arbitrator to be appointed by the Act. Board of Trade. Where a tramway company refused to remove pavement put down by them notwithstanding the objection of the corporation, the matter was held to be a matter in difference under sect. 33 of the act, and therefore to be decided by arbitration, and the corporation were precluded from obtaining a mandamus to the company to remove the paving (a). Under the Housing of the Working Classes Act, 1890 Housing of (53 & 54 Vict. c. 70), in Part I., schemes for improving Working Classes Act, unhealthy areas in urban sanitary districts are dealt with, 1890. and an arbitrator may be appointed by the "confirming authority," Schedule II. (4); i.e., the Secretary of State in London and the Local Government Board elsewhere, s. 8 (2). An appeal lies from the arbitrator's decision to that of a jury in certain cases, Schedule II. (26). Part II. of the act deals with the removal of unhealthy and obstructive buildings. The arbitrator for settling compensation is appointed by the Local Government Board, and his award is to be final and binding, s. 41. (t) Willoughby v. Willoughby, 4 Q. B. 687. (u) R. v. Lindsay, 13 Q. B. 484. (x) 30 & 31 Vict. c. ccix. (y) Yool v. Great Western Rail. Co., 39 L. J. Ch. 562. (z) Caledonian Rail. Co. v. Greenock and Wemyss Bay Rail. Co., L. R. 2 Scotch App. 347. (a) Croydon Corporation v. Croydon and Norwood Tramways Co., 18 Q. B. D. 39, S. C. 56 L. J. Q. B. 125. PART I. CH. III. S. 8. Preventing making forfeiture of bond. SECTION VIII. OF PROCEEDINGS ON THE SUBMISSION WHEN ONE PARTY HAS 1. Remedy by action and attachment.]-Every submission contains some words expressing or implying the agreement of the parties to abide by and perform the award of the arbitrator. Preventing the award being made is a breach of this agreeaward, breach ment, as much as not performing it when made; and when of submission, the submission is by bond, is a forfeiture of the penalty (b). Where there was a judgment in ejectment to recover a mill, and the principal question in the reference was, whether the successful party should have possession of the mill or the other retain it, the former by obtaining possession of it under his judgment was held to have committed a breach of the arbitration bond, which was conditioned to stand to the award of the arbitrator respecting all matters and judgments, since the taking possession rendered it impossible for the arbitrator to decide the question submitted to him (c). Punishable by attachment. Revocation a breach of submission. Party not liable for default of An attachment was held to lie if, after the submission had been made a rule of court, a party served the arbitrator with a subpoena out of Chancery, which hindered his making his award (d). Wilfully revoking the authority of the arbitrator after the submission had been made a rule of court was also a ground for an attachment (e). As such revocation was a breach of the agreement to abide by the award of the arbitrator, an action lay for the breach, whether the submission were by order of Nisi Prius or by any other form of submission, whether it were made a rule of court or not, and the expenses incurred in the reference might be recovered as damages (ƒ). When matters are to be referred to two valuers, a party is not liable to an action for the failure to act of the valuer appointed by himself, or for refusing to appoint a fresh valuer. If there is no valuation, each party seems remitted to his original right of action (g). PART I. CH. III. S. 8. arbitrator to act. give costs II. Motion for costs under the submission.]-A more sum- Clause to mary method than that by action, of obtaining compensation when award in case of a breach of the submission, is often provided by a prevented wilfully. clause, "that if either party, by affected delay or otherwise, prevent the arbitrator from making his award, he shall pay to the other such costs as the court shall think fit." Revoking the arbitrator's authority was a breach of the submission; and if done without good cause, the party revoking would be visited with the costs of the reference. When a cause was Judge's order referred by a judge's order, it was held that the order might made rule of by common law be made a rule of court even after the sub- revocation. mission had been revoked, for the purpose of applying for costs under this provision (). Court after The applicant for costs must show to the court that the Revocation. other party, by wilful, wrongful, and unreasonable delay, has prevented the arbitrator from making an award. Therefore, where it appeared that the party sought to be charged with costs had revoked the submission in consequence of being unable to procure the attendance of some material witnesses, whose attendance might have been compelled in a court of law, the court refused the application, considering that a revocation on that ground could not be considered an affected delay within the meaning of the order of reference (i). As revocation is, primâ facie, a breach of the agreement, in order to free himself from liability to costs, he who revokes the arbitrator's power must satisfy the court that he had reasonable ground for such revocation, and that he acted on that ground (k). The court made the plaintiff pay the costs of the reference Plaintiff not in the following case:-Both parties had agreed to attend attending. the arbitrator on a particular day, but the plaintiff, though attending, not being prepared with the necessary books and (g) Cooper v. Shuttleworth, 25 L. J. Ex. 114. (h) Aston v. George, 2 B. & A. 395; Clapham v. Higham, 1 Bing. 87, S. C. 7 Moore, 403; Smith v. Fielder, 3 M. & Sc. 853. (i) Aston v. George, 2 B. & A. 395. (k) Winterflood v. Stoveld, Watson on Awards, 3rd ed. p. 43, n. (2); 2nd ed. p. 34, n. (2). PART I. CH. III. S. 8. Court no power to give costs without the clause. No power where award ultimately made. witnesses, and the arbitrator declining to examine the plaintiff in support of his own case, the meeting was at the plaintiff's request adjourned. The latter refused to agree to another appointment, alleging that he could not procure the books, and so the time for making the award expired without anything being done (1). Without this clause the court has no jurisdiction to compel a party in default to pay costs, not even where there was a special provision in the order of reference that the defendants should at once during the reference repair a ship, the subject of the action, and the plaintiff had revoked the submission after the defendants had gone to expense in repairing it (m). Where, in consequence of some suspicious delay by the defendant, and false excuses for non-attendance at the meetings, the arbitrator proceeded ex parte, and the award was afterwards set aside on the ground of the arbitrator's proceeding ex parte too hastily, the court refused to allow a clause directing the defendant to pay costs, under the provision against wilful delay, to be inserted in the rule for setting aside the award, and said that such an application must be the subject of a separate motion, so as to give the defendant an opportunity of answering the statement made against him (n). It seems that the clause against affected delay is confined to cases where the completion of the award is prevented, and does not apply where an award has in fact been made (o). |