PART II. CH. II. S. 3. Re-executing submission. Ewes with lamb. Parties may submit future claims. Costs. Money not due till after reference. Mesne profits down to award. If the submission be of all differences and "of anything in anywise relating thereto," these latter words do not extend the power of the arbitrators to matters which, though relating to the existing differences, arise after the date of the submission; nor do they authorise the calculation and awarding of interest subsequent to that date (m). Where arbitration bonds, dated the 9th of December, were on the 4th of January, before the proceedings had commenced, altered by the parties substituting a later day as the limit for making the award, and were then re-executed and re-delivered, the arbitrator was held to have cognizance of claims arising after the 9th of December, and up to the 4th of January, since the execution of the bonds not only extended the time, but amounted to a new submission on the 4th of January (»). It is said if the submission be respecting ewes with lamb, and the ewes, after the submission, but before the award, have lambs, that the arbitrator has no power to make any award touching the lambs (0). The parties, however, may, if they please, give the arbitrator power to determine on contingent claims, or on matters in dispute or demands arising after the date of the submission (p), and such course is often pursued. Leaving to the arbitrator to decide as to the costs of the reference and award, all of which necessarily accrue after the date of the submission, is a familiar instance (q). A reference "of all matters in difference, including the claim of the defendant in her set-off in the action," was construed to authorise the arbitrator to award to the defendant a sum which was not pleadable as a set-off strictly, since by agreement it was not due when the action commenced, nor till after the date of the reference (r). Where a railway company had taken the plaintiff's lands and holden them many years, on a reference of all matters in difference to an arbitrator who was to settle the price to be (m) Morphett, In re, 2 D. & L. 967. (n) Watkinsv. Phillpotts, M'Lel. & Y. 393. (0) West's Symbol, Part II. tit. Compromise, s. 33. (p) Brown v. Croydon Canal Co., In re, 9 A. & E. 522; Mor phett, In re, 2 D. & L. 967; Lewis v. Rossiter, 44 L. J. Ex. 136. (1) Leeming v. Fearnley, In re, 5 B. & Ad. 403; Carpenter v. Joynes, 14 Pract. Reg. 45. (r) Petch v. Fountain, 5 Bing. N. C. 442, S. C. 7 Dowl. 426. paid for the lands and to direct conveyances, he was held entitled to take into consideration all claims for mesne profits down to the time of making his award (s). PART II. CH. II. S. 3. award of When an arbitrator was appointed so that he made his Periodical award as to existing damages before a certain day, and as damages. to damages which should be thereafter sustained from the working of a certain mine, at the expiration of every two months from the day specified, the arbitrator was held empowered to make, at the end of each two months, a periodical assessment of the damages accruing during the respective intervals, but not, after delaying till a third month, to include in one award a compensation for damages incurred subsequent to the second month, as well as for damages occurring during the two months (t). From what has been said already, it must be evident that claims not due at the date of the award cannot, under ordinary circumstances, be properly adjudicated on. An award of payment of rent admitted by the award not yet due at the date of the award is void, as the rent may become extinct either by surrender or eviction before it is due (u). (s) Smalley v. Blackburn Rail. Co., 27 L. J. Ex. 65, S. C. 2 H. & N. 158. (t) Stephens v. Lowe, 9 Bing. 32. (u) Barnardiston v. Fowler, 10 Mod. 204. Money not due at date of award. 136 PART II. Contents of the third chapter. CHAPTER III. THE DURATION OF THE ARBITRATOR'S AUTHORITY. WE now proceed to consider the duration in point of time of the arbitrator's authority; when it commences, and when it terminates. Section one treats of its commencement, and of its termination either by the making of the award, or by the expiration of the period (if any) limited by the submission for that purpose. In section two is shown how the time in respective instances may be enlarged by the arbitrator, the court, or the parties. Section three declares how the arbitrator's authority may permanently be put an end to, through a revocation of the submission, by the will of a party, or by the operation of law. PART II. CH. III. S. 1. Commencement of the arbitrator's authority. SECTION I. OF THE DURATION OF THE ARBITRATOR'S AUTHORITY WHEN NOT ENLARGED OR REVOKED. 1. When the submission prescribes no time within which the award is to be made.]-Where the submission prescribes no time for the reference to begin, the authority of the arbitrator commences from the time of the agreement to refer being entered into, and he may make his award on the same day on which the submission is executed (a). But when there are several parties to a deed of submission, and the consideration to each to execute it is the accession of all the parties to the reference, the authority of the arbitrator does not commence (a) Anon., Latch. 14. PART II. CH. III. S. 1. until all have executed it; and even though the submission be several as well as joint, he has no power to decide on a separate matter in difference between two of those who have signed it, when there are others who have not executed it (b). The jurisdiction of a referee on a boat-race does not attach Referee of unless the conditions prescribed on which the start is to take place have been fulfilled (c). boat-race. It rarely happens that no time for awarding is fixed, for Arbitration orders of court referring a matter are drawn up with proper Limit of time Act, 1889. clauses and forms; and submissions out of court are generally for award. deemed to include the provision as to time contained in the Arbitration Act, 1889, set out in the next division. entering on The time limited for making the award often does not What is begin until the arbitrators shall have entered on the reference. the reference. And they do not enter on the reference by mere acceptance of the appointment, or by giving a peremptory notice for a meeting, nor until they begin judicially to enquire into the case (d). In all cases to which the statutes do not apply, if the submission limit no time within which the arbitrator is to make his award, his authority to make it will continue for his life, unless it be revoked. There is no necessity to resort to any implication that the award is to be made within a reasonable time, for it is open to the parties to request the arbitrator to proceed within a reasonable time; and if, after such request, the arbitrator neglect and refuse, such neglect on his part will be a good ground for revoking his authority (e). In an old case it was held, that if the submission were to the arbitrator "when his occasions would permit," convenient time must be given him after request, and if no award were then made, the parties might revoke his authority (ƒ). (c) Sadler v. Smith, 39 L. J. Q. B. 17; S. C. below, 38 L. J. Q. B. 91; S. C. L. R. 4 Q. B. 214; S. C. on appeal, L. R. 5 Q. B. 40. (d) Baker v. Stephens, 8 B. & S. 438, S. C. 36 L. J. Q. B. 236; L. R. 2 Q. B. 523. See cases as to duration of time under the repealed Common Law Procedure Act, 1854: Lord v. Lee, 9 B. & S. 269, S. C. 37 L. J. Q. B. 121; L. R. 3 Q. B. 404; Morris v. Morris, 6 E. (e) Salter v. Yeates, 5 Dowl. (f) Newgate v. Degelder, 2 Keb. 10, 20, 24, S. C. Bac. Ab. Arb. D. Duration for in submission. life, no limit PART II. CH. III. S. 1. Reference at Limit on Scotch reference. Arbitrator cannot fix a limit. Award must be within the Though on the reference of a cause at Nisi Prius an arbitrator is in many respects looked upon as substituted for the jury, he is not limited in making his award to the period before the jury process is returnable (g); if instead of having to award, he has only to certify for whom and for what amount of damages the verdict is to be entered, he is equally unfettered as to time, and his certificate will be valid, though made when the assizes are over, though the return day of the jury process has passed, and though no order of Nisi Prius has in fact been drawn up (h). By the Scotch law, it is said, if a blank be left in the submission for the day within which the award is to be made, the arbitrator's power is limited to a year from the date of the last subscription of any of the parties to the reference (i). But a submission of this description would probably by the law of England be construed to be a general authority to make the award, as if no time had been mentioned, and would not be vitiated by the omission to fill up the blanks (). When the submission limits no time for making the award, the arbitrator, in the absence of an express power to do so, cannot himself fix a limit for making the award, so as to render an award made after that time invalid (7). II. When the submission prescribes a limited time for making time limited. the award.]-When the submission fixes a limit, the award must be made within it, unless further time be subsequently given. How that further time is to be obtained is treated of in the next section. Time for awarding under the Arbitration Act, 1889. By the Arbitration Act, 1889 (m), s. 2, a submission made out of court shall, unless a contrary intention is expressed therein, be deemed to include the provisions in the first schedule, one of which, (a), is as follows: "The arbitrators shall make their award in writing within three months after entering on the reference, or after having been called on to act by notice in writing from any party to (g) Salter v. Yeates, 5 Dowl. 291, S. C. 2 M. & W. 67. (h) Salter v. Yeates, 5 Dowl. 291, S. C. 2 M. & W. 67; Tomes v. Hawkes, 10 A. & E. 32. (i) Taylor v. Grieve, Fac. Coll. Nov. 25, 1800, cited in Johnston v. Cheape, 5 Dow. 256. (k) See Macdougall v. Robertson, 2 Y. & J. note, p. 19. (7) Morphett, In re, 2 D. & L. 967. (m) 52 & 53 Vict. c. 49. |