tion Act, 1845 (p), by consent of parties after the statutable period has expired, the court will not set aside the award, and it would seem to be perfectly valid, for the parties may renounce the statutable limit introduced for their own advantage (q).

PART II.

CH. III. S. 2.

forward new

matters.

After the case closed on both sides, and the time expired, Bringing requesting the arbitrator to take some new matters into his consideration is such a recognition of his authority as continuing, that the consent of the party making it to extend the time may fairly be implied, for it manifestly refers to an award which the arbitrator has still to make (). If a party write to an umpire, telling him that the 29th of Stating day November is the last day on which he can make his award, it seems very doubtful whether it is competent for that party afterwards to object that an award made on the 29th of November is made too late (s).

as limit.

When the time has once been suffered to expire without Enlarging time by conan award having been made, a surety for the performance of sent discharge the award will be discharged, and his liability will not be of surety. revived by the parties agreeing to give the arbitrator further time for making his award. Thus, where the attorney in a cause referred had undertaken to pay the amount of debt and costs which his client should be awarded to pay, and the time had been allowed to expire without enlargement, but was afterwards enlarged by a judge's order drawn up "by consent of the attorneys and agents on both sides," it was held that the undertaking was at an end when the limited time had once passed by, and that the attorney's consenting to the enlargement was only an act in performance of his duty to his client as attorney in the cause, and therefore ought not to be considered as a new personal undertaking to pay the amount (t).

common law

III. Enlargement of time by the courts of law.]-Without Court no the consent of the parties, neither the court nor a judge could at common law grant any enlargement when the time had enlarge.

(p) Palmer v. The Metropolitan Rail. Co., 31 L. J. Q. B. 259; Bennett v. Watson, 29 L. J. Ex. 357, S. C. 5 H. & N. 831.

(1) Caledonian Rail. Co. v. Lockhart, 3 Macq. 808.

(r) R. v. Hill, 7 Price, 636.
(s) Higham and Jessop, In re,
9 Dowl. 203.

(t) Staite v. Haddon, 9 Dowl.
995.

power to

PART II.

CH. III. S. 2.

Arbitration
Act, 1889,

lapsed; the authority of the arbitrator was gone, and all the proceedings already taken became ineffectual (y).

To remedy this inconvenience, an act was passed in the enlarges time. time of W. IV. That act was repealed by the Arbitration Act, 1889, which, by s. 9, makes the following provision:"The time for making an award may from time to time be enlarged by order of the court or a judge, whether the time for making the award has expired or not." A summons is Order LXIV. usually taken out for this purpose. By Ord. LXIV., 14 (a), "Where the time for making an award is enlarged, the enlargement shall be deemed to be for one month, unless a different time is specified in the order” (≈).

14 (a), Dec.

1889.

Month.

Court may enlarge after period.

After award.

A distinction between enlargement by the arbitrator and enlargement by the court should be noted. The arbitrator must exercise his power of enlarging during the period limited for making his award, but the court is not limited. to such period (a). Even where the submission gave power to the arbitrator to enlarge the time, "but so as the period. to which the time shall be so enlarged shall not exceed the 1st July," a judge on the 29th June enlarged the time to the 1st December, and the court held it good (b) under the repealed statute 3 & 4 W. IV. c. 42.

If an arbitrator has made his award after the time has elapsed, the court may, notwithstanding, after that enlarge the time (c). The effect of the order of court is to render valid any step taken from the lapse of the first period until the expiration of the time limited by the order (d).

Before any application could be made for an enlargement, the submission in old times had to be made a rule of court (e).

(y) Halden v. Glasscock, 5 B. & C. 390, S. C. 8 D. & R. 151; Teasdale v. Atkins, cited Tidd's Pr. 826, 9th ed.

(z) See the cases as to enlargement under the statute of W. IV., now repealed. Potter v. Newman, 2 C. M. & R. 742; Burley v. Stephens, 1 M. & W. 156; Doe d. Jones v. Powell, 7 Dowl. 539; Denton v. Strong, L. R. 9 Q. B. 117; Johnson v. Collie, 24 L. J. Q. B. 64; Gaffney v. Killen, 12 Ir. C. L. Rep. App. xxv.

(a) Hall v. Rouse, 4 M. & W. 24, per Parke, B., 26; Parberry

v. Newnham, 7 M. & W. 378; Leslie v. Richardson, 6 C. B. 378; Bowen v. Williams, 3 Ex. 93.

(b) Parkes v. Smith, 15 Q. B. 297.

(c) Browne v. Collyer, 2 L. M. & P. 470, S. C. 20 L. J. Q. B. 426; Ward v. The Secretary at War, 32 L. J. Q. B. 53; May v. Harcourt, 13 Q. B. D. 688.

(d) Lord v. Lee, 9 B. & S. 269, S. C. 37 L. J. Q. B. 121; L. R. 3 Q. B. 404 See Warner v. Powell, L. R. 3 Eq. Cas. 261.

(e) Lambert v. Hutchinson, 2 M. & G. 858; 2 Tidd, 859.

PART II.

CH. III. S. 2.

enlarge not

A rule or order to enlarge the time will not be granted ex parte, without affording the opposite party opportunity to show cause against it (f). Nor will it be granted as of Rule to course. Where a long time, such as two or three years, has granted ex elapsed since anything has been done in the reference it will be refused (g).

parte.

quantum

Where the appointment of an umpire was not clearly good, Enlargement Crompton, J., enlarged the time quantum valeat, leaving the valeat. objection to the validity of the appointment open ().

rule.

Where it appeared that the cause had been referred by Drawing up order of Nisi Prius, and that the order had been made a rule of court, it was held sufficient to draw up the rule nisi for the enlargement on reading the affidavits and order of Nisi Prius. It was not necessary for it to be drawn up on reading the rule making the order of reference a rule of court (i).

wrong title.

Entitling the order as in a cause in court where the refer- Order with ence is not in a cause, but by agreement, is an immaterial error, and will be rejected as surplusage (k).

for good

Power was given by the Common Law Procedure Act, Enlargement 1854 (17 & 18 Vict. c. 125), s. 15, for any judge for good cause under cause to enlarge the term for making an award. But this is Common Law now repealed. The cases on this act are specified in the Act, 1851. note (7).

Procedure

Health Act.

The court has no power of enlarging the umpire's time for Under Public making an award under the Public Health Act, 1875 (38 & 39 Vict. c. 55), beyond the period limited by that act (m).

equity courts.

iv. Enlargement of time by a court of equity.]—Where a Statutes submission by agreement had been made an order in Chancery, apply to it was held that a court of equity had power to enlarge the time under 3 & 4 W. IV. c. 42, s. 39, and the Common Law Procedure Act, 1854 (n). The Arbitration Act, 1889, defines "court" as "Her Majesty's High Court of Justice."

(f) Clarke v. Stocken, 5 Dowl. 32; 3 Scott, 90,

(g) Lambert v. Hutchinson, 2 M. & G. 858; Andrews v. Eaton, 7 Ex. 221.

(h) Johnson v. Collie, 24 L. J. Q. B. 64.

(i) Browne v. Collyer, 20 L. J. Q. B. 426.

(k) Oldfield v. Price, 6 C. B. 539.

(7) Burdon, Re, 27 L. J. C. P. 250; Kellett v. Local Board of Health of Tranmere, 34 L. J. Q. B. 87; Warburton v. Haslingden, 48 L. J. Q. B. D. 451.

(m) Mackenzie v. Ascot Gas Co., In re, 17 Q. B. D. 114. See, as to umpire's time, Yeadon L. B. v. Yeadon W. W. Co., 41 Ch. D. 52.

(n) Warner v. Powell, L. R. 3 Eq. Cas. 261. See, however, Hall v. Ellis, 9 Sim. 530.

PART II.

CH. III. S. 2.

Time practically enlarged in equity.

Lands Clauses
Act.

In some instances, where by the misconduct of a party to the submission the arbitrators have been unable to perform their duty within the time limited, as where the seller prevented them from entering upon lands to value them pursuant to a contract for sale at a price to be fixed by arbitration, equity has practically enlarged the time, by directing the arbitrators to make their award notwithstanding the time had expired, and by enforcing a specific performance against him according to their valuation (0).

A submission to arbitration under the Lands Clauses Consolidation Act, 1845, having been made a rule of Chancery, and the award having been remitted to the umpire, that court held that it had power to enlarge the time for making the award under the Common Law Procedure Act, 1854 (p).

PART II.

CH. III. S. 3.

At common law submis

until award

made.

SECTION III.

OF REVOKING THE ARBITRATOR'S AUTHORITY.

1. Revocation by common law at the will of a party.]—At common law the authority of the arbitrator might at any time before the award was made have been revoked at the sion revocable pleasure of any party to the submission (9), whether the submission was by agreement in writing (r), by bond (s), or deed (t), by judge's order (u), by order of Nisi Prius (x), or by rule of court (y), and notwithstanding it was made irrevocable by the express words of the submission, for nothing under a legislative power could make that irrevocable which was in its nature revocable, for the arbitrator being constituted and put in the place of the parties by their consent

to act for them, could no longer act than he had such consent, and an award made subsequent to revocation was a nullity (z).

PART II.

CH. III. S. 3.

Even where one arbitrator had been, under sect. 13 of the Arbitrator appointed to Common Law Procedure Act, 1854, appointed to act alone in act alone. consequence of the failure of the other party to appoint his arbitrator, it was held that the statute did not make the appointment irrevocable, but that the party who had failed to appoint might revoke the statutable power (7).

parties re

Either party could revoke the submission, and if there were One of many several plaintiffs or several defendants, any one of them voking subcould, it seems, by revoking the authority of the arbitrator, mission as to render the submission void as to all, even against the will of his co-plaintiffs or co-defendants (b). This, indeed, has been doubted in works of great authority (c). In equity, where defendants often have different interests, the revocation by one defendant may annul the submission (d).

clause not

It is to be noted that even before the Arbitration Act, a Arbitration general clause in a partnership deed, that any disputes which revocable. might arise should be settled by an arbitrator to be agreed upon, was not revocable at will like an actual reference to a particular arbitrator (e); but where the arbitrators were named their authority was revocable (f). Now the powers of arbitrators under a "submission" cannot, it seems, be revoked without leave of court (g).

It was not quite clear whether, when the submission was Whether reunder seal, the revocation must have been under seal also, vocation of though the more general opinion seems to be that a revocation under seal was necessary (h).

(z) Bac. Ab. Arb. B.; Hide v. Petit, 1 Cas. in Chanc. 185, S. C. 2 Freem. 133; Marsh v. Bulteel, 5 B. & A. 507, S. C. 1 D. & R. 106.

(a) Fraser v. Ehrensperger, 12 Q. B. D. 310.

(b) Com. Dig. Arb. D. 5; Rolle, Ab. Authority, D. 1, 2, p. 331; Vin. Ab. Authority, H. 1, 2.

(c) Bac. Ab. Arb. B.; West's Symb. Part II. tit. Compromise, s. 42; Wilde v. Vinor, 1 Brownl. 62.

(d) Haggett v. Welsh, 1 Sim.

134.

(e) Piercy v. Young, 14 Ch. D. 200; Christie v. Noble, 14 Ch. D. 203, notes; Moffatt v. Cornelius, 26 W. R. 914.

(f) Deutsche Springstoff, &c. v. Briscoe, 20 Q. B. D. 177.

(g) Smith v. Nelson, 59 L. J. Q. B. D. 533, S. C. 25 Q. B. D. 545.

(h) Vynior's case, 8 Coke, Rep. 81 b; Wilde v. Vinor, 1 Brownl. 62; R. v. Wait, 1 Bing. 121; Fitzherbert, Ab. Arb. 22; West's Symb. Part II. tit. Compromise, 8. 42.

under seal need be by deed.