PART II. CH. III. S. 3. Married needs not notice to the arbitrator to make the revocation com plete (c). If there be others joined with her as co-plaintiffs and co-defendants in the reference, her marriage avoids the submission as to all of them (d). But as it is a voluntary act on her part, it is a breach of her agreement to abide by and perform the award, and renders her and her husband liable to an action (e). Perhaps these propositions may have to be modified in Property Act. certain cases by the Married Women's Property Act, 1882 (ƒ). Women's Change in character of arbitrator. Arbitrator's refusal to proceed. Revocation by disagreement when there is an umpire. Death of arbitrator formerly a revocation. VI. Revocation by the refusal to act, or death of the arbitrator.]-This ground of defeating the submission will be materially diminished by the provisions of the Arbitration Act, 1889, noticed below. A change in the character of the arbitrators does not of itself effect a termination of their authority. Where arbitrators were made by order of Chancery commissioners to determine the controversy between the parties, they still retained the authority given them by the submission (g). It was decided in equity, by Lord Chancellor Eldon, that if arbitrators refused to proceed with a suit referred to them, the suit might be prosecuted as if no reference had been made; and in giving judgment, Lord Eldon put it on the same footing as a case where one of the arbitrators had died (h). When there were two arbitrators, and also an umpire, who was to decide in case of their disagreement, and no time was limited for making the award, the authority of the arbitrators at common law was terminated by their disagreement, and that of the umpire commenced (i). Formerly the death of the arbitrator which of necessity terminated his powers, defeated the submission, and opened the whole matter (). The latter result could, however, be prevented (c) Com. Dig. Arb. D. 5; White v. Gifford, Rolle, Ab. Auth. E. 4, p. 331; Vin. Ab. Authority, 1, 3. (d) Com. Dig. Arb. D. 5; White v. Gifford, Rolle, Ab. Auth. E. 4, p. 331; Bac. Ab. Baron & Feme, E. (e) Charnley v. Winstanley, 5 East, 266. See also Lambert v. Hutchinson, 2 M. & G. 858, where the point might have been raised. (f) 45 & 46 Vict. c. 75. (g) Hill v. Hill, Vin. Ab. Auth. I. 2. (h) Crawshay v. Collins, 3 Swanst. 90. (i) Tunno v. Bird, In re, 5 B. & Ad. 488. See P. II. ch. 4, s. 4, d. 4, commencement of the umpire's authority. (k) Crawshay v. Collins, 3 by the introduction of proper clauses into the submission, providing for the appointment of a new arbitrator in case of the decease of the first (7). PART II. CH. III. s. 3. refusal of one If there were more than one arbitrator, the death of any Death or one would, it is presumed, terminate the power of all, unless of several the submission expressly provided that the survivors might arbitrators. act alone (m). Possibly the refusal of one of several arbitrators to proceed with the reference might have had the same effect, for the authority of arbitrators, being derived from private individuals, is different from that possessed by persons holding a public trust, and performing a public duty, and must be executed by all (n). trators on But by the Arbitration Act, 1889 (52 & 53 Vict. c. 49), in Arbitration case of the death, refusal to act, or incapacity, of a single Act, 1889. Appointing arbitrator, the court or a judge may appoint a new one if the new arbiparties do not [s. 5], and by s. 6 of the same act, where one death, of two arbitrators fails for the like causes, unless the party refusal, or incapacity. appointing him appoints a fresh arbitrator, the remaining arbitrator may be appointed to act alone. of arbitrator By the clauses respecting arbitrations under the Lands Death, &c., Clauses Consolidation Act, 1845 (0), and the Railways Clauses under the Consolidation Act, 1845 (p), provision is made that "if when Lands and Railways a single arbitrator shall have been appointed, such arbitrator Clauses Conshall die or become incapable to act before he shall have made his award, the matters referred to him shall be determined under the provisions of this or the special act, in the same manner as if such arbitrator had not been appointed." When the parties have each appointed an arbitrator under either of the above statutes (q), if either arbitrator die or become incapable, the party who appointed him may appoint Swanst. 90; Cheslyn v. Dalby, 2 Y. & C. 170; Hooper v. Abrahams, 4 Moore, 3. (1) See form of such clause in Jarman & Bythewood's Convey. vol. i. pp. 533, 619. (m) Crawshay v. Collins, 3 Swanst. 90. (n) R. v. Whitaker, 9 B. & C. 648; Grindley v. Barker, 1 B. & P. 229; R. v. Hobbes, Noy, 47. See Vin. Ab. Auth. B.; Doe d. (0) 8 & 9 Vict. c. 18, s. 29. See (p) 8 & 9 Vict. c. 20, s. 130. See Appendix of Statutes. (g) 8 & 9 Vict. c. 18, ss. 26, 30, and 8 & 9 Vict. c. 20, ss. 127, 131. See Appendix of Statutes. solidation Acts. PART II. CH. III. S. 3. Under the solidation Act. Railway Arbitration Death of a party a revocation. another in his place, and if he fail to do so within seven days after notice in writing, the remaining arbitrator may proceed ex parte; so if either arbitrator refuse, or for seven days. neglect to act, the remaining arbitrator may proceed ex parte, and make an award (r). Under the Companies Clauses Consolidation Act the provisions are similar, except that in all the four events of death, incapacity, refusal, or neglect to act, the party has the option of appointing a new arbitrator within seven days after notice in writing (8). Under the Railway Companies Arbitration Act, 1859 (22 & 23 Vict. c. 59), the companies making the appointments are to supply vacancies in the arbitrators; if they do not, the Board of Trade may make the appointment. VII. Revocation by the death of a party.]-By the Arbitration Act, 1889, s. 1, a submission is stated to be generally irrevocable except by leave of the court. This probably only means "not revocable by any party," as in the statute of Will. IV. (t). If so, the new Act does not alter the effect of the death of a party. Generally, if either of two parties to a submission died before the award was made, the power of the arbitrator under the old law was wholly gone (u). A man who agrees to a reference may know that he is capable of giving explanations which his heir or personal representative cannot give. He knows that if his opponent be examined as a witness, he may be examined also. He may therefore agree to bind himself to an arbitration, but not to bind those who are to succeed him (r). That this principle is founded on wisdom is proved from its having been adopted into the laws of England, Scotland (y), Spain (≈), and into the (r) See P. II. ch. 4, s. 3, d. 3, as to proceedings by remaining arbitrator. (8) 8 & 9 Vict. c. 16, s. 129. See Appendix of Statutes. See P. II. ch. 4, s. 3, d. 3, as to proceedings by remaining arbitrator. (t) See Smith v. Nelson, 25 Q. B., per Lord Esher, M. R., at p. 550. (u) Tyler v. Jones, 3 B. & C. 144. (x) The President, &c. of Orphan Board v. Van Reenen, 1 Knapp, Pr. Council Rep. 83. (y) Erskine's Institutes, Book IV. tit. 3, sec. 16, 12th ed.; Caledonian Rail. Co. v. Lockhart, 3 Macq. 808. (z) Johnson's Spanish Law, p. 295. civil law (a). The law of France, indeed, is not in exact accordance with the above, for it seems an arbitration in France is not stopped by the death of one of the parties, if his heir be of full age (b). PART II. CH. III. S. 3. death of one revocation. An exception to the universality of the rule, that death Whether is a revocation, occurs where there are several parties on the of several same side. For it is very questionable, as a general proposi- parties a tion of law, whether the death of one of them avoids an after-made award (c). Where an action would not abate by reason of the death of one party, it seems probable that a reference of that action is not vacated by such death, but that the power of the arbitrator remains to bind the survivors, though not the representatives of the deceased (d). death a But the analogy of an action will not hold in every Though respect, for though the death of a single plaintiff or defendant verdict taken, after verdict will not abate an action, yet it has been often revocation. decided that taking a verdict on a submission at Nisi Prius does not prevent the death happening after it revoking it altogether (e), for the finding of the jury is a mere formal entry (f). This was held to be the effect of a death when the plaintiff died in the morning, and the award was executed in the evening of the same day (g). A distinction was taken in an older case, that death was a revocation when the submission at Nisi Prius embraced other matters than those to which the verdict could apply, but not when the cause only was referred (h). That distinction, however, was expressly overruled both in the Queen's Bench and Common Pleas (i). A distinction is taken as to the effect of death as a revocation when the referee has to state a case instead of make an award. Where a cause was by order of Nisi Prius referred to a barrister, who was to state a special case, and the case was stated and delivered after the death of the defendant, (a) Dig. lib. 4, tit. 8, I. 27; Domat, lib. 1, tit. 14, s. 1, pt. 6. (b) Code de Proc. Civ. p. 11, liv. 3, tit. Unique, s. 1013. (c) Hare and Milne, In re, 6 Bing. N. C. 158. (d) Edmunds v. Cox, 2 Chitt. 432. (e) Rhodes v. Haigh, 2 B. & C. 345; Cooper v. Johnson, 2 B. & A. 394. (f) Toussaint v. Hartop, 1 Moore, 287; 7 Taunt. 571; Prentice v. Reed, 1 Taunt. 151. (g) Potts v. Ward, 1 Marsh. 366. (h) Bower v. Taylor, cited in Rhodes v. Haigh, 2 B. & C. 346, S. C. cited 7 Taunt. 574. (i) Cooper v. Johnson, 2 B. & A. 394; Rhodes v. Haigh, 2 B. & C. 345; Toussaint v. Hartop, 7 Taunt. Not when arbitrator to state a special case. PART II. CH. III. S. 3. Not by Scotch law when arbiter to fix price of estate. Parties with several in of one. the court refused to set it aside, for it was said if it had been the case of a special verdict, and one of the parties had died before the verdict was prepared, that would have made no difference; that the referee was a person put in the place of the judge to settle the points for the opinion of the court; and that if the referee had not been substituted, the judge might have proceeded to settle the case after the death of the parties (k). When an arbiter is appointed by vendor and purchaser to fix on the price of an estate sold, by the law of Scotland the arbiter is empowered to proceed, notwithstanding the death of either party (7). When one submission includes several parties on the same terests, death side, who have each of them separate interests, the death of one avoids the submission only as to him. Thus, where the owners of a ship, and the several freighters, who had distinct interests in the cargo, submitted some differences which had arisen to arbitration, it was holden, that the death of one of the freighters before the award was made affected it only as to him, and was no revocation as to the others (m). Death of infant revocation as to guardian. No relief in equity on revocation by death. Clause to pre In one instance the court practically treated the death of an infant as a revocation of a submission, so far as it affected parties who were his guardians and trustees. They had joined in a reference affecting lands, of which the infant was tenant for life. He died pending the reference. An award made against them after his death was, on application to the court, set aside so far as it related to them (n). Nor can equity give any assistance, though a party deceased has covenanted for himself, his heirs, and executors, to convey lands at a price to be fixed by arbitration, and the arbitrators have executed their award, valid in every respect except that the covenantee died before it was made; for in order to ground an application for a specific performance, the terms of the contract must, unless otherwise provided, be ascertained by the arbitrator in the lifetime of the parties (o). To avoid the inconvenience which resulted from this rule (k) James v. Crane, 3 D. & L. 661. (1) Caledonian Rail. Co. v. Lockhart, 3 Macq. 808; Lord Selkirk v. Nasmith, Morr. 627. (m) Reported 2 Archb. Practice, 1323, 13th ed.; 1605, 14th ed. (n) Bristow v. Binns, 3 D. & R. 184. (0) Blundell v. Brettargh, 17 Ves. 232. |