PART II. CH. IV. S. 4. Power of court. Act applies not valuation. The powers conferred on "the court or a judge" apply to references under order of court as well as by consent out of court (e). The Court of Appeal have all the powers conferred by the act on the court or a judge under the provisions relating to references under order of court (ƒ). To give the court jurisdiction there must be an arbitration to arbitration, and not a mere valuation. For where, by agreement in writing, A. agreed to buy of B. brewery premises and the plant, &c. at a valuation to be made by certain valuers or their umpire, the umpire to be chosen before entering on the valuation, and the valuers could not agree upon an umpire, it was held on the similar provision in sect. 12 of the Common Law Procedure Act, that the court had no power to appoint an umpire, as this was not an arbitration within the act, since there had been no difference between the parties as to the price before the agreement to settle it by a valuation (g). Appointment to decide between arbitrators. But if there be any matter in dispute, though not really a material one, the act applies (), or if the submission contemplates a judicial inquiry, and the hearing of witnesses and parties, it is an arbitration within the act, though there have been no actual difference (i). If the submission be to the award of A. and B., and D. being umpire, the words shall receive a liberal construction, and be held according to the common construction of the word umpire, to mean that D. is to decide as umpire in case A. and B. cannot agree in their award as arbitrators (). It is improper for the arbitrators, under the ordinary provision empowering them to appoint an umpire, to appoint a person to be an umpire between themselves, instead of between the parties, for the meaning of the provision in the submission is, that the arbitrators should make an award on all the matters in difference, and if they cannot agree on all, that the umpire should decide on all (7). (e) Sect. 16. (g) See Boss v. Helsham, L. R. 2 Eq. 72, S. C. 4 H. & C. 642; Collins v. Collins, 28 L. J. Ch. 184, S. C. 26 Beavan, 306. (h) Evans v. Caddish, 18 W. R. 723, Stuart, V.-C. (i) Hopper, In re, 8 B. & S. 100, S. C. 36 L. J. Q. B. 97, L. R. 2 Q. B. 367. (k) Com. Dig. Ab. Arb. F.; Rolle, Ab. Arb. p. 4. (1) Tollit v. Saunders, 9 Price, 612. PART II. CH. IV. S. 4. Umpire to which arbi But where the submission was of all differences to the award of A. and B., and in case of their differing in opinion, to any umpire to be appointed by them, and it then went on decide on to say, "and whatever the arbitrators or umpire shall deter- matters on mine in the premises by an award or awards, interim or final, trators disto be pronounced by them," shall be binding on the parties, agree. the House of Lords held that the arbitrators might make an award on some matters, and refer others on which they disagreed to the umpire (m). Consolidation On a reference under the Lands Clauses Consolidation Appointment of umpire Act, 1845 (n), it is provided by s. 27, that "where more than under the one arbitrator shall have been appointed, such arbitrators Lands Clauses shall, before they enter upon the matters referred to them, Act. nominate and appoint by writing under their hands an By arbitraumpire, to decide on any such matters on which they shall tors. differ, or which shall be referred to him under the provisions of this or the special act; and if such umpire shall die, or become incapable to act, they shall forthwith, after such death or incapacity, appoint another umpire in his place, and the decision of every such umpire on the matters so referred to him shall be final." The 28th section enacts that "if in either of the cases aforesaid the said arbitrators shall refuse, or shall, for seven days after request of either party to such arbitration, neglect to appoint an umpire, the Board of Trade, in any case in which a railway company shall be one party to the arbitration, and two justices in any other case, shall, on the application of either party to such arbitration, appoint an umpire, and the decision of such umpire on the matters on which the arbitrators shall differ, or which shall be referred to him under this or the special act, shall be final." Though, Arbitrator acting ex by s. 27, the two arbitrators cannot enter on the matters reparte, umpire ferred to them till they have appointed an umpire, it is to not appointed. be noticed that where one arbitrator refuses to act or to concur in appointing an umpire the other arbitrator may, under s. 30, proceed ex parte, notwithstanding that no umpire has been appointed (o). By Board of Trade or justices. The Railways Clauses Consolidation Act, 1845 (p), contains Under the (m) Lang v. Brown, H. L., May 8, 1855. (n) 8 & 9 Vict. c. 18. See Appendix of Statutes. R. (0) Shepherd v. Norwich Corporation, 30 Ch. D. 553. (p) 8 & 9 Vict. c. 20. Railways PART II. CH. IV. S. 4. Clauses Consolidation Act. Railway Companies Arbitration Act, 1859. Under the If arbitrators might appoint umpire by like provisions. Section 128 of this act is verbatim the same as s. 27, above given; and s. 129 of that act is word for word the same as s. 28 of the above act, except that the words between "Board of Trade," and "shall on the application," are omitted. The Railway Companies Arbitration Act, 1859, 22 & 23 Vict. c. 59, has similar provisions. Telegraphs of railway companies may be purchased by the PostmasterGeneral under the statute 31 & 32 Vict. c. 110 (g). Very similar enactments are found in the Companies Clauses Consolidation Act, 1845 (r); for that act provides, in s. 130, that "where more than one arbitrator shall have been appointed, such arbitrators shall, before they enter upon the matters referred to them, nominate and appoint by writing under their hands an umpire to decide on any such matters on which they shall differ; and if such umpire shall die, or refuse, or for seven days neglect to act, they shall forthwith, after such death, refusal, or neglect, appoint another umpire in his place; and the decision of every such umpire on the matters so referred to him shall be final." In s. 131, it is provided that "if in either of the cases aforesaid the said arbitrators shall refuse, or shall, for seven days after request of either party to the arbitration, neglect to appoint an umpire, it shall be lawful for the Board of Trade, if they think fit, in any case in which a railway company shall be one party to the arbitration, on the application of either party to such arbitration, to appoint an umpire; and the decision of such umpire on the matters on which the arbitrators shall differ shall be final." Under a reference which by private act of parliament was neglect, judge to be in the manner provided by the Companies Clauses Act, 1845 (neither party being a railway company), arbitrators were appointed and the submission made an order of Chancery before the Common Law Procedure Act, 1854, passed. The arbitrators not agreeing upon an umpire, the claimant (after the passing of the last-mentioned act) served them with a notice to appoint an umpire within seven days, under s. 12 of that act, and on their failing to do so took out a summons for Wood, V.-C., to appoint one under that statute. That learned (2) See R. v. Lord Coleridge, 45 L. J. Q. B. 649. (r) 8 & 9 Vict. c. 16. judge held that he could make the appointment, as he considered that s. 12 of the last-mentioned act had a retrospective as well as a prospective effect, and applied to pre-existing references, being a section for remedying defects in the course of procedure. He also thought that the clause in s. 12, "if in any case of arbitration when the parties or two arbitrators are at liberty to appoint an umpire," and they fail to do so, the judge may appoint, applied to every arbitration, whether by private act of parliament or by parol agreement, and was not limited to the cases where there is a document authorising the reference. It was discussed by counsel, and doubted by the Vice-Chancellor, whether a private act of parliament could be considered a document authorising a reference; but it is apprehended that the written appointment of the arbitrators which constituted the submission and was made a rule of court, and which authorised them to proceed, was a sufficient document authorising the reference within the meaning of the act (s). PART II. CH. IV. S. 4. Act retro spective. of Arbitra The Arbitration Act, 1889, applies to every arbitration Application under any act before or after, except in so far as the act tion Act, regulating the arbitration is inconsistent with the Arbitra- 1889. tion Act (t). Malins, V.-C., under the 12th section of the Common Law Third arbitraProcedure Act, selected a third arbitrator where one of the tor appointed by judge. two surveyors appointed under the statute 18 & 19 Vict. c. 122, to settle differences between the building owner and adjoining owner, had declined to agree in naming a third arbitrator (u). The articles of association of a joint-stock company incor- Umpire. porated under the Companies Act, 1862 (25 & 26 Vict. c. 89), provided for the appointment of an umpire by a judge under the Common Law Procedure Act, 1854, if the arbitrators failed to appoint one in due time. The arbitrators did not appoint an umpire. It was held that the appointment by a judge was valid, either under the articles of association or under the Common Law Procedure Act, 1854 (x). It may be proper to notice in this place, that by an act, Board of (8) In re Lord v. Copper Mining Co., 1 Kay & Johnson, 90, S. C. 24 L. J. Ch. 145. (t) 52 & 53 Vict. c. 49, s. 24. 2 Ch. D. 200. (x) See De Rosaz v. AngloItalian Bank, L. R. 2 Q. B. 452; also 38 L. J. Q. B. 161, S. C. L. R. 4 Q. B. 462. PART II. CH. IV. S. 4. Trade and missioners. the 9 & 10 Vict. c. 105, ss. 2 and 9, all the powers of the Board of Trade, with respect to railways, or intended railRailway Com- ways, were transferred to the Commissioners of Railways appointed under that act. But by the statute 14 & 15 Vict. c. 64, the last-mentioned act was repealed, and the powers of those Railway Commissioners were transferred to the Board of Trade. Judge may appoint on refusal of party empowered to appoint. Appointment to be made at time prescribed. When arbi trators to appoint, no time prescribed. Where an agreement of reference between two telegraph companies provided that in case the parties did not agree on a sole arbitrator, the matter should be referred to a sole arbitrator to be appointed by [the Board of Trade], which, on the failure of the parties to agree, refused to appoint, it was decided that a judge might make the appointment under s. 12 of the Common Law Procedure Act, 1854 (y). II. When the arbitrators should appoint the umpire.]-Sometimes, in order to insure the appointment of an umpire before the arbitrators' minds are embarrassed with the matters in difference, the appointment is made a condition precedent to the proceeding at all in the reference; when such is the case, the arbitrators should make the appointment before they take any other step, or the whole proceedings may be invalid (). Merely enlarging the time before appointing the umpire is not an entering on the consideration of the matters in difference, so as to render the appointment a nullity (a). When the submission makes no special provision respecting the time when the arbitrators are to appoint the umpire, and a day is given to the umpire subsequent to that limited for the arbitrators making their award, they may appoint an umpire at any time before the time for making the umpirage has expired, for the power of appointing an umpire is quite collateral to that of making an award, and survives when the latter power is extinct (b). (y) Brazilian, &c., Co. & Western Telegraph Co., In re, 42 L. T. N. S. 234. (z) Hick, In re, 8 Taunt. 694; Bright v. Durnell, 4 Dowl. 756. (a) Cudliff v. Walters, 2 Moo. & Rob. 232. (2) Harding . Watts, 15 East, 556; |