PART II. CH. IV. S. 4. Disapproval of parties no effect. No special form of appointment. Appointment in writing, under Lands, Acts. is clear their power to make a second appointment remains, in case of a refusal by the party first selected (p). When there is an effectual appointment of an umpire, it cannot be affected by the disapproval of the parties (q). If the submission provide no special form of appointment of the umpire, a parol appointment is sufficient (r). Sometimes the submission requires it to be in writing, sometimes that it be under the hand and seal of the arbitrators, or that it be indorsed on the submission. Whatever the direction is, the arbitrators should follow it closely. When it is to be under the hands of the arbitrators, both must sign it, or at least agree upon the person, together ($). The appointment requires no stamp, unless it be under seal, and delivered as a deed (t). The appointment of an umpire by the arbitrators under the Lands Clauses Consolidation Act, the Railways Clauses &c., Clauses Consolidation Act, and the Companies Clauses Consolidation Act, must, we have seen, be in writing under their hands (u). When the arbitrators disagreed and the umpire was to be appointed by the Commissioners of Railways, the appointment should have been signed by two of the Commissioners and sealed with their seal. There is great doubt whether an appointment in their name signed by a secretary of the Commissioners only was valid (x). Appointment by Commissioners of Railways. Commencement of authority, no time limited. Arbitration IV. Commencement and duration of the umpire's authority.]Where no time is limited for the making of the award, the umpire's authority can commence from no other period than the disagreement of the arbitrators (y). By the Arbitration Act, 1889, in submissions out of court by consent, the following provision generally applies: "If the arbitrators have allowed their time or their extended time (P) Reynolds v. Gray, 1 Salk. 367. (8) Lord v. Lord, 26 L. J. Q. B. 34, S. C. 5 E. & B. 404; Hopper, In re, 8 B. & S. 100, S. C. 36 L. J. Q. B. 97; L. R. 2 Q. B. 367. (t) Routledge v. Thornton, 4 Taunt. 703; Dod v. Herbert, (u) See ante, division 2 of this section, p. 214. (x) The Wilts, Somerset, and Weymouth Rail. Co. v. Fooks, 3 Ex. 728. (y) Com. Dig. Arb. F.; Winteringham v. Robertson, 37 L. J. Ex. 301. PART II. CH. IV. S. 4. umpire's to expire without making an award, or have delivered to any If there be a time limited for the award, the umpire's au- When time thority commences absolutely from that limit, even though the limited for arbitrators have never met to agree or disagree on the subject, award. defeasance. for the not making an award shows they have not agreed (a). When the umpire has a period allowed him for making Commencing his umpirage later than the time given to the arbitrators, his subject to authority may commence before the expiration of the time limited to the arbitrators, subject, however, to defeasance. For if the arbitrators disagree, and refuse to make an award, the umpire may proceed at once with the reference, and need not wait until the time allotted to the arbitrators has expired, and his decision will be binding, even if made before the time for the award has elapsed. It will, however, become a nullity in case the arbitrators afterwards assume their authority, agree, and make an award within the time allotted them (b). umpire giving same limit for arbitrators and umpire. If the submission name the umpire as well as the arbitrators, Submission and appoint the same day as the limit for both the award and naming umpirage, some of the older cases seem to show that the appointment of the umpire is absolutely void, and that he cannot make any umpirage, even if the arbitrators make no award. Other cases seem to qualify this opinion, by holding that the umpirage might be good, when the arbitrators had disagreed, and declared they would not intermeddle any more, or where one of the arbitrators had died, and so rendered it impossible for them to agree in an award (c). The courts, in the first class of cases, seem to have apprehended a difficulty in allowing the umpire to have in any (z) 52 & 53 Vict. c. 49, s. 2, and Sched. I. (d). (a) Lumley v. Hutton, Rolle Ab. Arb. p. 1. (b) Smailes v. Wright, 3 M. & S. 559; Sprigens v. Nash, 5 M. & S. 193; Dare v. Chase, 2 Show. 164; Cowel v. Waller, 2 Barnard. 154. See also Yeadon Local Board v. Yeadon Waterworks Co., (c) Coppin v. Hurnard, 2 Saund. PART II. CH. IV. S. 4. When arbitrators to choose umpire, and same limit for arbitrators and umpire. What a disagreement of the arbitrators. case a concurrent jurisdiction with the arbitrators, on the ground of the confusion that would be created if there were two awards (d), and therefore held the appointment of the umpire void when the same day was limited for the award and umpirage. That difficulty will be removed, however, if the courts, as they probably would, should hold in cases where only one day is limited, as they hold in cases where the umpire has a further day, that the umpirage made after disagreement of the arbitrators shall stand good, unless the arbitrators subsequently agree in making an award within the time, in which case their decision is that which is to conclude the parties. Where there is only one limit, and the arbitrators are to choose the umpire if they cannot agree, it is held in many old cases, that by choosing an umpire they renounce their power and cannot again resume it, so that if after the appointment of the umpire they agree and make an award, that award is null, and will not invalidate the umpirage previously made (e). We have already seen that where a further day is given to the umpire, the arbitrators do not renounce their authority by appointing an umpire, but are recommended to select one in the first instance; it is probable, therefore, that the same uniform principle would now be extended to cases where one day only is limited for both the award and umpirage, and that the umpire's decision would be held good, but subject to becoming nugatory in case the arbitrators after his appointment made an award within the limited time (ƒ). When the umpire's power is to commence on the disagreement of the arbitrators, to justify the umpire in interfering there must be such a difference between the arbitrators as renders their agreement in an award hopeless (g). Whether there has been such an essential difference, is a question of fact, to be decided sometimes by a jury, sometimes by the court, according to the nature of the proceedings. The word "disagreement," however, must in general be (d) Smailes v. Wright, 3 M. & S. 559; see last note. (e) Twisleton v. Travers, 2 Keb. 15, S. C. 1 Lev. 174; Dunavan v. Mascall, 1 Lev. 302; Fyall v. Varier, Rolle Ab. Abr. p. 3; Danes v. Monsay, Vin. Ab. p. 18, p. 97. (f) See Coppin v. Hurnard, 2 Saund. 133 (b), note. (g) Cudliff v. Walters, 2 Moo. & Rob. 232. construed to mean non-agreement (). Where the arbitrators intimate to the umpire that there is no probability of their making any award (i), or when one of them, after some meetings, declines to proceed further in the case, or where one of the arbitrators insists on further evidence being produced, which the other refuses to allow (k), these states of things may amount to such a disagreement, or non-agreement, as to call the umpire's powers into existence, and, where no time has been limited, finally to determine the arbitrators' authority (1). And for this effect it is not necessary that the arbitrators should have heard the whole of the evidence, and then differ. If a sufficient disagreement take place while the evidence is only part heard, the umpire's authority will commence (m). The circumstance of no award having been made by the arbitrators, and of the award having in fact been made by the umpire, will, it seems probable, in the absence of anything to show that the arbitrators are still considering the case, be taken by the court as primâ facie information that the arbitrators did not agree (n). PART II. CH. IV. S. 4. enlarge time before dis agreement. The umpire's authority may for some purposes commence Umpire embefore any disagreement of the arbitrators. Where the sub- powered to mission gives both the arbitrators and the umpire power of enlarging the time, and the arbitrators enlarge their time beyond the original limit fixed for the umpire making his umpirage, the umpire may, within his original period, enlarge his time further, although there has been no disagreement between the arbitrators before he makes his enlargement; and it seems necessary that he should take this step, in order to preserve his authority alive (6). If the arbitrators within the time make an award respecting Umpire no part of the matters submitted to them, the umpire cannot, authority. unless specially authorized, decide on the rest, because he is trators award (h) Doddington v. Bailward, 7 Dowl. 640; Middleton v. Chambers, Vin. Ab. Arb. p. 17. (i) Doddington v. Bailward, 7 Dowl. 640. (k) Cudliff v. Walters, 2 Moo. & Rob. 232. (1) Tunno v. Bird, In re, 5 B. & Ad. 488. (m) Tunno v. Bird, In re, 5 B. & Ad. 488. (n) Doddington v. Bailward, 7 Dowl. 640; Com. Dig. Arb. F. (0) Doddington v. Bailward, 7 Dowl. 640. when arbi on part. PART II. CH. IV. S. 4. Umpire's enlargement not enure for arbitrators. Duration of umpire's authority. in general only empowered to act in case the arbitrators make no award at all before a certain day, and then he is to decide on all matters (p). Where the umpire is to decide on those matters only on which the arbitrators disagree, his enlargement of time does not enure to give the arbitrators further time to make their award on the matters not referred by them to the umpire (9). As the arbitrators must make their award within the time limited to them, so when the submission fixes a limit, the umpire must make his umpirage within the time limited to Enlargement him (). But the court or a judge could enlarge the time by court. under the Statute of Will. IV. (s), and can now under the Arbitration Act, 1889 (t). Umpire to award in a month. Duration under the Lands Clauses By the schedule to the Arbitration Act, 1889, the terms of which are deemed to be included in submissions, "the umpire shall make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired, or on or before any later day to which the umpire by any writing signed by him may from time to time enlarge the time for making his award” (u). In the case of references under the provisions of the Lands Clauses Consolidation Act, 1845, the enactments respecting Consolidation the commencement and duration of the umpire's authority are the following: Act. Section 23 provides, "If when the matter shall have been referred to arbitration, the arbitrators or their umpire shall for three months have failed to make their or his award, or if no final award shall be made, the question of such compensation shall be settled by the verdict of a jury as hereinafter provided." Section 27 enacts, 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, or which (p) Rolle Ab. Arb. pp. 7, 8; (r) Trew v. Burton, 1 C. & M. (8) Bowen v. Williams, 3 Ex. 93; Johnson v. Collie, 24 L. J. Q. B. 64; and see ante, enlarging the time. (t) 52 & 53 Vict. c. 49, s. 9. |