differences arising in the course of their business does not depend on the authority of any act of parliament (m). PART I. CH. II. S. 3. IV. Crown.]-If the Queen or the Duke of Cornwall The Crown. consent to become parties to an arbitration, the Arbitration Act, 1889, will apply to them, but they cannot under it be compelled to refer, and it does not affect "the law as to costs payable by the crown" (»). (m) Great Western Ry. Co. v. Waterford Ry. Co., 17 Ch. D. 493. (n) 52 & 53 Vict. c. 49, s. 23. See Appendix of Statutes. 40 PART I. Contents of the third chapter. CHAPTER III. HOW MATTERS MAY BE REFERRED TO ARBITRATION. THE different modes in which matters may be referred to an arbitrator, and the effect of each species of submission, are considered in this chapter. Section one contains some remarks applicable to submissions generally; section two treats of submissions by private agreement at common law and their disadvantages; section three, of submissions which have the effect of or may be made rules of court under the statutes; section four discusses the effects, in law and equity, of the common provision in deeds and agreements, that if any disputes shall arise they shall be decided by arbitration; and section five, in like manner, enlarges on the effect of a negative agreement, not to proceed by action or suit respecting such differences; submissions made in a cause at common law, and under the Arbitration Act, 1889, their effects on the court and the parties, form the subject of section six; section seven comprises an enumeration of some other forms of submission of a judicial character, or made under the authority of acts of parliament; while section eight concludes the chapter with an account of the proceedings on the submission against a party who prevents an award being made. PART I. SECTION I. OF SUBMISSIONS IN GENERAL. 1. General qualities of a submission.]-Matters may be CH. III. S. 1. referred to arbitration in any manner that expresses the agreement of the parties to be bound by the decision of the person named and chosen to determine the matters in con PART I. CH. III. S. 1. troversy. This person is styled the arbitrator, and the agreement conferring on the arbitrator his binding authority is termed the submission (a). The agreement to refer is not strictly a submission until the arbitrators are named (b). But under the Arbitration Act, 1889, s. 27, a submission is defined as "a written agreement to submit present or future differences to arbitration whether an arbitrator is named therein or not." This statute does not apply to Scotland or Ireland (sect. 28), and by Scotch law an agreement to refer future disputes to a Scotch law of person not named but designated only as the holder for the time being of a particular office, as, for instance, that of engineer to the Forth Bridge Railway Co., is not binding, and this, though the same engineer held office at the time when disputes arose as at the date of the agreement to refer (c). submission. form of sub No formal submission, either verbal or written, is neces- No particular sary (d). It may be contained in a clause quite collateral to mission necesthe main purpose of an agreement. Thus a bond conditioned sary. "for A.'s due discharge of the duties of clerk," "to be ascertained by the inspection of A.'s accounts by J. S., and the amount so ascertained to be liquidated damages," is a submission to the award of J. S. respecting the accounts (e). So also a cognovit in the words, "I hereby confess the action, and that the plaintiffs have sustained damages to the amount of one shilling besides their costs, to be taxed by the prothonotary as he shall think the plaintiffs entitled," is an appointment of the prothonotary to arbitrate respecting the costs. His decision is binding, and will not be reviewed by the court (f). themselves. II. What is a reference to arbitration ?]-The parties must Intention of manifestly intend to be concluded by the decision of the parties to bind person called in, in order to clothe him with the authority of an arbitrator. Hence, where it was the practice for one of the proprietors of a stage coach to adjust the accounts from time to time, apportioning the profits and charges, and the other proprietors were in the habit of receiving or paying according (a) Bac. Ab. Arb. B. & D. Smith v. Nelson, 6 Times L. R. 434, S. C. 59 L. J. Q. B. 533. (c) Tancred v. Steel Co. of Scotland, 15 App. Ca. 125. (d) Bac. Ab. Arb. B. Jebb v. M'Kiernan, Moody & M. 340. (f) Elvin v. Drummond, 1 M. & P. 88, S. C. 4 Bing. 415. PART I. CH. III. S. 1. Preventing differences arising. Architect to his apportionment, it was held that he was to be considered rather the common servant of them all than an arbitrator; for the acquiescence of the others in the correctness of his past accounts did not of itself manifest any intention on their part to deprive themselves of the power of questioning the correctness of future adjustments (g). It is not in every case where two parties intend to be concluded by the decision of a third, that that third person is an arbitrator. Thus, a valuer between an incoming and outgoing tenant of a farm (h), or a person appointed to determine the price to be paid for brewery premises (i), or the goodwill of a business (/), or for land (7), or for timber (m), or for dilapidations (»), or the amount to be paid to contractors for work done (0), or the compensation to be given for an error of description of property (p), is often not an arbitrator in the proper sense, unless there have been differences between the parties on the point previous to their submitting it to his decision. A decision which precludes differences from arising, instead of settling them after they have arisen, is for many purposes frequently not an award (2). Even where the reference was to two persons described as arbitators in the agreement who were directed by it to appoint an umpire in case of dispute before proceeding, and the question was as to the amount to be paid to a nurseryman for yielding up his lease, and for his plants, and the arbitrators themselves were nurserymen: the Court refused to enforce the decision of the umpire as an award, saying it did not appear that any judicial enquiry was intended, intimating that the inference might have been different if barristers instead of experts had been selected (»). A building agreement authorising proceedings in case of (m) Wilson v. Green, 18 Q. B. D. 7; Dawdy, In re, 15 Q. B. D. 426, S. C. 54 L. J. Q. B. 574. (n) Jenkins v. Betham, 24 L. J. C. P. 94. (0) Scott v. The Liverpool Corporation, 28 L. J. Ch. 230. (p) Boss v. Helsham, 4 H. & C. 642, S. C. L. R. 2 Ex. 72. (q) See Wilson v. Green, 35 W. R. 43, S. C. 18 Q. B. D. 7. (r) Hammond v. Waterton, 62 L. T. SOS. certain defaults by the builder, to be ascertained and decided on by the architect, without appeal, is not a submission to arbitration (s). PART I. CH. III. S. 1. building agreement. But when the words of the submission are large enough to Judicial embrace the case of a judicial enquiry, and the object of the enquiry. parties is to have their respective cases heard and decided upon the evidence produced before the arbitrator, it is not less an arbitration because the ultimate object is to ascertain the value of property or the amount of compensation (†). horse-race. state a case. Stewards of a horse-race appointed to settle any disputes Steward of respecting it are not arbitrators in the strict sense (u). A person appointed to state a case for the opinion of the Person to court under the statute 17 & 18 Vict. c. 125, s. 5, the Common Law Procedure Act, 1854, is an arbitrator; for he is empowered to decide on facts, though not to determine everything in controversey between the parties (x). The Local Government Board, in deciding disputes referred Local Governto them by statute, act as judges, not arbitrators, by consent (y). ment Board. by all. Like other contracts when in writing, the submission must Submission be duly executed; and where the accession of all parties to to be executed the reference is the consideration to each to execute the submission, it is not valid as to some who have executed it until all have done so, even although it purposes to refer all matters in difference between them or any two of them (≈). A testator cannot make a valid appointment by will, that Appointment if any differences should arise respecting his will, these shall of arbitrator be determined by a specified arbitrator, whose decision is to be final (a). by will. It ofter happens that matters in difference are agreed to be Appointment referred to two arbitrators, one to be appointed by each party; trators. in such case it is important to call attention to the fact that the appointment will not be considered complete until it has been notified to the other side; therefore, if it be one of the terms of the agreement that a party is to appoint an arbitrator (8) Wadsworth v. Smith, L. R. 6 Q. B. 332. (t) Hopper, In re, 8 B. & S. 100, S. C. 36 L. J. Q. B. 97; L. R. 2 Q. B. 367. (u) Ellis v. Hopper, 28 L. J. Ex. 1; Parr v. Winteringham, 28 L. J. Q. B. 123. (x) Graham v. Glover, 25 L. J. 209. (a) Philips v. Bury, Skin. 469. of two arbi |