CHAP. VIII.

Order refused.

Court may enlarge though the submission forbid.

And after the
award is
made.

a power to enlarge, has inadvertently allowed the time to pass without exercising it. (Parbery v. Newnham, 7 M. & W. 378; Leslie v. Richardson, 6 C. B. 378; 17 L. J., C. P. 324.)

The order is not made as of course, and has been refused where no proceedings have been taken for some time under the reference (Lambert v. Hutchinson, 10 L. J., C. P. 213; 2 M. & G. 858; Andrews v. Eaton, 7 Ex. 221; 21 L. J., Ex. 110; Doe v. Cannell, 22 L. J., Q. B. 321); and where the arbitrator, having power to enlarge, has intentionally let the time pass without doing so (Andrews v. Eaton, supra, per Parke, B.; and see Doe v. Powell, 7 Dow. 539); and where one of the parties has died (Edwards v. Davies, 23 L. J., Q. B. 278; Bowen v. Williams, 6 D. & L. 235) or become bankrupt. (Gaffney v. Killen, 12 Ir. C. L. R., App. 25.)

Though the submission name a time beyond which no enlargement may be made, the court may enlarge beyond that time. Thus, where the time was limited to a day named, or such further day not exceeding two calendar months from the date of the submission as the arbitrator might appoint, it was held that the court had power to enlarge the time beyond the two months. (Ward v. Secretary of State for War, 32 L. J., Q. B. 53; 4 B. & S. 442; Denton v. Strong, 43 L. J., Q. B. 41; L. R., 9 Q. B. 117); and so where the submission provided that the period to which the time should be enlarged should not exceed the 1st day of July, 1847. (Parkes v. Smith, 15 Q. B. 297; 19 L. J., Q. B. 405.)

If an arbitrator make his award after the time limited for making it, and no enlargement has been made, the court may enlarge the time (Browne v. Collyer, 2 L. M. & P. 470; 20 L. J., Q. B. 426; Ward v. Secretary of State for War, supra; May v. Harcourt, 13 Q. B. D. 688); and the effect of the order is by relation back to render valid the award and any steps taken between the

lapse of the first period and the extended time given by CHAP. VIII. the order. (Lord v. Lee, 37 L. J., Q. B. 121; L. R., 3 Q. B. 404.) Though in some instances the award has been remitted back to the arbitrator (Re Warner and Powell, L. R., 3 Eq. 261; 15 W. R. 303), this does not seem necessary.

CHAP. IX.

Common law right to

revoke.

Revocation

contempt.

CHAPTER IX.

REVOCATION.

REVOCATIONS are either by express acts of the parties or by operation of law, as by death.

There is a common law right in either party to a submission at his caprice to countermand the arbitrator's authority, at any time before the award is made. (Vynior's Case, 8 Rep. 81b; Re Rouse and Meier, L. R., 6 C. P. 212; 40 L. J., C. P. 145, per Willes, J.) The arbitrator is a mandatory, and at any time before the mandate is completed it can be revoked and withdrawn, unless the power of revocation is taken away by Act of Parliament. (Fraser v. Ehrensperger, 53 L. J., Q. B. 73; 12 Q. B. D. 310.)

The common law right to revoke the arbitrator's authority exists notwithstanding the submission declares. that it shall be irrevocable.

But even at common law, after the submission (whether punishable as it were by judge's order, order of nisi prius, or agreement containing a consent clause) was made a rule of court, either party revoking the submission would be guilty of, and liable to an attachment for, a contempt. (Milne v. Gratrix, 7 East, 608; Haggett v. Welsh, 1 Sim. 134; Green v. Pole, 6 Bing. 443; Re Rouse and Meier, 40 L. J., C. P. 145, per Willes, J.) And where the judge's order contained not only the submission of the parties, but directed that either party should under certain circumstances pay to the other "such costs as the court should think reasonable and just," it was held that such an order might be made a rule of court after a revocation, in order to enable the court to dispose

of the question of costs. (Aston v. George, 2 B. & A. CHAP. IX. 395.)

refer not

It is necessary to distinguish between the revocation General of an agreement to refer, and the revocation of the agreement to appointment of a particular person as arbitrator. Al- revocable. though, at common law, a submission to a particular named arbitrator could be revoked, a general agreement to refer to arbitration could not, any more than any other contract, be revoked. (Moffat v. Cornelius, 39 L. T. 102; Piercy v. Young, 14 Ch. D. 200; 42 L. T. 710; Fraser v. Ehrensperger, 12 Q. B. D. 310; 53 L. J., Q. B. 73; Re Smith and Nelson, 25 Q. B. D. 545; 59 L. J., Q. B. 533.) If the agreement was to submit a specific difference to a named person, and the authority of that person was revoked, the agreement was at an end. (Randell v. Thompson, 1 Q. B. D. 748; 45 L. J., Q. B. 713; Deutsche, &c. Gesellschaft v. Briscoe, 20 Q. B. D. 177; 57 L. J., Q. B. 4.) But if there was a general agreement to refer differences, and afterwards. an appointment of an arbitrator to deal with particular differences which had arisen, the appointment of the arbitrator could be revoked by either party, but the agreement to refer continued to exist (Fraser v. Ehrensperger, supra); and the court could appoint an arbitrator and stay proceedings commenced contrary to the agreement to refer. (Moffat v. Cornelius, supra.)

ment.

There is no power of revocation where the adjudication No revocation of appraiseof the arbitrator is a mere appraisement. So that where by a deed between P., the plaintiffs, and the defendant, P. covenanted with the plaintiffs that he would commence and forthwith build and finish a gas-holder tank, and that the work should be completed on a day mentioned, or, in default, P. should forfeit to the plaintiffs 50l. and 20s. for every day the completion should be delayed beyond that time; and the defendant, as P.'s surety, covenanted with the plaintiffs that P. should

Power of revocation restricted by

perform the covenants on his part, and in default that the defendant would pay to the plaintiffs such sum as E. should adjudge proper; in an action for not finishing the work, and for not paying the amount which E. had adjudged proper, it was held that E.'s power could not be revoked by any of the parties to the deed. (Northampton Gas Light Co. v. Parnell, 15 C. B. 630; 24 L. J., C. P. 60; Mills v. Bayley, 32 L. J., Ex. 179; 2 H. & C. 36.)

The common law power of revocation having been much abused, the statute 3 & 4 Will. 4, c. 42, s. 39, was 3 & 4 Will. 4, passed.

c. 42.

52 & 53 Vict. c. 49, s. 1.

The effect of this section was to take away from the parties the power to revoke the authority of an arbitrator or umpire whom they had appointed in every case in which the submission contained, either in express terms, or by incorporation (Re Mitchell and Governor of Ceylon, 21 Q. B. D. 408; 57 L. J., Q. B. 524), an agreement that it should be made a rule of court. (Re Smith and Nelson, 25 Q. B. D. 545.)

This enactment has been repealed, and in its place it is now provided by section 1 of the Arbitration Act, 1889, that "A submission, unless a contrary intention is expressed therein, shall be irrevocable, except by leave of a court or a judge." The section seems to be limited to references by consent out of court, and it applies only to submissions which are in writing.

The language of the new Act is not so exact as that of the old. Its meaning, however, is that when an arbitrator is appointed his authority cannot be revoked by either of the parties except by leave. (Re Smith and Nelson, supra.)

The submission is only irrevocable in the sense in which that phrase was used before the Act, and is to have the same effect as if before the Act it had been made a rule of court. (Re Smith and Nelson, supra, per Esher, M.R.)