CHAP. IX.

Clause preventing death being a revocation.

Marriage of

cited 2 Chitt. Arch. 1323, 18th ed.) And where the interest is joint and the cause of action survives, an award made after the death of one and against the survivors might perhaps be good (Edmunds v. Cox, 2 Chitt. 435); but it would be bad if made not only against the survivors, but also directing the executors of the deceased to give a release. (Ib.; and see Bristow v. Binns, 3 D. & R. 184.)

It is permissible and usual to insert a clause in a submission or order of reference, where the subject-matter is not a personal tort (Bowker v. Erans, 15 Q. B. D. 565; 54 L. J., Q. B. 421), to provide that the death of either party shall not revoke the arbitrator's authority, but that the award, in case of death, shall be delivered to their personal representatives (Cooper v. Johnson, 2 B. & A. 394; Clarke v. Crofts, 4 Bing. 143; 12 Moore, 349); and in such a case the award will bind the personal representatives (Dowse v. Coxe, 10 Moore, 273; 3 Bing. 20; Re Hare, supra; M'Dougal v. Robertson, 4 Bing. 435), to the extent of the assets of the deceased in their possession. (Lewin v. Holbrook, 2 Dow., N. S. 991; Prior v. Hembrow, 8 M. & W. 873.) And when the submission provides that the death of either of the parties shall not operate as a revocation, the death of one party before the other has an opportunity to examine him as a witness, does not affect the provision. (Smith v. Fielder, 10 Bing. 306.)

Formerly the marriage of a female party to an arbifemale party. tration after submission, and before award, revoked the arbitrator's authority, as she ceased to have an independent existence, and the arbitrator could not bind her without her husband's concurrence. (Charnley v. Winstanley, 5 East, 266; M'Can v. O'Ferrall, 8 C. & F. 30.)

This is, however, no longer the case, and a woman after marriage will remain bound by her submissions

to arbitration as by her other ante-nuptial contracts. (45 & 46 Vict. c. 75, s. 13.)

CHAP. IX.

not a revoca

Though formerly doubted (Marsh v. Wood, 9 B. & C. Bankruptcy 659), it seems now established that the bankruptcy of tion. either party to a reference will not of itself operate as a revocation of the submission (Taylor v. Shuttleworth, 8 Dow. 281; Taylor v. Marling, 2 M. & G. 55; Hemsworth v. Brian, 14 L. J., C. P. 134; 1 C. B. 131; Ex parte Edwards, 3 Mor. 79); and this whether the submission is by order of court or not. (Andrews v. Palmer, 4 B. & A. 250; Snook v. Hellyer, 2 Chitt. 43.) The trustees of a bankrupt cannot, however, be compelled to become parties to the reference, nor is the submission binding upon them unless they choose to adopt it. (Pennell v. Walker, 26 L. J., C. P. 9; 18 C. B. 651; Sturgis v. Curzon, 7 Ex. 17; 21 L. J., Ex. 38.) And, as we have seen, the bankruptcy of the one party will be good ground for an application to the court to revoke. (Ante, p. 103.)

to an action.

Even in cases in which a party may be able to revoke Revoking the authority of the arbitrator, he cannot, as we have party liable seen (ante, p. 101), revoke the instrument of submission, but will remain liable to an action on such instrument. The remedy for revocation of a submission when not under seal is by action for breach of agreement (Brown v. Tanner, M'Cl. & Y. 464; Warburton v. Storr, 4 B. & C. 103; 6 D. & R. 213); when the submission is by deed the revoking party is liable to an action on the covenant. (Milne v. Gratrix, 7 East, 607; King v. Joseph, 5 Taunt. 452.)

On a reference under the L. C. C. Act, 1845, after the appointment by each party of an arbitrator, neither shall have power to revoke such appointment without the consent of the other, nor shall the death of either party operate as a revocation. (8 & 9 Vict. c. 18, s. 25.) Similar provisions are made with respect to references

No power to revoke under

the L. C. C.

Act, 1845, &c.

CHAP. IX.

under the Railways Clauses Act, 1845 (s. 126); the Companies Clauses Act, 1845 (s. 128); the Railway Companies Arbitration Act, 1859 (22 & 23 Vict. c. 59, s. 11); and the Public Health Act, 1875 (38 & 39 Vict. c. 55, s. 180, sub-s. 3.) The Agricultural Holdings Act, 1900, although depriving the parties, except by mutual consent, of the power to revoke the appointment of an arbitrator, does not prevent a revocation by death of either party. (63 & 64 Vict. c. 50, Schedule 2, Part I. 3, Part II. 8.)

CHAPTER X.

THE ARBITRATORS AND UMPIRE.

SECT. 1.-The Arbitrators.

CHAP. X.

Who may be

UNLESS the reference is under some statute which points out the class of persons from which the arbitrator is to be selected, any person may be appointed arbitrator; an arbitrator. and if the parties agree to choose the arbitrator by lot they may do so. (Re Shaw and Sims, 17 L. T. 160.) Some of the older authorities except, as incompetent to be arbitrators, infants and lunatics, but if the selection. is by mutual consent it is not now probable that disability of any kind in the person chosen, known at the time of appointment, would be ground for impeaching the award, for the parties choose their own tribunal and agree to abide by its decision. (Ashton v. Poynter, 3 Dow. 201; Huntig v. Ralling, 8 Dow. 879, ante, p. 10.) Persons unimpeachable on the score of interest or capacity are usually, and should always be, chosen.

A reference may be to a fluctuating body (Rathven v. Fluctuating Elgin, L. R., 2 Sc. App. 535), or to the committee of a body. trade association, who appoint certain of their number

to act. (Re Keighley and Bryan Durant [1893] 1 Q. B. 405; 62 L. J., Q. B. 105.)

interested.

It is no ground for setting aside an award that the Persons arbitrator is a party to the submission, if the other party assented to his appointment; or that he is interested in the matter submitted, provided that, at the time of submission, the objecting party was aware of his interest.

CHAP. X.

Secret interest or bias.

Indebtedness.

Bias in arbitrators who

(Matthew v. Ollerton, 4 Mod. 226; Harcourt v. Ramsbottom, 1 J. & W. 511; Johnston v. Cheape, 5 Dow., H. L. 247.)

An arbitrator is, however, in a quasi-judicial position, and in ordinary cases it is a just ground of objection to an arbitrator that he is not indifferent between the parties. (Ranger v. Great Western Rail. Co., 5 H. L. C. 89; Beddow v. Beddow, 47 L. J., Ch. 588; 9 Ch. D. 89.) Where it turns out that, unknown to one or both of the parties who submit to be bound by his decision, there are some circumstances in the situation of the arbitrator which tend to produce a bias in his mind, he is an improper person for an arbitrator. (Kemp v. Rose, 1 Giff. 265; Dimes v. Grand Junction Canal, 3 H. L. C. 759.) Therefore, if the arbitrator has any bad feeling towards one of the parties (Parker v. Burroughs, Colles, Parl. Ca. 257), or has any secret interest in the subjectmatter of the reference (Earl v. Stocker, 2 Vern. 251; Beddow v. Beddow, supra), or in the success of either of the parties, he is unfit for the position.

Mere indebtedness to one of the parties will not disqualify a person for being an arbitrator (Morgan v. Morgan, 1 Dow. 611; Malmesbury Rail. Co. v. Budd, 2 Ch. D. 113; 45 L. J., Ch. 271); and where an arbitrator to whom certain disputed debts between A. and B. had been referred was one of several trustees who had lent part of the trust moneys to A., unknown to B., who, on discovering the fact that A. was insolvent, applied to rescind the submission, it was held that the interest was too remote to warrant the court in rescinding. (Drew v. Drew, 2 Macq. 1; 25 L. T. 282.) But where the indebtedness arises directly out of the subjectmatter of reference it creates an unfitness. (Beddow v. Beddow, 9 Ch. D. 89.)

Even when the reference is to two arbitrators, one to be chosen by each party, indifferent persons must be