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arbitrator.

It is assumed that "arbitrators" includes a single CHAP. VIII. arbitrator where there is only one, and that the powers Case of single by the Act given to "arbitrators" are exercisable by a sole arbitrator. Under the Interpretation Act "words in the singular shall include the plural, and words in the plural shall include the singular." (52 & 53 Vict.

c. 63, s. 1.)

The three months only begin to run from the time the arbitrator enters on the reference, or is called on to act. He "enters on the reference," not when he accepts the office, or takes upon himself the functions of arbitrator by giving notice of his intention to proceed, but when he begins the real business of the reference by holding a meeting of the parties, or proceeds under a peremptory appointment ex parte. (Baker v. Stephens, L. R., 2 Q. B. 523; 36 L. J., Q. B. 236.) And the same construction applies when the matter is referred back and the arbitrator has to enter on the reference de novo. (Ib.) "Called on to act" means called on to do an act as arbitrator, such as receiving a notice from one of the parties to appoint an umpire. (Baring-Gould v. Sharpington, de. Syndicate [1899] 2 Ch. 80.)

From what

time the three months begin to run.

When time fixed award must be

If the submission mention a time within which the award must be made, that is a condition that must be strictly complied with unless further time be given. within it. (See Chap. XII., s. 1.)

A submission usually contains, either expressly or by non-exclusion of the statutory power above cited, power for the arbitrator to enlarge the time for making his award. The enlargement must be made during the time previously fixed for making the award.

Where a cause was referred to two arbitrators with power to them to appoint a third, and power for any two of them to enlarge the time, and the two first named enlarged the time before appointing the third, the court held that this was an invalid enlargement, as all three

Enlargement arbitrator.

of time by

By two arbitrators.

of three

CHAP. VIII. should have been in a position to exercise judgment on the point. (Reade v. Dutton, 2 M. & W. 69.)

By umpire.

Enlargement after death of a party.

Mode of enlargement.

According to

the terms of the submission.

Clause (e) in the first schedule to the Arbitration Act, 1889, provides that "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."

Previously to this Act, it had been decided, that, if power be given to arbitrators to enlarge the time, and in case of their disagreement they are to choose an umpire, who shall have power to make an award "at the time and in the manner aforesaid," this impliedly gives the umpire power to enlarge the time by his single authority (Re Vinicombe and Morgan, 10 L. J., Q. B. 128; 5 Jur. 72); and that the umpire may enlarge the time though the period for entering on his umpirage has not arrived. (Re Dodington and Bailward, 5 Bing. N. C. 591.)

If the submission provide that the death of either party shall not be a revocation, and contain the usual power for enlarging the time, such power may be exercised after the death of either party. (Tyler v. Jones, 3 B. & C. 144; Clarke v. Crofts, 4 Bing. 143.)

The statutory power of enlargement given to arbitrators is to be executed by "writing signed by them." So also in the case of the umpire. The enlargement may be made "from time to time," as often, and for such a period as may be thought fit. But if the submission give a power of enlargement for a period not exceeding three months from the date of the submission the arbitrator cannot enlarge beyond. (Denton v. Strong, L. R., 9 Q. B. 117; 43 L. J., Q. B. 41.)

In cases to which the statutory power does not apply, the mode of enlargement by the arbitrator depends

(Reid v.

entirely upon the terms of the submission.
Fryatt, 1 M. & S. 1; Davis v. Vass, 15 East, 97.) A
power to enlarge in some particular way specified in the
submission must be strictly pursued. It is generally by
endorsement on the agreement or order of reference.
(Leggett v. Finlay, 6 Bing. 255; Davison v. Gauntlet,
1 Dow., N. S. 198.) Where, by an order of reference,
a power was given to the arbitrator to enlarge the time
for making his award until such ulterior day as he
should appoint in writing under his hand, to be
endorsed on that order, and the court or a judge thereof
should order, it was held necessary to obtain a judge's
order ratifying the enlargement. (Mason v. Wallis,

10 B. & C. 107.)

CHAP. VIII.

If the arbitrators or umpire fail to exercise the power Enlargement for enlarging the time, further time may be granted by consent of the parties. by consent of the parties. This consent should be in writing. The parties may, however, dispense with a formal consent, and if they proceed as if a consent had been given they will be estopped from saying it was not given. (Tyerman v. Smith, 6 E. & B. 719; 25 L. J., Q. B. 359.) And the consent of the parties, whether expressed in words, or by attendance, or by any other act recognizing the continuance of the arbitrator's authority, waives the want of a written or formal enlargement, and amounts in effect to a new parol submission. (Ib.; Benwell v. Hinxman, 3 Dow. 500; Leggett v. Finlay, 6 Bing. 255; Palmer v. Metropolitan Rail. Co., 31 L. J., Q. B. 259; Bennett v. Watson, 29 L. J., Ex. 357; 5 H. & N. 831.) But attending under protest will not be a waiver, though the party contests the case before the arbitrator (Ringland v. Lowndes, 17 C. B., N. S. 514; 33 L. J., C. P. 337); nor will a waiver of previous irregularities in enlarging the time imply a consent to make future similar enlargements binding. (Mason v. Wallis, 10 B. & C. 107.)

CHAP. VIII.

in case of statutory references.

In the case of statutory references there is usually a Enlargement limited power of enlargement given to the arbitrators. Thus, the twenty-one days originally allowed for an award may be enlarged to three months under the L. C. C. Act, 1845 (8 & 9 Vict. c. 18, ss. 23, 31), and to two months under the Public Health Act, 1875 (38 & 39 Vict. c. 55, s. 180, sub-ss. 8, 9; Re Yeadon Local Board, 41 Ch. D. 52; 58 L. J., Ch. 563.) The time may be further enlarged by the consent of the parties. (Palmer v. Metropolitan Rail. Co., supra.)

When a stamp necessary.

Effect of an informal

A written enlargement of time by arbitrators or umpire does not require a stamp, but such an enlargement by the parties does. (Ante, p. 49.)

Where there has been a parol enlargement by the enlargement. parties, the award, afterwards made, will not be invalid on account of the want of a formal enlargment, but, treating it as made under a parol submission, the court will not enforce it on a summons, but only by action on the award. (Reade v. Dutton, 2 M. & W. 69.)

Arbitrator's

An arbitrator has no power to limit the time for power to limit making an award unless the submission empower him time depends on submission to do so; thus, where the submission limited no time for making the award, but the arbitrators, by a memorandum. indorsed on the submission and signed by them but not by the parties, agreed that the award should be made within a certain time, it was held that they had no power to do this, and that an award made after the time was valid. (Re Morphett, 14 L. J., Q. B. 259; ante, p. 88.)

Power of court to

enlarge.

SECT. 2.-Enlargement of Time by the Court.

Before the statute 3 & 4 Will. 4, c. 42, s. 39, the court had no power to enlarge the time for making an award by an arbitrator or umpire. This statute, which conferred a power of enlargement upon the court, was

52 & 53 Vict.

c. 49, s. 9.

supplemented by section 15 of the C. L. P. Act, 1854, CHAP. VIII. both of which have been repealed and replaced by section 9 of the Arbitration Act, 1889. This section enacts that "the time for making an award may from time to time be enlarged by order of the court or a judge, whether the time for making the award has expired or not."

By R. S. C. Order LXIV., r. 14a," where the time for Enlargement making an award is enlarged the enlargement shall be for a month. deemed to be for one month unless a different time is

specified in the order."

references

court has

The power of the court to enlarge the time applies in Over what the case of a reference under the L. C. C. Act, 1845, (Re Dare Valley Rail Co., L. R., 4 Ch. 554; 38 L. J., jurisdiction. Ch. 417), and of all statutory references, not expressly excluded (ante, p. 78), but the court has refused to exercise its jurisdiction where there had been great delay. (Ib.) The court can enlarge the time for making an award under the Public Health Act, 1875, beyond the period limited by the Act. (Knowles v. Bolton Corporation [1900] 2 Q. B. 253, overruling Re Mackenzie and Ascot Gas Co., 17 Q. B. D. 114; 55 L. J., Q. B. 309; Re Yeadon Local Board, 41 Ch. D. 52; 58 L. J., Ch. 563.)

how made.

The application for an enlargement is properly made Application, by summons in chambers. The order will not be made ex parte.

The exercise of the power of enlargement is discretionary with the court. (Edwards v. Davies, 23 L. J., Q. B. 278.) The application must be supported by an affidavit showing "good cause" for the order. Although the "good cause" should be stated in the order for enlargement when drawn up, omitting to state any cause is a mere irregularity which will not invalidate the order. (Re Burdon, 27 L. J., C. P. 250.)

Evidence in support.

The ordinary case in which the order is made is In what cases where the arbitrator has no power to enlarge, or, having

order made.

A.

H

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