conclusive upon all persons, whatsoever (m).

and to all intents and

purposes

of one of

trators

CXXIV. And be it enacted, that if before the determi- Death, &c. nation of any matter so referred any arbitrator die, or several arbirefuse or become incapable to act, the party by whom such arbitrator was appointed may appoint in writing another person in his stead;

And if he fail so to do for the space of seven days after notice in writing (n) from the other party in that behalf, the remaining arbitrator may proceed ex parte;

And every arbitrator so appointed shall have the same powers and authorities as were vested in the arbitrator in whose stead the appointment is made;

arbitrator.

And in case a single arbitrator die, or become incapable to of single act, before the making of his award, or fail to make his award within twenty-one days after his appointment, or within such extended time, if any, as shall have been duly appointed by him (o) for that purpose, the matters referred to him shall be again referred to arbitration under the provisions of this Act, as if no former reference had been made.

(m) These words are somewhat more emphatic than those used in the Lands Clauses Consolidated Act, 8 & 9 Vict. c. 18, s. 25, but the effect appears to be the same. In the case of In re Stroud, 8 C B. 502, the Court of Common Pleas inquired into the merits of an award when facts were stated for their opinion by the arbitrator, though it was objected that the award was final. They confirmed the award, but left the question open as to whether they could have set it aside. In the course of the argument, Maule, J., observed: "It is conceded that the court may interfere where the arbitrator has exceeded or fallen short of the authority conferred upon him." See also In re Elias Underwood, 11 C. B. (N. s.) 442. It will be seen by sect. 137, post, that the award is not to be vacated, quashed, or set aside for want of form, nor to be removable by certiorari or any other writ or process, but awards made by arbitrators are questioned in the courts of law without a writ of certiorari, or other process. The award itself may be produced by the party possessing it, verified by affidavit, and if it be in court it can be there examined.

(n) See note on the last section.

(0) There is no power expressly given to the arbitrator to extend the time for his making the award, but such a power is to be inferred from this section and sect. 126.

Appointment of umpire by

CXXV. And be it enacted, that in case there be more the parties; than one arbitrator the arbitrators shall, before they enter upon the reference, appoint by writing under their hands an umpire, and if the person appointed to be umpire die, or *Sic in stat. become incapable to act, the arbitrator* shall forthwith appoint another person in his stead (a);

by quarter sessions.

And in case the arbitrators neglect or refuse to appoint an umpire for seven days after being requested so to do by any party to the arbitration, the court of general or quarter sessions (b) shall, on the application of any such party, appoint an umpire;

And the award of the umpire shall be binding, final, and conclusive upon all persons and to all intents and purposes whatsoever (c);

And in case the arbitrators fail to make their award within twenty-one days after the day on which the last of them was appointed, or within such extended time, if any, as shall have been duly appointed by them for that purpose, the matters referred shall be determined by the umpire (d);

And the provisions of this Act with respect to the time

(a) In Holdsworth v. Barsham, 2 B. & S. 480; 31 L. J. Q. B. 145, the arbitrators appointed an umpire before entering on the reference, but after the twenty-one days, within which they ought by sect. 126 to make their award, and it was held that the appointment of the umpire was not too late. In Holdsworth v. Wilson, S. C. in error, 4 B. & S. 1, 34 L. J. Q. B. 289, it was held that the power to appoint an umpire continued until the expiration of three months from their own appointment.

(b) These sessions need not be the sessions next after the default. Ringland v. Lowndes, 15 C. B. (N. s.) 173.

(c) See note on sect. 123.

(d) But the umpire must make his award within twenty-one days of his appointment unless he enlarge the time in accordance with sect. 126. Kellett v. Local Board of Tranmere, 34 L. J. Q. B. 87; 11 L. T. (N. s.) 457.

The court cannot supply any defect herein by acting upon the powers conferred by the Common Law Procedure Act, 1854, s. 15. Local Board of Tranmere v. Killett. lb.

No such default nor any other material default in the arbitration is waived or avoided by the party who attends and takes active steps in the arbitration, though under express protest. Ringland. v. Lowndes, 17 C. B. (N. 8.) 514.

for making an award, and with respect to extending [to]* * Sic in stat. the same in the case of a single arbitrator, shall apply to

an umpirage.

which award

must be

CXXVI. Provided always, and be it enacted (e), that Time within the time for making an award under this Act shall not be extended beyond the period of three months from the date made. of the submission or from the day on which the umpire shall have been appointed (as the case may be).

arbitrator to

duction of

CXXVII. And be it enacted, that any arbitrator, arbi- Power to trators, or umpire, appointed by virtue of this Act, may require prorequire the production of such documents in the possession documents. or power of either party as they or he may think necessary for determining the matters referred (f), and may examine the parties or their witnesses on oath;

of reference.

And the costs of and consequent upon the reference shall As to costs be in the discretion of the arbitrator or arbitrators, or of the umpire (in case the matters referred are determined by an umpire) under the power herein-before contained in that behalf (g);

may be made

And any submission to arbitration under the provisions of Submission this Act may be made a rule of any of the superior courts (h) a rule of on the application of any party thereto.

(e) This clause, by implication, enables the arbitrator to extend the time, but no power to do so is given to him expressly.

Where the parties expressly or by reasonable intendment consent to the award being made after this time, the courts will not assist one of them to set the award aside on this ground. Caledonian Railway Company v. Lockhart, 6 Jur. (N. s.) 1311. Palmer v. Metropolitan Railway Company, 31 L. J. Q. B. 259.

(f) According to the Caledonian Railway Company v. Lockhart, 6 Jar. (N. s.) 1311, the arbitrator may employ an expert, and may, if he deems it necessary, consult men of science. He may also award damages, both contingent and prospective.

(g) The Court of Queen's Bench decided that no action could be brought for the amount of costs awarded by the arbitrator until they had been taxed. But this decision was reversed by the Court of Exchequer Chamber upon error. Holdsworth v. Barsham, 2 B. & S. 480; 4 B. & S. 1; 32 L. J. Q. B. 289; 34 L. J. Q. B. 289.

(h) See in sect. 2 the interpretation of this word.

court.

Declaration

to be made by arbitrator and umpire.

Recovery of

CXXVIII. And be it enacted, that before any arbitrator or umpire shall enter upon any such reference as aforesaid, he shall make and subscribe the following declaration before a justice of the peace; (that is to say,)

"I A. B., do solemnly and sincerely declare, that I will faithfully and honestly, and to the best of my skill and ability, hear and determine the matters referred to me under the Public Health Act, 1848.

"A. B."

And such declaration shall be annexed to the award when made;

And if any arbitrator or umpire shall wilfully act contrary to such declaration he shall be guilty of a misdemeanor.

LEGAL PROCEEDINGS.

CXXIX. And be it enacted (e), that in all cases in which damages, &c. the amount of any damages, costs, and expenses is by this Act directed to be ascertained or recovered in a summary manner the same may be ascertained by and recovered before two justices (ƒ), together with such costs of the proceedings as the justices may think proper (g);

And if the sums adjudged be not paid by the party against whom the adjudication is made the same may be levied by distress and sale of his goods and chattels, by

(e) Sect. 39, ante, provides for the proceedings to be taken against the collectors of rates by the local board, and sect. 103 provides for the recovery of rates from ratepayers in arrear. It must be oberved that though 8 & 9 Vict. c. 18, s. 136, now incorporated herewith, provides for the recovery of forfeitures, penalties, and costs, yet the 21 & 22 Vict. c. 98, s. 7, renders the penalties recoverable as under this Act.

(f) See sect. 2, ante. As regards the ascertaining of expenses it does not appear that any clause refers this to the justices; but sect. 144, post, enables justices to ascertain the amount of compensation for damage under 201.

(9) The proceedings must be commenced within six months from the time when the matter of the complaint arose, 11 & 12 Vict. c. 43, s. 11. Edleston, appellant, Francis, respondent, 7 C. B. (N. s.) 568. But see 21 & 22 Vict. c. 98, s. 62, post, as to the commencement of the time in respect of certain summary applications for the recovery of expenses.

warrant under the hands and seals of the justices making the adjudication;

And any penalty imposed by or under the authority of this Act, or any byelaw made under this Act, the recovery whereof is not otherwise expressly provided for, may, upon proof on oath of the offence in respect of which the penalty is alleged to have been incurred, be recovered before two justices (h), together with such costs of the proceedings as they may think proper;

And if the sums adjudged be not paid by the party against whom the adjudication is made the same may be levied by distress and sale of his goods and chattels (i), by warrant under the hands and seals of the justices making the adjudication;

And such justices or either of them may order that any offender convicted as last aforesaid be detained and kept in safe custody until return can be conveniently made to the last-mentioned warrant, unless he give sufficient security, by way of recognizance or otherwise, for his appearance on the day appointed by the return, such day not being more than eight days from the time of taking the security;

And if before issuing such warrant, or upon the return thereof, it appear to the satisfaction of the last-mentioned justices that no sufficient distress can be had within their jurisdiction, they may, by warrant under their hands and seals, cause the offender to be committed to gaol (k), there to remain, without bail, for any term not exceeding three months, unless such penalty and costs be sooner paid (1).

(h) See sect. 2, ante. The justices must be such as act within the petty sessional division in which the matter arises. Reg. v. Broadhurst, 32 L. J. M. C. 168. Where the justices refused to determine the complaint without the attendance of the clerk of the local board, the Court of Queen's Bench refused to interfere with their discretion. Ex parte Local Board of Leamington, 5 L. T. (N. s.) 637. With regard to the limitation of time for such proceeding, see sect. 133, post, and the previous note.

(i) See sect. 131.

(k) The Debtors Act, 32 & 33 Vict. c. 62, s. 4, does not affect this enactment and prevent the imprisonment of the defaulter. Reg. v. Pratt, L. R. 5 Q. B. 176; 39 L. J. M. C. 73.

(1) As the statute has provided this summary remedy for the recovery