8 & 9 VICT. c. 18. upon the matters referred to them, nominate and appoint, by writing under their hands, an umpire (a) to decide on any such matters on which they shall differ (b), or which shall be referred to him under the provisions of this or the special act, and if such umpire shall die, or become incapable to act, they shall forthwith after such death or incapacity appoint another umpire in his place, and the decision of every such umpire on the matters so referred to him shall be final.

Arbitrator may consult umpire.

Umpire acting before proper time.

Umpire need not have special knowledge.

Board of Trade

point an umpire

arbitrators, in

case of railway

companies.

(a) It seems that the arbitrators may, without impropriety, privately consult the umpire before the time when the duties of the latter arise: (Skerratt v. North Staffordshire Railway Co., 5 R. C. 177; 2 Ph. 475 ; 17 L J. (Ch.) 161.)

(b) An umpire may sometimes, and under certain circumstances, join with the arbitrator before the time for his acting has arrived: (In re Elliot, 2 De G. & Sm. 17.)

The fact that the umpire is a person of individual skill and experience in the matter in hand is immaterial: (In re Hawley and North Staffordshire Railway Co., 2 De G. & Sm. 33.)

XXVIII. If in either of the cases aforesaid the said empowered to ap- arbitrators shall refuse, or shall, for seven days after request on neglect of the of either party to such arbitration, neglect to appoint an umpire, the Board of Trade (a), in any case in which a railway company shall be one party to the arbitration, and two justices in any other case, shall, on the application of either party to such arbitration, appoint an umpire, and the decision of such umpire on the matters on which the arbitrators shall differ, or which shall be referred to him under this or the special act, shall be final (b).

Appointment by

(a) See the Regulation of Railways Act, 1868, (31 & 32 Vict. c. 119, post,) ss. 30-33, as to cases in which the Board of Trade are required to make any award, or decide any difference in cases in which a company is one of the parties.

Where a company and the claimant appointed two arbitrators Board of Trade. who made no award, nor appointed any umpire under s. 27, within twenty-one days after the last appointment, after which time the Board of Trade appointed an umpire, who made his award within three months of his appointment, it was held that the appointment was valid, and the award made in time, within s. 23.

Appointment not under seal.

Where under this section a railway company appointed an umpire, not under seal, by a document not signed by the person describing himself as secretary, the umpire not exercising in his award his power given him by this act respecting costs, the Court discharged a rule obtained to set his award aside, thinking the objections too doubtful to be determined on motion: (Wilts and Weymouth Railway Co. v. Fooks, 3 Exch. 728;) in which case the question was raised, but undecided, whether under 5 & 6 Vict. c. 55, s. 19, the appointment

Death of Arbitrator-Delay-Refusal to act. 171

of an umpire must be taken as conclusively proved by the produc- 8 & 9 VICT. C. 18. tion of such a document.

As to estoppel by conduct on part of claimant, from objection to Estoppel. want of authority in the umpire, see Palmer v. Metropolitan Rail

way Co., 31 L. J. (Q. B.) 259; 10 W. R. 714.

By the 14 & 15 Vict. c. 105, the powers transferred by the 9 & Powers of Board 10 Vict. c. 105, to the Railway Commissioners, were retransferred to of Trade. the Board of Trade.

(b) As to the control of the Courts over awards, see Re Stroud, Finality of 8 C. B. 502.

award.

of single arbitrator the matter to

XXIX. If, when a single arbitrator shall have been In case of death appointed, such arbitrator shall die or become incapable to act before he shall have made his award, the matters begin de novo. referred to him shall be determined by arbitration under the provisions of this or the special act in the same manner as if such arbitrator had not been appointed.

tor refuse to act

the other to pro

ceed ex parte.

XXX. If, where more than one arbitrator shall have If either arbitrabeen appointed, either of the arbitrators refuse or for seven days neglect to act the other arbitrator may proceed ex parte, and the decision of such other arbitrator shall be as effectual as if he had been the single arbitrator appointed by both parties (a).

(a) See Willoughby v. Willoughby, 9 Q. B. 923.

award within

twenty-one days

to the umpire.

XXXI. If, where more than one arbitrator shall have If arbitrators fail been appointed, and where neither of them shall refuse or to make their neglect to act as aforesaid, such arbitrators shall fail to make their award within twenty-one days after the day on which the last of such arbitrators shall have been appointed, or within such extended time (if any) as shall have been appointed for that purpose by both such arbitrators under their hands, the matters referred to them shall be determined by the umpire to be appointed as aforesaid.

tors to call for

XXXII. The said arbitrators or their umpire may call Power of arbitrafor the production of any documents in the possession or books, &c. power of either party which they or he may think necessary for determining the question in dispute, and may examine the parties or their witnesses on oath, and administer the oaths necessary for that purpose (a).

(a) In a case where, after one sitting, one of the arbitrators Duties of umpire ab-ented himself, and the other arbitrator proceeded in the matter as to hearing together with the umpire, but ultimately the award was made by

evidence.

8 & 9 VICT. c. 18. the umpire alone, without hearing the evidence on the part of the company, (the solicitor to the company, who protested against the proceedings, not having adduced any evidence,) it was held that the award was invalid, because the umpire had, from the circumstances, no right to presume that the company had no evidence to adduce; and that he should have taken up the case from the point at which it had been left by the two arbitrators, when acting in concert: (In re Hawley and the North Staffordshire Railway Co., 2 De G. & Sm. 33.)

Arbitrator or

umpire to make a declaration.

Time of making declaration.

"Justices."

Costs of arbitra

borne.

XXXIII. Before (a) any arbitrator or umpire shall enter into the consideration of any matters referred to him he shall in the presence of a justice make and subscribe the following declaration; 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 provisions of the act [naming the special ' act.]

Made and subscribed in the presence of

A. B.

And such declaration shall be annexed to the award when made; and if any arbitrator or umpire having made such declaration shall wilfully act contrary thereto he shall be guilty of a misdemeanour.

(a) See as to the time of making this declaration, Re Bradshaw's Arbitration, 12 Q. B. 562; 5 R. C. 527; 17 L. J. (Q. B.) 362. The limitation given by s. 3 of this act to the word "justices" does not apply to this section: (Davies v. South Staffordshire Railway Co., 2 L. M. & P. 599.)

XXXIV. All the costs of any such arbitration, and intion, how to be cident thereto, to be settled by the arbitrators, shall be borne by the promoters of the undertaking, unless the arbitrators shall award the same or a less sum than shall have been offered by the promoters of the undertaking, in which case each party shall bear his own costs incident to the arbitration, and the costs of the arbitrators shall be borne by the parties in equal proportions (a).

Section not apply to costs of agreement to

refer instead of going to a jury.

Right to costs to be included in award.

(a) The provisions of the act with respect to costs do not apply to the case of an agreement to submit to arbitration, instead of taking the verdict of a jury: (Per Coleridge, J., Ex parte Reynal, 5 R. C. 60.)

It is the duty of the umpire under this section to ascertain whether the claimant's right to costs arises, and to include them in his award, if it exists: (London and North-Western Railway Co. v. Quick, 5 D. & L. 685; 5 R. C. 520,) which case also decided that he

Costs of Arbitration-Delivery of Award.

173

must settle the costs of the claimant by the same instrument as the 8 & 9 VICT. C. 18. costs of the arbitrators, and both by the award; and that he has no power to grant a subsequent certificate for them. This latter part of the judgment of Erle, C. J., seems to be overruled by the later case of Gould v. Staffordshire Potteries Co., 5 Exch. 214; 6 R. C. 568, which decided that the settlement of costs need not be within three months after the time of the reference; and where it was held that the word "arbitrators" in this section means the persons who make the award, either as arbitrator or umpire.

the claimants the costs of the arbi

Under this clause an arbitrator is not obliged to condemn the Arbitrator not company in the costs of the arbitration, where he disallows the bound to allow claim, and the company have made no offer in respect of it; nor if there be some claims disallowed, joined with other distinct claims tration if claim allowed, are they to bear the costs of the arbitration and those inci- fail. dent to it: (In re Mills v. Midland Railway Co., 16 Jur. 640.)

30 & 31 Vict. c.

By the Railway Companies Act, 1867, s. 37, the costs of and inci- Settlement of dental to the arbitration and award shall, if either party so requires, costs by Master. be settled, as between the parties, by one of the Masters of the 127, s. 37. Court of Queen's Bench. An application for the investment of a sum awarded as compen- Costs on petition sation for materials taken from the applicant's land was held to preclude him from asking for any costs, other than those included in and allowed by the award: (Ex parte Harrison, 13 Jur. 381.)

for payment out of sum awarded.

A tenant for life who demanded an arbitration, the result of Costs of tenant which was an award giving a less sum than that contained in the for life. company's offer to purchase, was held entitled to his costs of the arbitration: (In re Aubrey, 17 Jur. 874.)

After the dismissal of a bill by a company against an individual Sutton Harbour who had claimed compensation under s. 68, the defendant having Co. v. Hitchins. leave to apply for costs if he could establish his right to compensation, an arbitration was resorted to, but neither party took up the award. The Master of the Rolls held that, as to the question of costs, the defendant was premature, and that the Court had no jurisdiction to compel the taking up of an award, the remedy being by mandamus: (Sutton Harbour Co. v. Hitchens, 16 Bea. 381.)

livered to the

the

XXXV. The arbitrators shall deliver their award in Award to be dewriting to the promoters of the undertaking, and the said promoters of t promoters shall retain the same (b), and shall forthwith, undertaking (a). on demand, at their own expense, furnish a copy (c) thereof to the other party to the arbitration, and shall at all times, on demand, produce the said award, and allow the same to be inspected or examined by such party or any person appointed by him for that purpose.

fees.

(a) There is nothing in the act to affect the arbitrator's common Arbitrator's lien law right of lien on the award for his fees, and he is not bound to on award for his deliver it without payment of them; (b) but, on the contrary, in Mandamus to a case of the refusal of the company to take it up, a writ of mandamus company to take will issue to them to take it up and pay the fees: (In re Bailey v. South Devon Railway Co., 13 L. T. 233;) (c) and a mandamus will And to furnish a also lie to compel them to furnish a copy of the award forthwith to claimant.

up award.

copy of award to

8 & 9 VICT. c. 18. the person claiming compensation: (Reg. v. South Devon Railway Co., 20 L. J. (Q. B.) 145; 15 Q. B. 1043.)

Irregular notice under s. 68.

No jurisdiction

in Chancery to take up award.

compel parties to

Statement by

arbitrator of rea

In showing cause against a rule nisi for a mandamus, the defendants will not be allowed to show that there were defects in the notice required under ss. 23, 68: (Reg. v. Sutton Harbour Commissioners, 2 W. R. 10.)

The Court of Chancery has no jurisdiction to compel either party to take up an award; the proper mode of proceeding is by mandamus: (Sutton Harbour Co. v. Hitchens, 16 Bea. 381. See note on 8. 34.)

Where an arbitrator stated his reasons for his award on a separate sons for award. paper, the Court refused to look at the statements as a ground for impeaching the award, as it could not be shown that he delivered them as part of it: (Reg. v. South-Western Railway Co., 20 L. T. 110.) But see In re Dare Valley Railway Co., 3 W. N. 216, and the notes to s. 68, post.

Finality of award.

Submission may

be made a rule of Court.

Order nisi to set

aside award.

Form of order.
Submission may
be made a rule in
Chancery.

The award and

No objection to the award can be taken on a rule to set it aside on the ground that it was contrary to the evidence: (Re Bradshaw, 17 L. J. (Q. B.) 362; 5 R. C. 527 ; 12 Q. B. 562.)

XXXVI. The submission to any such arbitration may be made a rule of any of the superior courts (a), on the application of either of the parties.

The Court of Chancery will upon an ex parte application make an order nisi to set aside an award: (Re Elliot, 2 De G. & Sim. 17.) The form of such an order is set out, Ibid. p. 23.

And the submission may be made a rule of the Court of Chancery: (Ibid.)

An appointment of arbitration having been made under s. 25, the Court of Chancery at first refused to order the production of it in order to enable the registrar to draw up an order making the submission a rule of Court. But upon a second motion the order was granted, as the landowners had filed an affidavit stating that the appointment was duly made: (In re Hawley and the North Staffordshire Railway Co., 2 De G. & S. 33.)

If the submission to arbitration be made a rule of Court, it appointment of is no objection, on motion to set aside the award, that neither it nor the appointment of the umpire was made a rule of Court: (In re Bradshaw, 12 Q. B. 562; 5 R. C. 527. See Midland Railway Co. v. Heming, 4 D. & L. 788.)

umpire need not be made a rule of Court.

Award not void

form.

XXXVII. No award made with respect to any questhrough error in tion referred to arbitration under the provisions of this or the special act shall be set aside for irregularity or error in matter of form (a).

Assessment of

to value.

(a) Where an arbitrator awarded contingent and prospective damage to ten- damages in assessing the value of land acquired by a railway, and in ants in award as the compensation included such damage as was likely to be caused to the landowner's tenants, the award was held by the House of Lords not to be thereby invalidated (Caledonian Railway Co. v. Lockhart, 3 Macq. 808; 6 Jur. N. S. 1311.)