Death 11 & 12 Vict. c. 63, s. 124., Arbitrators defined. Ib. s. 2. Appointment of umpire by the parties. Ib. s. 125. quarter sessions. Ib. rities as were vested in the arbitrator originally appointed. And in case a single arbitrator die, or become incapable to 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 as shall have been duly appointed by him for the purpose, the matters referred to him may be again referred to arbitration under the provisions of the Act, as if no former reference had been made. Where the word "arbitrators" is used in the Act it is to include a single arbitrator; and the word, either in the singular or the plural includes an umpire. In case there be more than one arbitrator, before they enter upon the reference they are to appoint by writing under their hands an umpire, and if the person appointed to be umpire die, or become incapable to act, they are forthwith to appoint Appointment another person in his stead. If they neglect or refuse to of umpire by appoint an umpire for seven days after request made to them, the Court of General or Quarter Sessions, on being applied to, are to do so. The award of the umpire is to be binding, final, and conclusive upon all persons. 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 appointed by them for that purpose, the matters referred are to be determined by the umpire; and the provisions of the Act with respect to the time for making an award, and with respect to extending the same in the case of a single arbitrator, shall apply to an umpirage. Umpirage. The appointment of an umpire by two arbitrators under 11 & 12 Vict. c. 63, is valid, though made after the twenty-one days limited by sect. 125 of the Act for the arbitrators to make their award had elapsed without having enlarged the time, provided the appointment be within the time limited by sect. 126, infra, for making the umpirage. This was so held on the authority of Bradshaw's Case, (1) decided on similar enactments in the Lands Clauses Consolidation Act, 1845. (2) Where a dispute had arisen between an owner and a Local Board of Health as to compensation in respect to damage done to property by works executed by the Board, and arbitrators were appointed, but who did not appoint an umpire within seven days as directed by sect. 125 of 11 & 12 Vict. c. 63, the owner applied under that section to the quarter sessions to appoint one. That Court having named an umpire whose consent had not been obtained, no minute of the order was made by the clerk of the peace and no formal order was drawn up; but the owner treating his first application as a nullity, applied (1) 12 Q. B. 562; 17 L. J. Q. B. 362. (2) Holdsworth v. Barsham, 2 B. & S. 480; 8 Jur. (N. S.) 672; 31 L. J. Q. B. 145. Affirmed by the Court of Exchequer Chamber. again at the next quarter sessions, and having in the mean- Umpirage. time ascertained that the person named at the former sessions consented to act, obtained a regular order for his appointment as umpire. Such umpire not having made his award within the time specified by sect. 125, or extended the time for making it, but afterwards having made it in favour of the owner, both parties having attended his appointment, on an action on the award it was held that there was no appointment of an umpire at the first sessions; but that the appointment at the second sessions was valid; and that though the Board had a valid objection on account of the umpire not having extended the time within the twenty-one days, they had, by proceeding with the reference, waived that objection, notwithstanding they protested at the time. (1) Judgment of the Court of Common Pleas in this case was however reversed in the Court of Exchequer Chamber, that Court holding that the Local Board were not, by their conduct before the umpire, in going into the case and examining witnesses, and addressing the umpire, estopped from afterwards disputing the umpire's jurisdiction. (2) The time for making an award under the Act is not to be Time within extended beyond the period of three months from the date of which award the submission or from the day on which the umpire shall have must be made. been appointed (as the case may be). Where an arbitrator published his award after the expiration of the three months, without enlarging the time, the award was held to be bad. It was also held that the Court had no power afterwards to enlarge the time. (3) II & 12 Vict. c. 63, s. 126. Ib. s. 127. Any arbitrator or umpire may require the production of such Production of documents in the possession or power of either party as may documents. be necessary for determining the matters referred, and may examine the parties or their witnesses on oath; and the costs Costs of of and consequent upon the reference are in the discretion of reference. the arbitrator or umpire as the case may be. As regards the costs of a reference under 11 & 12 Vict. c. 63, s. 69, see, however, Bayley v. Wilkinson, ante, p. 173. Ib. When an arbitrator has executed an instrument as and for Mistake in his award he is functus officio, and cannot of his own authority award. remedy any mistake that he may have made in executing it. (4) An award for costs generally, without ascertaining the amount, is good under 11 & 12 Vict. c. 63, SS. 125, 126, 127; and the party to receive, after delivering his bill for the amount, may maintain an action to recover them. The party to pay may (1) Ringland v. Lowndes, 33 L. J. C. P. 25; 10 Jur. (N. S.) 48; 15 C. B. (N. S.) 189. (2) Ringland v. Lowndes, 10 Jur. (N. s.) 850; 33 L. J. C. P. 337; 17 C. B. (N. S.) 514. (3) Tranmere v. Kellett, 11 L. T. (N. S.) 457. S. C. Kellett v. Tranmere, 34 L. J. Q. B. 37. (4) Mordue v. Palmer, 40 L. J. Ch. 8; L. R. Ch. App. 22, 23; L. T. (N. S.) 752. Rule of Court. have the costs taxed; but taxation is not a condition precedent to the other party's right to bring an action to recover them. So held by the Court of Exchequer Chamber, reversing the judgment of the Court of Queen's Bench in Holdsworth v. Barsham. (1) Any submission to arbitration may be made a rule of any of 11 & 12 Vict. the superior Courts on the application of any party thereto. c. 63, s. 127. Ib. s. 2. Declaration. Ib. s. 128. Conduct of arbitrators. Matters which may be referred. 11 & 12 Vict. Ib. Ib. The term "superior Courts" includes her Majesty's superior Courts of Record at Westminster, and the Court of Common Pleas of the county palatine of Lancaster, and the Court of Pleas of the county of Durham. Before any arbitrator or umpire can enter upon any reference, he must make and subscribe the following declaration before a justice of the peace : “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, and Local Government Act, "1858." This declaration is to be annexed to the award when made; and any arbitrator or umpire wilfully acting contrary to it is guilty of a misdemeanour. The arbitrators must be perfectly unbiassed in their judg ment as to the matter to be referred to them; i. e., they must have no direct personal interest in the matter, however remote; for it is sufficient for the interference of a Court of Equity if any circumstances be shown calculated to produce a bias in the judgment of an arbitrator. Therefore where the guarantee by an architect, who was also the arbitrator, that the expense of a certain building should not exceed a certain sum, was unknown to the plaintiffs, it was held that they were not bound by the contract to submit in all things to his determination. (2) The decision of the arbitrator both as to the law and the fact is binding. (3) The matters which are authorized or directed by the Public Health Act, 1848, to be settled by arbitration are: 1. Disputes between Local Boards and owners as to the putting in order private streets. 2. Terms upon which water companies ought to furnish a proper and sufficient supply of water for all reasonable purposes for which it is required, for 3. Whether the water which any company is able and willing to supply is proper and sufficient for the purposes which it is required. 4. Whether the purposes for which it is required are reasonable. (1) Holdsworth v. Wilson, ante, p. 462. (2) Kemp v. Rose, 32 L. T. 51. 81. (3) Campbell v. Twemlow, 1 Price Wilson v. King and Wade v. Malpas, 1 Cr. & Mees. 689-90. 5. Disputes between the universities of Oxford and Cam- Matters which bridge and the Commissioners of those places respec- may be referred. tively, as to the proportion and manner in which they 11 & 12 Vict. shall contribute towards any expenses under the Act. c. 63, s. 105. 6. Disputes as to damage sustained by reason of the exercise Ib. s. 144. of any of the powers of the Act, if the amount claimed exceed £20. The award when made cannot be vacated, quashed, or set The award. aside for want of form, neither can it be removed by certiorari Ib. s. 137. or any other writ or process into any of the superior Courts. Recovery of damages, etc. II & 12 Vict. c. 63, s. 129. Recovery of 32 & 33 Vict. Recovery of CHAPTER VII. LEGAL PROCEEDINGS. In all cases in which the amount of any damages, costs, or expenses is by the Public Health Act directed to be ascertained or recovered in a summary manner, they may be ascertained by and recovered before two justices, together with any further costs incurred, as the justices may think proper; and if the sums adjudged be not paid, they may be levied by distress. Any penalty imposed by or under the authority of the Act, or any bye-law of the Local Board of Health, the recovery whereof is not otherwise expressly provided for, may, upon proof on oath of the offence charged, be recovered before two justices, together with costs; and if the sums adjudged be not paid, they may also be levied by distress. The justices, or either of them, may order that any offender so convicted be kept in custody until return can be made to the warrant of distress, unless he enters into a recognizance for his appearance; and if before issuing the warrant, or upon the return, it appear to the satisfaction of the 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 for any term not exceeding three months, unless the penalty and costs be sooner paid. Penalties under the Sanitary Act, 1866, and expenses directed to be recovered in a summary manner, may be recovered before two justices in manner directed by the 11 & 12 Vict. c. 43, or by any Act amending the same. By the Act for the abolition of imprisonment for debt, "default in payment of any sum recoverable summarily before a justice or justices of the peace" is excepted from its provisions. The expenses, etc., are to be recovered as damages by proceedings before the justices, therefore an action will not lie for their recovery. See Blackburn v. Parkinson. (1) In Stevens v. Evans, (2) Dennison, J., laid it down as a rule that where a new statute prescribes a particular remedy, no other remedy can be taken; and the case of St. Pancras Vestry v. Batterbury (3) shows that where a pecuniary obligation is created by a statute, and a remedy expressly given for enforcing it, that remedy must be adopted; so, two circumstances must concur to authorize the issuing of a mandamus,-a specific legal right, and the (1) 28 L. J. M. C. 7; 5 Jur. (N. S.) 572; 32 L. T. 91. (2) 2 Burr. 1157. (3) 2 C. B. (N. s.) 477; 26 L. J. C. P. 243; 3 Jur. (N. S.) 1106. |