submission under this section, namely, the case of parties having consented to a rule of court, judges order, or order of Nisi Prius, in an action. In such case the statute provides for a revocation with the leave of the court, whereas the Code does not. See the notes to Sec. 525.

In writing. It was held in Jeyasankira Devi v. Nagannada Devi, 1 H. C. R., 106, that this section "does not properly apply when the reference is agreed to by all the parties present in open court at and during the course of the final hearing. No written authority therefore need be filed." No reason, however, was given for this opinion, and with all due deference to the learned judges who decided the point, Scotland, C. J., and Bittleston, J., I submit that the decision appears to be unwarranted. The section directs that the application' shall be in writing, and may be made at any time before judgment,' and 'any time' must include the time of the final hearing.

The application for a reference to arbitration must be made in court by an instrument in writing by the parties in person, or their pleader specially authorized in that behalf. Bhrigoo Roy v. Bhagurth Upadhya, W. R., 1864, Act X R., 41. And see Degumber Chatterjee v. Mussamut Ram Prea Debia, Marsh., 517.

Nomination of arbi

trator.

507. The arbitrator shall be nominated by the parties in such manner as may be agreed upon between them.

If the parties cannot agree with respect to such nomination, or if the person whom they nominate refuses to accept the arbitration and the parties desire that the nomination shall be made by the Court, the Court shall nominate the arbitrator.

When Court to nominate arbitrator.

It is very important that the appointment of an arbitrator by each party should refer to the same subject-matter. If A. appoint his arbitrator to determine a dispute respecting the construction of a lease and the damages which A. has sustained, and B. appoint his arbitrator to decide on the construction of the lease, and not as to damages, an award of damages will be invalid. Davies v. Price, 6 L. T. N. S., 713.

And the parties desire.-All the parties. The court cannot appoint unless all the parties desire it, upon failure to manage matters themselves.

Where both parties could not agree in nominating an arbitrator, and the judge appointed one, and one of the parties, six weeks after the appointment, objected to the appointee, but could not show on appeal that he did not request the judge to appoint some one, the appointment was held good and binding upon both parties. Suroop Ram Deb v. Gobind Ram Deb, 7 W. R., 13.

508. The Court shall, by order, refer to the arbitrator the matter in difference which he is required to determine, and Order of reference. shall fix such time as it thinks reasonable for the delivery of the award, and specify such time in the order.

When once a matter is referred to arbitration, the Court shall not deal with it in the same suit, except as hereinafter provided.

By order. This should be drawn carefully so as to show the matter in controversy, the submission, the parties to the submission, the arbitrator or arbitrators, the umpire, if there be one, and the time for the delivery of the award, and also should provide for a difference of opinion, in explicit language.

The order under this section having been duly made, the court cannot subsequently proceed to hear the suit on its merits, or to deal with the suit, unless reference to arbitration proves abortive, in which case the suit may be brought back on the file of the court without any reference to the arbitration proceedings. Haradhun Dutt v. Radhanath Shaha, 10 W. R., 398.

The matter in difference.-Arbitrators should give separate awards in a case referred to them by the judge, and on other matters referred to them by the parties, instead of mixing them all up, and giving a general award. Roghoo Nundun Lall Sahoo v. Bunwaree Lall Sahoo, 3 W. R., Mis., 27.

Arbitrators ought only to take such evidence as is required by the terms of the agreement, referring the question in dispute to arbitration. Kristnakanta Poramanick v. Bidya Sundaree Dassee, 2 B. L. R., App., 25.

Shall fix such time-By Sec. 15 of the Common Law Procedure Act, 1854, three months is made the proper time within which to make the award in ordinary cases.

Where no time is fixed the award itself falls to the ground. Gunga Gobind Naek v. Kally Prosonno Naek and others, 10 W. R.,

206.

When reference is to two or more, order to provide for difference of opinion.

509. If the reference be to two or more arbitrators, provision shall be made in the order for a difference of opinion among the arbitrators,

(a) by the appointment of an umpire, or

(b) by declaring that the decision shall be with the majority if the major part of the arbitrators agree, or

(c) by empowering the arbitrators to appoint an umpire, or

(d) otherwise, as may be agreed between the parties; or, if they cannot agree, as the Court determines.

If an umpire is appointed, the Court shall fix such time as it thinks reasonable for the delivery of his award in case he is required to act.

Two or more arbitrators.-In practice it is found to be convenient to appoint but one. Where more are appointed, there is always a tendency on the part of the arbitrators to think themselves the representatives of their respective nominors rather than judges, and in consequence to act partially. And where there is a third arbitrator, he is apt to imagine that he is an umpire, and that his active interference is not to commence until the others have differed finally.

Care should be taken in framing the submission to avoid ambiguity in respect of the duties to be performed by each arbitrator. Where a cause was referred to two arbitrators and such third person as they should nominate as their umpire, and the parties agreed to perform the award to be made "by the two and their umpire," the court refused to enforce performance of an award made by the two alone, holding it to be doubtful whether the award was not intended to be the joint act of the three. Heatherington v. Robinson, 7 Dowl., 192.

Where several arbitrators are appointed, and there is no clause providing for an award made by less than all being valid, each of them must act personally in performance of the duties of his office as if he were sole arbitrator; for, as the office is joint, if one refuse

or omit to act, the others can make no valid award. And arbitrators may not delegate their authority to each other: much less to a stranger. And as they must all act, so they must act altogether: and jointly execute their award. See Russell Arb., P. II, c. 4, s. 3.

.

Umpire. This word denotes a third person called in to decide a dispute or to tell whether two things are equal or not equal, being a form of the old English impier, nompier, old Fr. nompair, Lat. non, not, and par, equal.

The functions of the umpire' differ, and must be distinguished, from the functions of the arbitrator.' And under the Code the authority of the umpire can commence only in one of the two cases mentioned in Sec. 515: and until such a case arises he can do no valid act about the reference.

It appears from Russell Ar. P. II, c. 4, s. 4, that the umpire, when called upon to act, is in general invested with the same power as the arbitrators, and bound by the same rules, and has to perform the same duties. He must pursue the same regular course with respect to the conduct of the case, as if he were commencing a new case as arbitrator. He must examine such witnesses as the parties choose to produce, and as to such points as they choose to raise, although the same witnesses have been examined to the same points before the arbitrators. He may not take the evidence, or any part of it, from the notes of the arbitrators, unless there be a special provision in the submission, or a clear agreement between the parties permitting such a course. In order to save the expense and delay of two investigations of evidence, it is often arranged that the umpire shall sit with the arbitrators and hear the evidence once for all. If without any special arrangement the umpire sit with the arbitrators and hear the evidence, he should take care not to interfere with the arbitrators when they discuss the case together and try to come to an agreement.

The judgment of the umpire is in no way fettered by that of the arbitrators on points on which the arbitrators are agreed, and he must award on all matters as if the arbitrators had disagreed on all. An award in which the umpire and arbitrators join, after the

authority of the arbitrators has expired, is like that in which mere strangers join, and is good as being the award of the umpire alone.

The umpire should charge as costs of his umpirage the fees and charges due to the arbitrators, for they may be called the costs of the umpirage.

With the majority.-If there are three arbitrators, the third must not imagine that he is an umpire.

As may be agreed.-This is essential. The court will not embody in its order such provisions as may appear to it to be meet and proper in the circumstances of the case; but will provide simply 'as may be agreed upon between the parties,' if the parties can agree. Where the parties agreed to be bound by the decision of the majority, but the court made no formal order to that effect, held, that in the circumstances the judgment could not be objected to for irregularity. Sreenath Ghose v. Rajchunder Paul, 4 Wym. Rep., 151; 8 W. R. 171.

In case he is required to act.-That is, in either of the two cases mentioned in Sec. 515. See the notes above.

510. If the arbitrator, or, where there are more arbitrators than one, any of the arbitrators, or the umpire, dies, or refuses, Death, incapacity, or neglects, or becomes incapable to act, or leaves &c., of arbitrators or British India under circumstances showing that he umpire. will probably not return at an early date, the Court may in its discretion either appoint a new arbitrator or umpire in the place of the person so dying, or refusing, or neglecting, or becoming incapable to act, or leaving British India, or make an order superseding the arbitration, and in such case shall proceed with the suit.

May in its discretion.-Do one or cther of two specified things. As I understand the section, the court may not do any other thing. See the head-notes to Sec. 516.

511. Where the arbitrators are empowered by the order of reference to appoint an umpire and fail to do so, any of the Appointment of umparties may serve the arbitrators with a written pire by Court. notice to appoint an umpire; and if, within seven days after such notice has been served, or such further time as the Court may in each case allow, no umpire be appointed, the Court, upon the application of the party who has served such notice as aforesaid, may appoint an umpire. 512. Every arbitrator or umpire appointed Powers of arbitrator under section 509, 510 or 511 shall have the like

appointed under sections 509, 510, 511.

powers as if his name had been inserted in the order of reference.