which the party might be justly punished. A rule nisi for an attachment was granted without hesitation.

The modern practice, however, inclines to leave the party to his action, in preference to proceeding against the other, who has revoked, for the contempt.

In a case before the Court of King's Bench, (u) where the submission was by rule of court, before the award was delivered, one of the parties executed a deed to the arbitrators, revoking the submission; but they, nevertheless, proceeded to make their award. Upon this occasion,

Lord ELLENBOROUGH said :—" It has been prop"erly admitted, that the defendant could not de"stroy his agreement to submit to the arbitration, "and, therefore, a remedy lies upon the bond to "secure such agreement; but it is equally clear, "that, before the statute of William, a submission ❝to arbitration might be revoked before it was ex"ecuted; and there is nothing in that statute to "render it irrevokable while it continues executo"ry; the statute says, that it shall and may be "lawful for the parties to agree that their submis❝sion shall be made a rule of court; which agree"ment, (that is, so long as it subsists as an agree"ment unrescinded,) shall or may be entered of "record,' &c. After it is made a rule of court, the "party cannot, indeed, rescind it, without incur"ring a breach of that rule; but, till then, it has

(u) Milne and others v. Gratrix, 7 E. R. 607.

"its binding force of an agreement only, to submit ❝to the award of the arbitrator, whose authority is "in its nature revocable, and for the breach of "which agreement the party here has a remedy "of another sort. Then, if, before Then, if, before any award "made, one of the parties have revoked the au"thority of the arbitrators, they cannot make any "award to bind him."

In this doctrine the other Judges concurred; LAWRENCE, J. adding," The rule for an attach❝ment, in this case, was for not obeying an award; "but if there were no authority to make the award " at the time, the award itself is a nullity, and can"not be enforced."

The Court of Common Pleas have very recently held, that the arbitrator is not, by the revocation, (v) barred from proceeding; but that he may make his award; and that, although the Courts will not enforce an award so made by attachment, yet that, where the submission is by deed, an action of covenant will lie, in case either party refuse obedience to the arbitrator's directions.

After either party has once formally revoked, (w) the submission cannot be made a rule of court.

(7) 5 Taunt. 452, King v. Joseph.

(w) Ibid.

CHAPTER IV.

Arbitrators and Umpire.

It is in the discretion of parties, between whom any difference subsists, to delegate the adjustment of that difference to any persons whom they may think proper to elect; and it is for the parties alone to judge of the fitness and competency of those whom they invest with such authority.(a) Of course, a párty having important interests at stake, will rarely be so imprudent as to trust himself to the discretion of another, in whom either want of capacity, or defect of character, is notorious; but if such a senseless submission were entered into, it would in itself be valid.

The circumstance of a man being himself interested, being a party, or closely connected with the opposite party,(b) will, in general, prevent him from being chosen to act as an arbitrator; but if a person so situated should, either from inattention or from the high opinion entertained of his integrity

(a) Rol. Arbit. A. 2. Com. Dig. Arbit. B.

(b) Rol. Arbit. A. 2. Matthew v. Allerton, 4 Mod. 226, S. C. Comb. 218. Hunter v. Bennison, Hard. 43

and judgment, be appointed an arbitrator, the party will not be allowed afterwards to impeach the award on the ground of the improper appointment. It should be clear, however, that the party making such appointment was under no mistake; for, if the interest of the arbitrator in the subject of reference, or his relationship to the opposite party, being unknown at the time of nomination, arose or were discovered subsequently, there can be little doubt but that the Courts would entertain an application for relief.(c)

Where matters in difference are submitted to more than one arbitrator, it is not unusual to provide, that some other person shall ultimately decide upon them, in case the arbitrators should be unable to agree. Such person is called an umpire; and he is sometimes named in the first instance in the submission, sometimes a power is given to the arbitrators of appointing him.

Where an umpire has been once properly appointed by the arbitrators, the appointment will not be afterwards affected by the dissent of the parties. Thus, where arbitrators had elected an umpire, (d) and upon a suggestion by one of the parties, before any award made, that he was an unfit person for the office, each arbitrator had named a different person to supply his place, but could not agree as to a fresh appointment; the original nomination was supported and the award of such umpire made in pursuance of it was held to be valid.

(c) See Earle v. Stocker, 2 Vern. 251. (d) Oliver v. Collings, 11 E. R. 367.

There are many contrary decisions in the books, as to how far arbitrators and an umpire can have a concurrent jurisdiction :(e) whether, when the same day limits the time given to each, the latter can make an umpirage; whether, in order to authorize the umpire in proceeding to determine the matters in dispute, the express refusal of the arbitrators to proceed must be signified to him; and again, whether the mere nomination of an umpire by the arbitrators, puts an end to their authority, so as to prevent their afterwards making an award. But these doubts are now all laid at rest; and the Court of King's Bench has said(h) that there can be no difficulty, even if the arbitrators and umpire do make several awards, in adjudging which of them shall stand; for the award of the former must prevail if they make any; if not, that of the umpire: so that there can be no confusion or concurrence of authority as to time.

Upon a very recent occasion, where the submission was to two persons named as arbitrators, and a third as umpire, so as the award were made by the arbitrators on or before a particular day, but if they made no award, then so as the umpirage were made

(e) Rol. Arbit. P. 6. Sir Tho, Raym. 302. Sid. 458, 454. Donavan v. Masehall, 1 Mod. 274. 1 Lev. 302. S. C. Travers v. Twisleton, 1 Lev. 174. 2 Keb. 248, Anon. 2 Vern. 100. Copping v. Hurnard, 2 Saund. 132, S. C. 1 Lev. 285 2 Keb. 619. Mitchell v. Harris, Ld. Raym. 671. Cowell v. Waller, 2 Barnard, 154. Elliot v. Chevall, Lutw. 541. Jennings t. Vandeput, CroCar. 263. Case v. Dare, Sir Tho. Jones, 167, S. C. 2 Show. 164. Fial v. Varier, Godb. 241, Anon. Freeinan, 378. Reynolds v. Gray, Salk. 70,12 Mod. 120, Ld. Raym. 222, S. C.; and see remarks on this case in Doyley v. Pitstow, Sayer, 221.

(h) Case v. Dare, Sir Tho. Jones, 167, 2 Show. 164, S. C.