Collins v Collins
| Jurisdiction | England & Wales |
| Judgment Date | 16 December 1858 |
| Date | 16 December 1858 |
| Court | High Court of Chancery |
English Reports Citation: 53 E.R. 916
ROLLS COURT
S. C. 28 L. J. Ch. 184; 5 Jur. (N. S.) 30; 7 W. R. 115. Followed, Bos v. Helsham, 1866. L. R. 2 Ex. 73. Distinguished, In re Hopper, 1867, L. R. 2 Q. B. 372. See Vickers v. Vickers, 1867, L. R. 4 Eq. 536; Thomson v. Anderson, 1870, L. R. 9 Eq. 530; In re An Arbitration between Evans, Davies & Caddick, 1870, 22 L. T. 507. Distinguished, Turner v. Goulden, 1873, L. R. 9 C. P. 59. Followed, In re Dawdy, 1885, 15 Q. B. D. 430.
' [306] collins . collins. Dec. 11, 13, Ifi, 1858. [S. C. 28 L. J. Ch. 184 ; 5 Jur. (N. S.) 30 ; 7 W. ft. 115. Followed, lion v. 1866, L. K. 2 Ex. 73. Distinguished, In re Hopper, 1867, L. K. 2 Q, B. 372. See flickers v. Pickers, 1867, L. K. 4 Eq. 536; Tliomnon v. Anderson, 1870, L. R. 9 Eq. 530 ; In re. An Arbitration between Emm, Daviet & Caddick, 1870, 22 L. T. 507. Distinguished, Turner v. Goulden, 1873, L. K. 9 C. P. 59. Followed, In re Dawdy, 1885, 15 (,). B. D. 430.] Parties entered into a contract to purchase a brewery and plant at a price to be fixed by arbitrators, who were to choose an umpire before entering upon the valuation. The arbitrators could not agree on an umpire. Held, that the Court had no authority, under the 17 & 18 Viet. c. 125, ss. 1, 2, to appoint an umpire for such a purpose. By the decree, a brewery and plant at Richmond, part of the assets of the testator, were ordered to be sold. The executrix entered into a written contract with Messrs. Phillips & Wigan for the sale to them of the brewery and plant at a valuation. And it was thereby agreed " that the purchase-money of all the premises agreed to be sold should be determined by Mr. Mason for the vendor, and by Mr. Moss for the purchaser," and "that they should choose an umpire before entering upon the valuation." Provision was made for the event of the death of an arbitrator, or of an arbitrator failing to proceed with the valuation. And it was agreed "that the duties of the umpire should be strictly confined to the matters in difference between the valuers." The contract was sanctioned by the Court, but the valuers " were unable to agree upon or concur in the nomination or appointment of an umpire." Thereupon a summons was taken out, under the 17 & 18 Viet. c. 125, s. 12, for the appointment of an arbitrator by the Judge. [307] By the 12th section of the Common Law Procedure Act (17 Si 18 Viet. c. 125, s. 12), it is enacted as follows: - "If in any case of arbitration the documents authorizing the reference provide that the reference shall be to a single arbitrator," &c., &c., &c., "or if, where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator, such parties or arbitrators do not appoint an umpire or third arbitrator, or if," &c., &c., &c., "then, in every such instance, any party may serve the remaining parties or the arbitrators, as the case may be, with written notice to appoint an arbitrator, umpire or third arbitrator respectively, and if, within seven clear days after such notice shall have been served, no arbitrator, umpire or third arbitrator be appointed, it shall be lawful for any Judge of any of the Superior Courts of law or Equity at Westminster, upon summons to be taken out by the party having served such notice aforesaid, to appoint an arbitrator, umpire or third arbitrator, as 26BEAV. 308. COLLINS V. COLLINS 917 the case may be, and such arbitrator, umpire and third arbitrator respectively shall have the like power to act in the reference, and make an award, as if he had been appointed by consent of all parties." Mr. Lloyd and Mr. Baggallay, for the Defendant, the executrix. This...
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