1. The preliminary point I am asked to determine is in effect this: Whether the decision of a valuation committee appointed by Government under the resumption term of the plaintiff's Sanad must be an unanimous decision of the committee or may be a majority decision The resumption term provides that a just valuation shall be paid and that such a valuation is to be determined by a committee appointed by Government. The defendant's contention in the briefest form is that in all such connections the word 'committee' necessarily connotes a majority. No case can be given, it was argued, of any committee appointed to settle any matter as yet uncertain where by implication it was not intended that a majority decision should be the decision of the committee. On the other hand the plaintiffs contend that notwithstanding the use of the word 'committee' this part of the resumption clause read as a whole provides for an ordinary submission to arbitration.
2. The point on a first view would seem to be of the simplest. Such difficulties as it may give rise to have been occasioned by the decisions of the English Courts that in all cases of submission to arbitrators the resultant award must be an unanimous award of the arbitrators named. And it is very difficult to discover in principle or reason any ground upon which a valid distinction could be drawn between the case of three arbitrators appointed by parties to a dispute and three valuers. In the cases of In re Carus-Wilson and Greene (1886) 18 Q.B.D. 7 and In re Dawdy (1885) 15 Q.B.D. 426 the point of primary importance was whether the valuation of valuers was an award within the meaning of the Common Law Procedure Act and as such could be impeached in the Courts. But in the judgments, the learned Judges took particular pains to distinguish between the object with which arbitrators and valuers are appointed respectively; and upon that ground they proceeded further to mark off the different limits within which the activities of arbitrators and valuers respectively are intended to be confined and the resultant powers of superintendence which Courts may have over them. A very little reflection upon these distinctions, which have afterwards been embodied in all authoritative text-book writings, will show that even if they are valid as far as they go they do pot touch the principle of unanimity which is here in controversy. -But the defendant's argument has been made to depend primarily upon the committee appointed under the resumption term being a committee of valuers and not of arbitrators. It is true that as the argument developed and it began to be perceived that this contention would not go the length of giving valid distinctions for the purposes of unanimity between the two classes of cases under examination, much greater stress was laid upon what was alleged to be the connotation of the word ' committee.' In the case of United Kingdom Mutual Steamship Assurance Association v. Houston & Co., (1896) Q.B. 567 Mathew J. ruled very emphatically that where it was a true case of arbitration and there had been a submission to more than one arbitrator, unless all the arbitrators concurred in the award, there could be no arbitration award at all. Now, if that be true of an arbitration committed to two or more arbitrators without any special provision in the case of this agreement, as I began by saying it is extremely difficult to find any ground in reason or principle why the same rule should not govern a valuation, pure and simple committed to two or more valuers. In either case, if we start by using the word ' committee ' in the sense -that parties to an arbitration commit the matters in difference between them to the decision of an arbitrator or body of arbitrators, there would be little difficulty in denominating that body in accordance with strict legal usage as a committee of the matters in dispute at the hands of the parties at variance. Yet so naming collectively the individual arbitrators nominated could hardly be said to take the case out of the authority of the current of English decisions upon the point. I should have thought that in every case of the kind, whether the persons concerned were arbitrators in the strict sense or mere valuers, assuming the parties relying upon their decision had committed the matters in difference or to be in difference between them to their judgment and the members were capable of yielding a majority decision, as a matter of common sense it would have been presumed that the parties intended to accept any such decision of the majority. It is easy to put cases where there may be such a submission to arbitration or appointment of valuers and no majority decision has been come to. As in the case before me the plaintiffs asked what would have been the result if each of the three members of the committee valued the property in dispute differently. Such considerations do not, in my opinion, give rise to any real difficulty. The answer is plain. In all cases of that kind, there is no majority decision of the committee, or to take the other supposition, the body of arbitrators. I am, however, wholly unable to discover, as I said, any reason which commends itself to me for applying one rule in the case of arbitration and another in the case of a committee of valuers. I doubt much whether the defendant's main contention here, viz., that a committee connotes a majority of a committee would be sufficient. But I do emphatically think that all common sense would point to the adoption of the construction I am asked to put upon this resumption term by the defendant. I should not have had the least hesitation in doing so but for the embarrassment caused by the view taken in England of analogous cases of arbitration. There can I think, be little doubt, however, but that the English Courts were quite satisfied with the distinctions they drew so emphatically between the cases of arbitrators proper and mere valuers and would have employed them had it been necessary to do so to put such a decision as that which I am called upon to give here upon a different ground from such a decision as that in the case of United Kingdom Mutual Steamship Assurance Association v. Houston & Co. (1896) 1 Q.B. 567 My own feeling is that while no such distinction upon an exhaustive analysis would be found to be valid, the real answer is that in every case of the kind in the absence of special provision, parties confiding their differences to the judgment of a body made up of an uneven number of individuals ought to be understood as implying that they would accept the decision of the majority of them. There was certainly nothing in the actual wording of the resumption term in the Sanad before me repugnant to such a construction, nor, have I the least doubt that when that Sanad was drafted it was the understanding and within the contemplation of all the parties to it that the determination of the just value of the land to be made by a committee appointed by Government should be accepted if that determination represented the concurrent opinion of a majority of such committee.
3. In that view, I find upon the preliminary point raised by the defendant that the valuation agreed upon by the majority of the committee appointed by Government is the valuation expressed to be determined and so made binding upon both the parties to the resumption term in the Sanad.
4. Upon the first preliminary issue, which is really merely introductory, I hold as a matter of form rather than substance that the three persons named therein were not arbitrators but constituted a committee of valuers contemplated in the resumption clause of the Sanad. On the second I have already found. It is unnecessary to find upon the third issue.
5. The suit will now be dismissed with all costs.