immsgHSSSSSSsm ni i riiwcrm w BMM i i ii iiiiBiiMi iiiiiiiii j iiiii Nii ii i iii wwimnrn^^ ^Wb>iriJU'SpuKaqw»ixnQa 9^m^s^me^SM^msmiSS$9sms>isi!S'^temi^:- UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY SV THE POWER AND DUTY OF AN ARBITRATOR. TENTH EDITION. RUSSELL OK THE POWER AND DUTY OF AX ARBITRATOR, AND THE LAW OP SUBMISSIONS AND AWARDS EEFERENCES UNDER ORDER OF COURT, APPENDIX OF FORMS, PRECEDENTS, AND STATUTES. TENTH EDITION ALFRED A. HUDSON, OF THE INNER TKMPLE, ONE OF HIS MAJESTY'S COUNSEL. AUTHOR OF "the LAW OF BUILDING AND ENGINEERING CONTRACTS", "THE LAW OF COMPENSATION", ETC. PRESIDENT OF THE TRIBUNAL OF APPEAL UNDER THE LONDON BUILDING ACTS, 1894 TO 1908. UMIVER LONDON STEVENS & SONS, Limited, 119 & 120 CHANCERY LANE, SWEET & MAXWELL, Limited, 3 CHANCERY LANE, l^ato IJublislicrs. 1919. •<:c!!.: :-..;k- T ^ 10 p^' PREFACE TO THE TENTH EDITION. The change in the Law which took place when the arbitration sections of the Common Law Procedure Act were repealed, and the Arbitration Act came into force, required a comprehensive treatment of the subject of Arbitrations, adapting the law and practice so far as applicable to the new order of things. The Arbitration Act did away with compulsory Arbitrations, it made submissions by consent irre- vocable without leave, and it introduced a code of procedure in connection with Arbitrations which formerly was the subject of agreement between the parties, or formed part of the terms of submissions to Arbitration, These statutory rules, however, may be excluded by a contrary intention expressed in the submission, but their importance cannot be underrated in con- nection with Arbitrations, which as a means of settling disputes have become increasingly popular. Now it is rather the exception than the rule for a contract not to contain an arbitration clause. It has not been forgotten that the persons called upon to act as Arbitrators or Umpires, whether under submissions by consent or under Statutes, are drawn from all classes of the community, and are selected generally as experts in the subject-matter of the dispute rather than for any legal training they may possess, though combined legal and VI PREFACE TO THE TENTH EDITION technical knowledge in an arbitrator is much to be desired. In these circumstances it was considered that, mter alia, the subject covered by the First Schedule to tlie Arbitration Act, which comprises the practice and procedure in Arbitrations, and the powers and duties of arbitrators, should be practical and be dealt with in a manner easily understood by laymen as well as by lawyers. Besides this, the arrangement of the work as a commentary on the different sections of the Arbitra- tion Act will, it is hoped, enable the lawyer in particular to find a ready and correct reference to all legal authorities and rules of Court in connection with Arbitration proceedings. The work has been to a large extent rewritten and the subjects entirely rearranged, following gener- ally the order of the sections of the Act, while the two main divisions, viz. Submission by consent out of Court, or Arbitration properly so - called, and references under Order of Court, have been kept distinct. The latter being merely part of the machinery of the Court for disposing of certain classes of cases, by referring the whole or part to an ofhcial or special referee for trial, enquiry, or report, called for different considerations from those of submissions by consent. Though the referee in such cases may be a person chosen by the parties, whether layman or lawyer, he is not an arbitrator, but an ofHcer of the Court invested with special powers defined by the order of reference and otherwise regulated by rules of Court. The forms and precedents have been revised and greatly added to so as to provide for and give effect to recent decisions, and clauses supplementing or PREFACE TO THE TENTH EDITION • Vll excluding some of the provisions in the First Schedule to the Act have been giv6n where it has been thought desirable. In the Appendix of Statutes the Indian Arbitra- tion Act, 1899, referred to in the text, has been set out in full for the use of practitioners in India. The preparation of this work has entailed great personal labour, more especially having regard to the difficulty of obtaining assistance at all during the war, and then from its intermittent nature when obtained ; but the Author of this edition is greatly indebted for most willing and able help, first in order of date to Mr. C. S. Rewcastle, who was called away to perform important duties in connection with the war, and later to Mr. G. F. L. Bridgman, whose available time was enlisted for similar reasons. Fortunately, when the work was approaching completion, Mr. W. BowsTEAD was able to devote much time to arranging the quantity of manuscript which had then accumulated, and to render invaluable assistance in the fin;d stages of the book and in passing it through the press. A. A. H. 5 Paper Buildings, Temple, E.G., March 1919. CONTENTS. (Note. — A detailed Table of Contents is given at the commencement of each section.) INTRODUCTORY. I. What Matters may be referred to Arbitration II. Who may refer Matters to Arbitration III. Who may be an Arbitrator PAGE 1 18 33 THE ARBITRATION ACT, 1889, PAET I. REFERENCES BY CONSENT OUT OF COURT. SECTION 1. Revocation of submission and injunction 2. The submission ....... 3. Submission to official referee .... 4. Staying proceedings ...... 5. Power of Court to appoint an arbitrator, umpire, or third arbitrator ....... 6. Power to party to supply vacancy 7. Powers of arbitrator ...... 8. Witnesses may be summoned by subpcena 9. Power of Court to enlarge time for making award 10. Remitting or referring back award 11. Removing arbitrator. Setting aside award . 12. Enforcement of award ...... 13 to 17. See Part II. 18. Power to order writs of subpcena or habeas corpus . 19. Statement of case pending arbitration . 20. Costs of orders under the Act .... 21. Exercise of powers by Masters and other officers . 22. (Repealed.) 23. Crown to be bound ...... 45 70 84 86 116 128 135 151 152 160 190 256 301 302 309 309 310 CONTENTS SECTION 24. Application of Act to statutory arbitrations 25. Saving for pending arbitrations 26. Eepeal ...... 27. Definitions. Meaning of " submission " 28. Extent of Act 29. (Repealed.) 30. Short title PAGE 310 311 311 312 323 324 FIEST SCHEDULE. Provisions to be implied in Submissions (a) Reference to be to single arbitrator . (b) Appointment of umpire (c) Time for arbitrators to make award . (d) Commencement of umpire's authority (e) Time for award by umpire (/) and (g) Conduct of the reference (h) The award ..... (i) Costs ...... 324 325 334 345 350 354 429 483 PAKT II. EEFEREXCES U^^DER ORDER OF COURT 13. References for enquiry or report . 14. References for trial .... 15. Powers and remuneration of referees, &c. 16. Powers of Court as in reference by consent 17. Powers of Court of Appeal . 496 499 519 543 585 586 APPENDICES. Appendix of Forms (Table of Contents at p. 587). Appendix of Statutes and Statutory Rules (Table of Contents at • p. 652). Index .680 TABLE OF CASES. Abu— And. page Abud v. Riches, (1876) 2 Cli. D. 528; 45 L. J. Ch. 649; 34 L. T. 713; 24 W. R. 637 295 Ackarv, In re; Bolland, Ex parte, (1876) 3 Ch. D. 125 ; 45 L. J. Bk. ■ 133 ; 34 L. T. 666 ; 24 W. R. 932 539 Adam v. Rowe, (1845) 3 D. & L. 331 ; 15 L. J. Q. B. 223 ; 10 Jur. 840 . . 562 Adams v. Adams, (1676) 2 Mod. 169; Vin. Ab. Arb. (N 2) 3 . . . .445 v. Baiikhart, (1835) 1 C. M. & R. 681; 5 Tyr. 425; 1 Gale, 48; 4 L. J. (N. S.) Ex. 69 ; 40 R. R. 670 22, 276 V. Catley, (1892)66L. T. 687; 40W. R. 570 95 V. Great North of Scotland Rail. Co., [1891] A. C. 31 . . . 207, 209 u Statham or Staley, (1678) 2 Lev. 235 ; 2 Show. 61 . . . 26,461 Adcock V. Wood, (1851) 6 Ex. 814 ; 2 L. M. & P. 501 ; 20 L. J. Ex. 435 ; 86 R. R. 484 ; affirmed in error, (1852) 7 Ex. 468 ; 21 L. J. Ex. 204 82, 268 Addie v. Henderson, (1879) 7 R. 79 38 Addison -y. Gray, (1766) 2 Wils. 293 216,300,576 Ahrbecker v. Frost, (1886) 17 Q. B. D. 608 ; 65 L. J. Q. B. 477 ; 55 L. T. 264 ; 34 W. R. 789 574 Aitcheson v. Cargey, (1824) 2 Bing. 199; 13 Price, 639; 9 Moore, 381; M'Clel. 367 ; 26 R. R. 305 299 Aitken's Arbitration, (1857)3 Jur. (X. S.) 1296 -. . . . 180,452,453 V. Batchelor, (1893) 62 L. J. Q. B. 193 ; 5 R. 218 ; 68 L. T. 530 ; 9 Times L. R. 221 316,532,534 Aktiebolaget Robertsfors and La Societe Anonyme des Papeteries de L'Aa, [1910] 2 K. B. 727; 80 L. J. K. B. 13 ; 103 L. T. 503 . . . .244 Alcock, Ex farte or In re, (1875) 1 C. P. D. 68 ; 45 L. J. C. P. 86 ; 33 L. T. 532 ; 24 W. R. 320 292 Alder v. Savill, (1814) 5 Taunt. 454 ; 15 R. R. 551 462, 536 Alexander v. Campbell, (1872) 41 L. J. Ch. 478 ; 27 L. T. 25 . . . 90, 105 V. Mendl, (1870) 22 L. T. 609 101, 102, 103 Alford V. Lea, (1587) 2 Leon. 110 ; Cro. Eliz. 54 474 Allan V. Harrison. See Allen v. Morrison. Allen V. Francis, (1845) 9 Jur. 691 ; 4 D. & L. 607, n 136 u Greenslade, (1875)33 L. T. 567 171,188 V. Harris, (1696) 1 Ld. Ravni. 122 476 V. Milner, (1831) 2 C. & J."' 47 ; 2 Tvr. 113 ; 1 L. J. (N. S.) Ex. 7 . 1, 475 V. Morrison, (1828) 8 B. & C. 565 ;" 3 M. & Ry. 70 ; s.c. nom. AHan v. Harrison, 7 L. J. (0. S.) K. B. 106 442 and Perring, In re. See Perring and Keymer, In re. Allenby v. Proudlock, (1835) 4 Dowl. 54 ; 1 H. & W. 357 . . 4, 5, 237, 242 V. (1835) 4 A. & E. 326 ; 5 N. & M. 636 ; 5 L. J. K. B. 45; 43 R. R. 348 576 Alsop v. Senior, (1670)2 Keb. 707, 718 26 Ames V. Milward, (1818) 8 Taunt. 637 ; 20 R. R. 603 228 Amos V. Heme Bay Pavilion Co., (1886) 54 L. T. 264 197 Amstell V. Lesser, (1885) 16 Q. B. D. 187 ; 55 L. J. Q. B. 114 ; 53 L. T. 759 ; 34 W. R. 230 ; 2 Times L. R. 198 291 Andersons. Coxeter, (1720) 1 Stra. 301 193 V. Wallace, (1835) 3 C. & F. 26 393, 401, 403 Andrews v. Eaton, (1852) 7 Ex. 221 ; 21 L. J. Ex. 110 158 V. Mitchell, [1905] A. C. 78 ; 74 L. J. K. B. 333 ; 91 L. T. 537 . 14, 15, 359 Xll TABLE OF CASES And — Aus. PAGE Andrews v. Palmer, (1821) 4 B. & Aid. 250 ; 23 K R. 267 . . . . 65 Angell V. Felgate, (1861) 7 H. & N. 396; 31 L. J. Ex. 41 ; 5 L. T. 322 ; 10 W. R. 83 526 ■Anglo-Australian Bank, i?t;, (1864) 10 L. T. 369 370 Anglo-Italian Bank and De Rosaz, In re, (1867) L. R. 2 Q. B. 452; 16 L. T. 412 127 Angus V. Redford, (1843) 11 M. & W. 69; 2 Dowl. (N. S.) 735; 12 L. J. Ex.180 397,455,557,560 V. Sniytliies, (1861) 2 F. & F. 381 396 Anning v. Hartley, (1858) 27 L. J. Ex. 145 174, 183,410 Anon., (1468) Jenk. 128 399 (1543) F. Moore, 3 pi. 11 461 (1565) Dyer, 242 a 216 (1588) 1 Leon. 316 458 (1627) Latch, 14 338 (1640) March, 18 460 (1641) March, 77 19 (1661) 1 Keb. 92 461 (1666) T. Raym. 152 283 (1698) 1 Salk. 71 376 (1704) 2 Ld. Ravm. 989 ; s.c. nom. Robison v. Calwood, 6 Mod. 82 . 438 (1748) 3 Atk. 644 196 (1813) 2 Chitt. 45 342 (1814) 2 Chitt. 44 ; 23 K. R. 741 382 v. Mills, (1811) 17 Ves. 419 47,282,322 Ansell t;. Evans, (1796) 7 T. R. 1 47,282,322 Antram !-. Chace, (1812) 15 East, 209 23,73,338 Arbuckle v. Price, (1835) 4 Dowl. 174 ; 46 R. R. 819 372 Archer or Arthur v. Owen, (1841) 9 Dowl. 341 ; 5 Jur. 340 ; 61 R. R. 814 . 209 Armitage v. Coates, (1849) 4 Ex. 641 ; 19 L. J. Ex. 95 561 V. Walker, (1855) 2 K. & J. 211 ; 2 Jur. (N. S.) 13 . . 207, 448, 451 Armittv. Breame, (1705) 2 Ld. Raym. 1076 ; 1 Salk. 76 . . . 224,227,436 Armstrong v. INIarshall, (1836) 4 Dowl. 593 ; 1 H. & W. 643 ; 46 R. R. 821 3, 384 Arnhold, Karberg & Co. r. Blyth, Green & Co., [1915] 2 K. B. 379; 84 L. J. K. B. 1673 ; 113 L. T. 185 ; 31 T. L. R. 151 149 Arnold v. Pole, (1634) Rolle Ab. Arb. D 5 82 Arthur v. Owen. See Archer v. Owen. Ashton V. Povnter, (1834) 3 Dowl. 201 3, 207 Ashworth v. Heathcote, (1830) 6 Bing. 596 ; 4 M. & P. 396 ; 8 L. J. (0. S.) C. P. 206 78 Astley and Tyldesley Coal Co., In re, (1899) 68 L. J. Q. B. 252 ; 15 T. L. R. 154 273,380 Aston V. George, (1819) 2 B. & Aid. 395 ; 1 Chit. 200 ; 22 R. R. 803 . . 46 Athelston v. Moon, (1736) Com. Rep. 547 82 Atkinson r. Abbott, (1855) 3 Drew. 251 ; 106 R. R. 329 29 V. Jones, (1843) 1 D. & L. 225 ; 7 Jur. 881 78 Attorney-General r. Birmingham, &c., Drainage Board, [1912] A. C. 789 ; 82 L. J, Ch. 45 ; 107 L. T. 353 (H. L.) . . 501, 504, 586 'i'. Chomley, (1765)2 Eden, C. C. 304; Amb. 510. . . 25 V. Clements, (1823) 1 Turn. & R. 58 . . . . 3, 454 V. Davison, (1825) M'Clel. & Y. 160 ; 29 R. R. 774 . 380, 381 V. Fea, (1819) 4 Madd. 274 3 V. Hewitt, (1804) 9 Ves. 232 3 V. Jackson, (1846) 5 Hare, 355 278 Aubert v. Maze, (1801) 2 B. & P. 371 ; 5 R. R. 624 4, 233, 363 Auriol V. Smith, (1823) 1 Turn. & R. 121 233 Austin & Whiteley v. Bowley, (1913) 108 L. T. 921 96 Austin Friars Steamship Co. v. Strack, [1906] 2 K. B. 499 ; 75 L. J. K. B. 658 ; 94 L. T. 875 ; 22 T. L. R. 701 (C. A.) 148 Austrian-Lloyd Steamship Co. v. Greshara Life Assurance Society, [1903] 1 K. B. 249 ; 72 L. J. K. B. 211 ; 88 L. T. 6 ; 51 W.' R. 402 (C. A.) . . . . ' 36, 101, 321 TABLE OF CASES XUl Aut— Bar. page Autothreptic Steam Boiler Co., In re, (1888) 21 Q. B. D. 182 ; 57 L. J. Q. B. 488 ; 59 L. T. 632 ; 37 W. R. 15 484, 584 AvelettiJ. Goddard, (1842)11 L.J. C. P. 123; 59 R. R. 820 . . . .562 Babbage v. Coulburn, (1882) 9 Q. B. D. 2.35 ; 51 L. J. Q. B. 638 ; 46 L. T. 283 ; 30 W. R. 950 ; affirmed 9 Q. B. D. 237, n. ; 52 L. J. Q. B. 50 ; 46 L. T. 794 ; 30 W. R. 951, ii. (0. A.) 113 Baclie V. Billiiigham, [1894] 1 Q. B. 107 ; 63 L. J. M. C. 1 ; 9 R. 79 ; 69 L. T. 648 ; 42 W. R. 217 (C. A.) 14, 236, 272, 389 Backhouse v. Taylor, (1851) 2 L. M. & P. 70 ; 20 L. J. Q. B. 233 ; 90 R. R. 765 ; s.c. nom. Taylor v. Backhouse, 15 Jur. 86 28, 333 Bacon v. Cresswell, (1835) 1 Hodges, 189 542 V. Dubarry, (1697) 1 Ld. Raym. 246 ; 1 Salk. 70 . . . .26, 461 Badger, In re, (1819) 2 B. & A. 691 ; 21 R. R. 455 . . . . 359, 363, 450 Badische Anilin, &c., Fabrik v. Levinstein, (1883) 24 Ch. D. 156 ; 52 L. J. Ch. 704 ; 48 L. T. 822 ; 31 W. R. 913 501, 506, 508, 510 Badley v. Loveday, (1797) 1 B. & P. 81 287 Baggalay v. Borthwick. See Baguley v. Markwick. Baguley v. Markwick, (1861) 30 L. J. C. P. 342 ; 4 L. T. 245 ; 9 W. R. 537 ; s.c. nom. Baggalay v. Borthwick, 10 C. B. (N. S.) 61 . . . . 140, 169 Baigent v. Baigent, (1875) 1 P. D. 421 ; 33 L. T. 462 ; 24 W. R. 43 . . . 292 Bailey v. Plant, [1901] 1 K. B. 31 ; 70 L. .J. K. B. 63 ; 83 L. T. 459 ; 49 W. R. 103 ; 65 J. P. 52 ; 17 Times L. R. 48 (C. A.) 261 Bailliev. Edinburgh Oil Gas Light Co., (1835) 3 C. &F. 639 . . . 78,219 Baily v. Curling, (1851) 2 L. M. & P. 161 ; 20 L. J. Q. B. 235 ; 90 R. R. 768 228, 287 Bake v. French, [1907] 1 Ch. 428 ; 76 L. J. Ch. 299 ; 97 L. T. 131 . . . 582 Baker v. Cotterill, (1849) 7 D. & L. 20 ; 18 L. J. Q. B. 345 ; 14 Jur. 1120 ; 82 R. R. 956 296, 403, 562 V. Faber, [1908] W. N. 9 238 V. Hunter, (1847) 16 M. & W. 672 ; 4 D. & L 696 ; 16 L. J. Ex. 203 ; 73 R. R. 683 188, 189, 444, 445 V. Stephens, (1867) L. R. 2 Q. B. 523 ; 8 B. & S. 438 ; 36 L. J. Q. B. 236 ; 15 W. R. 902 336 V. Townshend, (1817) 1 Moore, 120 ; 7 Taunt. 422 ; 18 R. R. 521 . 1,6, 7, 76, 575 V. Wells, (1841) 9 Dowl. 323 ; 5 Jur. 41 287 V. Yorkshire Fire & Life Assurance Co., [1892] 1 Q. B. 144 ; 61 L. J. Q. B. 838 ; 66 L. T. 161 317 Ball V. Dunsterville, (1791) 4 T. R. 313 ; 2 R. R. 394 ... . 22, 23 Ballasty v. Army & Navy General Assurance Association, (1916) 50 Ir. L. T. 114 92 Balmain v. Lickford, (1875) L. R. 10 C. P. 203 ; 44 L. J. C. P. 94 ; 32 L. T. 67 ; 23 W. R. 310 580 Baltic Co. V. Simpson, (1876) 24 W. R. 390 502, 503 Banfill V. Leigh, (1800) 8 T. R. 571 27 Bankruptcy Notice, In re, [1907] 1 K. B. 478 ; 76 L. J. K. B. 171 ; 96 L. T. 131 ; 23 Times L. R. 214 (C. A.) 260 Banks v. Banks, (1835) 1 Gale, 46 137 Bannister v. M'Donald, (1890) W. N. 50 525, 564 Barden v. de Keverberg, (1836) 2 M. & W. 61 ; 2 Gale, 201 ; 6 L. J. (N. S.) Ex. 66 18 Baring and Doulton, In re, (1892) 61 L. J. Q. B. 704 ; 8 Times L. R. 701 . 62 Baring Goiild v. Sharpington Combined Pick & Shovel Syndicate, [1899] 2 Ch. 80 ; 68 L. J. Ch. 429 ; 80 L. T. 739 ; 47 W. R. 564 ; 15 Times L. R. 366 (C. A.) 336 Barker v. Hemming, (1880) 5 Q. B. D. 609 ; 43 L. T. 678 (C. A.) . . . 582 Barnardiston v. Fowler or Fouliger, (1714) 10 Mod. 204 ; Gilb. 125 . 83, 449, 472 Barnes v. Braithwaite, (1857) 2 H. & N. 569 196 V. Greenwel, (1601) Cro. Eliz. 858 . . 219 V. Hayward, (1857) 1 H. & N. 742 196, 494 XIV TABLE OF CASES Bar — Bex. Bai'ues v. Youngs, [1898] 1 Ch. 414 ; 67 L. J. Ch. 263 ; 46 W. R. 332 301 PAGE . 97, 100, 101, 104, 115 553 . 495 . 19 300, 460 . 342 5, 463 . 30 R. 838 251, 493 49 R. R. 233, 299 . 290 . 291 Barnett v. Aldridge Colliery Co., (1887) 4 Times L. R. 16 and Eccles Corporation, In re, (1901) 65 J. P. 757 V. Howard, [1900] 2 Q. B. 784 ; 69 L. J. Q. B. 955 ; 83 L. T, Barney v. Fairchild, (1638) Rolle Ab. Arb. X 9, p. 259, E 10 . Barrett v. Parry, (1812) 4 Taunt. 658 Barry v. Grogan, (1868) 16 W. R. 727 V. Rush, (1787) 1 T. R. 691 ; 1 R. R. 360 Bartle v. Musgrave, (1841) 1 Dowl. (X. S.) 325 ; 5 Jur. 1061 ; 63 R Barton v. Ranson, (1838) 3 M. & W. 322 ; 7 L. J. (X. S.) Ex. 8( 616 Bass i;. Maitland, (1823)8 Moore, 44 Bassett v. Bassett, [1894] 3 Ch. 179 ; 63 L. J. Ch. 844 ; 8 R. 474 Bateman v. Ross (Countess), (1813) 1 Dow, 235 Bates V. Cooke, (1829) 9 B. & C. 407 ; 33 R. R. 219 . V. Townley, (1848) 2 Ex. 152 ; 19 L. J. Ex. 399 ; 76 R. Jl. 544 327, 41 Batson, In re ; Hastie, Ex parte, (1894) 70 L. T. 382 Baxter v. Burfield, (1747) 2 Str. 1267 Baxters and Midland Rail. Co., In re, (1906) 95 L. T. 20 ; 22 Times L. R. 616 (C. A.) 163, 171, 172, 173, 180, 181 Bayley v. Wilkinson, (1864) 16 C. B. (X. S.) 161 ; 33 L. J. M. C. 161 ; 10 Jur. (X. S.) 726 ; 10 L. T. 543 ; 12 W. R. 797 . Baylis, Ex parte. See Thompson, In re. Beahan v. Wolfe, (1832) 1 Alcock & Xapier, 233 (Irish) Beale v. Beale, (16.35) Cro. Car. 383 . Bean v. Xewbury, (1664) 1 Lev. 139 ; 1 Keb. 790, 832, 85 Beaufort (Duke) and Swansea Harbour Trustees, In re, (1860) 8 C. B. (X. S.) 146 ; 29 L. J. C. P. 241 ; 6 Jur. (N. S.) 979 ; 1 L. T. 370 ; 8 W. R. 188 V. Welch, (18.39) 10 A. & E. 527 ; 3 Jur. 794 Beck and Jackson, In re, (1857) 1 C. B. (X. S.) 695 . V. Sargent, (1812) 4 Taunt. 232 .... Beckett v. Midland Rail. Co., (1866) L. R. 1 C. P. 241 ; 35 L. J. C. P. 163 Har. & Ruth, 189 ; 13 L. T. 672 ; 12 Jur. (X. S.) 393 V. Taylor, (1669) 1 Mod. 9 ; 2 Keb. 546, 554 Beckingham v. Hunter, (1600) Rolle Ab. Arb. D 8 . Bedam v. Clerkson, (1696) 1 Ld. Raym. 123 231 570 Bedborough v. Army & Xaw Hotel Co., (1884) 53 L. J. Ch. 658 ; 50 L. T. 173 Beddow v. Beddow, (1878) 9 Ch. D. 89 ; 47 L. J. Ch. 588 ; 26 W. R, Bedington v. Southall, (1817) 4 Price, 232 Bedwell v. Wood, (1877) 2 Q. B. D. 626 ; 46 L. J. Q. B. 725 Beeley v. Wingfield, (1809) 11 East, 46 ; 10 R. R. 431 Belcher v. Roedean School, (1901) 85 L. T. 468 (C. A.) . Belfield v. Bourne, [1894] 1 Ch. 521 ; 63 L. J. Ch. 104 ; 8 R. 61 42 W. R. 189 36 L. 5 329 488 151 446 10 451 226 20 . 216 229, 253 . 410 . 433 221 14 W. R. . 270 . 460 . 447 458 568 39, 68 , 398 581 7 56,63 69 L. T. 786 ; 79, 99, 115, 451 T. 213 Bell V. Belson, (1814) 2 Chitt. 157 573 v. Postlethwaite, (1855) 5 E. & B. 695 ; 25 L. J. Q. B. 63 ; 1 Jur. (X. S.) 1167;4W. R. 89 . 538,573 Bennett v. Skardon, (1829) 5 M. & R. 10 2,39 V. Watson, (1860) 29 L. J. Ex. 357 343, 344 Benton v. Ellis, Lever & Co., (1885) 1 Times L. R. 499 583 Benwell v. Hinxman, (1835) 1 C. M. & R. 935 ; 5 Tyr. 509 ; 3 Dowl. 500 ; 4 L. J. (X. S.) Ex. 99 343 Berry v. Dunn. See Bury v. Dunn. V. Penring, (1616) Cro. Jac. 399 ; Moor. 849 ; s.c. nom. Berry v. Perry, 3 Bulst. 62 ; 1 Rolle Rep. 375 76, 215, 411 r. Perry. See Berry v. Penring. Besant r. Wood, (1879) 12 Ch. D. 605 ; 40 L. T. 445 5 Bexley Local Board i: West Kent Main Sewerage Board, (1882)9 Q. B. D. 518 ; 51 L. J. Q. B. 456 ; 47 L. T. 192 ; 31 W. R. 119 ; 46 J. P. 519 , . . 306 TABLE OF CASES XV Bhe — Boz. PAGE Bhear v. Harradine, (1852) 7 Ex. 269 ; 21 L. J. Ex. 127 ; 86 R. R. 654 . 215, 492 Eickett v. Morris, (1866) L. R. 1 H. L. (Sc.) 47 35 Bidden v. Dowse, (1827) 6 B. & C. 255 ; 9 D. & R. 404 ; 28 R. R. 574 . . 534 Bidder v. North Staffordshire Rail. Co., (1878) 4 Q. B. D. 412 ; 48 L. J. Q. B. 248 ; 40 L. T. 801 ; 27 W. R. 540 (C. A.) 147 Biggs V. Hansen, (1855) 16 C. B. 562 137 Bignall v. Gale, (1841) 2 M. & G. 364, 830 ; 3 Scott N. R. 108 ; 9 Dowl. 631 ; 10 L. J. C. P. 169 ; 5 Jur. 701 ; 58 R. R. 583 . 248, 397, 399, 418 V. (1842) 3 M. & G. 858 ; 1 Dowl. (N. S.) 497 ; 4 Scott N. R. 570 ........... 5*^5 Billington, Ltd. v. Billington, [1907] 2 K. B. 106 ; 76 L. J. K. B. 664 ; 96 L. T. 665 ; 23 Times L. R. 473 570 Bird V. Cooper, (1835) 4 Dowl. 148 ; 46 R. R. 815 76 V. Penrice, (1840) 6 M. & W. 754 ; 9 L. J. Ex. 257 ; 55 R. R. 776 . . 189 Birks V. Trippet, (1666) 1 Saund. 32 ; 2 Keb. 126 ; 1 Sid. 303 . . . 216, 217 Birmingham & Staffordshire Gas Co. v. Ratcliffe, (1871) L. R. 6 Ex. 224 ; 40 L. J. Ex. 136 ; 19 W. R. 776 527 Corporation v. Allen, (1877) W. N. 190 . . , . 510, 512 Bishop V. Bishop, (1640) 1 Rep. in Chanc. 75, 142 278, 280 Blackett v. Bates, (1865) L. R. 1 Ch. 117 ; 2 H. & M. 610; 35 L. J. Ch. 324 279, 280, 533 Blackwellu Derby Corporation, (1911) 75 J. P. 129 106 Blair v. Jones, (1851) 6 Ex. 701 ; 20 L. J. Ex. 295 186 Blake's case, (1606) 6 Rep. 43 b ; s.c. nom. Eden v. Blake, Noy, 110 . . 1, 475 Blake v. Appleyard, (1878) 3 Ex. D. 195 ; 47 L. J. Ex. 407 ; 26 W. R. 592 . 575 Blanchard v. Lilly, (1808) 9 East, 497 6 V. Sun Fire Office, (1890) 6 Times L. R. 365 . . . 43, 203, 414 Bland v. Russian Bank for Foreign Trade, (1906) 1 1 Com. Cas. 71 . 207, 208, 219 Blennerhasset v. Day, (1811) 2 BaU & B. 104 ; 53 R. R. 79 . . . 200, 363 Blisset V. Tenant, (1828) 7 L. J. C. P. 108 416 Block V. Palgrave, (1600) Cro. Eliz. 797 439 Bluck and Boyes, In re. See Boyes v. Bluck. Blundell v. Brettargh, (1810) 17 Ves. 232 246, 442, 542 Blyth c%Tyne Raih Co. v. Wilson, 7?ire, (1863) 11 W. R. 705 . . . .33a Blythe v. Lafone, (1859) 1 E. & E. 435 ; 28 L. J. Q. B. 164 ; 5 Jur. (N. S.) 364 ; 7 W. R. 189 314 Boaler v. Brodhurst, [1892] W. K 121 516 Bonner v. Charlton, (1804) 5 East, 139 ; 1 Smith, 369 ; 7 R. R. 668. . , 559 V. Liddell, (1819) 1 B. & B. 80 235 Bonnin v. Neame, [1910] 1 Ch. 732 ; 79 L. J. Ch. 388 ; 102 L. T. 708 . 90, 105 Boodle V. Davies, (1835) 3 A. & E. 200 ; 4 N. & M. 788 ; 1 H. & W. 420 ; 42 R. R. 367 2, 4, 229, 241, 243 Booth V. Garnett, (1738) 2 Str. 1082 44» Boss V. Helsham, (1866) L. R. 2 Ex. 72 ; 4 H. & C. 642 . . . . 119, 319 Bottomley v. Ambler, (1878) 38 L. T. 545 ; 26 W. R. 566 384 V. Buckley, (1845) 4 D. & L. 157 ; 75 R. R. 876 . . . . 240 Bourke v. Lloyd, (1842) 10 M. & W. 550 ; 2 Dowl. (N. S.) 452 ; 12 L. J. Ex. 4 ; 62 R. R. 701 561, 564 Bowen v. Bowen, (1862) 31 L. J. Q. B. 193 296 V. Williams, (1848) 3 Ex. 93 ; 6 D. & L. 235 157 Bower, In re, (1823) 1 B. & C. 264 ; 25 R. R. 393 ; s.c. nom. King v. Bower, 1 L. J. (0. S.) K. B. 110 291 Bowes V. Fernie, (1838) 4 My. & Cr. 150 ; 48 R. R. 39 . . . 214, 229, 234 Bowker v. Evans, (1885) 15 Q. B. D. 565 ; 54 L. J. Q. B. 421 ; 53 L. T. 801 ; 33 W. R. 695 ; 1 Times L. R. 371 (C. A.) 557 Bowyer v. Blorksidge, (1681) 3 Lev. 17 20 Boyd V. Emmerson, (1834) 2 A. & E. 184 ; 4 N. & M. 99 ; 4 L. J. (N. S.) K. B. 43 441 Boyes v. Bluck, (1853) 13 C. B. 652 ; 22 L. J. C. P. 173 575 V. Hewetson, (1836) 2 Scott, 831 290 Bozson V. Altrincham Urban District Council, [1903] 1 K. B. 547 ; 72 L. J. K. B. 271 ; 51 W. R. 337 ; 67 J. P. 397 ; 19 T. L. R. 266 (C. A.) . 147 XVI TABLE OF CASES Bra— Bro. page Bradbee v. Christ's Hospital, (1842) 4 il. & G. 714 ; 2 Dowl. (N. S.) 164 ; 5 Scott N. R. 79 ; 11 L. J. C. P. 209 141, 242, 243 Braddick v. Thompson, (1807) 8 East, 344 ; 15 R. R. 751 . . . . 271, 391 Bradford v. Brian, (1741) Willes, 268 214 V. Woolani. See Woollen v. Bradford. Bradley v. Ibbetson, (1851) 2 L. M. & P. 583 . V. Phelps, (1851) 6 Ex. 897 ; 21 L. J. Ex. 310 Bradsey v. Clyston, (1639) Cro. Car. 541 . Bradshaw, In re, (1848) 12 Q. B. 562 ; 17 L. J. Q. B. 362 12 Jur. 998 . 245 . 563 438, 460 179, 249, 328, 367 287, 288 . 316 . 168 31 . 110 . 284 196, 486 . 297 . 481 299, 458 199, 392 . 81 39 96 Brandon v. Brandon, (1799) 1 B. & P. 394 V. Smith, (1853) 22 L. J. Q. B. 321 ; 1 B. C. C. 181 . Brandt and Boutcher, Li re, (1890) 7 Times L. R. 140 .. . Braunstein v. Accidental Death Insurance Co., (1861) 1 B. & S. 782 L. J. Q. B. 17 ; 8 Jur. (N. S.) 506 ; 5 L. T. 550 . Brazier v. Bryant, (1825) 3 Bing. 167 ; 10 Moore, 587 ; 28 R. R. 618 V. (1834) 2 Dowl. 600 Breary v. Kemp, (1855) 24 L. J. Q. B. 310 Brett V. Beales, (1829) Moo. & M. 416 ; 34 R. R. 499 ... Bretton I!. Prat, (1600) Cro. Eliz. 758 Brien and Brien, In re, [1910] 2 Ir. R. 84 Bright V. Gibson, (1916) 32 Times L. R. 533 V. River Plate Construction Co., [1900] 2 Ch. 835 ; 70 L. J. Ch. 59 82 L. T. 793 ; 49 W. R. 132 ; 64 J. P. 695 Brighton Marine Palace Co. v. Woodhouse, [1893] 2 Ch. 486 ; 62 L. J. Ch. 697 3 R. 565 ; 68 L. T. 669 ; 41 W. R. 488 Bristol Corporation v. Aird & Co., [1913] A. C. 241 ; 82 L. J. K. B. 684 ; 108 L. T. 434 ; 29 Times L. R. 360 (H. L.) . . . . 103, 107, 109 Steam Navigation Co. v. Indemnity, &c., Co., (1887) 57 L. T. 101 . 518 Bristow V. Binns, (1823) 3 D. & R. 184 ; 26 R. R. 607 64 British Westinghouse, &c., Co. v. Underground, &c., Co. of London, [1912] 3 K. B. 128 ; 81 L. J. K. B. 473 ; 106 L. T. 228 (C. A.) ; affirmed, [1912] A. C. 673; 81 L. J. K. B. 1132; 107 L. T. .325 (H. L.) . . 55,168,209, 210, 308, 517 Brockas'v. Savage, (1596) RolleAb. Arb. D 4 .81 Broder v. Saillard, (1876) 2 Ch. D. 694 ; 45 L. .1. Ch. 414 ; 24 W. R. 1011 . 503, 505 Brook and Delcomyn, In re, (1864) 16 C. B. (N. S.) 403 ; 33 L. J. C. P. 246 ; 10 Jur. (N. S.) 704 ; 10 L. T. 378 392, 414 Li re; Sykes v. Brook, (1881) 50 L. J. Ch. 744 ; 45 L. T. 172 ; 29 W. R. 821 518 Brooke v. Mitchell, (1840) 6 M. & W. 473 ; 8 Dowl, 392 ; 9 L. J. (X. S.) Ex. 269 ; 4 Jur. 656 ; 55 R. R. 699 64, 149, 238, 437 Brophy v. Holmes, (1828) 2 Moll. 1 276, 387, 465 Brown and Croydon Canal Co., In re, (1839) 9 A. & E. 522 ; 8 L. J. (N. S.) Q. B. 92 ; 48 R. R. 574 83, 219, 445 V. Dimbleby, [1904] 1 K. B. 28 ; 73 L. J. Q. B. 35 ; 89 L. T. 424 ; 52 W. R. 53 V. Hellaby, (1857) 1 H. & N. 729 ; 26 L. J. Ex. 217 ... . V. Llandovery Terra Cotta Co., (1909) 25 Times L. R. 625 . V. Nelson, (1844) 13 M. & W. 397 ; 2 D. & L. 405 ; 14 L. J. Ex. 62 V. Overbury, (1856) 11 Ex. 715 ; 25 L. J. Ex. 169 ; 4 W. R. 252 . V. Pelligrini. See Russell v. Peligrini. -y. Prober t,( 1833) 1 Dowh 659 V. Tanner, (1825) 1 C. & P. 651 ; M'Clel. & Y. 464 ; 29 R. R. 823 . V. Vawser, (1804) 4 East, 584 150, 237, 438, 442 V. Watson, 1839, 6 Bing. N. C. 118 ; 8 Dowl. 22 ; 8 Scott, 386 ; 54 R. R. 752 448, 449, 453 Browne v. Collyer, (1851) 2 L. M. & P. 470 ; 20 L. J. Q. B. 426 ; 86 R. R. 908 156 ■ V. Emerson, (1856) 17 C. B. 361 ; 25 L. J. C. P. 104 ; 2 Jur. (N. S.) 190 ; 4 W. R. 295 526 V. Meverell, (1562);Dyer, 216 b ; Bendl. 38 461 Brownings. Sabin, (1877)5 (ill. D. 511 ; 46 L. J. Ch. 728 . . . .292 19 232 487 572 37 243 47 TABLK OF CASES XVll Bru— Car. page Brunsdon v. Staines Local Bd., (1884) 1 Cab. & E. 272 117 Buccleuch (Duke) v. Metro])olitan Bd. of Works, (1872) L. R. 5 H. L. 418 ; 41 L. J. Ex. 137 ; 27 L. T. 1 . . . . 183, 207, 234, 262, 274, 276, 300 Buckley v. Crawford, [1893] 1 Q. B. 105 ; 62 L. J. Q. B. 87 ; 5 R. 125 ; 67 L. T. 681 ; 41 W. R. 239 ; 57 J. P. 89 ; 9 Times L. R. 85 . . . . 282, 448 Bullen V. King, (1877) 36 L. T. 732 . 573 Bullock v. Dodds, (1819)2 B.& Aid. 258; 20 R. R. 420 21 Burgess v. Morton, [1896] A. C. 136 ; 65 L. J. Q. B. 321 ; 73 L. T. 713 (H. L.) . 36 Burley v. Stephens, (1836) 1 M. & W. 156 ; 4 Dowl. 255, 770 ; 1 Gale, 374 ; 5 L. J. (N. S.) Ex. 92 ; 46 R. R. 297 •. . . 341 Burnard v. Wainwright, (1850) 1 L. M. & P. 455; 19 L. J. Q. B. 423; 87 R. R. 540 177, 178 Burnell v. Minot, (1820) 4 Moore, 340 22 Burrard v. Calisher, (1882) 51 L. J. Ch. 223 ; 45 L. T. 793 ; 30 W. R. 321 511, 515 Burrell v. Hind (or Green), [1915] 1 K. B. 391 ; 84 L. J. K. B. 192 ; 112 L. T. 105 149 V. Jones, (1819) 3 B. & Aid. 47 ; 22 R. R. 296 29 Burroughes v. Clarke, (1831) 1 Dowl. 48 ; 36 R. R. 814 487 Burslein v. Barns, (1823) 1 L. J. (O. S.) K. B. 155 64 Burt, hi re, (1826) 5 B. & C. 668 237 V. Wigley. See Burton v. Wigley. Burton v. Knight, (1705) 2 Vern. 514 ; 1 Eq. Cas. Abr. 50, pi. 6 . . .204 or Burt v. Wigley or Wigmore, (1835) 1 Bing. N. C. 665 ; 1 Scott, 610 ; 1 Hodges, 81; 4L. J. (N. S.)C. P. 176 452,453 Bury V. Dunn, (1843) 1 D. & L. 141 ; 7 Jur. 703; s.c. nom. Perry v. Dunn, 12 L. J. Q. B. 351 174 Busslield v. Bussfield, (1619) Cro. Jac. 577 219 Bustros V. Lenders, (1871) L. R. 6 C. P. 259 ; 40 L. J. C. P. 193 ; 24 L. T. 472 ; 19 W. R. 757 114, 116 V. White, (1876) 1 Q. B. D. 423 ; 45 L. J. Q. B. 642 ; 34 L. T. 865 ; 24 W. R. 721 (C. A.) 35 Butler, In re; Masters v. Butler, (1849) 13 Q. B. 341 ; 18 L. J. Q. B. 328 ; 13 Jur. 869 282, 284, 293 Byrne v. Brown, (1889) 22 Q. B. D. 657 ; 58 L. J. Q. B. 410 ; 60 L. T. 651 ; 37 W. R. 592 ; 5 Times L. R. 255 (C. A.) 553, 565 Cable -y. Rogers, (1625) 3 Bulst. 311 77 Caddell v. Smart, (1836) 4 Dowl. 760 582 Caerleon Tinplate Co. v. Hughes, (1891) 60 L. J. Q. B. 640 ; 65 L. T. 118 ; 7 Times L. R. 619 314,316,317 Caila V. Elgood, (1822) 2 D. & R. 193 ; 1 L. J. (O. S.) K. B. 33 ... 295 Calcraft v. Roebuck, (1790) 1 Ves. jun. 221 ; 1 R. R. 126 407 Caledonian Insurance Go. v. Gilmour, [1893] A. C. 85 ; 1 R. 110 ; 57 J. P. 228 ; 9 Times L. R. 146 Ill Rail. Co. V. Greenock & Wemyss Bay Rail. Co., (1874) L. R. 2 H. L. Sc. 347 110 V. Lockhart, (1860) 3 Macq. 808 ; 6 Jur. (N. S.) 1311 ; 3 L. T. 65 ; 8 W. R. 373 . . 64, 233, 343, 404, 423 V. Turcan, [1898] A. C. 256 ; 67 L. J. P. C. 69 . . . 463 Calvert v. Redfearn, (1834) 2 Dowl. 505 290 and Wyler, In re, (1899) 106 L. T. J. 288 150, 187 Cameron v. Cuddy, [1914] A. C. 651 ; 83 L. J. P. C. 70 ; 110 L. T. 89 (H. L.) 76, 124, 409 Camillo Eitzen and Jewson & Sons, In re, (1896) 40 Sol. J. 438 . . 360, 361 Cami^bell v. Twemlow, (1814) 1 Price, 81 384 Candler v. Fuller, (1738) Willes, 62 299, 473, 492 Cannings, Ltd., and Middlesex County Council, In re, [1907] 1 K. B. 51 ; 76 L. J. K. B. 44 ; 95 L. T. 766 ; 23 Times L. R. 43 (C. A.) 494 " Cap Blanco," The, [1913] P. 130 ; 83 L. J. P. 23 ; 109 L. T. 672 ; 29 T. L. R. 557 101, 321 Carbide Trading Co. v. Bingham, (1915) unreported 95 b XVlll TABLE OF CASES Car— Cit. page Cardigan (Eail) and Henderson, In re, (1852) 22 L. J. Q. B. 83 ; 1 B. C. C. 98 . 289 Cargey v. Aitclieson, (1823) 2 B. & C. 170; 3 D. & R. 433; 1 L. J. (0. S.) K. B. 252; 26 R. R. 298; affirmed in error, Aitclieson r. Cargey, q.v. . . 219, 223, 251 575 Carlisle. In re ; Clegg v. Clegg, (1890) 44 Cli. D. 200 ; 59 L. J. Ch. 520 ; 62 L. T. ' 821 ; 38 W. R. 638 106 Carpenter and Bristol Corporation, In re, [1907] 3 K. B. 617 : 76 L. J. K. B. 1145; 97 L. T. 461; 23 Times L. R. 654 144 Carr v. Dougherty, (1898) 67 L. J. Q. B. 371 ; 14 Times L. R. 237 . 518, 572, 577 V. Smith, (1843) 5 Q. B. 128 ; D. & M. 192 ; 7 Jur. 600 . . . . 440 Carter v. Carter, (1684) 1 Vern. 259 ; Eq. Ca. Ab. 49 (B), pi. 2 ... 82 V. Roberts, [1903] 2 Ch. 312 ; 72 L. J. Ch. 655 ; 89 L. T. 239 ; 51 W. R. 520 243 Cartwright v. Blackworth, (1832) 1 Dowl. 489 292 Carus-Wilson and Greene, In re, (1886) 18 Q. B. D. 7 ; 56 L. J. Q. B. 530 ; 55 L. T. 864 ; 35 W. R. 43 ; s.c. nom. Casterton Estates, In re, 3 Times L. R. 22 (C. A.) 52, 319, 320 Case i'. Willis, (1892) 8 Times L. R. 610 525,529,530 Cassell, In re, (1829) 9 B. & C. 624 ; 4 M. & R. 555 ; 7 L. J. (0. S.) K. B. 329 ; 33 R. R. 272 201, 329, 331 Casterton Estates, In re. See Carus-Wilson and Greene, In re. Caswell V. Groucott, (1862) 31 L. J. Ex. 361 ; 6 L. T. 290 . . . 172, 186 Cater v. Startut, (1650) Rolle Ab. Arb. H 7 ; Stv. 217 223 Catmur v. Knatchbull, (1797) 7 T. R. 448 ; 4 R.^R. 489 283 Gator V. Croydon Canal Co., (1841) 4 Y. & C. 405 ; 19 L. J. Ch. 89 . . . 467 Catt V. Wood, [1910] A. C. 404 ; 79 L. J. K. B. 782 ; 102 L. T. 614 ; 26 T. L. R. 455 (H. L.) 13 Caucasian Trading Corporation, Ex parte, [1896] 1 Q. B. 368 ; 65 L. J. Q. B. 346 ; 74 L. T. 47 ; 44 W. R. 439 ; 12 Times L. R. 226 (C. A.) . . . 261 Cavallotti v. Carruthers, (1916) 33 Times L. R. 101 145 Cawston and Bromley Urban District Council, In re, (1900) 64 J. P. 760 ; 17 Times L. R. 25 10 Cayhill v. Fitzgerald, (1743, 1744) 1 Wils. 28, 58 . . . . 26, 221, 461 Chamberlain, In re, (1840) 8 DoavI. 686 296 Chambers v. Goldthorpe and Restell v. Nye, [1901] 1 K. B. 624 ; 70 L. J. K. B. 482 ; 84 L. T. 444 ; 49 W. R. 401 ; 17 Times L. R. 304 (C. A.) . 196, 318, 320 Chanler v. Driver, (1700) 12 Mod. 317 290 Chapman v. Railway Passengers' Assurance Co., (1914) unreported . . . 128 - — r. Van Toll, (1857) 8 E. & B. 396 ; 27 L. J. Q. B. 1 ; 3 Jur. (X. S.) 1126; 6W. R. 17 526 Chappell V. North, [1891] 2 Q. B. 252 ; 60 L. J. Q. B. 554 ; 65 L. T. 23 ; 40 W. R. 16 ; 7 Times L. R. 563 89, 95 Charleton r. Spencer, (1842) 3 Q, B. 693 ; 12 L. J. Q. B. 23 ; 6 Jur. 1013 ; 61 R. R. 354 81 Charnlev v. Winstanley, (1804) 5 East, 266 19 Chatfield v. Sedgwick, (1879) 4 C. P. D. 459 ; 27 W. R. 790 (C. A.) . . . 575 Chepstow Electric Light, &c., Co. v. Chepstow Gas, &c., Co., [1905] 1 K. B. 198 ; 74 L. J. K. B. 28; 92 L. T. 27; 69 J. P. 72; 3 L. G. R. 49 ... 12 Cheslyn t'. Dalby, (1836) 2 Y. & C. 170 ; 47 R. R. 384 117 Chichester v. IM'Intyre, (1830) 1 Dow (N. S.), 460; 4 Bli. (N. S.) 78; 33 R. R. 19 278 Child V. Horden, (1614) 2 Bulst. 143 470 China Steam Navigation Co. v. Van Laun, (1905) 22 Times L. R. 26 . 260, 266 Ching V. Ching, (1801) 6 Ves. 281 3 Christie v. Noble, (1880) 14 Ch. D. 203, note (6) 50 V. Northern Counties, &c., Building Society, (1889) 43 Ch. D. 62 ; 59 L. J. Ch. 210 ; 61 L. T. 796 ; 38 W. R. 280 15 Church V. Roper, (1640) 1 Rep. in Chanc. 140 280 Churcher and Stringer, In re, (1831) 2 B. & Ad. 777 ; 9 L. J. (O. S.) K. B. 318 ; 36 R. R. 745 267 "City of Calcutta," The, (1898) 79 L. T. 517 ; 8 A.=p. M. C. 442 ; 15 Times L. R. 108 (C. A.) 27 TABLE OF CASES XIX Cla — Coo. PAGE Clapcottv. Davy, (1701) 1 Ld. Ravm. 611 444,476 Clapham v. Higham, (1822) 1 JBing. 87; 7 Moore, 403; 1 L. J. (0. S.) G P. 5 ........ . . 230 Clark V. Sonnenscliein, (1890) 25 Q. B. D. 226, 464 ; 59 L. J. Q. b'. 461, 561 ; 38 W. R. 743 (C. A ) 567, 568, 570 Clarke v. Baker, (1835) 1 H. & W. 215 282 V. Crofts, (1827) 4 Bing. 143 ; 12 Moore, .349 ; 5 L. J. (0. S.) C. P. 127 ; 29 R. R. 527 , . .65, 341 V. Owen, (1836) 2 H. & W. 324 ; 47 R. R. 833 571 V. Stocken, (1836) 5 Dowl. 32 ; 2 Hodges, 1 ; 2 Bing. (N. C.) 651 ; 3 Scott, 90 ; 5 L. J. (N. S.) C. P. 190 66 Cleesby v. Peese, (1812) 8 Moore, 524, n 246 Clegg V. Dearden, (1848) 12 Q. B. 576 ; 17 L. J. Q. B. 233 ; 76 R. R. 360 464 Clements v. Devon County Insurance Committee, [1918] 1 K. B. 94 ; 87 L. J. K. B. 203 ; 118 L. T. 89 ; 82 J. P. 71 (C. A.) . . . . 316 V. London & North Western Rail. Co., [1894] 2 Q. B. 482 ; 63 L. J. Q. B. 837 ; 9 R. 641 ; 70 L. T. 896 ; 42 W. R. 663 ; 58 J. P. 818 ; 10 Times L. R. 539 20 Cloake, In re, (1891) 61 L. J. Ch. 69 ; 65 L. T. 455 ; 40 W. R. 74 . . . 244 Clough V. County Live Stock Insurance Association, ,(1916) 85 L. J. K. B. 1185 ; 32 Times L. R. 526 89, 98, 104 Clout and Metropolitan District Rail. Co., In re, (1882) 46 L. T. 141 . . 41 Clow V. Harper, (1878) 3 Ex. D. 198 ; 47 L. J. E.v. 393 ; 38 L. T. 269 ; 26 W. R. 364 (C. A.) 520 Cock V. Gent, (1844) 13 M. & W. 364 ; 3 D. & L. 271 ; 15 L. J. Ex. 33 . 252, 558 Cockburn v. Newton, (1841) 2 M. & G. 899 ; 9 Dowl. 676 ; 3 Scott N. R. 261 ; 10 L. J. C. P. 207 ; 58 R. R. 598 83, 215, 577 Cocks V. Macclesfield, (1562) Dyer, 218b. . , 434, 439 Cockson V. Ogle, (1702) 1 Lutw. 550 227 Cohen v. Arthur, (1912) 56 Sol. J. 344 95 Cole V. Firth, (1879) 4 Ex. D. 301 ; 40 L. T. 851 579 Coles and Ravenshear, In re, [1907] 1 K. B. 1 ; 76 L. J. K. B. 27 ; 95 L. T. 750 ; 23 T. L. R. 32 (C. A.) 239 College of Christ and Martin, In re, (1877) 3 Q. B. D. 16 ; 46 L. J. Q. B. 591 ; 36 L. T. 537 ; 25 W. R. 637 (C. A.) 239 Collet V. Podwell, (1670) 2 Keb. 670 220 Collier v. Chadwick, (1885) 79 L. T. J. ?93 554 Collins V. Barrowfield United Oddfellows, [1915] S. C. 190; 52 Sc. L. R. .388 14 V. Collins, (1858) 26 Beav. 306 ; 28 L. J. Ch. 184 ; 5 Jur. (N. S.) .30 ; 7 W. R. 115 119, 320 V. Locke, (1879) 4 App. Cas. 674 ; 48 L. J. P. C. 68 ; 41 L. T. 292 ; 28 W. R. 189 110 V. Paddington Vestry, (1880) 5 Q. B. D. 368 ; 49 L. J. Q. B. 264, 612 ; 42 L. T. 573 ; 28 W. R. 588 (C. A.) 147, 148 V. Powell, (1788) 2 T. R. 756 464 Colls V. Home and Colonial Stores, [1904] A. C. 179; 73 L. J. Ch. 484; 90 L. T. 687 ; 53 W. R. .30 ; 20 Times L. R. 475 (H. L.) .... 505 Colman and Watson, In re, [1908] 1 K. B. 47 ; 77 L. J. K. B. 121 ; 97 L. T. 857 ; 24 Times L. R. 39 (C. A.) 264 Colwel V. Child, (1667) 1 Cas. in Chanc. 86 228 Commings v. Heard, (1869) L. R. 4 Q. B. 669 ; 10 B. & S. 606 ; 39 L. J. Q. B. 9 ; 20 L. T. 975 ; 18 W. R. 61 476 Compagnie du Senegal v. Woods or Smith, (1883) 53 L. J. Ch. 166 ; 49 L. T. 527; 32 W. R. Ill . 113, 114 Cook V. Catchpole, (1864) 34 L. J. Ch. 6Q ; 10 Jur. (N. S.) 1068 ; 11 L. T. 264 ; 13 W. R. 42 102 Cooke V. Newcastle & Gateshead Water Co., (1882) 10 Q. B. D. 332 ; 52 L. J. q. B. .337 516, 566 V. Whorwood, (1671) 2 Saund. 337 ; 2 Lev. 6 ; 2 Keb. 767 . . 448, 459 Coombs, In re, (1850) 4 Ex. 839 487, 488, 489 XX T^BLE OF CASES Coo — Dak. PAGE Cooraes v. Hayward, [1913] 1 K. B. 150; 82 L. J. K. B. 117; 107 L. T. 715 372, 373, 428 Cooper V. Johnson, (1819) 2 B. & A. 394 ; 20 R. R. 483 64 V. Langdon, (1842) 10 M. & W. 785 ; 12 L. J. Ex. 485 : 2 Dowl. (N. S.) 826 ; 60 R. R. 676 229 V. Shuttleworth, (1856) 25 L. J. Ex. 114 ... . 63, 117, 407 Coote V. Pooley, (1616) Rolle Ab. Arb. E 7 460 Cooth V. Jackson, (1801) 6 Ves. 11 ; 10 R. R. 190 72, 542 Cope V. Cope, (1885) 52 L. T. 607 . . 93, 316 Coppard, £'.o^x«r^e; Thornton, In re, (1833) 4 Deac. & Ch. 102 . . . 446,452 Coppin r. Hurnard, (1669) 2 Saund. 129 ; Sid. 428, 455 ; T. Raym. 187 . . 349 Corpe r. Glyn, (1832) 2 B. & Ad. 801 ; 1 L. J. (N. S.) K. B. 272 . 32, 283, 299 County Theatres & Hotels, Ltd. v. Knowles, [1902] 1 K. B. 480 ; 71 L.J. K. B. 351 ; 86 L. T. 132 (C. A.) 95 Couvela v. Volkart, (1888) 4 Times L. R. 209 363 Cowell r. Amman Aberdare Colliery Co., (1865) 6 B. & S. 333 ; 34 L. J. Q. B. 161 ; 11 Jur. (N. S.) 687 ; 12 L. T. 418 ; 13 W. R. 715 . . . 580 V. Betteley, (1834) 10 Bing. 432: 4 M. & Scott, 265; 2 Dowl. 780; 3L.J. (N. S.)C. P. 148 582 Cox V. Hutchinson, [1910] 1 Ch. 513 ; 79 L. J. Ch. 259 ; 102 L. T. 213 ; 26 Times L. R. 263 14 Craike, In re, (1839) 7 Dowl. 603 ; 2 W. W. & H. 52 288 Crampton v. Ridley, (1887) 20 Q. B. D. 48 ; 57 L. T. 809 ; 36 W. R. 554 . . 487 Craven v. Craven, (1817) 7 Taunt. 644 ; 1 Moore, 403 ; 18 R. R. 623 . 219, 383 Crawshayy. Collins, (1818)3 Swanst. 90 117,542 Creswick v. Harrison, (1850) 20 L. J. C. P. 56 ; 1 L. M. & P. 721 . . 262, 296 Crichton v. Dairy Myrtle Lodge of Free Gardeners, (1904) 6 F. 398 . 13, 14 Crighton and Law Car, &c.. Insurance Corporation, [1910] 2 K. B. 738 ; 80 L. J. K. B. 49 ; 103 L. T. 62 374 Crisp V. Bunbury, (1832) 8 Bing. 394 ; 1 M. & Sc. 646 ; 1 L. J. (X. S.) C. P. 112 ; 34 R. R. 747 110 Croasdell and Cammell, Laird & Co., In re, [1906] 2 K.B. 569 ; 75 L. J. K. B. 769 ; 95 L. T. 441 ; 54 W. R. 620 ; 22 Times L. R. 759 (C. A.) . . 255, 307 Crofts V. Harris, (1692) Carth. 187 219 Croomes or Croom v. Gore, (1856) 1 H. & N. 14 ; 25 L. J. Ex. 287 ; 2 Jur. (N. S.) 427 584 Cropper v. Smith, (1884) 26 Ch. D. 700 ; 53 L. J. Ch. 891 ; 51 L. T. 733 ; 33 "W. R. 60 375 Crosbie v. Holmes, (1846) 3 D. & L. 566 ; 15 L. J. Q. B. 125 ; 1 B. C. Rep. 20 : 10 Jur. 139 ; 71 R. R. 858 218, 579 Crostield & Sons, Ltd. v. Manchester Ship Canal Co. See Joseph Crosfield & Sons V. Manchester Ship Canal Co. Cross -?;. Cross, (1862) 13 C. B. (N. S.) 253 . . 172 V. Leeds Corporation, (1902) Hudson's Building Contracts (4th ed.), II. 329 39, 42 Crossley v. Lowestoft Water and Gas Co. See Colver-Bristow, In re. Crump V. Adney, (1833) 1 C. & M. 355; 2 L. J. (is'. S.) Ex. 150 ; 3 Tvr. 270; 38 R. R. 617 " . .45a Cudliff V. Walters, (1839) 2 Moo. & Rob. 232 ; 62 R. R. 796 . . . 329, 348 Cummins t: Birkett, (1858) 3 H. & X. 156 ; 27 L. J. Ex. 216 ; 4 Jur. (X. S.) 242 ; 6 W. R. 366 526 Cundall and Vavasour, In re, (1906) 95 L. T. 483 ; 22 T. L. R. 802 (C. A.) . 230 Curtis V. Barclay, (1826) 5 B. & C. 141 ; 7 D. & R. 539; 4 L. J. (0. S.) K. B. 82 26 . V. Potts, (1814) 3 M. & S. 145 63, 275 Cusack V. London & Xorth Western Rail. Co., [1891] 1 Q. B. 347 ; 60 L. J. Q. B. 208 ; 64 L. T. 45; 39 W. R. 244 ; 55 J. P. 341 ; 7 Times L. R. 229 (C. A.) 238 Daglish v. Barton, [1900] 1 Q. B. 284 : 68 L. J. Q. B. 1044; 81 L. T. 551 ; 48 W. R. 50 (C. A.) 570 Dakins v. Wagner, (1835) 3 Dowl. 535 339, 340 TABLE OF CASES XXI Dal— Die. TAGE Dale V. Mottram, (1733) 2 Barnard. 291 . 459 Calling f. Matchett, (1740) Willes, 215 288,411 Darbey v. Whitaker, (1857) 4 Drew. 134 542 Dare Valley Rail., In re, (1868) L. R. 6 Eq. 429 ; 37 L. J. Ch. 719 . . 166, 168, 185, 276 (1869) L. R. 4 Ch. 554 ; 17 W. R. 717 . 156, 159, 181 Darlington Waggon Co. v. Harding, [1891] 1 Q. B. 245 ; 60 L. J. Q. B. 110 ; 64 L. T. 409 ; 39 W. R. 167 ; 7 T. L. R. 106 (C. A.) . . 484, 497, 498, 532 Darnley (Earl) v. London, Chatham & Dover Rail. Co., (1865) L. R. 2 H. L. 43; 36 L. J. Ch. 404 ; 3 De G. J. & S. 24 ; 16 L. T. 217 ; 15 W. R. 817 159, 415 Daunt V. Lazard, (1858) 27 L. J. Ex. 399 90 Davenport v. Vickery, (1861) 9 W. R. 701 175,183 David V. Rees, [1904] 2 K. B. 435 ; 73 L. J. K. B. 729 ; 91 L. T. 244 ; 52 W. R. 579 ; 20 T. L. R. 577 (C. A.) 582 Davies v. Alliance Assurance Co., 7th March 1904 (C. A.), unreported . . 112 u. Chatham, &c., Building Society, (1890) 16 L. T. 680 . ... 15 V. Pratt, (1855) 16 C. B. 586 . 166,286 V. (1855) 17 C. B. 183 ; 25 L. J. C. P. 71 ; 4 W. R. 97 . 284, 444 V. Price, (1864) 6 L. T. (N. S.) 713 ; 10 W. R. 865 ; affirmed, (1866) 34 L. J. Q. B. 8 ; 11 L. T. (N. S.) 203 ; 12 W. R. 1009 . 132, 325, 416 u Ridge, (1800) 3 Esp. 101 ; 6 R. R. 817 31 V. South Staffordshire Rail. Co., (1851) 2 L. M. & P. 599 ; 21 L. J. (M. C.) 52; 15 Jur. 1133; 91 R. R. 903 367 Davis V. Galnioye, (1888) 39 Ch. D. 322 ; 58 L. J. Ch. 120 ; 60 L. T. 130 ; 37 W. R. 227 (C. A.) 291 V. (1889) 40 Ch. D. 355 ; 58 L. J. Ch. 338 ; 37 W. R. 399 . 292 V. Page, (1804) 9 Ves. 350 19 V. Starr, (1889) 41 Ch. D. 242 ; 58 L. J. Ch. 808 ; 60 L. T. 797 ; 37 W. R. 481 (C. A.) 96 V. Vass, (1812) 15 East, 97 290 V. Witney Urban District Council, (1899) 63 J. P. 279 ; 15 Times L. R. 275 (C. A.) 76, 493 Dawdy, In re, (1885) 15 Q. B. D. 426 ; 54 L. J. Q. B. 574 ; 53 L. T. 800 (C. A.) 318 Dawes v. Fountain, (1887) 3 T. L. R. 347 520 " Dawlish," The, [1910] P. 339 ; 79 L. J. P. Ill ; 103 L. T. 315 . . 101, 321 Dawney v. Vesey, (1090) 2 Vent. 249 227, 471, 474 Dawson v. Fitzgerald (Lord), (1876) 1 Ex. D. 257 ; 45 L. J. Ex. 893 ; 35 L. T. 220 ; 24 W. R. 773 (C. A.) 113 Day V. Bonnin, (1830) 3 Bing. N.' C. 219 ; 6 L. J. (N. S.) C. P. 1 ; 3 Scott, 597 ; 2 Hodges, 207 ; 43 R. R. 614 219 Deere «. Kirkhouse, (1850) 1 L. M. & P. 783 ; 20 L. J. Q. B. 195 .. . 571 Deerly v. Mazarine (Duchess), (1696) 1 Salk. 116 ; 1 Ld. Raym. 147 . . 18 Delagoa Bay Rail. Co. and Tancred, In re, (1889) 61 L. T. 343; 37 W. R. 578 (C. A.) 187, 255 Delverv. Barnes, (1807) 1 Taunt. 48 ; 9 R. R. 707 . . . . . .207 Den of Airlie (Steamship) Co. v. Mitsui, (1912) 106 L. T. 451 (C. A.) . 54, 60, 67, 131 Dennehy v. Jolly, (1874) 22 W. R. 449 93 Denton v. Legge, (1895) 72 L. T. 626 ; 13 R. 388 ; 11 T. L. R. 267 . . 98, 100 V. Strong, (1874) L. R. 9 Q. B. 117 ; 43 L. J. Q. B. 41 ; 30 L. T. 52 ; 22 W. R. 316 154, 340 De Ricci v. De Ricci, [1891] P. 378 ; 61 L. J. P. 17 4, 94 De Rosaz v. Anglo-Italian Bank, (1869) L. R. 4 Q. B. 462 ; 38 L. J. Q. B. 161 ; 17 W. R. 724 . ^^. 127 Deutsche Springstoff Actien Gesellschaft v. Briscoe, (1887) 20 Q. B. D. 177 ; 57 L. J. Q. B. 4 ; 36 W. R. 557 51 Dibben v. Anglesey (Manpiis), (1834) 2 C. & M. 722 ; 4 L. J. (N. S.) Ex. 278 ; 4 Tyr. 927 ; 10 Bing. 568 561 Dicas V. Jav, (1828) 5 Bing. 281 ; 2 M. & P. 448 ; 7 L. .7. (O. S.) C. P. 80 . . 561 V. — (1830) 6 Bing. 519 ; 4 M. & P. 285 ; 8 L. J. (O. S.) C. P. 210 . 464 XXU TABLE OF CASES Die — Dre. page Dickenson v. Allsop, (1845) 13 M. & W. 722 ; 2 D. & L. 657 ; 14 L. J. Ex. 136 297 Dickins v. Jarvis, (1826) 5 B. & C. 528 ; 8 D. & R. 285 . . . . 293, 561 Dilley v. Polliill, (1732) 2 Str. 923 267 Dimes v. Grand Junction Canal Co., (1852) 3 H. L. C. 759 ; 88 R. R. 330 38, 202 Dinimock v. Randall, (1889) 5 T. L. R. 358 528 Dimsdale v. Robertson, (1844) 2 Jo. & Lat. 58 ; 7 Ir. Eq. R. 536 ; 69 R. R. 239 154 Dinn v. Blake, (1875) L. R. 10 C. P. 388 ; 44 L. J. C. P. 276 ; 32 L. T. 489 164, 172, 173, 207 Dobson V. Groves, (1844) 6 Q. B. 637 ; 14 L. J. Q. B. 17 ; 66 R. R. 509 . 246, 390, 391, 405, 418, 422 Doddington v. Bailward, (1839) 7 Dowl. 640 ; 5 Bing. N. C. 591 ; 8 L. J. (N. S.) G. P. 331 ; 54 R. R. 871 . . 290, 352, 461, 469, 471 V. Hudson, (1823) 1 Bing. 384, 410 ; 2 L. J. (0. S.) C. P. 58 ; 25 R. R. 655 287, 396, 398 Doe V. Amey, (1841) 8 M. & W. 565 ; 10 L. J. Ex. 466 ; 1 Dowl. (N. S.) 23 . 296 — cl. Bankes v. Holmes, (1848) 12 Q. B. 951 184, 185 — d. Beaufort (Duke) v. Neeld, (1841) 3 M. & G. 271 ; 3 Scott N. R. 618 ; 5 Jur. 751 467 — d. Body V. Cox, (1846) 4 D. & L. 75 ; 15 L. J. Q. B. 317 ; 10 Jur. 982 . 218, 233, 540, 541, 560 — d. Bowman v. Lewis, (1844) 13 M. & W. 241 ; 2 D. & L. 667 ; 14 L. J. Ex. 198 ... 563 — d. Clarke v. Stillwell, (1838) 8 A. & E. 645 ; 3 K & P. 701 ; 1 W. W. & H. 532 ; 2 Jur. 591 285, 454 — d. Fi.sher v. Saunders, (1832) 3 B. & Ad. 783 ; 1 L. J. (X. S.) K. B. 273 . 542 — d. Harris v. Saunder, (1836) 5 A. & E. 664 8, 467 — d. Haxby v. Preston, (1846) 3 D. & L. 768 ; 1 B. C. Rep. 77 . . . 248 — d. Hickman v. Hickman, (1840) 1 Scott N. R. 398 ; 4 Jur. 746 . . . 290 — d. Lloyd V. Evans, (1827) 3 C. & P. 219 276 — d. Madkins v. Horner, (1838) 8 A. & E. 235 ; 7 L. J. (N. S.) Q. B. 164 ; 3 N. & P. 344 ; 1 W. W. & H. 348 ; 2 Jur. 417 ; 47 R. R. 573 . 541, 562 — d. Mayo v. Cannell, (1853) 22 L. J. Q. B. 321 ; 1 B. C. C. 161 ; 17 Jur. 347 184 — d. Morris v. Rosser, (1802) 3 East, 15 2, 466, 478 — d. Oxenden v. Cropper, (1839) 10 A. & E. 197 ; 8 L. J. (N. S.) Q. B. 241 ; 2 P. & D. 490 ; 3 Jur. 578 ; 50 R. R. 378 563 — d. Pain v. Grundy, (1823) 1 B. & C. 284 283 — d. Smith V. Webber, (1834) 1 A. & E. 119 ; 3 N. & M. 746 ; 3 L. J. (N. S.) K. B. 148 ; 40 R. R. 268 480 — d. Starling r. Hillen, (1843) 2 Dowl. (N. S.) 694 ; 12 L. J. Q. B. 166 . . 563 — d. Steer v. Bradley, (1841) 1 Dowl. (N. S.) 259 291 — d. Stimpson v. Emmerson. See Emmerson v. Stinipson. — d. Turnbull v. Brown, (1826) 5 B. & C. 384 ; 8 D. & R. 100 ; 29 R. R. 275 230, 285 — d. Williams v. Howell, (1850) 5 Ex. 299 ; 19 L. J. Ex. 232 ; 82 R. R. 675 288 V. Richardson, (1819) 8 Taunt. 697 ; 21 R. R. 513 . . . 561 Dole V. Dawson, (1673) 2 Keb. 878 ; Vent. 184 445 Doleman v. Ossett Corporation, [1912] 3 K. B. 257 ; 81 L. J. K. B. 1092 ; 107 L. T. 581 (C. A.) 50, 69, 75, 87, 98 Donkin and Leeds Canal, In re, (1893) 9 Times L. R. 192 . . . . 60, 108 Donlan v. Brett, (1835) 2 A. & E. 344 ; 4 L. J. (N. S.) K. B. 55 ; 4 X. & M. 854 ; 41 R. R. 453 558 Dossett V. Gingell, (1841) 2 M. & G. 870 ; 10 L. J. C. P. 183 ; 3 Scott N. R. 179 ; 58 R. R. 593 196, 486 Downs V. Cooper, (1841) 2 Q. B. 256 ; 11 L. J. Q. B. 2 ; 1 G. & D. 573 ; 6 Jur. 622 ; 57 R. R. 669 2 Dowse V. Coxe, (1825) 3 Bing. 20 ; 3 L. J. (O. S.) C. P. 127 ; 10 Moore, 272 ; 28 R. R. 565 65, 215, 433, 449 Doyley v. Burton, (1700) 1 Ld. Raym. 533 471 Drage v. Ibberson, (1798) 2 Esp. 643 6 Dresser v. Stansfield, (1845) 14 M. & W. 822 ; 15 L. J. Ex. 274 . . 269, 482 Drew -;;. Drew, (1855) 2 Macq. 1 38, 61, 69, 389, 390 r. Josolyne, (1888) 4 Times L. R. 717 583 TABLE OF CASES XXIU Dre — Ell. page Drew V. Woolcook, (1854) 24 L. J. Q. B. 22 ; 3 C. L. R. 78 . . . . 288 Dreyfus and Paul, In re, (1893) 9 Times L. R. 358 64, 138 Dublin Electric Supply Co. and Kingston U. D. C, In re, (1917) 51 Ir. L. T. 109 494. Duckworth v. Harrison, (1838) 4 M. & W. 432 ; 8 L. J. (N. S.) Ex. 41 ; 7 Dowl. 71 ; 1 H. & H. 349 ; 2 Jur. 1090 ; 51 R. R. 671 .... 561, 564 Dudley v. Mallery, (1576) 3 Leon. 62 458, 460 Dunkirk Colliery Co. v. Lever, (1878) 9 Ch. D. 20 ; 39 L. T. 239 ; 26 W. R. 841 143,509,510,512,514,516 Dunlop Co. V. New Garage, &c., Co., [1913] 2 K. B. 207 ; 82 L. J. K. B. 605 ; 108 L. T. 361 ; 29 Times L. R. 344 (C. A.) 507 Dunn V. Murray, (1829) 9 B. & C. 780 ; 7 L. J. (0. S.) K. B. 390 ; 4 M. & R. 571 ; 33 R. R. 327 464 V. Warlters, (1842) 9 M. & W. 293 ; 11 L. J. Ex. 188 ; 1 Dowl. (N. S.) 626 ; 60 R. R. 733 219, 242 Duport V. Wildgoose, (1615) 2 Bulst. 260 227 Durham County Permanent Benefit Building Society, In re, (1871) L. R. 7 Ch. 45 ; 41 L. J. Ch. 164 (C. A.) 35, 322 Dutton V. Morrison, (1810) 17 Ves. 193 ; 1 Rose, 213 ; 11 R. R. 56 . . . 23 Dyke v. Cannell, (1883) 11 Q. B. D. 180 ; 47 L. T. 174 ; 31 W. R. 747 . 548, 555, 566, 568 Eads v. Williams, (1854) 24 L. J. Ch. 531 ; 4 De G. M. & G. 674 ; 1 Jur. (N. S.) 193 (C. A.) 279, 384, 400, 401, 410 Eardley v. Otley, (1818) 2 Chit. 42 ; 23 R. R. 740 178, 231 V. Steer, (1835) 4 Dowl. 423 ; 4 L. J. (N. S.) Ex. 293 ; 5 TyrJ 1071 ; 2 C. M. & R. 327 ; 9 R. R. 654 409, 410, 444 Earl V. Stocker, (1691) 2 Vern. 251 38, 203, 398 East and West India Docks Co. v. Kirk, (1887) 12 App. Cas. 738 ; 57 L. J. Q. B. 295 ; 58 L. T. 158 53, 54, 57, 58, 59, 304, 380, 381 London Union v. Metropolitan Rail. Co., (1869) L. R. 4 Ex. 309 ; 38 L. J. Ex. 225 262 Eastern Counties Rail. Co. v. Eastern Union Rail. Co., (1863) 3 De G. J. & S. 610 401 V. Robertson, (1843) 1 D. & L. 498 ; 6 M. & G. 38 ; 6 Scott N. R. 802 388 Union Rail. Co. v. Eastern Counties Rail. Co., (1853) 2 E. & B. 530 ; 22 L. J. Q. B. 371 448 Eastham v. Tyler, (1847) 2 Bail Court Rep. 136 377 Eccles V. Blackburn Corporation, (1861) 30 L. J. Ex. 358 583 Eckersley v. Mersey Docks & Harbour Bd., [1894] 2 Q. B. 667 ; 9 R. 827 ; 71 L. T. 308 (C. A.) 41 Edgcombe v. Rodd, (1804) 5 East, 294 ; 1 Smith, 515 ; 7 R. R. 700 . . . 7 Edgell V. Dallimore, (1826) 3 Bing. 634 ; 4 L. J. (O. S.) C. P. 193 ; 11 Moore, 541 448 Edinburgh and District Water Trustees v. Clippens Oil Co., (1902) 87 L. T. 275 207 Magistrates V. Lownie, (1903) 5 F. 711 42 Edmunds t;. Cox, (1784) 3 Doug. 406 64 Edwards, Ex parte; Smith, In re, (1886) 3 Morrell's Bank Rep. 179 . . 65, 301 V. Aberayron Mutual Ship Insurance, (1876) 1 Q. B. D. 563 ; 34 L. T. 457 110 V Carter, [1893] A. C. 360 ; 63 L. J. Ch. 100 ; 1 R. 218 ; 69 L. T. 153 ; 58 J. P. 4 20 V. Davies, (1854) 23 L. J. Q. B. 278 ; 2 C. L. R. 681 ; 18 Jur. 448 ; 2 W. R. 464 159 V. Great Western Rail. Co., (1851) 11 C. B. 588 ; 21 L. J. C. P. 72 . 450 V. (1852) 12 C. B. 419 .... 571,583 Elletson-i;. Cummins, (1741) 2 Stra. 1144 76 Elliot and South Devon Rail. Co., In re, (1848) 2 De G. & S. 17; 12 Jur. 445 38,40 Elliott V. Royal Exchange Assurance Co., (1867) L. R. 2 Ex. 237 ; 36 L. J. Ex. 129; 16 L. T. 399; 15 W. R. 907 110 XXIV TABLE OF CASES Ell— Fer. page Ellis V. Aniison, (1821) 5 B. & A. 47 ; 2 D. & R. 161 ; 1 L. J. (0. S.) K, B. 24 ; 25 R. R. 314 . . .467 V. Desilva, (1881) 6 Q. B. D. 521 ; 50 L. J. Q. B. 328 ; 44 L. T. 209 ; 29 W. R. 493 (C. A.) 167, 561, 578 V. Giles, (1836) 5 Dowl. 255 ; 2 H. & W. 329 291 V. Hopper, (1858) 3 H. & N. 766 ; 28 L. J. Ex. 1 ; 4 Jur. (K. S.) 1025 ; 7 W. R. 15 36 V. Saltau, (1808) 4 C. & P. 327, n 275 Ellison r. Ackiovd, (1850) 20 L. J. Q. B. 193 ; 1 L. M. & P. 806 ; 90 R. R. 761" 413,487 i;. Bray, (1864) 9 L. T. (N. S.) 730 405 Elsom V. Rolfe, (1805) 2 Smith, 459 215 Elvin V. Drummond, (1827) 1 M. & P. 88 ; 4 Bing. 415 ; 6 L. J. (0. S.) C. P. 31 . 35 Ehvorthj-v. Bird, (1825) 2 Sim. & Stu. 372; 9 Moore, 430; 13 Price, 222; 2 Bing. 258 ; 3 L. J. (0. S.) C. P. 260 ; Tamlyn, 38 7 Emerson and Secretary of State for "War, In re, (1893) 9 Times L. I!. 470 . 62 Emery v. Emery, (1699) Cro. Eliz. 726 223 V. Wase, (1801) 5 Ves. 846 ; (1803) 8 Ves. 505 ; 7 R. R. 109 . . . 400 EmetandOgden, (1831) 7 Bing. 258; 9L. J. (0. S.)C. P. 83 . . . . 239 Emmersonr. Stimpson, (1847)9 L. T. (0. S.) 199 207,209 Emmett v. Heves, (1887) 36 W. R. 237 574 England v. Davison, (1841) 9 Dowl. 1052 234. 294 Enoch and Zaretsky, Bock & Co., In re, [1910] 1 K. B. 327 ; 79 L. J. K. B. 363 ; 101 L. T. 801 (C. A.) . . . 195, 246, 304, 359, 361, 377, 380, 388, 389, 406 Erskine r. Wallace, (1863) 12 W. R. 134 183 Eiiropean and American Steam Shipping Co. v. Croskey, (1860) 8 C. B. (N. S.) 397 ; 29 L. J. C. P. 155 ; 6 Jur. ^X. S.) 896 ; 8 W. R. 236 . . . 61, 331 Evans V. Cogan, (1727)2 P. W. 450 19 Davies and Carrick, In re, (1870) 22 L. T. 507 ; 18 W. R. 723 . . 320 and Howell, In re, (1842) 4 M. & G. 767 ; 5 Scott N. R. 240 . . . 237 V. Prosser, (1865) 34 L. J. Q. B. 256 ; 11 Jur. (X. S.) 182 ; 11 L. T. 718 ; 13 W. R. 351 298 V. Rees, (1839) 10 A. & E. 151 ; 2 P. & D. 626 ; 50 R. R. 366 . . 479, 481 V. Senor, (1814) 5 Taunt. 662 537 V. Thomson, (1804) 5 East, 189 ; 1 Smith, 380 . . . . .72 Everard v. Paterson, (1816) 6 Taunt. 625 ; 2 Marsh. 304 : 16 R. R. 701 . . 434 Everest v. Ritchie, (1862) 7 H. & X. 698 ; 31 L. J. Ex. 350 . . . .558 Eynde v. Gould, (1882) 9 Q. B. D. 335 ; 51 L. J. Q. B. 425 ; 31 W. R. 49 . 292 Eyre and Leicester Corporation, In re, [1892] 1 Q. B. 136 ; 61 L. J. Q. B. 438 ; 65 L. T. 733 ; 40 ^Y. R. 203 ; 56 J. P. 228 ; 8 Times L. R. 136 (C. A.) . 119, 126, 127, 326 Falkixgham v. Victorian Rail. Commrs., [1900] A. C. 425 ; 69 L. J. P. C. 89 ; 82 L. T. 506 179, 208, 229, 388 Farc^nharson v. Morgan, [1894] 1 Q. B. 552 ; 63 L. J. Q. B. 474 ; 9 R. 202 ; 70 L. T. 152 ; 42 W. R. 306 ; 58 J. P. 495 ; 10 Times L. R. 240 (C. A.) 2.30, 539 Farrar r. Cooper, (1890) 44 Ch. D. 323 ; 59 L. J. Ch. 506 ; 62 L. T. 528 ; 38 W. R. 410 ; 6 T. L. R. 241 68, 133 V. Bates, (1647) Al. 4 476 v. Billing, (1818) 2 B. & A. 171 466 Faviell v. Eastern Counties Rail. Co., (1848) 2 Ex. 344 : 17 L. J. Ex. 223, 297 ; 6 D. & L. 54 ; 76 R. R. 615 . . . . . 94, 229, 384, 533, 534 Fearon and Flinn, In re, (1869) L. R. 5 C. P. 34 . . . . 166, 491, 575 Fenner and Lord, In re, [1897] 1 Q. B. 667 ; 66 L. J. Q. B. 498 ; 76 L. T. 376 ; 45 W. R. 486 ; 14 Times L. R. 450 (C. A.) 247 Ferguson v. Xorman, (1837) 4 Bing. X. C. 52 ; 8 L. J. (X. S.) C. P. 3 ; 5 Scott, 304 ; 1 Jur. 986 142 V. Davison, (1882) 8 Q. B. D. 470 ; 51 L. J. Q. B. 266 ; 46 L. T. 191 : 30 W. R. 462 (C. A.) 580 Fernley v. Branson, (1851) 20 L. J. Q. B. 178 ; 15 Jur. 354 . . . 196, 489 Ferrer v. Oven, (1827) 7 B. & C. 427 ; 6 L. .L (0. S.) K. B. 28 ; 1 M. & R. 222 ; 31 R. R. 239 267 TABLE OF CASES XXV Fet— Gal. Fetherstone v. Cooper, (1803) 9 Ves. 67 Filmer v. Delber, (1811) 3 Taunt. 486 ; 1 Chit. 193 ; 12 K. R. 688 Finlayson v. M'Leod, (1818) 1 B. & Aid. 663 ; 19 R. R. 411 Firth and Howlett, In re, (1850) 1 L. M. & P. 63 ; 19 L. J. Q. B. 169 V. Midland Rail. Co., (1875) L. R. 20 Eq. 100 ; 44 L. J. Ch. 313 ; L. T. 219 ; 23 W. R. 509 V. Robinson, (1823) 1 B. & C. 227 ; 1 L. J. (O. S.) K. B. 115 . Fisher -u. Pimbley, (1809) 11 East, 188 Fitton's Estate, In re; Hardy v. Fitton, (1893) 63 L. J. Ch. 164 ; 8 R. 99 : L. T. 397 ; 42 W. R. 281 Fitzsimmons v. Mostyn (Lord), [1904] A. C. 46 ; 73 L. J. K. 15. 72 ; 89 L 616 ; 52 W. R. 337 ; 20 T. L. R. 134 (H. L.) Flag Lane Chapel v. Sunderland Corporation, (1859) 5 Jur. (N. S.) 894 . Flynu V. Robertson, (1869) L. R. 4 C. P. 324 ; 38 L. J. C. P. 240 ; 17 W. R. 767 Ford V. Jones, (1832) 3 B. & Ad. 248 ; 1 L. J. (N. S.) K. B. 104 ; 37 R. R. 424 PAGE 376, 390, 407 . 535 . 575 . 412 32 . 542 . 573 82, 453 70 . 514 T. 493 413 173 24 L. T. . 574 57, 59, 104 . 112 491 Ford's Hotel Co. v. Bartlett, [1896] A. C. 1 ; 65 L. J. Q. B. 166 ; 73 L. T. 665 Forden v. Whittle, (1907) unreported Forrest v. Todd, (1897) 76 L. T. 500 Forshawv. De Wette, (1871) L. R. 6 Ex. 200; 40 L. J. E.x. 153 397 ; 19 W. R. 777 Forwood V. AVatney, (1880) 49 L. J. Q. B. 447 .... Foster v. Hastings Corporation, (1903) 87 L. T. 736 . Fowler v. Monmouthshire Rail. & Canal Co., (1879) 4 Q. B. D. 334 ; 48 L. J Q. B. 457 ; 41 L. T. 159 ; 27 W. R. 659 . Fox V. Railway Passengers' Assurance Co., (1885) 54 L. .J. Q. B. 505 672 ; 1 T. L. R. 383 (C. A.) V. Smith, (1765) 2 Wils. 267 Fraeme v. Pinneger, (1774) 1 Cowp. 23 .... . Frankenberg and The Security Co., In re, (1894) 10 Times L. R. 393 Eraser v. Ehrensperger, (1883) 12 Q. B. D. 310 ; 53 L. J. Q. B. 73 646 ; 32 W. R. 240 (C. A.) V. Eraser, [1904] 1 K. B. 56 ; 73 L. J. K. B. 6 ; 52 W. R. 147 ; 20 Times L. R. 54 (C. A.) . . . . V. [1905] 1 K. B. 368 ; 74 L. J. K. B. 183 ; 92 L. T. 341 ; 53 W. R. 310 ; 20 Times L. R. 186 (C. A.) . Fraunce's case, (1610) 8 Rep., at p. 92 b Fray v. Voules, (1859) 1 E. & E. 839 ; 28 L. J. Q. B. 232 ; 7 W. R R. R. 483 Freeman v. Bernard, (1698) 1 Ld. Raym. 247 ; 1 Salk. 69 . 331, 332 V. Chester R. D. C, [1911] 1 K. B. 783 ; 80 L. J. K. B. 695 368 (C. A.) V. Drew, (1588) 2 Leon. 181 V. Sheen, (1614) Cro. Jac. 339 ; 2 Bulst. 93 . Frere & Co. and North Shore Mill Co., In re, [1905] 1 K. B. 366 K. B. 208 ; 92 L. T. 194 ; 53 W. R. 242 ; 21 T. L. R. 188 (C. A Freston, In re, (1883) 11 Q. B. D. 545 ; 52 L. J. Q. B. 545 ; 49 L. '. W. R. 804 (C. A.) Fryer v. Sturt, (1855) 16 C. B. 218 ; 24 L. J. C. P. 154 . Fuller V. Fenwick, (1846) 3 C. B. 705 ; 16 L. J. C. P. 79 ; 10 Jur. 105 467 Furlong v. Thornigold, (1702) 12 Mod. 533 .... Purser v. Prowd, (1618) Cro. Jac. 423 Gable v. Mossee, (1610) 1 Bulst. 44 . . 470 Gaby v. Wilts & Berks Canal Co., (1815) 3 M. & S. 580 210 Gaffney v. Killen, (1861) 12 Jr. C. L. R. App. xxv 66 Galatti v. Wakefield, (1878) 4 Ex. D. 249 ; 48 L. J. Ex. 70 ; 40 L. T. 30 (C. A.) 574 Gallop and The Central Queensland Meat Export Co., In re, (1890) 25 Q. B. D. 230 ; 59 L. J. Q. B. 460 ; 62 L. T. 834 ; 38 W. R. 621 . . . . 237 95 317 568 )2 L. T. 49 L. T. 98 576 237 62 51 531 531 268 446 ; 117 . 535 224, 227, 438, 469, 475, 476 104 L. T. 97 474 472 74 L.J 66, 307 290 ; 31 . 283 . 571 71 R. R. 169, 207, 229 . 232, 299 . 220, 471 XXVI TABLE OF CASES Gal — Gor. page Galloway c. Keyworth, (1854) 15 C. B. 228 ; 23 L. J. C. P. 218 ; 2 C. L. R. 860' 489, 583, 584 Gartside v. Gartside, (1796) 3 Anst. 735 204 Gascoyne v. Edwards, (1826) 1 Y. Sc J. 19 ; 30 R. R. 756 476 Gatlitt'e v. Dunn, (1738) Barnes, 55 434 Gaw V. British Law Fire Insurance Co., [1908] 1 Ir. R. 245 (C. A.) . . . 112 Geeves v. Gorton, (1846) 15 M. & W. 186 ; 15 L. J. Ex. 169 ; 3 D. & L. 481 ; 10 Jur. 272 581 General Billposting Co. v. Atkinson, [1908] 1 Cli. 537 ; 77 L. J. Ch. 411 : 98 L. T. 482 ; 24 T. L. R. 285 (C. A.) ; affirmed, 25 T. L. E. 178 (H. L.) . 94 Genne v. Tinker, (1681) 3 Lev. 24 25 George and Goldsmiths, &c.. Insurance Association, In re, [1898] 2 Q. B. 136; 67 L. J. Q. B. 807 ; 78 L. T. 813 146 V. LoiLsley, (1806) 8 East, 13 ; 9 R. R. 366 444 Gerard (Lord) and London & Xorth Western Rail. Co., In re, [1895] 1 Q. B. 459; 64 L. J. Q. B. 260; 14 R. 201 ; 72 L. T. 142; 43 W. R. 374; 11 T. L. R. 170 (C. A.) 54, 55, 59 Gibbon v. Parker, (1862) 5 L. T. 584 141, 176 Gifford and Bury Town Council, In re, (1888) 20 Q. B. D. 368 ; 57 L. J. Q. B. 181 ; 58 L. T. 522; 36 W. R. 468; 52 J. P. 119 . . . 323,328 V. Giitbrd, (1801) Forrest, 80, 109 290, 293 Gilbert and Wright, Hi re, (1904) 68 J. P. 143 ; 20 Times L. R. 164 . 175, 489, 490 Gill V. Russell, (1672) Freem. 62, 139 20 Gillett V. Thornton, (1875) L. R. 19 Eq. 599 ; 44 L. J. Ch. 398 ; 23 W. R. 437 93, 316 Gillon and Mersey & Clyde Navigation Co., In re, (1832) 3 B. & Ad. 493 . . 446 Ginder v. Curtis, (1863) 14 C. B. (N. S.) 723 398 Gisborne v. Hart, (1839) 5 M. & W. 50 ; 8 L. J. (X. S.) Ex. 197 ; 7 Dowl. 402 ; 3 Jur. 536 ; 52 R. R. 624 561 Gladwin r. Chilcote, (1841) 9 Dowl. 550 ; 5 Jur. 749 ; 61 R. R. 825. . 396, 398 Glamorganshire Banking Co., In re. See Morgan's case. Glasbrook v. Owen, (1890) 7 Times L. R. 62 547, 569 Glasgow & South Western Rail. Co. and London & Xorth Western Rail. Co., In re, (1888) 52 J. P. 215 232 Glaysher, Ex iMrte, (1864) 3 H. & C. 442; 34 L. J. Ex. 41; 10 Jur. (X. S.) 1208; 11 L. T. 638; 13 W. R. 165 51 Glazebrook v. Davis, (1826) 5 B. & C. 534 ; 4 L. J. (0. S.) K. B. 321 ; 8 D. & R. 295 271, 383 Glover v. Barrie, (1699) 1 Salk. 71 222, 447 Goddard v. Mansfield, (1850) 19 L. J. Q. B. 305 ; 1 L. M. & P. 25 ; 87 R. R. 522 ... ■ 222,453 V. Smith, (1865) 13 L. T. 159 254 Godfrey v. Wade, (1822) 6 Moore, 488 ; 23 R. R. 629 542 Goldsmiths' Co. r. West Metropolitan Rail. Co., [1904] 1 K. B. 1 ; 72 L. J. K. B. 931 ; 89 L. T. 428 ; 52 W. R. 21 ; 20 T. L. R. 7 (C. A.) , . . . 336 Golightly V. Jellicoe, (1769) 4 T. R. 147, n 465 Gollings and Tradesmen's Friendly Society, In re, (1891) 64 L. T. 775 . . 236 Gonty and i\Ianchester, Sheffield & Lincolnshire Rail. Co., In re, (1896) 2 Q. B. 439 ; 65 L. J. Q. B. 625 ; 75 L. T. 239 ; 45 W. R. 83 ; 12 T. L. R. 617, 620 (C. A.) 148 Goodall r. Ray, (1835) 4 Dowl. 1; 1 H. it W. 333 254, 570 Goodman v. Sayers, (1820) 2 J. & W. 249 ; 22 R. R. 112 . . . 251, 410, 411 Goodson V. Brooke, (1815) 4 Camp. 163 26 v. Forbes, (181.5) 6 Taunt. 171; 1 Marsh. 525 .... 72,442 Goodwin v. Budden, (1880) 42 L. T. 536 526 Goodwins, Jardine & Co. v. Brand, (1905) 7 F. 995 315 Goodyear v. Simpson, (1845) 15 M. & W. 16 ; 15 L. J. Ex. 191 . . . . 440 Gordon f. Mitchell, (1819) 3 Moore, 241 ; 21 R. R. 728 .... 211,246 Gore V. Baker, (1855) 4 E. & B. 470 ; 24 L. J. Q. B. 94 ; 1 Jur. (X. S.) 425 173, 563 Gort (Viscount) v. Rowney, (1886) 17 Q. B. D. 625 ; 55 L. J. Q. B. 541 ; 54 L. T. 817 ; 34 W. R. 696 ; 2 T. L. R. 782 (C. A.) 580 TABLE OF CASES XXVll Grou— Hag. PAGE Gould V. SLaffordshire Potteries Waterworks Co., (1850) 5 Ex. 214 ; 19 L. J. Ex. 281; 1 L. M. & P. 264 ; 6 Rail. Cas. 568 ; 14 Jur. 528 ; 82 R. R. 638 . 217 Goutard v. Carr, (1883) 13 Q. B. D. 598, n. ; 53 L. J. Q. B. 55 ; 32 W. R. 242 (C. A.) 578 Govett V. Richmond, (1834) 7 Sim. 1 ; 40 R. R. 56 480 Gower v. Tobitt, (1890) 39 W. R. 193 ; 7 Times L. R. 182 .. . 547, 569 Graham v. Darcey, (1848) 6 C. B. 537 ; 18 L. J. C. P. 61 ; 6 D. & L. 385 ; 77 R. R. 390 . 286, 297 Gravatt v. Attwood, (1850) 1 L. M. & P. 392 ; 19 L. J. Q. B. 474 . . . 541 Gray and Boustead, In re, (1892) 8 Times L. R. 703 306, 464 V. Ashburton, [1917] A. C. 26 ; 86 L. J. K. B. 224 ; 115 L. T. 729 (H. L.) 491 V. Gray, (1618) Cro. Jac. 525 ; Godb. 275 472 V. (1619) Rolle Ab. Arb. Q 2, p. 263 224 V. (1619) Rolle Ab. Arb. E 6 458 V. Gwennap, (1822) 1 B. & A. 106 ; 18 R. R. 442 219 V. Leaf, (1840) 8 Dowl. 654 242, 243 V. Wicker, (1613) Rolle Ab. Arb. B 3, p. 242 ; C 8, p. 245 . . .449 V. Wilson, (1865) 35 L. J. C. P. 123 ; L. R. 1 C. P. 50 ; 14 W. R. 584 . 401 Great Britain Mutual Life Assurance Society, In re, (1881) 19 Ch. D. 39 ; 51 L. J. Ch. 7 ; 45 L. T. 554 ; 30 W. R. 145 ; affirmed, (1882) 20 Ch. D. 351 ; 51 L. J. Ch. 506; 46L. T. 616; 30W. R. 374(C. A.) . , 555 North of England Clarence Hartlepool Junction Rail. Co. v. Clarence Rail. Co., (1844) 1 Coll. 507 433 Northern & City Rail. Co., In re. See Long v. Great Northern, &c., Rail. Co. Western Rail. Co. v. Midland Rail. Co. See R. v. Midland Rail. Co. and Postmaster-General, In re, (1903) 19 Times L. R. 636 150, 179 V. Phillips, [1908] A. C. 101 ; 77 L. J. K. B. 306 ; 98 L. T. 319; 24 T. L. R. 293(H. L.) 110 Green, and Balfour, In re, (1890) 63 L. T. 97, 325 ; 6 Times L. R. 395, 445 (C. A.) 78, 167, 382, 448 V. Howell, [1910] 1 Ch. 495 ; 79 L. J. Ch. 549 ; 102 L. T. 347 (C. A.) 101, 104 V. Pole, (1830) 6 Bing. 443 ; 8 L. J. (0. S.) C. P. 149 ; 4 M. & P. 198 : 31 R. R. 463 46 V. Waring, (1764) 1 W. Black. 475 446, 451 Greenwood ^•. Brownhill, (1881) 44 L. T. 47 (C. A.) . . . . 170,171,180 V. Misdale, (1825) M'Clel. & Y. 276 46 and Titterington, In re, (1839) 9 A. & E. 699 ; 8 L. J. (N. S.) Q. B. 182 ; 48 R. R. 648 333, 424 Gregg V. Eraser, [1906] 2 Ir. R. 545 (C. A.) 74,111 Gregory V. Howard, (1800) 3 Esp. 113 276 Gregson and Armstrong, In re, (1894) 70 L. T. 106 ; 10 R. 408 . 254, 360, 392 Greig v. Talbot, (1823) 2 B. & C. 179 ; 3 D. & R. 446 72 Grenfell v. Edgcombe, (1845) 7 Q. B. 661; 14 L. J. Q. B. 322 ; 9 Jur. 709 . 228, 242 255 Grey u Tolme, (1914)31 T. L. R. 137 '67 Gribble v. Buchanan, (1856) 18 C. B. 691 ; 26 L. J. C. P. 24 . . . . 579 Grove v. Cox, (1808) 1 Taunt. 165 573 Guadiano v. Brown, (1856) 4 W. R. 456 ; 2 Jur. (N. S.) 358 ... . 240 Gueret v. Audouy, (1893) 62 L. J. Q. B. 633 (C. A.) 464 Guilford v. Mills, (1666) 2 Keb. 1 283 Gumm V. Hallett, (1872) L. R. 14 Eq, 555 ; 41 L. J. Ch. 514 ; 26 L. T. 468 . 131 Gunton v. Nurse, (1821) 5 Moore, 259 ; 2 B. & B. 447 .. . 47, 482, 538 Haber.shon v. Troby, (1800) 3 Esp. 38 ; Peake, Ad. C. 181 ... . 276 Hack V. London Provident Building Society, (1883) 23 Ch. D. 103 ; 52 L. J. Ch. 541 ; 48 L. T. 247 ; 31 W. R. 392 (C. A.) 15 Haddan and Roupell, Znrfi, (1861)9 C. B. (N. S.) 683 .... 51,126 Hagger v. Baker, (1845) 14 M. & W. 9 ; 14 L. J. Ex. 227 ; 2 D. & L. 856 213, 384 XXVIU TABLE OF CASES Hag— Har, page Haygett v. Welsh, (1826) 1 Sim. 134 46 Haigh V. Haigh, (1861) 31 L. J. Ch. 420 ; 3 De G. F. & J. 157 ; 8 Jur. (N. S.) 983 ; 5 L. T. 507 199, 358, 378, 394, 398, 417 and London & Xortli Western and Great Western Railways, J?i re, [1896] 1 Q. B. 649; 65 L. J. Q. B. 511 ; 74 L. T. 655 ; 44 W. R. 618 41, 206, 235 Halden v. Glasscock, (1826) 5 B. & C. 390 ; 8 D. & R. 151 . . . . 153 Hales V. Taylor, (1726) 2 Stra. 695 286 Hall r. Alderson, (1825) 2 Bing. 476 463 and Anderton, hi re, (1840) 8 Dowl. 326 396, 399 v. Hardy, (1733) 3 P. W. 187 277 and Hinds, In re, (1841) 2 M. & G. 847 ; 10 L. J. C. P. 210; 3 Scott X. R. 250 . . . . 168, 212, 213, 246, 262, 272, 384, 385, 387 V. Lawrence, (1792) 4 T. R. 589 ; 2 R. R. 470 423 V. Phillips, (1832) 9 Bing. 89 ; 1 L. J. (X. S.) C. P. 169 . . . . 541 V. Rouse, (1838) 4 M. & W. 24 ; 7 L. J. (N. S.) Ex. 214 ; 6 Dowl. 656 ; 51 R. R. 449 153 Hallett V. Hallett, (1839) 5 M. & W. 25 ; 7 Dowl. 389 ; 8 L. J. (X. S.) Ex. 174 : 2 H. & H. 3 ; 3 Jur. 727 ; 52 R. R. 617 230, 342, 419 Halliday v. Hamilton's Trustees, (1903) 5 F. 800 42 Hamilton v. Bankin, (1850) 3 De G. & S. 782 ; 19 L. J. Ch. 307 ; 15 Jur. 70 28, 395 i;. Mackie, (1889) 5 Times L. R. 677 80,314,315 V. Merchants' Marine Lisurance Co., (1889) 58 L. J. Q. B. 544 . . 523 Hamlyn v. Betteley, (1880) 6 Q. B. D. 63 ; 50 L. J. Q. B. 1 ; 43 L. T. 790 ; 29 W. R. 275 (C. A.) 416, 417 & Co. V. Talisker Distillery, [1894] A. C. 202 ; 6 R. 188 ; 71 L. T. 1 ; 58 J. P. 540 ; 10 T. L. R. 479 323 Hammond and Waterton, Li re, (1890) 62 L. T. 808 ; 6 T. L. R. 302 . . 318 Hampden v. Wallis, (1884) 26 Ch. D. 746 ; 54 L. J. Ch. 83 ; 50 L. T. 515 ; 32 W. R. 808 (C. A.) 182, 243, 292 Hancock v. Reid, (1851) 21 L. J. Q. B. 78 ; 2 L. M. & P. 584 ; 15 Jur. 1036 . 28 Hanson v. Boothman, (1810) 13 East, 22 468, 471 V. Liversedge, (1690) Carth. 156 ; 2 Vent. 242 435 Hanwell Urban District Council and Smith, In re, (1904) 68 J. P. 496 . . 10 Harcourt v. Ramsbottom, (1820) 1 J. & W. 505 396, 397 Harding, E.cparte, (1854) 5 De G. M. & G. 367 301 V. Forshaw, (1836) 1 M. & W. 415 ; 4 Dowl. 761 ; 1 T. & G. 472 ; 46 R. R. 333 83, 215, 557 V. Watts, (1812) 15 East, 556 329 Hardres v. Proud, (1655) Sty. 465 487 Hare v. Fleav, (1851) 11 C. B. 472 ; 20 L. J. C. P. 249 ; 2 L. M. & P. 392 ; 15 Jur. 1058 ; 87 R. R. 729 228, 289 and Milne, In re, (1839) 6 Bing. X. C. 158 ; 8 Dowl. 71 ; 8 Scott, 367 ; 54 R. R. 756 65, 246, 406 Harland v. Xewcastle Corporation, (1869) L. R. 5 Q. B. 47 ; 39 L. J. Q. B. 67 ; 18W. R. 165 173,175,581 Harlow v. Read, (1845) 3 D. & L. 203 ; 14 L. J. C. P. 239 ; 1 C. B. 733 ; 9 Jur. 642 445 Harper v. Abrahams, (1819) 4 Moore, 3 ; 21 R. R. 732 541 Harries i-. Thomas, (1836) 2 M. & W. 32 ; 6 L. J. (X. S.) Ex. 58 ; 46 R. R. 495 541 Harris v. Curnow, (1789) 2 Chitt. 594 462 V. Mitchell, (1704) 2 Vern. 485 330 Harrison v. Creswick, (1852) 13 C. B. 399 ; 21 L. J. C. P. 113 ; 16 Jur. 315 217, 218 V. Jackson, (1797) 7 T. R. 207 ; 4 R. R. 422 28 V. Wright, (1845) 13 M. & W. 816 ; 14 L. J. Ex. 196 ; 2 D. & L. 695 35, 322 Harrowby v. Leicester Corporation, (1915) 85 L. J. Ch. 150 ; 114 L. T. 129 75, 112 Hart V. Duke, (1862) 32 L. J. Q. B. 55 ; 9 Jur. (X. S.) 119 ; 11 W. R. 75 53, 58, 62 V. Hart, (1881) 18 Ch. D. 670 ; 50 L. J. Ch. 697 ; 45 L. T. 13 ; 30 W. R. 8 5, 91 Hartley v. Barlow, (1819) 1 Chitt. 229 289 TABLE OF CASES XXIX Har— Hil. page Harvey v. Shelton, (1844) 7 Beav. 455 ; 13 L. J. Ch. 466 ; 64 R. R. 116 . 193, 361, 389, 392, 394, 422 Hassell v. Stanley, [1896] 1 Cli. 607 ; 65 L. J. Ch. 494 ; 74 L. T. 375 ; 44 W. R. 405 582 Hastie, Ex jMrte. See Batson, Li re. Hastings, E.c 2^arte. See Wilson. In re. Hatton V. Rovle, (1858) 3 H. & K. 500 ; 27 L. J. Ex. 486 23 Hawke v. Brear, (1885) 14 Q. B. D. 841 ; 54 L. J. Q. B. 315 ; 52 L. T. 432 ; 33 W. R. 613 ; 1 T. L. R. 390 561, 578, 579 Hawkins v. Benton, (1845) 2 D. & L. 465 ; 14 L. J. Q. B. 9, 177 ; 9 Jur. 110 297, 298, 559 V. (1846) 8 Q. B. 479 ; 15 L. J. Q. B. 139 ; 10 Jur. 95 . 538, 559 V. Colclough, (1757) 1 Burr. 274 ; 2 Ld. Ken. 553 . . . .218 V. Rigby, (1860) 8 C. B. (N. S.) 271 ; 29 L. J. C. P. 228 ; 6 Jur. (N. S.) 1208 ; 2 L. T. 243 485, 583 Hawksworth v. Brammall, (1839) 5 Mv. & C. 281 ; 48 R. R. 311 . . 215, 343 Hawkyard v. Stocks or Greenwood, (1845) 2 D. c^ L. 936 ; 14 L. J. Q. B. 236 ; 9 Jur. 451 ; 69 R. R. 885 234, 245 Hawley and North Staffordshire Rail. Co., In re, (1848) 2 De G. & S. 33 ; 12 Jur. 389; 79 R.R. 113 132,414 Haycocks v. Mulholland, [1904] 1 K. B. 145 ; 73 L. J. K. B. 125 ; 52 W. R. 400 531 Hay ward v. Moss, (1885) 49 J. P. 248 573 V. Mutual Reserve Association, [1891] 2 Q. B. 236 ; 65 L. T. 491 ; 39 W. R. 624 ; 7 T. L. R. 575 . . . 138,428,550,553,565 V. PhUlips, (1837) 6 A. & E. 119 ; 6 L. J. (N. S.) K. B. 110 ; 1 N. & P. 288 ; 1 Jur. 985 ; 45 R. R. 421 244, 252, 557, 558 Haywood v. Marsh. See I\Iarsh, In re. Heatherington or Hetherington v. Robinson, (1839) 7 Dowl. 192 ; 4 M. & W. 608 ; 8 L. J. (X. S.) Ex. 148 ; 51 R. R. 737 286, 408 Hellyer and Snook, In re, (1818) 2 Chitt. 265 253 Hemming or Henning v. Parker, (1866) 13 L. T. 795 ; 14 W. R. 328 . . 399 Hemsworth v. Brian, (1844) 8 Scott N. R. 842 ; 7 M. & G. 1009 ; 14 L. J. C. P. 36 238, 240 V. (1845) 1 C. B. 131 ; 2T>.& L. 844 ; 14 L. J. C. P. 134 ; 68 R. R. 689 65, 289 Henderson v. Williamson, .(1714) 1 Strange, 116 433 Henfree v. Bromlev, (1805) 6 East, 309 ; 2 Smith, 400 ; 8 R. R. 491 . 149, 237 Henley v. Soper, (1828) 8 B. & C. 16 ; 2 M. & R. 153 ; 6 L. J. (0. S.) K. B. 210 27 Henning v. Parker. See Hemming v. Parker. Henry v. Kirwan, (1859) 9 Ir. C. L. R. 459 2, 466 Henty v. Rally. See Huntig v. Railing. Hetherington v. Robinson. See Heatherington v. Robinson. Hetley i\ Hetley, (1789). Kyd on Awards, 101 395 Hewitt V. Hewitt, (1841) 1 Q. B. 110; 4 P. &D. 598; 55 R. R. 219 . . 225 V. Penny, (1753) Say. 99 330 and Portsmouth Waterworks Co., In re, (1862) 10 W. R. 780 . . 396 Hewlett V. Laycock, (1827) 2 C. & P. 574 ; 31 R. R. 695 . . 198, 199, 379, 418 Heyworth v. Hutchinson, (1867) L. R. 2 Q. B. 447 ; 36 L. J. Q. B. 270 . . 448 Hick, In re, (1819) 8 Taunt. 694 ; 21 R. R. 511 . . . . 337, 342, 389, 419 Hickman v. Kent, [1915] 1 Ch. 881 ; 84 L. J. Ch. 688 ; 113 L. T. 159 . . 317 V. Roberts, [1913] A. C. 229 ; 82 L. J. K. B. 678 (H. L.) . 75, 106, 110 Hicks V. Richardson, (1797) 1 B. & P. 93 ; 4 R. R. 768 . . . . 439, 488 Hide V. Petit, (1678) 1 Ch. Cas. 185 279 Higgins V. Street, (1856) 25 L. J. Ex. 285 293 V. Willes, (1828) 3 M. & R. 382 225, 287 Higham and Jessop, In re, (1840) 9 Dowl. 203 ; 1 Woll. P. C. 28 ; 61 R. R. 808 336, 338 Hill V. Ball, (1828) 2 Bli. (N. S.) 1 ; 1 Dow (N. S.) 164 . . . . 463, 477 V. Slocombe, tl841) 9 Dowl. 339 ; 5 Jur. 120 ; 61 R. R. 813 .. . 443 V. Townsend, (1810) 3 Taunt. 45 ; 12 R. R. 595 294 XXX TABLE OF CASES Hil— How. PAGE Hilton V. Hopwood, (1814) 1 Marsh. 66 290 Hinton v. Mead, (1855) 24 L. J. Ex. 140 ; 3 C. L. R. 325 ; 1 Jur. (N. S.) 46 ; 3 W. R. 161 245 Hipkiss V. Fellows, (1909) 101 L. T. 701 292 Hirseh v. Im Tlnirn, (1858) 27 L. J. C. P. 254 ; 4 C. B. (N. S.) 559 ; 4 Jur. (N. S.) 587 ; 6 W. R. 605 102 Hobbsr. Ferrars, (1840)8 Dowl. 779; 4 Jur. 825 236,239 Hobdell V. Miller, (1839) 6 Biiig. N. C. 292 ; 8 Scott, 165 ... 449, 558 Hobsoii V. Stewart, (1847) 4 D. & L. 589 ; 16 L. J. Q. B. 145 ; 1 B. C. Rep. 288 ; 75 R. R. 883 560, 562 Hocli V. Boor, (1880) 49 L. J. Q. B. 665 ; 43 L. T. 425 (C. A.) . . 10.3, 528, 530 Hocken v. Grenfell, (1837) 4 Bing. X. C. 103 247, 254 Hodgkinson v. Fernie, (1857) 3 C. B. (N. S.) 189 ; 27 L. J. C. P. 66 ; 3 Jur. (N. S.) 818 ; 6 W. R. 181 163, 169, 207, 208, 209, 463 Hodgsonr. Bell, (1890)24Q. B. D. 302; 62 L. T. 481 .... 44,162 V. Railway Passengers' Assurance Co., (1881) 9 Q. B. D. 188 . . 98 Hodsden v. Harridge, (1670) 2 Saund. 62 a, n. 5 265 Hodson, Li re, (1838) 7 Dowl. 569 ; s.c. nom. Hodson v. Drewrv, 1 W. W. & H. 540 ; 2 Jur. 1088 ; 54 R. R. 862 . . . ". . 29, 331, 424 V. Railway Passengers' Assurance Co., [1904] 2 K. B. 833 ; 73 L. J. K. B. 1001 ; 91 L. T. 648 (C. A.) 97 Hogg, In re ; Parkin, Ex jtarte, (1897) 14 Times L. R. 210 . . . . 14 Hogge V. Burgess, (1858) 3 H. & N. 293 ; 27 L. J. Ex. 318 ; 4 Jur. (N. S.) 668 ; 6 W. R. 504 163, 168, 207, 210, 521 Hoggins V. Gordon, (1842) 3 Q. B. 466 ; 11 L. J. Q. B. 286 ; 2 G. & D. 656 ; 6 Jur. 895 ; 61 R. R. 257 487 Hohenzollern Actien Gesellscliaft and Contract Corporation. In re, (1886) 54 L. T. 596 ; 2 T. L. R. 470 (C. A.) . . . . . . . .79 Holcroft V. Manby, (1844) 2 D. & L. 319 ; 7 M. & G. 843 297 Holdsworth v. Wilson, (1863) 4 B. & S. 1; 32 L. J. Q. B. 289; 10 Jur. (X. S.) 171 ; 8 L. T. 434 223, 267, 328 Hole V. Chard Union, [1894] 1 Ch. 293 ; 73 L. J. Ch. 469 ; 70 L. T. 52 (C. A.) 507 Holgate V. Killick, (1861) 7 H. & N. 418 ; 31 L. J. Ex. 7 . . . 168, 170, 211 Holland v. Brooks, (1795) 6 T. R. 161 ; 3 R. R. 142 284 V. Judd, (1858) 3 C. B. (N. S). 826 ; 6 W. R. 248 . . . . . 562 Steamship Co. and Bristol Steam Navigation Co., In re, (1906)95 L. T. 769 ; 23 T. L. R. 59 (C. A.) 143, 148, 307 Holliday and Waketield Corporation, In re, (1888) 20 Q. B. D. 699 ; 57 L. J. Q. B. 620 ; 59 L. T. 248 ; 52 J. P. 644 (C. A.) 148, 485 140, 176 . 237 114; . 263 . 211 . 416 167, 448 . 457 Holloway v. Francis, (1861) 9 C. B. (N. S.) 559 and Monte, In re, (1839) 8 Dowl. 138 .... Holmes and Formby, In re, [1895] 1 Q. B. 174 ; 64 L. J. Q. B. 391 ; 15 R 71 L. T. 842 ; 43 W. R. 205 ; 11 T. L. R. 91 . V. Higgins, (1822) 1 B. & C. 74 ; 1 L. J. (0. S.) K. B. 47 . Holt V. Meddowcroft, (1846) 4 M. & S. 467 . . . ■ . Hooper v. Balfour, (1890) 62 L. T. 646 V. (1825) M'Clel. & Y. 509 ; 29 R. R. 834 . ' V. Hooper, (1860) 1 Sw. & Tr. 602 ; 29 L. J. P. & M. 59 ; 30 ib. 49 . 5 Hopcraft v. Fermor, (1823) 8 Moore, 424 ; 1 Bing. 378 ; 2 L. J. (0. S.) C. P. 29 ; 25 R. R. 654 282 V. Hickman, (1824) 2 S. & S. 130 ; 3 L. J. (0. S.) Ch. 43 . 226, 400, 401 Hopkins v. Davies, (1835) 1 C. M. & R. 846 ; 4 L. J. (X. S.) Ex. 113 ; 5 Tvrw. 506 ; 3 Dowl. 508 ^ , 448 Hopley V. Granger, (1805) 1 B. & P. X. R. 256 295 Hopper, In re, (1867) L. R. 2 Q. B. 367 ; 36 L. J. Q. B. 97 ; 8 B. & S. 100 ; 15 L. T. 566 ; 15 W. R. 443 . . . . 52, 199, 202, 205, 319, 320, 327, 330 Home V. Blake, (1710) cited in Baxter v. Burfield, 2 Str. 1267 . . . .446 Horton v. Benson, (1675) Freem. 204 77 Houghton V. Bankart, (1861) 3 De G. F. & J. 16 537 Houlditch V. Houlditch, (1818) 1 Swanst. 58 ; 1 Wils. Ch. 17 . . . . 283 Howden v. Powell Duffryn Steam Coal Co., [1912] S. C. 920 ; 49 Sc. L. R. 605 91 Howett V. Clements, (1845) 1 C. B. 128 ; 68 R. R. 687 .. . 166, 183, 188 TABLE OF CASES XXXI Hud — Jam. page Huddersfield Corporation and Jaconib, In re, (1874) L. R. 10 Ch. 92 ; 44 L. J. Ch. 96 ; 31 L. T. 466 ; 23 W. R. 100 237 Hughes, ^xjoar^e, (1822)5 B. & Aid. 482 29 V. D'Eyncourt and Lay ton, (1864) 4 B. & S. 820 ; 33 L. J. M. C. 89 ; 3 N. R. 420 ; 10 Jur. (N. S.) 513 ; 9 L. T. 712 ; 12 W. R. 408 . . . 15 Humphreys v. Pearce, (1852) 7 Ex. 696 ; 22 L. J. Ex. 120 ... . 561 Hungate v. Mease, (1600) Cro. Eliz. 885 ; 5 Rep. 103 ; F. Moore, 642 . . 437 Hunt V. Hunt, (1836) 5 Dowl. 442 ; W. W. & D. 62 ; 1 Jur. 135 ; 49 R. R. 717 218, 560, 561 Hunter v. Rice, (1812) 15 East, 100 ; 13 R. R. 394 2, 466 Huntig V. Railing, (1840) 8 Dowl. 879; Hurl. & W. 2; s.c. nom. Henty v. Rally, 4 Jur. 1091 3, 207 Huntley, In re, (1853) 1 E. & B. 787 ; 22 L. J. Q. B. 277 ; 17 Jur. 571 . . 189 Hurlbatt v. Barnett & Co., [1893] 1 Q. B. 77 ; 62 L. J. Q. B. 1 ; 4 R. 103 ; 67 L. T. 818 ; 41 W. R. 33 ; 9 T. L. R. 23 (C. A.) . 44, 162, 503, 520, 521, 525 Hurley, In re, (1832) 1 Hay & Jo. 160 ... . ... 20 Hurst, In re, (1835) 1 H. & W. 275 ; 47 R. R. 813 78 V. Bambridge, (1635) RoUe Ab. Arb. Q 7 225 Hutcheson v. Eaton, (1884) 13 Q. B. D. 861 ; 51 L. T. 846 (C. A.) . . . 79 Hutchinson v. Blackwell, (1832) 8 Bing. 331 ; 1 L. J. (N. S.) C. P. 98 ; 1 M. & Scott, 513 ; 1 Dowl. 267 557 V. Shepperton, (1849) 13 Q. B. 955 ; 13 Jur. 1098 . 76, 211, 212, 213 Hyde v. Beardsley, (1886) 18 Q. B. D. 244 ; 56 L. J. Q. B. 81; 57 L. T. 802 ; 35 \V. R. 140 580 Ilford Gas Co. and Ilford Urban District Council, In re, (1903) 88 L. T. 236 ; 67 J. P. 239 ; 1 L. G. R. 213 182 Imhof V. Sutton, (1867) L. R. 2 C. P. 406 ; 36 L. J. C. P. 130 ; 15 L. T. 578 . 527 Imperial Gas Light & Coke Co. v. Broadbent, (1859) 7 H. L. C. 600 ; 29 L. J. Ch. 377 ; 5 Jur. (N. S.) 1319 455, 548 Loan Co. v. Stone, [1892] 1 Q. B. 599 ; 61 L. J. Q. B. 449 ; 66 L. T. 556 21 Ingram V. Bernard, (1701) 1 Ld. Raym. 636 274 V. Milnes, (1807) 8 East, 445 219, 269, 299, 462, 482 V. Webb, (1639) 1 Rolle Rep. 362 445 Inland Revenue Commissioners v. Hunter, [1914] 3 K. B. 423 ; 84 L. J. K. B. 135; 110 L. T. 825, 975; 30 W.R. 363 (C. A.) 151 Inman v. Hill, (1838) 4 M. & W. 7 ; 7 L. J. Ex. 201 ; 6 Dowl. 666 ; 2 Jur. 470 289 Insull V. Moojen, (1857) 3 C. B. (N. S.) 359 ; 27 L. J. C. P. 75 ; 6 W. R. 126 . 174 Irvine v. Elnon, (1806) 8 East, 54 149 Isaacs V. Chapman, (1916) 32 T. L. R. 183 80 Isitt V. Railway Passengers' Assurance Co., (1889) 22 Q. B. D. 504 ; 58 L. J. Q. B. 191 ; 60 L. T. 297 ; 37 W. R. 477 144 Ives & Barker v. Willans, [1894] 2 Ch. 478 ; 63 L. J. Ch. 521 ; 7 R. 243 ; 70 L. T. 674 ; 42 W. R. 483 ; 10 T. L. R. 439 (C. A.) 42, 90, 95, 96, 106, 108, 109 Jackson v. Barry Rail. Co., [1893] 1 Ch. 238 ; 2 R. 207 ; 68 L. T. 472 9 T. L. R. 90 (C. A.) V. Clarke, (1824) M'Clel. 72 ; 13 Price, 208 V. (1825) M'Clel. & Y. 200 V. Henderson, Craig & Co., (1916) 115 L. T. 36 V. Yabsley, (1822) 5 B. & A. 848 . Jacomb v. Turner, '[1892] 1 Q. B. 47 ; 8 T. L. R. 21 . Jager v. Tolme, [1916] 1 K. B. 939 ; 85 L. J. K. B. 1116 T. L. R. 291 (C. A.) . James & Sons, In re, [1903] W. N. 99 V. Attwood, (1839) 7 Scott, 843 V. Crane, (1846) 3 D. & L. 668 ; 15 M. & W. 379 ; 15 L. J. Ex. 232 . 556 V. James, (1889) 23 Q. B. D. 12 ; 58 L. J. Q. B. 300, 424 ; 61 L. T. 310 ; 37 W. R. 600 ; 5 T. L. R. 383 (C. A.) . . . . 56, 58, 59, 60, 304, 404 40, 66, 206 . 290 . 234, 265, 286 . 493 . 561 . 467 114 L. T. 647; 32 88, 200, 363 . 494 56, 333 XXXll TABLE OF CASES Jam— Kel. page Jamiesou and Binns, In re, (1836) 4 A. & E. 945 ; 5 L. J. (X. S.) K. B. 187 ; 43 R. R. 527 333 Jebb V. M'Kievnaii, (1829) 1 Moo. & M. 340 ; 31 R. R. 737 ... 72, 440 Jeffries v. Jeffries, (1907) 51 Sol. J. 572 292 Jenkins, In re, (1841) 1 Dowl. (N. S.) 276 ; 11 L. J. Q. B. 71; 61 R. R. 837 . 412 V. Betham, (1855) 15 C. B. 168 ; 24 L. J. C. P. 94 ; 3 C. L. R. 373 ; 1 Jur. (N. S.) 237 ; 3 W. R. 283 319 V. Bushby, [1891] 1 Ch. 484 ; 60 L. J. Ch. 254 ; 64 L. T. 213 ; 39 W R 321 (C A.) ........... 522 Jephson v. Hawkins, (1841) 2 M. & G. 366 ; 2 Scott k R. 605 . . . . 140 Jewell V. Christie, (1866) L. R. 2 C. P. 296 ; 36 L. J. C. P. 168 ; 15 L. T. 580 219 Johnson and Collie, In re, (1854) 24 L. J. Q. B. 63 ; 3 W. R. 76 . . 158, 351 V. Durant, (1830) 4 C. & P. 327 267, 275 r. (1831) 2 B. & Ad. 925 ; 1 L. J. (X. S.) K. B. 47 ; 36 R. R. 791 271 r. Hodgson, (1806) 8 East, 38 8, 467 V. Latham, (1850) 1 L. M. & P. 348 ; 19 L. J. Q. B. 329 ; 87 R. R. 528 222, 457 V. (1851) 2 L. M. & P. 205 ; 20 L. J. Q. B. 236 ; 90 R. R. 771 162, 181, 187, 189, 585 V. Ogilby, (1734) 3 P. W. 277 7 i: Wilson, (1741) ^Villes, 248 2, 216, 454, 466 Johnston v. Cheape, (1817) 5 Dow, 247 ; 16 R. R. 114 . 41, 233, 373, 381, 383 Jones V. Corry, (1839) 5 Bing. N. C. 187 ; 8 L. J. (N. S.) C. P. 89 ; 7 Dowl. 299 ; 7 Scott, 106 ; 3 Jur. 149 ; 50 R. R. 652 . . . . 213, 214 V. Jones, (1880) 14 Ch. D. 593 ; 43 L. T. 76 ; 29 W. R. 65 (C. A.) . . 463 V. Powell, (1838) 6 Dowl. 483 ; 1 W. W. & H. 60 ; 49 R. R. 728 . 21, 229, 230, 242, 421 V. Sinies, (1890) 43 Ch. D. 607 ; 59 L. J. Ch. 351; 62 L. T. 447 . . 507 i: Turnbull, (1837) 2 M. & W. 601 ; 5 Dowl. 591 ; M. & H. 106 ; 6 L. J. (N. S.) Ex. 166 582 V. Victoria Graving Dock Co., (1877) 2 Q. B. D. 314 ; 46 L. J. Q. B. 219 ; 36 L. T. 347 ; 25 W. R. 501 (C. A.) 147,305 Joplin V. Postlethwaite, (1890) 61 L. T. 629 (C. A.) 99, 451 Joseph and Webster, In re, (1830) 1 Russ. & M. 496 283, 450 Joseph Crosfield & Sons v. Manchester Ship Canal Co., [1904] 2 Ch. 123 : 73 L. J. K. B. 345 ; 90 L. T. 557 ; 52 W. R. 635 ; 68 J. P. 421 ; 20 Times L. R. 371 (C. A.) ; [1905] A. C. 421 ; 74 L. J. Ch. 637 ; 93 L. T. 141 ; 21 T. L. R. 689 110 JoAvett V. Neath R. D. C, (1916) 80 J. P. Jo. 207 320 Joyce V. Haines, (1666) Hard. 399 82, 438 Jiingheim v. Fonkelmann, [1909] 2 K. B. 948 ; 78 L. J. K. B. 1132 ; 101 L. T. 398 ; 25 T. L. R. 819 203, 424 Jupp V. Cooper, (1879) 5 C. P. D. 26 ; 28 W. R. 324 292 V. Grayson, (1834) 1 C. M. & R. 523 ; 3 Dowl. 199 ; 5 Tvr. 150 ; 4 L. J. Ex. 8 1 ... 3 Jureidini v. National British, &c., Co., [1915] A. C. 499 ; 84 L. J. K. B. 640 ; 112 L. T. 531 ; 31 T. L. R. 132 (H. L.) 75, 92, 110, 113 Juxon V. Thornhil], (1629) Cro. Car. 132 ........ 470 Kearsley v. Philips, (1883) 10 Q. B. D. 465 ; 52 L. J. Q. B. 269 ; 48 L. T. 468 ; 31 W. R. 467 (C. A.) 372, 428 Keen v. Batshore, (1794) 1 Esp. 194 477 Keighlev Maxsted & Co. and Durant & Co., In re, [1893] 1 Q. B. 405 ; 62 L. J. Q. B. 105 ; 4 R. 136 ; 68 L. T. 61 ; 41 W. R. 437 ; 7 Asp. M. C. 268 ; 9 T. L. R. 107 (C. A.) . . . . 35,44,124,163,172,178,231,380,463 Keir v. Leeman, (1844) 6 Q. B. 308 ; 13 L. J. Q. B. 259 ; 8 Jur. 824 ; 66 R. R. 392 ; affirmed, (1846) 9 Q. B. 371 ; 15 L. J. Q. B. 360 ; 10 Jur. 742 ; 72 R. R. 298 6, 7 Kelk v. Pearson, (1871) L. R. 6 Ch. 809 ; 24 L. T. 890 ; 19 W. R. 665 . , 505 TABLE OF CASES XXXlll Kel— Kyi. page Kellettv. Stockport Corporation, (1906) 70 J. P. 154 35 V. Tranmere Local Bd., (1864) 34 L. J. Q. B. 87 ; 11 L. T. 457 ; 13 W. R. 207 ............ 351 Kemp V. Rose, (1858) 1 Gift". 258 .* .' ! 3*8, 202 Kendrick v. Davies, (1837) 5 Dowl. 693 ; W. W. & D. 376 ; 49 R. R. 723 . 234, 577 Kennard v. Harris, (1824) 2 B. & C. 801 ; 4 D. & R. 272 251 Kennedy, Ltd. v. Barrow-in-Furness Corp(jration, (1909) Hudson's Building Contracts, 4th ed., II. 411 52,92 Kenrick v. Phillips, (1841) 7 M. & W. 415 ; 10 L. J. Ex. 226 ; 9 Dowl. 308 . 559 Kent V. Elstob, (1802) 3 East, 18 ; 6 R. R. 520 211 County Council and Sandgate Local Bd., In re, [1895] 2 Q. B. 43; 64 L. J. Q. B. 502 ; 15 R. 452 ; 43 W. R. 601 ; 59 J. P. 456 ; 11 T. L. R. 421 306 Kenworthy v. Queen Insurance Co., (1892) 8 T. L. R. 211 ; 9 T. L. R. 181 112, 205 and Sutton, In re, (1893) unreported . . . . . .112 Kenyon v. Grayson, (1804) 2 Smith, 61 289, 473 Keogh V. Leeman. See Keir v. Leeman. Kerr v. Jeston, (1842) 1 Dowl. (N. S.) 538 ; 6 Jur. 1110 ; 63 R. R. 840 . 338, 339, 340 Kilburn v. Kilburn, (1845) 13 M. & W. 671 ; 14 L. J. Ex. 160 ; 2 D. & L. 633 ; 67 R. R. 780 218, 562 Kimberley v. Dick, (1871) L. R. 13 Eq. 1 ; 41 L. J. Ch. 38 ; 25 L. T. 476 ; 20 W. R. 49 38 King and Duveen, In re, [1913] 2 K. B. 32 ; 82 L. J. K. B. 733 . . 3, 200, 209, 386 V. Bowen, (1841) 8 M. & W. 625 445 V. Bower. See Bower, In re. V. Joseph, (1814) 5 Taunt. 452 46, 284, 295 V. Packwood, (1834) 2 DovvL 570 290 V. Pha'nix Assurance Co., [1910] 2 K. B. 666 ; 80 L. J. K. B. 44 ; 103 L. T. 53 (C. A.) 90 Kinge v. Fines, (1662) Sid. 59 ; Vin. Ab. Arb. H 18 220 Kingsleyv. Young, (1811) 17 Ves. 468; 18 Ves. 207 467 Kingwell v. Elliott, (1839) 7 Dowl. 423 ; 8 L. J. (N. S.) C. P. 241 ; 49 R. R. 485 246, 419 Kirchner v. Gruban, [1909] 1 Ch. 413 ; 78 L. J. Ch. 117 ; 99 L. T. 932 . 101, 321 Kirk V. Unwin, (1851) 6 Ex. 908 ; 20 L. J. Ex. 345 ; 2 L. M. & P. 519 . 340, 460 Kirkleatham Local Bd. and Stockton & Middlesborough Water Bd., In re, [1893] 1 Q. B. D. 375 ; 62 L. J. Q. B. 180 ; 4 R. 194 ; 67 L. T. 811 ; 57 J. P. 421 ; 9 T. L. R. 131 (C. A.) 146, 187 Kirkwood v. Webster, (1878) 9 Ch. D. 239 ; 47 L. J. Ch. 880 ; 26 W. R. 812 . 584 Kitchen v. Turnbull, (1871) 20 W. R. 253 98, 100 Kitchin, In re. See Young, Ex parte. Kitts V. Moore, [1895] 1 Q. B. 253 ; 64 L. J. Q. B. 152 ; 12 R. 43 ; 71 L. T. 676 ; 43 W. R. 84 (C. A.) 66 & Murray, &c., Ltd. and Caton & Co., 7/1 ?'e, [1917] W. N. 4 . . .410 Knight -i;. Burton, (1705) 6 Mod. 231 2,77 V. Coales, (1887) 19 Q. B. D. 296 ; 56 L. J. Q. B. 486 ; 35 W. R. 679 ; 3 T. L. R. 659 (C. A.) 520, 525, 526, 530 V. Stone, (1628) W. Jones Rep. 164 ; s.c. 7iom. Stone v. Knight, Latch, 207 ; Noy, 93 20 and Tabernacle Building Society, J?i re, (1891)39 W. R. 507 . . 311 and Tabernacle Building Society, In re, [1892] 2 Q. B. 613 ; 62 L. J. Q, B. 33 ; 4 R. 67 ; 67 L. T. 403 ; 41 W. R. 35 ; 57 J. P. 229 ; 8 T. L. R. 783 (C. A.) 142, 146, 201, 307, 308, 484 Knott V. Long, (1736) 2 Str. 1025 222 Knowles v. Bolton Corporation, [1900] 2 Q. B. 253 ; 69 L. J. Q. B. 481 ; 82 L. T. 229 ; 48 W. R. 433 ; 16 T. L. R. 283 (C. A.) . . 154, 156, 157, 159, 353 V. Holden, (1855) 24 L. J. Ex. 223 539 Knox V. Symmonds, (1791) 3 Bro. C. C. 358 ; 1 Ves. jun. 369 . . 339, 340, 359 Kockill V. Witherell, (1672) 2 Keb. 838 220, 449 Kyle, In re, (1838) 2 Jur. 760 397 C XXXIV TABLE OF CASES Lai — Lie. page Laing v. Todd, (1853) 13 C. B. 276 296, 458, 488 Lambe v. Jones, (1860) 9 C. B. (X. S.) 478 ; 9 W. R. 202 297 Lambert v. Hutchinson, (1841) 2 M. & G. 858 ; 10 L. J. C. P. 213 ; 3 Scott N. R. 221 158 Lancaster v. Hemington, (1835) 4 A. & E. 345 ; 5 N. & M. 538 ; 43 R. R. 354 . 233 Landauer v. Asser, [1905] 2 K. B. 184 ; 74 L. J. K. B. 659 ; 93 L. T. 20 ; 53 W. R. 534 ; 21 T. L. R. 429 210 Lane v. Tannei', (1714) cited in Dale v. Mottram, 2 Barnard. 291 . . . 460 Lang V. Brown, (1855) 25 L. T. (O. S.) 297 ... . 342, 346, 347, 353 Langridge r. Campbell, (1877) 2 Ex. D. 281 ; 46 L. J. Ex. 277 ; 36 L. T. 64 ; 25 W. R. 351 578, 585 Lanza v. Wiener, [1917] 2 K. B. 558 ; 86 L. J. K. B. 1236 ; 117 L. T. 337 . 375 Larchin v. Ellis, (1862) 11 W. R. 281 362, 376, 389 Larkiu v. Lloyd, (1891) 64 L. T. 507 576 Laugher v. Laugher, (1831) 1 Dowl. 284 ; 1 C. & J. 398 ; 1 Tyr. 352 . 289, 290, 294 Law V. Blackburrow, (1853) 14 C. B. 77 ; 23 L. J. C. P. 28 ; 2 C. L. R. 28 ; 18 Jur. 130 ; 2 W. R. 104 558, 563 V. Garrett, (1878) 8 Ch. D. 26 ; 38 L. T. 3 ; 26 W. R. 426 . . 36, 98, 101, 114, 321 Lawrence v. Bristol & Xorth Somerset Rail. Co., (1867) 16 L. T. 326 . . 76 V. Hodgson, (1826) 1 Y. & J. 16 ; 30 R. R. 754 . . . 228, 286, 343 Lawson v. Wallasey Local Bd., (1882) 11 Q. B. D. 229 ; 52 L. J. Q. B. 302 ; 47 L. T. 625 ; affirmed (1883) 52 L. J. Q. B. 309, n. ; 48 L. T. 507 ; 47 J. P. 437 (C. A.) 90 Leadbetter v. ]\Iarylebone Corporation, [1904] 2 K. B. 893 ; 73 L. J. K. B. 1013; 91 L. t. 639; 53 W. R. 118; 68 J. P. 566; 20 T. L. R. 778 (C. A.) 230 Lee V. Elkins, (1702) 12 Mod. 585 221,460 and Hemingway, In re, (1834) 3 Nev. & M. 860 ; 3 L. J. (N. S.) K. B. 124; 15Q. B. 305, n 319 Leech v. Schweder, (1874) L. R. 9 Ch. 463 ; 43 L. J. Ch. 487 ; 30 L. T. 586 ; 22 W. R. 633 .505 Leeds v. Burrows, (1810) 12 East, 1 319, 441 Leeming and Fearnley, Li re, (1833) 5 B. & Ad. 403 ; 2 X. & M. 232 ; 39 R. R. 516 560 Lees V. Hartley, (1840) 8 Dowl. 883 286 Leggett V. Finlay, (1829) 6 Bing. 255 ; 8 L. J. (0. S.) C. P. 52 ; 3 M. & P. 629 342 Leggo V. Young,'^(1855) 16 C. B. 626 ; 24 L. J. C. P. 200 . . . 170, 211, 573 Leicester v. Grazebrook, (1879) 40 L. T. 883 185 Waterworks Co. t: Cropstone Overseers, (1875) 44 L. J. M. C. 92 : 32 L. T. 566 and 752 477 Leigh V. Brooks, (1877) 5 Ch. D. 592 ; 46 L. J. Ch. 344 ; 25 W. R. 401 (C. A.) 524, 527, 528 In re; Rowcliffe v. Leigh, (1876) 3 Ch. D. 292 ; 26 W. R. 729 (C. A.) ; 4 Ch. D. 661 525, 551, 565, 577 Lendon v. Keen, [1916] 1 K. B. 994 ; 85 L. J. K. B. 1237 ; 114 L. T. 847 197, 254 Leslie v. Richardson, (1848) 6 C. B. 378 ; 17 L. J. C. P. 324 ; 6 D. & L. 91 ; 12 Jur. 730 157 Levi V. Duncombe, (1835) 1 C. M. & R. 737 ; 3 Dowl. 447 ; 5 Tyr. 490 ; 1 Gale, 60 292 Levick v. Epsom, &c., Rail. Co., (1859) 1 L. T. 60 ; 8 W. R. 66 . . . 367 Lewin v. Holbrook, (1843) 11 U. & W. 110 ; 12 L. J. Ex. 267 ; 2 Dowl. (X. S.) 991 ; 63 R. R. 526 236, 283, 449 Lewis, In re, (1876) 1 Q. B. D. 724 314, 317 V. Rossiter, (1875) 44 L. J. Ex. 136 ; 33 L. T. 260 ; 23 W. R. 832 . 84, 267,. 456, 462 f. Walker, (1897) 36 Sol. J. 110 547 -y. Winter, (1837) W. W. & D. 47 65,236 Libtrat v. Field, (1665) 1 Keb. 885 82 Liddell v. Johnstone, il798) 2 Tidd Pr., 9th ed., 844 443 Lieveslev v. Gilmore, (1866) L. R. 1 C. P. 570 ; 35 L. J. C. P. 351 ; 1 H. & R. 849"^; 12 Jur. (X. S.) 874 ; 15 L. T. 386 265, 498, 533 TABLE OF CASES XXXV Lim — Lon. page Limerick & Einiis Rail. Co. v. Atlienry & Enni.s Rail. Co., (1875) Ir. R. 9 C. L. L31 269 Corporation v. Crompton, [1910] 2 Ir. R. 416 322 Linch V. Dacy, (1666) 1 Keb. 848 1 Lindsay v. Direct London & Portsmouth Rail. Co., (1850) 19 L. J. Q. B. 417 ; 1 L. M. & P. 529 ; 15 Jur. 224 ; 87 R. R. 535 . . . . 448 v. Lindsay, (1860) 11 Ir. C. L. Rep. 311 . , . . . .222 Lintield v. Feme, (1682) 3 Lev. 18 226 Lingood, ^x^rar^e, (1742) 1 Atk. 240 301 V. Croucher, (1742) 2 Atk. 395 197 v. Eade, (1742) 2 Atk. 501 198,224,400,402,452 Linnen v. Williamson, (1646) Rolle Ab. Arb. K 16 473 Little V. Newton, (1841) 2 M. & G. 351 ; 10 L. J. C. P. 88 ; 2 Scott N. R. 159 ; 9 Dowl. 437 ; 5 Jur. 246 ; 58 R. R. 436 252, 409 Livingston v. Ralli, (1855) 5 E. & B. 132 ; 24 L. J. Q. B. 269 ; I Jur. (N. S.) 594 ; 3 W. R. 488 117 Llandrindod Wells Water Co. v. Hawksley, (1904) 68 J. P. 242 ; 20 Times L. R. 241 (C. A.) 196, 486 Llanelly Rail. & Dock Co. v. London & Nortli Western Rail. Co., (1875) L. R. 7 H. L. 550 ; 45 L. J. Ch. 539 ; 32 L. T. 575 ; 23 W. R. 927 . . . 9 Lloyd V. Harris, (1849) 8 C. B. 63 ; 18 L. J. C. P. 346 ; 7 D. & L. 118 ; 79 R. R. 414 290 V. Mansell, (1853) 22 L. J. Q. B. 110 ; 1 B. C. C. 130 . . . . 297 V. Sturgeon Falls Pulp Co., (1900) 85 L. T. 162 374 and Spittle, In re, (1849) 6 D. & L. 531 ; 18 L. J. Q. B. 151 . . 300, 445 and Tooth, In re, [1899] 1 Q. B. 559 ; 68 L. J. Q. B. 376 ; 80 L. T. 394 (C. A.) 263 Lobitos Oilfields and Admiralty Commissioners, In re, (1917) 86 L. J. K. B. 1444 ; 117 L. T. 28 ; 33 T. L. R. 472 305, 314 Lock V. Armv, Navy & General Assurance Association, (1915) 31 T. L. R. 297 104 V. Vulliamv, (1833) 5 B. & Ad. 600 : 2 N. & I\L 336 ; 39 R. R. 577 . . 444 Lockwood V. Smith, (1862) 10 W. R. 628 169, 207 Lodge V. Porthouse, (1774) Lolft, 388 289 London v. Lynn, (1789) 1 H. Bl. 206 283 & Blackwall Rail. Co. v. Cross, (1886) 31 Ch. D. 354 ; 55 L. J. Ch. 313 ; 54 L. T. 309 ; 34 W. R. 201 ; 2 T. L. R. 231 (C. A.) . . 69 Chatham & Dover Rail. Co. v. South Eastern Rail. Co., (1888) 40 Ch. D. 100 ; 58 L. J. Ch. 75 ; 60 L. T. 370 ; 37 W. R. 65 ; 5 T. L. R. 50 (C. A.) 109 Dock Co. and St. Paul's, Shadwell, In re, (1862) 32 L. J. Q. B. 30 ; 7 L. T. 381 ; 11 W. R. 89 177, 214, 303, 362 General Omnibus Co. v. Lavell, [1901] 1 Ch. 135 ; 70 L. J. Ch. 17 ; 83 L. T. 453 (C. A.) 373 & Lancashire Fire Insurance Co. v. British American Association, (1885) 54 L. J. Q. B. 302 ; 52 L. T. 385 . . . . 522, 523, 529 & North Western Rail. Co. v. Bedford, (1852) 17 Q. B. 978 ; 85 R. R. 757 6 — - r. Donellan, [1898] 2 Q. B. 7 ; 67 L. J. Q. B. 681 ; 78 L. T. 575 ; 14 T. L. R. 361 (C. A.) 110 V. Jones, [1915] 2 K. B. 35 ; 84 L. J. K. B. 1268; 113 L. T. 724 . . . 110, 321 V. Quick, (1849) 5 D. & L. 685 ; 18 L. J. Q. B. 89 ; 5 Rail. Cas. 520 ; 13 Jur. 408 298 V. Walker, [1900] A. C. 109 ; 69 L. J. Q. B. 367 ; 82 L. T. 93 ; 48 W. R. 384 ; 64 J. P. 483 ; 16 Times L. R. 194 . . 299 V. Walker, [1903] A. C. 289; 72 L. J. K. B. 578 ; 88 L. T. 705 ; 19 T. L. R. 519 493 XXXVl TABLE OF CASES Lon — Mai. page London & North Western and Great Western Joint Rail. Cos. v. Billington, [1899] A. C. 79 ; 68 L. J. Q. B. 162 ; 79 L. T. 503 ; 15 T. L. R. 97 90, 91, 321 Long V. Great Northern & City Kail. Co., [1902] 1 K. B. 813 ; 71 L. J. K. B. 598 ; s.c. nom. Great Northern, &c., Rail. Co., I/i re, 86 L. T. 440 ; 50 ^y. R. 402 ; 18 T. L. R. 478 (C. A.) 66 Longman r. East, (1877) 3 C. P. D. 142 ; 47 L. J. C. P. 211 ; 38 L. T. 11 ; 26 W. R. 183 (C. A.) 504, 506, 509, 513, 520, 526, 570 Lonsdale (Earl) v. Whinnay, (1835) 3 Dowl. 263 ; 4 L. J. (N. S.) Ex. 7 . .287 Lord and Copper Miners' Co., In re, (1854) 1 Kay & J. 90 ; 24 L. J. Ch. 145; 3 Eq. Rep. 197 ; 3 W. R. 186 127 V. Hawkins, (1857) 2 H. & N. 55 180 V. Lee, (1868) L. R. 3 Q. B. 404 ; 37 L. J. Q. B. 121 ; 9 B. & S. 269 ; 16 W. R. 856 154, 157 V. Lord, (1855) 5 E. & B. 404; 26 L. J. Q. B. 34 ; 1 Jur. (N. S.) 893 ; 3 W. R. 553 . 285, 286, 327, 407, 410 Love V. Honevbourne, (1824) 4 D. & R. 814 ; 27 R. R. 517 .. . 31, 224 •Lowe V. Allen, (1843) 4 Q. B. 66 ; 12 L. J. Q. B. 115 ; 3 G. & D. 395 ; 7 Jur. 416 245 Lower v. Lower, (1595) Rolle Ab. Arb. B 20 222 Lowes V. Kerniode, (1818) 8 Taunt. 146 539 Lowther v. Caledonian Rail. Co., [1891] 3 Ch. 442 ; [1892] 1 Ch. 73 ; 61 L. J. Ch. 108 ; 66 L. T. 62 ; 40 W. R. 225 (C. A.) 262 Lucas V. Wilson, (1758) 2 Burr. 701 531 Ludbrook v. Barrett, (1877) 46 L. J. C. P. 798 ; 36 L. T. 616 ; 25 W. R. 649 . 197 Ludlow V. Wilson, [1901] 2 Ont. L. R. 539 39 Corporation v. Charlton, (1840) 6 M. & W. 815 ; 10 L. J. Ex. 75 ; 4 Jur. 667 ; 55 R. R. 794 25 Corporation v. Prosser, (1906) 22 T. L. R. 597 235 Lumley v. Hutton, (1618) Cro. Jac. 447 ; 1 Rolle Rep. 268 .... 76 Lund V. Campbell, (1885) 14 Q. B. D. 821 ; 54 L. J. Q. B. 281 ; 53 L. T. 900 ; 33 W. R. 510 (C. A.) 561, 578 V. Hudson, (1843) 1 D. & L. 236 ; 12 L. J. Q. B. 365 .. . 218, 244 Lury V. Pearson, (1857) 1 C. B. rN. S.) 639 90 Lynch v. Clemence, (1700) 1 Lutw. 571 ; Rolle Ab. Arb. F 1 . . . .460 Lynsey v. Ashton, (1613) Rolle Ab. Arb. E 2 ; .s.c. nom.. Lindsey v. Aste}', 2 Bulst. 38 ; Lindsey v. Ashton, 1 Rolle Rep. 5 . . . '. . .461 Lyon V. Johnson, (1889) 40 Ch. D. 579 ; 58 L. J. Ch. 626 ; 60 L. T. 223 ; 37 W. R. 427 98, 104 Macalpine v. Calder, [1893] 1 Q. B. 545 ; 62 L. J. Q. B. 607 ; 4 R. 314 ; 68 L. T. 426; 41 W. R. 436; 9T. L. R. 311 (C. A.) . . 428,531,550,553 Macarthur v. Campbell, (1833) 5 B. & Ad. 518; 2 N. & M. 444; 39 R. R. 557 240, 284 Macaulay v. Polley, [1897] 2 Q. B. 122 ; 66 L. J. Q. B. 665 ; 76 L. T. 643 ; 45 W. R. 681 (C. A.) 29, 534 M'Can V. O'Ferrall, (1841) 8 C. & F. 30 ; West, H. L. 593 .... 19 Macdougall v. Robertson, (1827) 1 M. & P. 147 ; 2 Y. & J. 11 ; 4 Biug. 435 ; 29 R. R. 592 63, 65 M'Ellistrim v. Ballymacelligott, &c.. Society, [1917] Ir. R. 93 (C. A.) . . 14 M'Gowan v. City of Glasgow Friendly Society, [1913] S. C. 991 ; 50 Sc. L. R. 783 14 McHargv. UniA-ersal Stock Exchange, (1895) 11 Times L. R. 409 ... 68 Machin' v. Bennett, [1900] W. N. 146 79, 99 Mackay, In re, (1834) 2 A. & E. 356 ; 41 R. R. 456 .... 230, 236, 459 V. Barry Parochial Board, (1883) 10 R. 1046 41 M'Kee v. Dublin Corporation, (1912) Hudson's Building Contracts, 4th ed., II. 466 42 Mackenzie and Ascot Gas Co., In re, (1886) 17 (;>. B. D. 114 : 55 L. J. Q. B. 309 ; 34 W. R. 487 156 V. Sligo & Shannon Rail. Co., (1850) 9 C. B. 250; 19 L. J. C. P.142 283, 286 Macklev v. Chilliugworth, (1877) 2 C. P. D. 273 ; 46 L. J. C. P. 484 ; 36 L. T. 514 ; 25 W. R. 650 583 Macqueen and Nottingham Caledonian Society, In re, (1861) 9 C. B. iN. S.l 793 379 M'Rae v. M'Lean, (1853) 2 E. & B. 946 ; 2 C. L. R. 391 ; 18 Jur. 244 ; 2 W. R. 63 190 Malcolm v. Fullarton, (1788) 2 T. R. 645 ; 1 R. R. 567 77 TABLE OF CASES XXXVU Mai— Men. page Malmesbury Rail. Co. v. Budd, (1876) 2 Ch. D. 113 ; 45 L. J. Cli. 271 . 39, 68 Maloney v. Stockley, (1842) 2 Dowl. (N. S.) 122 ; 12 L. J. C. P. 92 ; 4 M. & G. 647 ; 61 R. R. 636 218, 560 Malvern Urban District Council v. Malvern Link Gas Co., (1900) 83 L. T. 326 (C. A.) 494 Manchester Economic Building Society, In re, (1883) 24 Cli. D. 497 ; 53 L. J. Ch. 115; 49 L. T. 793; 32 W. R. 325(C. A.) . . . .239 Ship Canal Co. v. Pearson, [1900] 2 Q. B. 606 ; 69 L. J. Q. B. 852 ; 83 L. T. 45 ; 48 W. R. 689 (C. A.) 100, 123 Manning v. Eastern Counties Rail. Co., (1843) 12 M. & W. 237 ; 13 L. J. Ex. 265 ; 3 Rail. Cas. 637 ; 67 R. R. 318 481 Mansell V. Burredge, (1797) 7 T. R. 352 83 V. Roberts, (1797) 7 T. R. 352 24 Manser v. Heaver, (1832) 3 B. & Ad. 295 ; 37 R. R. 426 . 83, 222, 233, 397, 541 Mansfield Union v. Wright, (1882) 9 Q. B. D. 686 (C. A.) 514 Maplin Sands, In re, (1894) 71 L. T. 56, 594 (C. A.) 381 Marder v. Cox, (1774) 1 Cowp. 127 233, 492, 575 "Margery," The, [1902] P. 157 ; 71 L. J. P. 83 ; 86 L. T. 863 ; 50 W. R. 654 . 27 Marks v. Marriot, (1697) 1 Ld. Raym. 114 2, 438, 466, 474 Marsack v. Webber, (1860) 6 H. & N. 1 ; 4 L. T. 553 267 Marsh, Li re, (1847) 16 L. J. Q. B. 330 ; 73 R. R. 799 ; s.c. no7n. Haywood v. Marsh, 11 Jur. 657 . 81, 383, 409 V. Bulteel, (1822) 5 B. & A. 507 274 V. Hutchinson, (1800) 2 B. & P. 226 18 V. Wood, (1829) 9 B. & C. 659 ; 7 L. J. (0. S. ) K. B. 327 ; 4 M. & R. 504 66 Marshall and Dresser, /n re, (1842) 3 Q. B. 878 ; 12 L. J. Q. B. 104 ; 3 G. & D. 253 ; 61 R. R. 428 225, 246 V. Powell, (1846) 9 Q. B. 779 ; 16 L. J. Q. B. 5 ; 11 Jur. 61 . . 339 Martin v. Boulanger, (1883) 8 App. Cas. 296 ; 52 L. J. P. C. 31 ; 49 L. T. 62 . 468 V. Fyfe, (1882) 50 L. T. 72 526 V. Thornton, (1803) 4 Esp. 180 276 Mason V. Haddan,(l 859)6 C. B.(K S.) 526 98,314 t;. Lovatt, (1907) 23 T. L. R. 486 (C. A.) 554 V. Wallis, (1829) 10 B. & C. 107 ; 8 L. J. (0. S.) K. B. 109 ; 5 M. & R. 85 ; 34 R. R. 340 341, 343 V. Whitehouse, (1838) 6 Dowl. 602 ; 7 L. J. (N. S.) C. P. 295 ; 1 Arn. 261 ; 6 Scott, 575 ; 4 Bing. N. C. 692 ; 44 R. R. 827 289 Massy v. Aubry, (1652) Sty. 365 224 Masters v. Butler. See Butler, In re. Mathewv. Davis, (1842) 1 Dowh (N. S.) 679 3 Matson v. Trower, (1824) Ry. & Moo. 17 ; 27 R. R. 725 . . 359, 392, 419, 444 Matthew r. Ollerton, (1694) 4 Mod. 226; Comb. 218 34 Matthews v. Inland Revenue Commissioners, [1914] 3 K. B. 192 ; 83 L. J. K. B. 1552 ; 110 L. T. 931 48, 226 V. Munster, (1887) 20 Q. B. D. 141 ; 57 L. J. Q. B. 49 ; 57 L. T. 922 ; 36 W. R. 178 ; 52 J. P. 260 ; 4 T. L. R. 102 (C. A.) 534 Maule V. Maule, (1816) 4 Dow, 363 407 Maunder, In re, (1883) 49 L. T. 535 205, 382, 398 Maunsell v. Midland Great Western (of Ireland) Rail. Co., (1863) 1 H. & M. 130 ; 32 L. J. Ch. 513 ; 8 L. T. 347 ; 9 Jur. (N. S.) 660 ; 11 W. R. 768 . 67 May V. Harcourt, (1884) 13 Q. B. D. 688 155 - V. Mills, (1914) 30 T. L. R. 287 94, 133, 262 Mayer v. Farmer, (1878) 3 Ex. D. 235 ; 47 L. J. Ex. 760 ; 26 W. R. 760 . . 236 Mays V. Cannell, (1854) 15 C. B. 107 ; 24 L. J. C. P. 41 ; 3 C. L. R. 218 ; 1 Jur. (N. S.) 183 ; 3 W. R. 138 456, 558, 563 Measures v. Measures, [1910] 2 Ch. 248 ; 79 L. J. Ch. 707 ; 102 L. T. 794 ; 26 T. L. R. 488 (C. A.) 94 Medcalfe v. Ives, (1737) 1 Atk. 63 204, 278 Mellin v. Monico, (1877) 3 C. P. D. 142 ; 47 L. J. C. P. 211 ; 38 L. T. 1 ; 26 W. R. 183 (C. A.) 500, 509, 532 Mendell v. Tyrrell, (1841) 9 M. & W. 217 ; 12 L. J. Ex. 121 ; 1 Dowl. (X. S.) 453 ; 6 Jur. 18 297 XXXVlll TABLE OF CASES Mer— Mor. tage JMercier r. Pepperell, (1881) 19 Ch. D. 58 ; 51 L. J. Ch. 63 ; 45 L. T. 609 ; 30 W. R. 228 243 Merrifield, Zeigler & Co. v. Liverpool Cotton Association, (1911) 105 L. T. 97 266 Meter Cabs, Ltd., In re, [1911] 2 Ch. 557 ; 81 L. J. Ch. 82; 105 L. T. 572 . 582 Metropolitan District L'ail. Co. v. Sharpe, (1880) 5 App. Cas. 425; 50 L. J. Q. B. 14 ; 43 L. T. 130; 28 W. E. 617 ; 44 J. P. 716 267, 400 Omnibus Co., /n re, (1860) 1 L. T. 294 7 Middleton r. Weeks, (1613) Cro. Jac. 200 215, 249 Midland Eail. Co. r. Losebv, [1899] A. C. 133 ; 68 L. J. Q. B. 326 ; 80 L. T. 93; 47 W. R. 656; 15 T. L. R. 207 110 Miller v. De Burgh, (1850) 4 Ex. 809 ; 19 L. J. Ex. 127 ; 1 L. M. & P. 177 228, 456 V. Pilling, (1882) 9 Q. B. D. 736 ; 51 L. J. Q. B. 481 ; 47 L. T. 536 (C. A.) 511, 517, 565, 570 V. Robe, (1811) 3 Taunt. 461 453 V. Shuttleworth, (1849) 7 C. B. 105 140 Gibb&Co. V. Smith, [1916] 1 K. B. 419; 85 L. J. K. B. 627; 114 L. T. 562 88, 120 Mills V. Bavley, (1863) 2 H. & C. 36 ; 32 L. J. Ex. 179; 9 Jur. (X. S.) 499 ; 8 L. T. 392 ; 11 W. R. 598 52 V. Bowyer's Society, (1856) 3 K. & J. 66 . . 163, 165, 170, 183, 418, 419 Milne v. Gratrix, (1806) 7 East, 608 46, 284 Milnes and Robertson, In re, (1854) 15 C. B. 451 ; 24 L. J. C. P. 29 ; 18 Jur. 1108 21 Minifie v. Rail. Passengers' Assurance Society, (1881) 44 L. T. 552 . . 101, 103 Minister v. Apperley, [1902] 1 K. B. 643 ; 71 L. J. K. B. 452 ; 86 L. T. 625 ; 50 W. R. 510 . . 572 ]\Iitchell and Governor of Ceylon, In re, (1888) 21 Q. B. U. 408 ; 57 L. J. Q. B. 524; 59L. T. 812; 36 W. R. 873(C. A.) 52 t'. Harris, (1793)2 Ves.jun. 129; 4 Bro. C. C. 311 204 r. Staveley, (1812) 16East, 58 ; 14 R. R. 287 269,482 Moffatt V. Cornelius, (1878) 39 L. T. 102 (C. A.), affirming 26 W. R. 914 . . 50 Molton V. Caniroux, (1849) 4 Ex. 17 ; 18 L. J. Ex. 356 ; 12 Jur. 800; 80 R. R. 461 21 Monro v. Bognor U. D. C, [1915] 3 K. B. 167 ; 84 L. J. K. B. 1091 ; 112 L. T. 969 92, 101, 102 Montgomery, Jones & Co. and Liebenthal, Zu re, (1898) 78 L. T. 406; 14 T. L. R. 201 (C. A.) 73, 164, 169, 207, 305 Moore v. Bedel, (1600) Rolle Ab. Arb. B 5 459 V. Booth, (1797) 3 Ves. 350 139 V. Butlin, (1837) 7 A. & E. 595 ; 7 L. J. (X. S.) Q. B. 20 ; 2 X. & P. 436 ; W. W. & D. 638 249, 463 V. Darley, (1845) 1 C. B. 445 240 -u. Watson, (1866)L. R. 2 C. P. 314 ; 36 L. J. C. P. 122 . . . .574 Mordue v. Palmer, (1870) L. R. 6 Ch. 22 ; 40 L. J. Ch. 8; 23 L. T. 752 ; 19 W. R. 86 (C. A.) 150, 165, 167. 185, 492, 575 Morel V. Byrne, (1873) 28 L. T. 627 ; 21 W. R. 673 . . . . ' . . 537 Morgan v. Boult, (1863) 7 L. T. 671 ; 11 W. R. 265 ; 1 X. R. 271 . . 330, 409 V. Harrison, [1907] 2 Ch. 137 ; 76 L. J. Ch. 548 ; 97 L. T. 445 (C. A.) 92, 316 V. Mather, (1792) 2 Ves. jun. 15 ; 2 R. R. 163 . . ' . 204, 229, 450 V. Miller, (1839) 6 Bine. X. C. 168 538, 542 V. Morgan, (1832) 1 DoVl. 611 ; 2 L. J. (X. S.) Ex. 56 ; 36 R. R. 825 . 39 V. Smith, (1842) 9 M. & W. 427 ; 11 L. J. Ex. 379 ; 1 Dowl. (X. S.) 617 234,491,492,576 V. Tarte, (1855) 11 Ex. 82 ; 3 C. L. R. 970 537 -y. Thomas, (1845)9 Jur. 92; 72 R. R. 765 537 Morley v. Xewman, (1824) 5 D. & R. 317 ; 27 R. R. 528 452 Morphett, In re, (1845) 2 D. & L. 967 ; 14 L. J. Q. B. 259 ; 10 Jur. 546; 69 R. R. 888 83, 84, 230, 337, 338, 376, 393, 450 Morris v. Fowler, (1890) 44 Ch. D. 151 ; 59 L. J. Ch. 407 ; 62 L. T. 758 ; 38 W. R. 522 292 TABLE OF CASES XXXIX Mor— Nor, page Morris v. Morris, (1856) 6 E. A B. 383 ; 25 L. J. Q. B. 261 ; 2 Jur. (N. S.) 542 ; 4 W. R. 549 164, 189 V. Reynolds, (1704) 1 Salk. 73 288 Morristoii Tinplate Co. v. Brooker, [1908] 1 K. B. 403 ; 77 L. J. K. B. 197 ; 98 L. T. 219 ; 24 T. L. R. 224 89 Morse v. Merest, (1821) 6 Madd. 26 ; 22 R. R. 226 154 V. Sury, (1724) 8 ]\[od. 212 81 Mortin v. Burge, (1836) 4 A. & E. 973 ; 6 N. S:. M. 201 ; 43 R. R. 533 . . 224 Moseley v. Simpson, (1873) L. R. 16 Eq. 226 ; 42 L. J. Ch. 739 ; 28 L. T. 727 ; 21 VV. R. 694 205, 241, 411, 420 Moyers v. Soady, (1886) 18 L. R. Ir. 499 106 Mudy V. Osani, (1628) Litt. 30 24, 459 Mulkern v. Lord, (1879) 4 App. Cas. 182 ; 48 L. J. Cli. 745 ; 40 L. T. 594 ; 27 W. R. 510 15 Mullock V. Jenkins, (1851) 14 Beav. 628 ; 21 L. J. Ch. 65 .... 15 Munday v. Black, (1861) 9 C. B. (N. S.) 557 ; 30 L. J. C. P. 193 ; 7 Jur. (N. S.) 709 ; 9 W. R. 274 373, 552 V. Norton, [1892] 1 Q. B. 403 ; 61 L. J. Q. B. 456; 66 L. T. 173 ; 40 W. R. 355 ; 8 T. L. R. 396 (C. A.) 529, 569, 570 Municipal Permanent Building Society v. Kent, (1884) 9 App. Cas. 260 ; 53 L. J. Q. B. 290; 51 L. T. 6 ; 32 W. R. 681 ; 48 J. P. 352 . 15 Permanent Building Society r. Richards, (1888) 39 Ch. D. 372 ; 58 L. J. Ch. 8 ; 59 L. T. 883 ; 37 W, R. 184 (C. A.) 15 314, 317 . 268 71; . 240 . 67 731 ; . 550 Munro, Ex parte, (1876) 1 Q. B. D. 724 Murray v. Gregory, (1850) 5 Ex. 468 ; 19 L. J. Ex. 355 ; 14 Jur. 555 Musselbrook v. Duircan, (1833) 9 Bing. 605 ; 2 L. J. (N. S.) C. P 2 M. & Scott, 740 ; 1 Dowl. 722 ; 35 R. R. 637 . Mylne v. Dickinson, (1815) G. Coop. 195 ; 14 R. R. 243 . Mysore West Gold Mining Co., In re, ;1889^ 42 Ch. D. 535 ; 58 L. J. Ch 61 L. T. 453 ; 37 W. R. 794 ; 1 Ues. 347 ; 5 T. L. R. 695 . Nalder^j. Batts, (1843)1 D. &L. 700; 13 L. J. Q. B. 10. . . . 166,558 Neale v. Clarke, (1879) 4 Ex. U. 286 ; 41 L. T. 438 579 V. Gordon-Lennox, [1902] A. C. 465; 71 L. J. K. B. 939 ; 87 L. T. 341 ; 51 W. R. 140 ; 66 J. P. 757 ; 18 T. L. R. 791 . . . . 534, 535 V. Ledger, (1812) 16 East, 51 ; 14 R. R. 283 . . . . 202, 329, 330 Newall V. Elliott, (1863) 1 H. & C. 797; 32 L. J. Ex. 120 ; 9 Jur. (N. S.) 359 ; 7 L. T. 753 ; 1 1 W. R. 438 463 Newbold and Metropolitan Rail. Co., Li re, (1863) 14 C. B. (N. S.) 405 . 262, 298 Newey, /jire, (1913) 107 L. T. 832 463 Newgate v. Degelder, (1657) 2 Keb. 10, 20, 24 46, 47, 63 Newman v. Barberry. See Parberv v. Newnham. Newry c\: Enniskillen Rail. Co. v. Ulster Rail. Co., (1856) 8 De G. M. & G. 487 ; 2Jur. (N. S.)936; 4 W. R. 761 199,394 Newsonie v. Bowyer, (1729) 3 P. W. 37 18 Newton i;. Hetherington, (1865) 19 C. B. (N. S.) 342; 12 L. T. 633; 13 W. R. 863 51 v. Walker, (1742) Willes, 315 283 Nicholls V. Jones, (1851) 6 Ex. 373 ; 20 L. J. Ex. 275 ; 2 L. M. & P. 335 . 455, 461 Nicholson v. Sykes, (1854) 9 Ex. 357 ; 23 L. J. Ex. 193 ; 2 C. L. R. 992 . . 579 Nickalls V. Warren, (1844) 6 Q. B. 615 ; 14 L. J. Q. B. 75 ; 2 D. & L. 549 161, 187, 381, 399 Nickels v. Hancock, (1855) 7 De G. M. & G. 300 .. . 220, 278, 280, 460 Nobel Brothers Petroleum Production Co. v. Stewart, (1890) 6 Times L. R. 378 102 Noble V. Harris, (1678) 3 Keb. 745 46 Norris v. Daniel, (1834) 10 Bing. 507 ; 3 L. J. (N. S.) C. P. 160 ; 4 M. & Scott, 383 ; 2 Dowl. 798 ; 38 R. R. 530 560 North & South Western Junction Rail. Co. v. Brentford Union, (1888) 13 App. Cas. 592 ; 58 L. J. M. C. 95 ; 60 L. T. 274 . . . . 142, 307 British Rail. Co. v. Newburgh, &c., Co., [1911] S. C. 710 ; 48 Sc. L. R. 450 79 British Rail. Co. and Trowsdale, In re, (1866) L. R. 1 C. P. 401 ; 35 L. J. C. P. 262 ; 12 Jur. (N. S.) 786 239 xl TABLE OF CASES Nor — Par. page Xorth V. London Rail. Co. v. Great Northern Rail. Co., (1883) 11 Q. B. D. 30 ; 52 L. J. Q. B. 380 ; 48 L. T. 695 ; 31 W. R. 490 (C. A.) . . 67, 69 Riding, &c., C. C. v. Middlesborough B. C, [1914] 2 K. B. 847 ; 83 L. J. K. B. 1004 ; 110 L. T. 961 (C. A.) 169, 170 Western Rubber Co., &c., Huttenbach & Co., In re, [1908] 2 K. B. 907 ; 78 L. J. K. B. 51 ; 99 L. T. 680 (C. A.) 79 Northampton Gaslight Co. v. Parnell, (1855) 15 C. B. 630 ; 24 L. J. C. P. 60 ; 3 C. L. R. 409; iJur. (N. S.)211 ; 3 W. R. 179 52 Norton v. Mascall, (1687) 2 Vern. 24 280 V. Counties Conservative Building Society, [1895] 1 Q. B. 246 ; 64 L. J. Q. B. 214; 14 R. 59; 71 L. T. 790; 43 W. R. 178; 59 J. P. 149; 11 T. L. R. 92 (C. A.) 15 Norwich v. Norwich, (1576) 3 Leon. 62 458, 459 Corporation v. Norwich Electric Tramways Co., [1906] 2 K. B. 119 ; 75 L. J. K. B. 636 ; 95 L. T. 12 ; 54 W. R. 572 ; 22 T. L. R. 553 (C. A.) 17, 109 Nott V. Cardiff Corporation, (1918) 118 L. T. 487 (C. A.) 363 - V. Long, (1736) cited in Cavhill v. Fitzgerald, 1 Wils. 28 . . . . 221 Nuttall and Lynton & Barnstaple Rail. Co., In re, (1900) 82 L. T. 17 . . 305 V. Manchester Corporation, (1892) 8 Times L. R. 513 ... 42 Gates v. Bromil, (1705) 1 Salk. 75 ; 6 Mod. 160 434 Ochs V. Gchs Brothers, [1909] 2 Ch. 121 : 78 L. J. Ch. 555 ; 100 L. T. 880 . 95 O'Connor v. Norwich Union Fire & Life Insurance Society, [1894] 2 I. R. 723 90, 91 Odium V. Vancouver City, (1915) 85 L. J. P. C. 95 ; 113 L. T. 795, P. C. . . 165 Oglander v. Baston, (1686) 1 Vern. 396 19 Oldfieldr. Wilmer, (1577) 1 Leon. 140, 304 221 Oliver v. Collings, (1809) 11 East, 367 ; 10 R. R. 525 . . 325, 326, 331, 332 and Scott, In re, (1889) 43 Ch. D. 310 ; 59 L. J. Ch. 148 ; 61 L. T. 552 ; 38 W. R. 476 238 Olympia Oil and Cake Co. v. Produce Brokers Co., (1916) 86 L. J. K B. 421 ; 116 L. T. 1 ; 33 T. L. R. 95 (C. A.) 79, 432 Orient Steam Navigation Co. i: Ocean Marine Insurance Co., (1887) 35 W. R. 771 583 Ormerod v. Tate, (1801) 1 East, 464 ; 6 R. R. 327 582 V. Todmorden Mill Co., (1882) 8 Q. B. D. 664 ; 51 L. J. Q. B. 348 ; 46 L. T. 669 ; 30 W. R. 805 (C. A.) . . . .521, 523, 524, 530 O'Rourke v. Commr. for Rail., (1890) 15 App. Cas. 371 ; 59 L. J. P. C. 72 ; 63 L. T. 66 276, 581 Osmond v. Woolley, (1917) 118 L. T. 29 ; 34 T. L. R. 133 . . . 200, 207 Oswald V. Grey (Earl), (1855) 24 L. J. Q. B. 69 . . . . 248, 361, 391, 407 Owdy V. Gibbons, (1688) Comb. 100 41 Owen V. Hurd, (1788) 2 T. R. 643 282, 533 Oxenham v. Lemon, (1823) 2 D. & R. 461 465 Padley v. Lincoln Waterworks Co., (1850) 2 Mac. & G. 68 ; 19 L. J. Ch. 436 ; 2 Hall & Tw. 295 ; 14 Jur. 299 ; 86 R. R. 22 275 Page V. Kettering Waterworks, (1892) 8 T. L. R. 288 145 Palgrave Gold Mining Co. v. McMillan, [1892] A. C. 460 ; 61 L. J. P. C. 85 ; 67 L. T. 425 37, 122 Palliser v. Dale, [1897] 1 Q. B. 257 ; 66 L. J. Q. B. 236 ; 76 L. T. 14 ; 45 W. R. 291 ; 13 T. L. R. 147 (C. A.) 13, 15 Palmer v. Hard wick, (1890) 63 L. T. 302 545 V. Metropolitan Rail. Co., (1862) 31 L. J. Q. B. 259 ; 10 W. R. 714 . 343, 345, 368, 423 & Co. and Hosken, In re, [1898] 1 Q. B. 131 ; 67 L. J. Q. B. 1 ; 77 L. T. 350 ; 46 W. R. 49 ; 14 T. L. R. 28 (C. A.) ... 176, 200, 303 Pappa V. Rose, (1872) L. R. 7 C. P. 525 ; 41 L. J. C. P. 187 ; 27 L. T. 348 ; 20 W. R. 784 (C. A.) 196 Parbery v. Newnham, or Newman v. Parberry, (1841) 7 M. & W. 378 ; 10 L. J. Ex. 169 ; 9 Dowl. 288 ; 5 Jur. 175 "^ 157 TABLE OF CASES xU Par- Phi. page Parfitt V. Chambre, (1872) L. R. 15 E<[. 36 ; 42 L. J. Cli. 6 ; 27 L. T. 750 ; 21 W. R. 50 449 Parker V. Burroughs, (1702) Colle's Pari. Cas. 257 199 V. Parker,"(1595) Cro. Eliz. 448 439 Gaines & Co. v. Turpin, [1918] 1 K. B. 358 ; 87 L. J. K. B. 357 ; 118 L. T. 346 89, 95 Parkes v. Smith, (1850) 15 Q. B. 297 ; 19 L. J. Q. B. 405 ; 14 Jur. 761 ; 81 R. R. 579 51, 154, 475 Parkinson v. Smith, (1861) 30 L. J. Q. B. 178 ; 9 W. R. 340 . . . . 489 Parks V. Eames, (1890) W. N. 143 524 Parr v. Winteringham, (1859) 1 El. & El. 394 ; 28 L. J. Q. B. 123 ; 5 Jur. (N. S.) 787 ; 7 W. R. 288 37 Parrott v. Shellard, (1868) 16 AV. R. 928 251 Parrv v. Liveri^ool Malt Co., [1900] 1 Q. B. 339 ; 69 L. J. Q. B. 161 ; 81 L. T. 621 (C. A.) 96, 102 Parsons v. Brixham, &c.. Insurance Society, [1918] W. N. 70 ; 62 Sol. J. 384 . 210 Parsons i;. Parsons, (1591) Cro. Eliz. 211 472 Pascoe V. Pascoe, (1837) 3 Bing. N. C. 898 ; 6 L. J. (N. S.) C. P. 322 ; 5 Scott, 117; 3 Hodges, 188; 43 R. R. 847 447 Patten v. West of England Iron Co., [1894] 2 Q. B. 159 ; 63 L. J. Q. B. 757 ; 10 R. 285 ; 70 L. T. 908 ; 42 W. R. 522 ; 58 J. P. 400 ; 10 T. L. R. 462 429, 571 Patteson v. Northern Accident Insurance Co., [1901] 2 I. R. 262 .. . 108 Paull V. Paull, (1833) 2 C. & M. 235 ; 2 Dowl. 340 ; 3 L. J. (N. S.) Ex. 11 ; 4 Tyr. 72 284, 287, 445 Payne v. Deakle, (1809) 1 Taunt. 509 342 Pavner v. Hatton. See Poyner v. Hatton. Pearse v. Cameron, (1813) 1 M. & S. 675 ; 14 R. R. 545 559 Pearson v. Archbold, (1843) 11 M. & W. 477; 12 L. J. Ex. 308 ; 2 Dowl. (N. S.) 1018 ; 7 Jur. 447 ; 63 R. R. 659 579 V. Henry, (1792) 5 T. R. 6 ; 2 R. R. 523 30, 479 V. Overell, (1864) 12 W. R. 709 186 V. Ripley, (1884) 50 L. T. 629 ; 32 W. R. 463 578 Pedler v. Hardy, (1902) 18 Times L. R. 591 . . 151, 170, 183, 230, 269, 275 Pedley v. Goddard, (1796) 7 T. R. 73 ; 4 R. R. 382 222, 284 Pell V. Addison, (1860) 2 F. & F. 291 526 Pena Copper Mines v. Rio Tinto Co., (1912) 105 L. T. 846 (C. A.) . . . 68 Pennell v. Walker, (1856) 18 C. B. 651 ; 26 L. J. C. P. 9 89 Penrice v. Williams, (1883) 23 Ch D. 353 ; 52 L. J. Ch. 593 ; 48 L. T. 868 ; 31 W. R. 496 370 Pepper v. Gorham, (1820) 4 Moore, 148 ; 21 R. R. 736 . . . . 382, 398 Percival, In re, (1885) 2 Times L. R. 150 31, 120 Perkins v. Potts, (1814) 2 Chit. 399 441 Perriman v. Steggall, (1833) 9 Bing. 679 ; 2 L. J. (K S.) C. P. 151 ; 3 M. & Scott, 93 ; 2 Dowl. 726 384 Perring, In re, (1834) 3 Dowl. 98 240 and Keymer, In re, (1835) 3 A. & E. 245 ; 1 H. & W. 285, S.C. 7iovi. Allen and Perring, /n 7-e, 4 L. J. (N. S.) K. B. 199 411 Perry v. Dunn. See Bury v. Dunn. V. Mitchell, (1844) 12 M. & W. 792 ; 14 L. J. Ex. 88 ; 2 D. & L. 452 . 219 V. Nicholson, (1757) 1 Burr. 278 265 Pescod V. Pescod, (1887) 58 L. T. 76 ; 4 T. L. R. 193 . . 69, 201, 331, 407 Petch V. Fountain or Conlan, (1839) 5 Bing. N. C. 442 ; 8 L. J. (N. S.) C. P. 305 ; 7 Scott, 441 ; 7 Dowl. 427 ; 3 Jur. 436 ; 50 R. R. 743 .. . 84 Petersen v. Ayre, (1854) 15 C. B. 724 270 Peterson v. Ayre, (1854) 14 C. B. 665 ; 23 L. J. C. P. 129 ; 2 C. L. R. 722 ; 2 W. R. 373 183, 398, 410, 419 Pethick V. Metropolitan Water Board, (1911) Hudson's Building Contracts, 4th ed., II. 456 94 Petty V. Daniel, (1886) 34 Ch. D. 172 ; 56 L. J. Ch. 192 ; 55 L. T. 745 ; 35 W. R. 151 292 Philippst;. Philipps, (1878)4 Q. B. D. 127 369 xlii TABLE OF CASES Phi — Pro. PAGE . Philips V. Bary, (1695) Skin. 447, 469 3 Phillips V. Evans, (1843) 13 L. J. Ex. 80 ; 12 M. & W. 309 ; 1 D. & L. 463 168, 207, 212, 213, 384, 385, 386 t'. Higgins, (1851)20L. J. Q. B. 357; 2 L. M. &P. 355 . . .562 V. Knightley, (1731) Fitzg. 270 ; 2 Stra. 903 ; 1 Barnard. 463 453, 460, 474 Phipps V. Ingram, (1835) 3 Dowl. 669 200, 382, 391 Pickering v. Cape Town Bail. Co., (1865) L. R. 1 Eq. 84 ; 13 L. T. 570 . 68, 92 V. Watson, (1777) 2 W. Bl. 1117 233 Pickthall V. Merthyr Tydvil Local Bd., (1886) 2 Times L. R. 805 . . . 40 Piercy v. Young, (1879) 14 Ch. D. 200 ; 42 L. T. 710 ; 28 W. R. 845 (C. A.) 50, 79, 93, 114 Pilmore v. Hood, (1840) 8 Dowl. 21 ; 8 Scott, 182 ; 3 Jur. 1153 ; 54 R. R. 849 232 Pinhorn v. Tuckington, (1813) 3 Camp. 468 267 Pini V. Roncoroni, [1892] 1 Ch. 633 ; 61 L. J. Ch. 218 ; 66 L. T. 255 ; 40 W. R. 297 114 Pits V. Wardal, (1611) Godb. 164 460 Pitt V. Dawkra, (undated) 2 Vern. 251 382 Plant V. Nevitt, (1888) 30 Sol. J. 704 292 Piatt V. Hall, (1837) 2 M. & W. 391 ; 6 L. J. (N. S.) Ex. 144 ; M. & H. 91 ; 1 Jur. 358 ; 46 R. R. 632 558 Plews V. Baker, (1873) L. R. 16 Eq. 564 ; 43 L. J. Ch. 212 .. . 100, 114 and Middleton, In re, (1845) 6 Q. B. 845 ; 14 L. J. Q. B. 139 ; 9 Jur. 160 193, 390, 391, 410 Plummer v. Lee, (1837) 2 M. & W. 495 ; 6 L. J. (N. S.) Ex. 141 .. . 226 Ponsford v. Swaine, (1861) J. & H. 433 ; 4 L. T. 15 276, 488 Poolei;. Pipe, (16G6)3 Rep. in Ch. 11, 20 280 Pope V. Brett, (1670) 2 Saund. 292 224,300,458 Porch V. Hopkins, (1844) 1 D. & L. 881 ; 13 L. J. Q. B. 137 . . . . 542 Portland (Countess) i: Prodgers, (1689) 2 Vern. 104 18 ' Urban District Council and Tiller & Co., In re, [1896] 2 Q. B. 98 ; 65 L. J.Q. B. 527 ; 74 L. T. 703; 14 T.'L. R. 427 66 " Portsmouth," The, [1912] A. C. 1 ; 81 L. J. P. 17 ; 105 L. T. 257 (H. L. ) 80, 90, 315 Potter V. Newman, (1835) 4 Dowl. 504 ; 2 C. M. & R. 742 ; 1 Tvr. & G. 29 ; 5 L. J. (N. S.) Ex. 93, n ' . . 238, 413 Potts V. Ward, (1814) 1 Marsh. 366 ; 15 R. R. 680 230 Poyner or Payner v. Hatton, (1840) 7 M. & W. 211 ; 8 Dowl. 891 ; 10 L. J. Ex. 64 289, 559, 560 Pratt V. Hillmau, (1825) 4 B. & C. 269 ; 6 D. & R. 360 ; 3 L. J. (0. S.) K. B. 253 211 Prebble and Robinson, In re, [1892] 2 Q. B. 602 ; 67 L. T. 267 ; 41 W. R. 30 . 203, 489, 490 Prentice r. London, (1875) L. R. 10 C. P. 679 ; 44 L. J. C. P. 353 ; 33 L. T. 251 ; 39 J. P. 711 13, 15 -y. Reed, (1808) 1 Taunt. 151 ; 9 R. R. 722 559 Preston v. Eastwood, (1797) 7 T. R. 95 443 Prestwich v. Foley, (1865) 18 C. B. {N. S.) 806 ; 34 L. J. C. P. 189 ; 11 Jur. (N. S.) 583 ; 12 L. T. 390 ; 13 W. R. 753 . ■ 29 Price V. Hollis, (1813) 1 M. & S. 105 3 V. Popkin, (1839) 10 A. & E. 139 ; 2 P. & D. 304 ; 8 L. J. (X. S.) Q. B. 198 ; 3 Jur. 433 ; 50 R. R. 362 229, 445, 447, 457 V. Williams, (1791) 1 Yes. jun. 365, 401 ; 3 Bro. C. C. 163 . . . 246 Pringle v. Gloag, (1879) 10 Ch. D. 676 ; 48 L. J. Ch. 380 ; 40 L. T. 512 ; 27 W. R. 574 582 Printing and Numerical Registering Co. v. Sampson, (1875) L. R. 19 Eq. 462 ; 44 L. J. Ch. 705'; 32 L. T. 354 ; 23 W. R. 463 . . . . 203 Machinery Co. v. Linotype, &c., Ltd., [1912] 1 Ch. 566 ; 81 L. J. Ch. 422 ; 106 L. T. 743 ; 28 T. L. R. 224 90 Prior V. Hembrow, (1841) 8 M. & W. 873 ; 10 L. J. Ex. 371 ; 58 R. R. 891 . 3, 65 Proctor V. Williams or Williamson, (1859) 8 C. B. (X. S.) 386 ; 29 L. J. C. P. 157 ; 6 Jur. (X. S.) 758 ; 1 L. T. 372 ; 8 W. R. 190 405 Produce Brokers Co. v. Olvmpia Oil and Cake Co., [1916] 1 A. C. 314 ; 86 L. J. K. B. 160 ; 114 L. T. 94 ; 32 T. L. R. 115 (H. L.) .... 79 TABLE OF GASES xliii Pro— Rav. Prosser^-. Gorincre, (1811) 3 Taunt. 426 Proudfoot V. Boyle or Poile, (1846) 15 M. & W. 198 ; 3 D. & L. 524 V. Hart, (1890) 25 Q. B. D. 42 ; 59 L. J. Q. B. 129 . Purslow V. Baily, (1705) 2 Ld. Raym. 1039 PAGE 1 575 568 265 Quebec Improvement Co. v. Quebec Bridge, &c., Co., [1908] A. C. 217 ; 77 L. J. P. C. 45 ; 98 L. T. 290, P. C 230 R. V. - V. V. V. Bardell, (1836) 5 A. & E. 619 ; 1 N, & P. 74 ; 2 H. & W. 401 ; 6 L. J. (N. S.) K. B. 30 ; 5 Dowl. 238 ; 44 R. R. 520 6 Barton, &c., Rail. Co. ; Ex parte Simon, [1912] 3 K. B. 72 ; 81 L. J. K. B. 964 299 Bingham, (1831)2 Tyr. 46; 1 L. J. (N. S.) Ex. 62 301 Blakemore, (1850) 14 Q. B. 544 ; 80 R. R. 297 7 Calvert, (1833) 2 C. & M. 189 Coombs, (1797) Kyd on AAvards, 64 Corbisliley, (1824) 2 L. J. (0. S.) K. B. 150 Cotton, (1813) 3 Camp. 444 ; 14 R. R. 780 Fontaine Moreau, (1848) 11 Q. B. 1028 ; 17 L. J. Q. B. 187 ; 12 Jur. 626 Gore, (1839)8 Dowl. 102; 3 Jur. 1076 Grant, (1849) 14 Q. B. 43 ; 19 L. J. M. C. 59 ; 4 Xew Sess. Cas. 13 ; 13 Jur. 1026 ; 80 R. R. 207 Great Western Rail. Co., (1844) 1 D. & L. 874 ; 5 Q. B. 597 ; D. & M. 471 ; 13 L. J, Q. B. 129 ; 8 Jur. 107 ; 64 R. R. 580 Hardey, (1850) 14 Q. B. 529 ; 19 L. J. Q. B. 196 ; 14 Jur. 649 . . 6, 7, Harding, (1697) 2 Salk. 477 Haslingtield, (1814) 2 M. &S. 558; 15 R. R. 350 Hemsworth, (1846) 3 C. B. 745 ; 71 R. R. 476 .... 266, 287, Hill, (1819) 7 Price, 636 29, Middlesex Justices, (1871) L. R. 6 Q. B. 220 ; 40 L. J. M. C. 109 ; 24 L. T. 131 ; 19 W. R. 744 540, Moate, (1832) 3 B. & Ad. 237 ; 1 L. J. (X. S.) K. B. 78 ; 37 R. R. 421 6, — V. Myers, (1786) 1 T. R. 265 ; 1 R. R. 199 — V. Nockolds, (1834) 1 A. & E. 245 ; 3 N. & M. 334 ; 3 L. J. (N. S.) M. C. 87 — V. Paget, (1841) 9 Dowl. 946 ; 5 Jur. 872 — V. Rant, (1797) Kyd on Awards, 64 . — on pros, of Corpe v. St. Katherine Dock Co., (1832) 4 B. & Ad. 360 ; 1 N. & M. 121 ; s.c. nom. Corpe v. Glyn, 2 L. J. (N. S.) K. B. 67 ; 38 R. R. 260 32, — V. Shillibeer, (1836) 5 Dowl. 238. See R. v. Bardell. — V. Sloman, (1832) 1 Dowl. 618 ; 36 R. R. 827 ... . — V. South Devon Rail. Co., (1850) 15 Q. B. 1043 ; 20 L. J. Q. B. 145 ; 15 Jur 464 ; 81 R. R. 880 — V. Stevens, (1804) 5 East, 244 — V. Tooley, (1700) 12 Mod. 312 — V. Vreones, [1891] 1 Q. B. 360 ; 60 L. J. M. C. 62; 64 L. T. 389 ; 39 AV. R, 365 ; 17 Cox C. C. 267 ; 55 J. P. 536 ; 7 Times L. R. 223 . — V. West Midland Rail. Co., (1862) 10 W. R. 583 . _ V. Riding Justices, (1865) 6 B. & S. 531 ; 34 L. J. M. C. 142 Radam's Microbe Killer v. Leather, [1892] 1 K. B. 815 Rainforth r. Hamer, (18.55)25 L. T. (0. S.) 247 .... Randall v. Gurney, (1819) 3 B. & A. 252 ; 1 Cliitt. 679 . V. Randall, (1805) 7 East, 81 ; 3 Smith, 90 ; 8 R. R. 601 . Randegger v. Holmes, (1866) L. R. 1 C. P. 679 Randell & Co. v. Thompson, (1876) 1 Q. B. D. 748; 45 L. J. Q. B. 71 L. T. 193 ; 24 W. R. 837 (C. A.) Ranger v. Great Western Rail. Co., (1854) 5 H. L. C. 72 . Rasch & Co. V. Wulfert, [1904] 1 K. B. 118 ; 73 L. J. K. B. 20 ; 89 L. T 52 W. R. 145 ; 20 Times L. R. 70 Ravee v. Farmer, (1791) 4 T. R. 146 ; 2 R. R. 347 276, 299, 339, 540, 225, 214, ; ; 35 1, 155, 493 ; 290 8 7 481 479 281 14 253 536 5,7 481 295 344 576 573, 581 282 8 293 8 299 290 489 340 290 139 299 576 507 323 139 284 104 314 40 264 465 xliv TABLE OF CASES Raw— Rob. PAGE Rawling r. Wood, (1735) Barnes, 54 434 Rawsthoru r. Arnold, (1827) 6 B. & C. 629 ; 9 D. & R. 556 ; 5 L. J. (0. S.) K. B. 270 239, 241 Read v. Wotton, [1893] 2 Ch. 171 ; 62 L. J. Ch. 481 ; 68 L. T. 209 ; 41 W. R. 556 507 Reade r. Button, (1836) 2 M. & W. 69 ; 2 Gale, 228 ; 6 L. J. (X. S.) Ex. 16 ; 46 R. R. 504 341 Rees V. Waters, (1847) 16 M. & W. 263 ; 4 D. & L. 567 ; 73 R. R. 494 . 82, 215, 233, 250 Reeves & Co., In re, [1902] 1 Cli. 29 ; 71 L. J. Ch. 70 ; 85 L. T. 495 ; 50 W. R. 252 (C. A.) 147 Reid V. Deer, (1826) 7 D. & R. 612 290 r. Fryatt, (1813)1 M. &S. 1 341 Reinhold and Hansloh, In re, (1896) 12 T. L. E. 422 ; 1 Com. Cas. 215 . 73, 305 Rendell v. Grundy, [1895] 1 Q. B. 16 ; 64 L. J. Q. B. 135 ; 71 L. T. 564 ; 43 W. R. 50 (C. A.) 182, 292 • Rensliaw v. Queen Anne Residential Mansions & Hotel Co., [1897] 1 Q. B. 662; 66L. J. Q. B. 496 ; 76 L. T. 611 ; 45 W. R. 487 .... 96,1*02 Restell V. Nye, [1901] 1 K. B. 624 ; 70 L. J. K. B. 482 ; 84 L. T. 444 ; 49 W. R. 401 ; 17 Times L. R. 304 (C. A.). See Chambers v. Goldthorpe. Reynolds v. Askew, (1837) 5 Dowl. 682 ; W. W. & D. 366 ... 231, 237 V. Gray, (1698) 1 Salk. 70 ; 1 Ld. Raym. 222 . . . 121, 331, 332 V. Harris, (1858) 3 C. B. (N. S.) 267 ; 28 L. J. C. P. 26 ; 5 Jur. (N. S.) 365 563 Rhodes v. Airedale Drainage Commrs., (1876) 1 C. P. D. 402 ; 45 L. J. C. P. 861 ; 35 L. T. 46 ; 24 W. R. 1053 (C. A.) . . . 144, 269, 483 V. Haigh, (1823) 2 B. & C. 345 ; 3 D. & R. 608 ; 2 L. J. (O. S.) K. B. 40 ; 26 R. R. 376 64 V. Swithenbank, (1889) 22 Q. B. D. 577 ; 58 L. J. Q. B. 287 ; 60 L. T. 856 ; 37 W. R. 457 (C. A.) 32 Rhys and Dare Valley Rail. Co., In re. See Dare Vallev Rail. Co., Li re, (1868). Riccard v. Kingdon,'(1846) 3 D. & L. 773 ; 15 L. J. Q. B. 269 ; 1 B. C. Rep. 122 245 Richard v. Talbot, (1890) 38 W. R. 478 565 Richards v. Cullern, (1881) 7 Q. B. D. 623 (C. A.) 539 V. Kitchen, (1877) 36 L. T. 730 ; 25 W. R. 602 292 V. Payne, (1916) 86 L. J. K. B. 937 ; 115 L. T. 225 . . . . 80 Richardson v. Le Maitre, [1903] 2 Ch. 222 ; 72 L. J. Ch. 799 ; 88 L. T. 626 . 95 V. Kensitt, (1843) 6 M. & G. 712 581 t-. Worsley, (1850)5 Ex. 613 ; 14L. J. Ex. 317 . . . 491,576 Richmond v. Parkinson, (1835) 3 Dowl. 703 282 Ricketts v. Gurney, (1819) 7 Price, 699 ; 1 Chitt. 682 139 Riddell v. Sutton, (1828) 5 Bing. 200 ; 2 M. & P. 345 ; 7 L. J. (0. S.) C. P. 60 ; 30 R. R. 569 30, 382 Ridout V. Pye, (1797) 1 B. & P. 91 136 Rigby V. Okell, (1827) 7 B. & C. 57 ; 5 L. J. (0. S.) K. B. 357 ; 31 R. R. 156 . 576 Ringer v. Joyce, (1815) 1 Marsh. 404 ; 16 R. R. 705 244, 399 Eingland v. Lowndes, (1863) 15 C. B. (N. S). 173 ; 33 L. J. C. P. 25 ; 9 L. T. 479 ; 12 W. R. 168 121, 331, 366 V. (1864) 17 C. B. (X. S.) 514 ; 33 L. J. C. P. 337 ; 10 Jur. (N. S.) 850 ; 12 W. R. 1010 366,415,416 Ritsonv. Dobson, (1911) 104 L. T. 808 14 Roberts v. Eberhardt, (1857) 3 C. B. (N. S.) 482 ; 28 L. J. C. P. 74 ; 4 Jur. (X". S.) 898 ; 6 \V. R. 793 196, 269, 489 V. Marriett, (1670) 2 Saund. 190 5, 77 V. Newbold, (1695) Comb. 318 20 Robertson v. Hatton, (1857) 26 L. J. Ex. 293 23, 286, 297 Robins v. Goddard, [1905] 1 K. B. 294 ; 74 L. J. K. B. 167 ; 92 L. T. 10 ; 21 T. L. R. 120 (C. A.) 74, 76 Robinson v. Da vies, (1879) 5 Q. B. D. 26 ; 49 L. J. Q. B. 218 ; 28 W. R. 255 53, 419 V. Davis, (1722) 1 Stra. 526 294 TABLE OF CASES xlv Eob— Sal. PAGE Robinson v. Henderson, (1817) 6 M. & S. 276 ; 18 R. R. 374 . . . . 490 V. Robinson, (1876) 35 L. T. 337 ; 24 W. R. 675 . . . . 552 Robison v. Calwood, (1704) 6 Mod. 82 ; s.c. anon., 2 Ld. Raym. 989 . . .438 Robson V. , (1813) 2 Rose, 50 30 and Railston, In re, (1831) 1 B. & Ad. 723 ; 35 R. R. 426 . . . 76 Rochefoucauld v. Boustead, [1897] 1 Ch. 196 ; 66 L. J. Ch. 74 ; 75 L. T. 502 ; 45 W. R. 272 (C. A.) 509,511,586 Roe cl. Wood V. Doe, (1788) 2 T. R. 644 ; 1 R. R. 566 573 Rogers v. Dallimore, (1815) 6 Taunt. Ill ; 16 R. R. 592 . , . . 5, 239 V. James, (1891) 8 Times L. R. 67 197 V. Stanton, (1817) 7 Taunt. 575, n. 538 Rolland v. Cassidy, (1888) 13 App. Cas. 770 ; 57 L. J. P. C. 97 ; 59 L. T. 873, P. C 394, 415 Roper V. Lenden, (1859) 1 E. & E. 825 ; 28 L. J. Q. B. 260 ; 5 Jur. (N. S.) 491 ; 7W. R. 441 113 V. Levy, (1851) 7 Ex. 55 ; 21 L. J. Ex. 28 ; 2 L. M. & P. 621 . . . 269 Rosev. Redfern, (1861) 10 W. R. 91 489 Rosenbaum v. Belson, [1901] W. N. 124 243 Ross V. Boards, (1838) 8 A. & E. 290 ; 7 L. J. (N. S.) Q. B. 209 ; 47 R. R. 590 . 216, 29Q 452 V. Clifton, (1841) 9 Dowl. 356 ; 5 Jur. 268 ; 61 R. R. 816 . . 2,^4,' 455 V. (1843) 2 Dowl. (N. S.) 983 ; 12 L. J. Q. B. 265 ; 7 Jur. 601 . 558 Rosse V. Hodges,'(1698) 1 Ld. Raym. 233 227, 472 Roulstone v. Alliance Insurance Co., (1879) 4 L. R. Ir. C. L. 547 . . 475, 492 Round V. Hatton, (1843) 10 M. & W. 660 ; 2 Dowl. (N. S.) 446 ; 12 L. J. Ex. 7 ; 62 R. R. 721 1, 454 Rouse and Meier, In re, (1871) L. R. 6 C. P. 212 ; 40 L. J. C. P. 145 ; 23 L. T. 685 ; 19 W. R. 438 46, 48 Routh V. Peach, (1796) 3 Anst. 637 452 Routledge v. Thornton, (1812) 4 Taunt. 704 ; 13 R. R. 734 . . . . 325 Rowcliffe V. Leigh, (1876) 3 Ch. D. 292 ; 24 W. R. 782. See Leigh, In re. Rowe V. Crossley, (1912) 108 L. T. 11 (C. A.) 3, 92, 105 V. Sawyer, (1839) 7 Dowl. 691 284 Royston v. Rydal, (1605) Rolle Ab. Arb. H 8 220, 449 Rubinstein, in re, (1913) unreported 128 Rudstoni;. Yates, (1641) March N. C. Ill, 141 19,20 Rule V. Bryde, (1847) 1 Ex. 151 ; 16 L. J. Ex. 256 216 Rumbold v. L. C. C, (1909) 100 L. T. 259 239 Rumseyy. King, (1876)33 L. T. 728 534 Ruuciman v. Smyth, (1904) 20 T. L. R. 625 89, 314 Russell, j5'x^rtrs. 6, 11 c. 17 (Waterworks Clauses Act, 1847), ss. 6, 12 . c. 27 (Harbours, Docks, and Piers Clauses Act, 1847), c. 34 (Towns Improvement Clauses Act, 1847), s. 19 hi 845) 93. 1 7. 50 I, 57, 69, 153, 156, . 259, 8, 9, 11, 48, 59, 181, 197, 235, 262, 27 PAGE 5 . 265,273 . 316, 322 94, 236, 237, 239, 258, 281 . 581 . 16 . 273 267, 450 . 450 157, 158 151, 152 262, 298 . 16 8, 11, 48 . 65 134, 397 127, 328 . 138 . 495 132, 144, 270, 273, 367, 489 65, 144 134, 397 . 328 . 118 . 134 138, 357 197, 443 . 443 . 217 9 . 210 9 . 9,48 9 . 65 134, 397 . 328 . 118 134, 397 138, 357 198, 443 . 494 . 443 . 467 9 9 9 9 TABLE OF STATUTES Ivli 10 & 11 Vict. c. 38 (Land Drainage Act, 1847), ss. 10, 11 . c. 65 (Cemeteries Clauses Act, 1847), s. 6 . 12 Vict. c. 99 (Inclosure Act, 1848), ss. 13, l4 . . 13 Vict. c. 45 (Quarter Sessions Act, 1849), ss. 12, 13, 14 . c. 106 (Bankrupt Law Con.solidation Act), s. 153 c. 108 (By-Law Consolidation Act, 1849), s. 153 . 14 Vict. c. 83 (Abandonment of Railways Act, 1850), s. 25 15 Vict. c. 99 (Evidence Act, 1851), s. 16 . 16 Vict. c. 80 (Court of Chancery Act, 1852), s. 42 . 18 Vict. c. 34 (Attendance of Witnesses Act, 1854), s. 1 . c. 67 (Defence Act, 1854), s. 1 . c. 125 (Common Law Procedure Act, 1854). s. 3 520, 525, 526, s. 5 53, 140, s. 8 160, 161, 163, 11 & 12 & 13 & 14 *& 15 & 17 & 9 . 467 5, 539, 540, 542, 670 231 32 9 136 508, 509 302 16 500, s. 11 s. 12 s. 13 s. 14 87, 95, 99, 101, 102, 104, 114, 115, 116, 312, s. 15 . . . . 153, 154, 155, 156, 157, 159, 335, s. 17 48, 52, 258, 18 & 19 Vict. c. 117 (Ordnance Board Tran.sfer Act, 1855) c. 120 (Metropolis Local Management Act, 1855), s. 225 20 & 21 Vict. c. 85 (Divorce and Matrimonial Causes Act, 1857), ss. 21, 26 22 & 23 Vict. c. 59 (Railway Companies Arbitration Act, 1859) s. 2 . s. 9 . s. 10 s. 11 s. 12 s. 14 s. 15 s. 18 s. 19 s. 20 s. 21 s. 24 s. 27 23 & 26 & 29 & 31 & 32 & 33 & 34 & 35 & 36 & 24 Vict. c. 27 Vict. c. 30 Vict. c. 32 Vict. c. c. 33 Vict. c. c. 34 Vict. c. c. c. 35 Vict. c. 36 Vict. c. 37 Vict. c. 25 s. 28 . 127 (Solicitors Act, 1860) . 112 (Telegraph Act, 1863) 62 (Crown Lands Act, 1866) . 110 (Telegraph Act, 1868), ss. 8, 9 119 (Regulation of Railways Act, 1868), s 62 (Debtors Act, 1869), s. 4 73 (Telegraph Act, 1869), ss. 10, 12 23 (Forfeiture Act, 1870) 38 (Attorneys and Solicitors Act, 1870), s, 78 (Tramways Act, 1870), s. 33 41 (Gas Works Clauses Act, 1871), s. 27 77 (Metalliferous Mines Regulation Act, 1872), s. 21 66 (Judicature Act, 1873). s. 29 281 s. 45 s. 56 s. 57 a. 58 527, 574 144, 148 164, 165 315, 316 117, 127 129, 131 . 326 342, 345 320, 370 . 16 11 18 8 9 135, 334 . 135 . 49 . 328 125, 354 . 125 138, 357 . 357 358, 397 218, 463 . 444 . 495 . 495 . 582 17 . 16 17 9 282, 448 . 17 . 22 . 317 109, 181 11 17 499, 500, 501, 502, 504, 508, 500, 504, 519, 520, 523, 524, 525, 526, 545, 37 & 38 Vict. c. c. c. s. 83 s. 100 42 (Building Societies Act, 1874) 62 (Infants' Relief Act, 1874), s. 2 68 (Attorneys and Solicitors Act, 1874), s. 12 . 147 . 658 519, 550 529, 550 546, 547 548, 658 138, 496 14, 15 20 . 491 Iviii TABLE OF STATUTES 38 & 39 Vict. c. c. 40 & 41 Vict. c. 41 & 42 Vict. c. c. 45 & 46 Vict. c. c. c. 47 & 48 Vict. c. c. 50 & 51 Vict. c. 17 (Explosives Act, 1875) . 55 (Public Health Act, 1875) 51 & 52 Vict. c. c 52 & 53 Vict. c. 53 & 54 Vict. c. 54 & 55 Vict. c. c. c. c, c. c. c. 23 (Prison Act, 1877) 32 (Metropolis Management Amendment Act, 1878) 76 (Telegraph Act, 1878) .... 50 (Municipal Corporations Act, 1882), s. 153 56 (Electric Lighting Act, 1882) 75 (Married Women's Property Act, 1882) 41 (Building Societies Act, 1884) 61 (Judicature Act, 1884), s. 8 . s. 9 26 (Allotments and Cottage Gardens (Compensation Act, 1887) 58 (Coal Mines Regulation Act, 1887), s. 47 12 (Electric Lighting Act, 1888), ss. 2, 5 . 41 (Local Government Act, 1888) s. 40 s. 63 PAOE 328 10. 156, 181, 198, 23*5, 261, 263, 272, 298, 331, 351, 353, 366, 495 12, 328 11 17 11 11, 493 . 19 . 15 . 529, 659 . 520, 564 for Crops) . 17 . 328, 347 11 10 11 . 306 48, 236, 539, 136, 189, 547, 55 e^ 56 Vict. 56 & 57 Vict. 67 & 58 Vict. c. 58 Vict. c. 58 & 59 Vict. c. 59 & 60 Vict. c. 60 & 61 Vict. c. 62 & 63 Vict. c. 63 & 64 Vict. c. 1 Edw. VII. c. 2 Edw 6 Edw VII. VII. 8 Edw. VII. c. c. c. c. c. 9 Edw. VII. c. c. 10 Edw. VII. c. c. 1 & 2 Geo. V. c. 43 (County Courts Act, 1 s. 14 s. 104 .... 63 (Interpretation Act, 1889) 39 (Partnership Act, 1890). ss. 5, 6 . s. 40 44 (Judicature Act. 1890) 70 (Housing of the Working Classes Act, 1890), s. 21 39 (Stamp Act, 1891) . . . .72, 73. 325, 388, 54 (Ranges Act, 1891), s. 11 75 (Factory and Workshop Act, 1891), s. 8 43 (Military Lands Act, 1892), ss. 20, 21 . 39 (Industrial and Provident Societies Act, 1893), s. 49 53 (Trustee Act, 1893), s. 21 . 63 (ilarried Women's Property Act, 1893) 73 (Local Government Act, 1894) 16 (Judicature Act, 1894), s. 1 . . 66, 116, 146, 264, 307, 47 (Building Societies Act, 1894), s. 20 ccxiii. (London Building Act, 1894j . 11 (Lands Clauses (Taxation of Costs) Act, 1895) 37 (Factory and Workshop Act, 1895). s. 12 25 (Friendly Societies Act, 1896), s. 68 . 30 (Conciliation Act. 1896), ss. 2, 3 . 48 (Light Railways Act, 1896) . 43 (Military Manoeuvres Act, 1897), s. 6 . 19 (Electric Lighting (Clauses) Act, 1899) 50 (Agricultural Holdings Act, 1900) 22 (Factory and Workshop Act, 1901) 42 (Education Act, 1902), s. 25 and Sched. II, 20 (Revenue Act, 1906), s. 9 . 58 (Workmen's Compensation Act, 1906) 28 (Agricultural Holdings Act, 1908) 32 (Friendlv Societies Act, 1908), s. 6 33 (Telegraph Act, 1908) . 36 (Small Holdings and Allotments Act, 1908) 69 (Companies (Consolidation) Act, 1908), s. 119 20 (Telegraph Act, 1909) 44 (Housing of the Working Classes Act, 1909), s. 29 8 (Finance (1909-10) Act, 1910\ s. 33 . 48, 150, 181, 34 (Small Holdings and Allotments Act, 1910) 6 (Perjury Act, 1911). s. 1 s. 17 . 13, 14, 10, 173, F . 668 580, 668 335, 336 22 79 568, 569 . 17 442, 668 16 12 16 14, 17 29, 31 19 10 570, 659 . 306 10, 262 400, 494 12 235, 306 . 12 181, 299 . 16 11, 12 . 328 12, 328 10 442, 670 17, 90 254, 491 13 17 17 8 17 17 182, 226 17 . 139 . 139 TABLE OF STATUTES lix HACK 1 & 2 Geo. V. c. 50 (Coal Mines Act, 1911), ss. 116-118 1' 4 & 5 Geo. V. c. 7 (Agricultural Holdings Act, 1914) 17 c. 59 (Bankruptcy Act, 1914). s. 1 261 s- '^6 32 5 & 6 Geo. V. c. 54 (Munitions of War Act, 1915) 17 c. 99 (Munitions of War Act, 1916) 17 6 & 7 Geo. V. c. 63 (Defence of the Realm (Acquisition of Land) Act, 1916), s. 8 I 7 INTRODUCTORY. L_WHAT MATTERS MAY BE REFEREED TO ARBITRATION. 3. Matters affecting the Civil I titer est. i of the Parties. Concerning personal chattels or personal wrongs. Concerning real property. Questions of law. Charges of fraud. Construction of wills. Questions affecting charities. Illegal transactions. Future use of property. Matrimonial causes. Judgments. Actions. Civil proceedings at Quarter Sessions. '2. Matters of a Criminal Nature. •3. References under Special Statutes. Public and private rights. Companies. Lands Clauses Acts. Railway companies. Public Health Act, 1875. Local Govei'nment Acts. Education Act, 1902. London Building Act, 1894. Metropolis Management Acts. Municipal Corporations Act, 1882. Gas Works Clauses Act, 1871. Electric Lighting Acts. Prisons. Conciliation Act, 1896. Factory and Workshop Acts. Friendly Societies Acts. Building Societies Acts. Crown lands. Defence, Ranges, and Military Lands Acts. Military Manoeuvres Act. Enfranchisement of copyholds. Other statutes. 1. Matters affecting the Civil Interests of the Parties. Concerning personal chattels or personal wrongs. " Generally in all actions where damages only are to be recovered ;arbitrament is a good plea" (Blake's case (1606), 6 Rep. 43 b). Hence all matters in dispute concerning any personal chattel or personal wrong may be referred (Bac. Ab. Arb. A ; Black. Com. III., 21st ed., 16; Baker v. Townshend (1817), 7 Taunt. 422). Breaches of contract in ■general, breaches of promise of marriage (16 Edw. IV., 2 pi. 6), trespass {Bound V. Hatton (1842), 10 M. & W. 660), slander (Linch v. Dactj (1666), 1 Keb. 848), questions relating to tolls (Allen v. Milner (1831), 2 C. & J. 47), or tithes (Prosscr v. Goringe (1811), 3 Taunt. 426), or the purchase price of property (Round v. Hatton (1842), 10 M. & W. '^60) are all capable of being referred to arbitration. 1 1 WHAT MAY BE REFERRED Concerning keal property. There was formerly great jealousy in permitting questions relating to the title to real property to be determined by arbitration (see Com. Dig. Arb. D 3; Rolle, Ab. Arb. B 14, E 2, F 9, K 15, V.). Eealty could not pass except by means of the appropriate conveyance. An arbitrator could direct a feoffment or release, but his award could not replace them, or operate 'per se as a conveyance. " The right of real property cannot thus pass by a mere award : which subtilty in point of form (for it is now reduced to nothing else) had its origin in feudal principles; for if this had been permitted the land might have been aliened collusively without the consent of the superior " (Black. Com. III., 21st ed., 16). An arbitrator may be given jurisdiction to order a partition between joint tenants {Knight v. Burton (1705), 6 Mod. 231) or tenants in common {Johnson v. Wilson (1741), Willes, 248), or to settle the position of a disputed boundary {Taylor v. Parry (1840), 1 M. & G. 604; Boodle v. Davies (1835), 3 A. & E. 200), or to deal with questions of title to real property {Bourns v. Coojier (1841), 2 Q. B. 256 ; 11 L. J. Q. B. 2 ; Doe d. 3Iorris v. Bosser (1802), 3 East, 15 ; Boss v. Clifton (1841), 9 Dowl. P. C. 356), or of waste {Hunter v. Bice (1812), 15 East, 100). But the award is not of itself sufficient to transfer property, real or personal, from one person to another. Illustrations. 1. Under a submission of "all actions, suits, debts, trespasses, damages and demands," the arbitrators may award the surrender of possession of a house. Per Treby, C.J. : " Things in the realty might be submitted as well as things in the personalty, but they could not be recovered upon the award" {Marks v. Marriot {1691), 1 Ld. Eaym. 114). 2. Under a submission to arbitration of all disputes between a landlord and tenant the arbitrator ordered that a stock of hay left by the tenant on the premises should be delivered to the landlord upon payment by him of a certain sum. Held that the property in the hay did not pass by the mere force of the awards and if the tenant would not deliver it up, the landlord must sue on the award and not in trover {Hunter v. Eice (1812), 15 East, 100). 3. H. and K. desired to effect an exchange of certain portions of their respective estates, and submitted to arbitration what amount of land should be given by each to the other. Held that the award did not operate as a conveyance of the legal estate in the lands found to be transferable, but was decisive so as to enable either party to obtain specific performance of the agreement contained in the submission {Henry v. Kirwan (1859), 9 Jr. C. L. E. (N. S.) 459). civil interests 3 Questions of law. Parties may refer a pure question of law to an arbitrator, either legal or lay ; and if it be their intention that the arbitrator shall finally decide the question, they will be bound by his award, although accord- ing to law it may be a wrong and mistaken decision, provided that the error in law does not appear on the face of the award (see Ching v. Ching (1801), Q Ves. 282; Yo2i7ig v. Walter (1804), 9 Ves. 364; Price V. Hollis (1813), 1 M. & S. 105; Steff v. Andrews (1816), 2 Madd. 6;. Jupp V. Grayson (1834), 3 Dowl. 199 ; Ashton v. Poynier (1834), 3 Dowl. 201; Armstrong v. Marshall (1836), 4 Dowl. 593; Huntig v. Railing (1840), 8 Dowl. 879; Wilkinson v. Page (1842), 11 L. J. Ch. 193; 1 Hare, 276 ; Mathew v. Davis (1842), 1 Dowl. (N. S.) 679 ; Rowe v. Crossley (1912), 108 L. T. 11 ; King and Duveen, In re, [1913] 2 K. B. 32; 82 L. J. K. B. 733; and commentary on s. 11 of the Arbitration Act, 'post). Charges of fkaud. In eases where fraud is charged the Court will generally refuse to send the dispute to arbitration if the person charged wishes a public enquiry, but when the objection to arbitrate is by the person charging the fraud the Court will not of necessity accede to it, and will never do so unless a primd facie case of fraud is proved {Russell v. Russell (1880), 14 Ch. D. 471. See commentary on s. 4 of the Arbitration Act, post). Construction of wills. The construction of a will may be referred to arbitration, as may any other point of law (Steff v. Andreivs (1816), 2 Madd. 6), but it has been held that a proviso in a will that any difference arising thereunder shall be referred is bad (Philips v. Bury (1695), Skin. 469). Questions affecting charities. Questions affecting charities may be referred, but semhle only with the consent of the Attorney-General (see A.-G. v. Fea (1819), 4 Madd. 274; Prior v. Hemlrow (1841), 10 L. J. Ex. 371), or after an applica- tion to a Master to ascertain that a reference would be for the benefit of the charity (A.-G. v. Heiuitt (1804), 9 Ves. 232 ; see also A.-G. v. Clenmits (1823), 1 Turn. & E. 58). The person to whom such a refer- ence is made should be described by his name and not as arbitrator, for the reference is not made to him as an arbitrator (A.-G. v. Hewitt (1804), 9 Ves. 232). Illegal transactions. Where the subject-matter of a reference is illegal no award can be of any binding effect (see Steers v. Lashley (1794), 6 T. K. 61 ; Auhert v. 4 WHAT MAY BE REFERRED Maze (1801), 2 Bos. & Pul. 371 ; S'mith v. Bedccr, Gray & Co. (1915), 112 I* T. 914), but where mixed questions of law and fact have been sub- mitted to arbitration, and the transactions between the parties have been closed by a general award, good on the face of it, the Court will not, on the suggestion that some illegal matter has been included, enquire into this, or re-open the questions, in order to set aside the award upon this ground. Illu&tratio'n. An arbitrator in awarding upon disputes between the parties in general allowed in account between them certain premiums of insurance on the voyage of a vessel to a hostile port. Held that, although this apparently was an illegal transaction, the Court would not re-open the matter and set aside the award {Wohlenburg v. Lageman (1815), 6 Taunt. 251). Future use of property. Questions as to the future use of property by the parties are often submitted to the decision of arbitrators, who are frequently given powers in this respect beyond those possessed by any Court. Illmtrations. 1 . An arbitrator was given power to set out a way which was to be enjoyed by one party over the lands of another {Allenhy v. ProudJock (1835), 4 Dowl. P. C. 54). 2. An arbitrator was given power to decide as to the ownership and right of user of a pump and the position of a boundary hedge, and the rights of the parties for the future as to their enjoyment and occupation and their liabiHties in respect of upkeep {Boodle v. Davies (1835), 3 A. & E. 200). 3. An arbitrator was given power to decide as to the future conduct of the parties in reference to property about which an action for trespass had been commenced and had been referred to him {Wrightson v. Byioater (1838), 3 M. & W. 199). 4. An arbitrator was given power to give directions as to the future use by the parties of a flue, which was alleged to have been obstructed by one of them, a waterspout which was alleged to have been diverted, and a watercourse over which one party was complaining that the other had built {Ross v. Clifton (1841), 9 Dowl. P. C. 356). Matrimonial causes. The terms of deeds of separation between a husband and wife are frequently referred to arbitration {De Ricci v. De Ricci, [1891J P. 378). It is now settled that there is nothing illegal or contrary to public policy or morals in agreements of this nature, whether they arise out of compromises of suits for dissolution of marriage or otherwise. The CIVIL INTERESTS 5 right to compromise such suits is a natural corollary to the right to institute them (see per Jessel, M.E., in Besant v. Wood (1879), 12 Ch. D., at p. 622), and such agreements have frequently been specifically enforced {Hart v. Hart (1881), 18 Ch. D. 670. See also Soille%ix v. Herhst (1801), 2 Bos. & Pul. 444 ; Bateman v. Olivia, Cotmtess of Ross- (1813), 1 Dow, 235, H. L. ; Hooim^ v. Hooper (1860), 1 Sw. & Tr. 602). Judgments. " There is no doubt that the parties to a judgment may refer ta arbitration the question whether the judgment has been properly obtained, whether it has been satisfied, whether it is void, or even whether it is erroneous, and an award might be made that such judg- ment should be released or satisfied " {per Fitzgerald, J., quoting Roberts V. Marriett, 2 Wms. Saunders, 190, in Barry v. Grogan (1868), 16 W. R. 727). Actions. At common law any action, except an action on a penal statute by a common informer (see 18 Eliz. c. 5, s. 3), might be referred to arbitra- tion by consent, at any stage of the proceedings, from the issue of the writ {Rogers v. Dallimo7'e {1815), 6 Taunt. Ill; Wynne v . Edvjards (1844), 12 M. & W. 708) to the trial at Nisi Prius {Allenhy v. Prov.dloch (1835), 4 Dowl. P. C. 54). Parties may still, with the leave of the Court, refer a cause or matter to arbitration ; and the Court has power to refer certain causes or matters for trial without consent, but in such cases the reference is not strictly a reference to arbitration, because it does not arise out of a submission (see^ commentary on s. 14 of the Arbitration Act, post). Civil proceedings at Quarter Sessions. Formerly civil proceedings at Quarter Sessions could not be referred to an arbitrator for final decision, though the justices might refer the matter and found their judgment upon the report of the referee (see Rex v. Harding (1697), 2 Salk. 477). Nor could matters determinable by appeal to the sessions be decided by an award on the mere agree- ment of the parties without an appeal {Thorp v. Cole (1835), 2 C. M. & R. 367; affirmed in error, 1 M. & W. 531). But by 12 & 13 Vict. c. 45, s. 12, after notice of appeal has been given to the General or Quarter Sessions against any order, rate, or other matter (except a summary conviction, or an order in bastardy, or any proceeding relating to revenue or the post-office), the parties, by leave of a judge of the King's Bench, may refer the matter of the appeal to arbitration, and the award may be enforced by attachment, or as a judgment of the Court of Quarter Sessions; and by s. 13 >€ WHAT MAY BE REFERRED of the same Act, after an appeal has been entered, the Court of Quarter Sessions may refer it, with the consent of the parties, on such terms as the Court may think proper, and the award, on the application in due time of either party, may be entered as a judgment of the sessions. Where there is an agreement for the submission of such matters, questions of estoppel may arise, even though the award may be invalid. Illustration, A vestry made a poor rate, and a railway company, being dis- satisfied with its assessment, gave notice of appeal, and the matter was referred and an award made reducing the assessment. Held that, whether the award bound the vestry or not, the vestry had estopped themselves from proceeding by summons or distress to recover the rate as originally assessed {London tfc North Western Rail. Co. v. Bedford (18.52), 17 4 B. 978). 2. Matters of a Criminal Nature. In considering whether a criminal matter or proceeding may be referred to arbitration, regard must be had to whether the matter or proceeding is one which the policy of the law would or would not permit to be compromised. If not, then it will not be capable of being removed from the ordinary tribunals of the land. . . ; " Causes criminal are not arbitrable, because they ought to be punished for the common good " (Bac. Ab. Arb. A). " If the offence is of a public nature, no agreement can be valid that is founded on the consideration of stifling a prosecution for it " ( 23^1' Denman, L. J., in Keir v. Leeman (1844), 6 Q. B., at p. 321). This is still correct law with regard to all felonies and all matters where the offence is of a public nature. But " where a party injured has a remedy by action as well as by indictment, nothing can deter f^uch party from referring the adjustment of the reparation whicli he is to receive to arbitration, although a criminal prosecution may have been commenced" (Baker v. Toivnshe^id (1817), 1 B. Moove, 2}er Gibbs, C.J., at p. 124; 7 Taunt. 422. See also B. v. Bardell (1836), 5 A. & E. 619; S. C. nom. E. v. Shilliheer, 5 Dowl. 238, ^:)e?' Patteson, J., and R. v. Hardey (1850), 14 Q. B., at p. 541, where Patteson, J., approved of this dictum, with the remark that " with leave of the Court " should be added). Many misdemeanors may validly be made the subject of reference, and frequently are so dealt with, with the sanction of the Court {Drage t: Ihherson (1794), 2 Esp. 643; Blanchard v. Lilly (1808), 9 East, 497; R\. Moate (1832), 3 B. & Ad. 237). CRIMINAL MATTERS 7 Illustrations. 1. K. indicted certain persons for riot and assault upon a con- stable. L. and P. (third persons) promised to pay K. certain sums if he did not proceed with the prosecution. K., with leave of the Judge, forebore to prosecute further, and sued L. and P. for the moneys promised. Held that the consideration for the promise was unlawful and the action not maintainable (Keir v. Leeman (1846), 6 Q. B. 308 ; 9 Q. B. 371). 2. To refer an indictment for perjury or (semble) for conspiracy would be illegal, but after verdict of acquittal, no evidence being offered, there is nothing illegal in the parties referring all matters in dispute, there being no corrupt agreement to stifle a prosecution (R. v. Hardey <1850), 14 Q. B. 529; cf. Edgcomhe v. Rodd (1804), 5 East, 294). i\^o/e. — Notwithstanding the authority of this case, indictments for conspiracy would seem to be referable, where by the agreement of reference the parties have given the matter a civil character (see Re Metropolitan Omnibus Co. (1860), 1 L. T. 294*; R. v. Corhishley (1824), 2 L. J. (0. S.) K. B. 150). 3. An indictment for non-repair of a highway cannot be referred, as it is a public matter, and, if an award is made, it will not be enforced, even though the submission has been made a rule of Court {B. v. Blakemore (1850), 14 Q. B. 544. See also Windhill Local Board of Health v. Vint (1890), 59 L. J. Ch. 608; 45 Ch. D. 351, C. A., a case of obstructing a highway). 4. An indictment against a person for being a cheat was compromised before trial, and the prisoner acquitted for want of prosecution. To an objection by Talbot, L.C., that this was an agreement to stifle a prosecution for felony, it was answered that it was not, but was a compromise of a misdemeanor merely, and the objection was not further insisted upon {Johnson v. Ogilhy (1734), 3 P. W. 277). 5. B. indicted T. for an assault, and T. was convicted. B. also claimed that T. had again assaulted him, and T. had a claim against B. for possession of certain land. It was agreed to refer all these disputes. The arbitrator awarded <£10 in satisfaction of the assaults and £50 in respect of costs incident to the indictment and proceedings. B. sued T. on the award. Held that these matters might legally be referred (Baker V. Townshend (1817), 7 Taunt. 422; cf. JFatson v. APCullum (1800), 8 T. R. 520; Elworthy v. Bird (1825), 2 Sim. & Stu. 372). It would seem that a reference is not barred, in cases where it would otherwise be permissible, by the fact of a conviction having been recorded {Bceley v. Wingficld (1809), 11 East, 46; Baker v. Tovmshend (sup.); but see E. v. Harding (1697), 2 Salk. 477). Where an indictment is pending it would seem that the consent of the Court ought to be obtained if a reference is agreed upon, though the absence of such consent does not necessarily invalidate the iaward. 8 WHAT MAY BE REFERRED Illustration. K. preferred an indictment against C. and others for riot and assault, and C. preferred a like indictment against R. and others. By consent of the parties all disputes were referred. On an application to have the award set aside the Court observed that it was usual that such com- promises should be with the leave and under the inspection of the Court (R. V. PMnt (1797), Kyd on Awards, 2nd ed., 64; R. v. Coombs, ibid. 65). 3. References under Special Statutes. Public and private uights. As it often happens that by reason of various conflicting rights private persons cannot, deal with their respective interests in lands as they wish, the authority of Parliament is frequently sought to authorise the submission to arbitration of all the interests concerned, public as well as private. Thus, under the sanction of an Act of Parliament, the inclosing of commons, the allotment of lands, the determining of com- pensation for rights of common, the setting out of public roads, the com- muting of tithes, the defining of boundaries, and the modifying of public and private interests, are frequently effected by an award {Johnson v. Hodgson (1806), 8 East, 38 ; R. v. Nockolds (1834), 1 A. & E. 245 ; Doe d. Hao^ris y. Saundcr (18'SQ), 5 A. & E. 664; Willo^ij/hhy \, Willov^/hoy (1843), 4 Q. B. 687 ; 12 L. J. Q. B. 281). Modern statutes have greatly enlarged the class of cases which may be or which must be determined by arbitration. Companies. By the Companies Clauses Act, 1845 (8 & 9 Yict. c. 16), facilities are given for obtaining an award on questions authorised or directed to be decided by arbitration by any special Act incorporating a joint stock company for the purpose of carrying on any undertaking (see ss. 128- 134). Under the Companies Consolidation Act, 1908 (8 Edw. YII. c. 69), by s. 119, provision is made that any company under that Act may refer to arbitration in accordance with the Railway Companies Arbitra- tion Act, 1859 (22 & 23 Yict. c. 59), any existing or future difference between itself and any other company or person. Lands Clauses Acts. Where any lands are authorised by any Act of Parliament to be taken for undertakings of a public nature, the Lands Clauses Act, 1845- (8 & 9 Vict. c. 18), provides that in case the promoters of the under- taking and the party interested in the lands cannot agree, when the compensation claimed or offered shall exceed fifty pounds, the latter SPECIAL STATUTES &• may claim to have the amount of compensation due to him determined by arbitrators according to the provisions of the Act. Differences as to the price of lands resold by the promoters (8 & 9 Vict. c. 18, s. 130), and the compensation by reason of interests in land being injuriously affected by the works (8 & 9 Vict. c. 18, s. 68), may be determined in like manner. These provisions have also been made applicable for ascertaining the amount of compensation for lands authorised to be taken or used under the provisions of any Act for making markets and fairs (10 & 11 Vict. c. 14, ss. 6 and 11, the Markets and Fairs Clauses Act, 1847), or harbours, docks, and piers (10 & 11 Vict. c. 27, s. 6, the Harbours, Docks, and Piers Clauses Act, 1847), or waterworks for supplying towns with water (10 L't 11 Vibt. c. 17, ss. 6 and 12, the Waterworks Clauses Act, 1847), or improvements in towns (10 & 11 Vict. c. 34, s. 19, the Towns Improvement Clauses Act, 1847), or cemeteries (10 & 11 Vict. c. 65, s. 6, the Cemeteries Clauses Act, 1847) ; and also for the lands taken, and the damages caused to any lands, by proceedings under the Act to Facilitate the Drainage of Lands in England and Wales (10 & 11 Vict, c. 38, ss. 10 and 11). Kailway companies. Under the Eailways Clauses Act, 1845 (8 & 9 Vict. c. 20), s. 6„ compensation for lands taken or used for the construction of any rail- way, or injuriously affected thereby, and other matters may be determined by arbitration under that Act and the Lands Clauses Act, 1845 (8 & 9 Vict. c. 18). The Kailway Companies Arbitration Act, 1859 (22 & 23 Vict. c. 59),, makes provision, by s. 2, for reference to arbitration by any two or more railway companies of any differences, questions, or other matters in which they may be mutually interested, and which they might lawfully settle by agreement between themselves. Differences arising on an agreement giving one railway company running powers on certain terms over the line of another may, it seems, be thus referred {Llanelly Rail. & Dock Co. v. London & North Western Rail. Co. (1875), L. E. 7 H. L. 550 ; 45 L. J. Ch. 539). The amount of compensation due from railway companies in respect of railways authorised to be abandoned, for certain injuries done by their works, is to be settled by arbitration under the Abandonment of Eailways Act, 1850 (13 & 14 Vict. c. 83, s. 25). By the Eegulation of Eailways Act, 1868 (31 & 32 Vict. c. 119), s. 25, where a person has been injured or killed by an accident on a railway, the Board of Trade, upon the joint application in writing of the company and the person injured, or his representative if he is killed, may appoint an arbitrator to determine the compensation, if any, to be paid by the company. 10 WHAT MAY BE REFERRED By the Light Eailways Act, 1896 (59 & 60 Vict. c. 48), an order of the Light Eailway Commissioners, confirmed by the Board of Trade, for the construction of a light railway may incorporate the " Clauses Acts" (s. 11), as defined by the Act (ss. 26, 28), and so far as they are incorporated the light railway company is deemed a railway company (s. 12). It would seem, therefore, that when the Lands Clauses Acts are incorporated, all claims which would be matters for compensation in the case of railways generally will be matters for compensation as regards light railways, and by virtue of s. 13 of the Act must be referred to a single arbitrator appointed by the parties, or, if they do not concur, then by the Board of Trade. The Arbitration Act, 1889, is made applicable to any arbitration under this section. Public Health Act, 1875. Under the Public Health Act, 1875 (38 & 39 Vict. c. 55), provision is made for arbitration with regard to sewers (s. 22), water supply (ss. 52 and 61), paving and sewering streets (s. 150), regulating line of buildings (s. 155), purchase of land (s. 176), exercise of the powers of the Act (s. 308), interfex'ence with rivers, canals, docks, &c. (s. 328), and differences as to the efficiency of sewers substituted for those of the local authority by certain other bodies (s. 333). The only jurisdic- tion of the arbitrator under s. 150 is to decide what proportion of the expenses a particular owner has to pay. He has no power to enquire into the reasonableness of the whole amount or decide any question as to liability {Re Stoker and Morpeth Corporation Arbitration, [1915] 2 K. B. 511. See also Bayley v. Wilkinson (1864), 16 C. B. (N. S.) 161 ; 33 L. J. M. C. 161 ; Be Cawston and Bromleij U. B. C. (1900), 64 J. P. 760; Re Hanivell U. D. C. and Smith (1904), 68 J. P. 496). Local Government Acts. Under the Local Government Act, 1888 (51 & 52 Vict. c. 41), and the Local Government Act, 1894 (56 & 57 Vict. c. 73), provision is made for arbitration in various matters. Education Act, 1902. By the provisions of s. 25 of the Education Act, 1902 (2 Edw. VIL c. 42), and the Second Schedule of that Act, par. (22), s. 68 of the Local Oovernment Act, 1894, is to apply with respect to any adjustment required for the purposes of the Education Act. London Building Act, 1894. Under the London Building Act, 1894 (57 & 58 Vict. c. ccxiii.), there are various provisions for the settlement of disputes by arbitration. SPECIAL STATUTES 11 Metropolis Management Acts. Under the Metropolis Local Management Act, 1855 (18 & 19 Vict, c. 120), the amount of any compensation to be made under s. 225 must, if the claim exceeds £50, be settled by arbitration under the Lands Clauses Act, 1845. Where the owner of a theatre or place of public entertainment, as described in s. 11 of the Metropolis Management and Building Acts Amendment Act, 1878 (41 & 42 Vict. c. 32), has been required, in con- sequence of defects in its structure from which special danger from fire might result, to remedy such defects, he may appeal against the require- ments of the board and may have the matter referred to an arbitrator appointed by the First Commissioner of Works. The powers, duties, and liabilities of the Metropolitan Board of Works are transferred to the London County Council by s. 40 (8) of the Local Government Act, 1888 (51 & 52 Vict. c. 41). Municipal Corporations Act, 1882. By the Municipal Corporations Act, 1882 (45 & 46 Vict. c. 50), s. 153, it is enacted that any difference arising concerning the account required by that section to be sent by the treasurer of a county to the council of a quarter sessions borough shall be decided by the arbitration of a barrister named by the Secretary of State. Gas Works Clauses Act, 1871. By s. 27 of the Gas Works Clauses Act, 1871 (34 & 35 Vict. c. 41), it is provided that any difference between the undertakers and any local authority in relation to the supply or consumption of gas to or by such' local authority shall be settled by arbitration in manner provided by the Companies Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 16). Electric Lighting Acts. By the Electric Lighting Act, 1882 (45 & 46 Vict. c. 56), pro- vision is made for arbitration in various matters ; and by the Electric Lighting Act, 1888 (51 & 52 Vict. c. 12, s. 2), the value of the under- taking, which a local authority at the end of the prescribed period is authorised to purchase, is to be ascertained by arbitration. By s. 5 of the last-mentioned Act these two Electric Lighting Acts are to be read and construed together as one Act ; and except as otherwise expressly provided, any matter directed to be determined by arbitra- tion is to be determined by an engineer or other fit person to be nominated as arbitrator by the Board of Trade (45 & 46 Vict. c. 56, s. 28). The Schedule to the Electric Lighting (Clauses) Act, 1899 (62 & 63 12 WHAT MAY BE REFERRED Vict. c. 19), contains provisions which are to be incorporated with, and form part of, every Provisional Order made under the Electric Lighting Acts, 1882 and 1888. The Act does not apply to the County of London, except so far as any of the provisions contained in the Schedule are incorporated with any Provisional Order, or with any special Act, extending to the County of London (s. 2). There are many matters to which the provisions for arbitration relate set out in the Schedule to the Act. A reference to arljitration and an award under s. 18 of the Schedule do not bar the right to proceed for the penalties which are provided for by that section {Chcpstom Electric, &c., Co. v. Chepstmc Gas^. &c., Co., [1905] 1 K. B. 198; 74 L. J. K. B. 28). Peisons. Under the Prison Act, 1877 (40 & 41 Vict. c. 21), s. 55, the Secretary of State and a prison authority may refer any matter of difference between them to the arbitration of a single arbitrator. Conciliation Act, 1896. By the Conciliation Act, 1896 (59 & 60 Vict. c. 30), s. 2, where a difference exists or is apprehended between an employer, or any class of employers, and workmen, or between different classes of workmen, the Board of Trade may, in addition to other powers, on the application of both parties to the difference, appoint an arbitrator. The Arbitration Act does not apply to an arbitration under this Act, but the proceedings are to be conducted in accordance with such provisions of the Arbitra- tion Act or such rules and regulations as may be mutually agreed upon by the parties (s. 3). Factory and Woekshop Acts. Under the Factory and Workshop Act, 1891 (54 & 55 Vict. c. 75),. s. 8, objections to rules or requirements as to the use of any machinery or process, to which the Secretary of State does not assent, are to be referred to arbitration under the Act. By s. 12 of the Factory, &c.. Act, 1895 (58 & 59 Vict. c. 37), provision is made on such an arbitration for the appointment of a person to represent the workmen, or any class of them ; and the appointed person may himself, or by his counsel, solicitor, or agent, take part in the pro- ceedings to such extent and in such manner as the arbitrators or umpire may direct, and is liable to costs as if he were a party. The arbitrations under s. 8 of the Factory, &c.. Act of 1891 are governed by the provisions in the First Schedule to that Act. By the Factory and Workshop Act, 1901 (1 Edw. VII. c. 22), s. 14, differences between the owner and the district council as to the means of escape in case of fire are to be referred to arbitration. SPECIAL STATUTES 13 Friendly Societies Acts. The Friendly Societies Act, 1896 (59 & 60 Vict. c. 25), s. 68 (1), as amended by s. 6 of the Friendly Societies Act, 1908 (8 Edw. VII. c. 32), provides that every dispute between (a) a member or person claiming through a member or under the rules of a registered society or branch, and the society or branch, or an officer thereof; or (b) any person aggrieved who has ceased to be a member of a registered society or branch, or any person claiming through such person aggrieved, and the society or branch, or any officer thereof ; or (c) any registered branch of any society or branch, and the society or branch of which it is a branch ; -or (d) an officer of any such registered branch, and the society or branch of which that registered branch is a branch ; or (e) any two or more registered branches of any society or branch or any officer thereof respectively, shall be decided in manner directed by the rules of the society or branch, and the decision so given shall be binding and conclusive on all parties without appeal and shall not be removable into any Court of law or restrainable by injunction, and application for the enforcement thereof may be made to the County Court. By subs. (2) the parties to a dispute in a registered society or branch may, by consent (unless the rules of the society or branch expressly forbid it), refer the dispute to the chief registrar, or in Scotland or Ireland to the assistant registrar, and by subs. (.3) the chief or other registrar to whom the dispute is referred shall, with the consent of the Treasury, either by himself or by any other registrar, hear the dispute. It was held in Willis v. Wells, [1892] 2 Q. B. 225, a case under the repealed Friendly Societies Act, 1875, that similar provisions in that Act had no application to a dispute as to whether a person was entitled to reinstatement as a member of the society on the ground that he had been wrongfully expelled (see also Prentice v. London (1875), L. R. 10 C. P. 679; Falliser v. Dale, [1897] 1 Q. B. 257). But the Friendly Societies Act, 1908 (8 Edw. VII. c. 32), by s. 6 added a new subsection to 6. 68 of the Act of 1896, as follows : — (8) " In this section the expression ' dispute ' includes any dispute arising on the question whether a member or person aggrieved is entitled to be or to continue to be a member or to be reinstated as a member, but, save as aforesaid, in the case of a person who has ceased to be a member, does not include any dispute •other than a dispute on a question between him and the society or branch or an officer thereof which arose whilst he was a member, or arises out of the previous relation as a member to that society or branch." The effect of these provisions is that the Courts have no jurisdiction to consider disputes to which they apply, or to review any award which is made in accordance with the rules, in the absence of any allegation of misconduct on the part of the officials of the society (Caii v. Wood, {1910] A.C. 404 ; Crichton v. Dairy Myrtle Lodge of Free Gardeners (1904), 14 WHAT MAY BE REFERRED 6 F. 398), But the jurisdiction of the Courts is not excluded where the officials of the society are charged with misconduct, e.g. where they have violated the principles of natural justice by expelling a member without granting him a hearing ( Wayman v. Perseverance Lodge, etc., Friendly Society, [1917] 1 K. B. 677). And the course of procedure laid down by the rules must be strictly followed {In re Hogg (1897), 14 T. L. Ft. 210 ;. cf. Cox V. Hutchinson, \1^W\ 1 Ch. 513; Stone v. Liverpool Marine Society (1894), 63 L. J. Q. B, 471), otherwise a party aggrieved will be entitled to apply to the Courts for relief (AndrevjsY. Mitchell, [1905] A. C. 78 ; M'Gou-an v. City of Glasgow Friendly Society, [1913] S. C. 991). So an action will lie to enforce tlie decision of the tribunal of arbitration if the society refuses to recognise it (Collins v. Barroivfield United Odd- fellows, [1915] S. C. 190). In Winter v. Wilkinson, [1915] 1 Ch. 317, the plaintififs, who were trustees of a friendly society, brought an action against the trustees of a branch lodge for having distributed funds of the society in breach of the rules, which provided that money wrongfully divided by a lodge should be recoverable by legal process. It was held that, as the defen- dants were sued as trustees and not as members of the society, there was no dispute to which the provisions of s. 68 applied. And in M'Ellistrim v. Ballymacelligot, &c., Society, [1917] 1 I. R. 93, a case under s. 49 of the Industrial and Provident Societies Act, 1893 (56 & 57 Vict, c. 39), it was held that a claim that certain new rules were idtra vires was not a dispute between the society and its members. By s. 68 (6) of the Act, where the rules of a society contain no direc- tion as to disputes or where no decision is arrived at within forty days after application to the society or branch for a reference under its rules, the person aggrieved may apply to the County Court or to a Court of summary jurisdiction and the Court may hear and determine the matter,, but, in the case of a society with branches, the said forty days shall not. begin to run until application has been made to all the bodies entitled to determine the dispute under the rules of the society or branch, so however that no rules shall require a delay greater than three months between each successive determination. Where the arbitrators have given a decision which is liable to be set aside on the ground of irregularities, the jurisdiction of the justices under this section will not arise unless and until the decision has been set aside {Bache v, Billingham, [1894] 1 Q. B. 107. See also B. v. Grant (1849), 14 Q. B. 43, and cf. Eifson v. Dohson (1911), 104 L. T. 808). Building Societies Acts. The Building Societies Act, 1874 (37 & 38 Vict. c. 42), contains provisions (ss. 34-36) respecting arbitrations under the Act whenever the rules of the society direct disputes to be referred to arbitration SPECIAL STATUTES 1;5- (ss. 34-36). The Building Societies Act, 1884 (47 & 48 Vict. c. 41), defines " disputes." When the matters in dispute are between the building society and the member, as member, such matters must be referred to arbitration; if arbitrators have been duly appointed ( Wright v. Monarcli Investment Building Society (1877), 5 Ch. D. 726 ; 46 L. J. CIi. 649). When it was the meaning of the rules that there should' be standing arbitrators, from whom three were to be chosen by lot for each dispute, and none had been appointed until after action brought, nevertheless it was held that the action should be stayed {Norton v. Counties, dec, Building- Society, [1895] 1 Q. B. 246, overruling Christie v. Northern Counties, &c.,' Building Society (1889), 43 Ch. D. 62). If the society neglects to appoint arbitrators in accordance with its rules the proper course is for the member to apply for a mandamus to compel it to do so (ibid.). Where the trustees dispute the plaintiff's title to be a member they cannot compel him to refer the question to arbitration {Prentice v. London (1875), L. E. 10 C. P. 679 ; Palliser v. Dale, [1897] 1 Q. B. 257 ; Andrews v. Mitchell, [1905] A. C. 78 ; 74 L. J. K. B. 333). A member withdrawing from the society claimed payment of his shares. The board refused, on the ground that other claimants had a priority, and that there were not funds enough to pay all. Upon an action being brought by the member, it was held that the matter must be referred to arbitration ( Wright v. Deley (1866), 4 H. & C. 209 ; Walker v. General Mutual, &c.. Building Society (1887), 36 Ch. D. 777 ; Davies v. Chatham, &c., Building Society (1890), 61 L. T. 680). The Building Societies Act, 1884 (47 & 48 Vict. c. 41), provides that the word "disputes" does not include disputes as to the effect or construction of a*ny mortgage deed. The society, therefore, may sue for money due from a member under such a deed {Western Suburban, &c., Building Society v. Martin (1886), 17 Q. B. D. 609 ; and see Mulkern v. Lord (1879), 4 App. Cas. 182), though while the Act of 1874 was alone in force it would have had to go to arbitra- tion {Municipal Permcinent, &c., B^tilding Society v. Kent (1884), 9 App. Cas. 260; Hack v. London Provident Building Society (1883), 23 Ch. D. 103). A claim by a society against its officer for misappropriating and keeping in his hands moneys of the society is not a dispute between the society and a member thereof "in his capacity of a member," and will not be referred to arbitration {Mimicipal Permanent Building Society V. Richards (1888), 39 Ch. D. 372; 58 L. J. Ch. 8; see Midlock v. Jenkins (1851), 14 Beav. 628). A magistrate is bound to issue a distress warrant to enforce the award. He may not refuse on the ground that the society has been expending its funds illegally, and become a freehold land building society {Hughes v. D'Eyncourt (1864), 4 B. & S. 820; 33 L. J. M. C. 89). i6 WHAT MAY BE REFERRED Ckown Lands. Disputes between the Commissioners of Woods and Forests and other persons touching the boundaries or extent of Crown lands, or as to rights or easements over or claimed in respect of such lands, may be referred to arbitration (10 Geo. IV. c. 50, s. 94). By the Crown Lands Act, 1866 (29 & 30 Vict. c. 62), ss. 7 and 8, the powers of the Commis- sioners of Woods and Forests with regard to foreshore are transferred to the Board of Trade, and the provisions of 10 Geo. IV. c. 50, as to arbitration, are made applicable to the foreshore under the management of the Board of Trade. Ss. 26-29 contain provisions as to the pro- ceedings in any arbitration under either Act of Parliament. Defence, Eanges, and Military Lands Acts. Under the Eanges Act, 1891 (54 & 55 Vict. c. 54), s. 11, where any land is acquired either under the Defence Act, 1842 (5 & 6 Vict. c. 94), and the Acts amending the same, or for military purposes under any Act with which the Lands Clauses Acts are incorporated, the person or authority acquiring the land may require that the compensation to be paid for the land be settled by arbitration and not by reference to a jury, and thereupon the provisions of the Lands Clauses Act with reference to compensation apply. The Military Lands Act, 1892 (55 & 56 Vict. c. 43), contains (s. 20) similar provisions with regard to lands taken under that Act, and further provides (s. 21) that any dispute as to the compensation to be paid to the owner of land for damage caused in the erection or repair of " alignment marks " shall be determined by arbitration under the Arbitration Act, 1889. By the Defence Act, 1854 (17 & 18 Vict. c. 67), s. 1, as amended by the Ordnance Board Transfer Act, 1855 (18 & 19 Vict. c. 117), the Secretary of State for War may avail himself of the powers of the Lands Clauses Act, 1845, for the purpose of extinguishing any rights of common over any lands the soil of which may have been taken under the Defence Act, 1842 (5 & 6 Vict. c. 94). Compensation for extinguishing such rights may therefore become the subject of arbitration. Military Manoeuvres Act. By the Military Manoeuvres Act, 1897 (60 & 61 Vict. c. 43), s. 6, where an Order in Council authorises the execution of military manoeuvres, compensation is to be paid for any damage to person or property arising from putting in force any of the provisions of the Act, and the amount of such compensation, if not settled by agreement, is to be referred to arbitration. The notice of claim for compensation is to be treated as a submission under the Arbitration Act, and that Act is to apply accordingly. special statutes 17" Enfranchisement of copyholds. Under the Copyhold Act, 1894 (57 & 58 Vict. c. 46), s. 5, the amount of compensation for the enfranchisement of copyhold land may be determined by the valuation of valuers appointed for the purpose (not by arbitration). Other statutes. The following statutes also contain provisions for references to arbitration : — The Telegraph Acts, 1863 (26 & 27 Vict. c. 112), ss. 16, 22-34; 1868 (31 & 32 Vict. c. 110), ss. 8 (7), 9 ; 1869 (32 & 33 Vict. c. 73), ss. 10, 12 ; 1878 (41 & 42 Vict. c. 76), ss. 3-6, 13 ; 1908 (8 Edw. VJI. c. 33), ss. 1, 3, 5 ;. and 1909 (9 Edw. VII. c. 20). The Tramways Act, 1870 (33 & 34 Vict. c. 78), s. 33. See Norwich Corporation v. Norwich Electric Tramways Co., [1906] 2 K. B. 119. The Metalliferous Mines Regulation Act, 1872 (35 & 36 Vict. c. 77),. s. 21. The Allotments and Cottage Gardens (Compensation for Crops) Act, 1887 (50 & 51 Vict. c. 26). The Housing of the Working Classes Acts, 1890 (53 & 54 Vict. c. 70), s. 21, and 1909 (9 Edw. VII. c. 44), s. 29. The Industrial and Provident Societies Act, 1893 (56 & 57 Vict. c. 39), s. 49. The Workmen's Compensation Act, 1906 (6 Edw. VII. c. 58). The Small Holdings and Allotments Acts, 1908 and 1910 (8 Edw. VII. c. 36 ; 10 Edw. VII. and 1 Geo. V. c. 34). The Agricultural Holdings Acts, 1908 (8 Edw. VII. c. 28), and 1914 (4 & 5 Geo. V. c. 7). The Coal Mines Act, 1911 (1 & 2 Geo. V. c. 50), ss. 116-118. The Munitions of War Acts, 1915 and 1916 (5 & 6 Geo. V. cc. 54 and 99). The Defence of the Eealm (Acquisition of Land) Act, 1916 (6 & 7 Geo. V. c. 63), s. 8.. 18 WHO MAY REFER II._WHO MAY EEFER MATTEES TO AEBITEATION. Generally. Married women. Infants. JJankrupts. Persons of unsound mind. Convicts. Partners. Parties with common interests. Sureties. Corporations, sole and aggregate. Agents. Solicitors. Executors and administrators. Trustees. Committees of lunatics. Public officer. Trustees in bankruptcy. Generally. Every person who has a right of which he can dispose is competent to submit questions affecting that right to arbitration, and any dis- abihties that affect the right of disposal will equally affect his^right of submission (Com. Dig. Arb. D 2 ; Bac. Ab. Arb. C). Married women. At common law married women, in general, had no right of con- tracting at all and hence had no power of submitting disputes to arbitration. Equity, however, recognised their right to hold and contract with regard to property given to them for their separate use, and to the common law rule there were certain exceptions. Thus women who were married in fact were treated by the common law as being and having all the rights of unmarried women if their husbands were civiliter mortui, e.g. because they were banished or exiled {Countess of Portland v. Prodgers (1689), 2 Vern. 104), or were suffering trans- portation {Ncv.-some v. Bowyer (1729), 3 P. W. 37 ; Sparroiv v. CaiTuthers (1800), 2 Black. W. 1197), or were alien enemies {Deerly v. Duchess of Mazarine (1696), 1 Salk. 116), or had abjured the realm, or were members of some religious order (see Co. Litt. 1 Inst. 133 a). The absence of the husband from the country must, however, be involun- tary in order to place his wife in the position of a feme sole {Marsh v. Hutchinson (1800), 2 Bos. & Pul. 226, distinguishing Sparrovj v. Carruthers, supra; Barclen v. De Kcverherg (1836), 2 M. & AV. 61). Another exception was that women trading under the custom of the City of London had, even though they were married, full rights of contract, and consequently of submitting disputes with regard to matters arising out of such trade to arbitration. And where a married woman has obtained a protection order under the Divorce and Matri- monial Causes Act, 1857 (20 & 21 Yict. c, 85), s. 21, or a judicial separation under s. 26 of the same Act, she is to be considered as a feme sole for the purposes of contract, wrongs, injuries, or being sued or PERSONS INTERESTED 19, suing in any civil proceeding, and is therefore capable of submitting disputes to arbitration as freely as if she were unmarried. With these exceptions, however, married women, under the old law, were not competent to bind themselves contractually, and so could not submit to arbitration, nor would the Court of Chancery, as it did in the •case of infants, permit a reference to the Master to decide whether a submission would be for the benefit of the married woman {Davis v. Page (1804), 9 Ves. 350 ; Strachan v. Dougall (1851), 7 Moo. P. C. 365). Nor could a married woman effectually consent to be bound by an award already made {Evans v. Cogan (1727), 2 P. W, 450), and the marriage of a female party to a submission formerly sufficed to revoke the authority of the arbitrator to make an award {Charnlcy v. WinstaniUy (1804), 5 East, 266; MCan v. aFerrall (1840), 8 CI. & F. 30). Xow, however, by virtue of the Married Women's Property Acts, 1882 (45 & 46 Vict. c. 75) and 1893 (56 & 57 Vict. c. 63), a married woman can by contract, and so by a submission to arbitration, bind her separate property whether in possession or subsequently acquired, which is not subject to a restraint on anticipation, as freely as a feme sole. But property which she is restrained from anticipating is not bound by her contracts by the operation of these Acts. " It appears •clear upon the true construction of the proviso to s. 1 of the JMarried Women's Property Act, 1893, that the Legislature intended that a ■contract entered into by a married woman should not bind property as to which she was restrained from anticipation, and that such property should stand entirely clear from any liabilities or engagements con- tracted by her during coverture " {loer Mathew, L.J., in Brown v. Dimllehj, [1904] 1 K. B. 28. See also Barnctt v. Hoimrcl, [1900] 2 Q. B. 784). Under the old law a husband could submit to arbitration any disputes respecting personalty which he had in the right of his wife, for he could dispose of it (Bac. Ab. Arb. C ; Anon. (1641), March, 77 ; Smith V. Ward (1652), Styles, 351), and an award in favour of the husband upon such a reference operated in case of a chose in action to reduce it into his possession, and so defeated the wife's right by survivorship {Oglander v. Baston (1686), 1 Vern. 396). Questions of this kind, however, could only now arise in cases where the marriage took place, and the title to the property accrued, before the passing of the Married Women's Property Act, 1882 (see above). lly'FANTS. At common law, generally speaking, a contract made by an infant was voidable by him, and hence, as a general rule, a submission to arbitration by an infant was not binding upon him (Bac. Ab. Arb. C ; Com. Dig. Arb. D 2; 1 llolle, Ab. Arb. A 268; Rudston v. Yates 20 WHO MAY REFER (1641), March, X. C. Ill, 141). To this general rule there were- exceptions in the case of reasonable contracts for necessaries, reasonable contracts of service, and contracts plainly for the benefit of the infant- himself, by all of which he was bound, and it would seem that a sub- mission by an infant in respect of any of these matters was equally binding (see Ruclston v. Yates, suj)ra ; Clements v. London tC' North Western Rail. Co., [1894] 2 Q. B. 482). An infant, by ratifying a voidable contract when he came of age,, could render it binding upon him, and if he did not repudiate the- contract within a reasonable time after majority, he would be treated as having affirmed it {Echcards v. Carter, [1893J A. C. 360). But it is now provided by the Infants' Belief Act, 1874 (37 & 38 Vict. c. 62), s. 2, that no action shall be brought to charge any person upon any ratification, made after full age, of any promise or contract made during infancy, whether there shall or shall not be any new consideration for such promise or ratification after full age. The result, therefore, seems to be that a submission to arbitration by an infant is voidable by him and cannot effectively be ratified, except when it relates to the supply of necessaries, a reasonable contract of service, or a contract plainly for the infant's benefit, and then it is binding upon him even during infancy, and quite apart from any question of ratification. It is quite competent for persons of full age to bind themselves for performance by infants of awards, either alone or jointly with the infants. Thus, a father or guardian may bind himself that an infant son or ward shall perform an award {Gill v. Russell (1672), Freem. 62, 139 ; Roherts v. JVeichold (1695), Comb. 318 ; Bowycr v. Blorhsidge (1681), 3 Lev. 17; In re Hurley (1832), 1 Hay. & Jo. 160). If a man of full age is jointly bound with the infant, the obligation will bind the former (Com. Dig. Arb. D 9 ; Bean v. Neichury (1664), 1 Lev. 139). But if the award direct that, on payment by defendant of a sum of money, the infant shall execute a release, though the submission to which he is a party may be good, as it may be for his benefit, yet the award will be void, as an infant cannot execute a binding release ; and the father will be unable to enforce the arbitration bond against the defendant {Knight V. Stone (1628), W. Jones, Eep. 164; S. C. Stone v. Knight, Latch, 207;. Noy, 93). Under Order XVL, r. 21, in all causes or matters to w^hich any infant is a party " any consent as to the mode of taking evidence or as to any other procedure " will, " if given with the consent of the Court or a judge by the next friend, guardian, or other person acting on behalf of the infant, have the same force and effect as if the infant were under no disability and had given such consent." Probably under this rule the Court or a judge would sanction the reference of a cause or matter to which an infant was a party, if of opinion that the reference was for the benefit of the infant. PERSONS INTERESTED 21 If parties to suits to which infants also are parties agree to refer, they cannot evade their submission, or defeat the award, on the ground that the infants were not bound ; for they must be presumed to have known that tlie infants could not be bound, and therefore in the consent of the persons of full age they have all the consideration for which they have stipulated {Wrightson v, Byu-ater {l'ii'd>^), 3 M. & W. 199; 7 L. J. (X. S.) Ex. 83; Jones v. Powell (1838), 6 Dowl. 483; In re Warner (1844), 2 D. & L. 148 ; 13 L. J. Q. B. 370). Bankrupts. A bankrupt is not deprived of his right to contract, although hig estate passes to the trustee in bankruptcy and is subject to the bank- ruptcy laws. He is therefore able to submit to arbitration, although he cannot, by so doing, affect the rights of his creditors. Illustration. M., a bankrupt, submitted a dispute concerning a promissory note and the rights of the parties or of M.'s assignees to it. The award was against M., and he was ordered to pay the costs of the reference. Held that M. was not incapacitated, although the claim had passed to his estate, and must pay the costs {In re Milnes and Robertson (1854), 15 C. B. 451). As to submissions by trustees in bankruptcy, nee post, p. 32. Persons of unsound mind. Idiots or natural fools, i.e. those of unsound mind from birth, have no power to contract and therefore none to submit to arbitration. Lunatics, i.e. those who have had understanding but have lost the power of reason, are liable to pay a reasonable price for necessaries supplied to them even by persons having knowledge of their lunacy, and other contracts are binding upon the lunatic unless he can prove that the other contracting party knew him to be so insane as not to be capable of understanding what he was about (Imperial Loan Co. v. Stone, [1892] 1 Q. B. 599 ; and see jVolton v. Camroux (1849) 4 Ex. 17). A lunatic so found by inquisition cannot, even in a lucid interval, so long as the finding is in force, validly deal with his property {In re Walker, [1905] 1 Ch. 160). It would seem, therefore, that a lunatic may submit to arbitration, and so long as he is not, to the knowledge of the other party, so insane as not to know what he is doing, the submission will bind him, unless he has been found lunatic by an inquisition still in force. As to submissions by committees, seoj^ost, p. 31. Convicts. Formerly any person convicted of treason or felony was subject to the law of forfeiture (Bullock v. Dodds (1819), 2 B. & Aid. 258). But 22 WHO MAY REFER the Forfeiture Act, 1870 (33 & 34 Vict. c. 23), provides that no convic- tion or judgment of or for any treason or felony shall entail any forfeiture or escheat. By the same Act, however, a convict, i.e. a person against whom judgment of death or penal servitude shall have been pronounced, upon any charge of treason or felony, is disabled,, while subject to the operation of the Act, from bringing any action or suit, at law or in equity, or alienating or charging any property, or making any contract except during such time as he may be lawfully at large under licence. On ceasing to be subject to the Act the convict regains all his powers of contracting. It would seem, therefore, that a convict, except when on licence, cannot submit to arbitration. Partners. By the Partnership Act, 1890 (53 & 54 Vict. c. 39), s. 5, "Every partner is an agent of the firm and his other partners for the purpose of the business of the partnership ; and the acts of every partner who does any act for carrying on in the usual way business of the kind carried on by the firm of which he is a member bind the firm and his partners^ unless the partner so acting has in fact no authority to act for the firm in the particular matter, and the person with whom he is dealing either knows that he has no authority, or does not know or believe him to be a partner." And by s. 6, " An act or instrument relating to the business of the firm and done or executed in the firm-name, or in any other manner showing an intention to bind the firm, by any person thereto authorised, whether a partner or not, is binding on the firm and all the partners. Provided that this section shall not affect any general rule of law relating to the execution of deeds or negotiable instruments." But " to enter into a submission for arbitration is no part of the ordinary business of a trading firm " (jycr Best, C. J., in Stead v. Salt (1825), 3 Bing., at p. 103). Consequently no authority can be implied for any one partner to bind his co-partners by a submission, and they will only be bound by his submission upon proof that they have either expressly authorised it beforehand or have subsequently adopted and ratified his act (Stead v. Salt (1825), 3 Bing. 101 ; Adams v. Bankhart (1835), 1 C. M. & E. 681. See, however, Burnell v. Minot (1820), 4 Moo. C. P. 340). Such authorisation need not be in writing or otherwise formal {Wood v. Thompson (1647), Ptolle, Ab. Arb. 523), but it must be actual {Ball v. Dunsterville (1791), 4 T. Pi. 313; Adams v. Banhharf (1835), 1 C. M. & P. 681), and the authority will only extend to matters, to which it relates, and will not be construed as covering other questions. Illustration. On a dissolution of partnership one of the partners was authorised to collect all debts due to, and to pay all debts due from, the partner- PERSONS INTERESTED 23^ ship. He commenced an action against an alleged debtor, who pleaded, a set-oflP. The partner then agreed to refer the action and all matters in dispute between the parties. The partner had no authority from the firm to refer these questions. Held that the award did not bind his partners (Hatton v. Eoyle (1858), 3 H. & N. 500. See also Bobertsm v. Eatton (1857), 26 L. J. Ex. 293). The other partners may, however, adopt an unauthorised submission by a co-partner and so make it binding upon themselves, e.ff. by being present when the submission is made and not objecting, or by attending before the arbitrator without protest. Illustrations. 1. A partner executed a deed, purporting to bind himself and his partner, though he alone sealed it. The other partner was present and took no objection. Held that the deed was binding upon both partners {Ball V. Dunsterville (1791), 4 T. R. 313). 2. T., the managing partner of a colliery, without informing the other partners, submitted to arbitration a dispute as to the workings being carried on beyond the boundary. The other partners made no objection and attended before the arbitrator. But they refused to con- tribute towards the sum awarded, and T. sued them. They complained that T. had wilfully carried the work beyond the boundary. Held by Bacon, V.-C, that T. could not recover, as it was shown that the partners had assented in ignorance of material facts, so that their assent did not amount to a ratification of T.'s act in submitting, without which the submission did not bind the partners. On appeal it was held that the partners had assented so as to make the award binding upon them as to the fact of trespass and quantum of damage, though, being of the opinion that T. had been reckless in the operations, the Court affirmed the decision that his partners were not liable {Thomas v. Atherton (1878), 10 Ch. D. 185). Where partners sign a submission on the faith that the other partners are also going to sign it, the submission will only become effective when all have signed (see 2^^^ Eldon, L.C., in Button v. Morrison (1810), 17 Ves., at p. 199). Illustration. Four partners entered into an agreement to refer to arbitrators th& question of the partnership accounts and all other difierences between them or any two of them. Only two partners executed the agreement. Held that an award made was of no effect, because the submission was not valid until executed by all, and did not bind any until all had signed, for the submission of all was the consideration for the submission of each {Aniram v. Chace (1812), 15 East, 209). The fact that a partner purporting to submit on behalf of himself 24 WHO MAY REFER and the other partners does not bind them does not make the submis- sion the less binding upon him, and if he undertakes that the award shall be performed it is none the less a breach of his undertaking if his partners will not perform their share because they are not bound. Illustrations. 1. When a person submits on behalf of himself and other interested persons, be will be bound though they may not be without express authority {Mudy v. Osam (1628), Litt. Rep. 30). 2. G., on behalf of himself and his partner, referred all disputes between S. and themselves to arbitration, and undertook to perform the award. Held that he must do so, but that his partner was not bound by the submission (Slrangford v. Green (1678), 2 Mod. 228). Parties with common interests. If one or more interested parties submit a dispute to arbitration, they cannot bind the other interested parties without express authority, but will bind themselves none the less effectually for that, and if they undertake that such other parties shall perform the award the fact that those parties are not bound will form no excuse for the breach •of that undertaking. Illnstration. A parson and certain of his parishioners purported to submit a dispute on behalf of themselves and the rest of the parishioners, and entered into a bond whereby the parishioners undertook to perform the award. Held that as no authority was proved from the rest of the parishioners only the signatories were liable, and they were liable for breaches by the other parishioners {Mudy v. Osam (1628), Litt. Kep. 30 ; see Bac. Ab. Arb. C). "Where parties agree jointly and severally to refer a dispute and bind themselves jointly and severally to perform the award, each is liable to perform the whole award, and not merely the part of the award which affects his own interest, although the interests may be •several. Illustrations. 1. Two several tenants of a farm agreed with the succeeding tenant to refer matters in difference, and jointly and severally promised to perform the award. The arbitrator awarded that each tenant should pay their successor a certain sum. Held that the two tenants were jointly liable for the sums payable by each (Mansell v. Roheris (1797), 7 T. k .352). ; 2. T. bound himself with two others to perform an award. • The award ordered that each of the three should pay the plaintiff' 20s. T. was sued and pleaded that he had tendered his 20s. Held that he PERSONS INTERESTED 25 was bound to carry out the whole award (Genne v. TinJcer (1681), 3 Lev. 24). Sureties. An award against a principal debtor will not bind a surety in the absence of a special agreement on tlie part of the surc^ty {I!x parte Young (1881), 17 Ch. D. 068). Corporations, sole and aggregate. Corporations are subject to restrictions, in many cases, with regard to contracts, and these restrictions will apply equally to submissions to arbitration. Thus, if a corporation can only validly contract under its common seal, a submission must be under seal in order to be binding. The restrictions and requirements in each case depend upon the nature of the corporation, and the statutes or regulations by which it is governed, and the particular class of contract in question (see Ludlov: {Mayot) V. Charlton (1840), 6 M. & W. 815, 822; Chitty on Contracts, 16th ed., 315 e^ seq.). Corporations sole, e.g. rectors or bishops, as a rule have full con- tractual capacity, though not necessarily so as to be able to bind their successors. Although it is stated in the Year-Books that an award made upon the submission of a prior will bind his successors in the office (2 H. 4, 4 b ; Kolle, Ab. Arb. 268, A 3), it would seem that this doctrine must be qualified to some extent. At any rate where the successor would have a personal interest by virtue of his office, e.g. in the case of a question of tithes payable to the holder of the office for the time being for his own use, it would seem that this personal interest could not be entirely controlled by the acts of his predecessor. Illustration. A rector came to an agreement with his parishioners whereby they should pay him an annual sum in lieu of tithes. Held that this arrange- ment, at any rate in the absence of proof that allowance had been duly made for the increasing value of the tithes, did not bind the succeeding rector {A.-G. v. Chomky (1765), 2 Eden, C. C. 304). Corporations aggregate, subject to the restrictions mentioned above, may be parties to arbitrations as well as individuals. The act, however, must be that of the corporation as a whole. A dean without his chapter, a mayor without his commonalty, or the master of a college or hospital without his fellows cannot, by a submission, bind the corporation, for the same reason that he cannot bind it by any other contract (see l>ac. Ab. Arb. C ; 21 Edw. 4, 13). Agents. An agent may be authorised to enter into a submission to arbitra- tion, and if he does so, his liability and that of the i)rincipiil would 26 WHO MAY REFER seem to be based upon the same principles as the liability of principal and agent in respect of other contracts (see Bowstead on Agency, 5th ed.). In order to avoid any personal liability the agent should see that he is properly authorised (see infra). For the same reason he should submit expressly as agent {Adams v. Staley (1678), 2 Show. 61). For if he fails to make it clear that he submits only as agent he will be bound personally {Bacon v. Duharry (1697), 1 Ld. Raym. 246). And a fortiori, if the agent binds himself for th& performance of the principal, the agent is personally liable in the case of the principal's failure to perform the award (Bac. Ab. Arb. C ; Dyer, 216 b; Alsop v. Senior (1670), 2 Keb. 707, 718; Shelf \. Baily (1709), 1 Com. Rep. 183). Illustration. A., acting as attorney for B., bound himself to submit all matters- in difference between B. and C. The award ordered that A. should pay certain moneys to C. A. refused to perform the award, saying that he was not a party. Held that the award was good {Cayhill V. Fitzgerald (1744), i Wils. 28, 58). Where the submission is by parol the authority must depend upon the facts in each case, and it may be express or implied. " Authority conferred in general terms is construed as authority to act only in the usual way and according to the ordinary course of business " (Bowstead on Agelicy, 5th ed., 69). Illustrations. 1. An agent signed a policy of insurance on behalf of a defendant,, and subsequently agreed on his behalf to the reference of a dispute after a loss. The award ordered that the defendant should pay a certain sum, and the defendant disputed the agent's authority to refer. Held that the fact that the agent was in the habit of settling losses for the defendant, who subsequently recouped him, was sufficient evidence of authority {Goodson v. Brooke (1815), 4 Camp. 163). 2. A. was authorised to receive goods under a bill of lading as agent for B., who was in turn agent for C. A. demanded the goods of the captain of the vessel bringing them, who refused to deliver them. A. then submitted the question to arbitration. Held that A. had acted properly, and was entitled to be recouped for the costs of the reference as a part of the due expense of his agency {Curtis v. Barclay (1826), 5 B. & C. 141). 3. The master of a salving vessel signed an agreement with the defendants, the owners of the vessel to be salved, known as " Lloyd's- salvage agreement," which contained an arbitration clause. The ship- owners commenced an action upon the agreement, and the defendants, applied for a stay under s. 4 of the Arbitration Act, 1889. A stay was refused, and it was held by the Court of Appeal that the judge AGENTS 2r had rightly exercised his discretion in view of the doubt as to whether the master could bind the shipowners to arbitration {The City of Calcutta (1898), 79 L. T. 517. See also The Margery, [1902] P. 157). Hote. — It must be remembered that a parol submission to arbitration was and is perfectly good, but under 9 & 10 Will. III. c. 15, as well as- under the Common Law Procedure Act, 1854, a parol submission could not be made a rule of Court, and under the Arbitration Act, 1889,. a submission must be in writing, otherwise it is outside the provisions, of the Act. Agents, therefore, like other people, must submit to^ arbitration in writing to come within the Arbitration Act. But the authority of the principal to the agent to make the submis- sion need not, it would seem, be in writing. There does not appear to be any authority on this specific point, but inasmuch as an agent may be appointed by word of mouth even where he is authorised to enter inta a contract required by statute to be in writing (see cases cited in Bowstead on Agency, 5th ed., at p. 41), it is probable that no valid objection could be raised to an oral authority for a written submission to arbitration. A party may be authorised by a power of attorney to submit to arbitration, and also to bring an action upon the award in his own name. The nature and extent of the authority depend in each case upon the- terms of the power. Illustrations. 1. A. and B. assigned all debts due to them to C, and gave him a power of attorney to receive and compound for them. C. submitted to arbitration a dispute between A. and B. and L. The award ordered a. sum to be paid to C as attorney. Held that C. could sue in his own name (Baiijil v. Leigh (1800), 8 T. K. 571). 2. S. gave his son a power of attorney to act on his behalf in dis- solving a partnership, with authority to appoint any other person as he might see fit. Held that this gave the son power to submit questions of account to arbitration (Henley v. p (1864), 2 Ct. of Sess. Cas. (3rd series) 1334). 3. Under a building contract payments were agreed to be made upon the certificate of the engineer or his assistant, and it was agreed that disputes between the assistant engineer and the contractor should be finally decided by the engineer, as quasi-arbitrator. Held that no objection to such decision could be taken by the contractor on the ground that the engineer was interested, as this was known to the contractor when the arrangement was agreed upon (Banger v. Gi'eat Western Rail. Co. (1854), 5 H. L. C. 72. See, however, PicJdhall v. Mefrthyr Tydfil Local Board (1886), 2 T. L. R. 80-5). 4. Where the parties had bound themselves in a bond to the DISQUALIFICATION BY INTEREST 41 arbitrator to abide his award, and it was argued that the submission was void because the arbitrator had an interest in making an unreason- able award to obtain the penalty, the objection was overruled {Oivdy v. Gibbons (1688), Comb. 100). 5. Several landowners agreed to refer to an arbiter the direction of certain improvements affecting their lands and the apportionment of the expenses among them. The arbiter by his award expressed himself satisfied with the operations and laid the whole expense on the parties. The arbiter's own lands were benefited by the work, but it was known by the parties before they signed the agreement that this would be so. One of the parties having brought an action to reduce the award, it was. held that the award was good notwithstanding the interest of the arbiter {Johnston v. Chcape (1817), 5 Dow, 247). 6. When a valuer frequently called in by a railv/ay company to value lands taken by them was appointed umpire to assess the value of neighbouring property which they were about to take, and the land- owner made no objection though the position of the umpire was known to him, it was held that he was not entitled to have the award set aside on the ground of the umpire's interest (Clout and Metropolitcin Bail., In re- (1882), 46 L. T. 141). 7. The fact that an umpire, in a reference to arbitration under the Lands Clauses Acts to determine the value of land compulsorily taken,, has during the pendency of the arbitration, and before making his award, acted as a witness on behalf of one of the parties to it in another and similar reference, will not support a motion to set aside his award on the ground of bias {Haigh and London & North Western Rail., and Great Western Bail, In re, [1896] 1 Q. B. 649; 65 L. J. Q. B. 511). 8. A building contract referred disputes to the engineer of the emploj'ers as arbitrator. During the course of the work the engineer in the exercise of his duty as such complained of the way in which certain work had been executed. Held that this did not disqualify him from acting as arbitrator as agreed (Scoff v. Carluke Local Aufhorif// (1S79), 6 Ct. of Sess. Cas. (4th series) 616. See also Marhay v. Barry Barorhial' Board (1883), 10 Ct. of Sess. Cas. (4th series) 1046). 9. A contract between contractors and a dock board for work in connection with the making of a dock provided that all disputes should be referred to the engineer of the board. During the work the board was executing other work in an adjoining dock under the superintendence of the engineer's son, who acted as assistant to his father, and the con- tractors alleged that owing to the son's negligence water escaped from the adjoining dock and damaged the works of the contractors. A dispute having arisen over a claim for damages by the contractors, it was held that the engineer was not disqualified from acting as arbitrator in the matter on the ground of pi'obable bias (Echerdey v. Men^ey Docks, [1894] 2 Q. B. 667). 10. A building contract provided that the employer's engineer should be the arbitrator if disputes should arise. The contractors raised a claim and the engineer, in writing to his employers, described this as- 42 WHO MAY BE AN ARBITRATOR "outrageous." Held that this did not disqualify him from acting as arbitrator as agreed (Cross v. Leeds Corporation (1902), Hudson on Building Contracts, 4th ed., Vol. II. p. 339. See also Halliday v. Hamilton's {Duke of) Trs. (1903), 5 F. 800). 11. A contract for the construction of waterworks provided that disputes should be referred to the employer's engineer as arbitrator. The scheme proved impracticable and the engineer suggested variations and offered the contractors a sum for carrying these out. The con- tractors contended that the sum was grossly inadequate, and that the engineer being anxious to support his own estimate was disqualified as arbitrator. Held that this did not so disqualify him (M'Kee t£- Macnally V. Corporation of Dublin (1912), Hudson on Building Contracts, 4th ed., Vol. II. p. 466). 12. The defendants, who had contracted with a railway company for the construction of a railway, entered into a sub-contract with the plaintiffs for ironwork, the sub-contract providing that the plaintiffs should do the work to the approval of the railway company's engineers, and that all disputes should be referred to the engineers. Disputes having arisen under the sub-contract, the plaintiff brought an action against the defendants. On an application by the defendants to stay the action in view of the agreement to refer : held that the action should be stayed, the mere fact that the engineers had a duty to watch the works on behalf of the company, and might already have formed an opinion upon the matters in dispute, not being enough, in the absence of any evidence that they would not act fairly, to prevent them from being proper persons to decide the disputes {Ives & Barker v. IFillans, [1894] 2 Ch. 478). I^'TEKEST ARISING SUBSEQUENT TO APPOINTMENT. An arbitrator, notwithstanding his suitability for that office at the •date of his appointment, may become unfitted to decide judicially upon the question submitted to him by reason of events between the time of his appointment and the arbitration. This will be so, generally speaking, whenever the arbitrator during this period acquires an interest in the subject-matter of the dispute, or comes into a relationship with either party which, if it had existed unknown to the parties at the time of his appointment, would have operated as a disqualification. Illustrations. 1. A contract between the town council of a burgh and a contractor for work on a building contained a clause referring disputes to a named arbitrator. The arbitrator was afterwards appointed Dean of Guild and became ex officio a member of the Town Council. Held that he was thereby disqualified from acting as arbitrator, and that the disqualifica- tion was not removed by his ceasing to hold the office of Dean of Guild {Edinburgh Magistrates v. Loicnie (1903), 5 F. 711. See also Nuttall v. Manchester Corporation (1892), 8 T. L. K. 513). DISQUALIFICATION BY INTEREST 43 2. An action on a fire policy by the assured against the insurance ompany was referred to arbitration under an arbitration clause in the policy. The assured and the company each appointed an arbitrator, and the arbitrators appointed an umpire. The arbitrators and the umpire all sat together, but differed, and the umpire then made an award in favour of the assured for £1200. On its appearing that the assured, after appointing his arbitrator and before the meetings, had assigned to his arbitrator for value his claim under the policy, the Court, on the application of the company, set aside the award (Blanchard v ' ^un Fire Office (1890), 6 T. L. R. 365). THE AEBITRATION ACT, 1889. (52 & 53 Vict. c. 49). A 71, Act for amending and consolidating the enactments relating to arbitration. * "Amending and consolidating." The Arbitration Act chiefly follows the provisions of the Common Law Procedure Act, 1854, but it also follows the provisions of the Act of 9 Will. III. c. 15, the Act of 3 & 4 Will. IV. c. 42, and the Supreme Court of Judicature Acts, 1873 and 1884, in important particulars. The chief feature of the Act is that it removes to a great extent the old distinction between a submission to a named arbitrator and an agreement to refer, and makes a submission, whether to a named arbitrator or not, irrevoc- able except by the leave of the Court. It introduces for the first time a kind of model set of provisions which are to be implied in all submissions unless a contrary intention appears therein. The power of the Coui't, however, to refer compulsorily to arbitration has not been re-enacted in the Arbitration Act. EULES OF construction. Being a statute of consolidation and amendment it is necessary that a careful comparison should be made between the different repealed sections of the prior Acts and the sections of the Arbitration Act. Without some such comparison it is difficult to appreciate the weight to be attached to decisions under the repealed Acts or the relevancy of these decisions to questions which may arise under the Arbitration Act. "Accord- ing to the rules which govern the decisions of the Courts, if decided cases have determined the construction to be placed on the Common Law Procedure Act, we must adhere to those decisions when we are called upon to place a construction upon that part of the Arbitration Act in which the same language is used in respect of the same subject-matter" (j'er Lord Esher, M.R., In re KeighUy, Maxsted <& Co. and Durant & Co., [1893] 1 Q. B., at p. 408). " It is. a reasonable view that where the Legislature deliberately, as it would seem, incorporates into a statute of consolidation and amendment an expression which has already received judicial construction in one of the statutes so dealt with, there is good ground for interpreting the expression thus adopted in conformity with the decision" {per Wills, J., Hodgson v. Bell (1890), 24 Q. B. D., at p. 305). " The true rule of interpretation where larger words are used in an amending Act than were used in the principal Act is that such larger words were used intentionally, and must have a meaning given to them accordingly "^ {per Lord Esher, M.R., Htirlbaft v. Barnett, [1893] 1 Q. B., at p. 79). PART I. EEFEKENCES BY CONSENT OUT OF COURT. Section 1. EEVOCATION OF SUBMISSIOX AND INJUNCTION. 1. Revocation at common law. Action for damages for revocation. Where arbitrator a stakeholder. 2. Previous legislation. Submission by order of County Court. Lands, Railways, and Companies Clauses Acts. Railway Companies Arbitration Act, 1859. 3. Interpretation of the section. Object of the section. Meaning of " submission." "Agreement to refer " as distinguished from "submission." " Shall have the same effect ... as if it had been made an order of Court." Distinction between arbitration and valuation. " Unless a contrary intention is expressed therein." Not necessary to provide that Arbitration Act shall apply. ■4. Considerations affecting the grant of leave to revoke. Whether the arbitrator will obey the directions of the Court. Whether the parties will agree to statement of a case. Convenience and e.xpense. The time when the application is made. Whether the proceedings would be prolonged by leave being granted. Whether the application is the means of obtaining an authoritative decision. The effect of s. 19 of the Act. Whether a substantial miscarriage of justice will take j)lace if leave is refused. 5. Chief grounds for granting leave to revoke. Error of law or excess or refusal of jurisdiction by arbitrator. Misconduct of arbitrator. Disqualification of arbitrator. Exceptional cases. G.^Revocation by death of a party. Death of one of several parties on same side. Clause to prevent death being a revocation. Lands, Railways, and Companies Clauses Acts. 7. Effect of hanknqjfcy. > •8. Procedure on application for leave to revoke. Appeal. 46 REFERENCE BY CONSENT OUT OF COURT 9. Injunction. Contract impeached. Arbitrator exceeding his jurisdiction. Nothing to refer. To preserve status quo pending arbitration. Action in foreign Court. Corruption or misconduct of arbitrator. Damages the proper remedy. 10. Ajyjjliratio'n of the section to comjmlsoiij arbitratio^ns under statutes. 1. A submission, unless a contrary intention is expressed therein, shall, be irrevocable, except by leave of the Court or a judge, and shall havfr the same effect in all respects as if it had been made an order of Court. 1. Revocation at common law. At common law the authority of an arbitrator might at any time before the award was made be revoked at the pleasure of any party to the submission (Bac. Ab. Arb. B; Green v. Pole (1830), 6 Bing. 443;. Com. Dig. Arb. D 5), whether the submission was by agreement in writing {Newgate v. Derjeldcr (1657), 2 Keb. 10, 20, 24), by bond {Milne V. Gratrix (1806), 7 East, 608), or deed ( Warhurton v. Storr (1825), 4 B. & C. 103 ; 3 L. J. (0. S.) Iv. B. 156), by judge's order {Aston v. George (1819), 2 B. & A. 395 ; Greenwood v. Misdale (1825), 1 M'Clel. & Y. 276), by order of Nisi Prius, or by rule of Court {Green v. Pole (1830), 6 Bing. 443 ; 8 L. J. (0. S.) C. P. 149), and notwithstanding it was made irre- vocable by the express words of the submission, for nothing under a legislative power could make that irrevocable which was in its nature revocable, and the arbitrator being constituted and put in the place of the parties by their consent to act for them, could no longer act than he had such consent, and an award made subsequent to revocation was- a nullity (Bac. Ab. Arb. B). The power to revoke at common law remained even where the sub- mission had been made a rule of Court {Rouse and Meier, In re (1871), L. Pt. 6 C. P. 212; 40 L. J. C. P. 145). But the revocation of the sub- mission after it had been made a rule of Court was a contempt, and an attachment would issue {Haggctt v. Welsh (1826), 1 Sim. 134; Green v, Pole (1830), 6 Bing. 443 ; 8 L. J. (0. S.) C. P. 149 ; Milne v. Gratrix (1806), 7 East, 608), or an action would lie {Skee v. Coxon (1830), 10 B. & C. 483 ; 8 L. J. (0, S.) K. B. 224. See Smith v. Fielder (1833), 10 Bing. 306), against the party revoking. Action for damages for revocation. Where the submission was one that could not be made a rule of Court, the only remedy was by action for breach of covenant {King v. Joseph (1814), 5 Taunt. 452 ; Nolle v. Harris (1678), 3 Keb. 745), or REVOCATION OF SUBMISSION 47 agreement (Newgate v. Degelder (1657), 2 Keb. 10, 20, 24 : Slee v. Coxon (1830), 10 B. & C. 483 ; 8 L. J. (0. S.) K. B. 224) to refer, for the revo- eation is a breach of the promise to "perform" the award (Warhurton V. Storr (1825), 4 B. & C. 103; 3 L. J. (0. S.) K. B. 156; Brotvn. v. Tanner (1825), 1 C. & P. 651). The defendant might plead in answer that he was justified in revoking the submission, and if he could show that he had good grounds for the proceeding, judgment would be given in his favour (Broicn v. Tanner (1825), 1 C. & P. 651; Steivart v. Williamson (1829), 2 M. & P. 765; 7 L. J. (0. S.) C. P. 156). Por form of revocation of a submission by a party, see Appendix of Forms. Where arbitrator a stakeholder. Where a sum of money or chattel was deposited with the arbitrator to abide the event of the award, the arbitrator, being a stakeholder, had' an authority coupled with an interest, which, so far as the deposit was concerned, could not be revoked without the consent of both parties. {Taylor v. Marling (1840), 2 M. & G. 55 ; 10 L. J. C. P. 26 ; Gunton V. Mirse (1821), 5 Moore, 259. See also To2)c v. Hoclcin (1827), 7 B. & C. 101). 2. Previous legislation. In this section, more perhaps than in any other, it is necessary to consider previous legislation, having regard to the words of the section that the submission " shall have the same effect in all respects as if it had been made an order of Court." The history of the legislation in this respect is as follows : — By 9 & 10 Will. III. c. 15 (1698) it was provided that it "shall and may be lawful for all Merchants and Traders and others desiring to end any Controversy, Suit, or Quarrel ... for which there is no other Remedy but by personal Action or Suit in Equity, by Arbitration to agree that their Submission of their Suit to the Award or Umpirage of any Person or Persons should be made a rule of any of His Majesty's Courts of Ptecord, which the parties shall choose. ..." A verbal submission to arbitration could not be made a rule of Court under this statute, even with the consent of both parties (Ansell v. Evans (1796), 7 T. E. 1. See also v. Mills (1811), 17 Ves. 419). Then by 3 & 4 Will. IV. c. 42 (1833) it was considered " expedient," as stated in the Act, "To render references to arbitration more effectual," and by s. 39 it was provided that " the Power and Authority of any Arbitrator or Umpire appointed ... by or in pursuance of any Submission to Pieference containing an agreement that such Submission shall be made a Eule of any of His Majesty's Courts of Pecord, shall not be revocable by any Party to such Peference without the leave of the Court. . . ." This Act only applied therefore to cases where an arbitrator or umpire had been appointed ; that is to say, where there -48 REFERENCE BY C0X8ENT OUT OF COURT had been a submission, and the submission had been made in pursuance of an agreement which provided that the submission might be made: a. rule of Court. By the Common Law Procedure Act, 1854, s. 17, it was provided that "Every Agreement or Submission to Arbitration by Consenti whether by Deed or Instrument in Writing not under Seal, may be made a Eule of any one of the Superior Courts of Law or Equity at Westminster, on the Application of any Party thereto, unless such Agreement or Submission contain Words purporting that the Parties intend that it should not be made a Rule of Court. . . ." This Act made it possible for either party to make a submission irrevocable by applying to the Court to make it a rule of Court, except in cases where the agreement to refer or the submission excluded that right. The effect of these various statutes is referred to in Bouse and Meier, In re (1871), L. E. 6 C. P. 212. This old procedure has been revived by the Finance (1909-10) Act, 1910 (10 Edw. VIL c. 8), which by s. 33 thereof provides that " any order of the referee as to expenses may be made a rule of the High Court." If the referee awards costs it is necessary to apply foi;' his award to be made a rule of Court in order to secure taxation {Matthews v. C. I. K, [1914] 3 K. B. 192). Submission hy order of County Court. A submission by order of a judge of a County Court is not "revoc- able by either party, except by consent of the judge" (51 e^ 52 Vict, c. 43, s. 104). From this section it would seem that with such consent either party might revoke it, notwithstanding the other wished the reference to proceed. The proviso in the section, however, which contains a clause that the judge "may, with the consent of both parties aforesaid, revoke the reference," must be noticed. The ordinary construction of the sentences would imply that this clause applied only in case of proceedings after the award was made ; but after the award is made there is no longer anything to revoke : the arbitrator's power is gone. If the clause is to be considered as generally applicable, it would seem in some measure to militate against the construction put on the first part of the section. Lands, Raihcays, and Companies Clauses Acts. On a reference under the Lands Clauses Act, 1845 (8 & 9 Vict, c. 18, s. 25), the Eailways Clauses Act, 1845 (8 & 9 Vict. c. 20, s. 126), or the Companies Clauses Act, 1845 (8 & 9 Vict. e. 16, s. 128), each party, on the request of the other, must nominate and appoint an arbitrator in the manner prescribed in the several Acts ; and after any such appointment has been made, neither party has power to revoke the same without the consent of the other. REVOCATION OF SUBMISSION 49 Railway Companies Arbitration Act, 1859. Under the Eailway Companies Arbitration Act, 1859, one company having appointed an arbitrator cannot revoke the appointment without the previous consent in writing of the other companies under their common seal (22 & 23 Vict. c. 59, s. 11). 3. Interpretation of the section. Object of the section. " The object of s. 1 of the Arbitration Act is, first, to make a sub- mission irrevocable except with leave ; and secondly, to give the same power of enforcing the arbitrator's award as existed formerly where, by virtue of the agreement between the parties, a submission might be made a rule of Court " {per Mathew, J., In re Shaw and Ronaldson's Arbitration, [1892] 1 Q. B. 91, at p. 93). Meaning of "submission" A submission means what it did before the Act, namely, a reference •of an existing dispute to a particular arbitrator or arbitrators. "The language of s. 1, 'a submission shall be irrevocable,' is ambiguous ; it is applicable, not to the agreement to refer but to the -authority of the arbitrator " {per Bowen, L.J., In re Smith and Service •and Nelson & Sons (1890), 25 (^. B. D. 545, at p. 553). " Agreement to refer " as distinguished from " sitbmission." Parties cannot now and never could revoke an agreement to refer, which, like any other contract, bound the parties. But an agreement to refer is not a submission under this section until a dispute has arisen and an arbitrator has been agreed upon or validly appointed. " The phrase is used which had always been used, ' a submission shall be irrevocable ' ; that is to say, the power of the arbitrator cannot be revoked when he has once been appointed. It does not mean that the agreement to refer is irrevocable, because that always was in the true sense of the word irrevocable " {jper Lord Esher, M.R., In re Smith ■and Service and Nelson rf; Sons (1890), 25 Q. B. D. 545, at p. 550). "There may be an agreement to refer generally without naming the arbitrators; sucli an agreement was always irrevocable, and an action would always lie for its breach although the Court could not compel either of the parties to proceed under it. Tliere may be an agreement to clothe a particular arbitrator with authority, and if one of the parties revoked that particular arbitrator's authority and refused to submit to him, he could not be compelled to proceed. In such a case, though not with exactitude, one might probably talk of revocation of the submission, and of the submission as revocable, although it was 4 50 REFERENCE BY CONSENT OUT OF COURT in truth a revocation of the authority of the arbitrator. The difficulty- here arises because in this Act submission is defined as a written agreement to submit to arbitration whether an arbitrator is named or not. Exacter language was used by the Legislature in framing 3 eS: 4 Will. IV. c. 42, s. 39, which accordingly provides that the power and authority of an appointed arbitrator when the submission has been made a rule of Court shall not be revocable. That shows what is the true thing that is revoked ; the party does not revoke the agreement to refer, but revokes the authority which he has given to the arbitrator " {per Bowen, L.J., In re Smith and Service and Nelson & Sons (1890) 25 Q. B. D. 545, at p. 553. See also Piercy v. YovMff (1879), 14 Ch. D 200 ; Christie v. Noble (1880), 14 Ch. D. 203 ; Ifojfatt v. Cornelitis (1878), 39 L. T. 102). " By common law a submission to a particular arbitrator was revocable at the will of either party, unless it had been made a rule of Court, in which case the leave of the Court must be previously obtained. But this was of the nature of a rescission. Such a revoca- tion involved the breach of no contract, and gave rise to no right of damages. It was merely an exercise of a legal power to revoke which was implied in a submission. On the other hand (as was pointed out by Bowen, L.J., in In re Smith and. Service and Nelson & Sons (1890), 25 Q. B. D. 545), an arbitration clause could no more be revoked than, could any other clause of a contract. Like any other contractual obligation it could be broken, and thereby a claim to damages would' arise. But there was no right to rescind such a contract or contractual obligation. S. 1 of the Arbitration Act, 1889, relates merely to the right to revoke a submission. It has nothing to do with the matters provided for by s. 4 of that Act " (per Fletcher-Moulton, L.J., Doleman V. Ossett Corporation, [1912] 3 K. B. 257, at p. 270). "Shall have the same effect . . . as if it had been made an order of Court." "So far as the latter words of the clause are concerned, 'and shall have the same effect in all respects as if it had been made an order of Court,' the meaning must be that the submission, whether it be a general agreement to refer or not, is to have the same effect as would be given to it before the statute by an act of the parties making it a rule of Court" (jjer Bowen, L.J., In re Smith and Service and Nelson cfc Sons (1890), 25 Q. B. D. 545, at p. 554). Under the Common Law Procedure Act, 1854, s. 17, the submission which was capable of being made a rule of Court was " Every agree- ment or submission to arbitration by consent, whether by deed or instrument in writing not under seal." An oral submission was not within that statute nor is it within the Arbitration Act (see s. 27). REVOCATION OF SUBMISSION 51 It would seem that a parol reference in pursuance of a written agreement to refer future disputes to an arbitrator to be appointed by the parties is a parol submission which is not within the Arbitra- tion Act and can be revoked. It was so before the Act, and such an agreement could not be made a rule of Court, though, if the arbitrator was named in the agreement to refer, the submission was complete as soon as a dispute had arisen, in respect of the particular dispute (ParJces V. Smith (1850), 15 Q. B. 297, referred to by Channell, B., in Rv parte Glaysher (1864), 34 L. J. Ex. 41. See also Deutsche Springstoff Gesellschaft V. Briscoe (1887), 57 L. J. Q. B. 4; Eanclell v. Thompson (1876), 1 Q. B. D. 748). "If there be a general agreement to refer future disputes to one or more persons to be appointed, and in pursuance of that, disputes are referred, the submission is by parol, although the agreement is by deed, and a parol submission cannot be made a rule of Court " {per Pollock, C.B., In re Maitland and Glaysher ; Ux parte Glaysher (1864), 3 H. & C. 442, at p. 445). But it is otherwise if the appointment of the arbitrators is in writing {Neidon v. Hetherington (1865), 19 C. B. (N, S.) 342; Haddan and Boupell, In re (1861), 9 C. B (N. S.) 683 ; Willcox and Storhey, In re (1866), L. E. 1 C. P. 671). When, however, the agreement to refer provides for the appoint- ment of the arbitrator by a third party and the arbitrator is duly appointed, it would seem that upon appointment there is a submission which before the Arbitration Act could have been made a rule of Court and can now be revoked under s. 1 of the Arbitration Act by the leave of the Court. As before stated, the interpretation to be placed on the term " submission " under s. 1 of the Arbitration Act does not affect the interpretation to be placed upon it by s. 4 of that Act. Before the Act, in cases where a party could revoke the submission, the power of revocation was not taken away by the fact that there was statutory power under s. 13 of the Common Law Procedure Act, 1854 (similar in terms to s. 6 of the Arbitration Act), for a party to nominate his arbitrator to act as sole arbitrator when the other party refused to nominate his. The arbitrator so nominated as sole arbi- trator, though a statutory arbitrator, " is as much an arbitrator as any other arbitrator and equally liable as any other arbitrator to have his authority revoked, unless there is something in the statute which prohibits this being done" {jper Brett, M.K., Fraser v. Ehrenspergcr (1883), 12 Q. B. D. 310, at p. 317). Distinction betvjeen arbitration and valuation. A distinction must always be noted between a submission to arbitra- tion and an agreement to refer to some third person to value. An agreement of the latter kind is not, as a rule, a submission to arbitration o2 REFERENCE BY CONSENT OUT OF COURT at all, though it may be if a judicial enquiry is intended {In re Carus- Wilson and Greene (18S6), 18 Q. B. D. 7 ; Hopj^er, In re (1867), L. R. 2 Q. B. 367. See commentary on s. 27, post, and cases collected at pp. 730-737, Hudson on Building Contracts, 4th ed.). Sometimes the distinction between a clause which is said to be an arbitration clause and one which is not is fine, as in Kennedy, Ltd. v, Barroiv-in-Furness {Mayor of) (1909), Hudson on Building Contracts, Vol. XL, at p. 411, in which case it was held that the duties of the engineer were adminis- trative and not judicial. The authority of a valuer, as distinguished from an arbitrator, can- not be revoked except by consent of both parties {Northampton Gas Light Co. V. Parnell (1855), 24 L. J. C. P. 60 ; Mills v. Bayley (1863), 32 L. J. Ex. 179). " Unless a contrary intention is expressed therein." These words retain the right which the parties had before the Arbitration Act of agreeing that either party might revoke the submission. The material words of s. 17 of the Common Law Procedure Act in this connection were as follows : — " Every agreement or submission . . . may be made a rule of one of the Superior Courts . . , unless such agreement or submission contain words purporting that the parties intend that it should not be made a rule of Court." Not necessary to provide that Arbitration Act shall apply. Before the Arbitration Act, 1889, a provision in the agreement to refer that the provisions of the Common Law Procedure Act, 1854, as far as the same were applicable, were to apply to the arbitration, prevented a revocation of a submission in pursuance of the agreement to refer without the leave of the Court. The effect of such a clause in the agreement was to provide that the submission might be made a rule of Court, and therefore brought the submission within s. 17 of the Common Law Procedure Act {Mitchell & Izard v. The Governor of Ceylon (1888), 57 L. J. Q. B. 524). It was a common practice to provide in agreements to refer that the submission might be made a rule of Court. No such provision is now necessary, nor is it necessary to stipulate that the provisions of the Arbitration Act shall apply. Every submis- sion which comes within the definition in s. 27 of the Arbitration Act becomes ipso facto subject to the provisions of the Act. REVOCATION OF SUBMISSION 53 4. Considerations affecting the grant of leave to revoke. Whether the arbitrator will obey the directions of the Court. The Court, though having jurisdiction to grant leave to revoke and a case for revocation being proved, might not go so far as to revoke the submission if satisfied that the arbitrator would act upon the Court's- directions {Hart v. Duhe (1862), 32 L. J. Q. B. 55 ; Robinson v. Davies & Co. (1879), 5 Q. B. D. 26). Whether the jiarties ivill agree to statement of a case. The Court may make an order giving leave to revoke, to take effect only if the parties do not agree to the arbitrator raising the questions of law in a special case for the opinion of the Court (Fctst and West India Dock Co. v. Kirk & Randall (1887), 12 App. Cas. 738). Under s. 5 of the Common Law Procedure Act, 1854, if an arbi- trator thought fit, he might " state his award as to the whole or part thereof, in the form of a special case for the opinion of the Court." And by s. 7 of the iVrbitration Act " the arbitrators or umpire acting under a submission shall, unless the submission expresses a contrary intention, have power to state an award as to the whole or part thereof in the form of a special case for the opinion of the Court." Both before and since the Arbitration Act, therefore, the arbitrator'^ powers in this respect were and are permissive and not obligatory, but it is important to observe that under the Arbitration Act the arbitrator may be debarred from stating his award in the form of a special case by the expression of a contrary intention in the submission. The effect of this is that the parties may, if they so desire, expressly provide for the sole decision of the arbitrator both as to law and fact. And when such a desire is expressed in the submission it is presumed that tlie Court will not defeat the intention by granting leave to revoke, apart from misconduct or disqualification of the arbitrator. Convenience and ey^pense. When the terms of the submission or the order of reference provide for the raising of questions of law in the award, the Court will consider the balance of convenience and expense of either allowing the arbitra- tion to proceed or granting leave to revoke the submission. " On a balance, therefore, of the conveniences and inconveniences that await our decision on the one side or the other, we have no doubt that the continued progress of the enquiry before the arbitrator, with the hope of his coining to a just and satisfactory conclusion, holds out the prospect of greater benefit and lesser evils to both parties " (per Lord Denman, C.J., in Scott v. Van Sandau (1841), 1 Q. B. 102). 54 REFERENCE BY CONSENT OUT OF COURT The time token the application is made. A material consideration for the Court as to the order it will make on an application for leave to revoke is the time when the application is made. If it is made at an early stage of the arbitration proceedings, the Court will more readily grant leave to revoke, assuming always that a good case for revocation is shown (see the remarks of Kennedy, J., In re Gerard {Lord) and London & North Western Hail. Co., [1894] 2 Q. B. 918). If the application is made at a later stage of the arbitration proceedings, an order for leave to revoke may be made, conditionally on the parties failing to agree that the arbitrator shall state his award in the form of a special case as in LJast and West India Dock Co. V. Kirk & Pumdcdl {supra). Whether the proceedings v:oidd he prolonged hy leave heing granted. In the exercise by the Court of its discretion, a material con- sideration is whether the effect of giving leave to revoke would be to lengthen the proceedings. In Scott v. Van Sandau (1841), 1 Q. B. 102, at p. 110, Lord Denman, C.J., said: "We will only observe that the discretion of the Court to which this appeal is made ought to be exercised in the most sparing and cautious manner, lest an agreement to refer, from which all might reasonably hope for a speedy end of strife, should only open the floodgates for multiplied expenses and interminable delays." This was cited with approval in Steamshij) Den of Airlie Co., Ltd. v. Mitsiii & Co., Ltd. (1912), 106 L. T. 451, at p. 454, where Vaughan Williams, L.J., said : " When you are considering whether you shall make an order for leave to revoke or not, one matter that you ought always to bear in mind is that you should make no order which is likely to lengthen the arbitration proceedings ; and obviously, in a case where a question of construction of the submission to arbitration arises, you will be very likely to lengthen the proceedings enormously if you do not allow first the facts to be found to which the submission to arbitration, when ultimately construed, will apply." Whether the application is the means of ohtaining an authoritative decision. The application, though in form for leave to revoke, may in reality be used as a convenient and proper method for obtaining an authori- tative decision of the Court on a question of law. " In this case the application is, in form, to revoke a submission to arbitration. In reality it is made for the purpose of obtaining a decision from the Court as to the validity of certain heads of claim which one of the parties to the arbitration has put forward, and which the other party REVOCATION OF SUBMISSION 55 asserts to be improper. In order that the point may be raised before us, the claimant has adduced, as early as possible in the arbitration proceedings, and the learned arbitrator has received, certain evidence which is admissible only if the disputed heads of claim are proper; and thereupon the question of law which the parties desire to have authoritatively decided, before further expense is incurred in the arbitration, has been raised in its simplest and most convenient form by the application which is now before us " {per Kennedy J,, In re Gerard (Lord) and London & North Western Bail. Co., [1894] 2 Q. B. at p. 918). The effect of s. 19 of the Act. The remedy of revocation has less importance now, as regards questions of law, than it had before the Arbitration Act. S. 19 of that Act is an entirely new provision, and as it provides that an arbitrator may be directed to state a special case during the proceedings on any question of law, an application can now be mdde under that section when it is thought that an arbitrator is going wrong in law, instead of applying for leave to revoke, which was formerly the only remedy in such a case. " The policy of s. 19 of the Act is very manifest. During the progress of an arbitration it may be seen that the arbitrator has mistaken the law and is about to act upon his error, and the power of putting him right used to consist in the right of either party to revoke the submission to arbitration. That power has been greatly controlled by legislation, and now it may be extremely difficult for a party to make such a case to a Court as will induce them to make an order giving leave to revoke unless a case is stated" (per Lord Halsbury, L.C., in Tabernacle Permanent Building Society v. Knight, [1892] A. C, at p. 801). But in cases where a question of law can properly be raised by an application for leave to revoke, the observations of Kennedy, J. {In re Gerard {Lord) and London & North Western Bail. Co., supra), appear to be particularly relevant, for an authoritative decision of the Court cannot be obtained under s. 19 of the Arbitration Act, but only the opinion of the Court — such opinion not being authoritative, but merely being given by the Court in its con- sultative capacity. Further, although the arbitrator is bound to follow the opinion so obtained, and has followed it, the Court may, it the same question of law is raised by, or appears on the face of, his award, set the award aside, on the ground that the opinion of the Court upon which he has acted is wrong {British Westinyhouse Blcctric and Manufacturing Co., Ltd. v. Underground Electric Bail. Go. of London, [1912] .3 K. B. 128). In Tabernacle Permanent Building Society v. Knight, [1892] A. C. 56 REFERENCE BY CONSENT OUT OF COURT 298, Lord Halsbury, L.C., in referring to s. 19, said : " I think the object- of the Arbitration Act, 1889 . . . was rather to hold a control over the arbitration, while it was proceeding, by the Courts, and not to allow the parties to be concluded by the award when, as it is said, parties- may be precluded by the arbitrator's bad law once the award is made,, although they may have had a right to repudiate the arbitrator if they had done so before the completion of the award." Whether a substantial miscarriage of justice u'iU take place if leave is refused. In James v. James (1889), 22 Q. B. D, at p. 674, Stephen, J, expressed the view that before the Court exercises its discretion " in giving leave to revoke a submission it should be satisfied that a sub- stantial miscarriage of justice will take place in the event of its refusal." He further said : " But that procedure is so awkward in form, sa injurious if regarded as one to be generally adopted, and introduces so great a change into a highly useful and important branch of the law,, that I feel there is the strongest possible objection to it in any case which does not imperatively call for it." In James v. Atti'-ood (1839),. 7 Scott, at p. 843, Tindal, C.J., said : " To induce us to grant leave to revoke, a very strong case should be made out." And in Belcher v. Eocdean School Site and Buildimjs, Ltd. (1901), 85 L. T. 468, at p. 471, Mathew, L.J., said: "An application for leave to revoke a submission is one to be granted with great caution." In considering the exercise by the Court of the power of revocation it must not be forgotten that arbitration is a particular method for the settlement of disputes. Parties not wishing " the law's delays " know, or ought to know, that in referring a dispute to arbitration they take the arbitrator for better for worse, and that he is final both as to fact and law. In many cases the parties prefer arbitration for these reasons. In exercising its discretion cautiously and sparingly, therefore, the Court no doubt has these circumstances in view, and considers that parties should not be relieved from a tribunal they have chosen because- they find they are likely to lose owing to the arbitrator's bad law, which they have agreed to be bound by. It would be contrary to justice to give leave to revoke a submission to a party who, as a consideration for a contract, had agreed to submit any disputes, whether of law or fact, which might arise to arbitration., when he found the case going against him. Illustration. A contract entered into between the parties for the purchase of some wheat contained the following clause : — " Should any dispute arise^ the same to be submitted for settlement to the arbitration of two* REVOCATION OF SUBMISSION 5T London corn factors respectively chosen, whose decision shall be final and binding." It was contended that questions of law had arisen which were not intended to be referred and leave to revoke was applied for on that ground. Held that the clause in question formed part of the consideration for the contract, and was intended to include questions of law as well as of fact which might arise upon the construction of the contract. Leave to revoke was refused on that ground (Forwood v. Watney (1880), 49 L. J. Q. B. 447). "The statute (3 & 4 Will. IV. c. 42) which has been cited was passed with the intention of preventing a party who had referred a matter to arbitration afterwards endeavour- ing to get rid of such arbitration when he found the case going against. him" {per Field, J., ibid.). 5, Chief grounds for granting leave to revoke. (a) Error of law or excess or refusal of jurisdiction by arbitrator.. {h) Misconduct of arbitrator. (c) Disqualification of arbitrator. {(l) Exceptional cases. The granting of leave to revoke is in the absolute discretion of the- Court or a judge, though it will be sparingly and cautiously exercised as before stated. Error of Imv or excess or refusal of jurisdiction hy arhitrator. " There is no doubt that the Court has jurisdiction to give leave to revoke a submission if there is reasonable ground for supposing that the arbitrator is going wrong in point of law " (per Lord Halsbury, L.C.,, East and West India Dock Co. v. Kirk & Randall (1887), 12 App. Cas. 738). In this case the House of Lords announced in the circumstances, mentioned in the following illustration that they would grant leave to revoke the submission unless the parties agreed that the arbitrator should state his award in the form of a special case. Illustration. An arbitrator received evidence which was objected to as tending to vary a contract in writing, and other evidence which was inadmissible in one view of the contract and admissible in another. The party who objected to the evidence having moved the Court, under 3 & 4 Will. IV. c. 42, s. 39, for leave to revoke the submission, it was held, reversing the decisions of the Court of Appeal and the Divisional Court, that the Court had power to give leave to revoke the submission when it appeared that the arbitrator was going wrong in point of law, and that this power would be exercised unless the parties agreed to the arbitrator stating as part of, and on the face of, his award all the purposes for -58 REFERENCE BY CONSENT OUT OF COURT which he had admitted, and the effect, if any, he had given to the different classes of evidence specified {East and West India Dock Co. v. Kirk & Randall (1887), 12 App. Cas. 738). Stephen, J., in commenting on that case in James v. James (1889), 22 Q. B. D., at p. 674, said : "The old rule of practice was that parties submitting to a reference took the arbitrator with his law good or bad, for better for worse. There is nothing in the decision of the House of Lords to lessen the general applicability of that rule, and, as I think the rule a satisfactory one, so far as I have the power to do so, I shall invariably, or almost invariably, enforce it. In the case before the House of Lords, which was a very peculiar case indeed, a course was adopted for which I do not think there is any precedent since the case of Hart V, Duke (1862), 32 L. J. Q. B. 55, which was decided nearly thirty years ago. But that procedure is so awkward in form, so injurious if regarded as one to be generally adopted, and introduces so .great a change into a highly useful and important branch of the law, that I feel there is the strongest possible objection to resorting to it in any case which does not imperatively call for it." Denman, J., in the same case states the law, as he understood it, in a concise form : " I must confess that until recently I was undoubtedly under the impression that unless the arbitrator was exceeding his jurisdiction, or refusing jurisdiction and failing to do all that his juris- diction required him to do, the Court would never interfere " ; and he goes on to say, " but the case of East and West India Dock Co. v. Kirk & Puitulall shows that my view on this matter was mistaken, for it establishes that if there is reasonable ground for supposing that the arbitrator is going wrong, even in a matter within his jurisdiction, the Court will, under certain circumstances, revoke the submission, or at all events practically order that the arbitrator shall take a different view." in the case of Hart v. Duke above referred to, an arbitrator refused to allow a party to a reference to put in evidence certain documents which by law he was entitled to have read on his behalf, and Blackburn, J., said he did not propose to allow the submission to be revoked, and that as no doubt the arbitrator would act on what he had laid down, there was no need that he should provide against the arbitrator disobeying it, and he discharged the rule. In Scott V. Van Sandau (1841), 1 Q. B. 102, the Court said that there was no ground for revocation when the Court considered the reception of certain evidence by the arbitrator very doubtful. The above cases were decided before the Arbitration Act, 1889. Since the Arbitration Act Lord Halsbury, L.C., in referring to the policy of s. 19 of the Arbitration Act, and to the revocation of the •submission by a party, said : " That power has been greatly controlled REVOCATION OF SUBMISSION 59 lay legislation, and now it may be extremely difficult for a party to make such a case to a Court as will induce tliem to make an order giving them leave to revoke unless a case is stated"; and added, "Such a case actually occurred in your Lordships' House, and though leave would have been given by this House to revoke the submission unless the parties had consented to terms (which happily they did), it is obvious that this is a clumsy and incomplete remedy " ( Tabernacle Permanent Building Society v. Knight, [1892] A. C, at p. 301). The Lord Chancellor was evidently referring to the case of East and West India Dock Co. v. Kirk t& Randall {supra). It would seem now, having regard to the qualification expressed by the Lord Chancellor of the previous decision of the House of Lords in the Hast India Dock case, that the exercise of the power of giving leave to revoke would be limited to cases where the arbitrator is ■exceeding his jurisdiction, or refusing jurisdiction, or failing to do all that his jurisdiction requires him to do {James v. James (1889), 22 Q. B. D., atp. 673). The principle underlying the exercise of the power to revoke is that the parties take the arbitrator for better for worse, tb.at his decision is final both as to law and fact, and that unless a substantial mis- carriage of justice will take place in the event of leave to revoke being refused, leave will not be given. It is no miscarriage of justice for a party to be injured by bad law w'hich he has agreed to be bound by (Forivood v. Watney (1880), 49 L. J. Q. B. 447). But where an arbitrator exceeds or refuses the jurisdiction which has been given to him by the parties, great injustice may be done. For example, he may receive evidence as to claims not within his jurisdiction, and nevertheless a party may, if the submission is not revoked, have no means of setting aside the award. An example of this appears in the following illustration : — Illustration. A question had been referred to arbitration as to the purchase money to be paid for the value of the estate and interest of Lord Gerard in certain lands and minerals taken, and compensation for damage by severance and injuriously affecting other lands. Lord Gerard claimed and tendered evidence, which was received by the arbitrator, in support of present claims for prospective injury. It being held that the arbitrator should have rejected this evidence, the submission was revoked {In re Gerard {Lord) and London & North Western Bail. Co., [1894] 2 Q. B. 915 ; [1895] 1 Q. B. 459). Similarly, an arbitrator may injure a party by refusing to hear evidence as to claims duly submitted to him for his adjudication. The question of jurisdiction generally arises upon the reception or rejection of evidence, but when the reception or rejection of evidence 60 REFERENCE BY CONSENT OUT OF COURT is merely a question of law and not of jurisdiction, the Court in the- exercise of its discretion will usually refuse leave to revoke the- submission. Ulustraiion. A rule had been obtained on several grounds — (a) That the arbitrator had held that the word " goodwill " did not include the right to the possession of the client's papers as against the plaintiff; (b) that he had rejected evidence as to the accepted meaning of goodwill on the transfer of a solicitor's business ; (c) that he had rejected evidence as- to the intention of the parties ; and (d) that he had wrongly construed the agreement. Held that leave to revoke a submission on the ground of a mistake of law not amounting to an excess of jurisdiction would only be granted in very exceptional cases, and leave to revoke was- refused (James v. James (1889), 22 Q. B. D. 669, and see ante, Scott v. Fan Sanclau (1841), 1 Q. B. 102). In a case where there was considerable doubt as to the jurisdiction of the arbitrator, Farwell, L.J., said : " On the construction of the docu- ment there is no question that the original submission to arbitration does extend to all matters, and what is alleged is, that by reason of matters subsequent, documents and dealings between the parties, there- is a question whether this submission does or does not apply to the circumstances as they now exist. In my opinion, having regard to the- eases referred to by the President, it would be wrong for us to exercise- our discretion by cutting short a matter of this sort, which is certainly open to serious question, and cutting short the arbitration, and saying it shall not go on, simply because there may be a question whether, when the person who obtains the award comes to sue upon it, it may be a defence that the matter of the award was outside the arbitrator's jurisdiction " (Steamship Den of Airlie Co., Ltd. v. Mitsui & Co., Ltd.. (1912), 106 L. T., at p. 455). It is no ground for an application for leave to revoke a submission that the applicant has some grounds of claim which are not within the^ arbitrator's jurisdiction and in respect of which the applicant may, if he pleases, bring an action (Donhin and the Proprietors of the Leeds Canal, In re (1893), Hudson on Building Contracts, Vol. II., 4th ed., at p. 239). Misconduct of arbitrator. Misconduct is a good ground for applying for leave to revoke a. submission. By the statute 9 & 10 Will. III. a party was made "subject to all the penalties for contemning a rule of Court in case of disobedience to such arbitration or umpirage or neglecting or refusing to perform and execute the same, unless it shall be made appear on oath to such Court that the arbitrators or umpire misbehaved themselves, and that such award, arbitration, or umpirage was procured by corruption or undue- REVOCATION OF SUBMISSION 61 Means." It is obvious, therefore, that, before the Arbitration Act, as a party would not be guilty of contemning a rule of Court in ease of misconduct of the arbitrator, such a case was a good ground for asking leave to revoke the submission. Few decided cases, however, appear in the reports. The Court would, it would seem, revoke a submission to arbitration on the ground of misconduct of the arbitrator when, if the arbitration were allowed to proceed, there would have been sufficient ground (unless waived) for setting aside the award when made. It is not clear why there are so few cases of revocation for mis- conduct of the arbitrator, but it may be that parties prefer to object to misconduct and irregularities during the proceedings and seek to set aside the award after it is made. Reference should therefore be made -to the commentary on s. 11 for cases of misconduct which have been held sufficient to set aside an award. In Dreyi v. Drew (1855), 2 Macq. I, Lord Cranworth, L.C., in refer- •ence to the question of arbitration pending the proceedings and an application to the Court for such purpose, said: "For instance, the party to the arbitration might say, ' Things are in such a state that if the reference goes on, the only result will be that more expense will be incurred and the award must inevitably be set aside. I will not take any further part in it. I have found out that the arbitrator is corrupt, he has done something which he has no right to do ; when the award is made it will be a nullity ; and therefore it is better to have the pro- ceedings stopped in limine.' The Legislature has therefore still reserved a power enabling a party to a reference to apply in a summary manner to a Court or to a judge, in order that he may, with the assent of that CQ,urt or judge, put an end to the litigation." The arbitrator in this case had listened to evidence behind the back of one of the parties to the submission, but it appeared that the objections to the conduct of the arbitrator had been waived in the course of the proceedings Ijefore him, and leave to revoke was therefore not given. In Woodcraft and Jones, In re (1841), 9 Dowl. 538, at p. 541, Coleridge, J., said : " It is not averred that the opposite party has in any way misconducted himself in any matter connected with the refer- ence, or that he has not correctly pursued the provisions of the deed which contains the covenant to refer, nor is it alleged that, according to those provisions, the arbitrators have not been duly appointed, or in any way behaved amiss," and leave to revoke was refused. In The European and American Steam Shijjping Co. v. Croslccy & Co. (1860), 29 L. J. C. P. 155, leave was given to revoke a submission on the ground that an umpire was appointed by lot, he being unknown to one of the arbitrators who so joined in appointing him. The above cases were all decided before tlie Arbitration Act, but it would seem that the principles on which the Court will exercise its 62 RFFERENCE BY CONSENT OUT OF COURT discretion in a case of misconduct are the same under the Arbitration Act as they were before. The power of the Court under s. 11 (1) of the Arbitration Act, which is new, to remove an arbitrator or umpire-- who has misconducted himself appears, however, to limit the necessity for leave to revoke submissions on that ground. It should be noticed that the power in s. 1 is vested in the Court or a judge, whereas the power in s. 11 (1) is vested only in the Court- The distinction is material, because the Master may exercise all the powers conferred upon the Court or a judge by the Arbitration Act (Order LIV., r. 12a). The cases of what is now called legal misconduct are referred to ante, pp. 57-60. These cases do not really relate to misconduct in the ordinary sense. "Where an arbitrator refused to allow certain entries to be read which he did not think relevant, Blackburn, J., said: "You may call it misconduct if you like ; but it imputes to him no more misconduct than is continually imputed to every judge in Westminster Hall. The rule was granted on the ground that a prima facie case had been made out that the arbitrator had ruled contrary to law " {Hart v. Duke (1862), 32 L. J. Q. B. 55). Disqualification of arbitrator. An arbitrator may be disqualified from acting as arbitrator at the time when he is appointed, or he may become disqualified during the proceedings in the arbitration. The Court has undoubtedly power to prevent an arbitrator from acting when he is disqualified during the proceedings, and in Baring Bros, and Doulton & Co., In re (1892), 61 L. J. Q. B. 704, the Court considered that they had power to revoke, and did revoke, a submission to arbitration in a case where active litigation was taking place between one of the parties to the submission and the arbitrator. The grounds- on which the leave was granted were that the arbitrator should not be placed in a position where possible bias might influence him. " The Courts undoubtedly regarded with great jealousy anything like personal interest in an arbitrator, and in such cases the submission to arbitration would be rescinded ..." {per Pollock, B., In re Emerson and the Secretary of State fm- War (1893), 9 T. L. E. 470, at p. 471). The Court has power to revoke a submission to arbitration where the arbitrator is disqualified by interest in the subject-matter of the dispute before he accepts the position of arbitrator. In Frankenherg and The Security Co., In re (1894), 10 T. L. R. 393, an insurance company appointed its own manager, whose name was on the policy as arbitrator. Cave, J., with wliom Wills, J., concurred, said : " The^ company mvist appoint another arbitrator within a week or the sub- mission to arbitration must be rescinded." It was held, however, in a case where one of the parties to a building contract had brought REVOCATION OF SUBMISSION 63: an action against the architect charging him with fraud and misrepre- sentation, that this fact did not entitle the party to a revocation of the submission {Belcher v. Roedean School (1901), 85 L. T. 468). As to disquahfication by interest generally, see ante, pp. 37-43, and the cases cited in the commentary on s. 4, where a stay of proceedings in an action has been refused owing to the disqualification of the jtrbitrator. Exceptional cases. The power to revoke may in some cases be exercised to give relief where no other remedy exists. In cases in which the provisions of the First Schedule to the Arbitration Act, 1889, are excluded, if the sub- mission limits no time within which the arbitrator is to make his award, bis authority to make it will continue for his life, unless it be revoked. There is no necessity to resort to any implication that the award is to be made within a. reasonable time, for it is open to the parties to request the arbitrator to proceed within a reasonable time ; and if, after such request, the arbitrator neglects to do so, such neglect on his part will be a good ground for revoking his authority {Salter v. Yeates (1837), 5 Dowl. 291 ; 6 L. J. {^. S.) Ex. 67 ; 2 M. & W. 67 ; Curtis v. Potts (1845), o M. & S. 145; Maccloufjall v. Robertson (1827), 2 Y. & J. 11. See note therein, p. 19). In an old case it was held that if the sub- mission were to the arbitrator " when his occasions would permit," convenient time must be given him after request, and if no award were then made the parties might revoke his authority {Newgate v. Dcgelder (1657), 2 Keb. 10, 20, 24; Bac. Ab. Arb. D). S. 5 of the Arbitration Act gives the Court no power to appoint an arbitrator if the appointed arbitrator neglects to act, but only if he refuses to act or is incapable of acting or dies. The exercise of the power of revocation might be necessary in such a case to prevent injustice being done {QQQper Alderson, B., Cooper v. SJiuttlcicorth (1850), L. J. Ex. 114). The exercise of the power to revoke might also be necessary in eases where the submission itself did not come within the provisions of s. 5 or 6, though within the definition of "submission" in s. 27. In the following cases the Court refused to give leave to revoke submissions : — Illustrations. 1. A cause and a chancery suit to which A. and B. were parties were, by an order of Nisi Prius, referred to arbitration. C, who was a party to the chancery suit, but not a party to the action (which arose out of it), refused to become a party to the reference. Held that his refusal was not a sufficient ground for giving leave to revoke the suit- mission {mison V. Morrell (1855), 15 C. B. 720). 2, One of the parties to an arbitration desired to obtain evidence -^4 REFERENCE BY CONSENT OUT OF COURT from abroad, but the arbitrator had no power to issue a commission to take such evidence except with the consent of the other party, who refused to give his consent. An application was then made to the Court for leave to revoke the submission, in order that the matter in dispute might be litigated in the Courts, in which case a commission to take evidence abroad could have been issued. The Court refused the application {In re Dreyfus and Paul (1893), 9 T. L. R. 358). 6. Revocation by death of a party. In the absence of a provision to the contrary in the submission, and except in the case of references by order of the Court, as to which see Part II., post, the authority of an arbitrator is determined by the death of either party before the making of the award {Cooper v. Johnson (1819X 2 B. & Aid. 394 ; Toussaint v. Hartop (1817), 7 Taunt. 571; Modes vl Haigh (1823), 2 B. & C. 345). Where a submission required that the arbitrator should make and publish his award in writing, ready td be delivered to the parties or such of them as should require the same on or before a certain day, it was held that the award was " ready to be delivered " within the meaning of the submission when it was executed Ijy the arbitrator and attested by witnesses, and that its validity was not affected by the fact that one of the parties died on the following day before he had had notice that the award was ready (BrooJce v. MitchcU (1840), 6 M. & W. 473). The rule that the authority of an arbitrator is determined by the' death of a party does not apply to an arbiter in Scotland appointed by vendor and purchaser to fix the price of an estate sold, who, by the law of Scotland, is empowered to proceed, notwithstanding the death of either ■party {Ccdedonian Rail. Co. v. Lockhart (1860), 3 Macq. 808 ; Lord Selkirk V. Nasriiith (1778), Mor. Diet. 627). Death of one of several 2Mrties on the same side. When one submission includes several parties on the same side, who have each of them separate interests, the death of one avoids the submission only as to him (reported 2 Archb. Practice, 1323, loth ed. ; 1605, 14th ed.). But if several persons have a joint claim which is submitted to arbitration and one of the claimants dies, the arbitrator cannot make an award in favour of the survivors and the executors of the deceased (Edmunds v. Cox (1784), 3 Doug. 406). And in one instance the Court treated the death of an infant as a revocation of a submission, so far as it affected parties who were his guardians and trustees. They had joined in a reference affecting lands, of which the infant was tenant for life. He died pending the reference. An award made against the trustees after his death was, on application to the Court, set aside so far as it related to them {Bristov: v. Bimis (1823), 3 D. & E. 184. See also Burslem v. Bar7is (1823), 1 L. J. (0. S.) K. B. 155). REVOCATION OF SUBMISSION 6 5- Clause to j^r event death hcinrj a revocation. To avoid the inconvenience which resulted from the rule that death operates as a revocation it became customary for parties to insert a clause in their submission providing that the death of either or any of them should not revoke the authority of the arbitrator, and that the award, in case of a death, should be delivered to the personal repre- sentative. Clauses to this effect have been generally adopted since, as they have been decided to be perfectly valid and efficacious to keep alive the authority of the arbitrator {M'Dougall v. Robertson (1827), 4 Bing. 435i; Dowse v. Coxe (1825), 3 Bing. 20 ; 3 L. J. (0. S.) C. P. 127). The usual clause runs thus : " That the award is to be delivered to the parties, or either of them, or, if either of them should be dead before the making of the award, to their respective personal representatives requiring the same." From these words the law will imply a stipulation that the arbitrator's authority is not to be determined by a death without there being any express provision to that effect {Clarke v. Ci^ofts (1827), 4 Bing. 143 ; 5 L. J. (O. S.) C. P. 127 ; Lewis v. Winter (1837), W. W. & D. 47). .•The clause in question amounts to an agreement that the personal representative shall pay any sum of money found due from the deceased ^bher in his lifetime or after his death. The personal representatives, ijideed, cannot be compelled to appear before the arbitrator, nor can the award be enforced by attachment against them ; but the assets of th0 .deceased are bound by this agreement as by any other contract (Tyler. V. Jones (1824), 3 B. & C. 144; Dowse v. Coxe (1825), 3 Bing. 20. ^ee'Mare and Milne, In re (1839), 6 Bing. N. C. 158); and the executors V'ill'be bound to contribute to the costs of the reference and award which have been paid by a surviving party to the solicitor jointly employed by him and the deceased to conduct the reference on their behalf (Pnor v. Hemhrow (1841), 8 M. & W. 873). Lands, Baihvays, and Companies Clauses Acts. It is provided in the Lands Glauses Act, 1845 (8 & 9 Vict. c. 18,' s. 2p), the Eailways, Clauses Act, 1845 (8 &. 9- Vict. c. 20, s. 126), and the Companies Clauses Act, 1845 (8 & 9 Vict. c. 16, s. 128), with respect to references under those Acts, that after the appointment of an arbitrator by either party the death of either party shall not operate as a revocation of his authority. 7. Effect of bankruptcy. The bankruptcy of a party to a submission to arbitration does not of itself operate as a revocation of the submission, and the trustee in bankruptcy has no power to revoke it (Aiidrews v. Palmer (1821), 4 B. & Aid. 250; Snook v. Hellyer (1818), 2 Chitt. 43; Ex parte Edwards (1886), 3 Mor. Bank. 179 ; Hemsworth v. Brian (1845) 1 C. J5. 131 ; Taijlor V. Shuttleworth (1840), 8 Dowl. 281 ; 9 L. J. (N. S.) C. P. 138 ; 5 66 REFERENCE BY CONSENT OUT OF COURT Taijler v. Marling (1840), 2 M. & G. 55; 10 L. J. C. P. 26). But it would probably be considered by the Court a sufficient ground, for granting leave to the other party to revoke the submission (see Gaffney V. Killen (1861), 12 Ir. C. L. Rep. App. xxv. ; Marsh v. Wood (1829), 9 B. & C. 659). 8. Procedure on application for leave to revoke. All the jurisdiction and powers conferred upon the Court or a judge by the Arbitration Act are exercised by a Master of the Supreme Court (Order LTV., r. 12a). Application for leave to revoke should therefore be made to a Master by a summons in chambers (for form of summons for leave to revoke, see Appendix of Forms). It should be made before the award is executed, and will not be granted ex parte {Clarke \t .Stocken (1836), 5 Dowl. 32 ; 5 L. J. (N. S.) C. P. 190). Appeal, An appeal lies from the Master's order in the ordinary way to the judge, and it has been held that where a judge makes an order on such an appeal it is a matter of practice and procedure under the Supreme Court of Judicature (Procedure) Act, 1894 (57 & 58 Vict. c. 16), s. 1 (4), and the appeal from the judge is therefore to the Court of Appeal and not to the Divisional Court {Portland Urban District Cmncil and Tilley . & L. 225). " Wool in process of n'ooling, tC'c." Under a submission to arbitration, which referred the amount of compensation for a loss by tire in respect of " wool in the process of wooling, carding, scribbling, and spinning," but which in other parts spoke of " raw " wool, the arbitrator was held to have acted rightly in refusing to take into his consideration as a subject for which compensa- tion could be given a quantity of wool on the premises which had undergone a part of the process of manufacture but was not at the time of the fire in any of the engines (Hurst, In re (1835), 1 H. & W. 275), Disputes as to quality of goods. Where on disputes as to the quality of goods delivered — in one case the question only of the buyer's right to reject the goods in consequence of alleged inferiority, and in another case the question only whether the goods were deficient in quality, was referred : it was held that the arbitrator was not entitled to make his award that the purchaser should take them at a reduced price {Sinidino v. Kitchen (1884), 1 C. & E. 217 ; Green <& Co. and Balfour ct; Co., In re (1890), 63 L. T. 325). "All disputes," Where on an agreement for sale of locomotives the purchasers were to pay on the certificate of their own engineer that the engines were in TBE SUBMISSION ^9 working order, and by another clause " all disputes " were to be settled by arbitration, and the engineer refused to certify and a reference took place, an award directing the payment of the contract price was enforced, the words " all disputes " being construed as meaning " all disputes in respect of the contract or its construction " {Holienzollern, &c., Gesdlschaft and Contract Corporation, In re (1886), 54 L. T. 596. See also Wade-Genj v. Morrison (1878), 37 L. T. 271). "All dis'putes arismg out of the contract" On the reference of all disputes " arising out of the contract/' the arbitrator may decide a dispute as to the construction of the contract (Thorburn v. Barnes (1867), L. K. 2 C. P. 384 ; 36 L. J. C. P. 184 ; 2iorth British Rail. Co. v. Neivhurgh,(}cc., Co., [1911] S. C. 710). In HohenzolUrn, &c., Gesellschaft and Contract Corporation (1886), 54 L. T. 596, Lord Esher, M.K., construed the words as meaning "all disputes that may arise between the parties in consequence of the contract having been entered into," and Lopes, L.J., as " all disputes in respect of the contract or its construction." LTnder such a reference the arbitrator also has jurisdic- tion finally to determine the existence of a custom affecting the rights and liabilities of the parties under the contract, where such custom is not inconsistent with the express terms of the contract {Prodvec Brokers Co. v. Olympia Oil and Cake Co., [1916] 1 A. C. 314, overruling Hutcheson v. Eaton (1884), 13 Q. B. D. 861, and In re North Western. Buhher Co. and Hnttenhach & Co., [1908] 2 K. B. 907. Cf. Olympia Oil and Cake Co. v. Produce Brokers Co. (1916), 86 L. .T. K. B. 421). Disputes bctivecn partners. A clause, " that any differences or disputes that may arise between the partners shall be settled by an arbitrator," does not include a dispute whether the partnership has been terminated, or whether certain shares have been bought on account of the partnership or of one partner alone {Piercy v. Youny (1879), 14 Ch. I). 200. See also Turnell v. Sanderson (1891), 60 L. J. Ch. 703. Cf. Machin v. Bennett, [1900] W. N. 146). Where an arbitration clause in partnership articles provided for the reference to arbitration of any difference as to the construction of any of the articles, or as to anything to be done in pursuance thereof, or to any other matter or thing relating to the partnership or the affairs thereof, it was held that the arbitrator would have power to award a dissolution and the terms of such dissolution, including, if necessary, a return of any premium {Belfield v. Bourne, [1894] 1 Ch. 521 ; 63 L. .J. Ch. 104. See Partnership Act, 1890 (53 & 54 Vict. c. 39), s. 40). 30 REFERENCE BY CONSENT OUT OF COURT Bill of lading awl charter-party. A clause in a charter-party for the reference of disputes arising under it, does not authorise the reference of disputes arising under the bill of lading, though the words " all other terms and conditions as per charter-party " are stamped on, and form part of, the bill of lading (TJiomas v. Portsea S.S. Co. (The "Portsmouth" ), [1912] A. C. 1; Hamilton v. MacJcie (1889), 5 T. L. E. 677). " Meaoiing and inte^ition of" a charter-party. On a reference of any difference arising between the owner and charterer as to " the meaning and intention of " a charter-party it was held that not only questions as to the construction of the charter-party were submitted, but also the application of the charter-party to facts which had arisen and the determination of those facts; but that the arbitrator had no jurisdiction to award damages {Richards v. Payne &' Co. (1916), 86 L. J. K. B. 937). Differences hetiveeii a '' cmtvpamj and the memhersy An arbitration clause in the articles of association of a company referring any differences arising between the company and the members thereof, does not include differences between two rival sets of directors {Isaacs V. Chapman (1916), 32 T. L. R. 183). Mining lease. On a reference of every c^uestion touching a mining " lease or any clause or matter therein contained or the construction thereof," the arbitrators have power to decide a dispute whether the lease warrants particular acts being done ; and the words " touching the rights, duties, and liabilities of either party in connection with the premises " include everything relating to the demised property and the use of it, even things which may arise out of collateral matters between the parties, and authorise the arbitrators to consider questions of good faith and ta award damages ( ira^es/orf? v. Watson (1873), L. R. 8 Ch. 473 ; 42 L. J. Ch. 447). Duty limited to assessing damages. Where a verdict was taken subject to a reference to a valuer, who was to decide whether there was any damage to the plaintiff by reason of certain premises being out of repair, and if there was to assess the amount and to say what compensation the plaintiff was entitled to in consequence of certain alterations in the premises, it was held that the valuer's functions were limited to the question of damage by non-repair and alterations, that he could not direct a verdict for the defendant,, and was not bound to decide upon the issues (/S'o?«^a>i v. Mills (1S61X. 30 L. J. Q. B. 175). THE SUBMISSION 81 Effect of recitals. Where a submission recited that the plaintiffs claimed a certain specified balance, and then referred all disputes and differences between the parties to an arbitrator, who was " to determine the account between the said parties," the Court held that the arbitrator's authority was general, extending to all matters in dispute, and was not limited to the matters included in the recited balance, and tliat the recital merely indicated the motive of the submission and did not limit the arbitrator's power {Charleton v. Spencer (1842), 3 Q. B. 693 ; 12 L. J. Q. B. 28). But where the submission, after reciting that a certain amount of profits had been made on a farm by trustees, referred to an arbitrator, among other things, the trustees' accounts of the profits of the farm and farming business carried on by them, so far, and so far only, as the said profits and produce had not been already ascertained, it was held that the arbitrator had no power to open the settled account as to the profits of thie farm and disallow a portion of it (Skipmoi'th v. Skipivorth (1846), 9 Beav. 135). A submission between two partners, after reciting that disputes had arisen between them, and that a bill had been filed in Chancery for a dissolution of the partnership, stated, that in order to put an end to the suit tbey agreed to refer all matters in dispute, arising out of the partnership accounts or otherwise, to certain arbitrators, who were also empowered to decide on the proportions each should pay of the costs of the reference and the costs of the bill in Chancery. Tlie Court held that the arbitrators were not bound to award in respect of the Chancery suit or to take any notice of it except to apportion the costs of it {Marsh, In re (1847), 16 L. J. Q. B. 330). Arbitration "in the usual manner." Where an agreement provided that disputes should be settled by arbitration in the usual manner, it was held that this meant in the manner which was in fact usually adopted by the parties, and not necessarily in accordance with the provisions of the Arbitration Act {Brifjht V. Gibson (1916), 32 T. L. E. 533). All suits "bettveen theyn two." If A. and B. submit "all suits and actions depending between them two," the arbitrator has no power to make an award respecting an action between B. and his wife on one side as plaintiffs or defendants, and A. on the other (Brockas v. Savage (1596), Eolle, Ab. Arb, J) 4; Com. Dig. Arb. D 4; Morse v. Sur)/ (1724), 8 Mod. 212); nor, on a general reference between the plaintiff and defendant, can he award that the defendant pay to the plaintiff compensation for tlie taking of property 6 82 EEFERENCE BY CONSENT OUT OF COURT in which the plain tifif and others are jointly interested {Fisher v. Pimlley <1809), 11 East, 188). Submission hy A. and B. of the one 'part and C. of the other. It has been often held that a submission by A. and B. of the one part, and C, of the other, " of all matters in difference between them," authorises the arbitrator to decide on all matters that either of the two has against the third jointly or severally, such as an action by A. alone against C, on the ground that the words are to be taken distributively {Arnold v. PoZe (1634), Eolle, Ab. Arb. D 5; LiUrat v. Field (1665), 1 Keb. 885 ; Athelston v. Moon (1736), Com. Eep. 547 ; Carter v. Carter (1684), 1 Vern. 259 ; Thomlinson v. Arriskin (1720), Com. Eep. 328 ; Bac. Ab. Arb. E; Com. Dig. Arb. D 4. See also Bees v. Waters (1847), 16 M. & W. 263). This view was adopted in the Court of Exchequer, and affirmed in the Exchequer Chamber {Adcock v. Wood (1851), 6 Ex. 814; 20 L. J. Ex. 435. In error (1852), 7 Ex. 468 ; 21 L. J. Ex. 204). All matters in difference between jJcirties to suit against estate of testator. It has been decided in Chancery that on a reference of all matters in difference between the parties to a Chancery suit to enforce a claim against the real and personal estate of a testator, where the executor and parties interested in the real estate are defendants, the arbitrators should not only adjudicate between the plaintiffs on one side and the defendants on the other, but decide respecting the claims of the co-defendants as against each other, and adjust the individual rights of each {Turner v. Turner (1827), 3 Euss. 494). All matters between the parties " or any of them." If the submission between A. and B. on the one part, and C. and D. on the other, be " of all matters in difference between them, or any of them," it is clear that the arbitrator may consider a claim by A. and B. against C. only {Joyce v. Haines (1666), Hard. 399). And it would seem that the arbitrator might award on a separate matter between A. and B, Six partners by two bonds submitted to arbitration all matters relating to their trade. By the one bond three of them became jointly and severally bound to the other three to obey the award as to all matters between the partners or any of them ; by the second bond the latter three became bound to the former three in like manner. It was held that the arbitrator was authorised to award on a matter in dispute between two co-obligors only, on the ground that the reference was of all matters between them or any or them {Winter v. MHiite (1818), 1 B. & B. 350). THE SUBMISSION 83 Joint and several 'promise to perforrii atvard. Where two persons promised jointly and severally to perform an •award, it was held that they were jointly and severally responsible for the sum which the arbitrator awarded to be paid by each (Mansell v, Burredge (1797), 7 T. E. 352). Matters accruing hefore and after date of submission. In a reference " of the cause, and all matters relating to an annuity in question in the cause," it was held that the arbitrator had power to -deal with the arrears of the annuity accruing due after the cause of action arose ( Wynne v. Wynne (1842), 4 M. & G. 253 ; 10 L. J. C. P. 301). A reference of all matters in difference gives an arbitrator power ■over all matters down to the period of the submission, but does not, except under very special circumstances, enable him to award on future and contingent claims, or to give damages in respect of money demands becoming due after the date of the submission, though pursuant to an agreement made previous to it, or indeed respecting any subjects of dispute arising after the reference (Brown and Croydon Canal Co, In re, (1839), 9 A. & E. 522; 8 L. J. (N. S.) Q. B. 92; Cockburn v. JYewton (1841), 2 M. & G. 899; 10 L. J. C. P. 207; 3Ianser v. Heaver (1832), 3 B. & Ad. 295; Harding v. Forsham (1836), 1 M. & W. 415; Bar- nardiston v. Foider (1714), 10 Mod. 204). Even if the submission be of all differences and " of anything in anywise relating thereto," these latter words do not extend the power of the arbitrators to matters which, though relating to the existing differences, arise after the date of the ■submission ; nor do they authorise the calculation and awarding of interest subsequent to that date {Morphett, In re (1845), 2 D. & L. 967 ; 14 L. J. Q. B. 259). Where arbitration bonds, dated the 9th of December, were on the 4th of January, before the proceedings had commenced, altered by the parties substituting a later day as the limit for making the award, and were then re-executed and re-delivered, the arbitrator was held to have cognizance of claims arising after the 9th of December and up to the 4th of January, since the execution of the bonds not only extended the time but amounted to a new submission on the 4th of January ( Watkins v. Phillpotts (1825), M'Clel. & Y. 393). It is said if the submission be respecting ewes with lamb, and the ewes, after the submission, but before the award, have lambs, that the arbitrator has no power to make any award touching the lambs (West's Symb., Part 11., tit. " Compromise," s. 33). The parties may, however, if they please, give the arbitrator power to determine on contingent claims, or on matters in dispute or demands -arising after tlie date of the submission (Broicn and Croydon Canal Co., '84 REFERENCE BY CONSENT OUT OF COURT In re (1839), 9 A. & E. 522; 8 L. J. (N. S.) Q. B. 92; Morphett, In r& (1845), 2 D. & L. 967; Levis v. HossiUr (1875), 44 L. J. Ex. 136), and this course is often pursued. A reference "of all matters in difference, including the claim of the defendant in her set-off in the action," was^ construed to authorise the arbitrator to award to the defendant a sutn which was not pleadable as a set-off' strictly, because it was not due when the action commenced, nor till after the date of the reference {Fdch V. Fountain (1839), 5 Bing. N. C. 442 ; 8 L. J. (N. S.) C. P. 305). Mesne profits. Where a railway company had taken the plaintiffs lands and held them many years, on a reference of all matters in difference to an arbitrator who was to settle the price to be paid for the lands and to direct conveyances, he was held entitled to take into consideration all claims for mesne profits down to the time of making his award {Smalley^ V. BlacBurn Rail. Co. (1857), 2 H. & N. 158 ; 27 L. J. Ex. 65). Periodical assessment of damafjes. Where an arbitrator was to make his award as to existing damages before a certain day, and as to damages which should be thereafter sustained from the working of a certain mine, at the expiration of every two months from the day specified, he was held empowered to make, at the end of each two months, a periodical assessment of the damages accruing during the respective intervals, but not, after delaying till a third month, to include in one award a compensation for damages incurred subsequent to the second month, as well as for damages occurring during the first two months (Stephens v. Zoice (1832), 9 Bing. 32 ; 1 L. J. (N. S.) C. P. 150). Section 3. SUBMISSION TO OFFICIAL KEFEEEE. 1. Previous legislation. 2. IVluit constitutes a submission. 3. Appointment and jiosition of official referee. 4. Fees. 5. Conduct of reference. 6. "Subject to any m-der of the Court or a jud(je." 3. Where a submission provides that the reference shall be to an official referee, any official referee to whom application is made shall, subject to any order of the Court or a judge as to transfer or otherwise, hear and determine the matters agreed to be referred. SUBMISSION TO OFFICIAL REFEREE 85 1. Previous legislation. I This section is a re-enactment of s. 11 of the Judicature Act, 1884, -but in an abbreviated form. The words in the Judicature Act " subject to any order which may be made by the Court or a judge for the transfer of the matter to any other official referee or otherwise " are now replaced in the Arbitration Act by the words "subject to any order of the Court or a judge as to transfer or otherwise." It would seem that these words in the Arbitration Act mean the same as in the Judicature Act, and that notwithstanding an agreement to refer to a particular official referee, the Court or a judge may transfer the matter to any other official referee. 2. What constitutes a submission. As to what constitutes a submission within the meaning of the Act, see s. 27 and commentary thereon, 2^ost. 3. Appointment and position of official referee. It would appear tliat tlie name of the official referee should be inserted in the submission, for the Act does not specifically provide any procedure for appointing any particular official referee, and it is not clear whether the powers of the Court under s. 5 would be applicable. If an official referee acts under such a submission, he is in the same position and has the same powers and duties as any other arbitrator under a submission by consent out of Court. The repealed s. 11 of the Judicature Act, 1884, provided that "every such agreement shall be deemed to be an agreement to refer to arbitration within the meaning of ss. 11 and 17 of the Common Law Procedure Act, 1854." The agreement (or appointment) must be lodged with a £1 stamp with the official referee's clerk. The reference will be put into the official referee's list of cases unless a special appointment is given to liear it. 4. Fees. For fees payable, see Order as to Supreme Court Fees, 1884, Nos. 88 to 91, and Order as to Supreme Court Fees, 1903, Schedule I. 5. Conduct of reference. Order XXXVL, rr. 48-55c, do not apply to references by consent out of Court, but to causes or matters or any question therein referred to an officer of the Court or to an official or special referee or arbitrator for enquiry or report or for trial under s. 13 or 14, Eule 55c, the proviso of which might be considered as making these rules applicable 86 REFERENCE BY CONSENT OUT OF COURT to submissions under s. 3, applies to arbitrators appointed otherwise- than by an order of the Court ; that is to say, by agreement between the parties in the case of a reference under s. 14. While the Court has power, under s. 15 (1), to make rules of Court for the conduct of the reference, the Court has not power to make rules as to the conduct of a reference out of Court, unless such power, in the case of a sub- mission to an official referee, is contained in the words " or otherwise '" in s. 3. It is doubtful to what the words " or otherwise " refer, but at present no rules of Court have been made under that section. The powers and duties of arbitrators under references by consent out of Court are contained in s. 7 and pars. (/) to (i) of the First Schedule to the Act in particular. 6. " Subject to any order of the Court or a judge." Although this section gives the right of referring disputes to an official referee without any order of tlie Court, the Court has juris- diction over its officers, and an official referee to whom a submissi6n is- made is subject to any order of tlie Court or a judge as to transfer or otherwise. This power of transfer is necessary to prevent dislocation of business. The power of the Court or a judge to make an order as to transfer or otherwise may, under Order LIT., r. 12a, be exercised by a Master. See, generally, as to official referees, s. 15 and conmientary thereon,, ^ost. Section 4. STAYING PEOCEEDINGS. 1. Previous le(jislotion. 2. Conditions for a xtay. The submission. Commencing proceedings. " Court." "Person claiming through or under a party." Trustee of bankrupt. ]\Iortgagee of share of outgoing partner. Workman claiming against employer's insurers. "In respect of any matter agreed to be referred." Where several defendants. " Before delivering any pleadings." *'Step in proceedings." " Ready and willing." 3. Discretion of Court. 4. Principles on v;hich the discretion is exercised. Relief claimed beyond the arbitrator's powers. Dissolution of partnership claimed. Court no power to appoint an arbitrator. STAYING PROCEEDINGS 87 Where reference entails considerable expense. Reference to foreign tribunal. Where charges of a personal character made. Questions of law involved. Interest or probability of bias on the part of the arbitrator. Alleged misconduct by arbitrator. Where dispute only partly within submission. 5. JVhere a statute requires the dispute to be settled by arbitration. 6. Where arbitration is a condition precedent. 7. Porver of Court to grant auxiliary relief. 8. Practice and procedure. Whether the Court has power to discharge or vary order to stay. Application, how made. Affidavit in support. Omis of proof. Costs. Appeal. 4. If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before deliver- ing any pleadings or taking any other steps in the proceedings, apply to the Court to stay the proceedings, and that Court or a judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings. 1. Previous legislation. This is a re-enactment of the principles contained in s. 11 of the Common Law Procedure Act, 1854, and the object of its provisions was explained by Fletcher-Moulton, L.J., in DoUman v. Ossett Corporation, [1912] 3 K. B. 257, where, after briefly outlining the history of the view taken by the Courts of cases where a party sought to bring before the Court a dispute which he had agreed to submit to the decision of an arbitrator, he said, at p. 267 et seq. : " The Common Law Procedure Acts introduced the machinery which is now provided for by s. 4 of the Arbitration Act, 1889. . . . Prior to those statutable provisions the Court could not refuse to settle any such dispute which was brought before it, because it not only had the jurisdiction but also the duty to decide that dispute if called upon so to do. It has under those pro- visions power to refuse its aid to a person who appeals to it in breach of an agreement to decide the matter by arbitration. . . . The law will not enforce the specific performance of such agreements, but, if duly appealed to, it has the power, in its discretion, to refuse to a party 88 REFERENCE BY CONSENT OUT OF COURT the alternative of having the dispute settled by a Court of law, and thus leave him in the position of having no other remedy than to proceed by arbitration." 2. Conditions for a stay. Under s. 4 the Court, or a judge thereof, has power to exercise its discretion to make an order staying the proceedings, provided that : — (1) There has been a valid submission. (2) Proceedings in the Court have been commenced. (3) The proceedings have been commenced by a party to the sub- mission, or a person claiming through or under him, against another party to the submission, or a person claiming through or under him (see Jager v. Tolme, [1916] 1 K. B. 939; Miller, Gibh & Co. v. Smith, [1916] 1 K B. 419). (4) The proceedings are in respect of a matter agreed to be referred. (5) The application to stay is made by a party to the proceedings. (6) The application is made after appearance by that party, and before he has delivered any pleadings. (7) The application is made before the applicant has taken any other step in the proceedings. (8) The party applying for a stay was and is ready and willinsf to do all things necessary to the proper conduct of the arbitration. When these conditions are fulfilled, the discretion of the Court must be exercised in regard to whether or not there is sufficient reason why the matter should not be referred in accordance with the submission. The submission. For the Court to have power to exercise the discretion conferred upon it by the section, there must have been a valid agreement between the parties to submit to arbitration, A " submission " is defined in s. 27 of the Act. As to what con- stitutes a submission, see the commentary on s. 27, post, where the question is fully discussed, including the distinctions between valua- tions, agreements to prevent disputes from arising, and agreements to refer disputes. " Submission," under s. 4, includes an agreement to refer, whether an arbitrator is appointed or not, as well as a submission (as undei'stood before the Act) to a particular arbitrator. Commeoicing proceedings. The delivery of a counterclaim is commencing a legal proceeding within the meaning of the section, as much as the issue of a writ, and when the subject of the counterclaim is one which it has been agreed to refer, a stay may be applied for by the other party, provided that h© STAYING PROCEEDINGS 89 has not taken any step in the proceedings after the delivery of the counterclaim {Chappell v. North, [1891] 2 Q. B. 252; Russell v. Pelc- grini (1856), 6 E. & B. 1020 ; 26 L. J. Q. B. 75 ; Seligman v. Le Boutillier -<1866), L. E. 1 C. P. 681). Illustration. A counterclaim for the purposes of this section must be regarded as a cross action, so that a plaintiff against whom a counterclaim is set up can move to have the counterclaim stayed, on the ground that arbitra- tion is a condition precedent to the claim so set up {Spartali v. Fan Hoorn (1884), W. N. 32 ; 28 Sol. J. 270). " Court" " Court," in the section, includes a County Court. This was doubted in the case of Bunciman v. Smyth (1904), 20 T. L. R. 625, but may now be considered settled {Morriston Tinplate Co. v. Brooker & Co., [1908] 1 K. B, 403 ; Cloiigh v. County Live Stock Insurance Association (1916), 85 L. J. K. B. 1185; Parker, Gaines & Co. v. Twqnn, [191S] 1 K. B. 358). " Person claiming through or under a party." Trustee of hanki^upt. The question has arisen whether a trustee of a bankrupt is a person " claiming through or under " one of the parties to an agreement to refer, and therefore whether an action brought by or against such a trustee can be stayed. In Stttrgis v. Curzon {Lord) (1851), 21 L. J. Ex. 38, Parker, B., said : " Bankruptcy is not a revocation of a submission to arbitration. A man who agrees to refer a cause to arbitration does not impliedly undertake not to become a bankrupt." But where the effect of a stay would be to defeat a provision of the bankruptcy laws — as, for instance, to make s. 4 of the Arbitration Act applicable to cases of mutual credit, so as to alter the whole pro- ceedings in bankruptcy — the Court would in all probability exercise the discretion vested in it, and not stay the proceedings {Pennell v. Waller (1856), 26 L. J. C. P. 9, and Sturgis v. Curzon (Lord), swpra). Mortgagee of share of outgoing partner. A partnership deed contained an arbitration clause. One of the partners mortgaged his share, and the partnership was afterwards deter- mined as to him. The mortgagees brought an action against all the partners for an account of the outgoing partner's share. Held that the action ought not to be stayed under s. 4, the mortgagee's right to an •account being independent of the deed, and the arbitration clause not 90 REFERENCE BY COXSEXT OUT OF COURT includin. 249, cited ante, p. 36). The Court may in its discretion refuse a stay on the ground : — 1. That charges of a personal character are made. 2. That the determination of the matters in dispute involves solely or chiefly questions of law. 3. That the arbitrator is interested or likely to be biased. 4. That there is a substantial dispute as to the arbitrator's conduct in reference to the matters in dispute. Where charges of a persorial character made. Where the dispute under consideration involves charges against the character of one of the parties (e.g. where fraud is alleged), the Court will usually permit the party against whom such charges are made, if he so desires, to have them investigated in open Court {Minifie v. Raihvay Passengers' Assurance Co. (1881), 44 L. T. 552). Illustrations. 1. A contract of sale provided that any dispute as to quahty should be referred to arbitration. An action was commenced for breach of the contract on the ground of a false representation as to quality and a motion was made to have it stayed under s. 11 of the Common Law Procedure Act, 1854. Held that the action should not be stayed, as it was based on fraud and not such as could be deemed to have been con- templated by the arbitration clause or fit to be referred to lay arbitrators {Wallis V. Hirsch (1856), 26 L. J. C. P. 72. See also Eussell v. Hcmis (1891), 65 L. T. 752; Barnes v. Youngs, [1898] 1 Ch. 414, approved on this point in Green v. Howell, [1910] 1 Ch. 495; Alexander v. Mendl (1870), 22 L. T. 609). 2. A lease contained an arbitration clause. The lessors commenced an action and moved for an injunction to restrain the lessee from com- mitting breaches of covenant, and the lessees moved for a stay of the action under s. 11 of the Common Law Procedure Act, 1854. Part of the question in the action did not refer to the lease or depend upon the construction of it and brought into question the conduct of the parties. Held that this was not a case in which the Court should, in the exercise of its discretion, grant a stay of the action {Wheatley v. Westminster Brymho Coal Co., Ltd. (1865), 2 Dr. & Sm. 347. See also Monro v. Bognor 102 REFERENCE BY CONSENT OUT OF COURT Urban Council (1915), 84 L. J. K. B. 1091 ; Nobel Brothers Petroleum, &c., Co. V. Stewart (1890), 6 T. L. R. 378). Where it is the party who is making the charge who desires that the matter should be given the publicity of a public trial, the Court is much less inclined to free him from the undertaking to go to arbitration into which he has seen fit to enter, and indeed to do so would in many cases be to rob the party charged of the privacy, which was one of the inducements that may have led him to enter into the agreement at all In no case will the Court, at the request of a party making a charge of fraud, refuse to stay an action where arbitration has been agreed to, unless, at least, a ijrimd facie case of fraud has been made out to its satisfaction {Russell v. Paissell (1880), 14 Ch. D. 471 ; Workman v. Belfast Harlour Commissioners, [1899] 2 Ir. E. 234), The Court, on an application to stay, will consider whether the question of fraud which has arisen is within the terms of the submission, for if it is not, a stay cannot, of course, be granted. So, also, the Court will consider whether the charges of fraud are xaised in such a way that the arbitrators, if the matter goes to arbitration, will have to deal with them. Illustrations. 1. A contract of sale warranted the goods merchantable and provided for arbitration. The purchaser brought an action for breach of warranty, alleging fraud against the shipper of the goods, who, however, was not shown to be the defendant, whereby the warranty was not fulfilled. Held that the action should be stayed under s. 11 of the Common Law Procedure Act, 1854, as the arbitrators could well decide the question of warranty, and the question of fraud could not be relevanth' raised upon the issues as pleaded (Hirsch v. Im Thurn (1858), 27 L. J. C. P. •254, distinguishing Wallis v. Hirsch (1856), 26 L. J. C. P. 72). 2. Partnership articles contained an arbitration clause. One partner filed a bill against his two co-partners alleging misappropriation of partnership moneys and improper retention of balances. Held that such matters were not within the contemplation of the arbitration clause and that the Court should not stay the action {Cook v. Caichpole (1864), 11 L. T. 264. See also Alexander v. Mendl (1870), 22 L. T. 609; Benshaw v. Quee^i Anne's Mansions, [1897] 1 Q. B. 662; Wickham v. Harding (1859), 28 L. J. Ex. 215; Farnj v. Liverpool Malt Co., [1900] 1 Q. B. 339). The considerations above set out apply only where there is a definite charge of fraud. The mere fact that the questions agreed to be referred may in their nature involve an enquiry as to the conduct of the parties is not sufficient to entitle a party to claim the privileges which might be allowed to him if he had been definitely charged with fraud. STAYING PROCEEDINGS 103 Illustration. An accident policy provided for arbitration. Held that an action brought upon it should be stayed, in the absence of any allegation of fraud, although the issue and the evidence to be adduced might lean upon the plaintiff's conduct and that of his medical adviser, and involve questions analogous to questions of fraud (Minifie v. Raihvay Pa><>;enfjers' Assurance Co. (1881), 44 L. T. 552). And the matter is one entirely for the discretion of the Court. A stay may be granted, despite the presence of allegations of a personal character, in cases in which an arbitrator is a more fit tribunal than a jury, e.g. when allegations of a personal character are mixed up with matters of account and similar things. In Alexander v. Mendl (1870), 22 L. T. 609, at p. 610, Byles, J., said: "It has been said that an arbitrator can have no jurisdiction where fraud is imputed between the parties to the reference, but upon consideration of the case of Wallis V. Hirsch (1856), 26 L. J. C. P. 72, although it was said that a jury was a more fit tribunal than an arbitrator for the settlement of a dispute concerning fraud, and that it may be well sometimes to exercise the jurisdiction of the Court to compel the parties to go to a jury, yet it is a matter for the discretion of the Court or a judge." In Bitssell v. Harris (1891), 65 L. T. 752, where the question was whether a dispute should or should not be referred to a special referee, in view of the fact that a charge of fraud had been made, Denman, J., said, at p. 753 : " Even though it be a charge of fraud . . . there are cases in which it has been established that nevertheless there may be a reference to an official or special referee. Hoch v. Boor (1880), 49 L. J. Q. B. 665, was such a case. But the principle upon which these cases turned seems to me to be this : where the case is one in which an allegation of fraud is so mixed up with the merits of the case as regards small matters of account and such like things that the two cannot be tried separately, then the^whole matter may be tried by a special or official referee." Illustration. In an action for damages for wrongful dismissal the defence was that the dismissal was justified on the ground of the plaintiffs fraudulent misconduct. The case involved an unusually prolonged examination of documents. Held that a stay would be granted although there was a charge of fraud (Hoch v. JJoor (1880), 49 L. J. Q. B. 665). Questions of lav involved. The Court will be less disposed to grant a stay where the principal issue is a question of law or the proper construction of an agreement than if the dispute involved principally questions of fact. In Bristol Corporation v. John Aird &, Co., [191o] A. C. 241, at p. 261, Lord Parker 104 REFERENCE BY CONSENT OUT OF COURT said : " Everybody knows that with regard to the construction of an agreement it is absohitely useless to stay the action, because it will only come back on a case stated ; therefore it is more convenient in a question of construction to allow the action to proceed." Each case, however, as appears from the undermentioned illustrations, depends^ upon the discretion of the Court (see Barnes v. Youngs, [1898] 1 Ch, 414,^ and Green v. Hotvell, [1910] 1 Ch, 495), and the exercise of the discretion will not lightly be interfered with on appeal {Clov.gh v. County Live Stodi Insurance Association (1916), 85 L. J. K. B. 1185). Illustrations. 1. By a charter-party H. let a steamer to K. The charter-party contained an arbitration clause. R. brought an action depending solely upon the construction to be placed upon the terms of the charter-party^ and H. moved to have it stayed under s. 11 of the Common Law Pro- cedure Act, 1854. Held that the fact that the question was purely a legal one was no reason why a stay should not be granted {Itandegger v. Holmes (1866), L. R. 1 C. P. 679). 2. A contract for the purchase of wheat contained an arbitration clause. An action was brought on the contract which turned solely upon the legal construction of the terms of the instrument. Held that the arbitration clause constituted part of the consideration for entering upon the contract and that it embraced questions of law as much as questions of fact, and that the submission should not be allowed to be revoked {Forwood v. IFatney (1880), 49 L. J. q. B. 447). 3. A partnership agreement between two medical men provided that " all pecuniary presents and gratuities from patients " which might be received by either partner should be treated as profits of the partner- ship. The agreement also contained an arbitration clause. A lady who was living in the district worked by one of the partners died, having made a will by which she gave him, among other benefits, the residue of her personal estate. The other partner brought an action claiming that this bequest should, under the above-mentioned provision, be treated as a "pecuniary present or gratuity." The questions raised were (1) Was the lady a patient? (2) the construction of the agreement. On a motion by the defendant to stay the proceedings, it was held that the questions at issue were such as would be better decided by a judge of the High Court than by an arbitrator {Lyon v. Johns'M (1889), 40 Ch. D. 579). 4. A life policy provided that it should not cover death by war, and contained an arbitration clause. The assured lost his life on one of H.M. ships which was blown up in a British port, but whether by an enemy with whom this country was then at war had not been ascertained. His executrix brought an action on the policy against the insurance company. Held that the Court was not justified in refusing an application by the defendants for a stay under s. 4, merely because there were important questions of law to be considered (Lock v. Army, ^'ary, and General Assurance Association (1915), 31 T. L. R. 297). STAYING PROCEEDINGS 105 5. A contract for the supply by the defendants to the plaintiffs of a plant suitable for the latter's works provided that disputes should be referred to an engineer. The plant proved unsatisfactory, and the plaintiffs brought an action claiming (inter alia) a declaration that the contract was not binding upon them, on the grounds that they had entered into it on the negligent advice of the defendants, and that the defendants had declared their inability to carry it out. The defendants having applied for a stay under s. 4 : held that the stay should be granted, notwithstanding that the dispute involved difficult questions in the law of contract, inasmuch as such questions could be stated by the arbitrator to the Court in a special case (Boice v. Crossley (1912), 108L. T. 11). 6. The rules of a marine insurance company provided that disputes between policy-holders and the company should be referred to arbitra- tion ; and those rules were incorporated in the policies. A dispute arose and negotiations to refer it took place, but fell through because the policy-holder would not agree to submit points of law. The policy- holder commenced an action and the Court held that they ought not to stay the action and send points of law to be tried by commercial arbitrators {Alexander v. Campbell (1872), 41 L. J. Ch. 478. See also^ JForhnan v. Belfast Harbour Commissioners, [1899] 2 Ir. R. 234). 7. The fact that the differences arising involve questions of law as to the amount of the share of a retiring partner who has mortgaged his share in the partnership, and as to the mortgagee's right to an account, is a ground for the Court declining to exercise its jurisdiction under s. 4 by granting a stay (Bonnin v. Neame, [1910] 1 Ch. 732). A stay will generally be granted where the questions raised are questions with which the arbitrators are specially well qualified to deal, although a point of law may arise. Illustration. Application was made to stay an action under s. 4, where one of the questions involved was whether a custom existed at Lloyd's to charge commissions in certain transactions. Held that the action should be st 6. Where a submission provides that the reference shall be to two arbitrators, one to be appointed by each party, then, unless the sub- mission expresses a contrary intention — (a) If either of the appointed arbitrators refuses to act, or is incapable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place ; , (b) Ifi on such a reference, one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he bad been appointed by consent : 'tfovided that the Court or a judge may set aside any appointment made in pursuance of this section. ,, ;,. Previous legislation. S. 13 of the Common Law Procedure Act, 1854, was as follows : — "When the reference is or is intended to be to two arbitrators, one appointed by each party, it shall be lawful for either party, in the case of the death, refusal to act, or incapacity of any arbitrator appointed by him, to substitute a new arbitrator, unless the document authorising the reference show that it was intended that the vacancy should not be supplied ; and if on such a reference one party fail to appoint an arbitrator, either originally or by way of substitution as aforesaid, for » seven clear days after the other party shall have appointed an arbi- trator, and shall have served the party so failing to appoint with notice in writing to make the appointment, the party who has appointed an arbitrator may appoint such arbitrator to act as sole arbitrator in the reference, and an award made by him shall be binding on both parties ias if the appointment had, been made by consent; provided, however, that the Court or a judge may revoke such appointment, on such terms as shall seem just." It seems clear that the words "revoke such appointment" were limited to the appointment by a party of his arbitrator to act as sole arbitrator and had no reference to the substitution of a new arbitrator under the first part of the section. And there can be little doubt that the draftsman of the Arbitration Act, 1889, intended s. 6 to be a re-enactment of the provisions of this section of the Common Law Procedure Act, with verbal alterations only. The proviso in s, 6 of [the Act of 1889, giving power to the Court or a judge to ^"set aside any appointment made in pursuance of this section," would, however, seem to apply not only to the appointment by a party of his 9 130 KEFERENCE BY CONSENT OUT OF COURT arbitrator to act as sole arbitrator under clause (b), but also to the appointment of a new arbitrator under clause (a). The framers of the Indian Arbitration Act have made the proviso apply to an appointment under clause (h) only. Conditimis for appointment of new arbitrator. The following conditions must exist in order that a party to a submission may exercise the power conferred by this section of appointing a new arbitrator: — 1. There must be a valid submission. 2. The submission must provide that the reference shall be to two arbitrators. 3. Also that such arbitrators shall be appointed, one by each party. •4. The submission must not express an intention that the power shall not be exercised. 5. The party wishing to exercise the power must have appointed his arbitrator. 6. Such arbitrator must have refused to act, or be incapable of acting, or have died. Conditions fm' appointment of arbitrator to act as sole arbitrator. The following conditions must exist in order that a party may exercise the power to appoint his arbitrator to act as sole arbitrator in the reference: — 1. There must be a valid submission. 2. The submission must provide that the reference shall be to two arbitrators. 3. Also that such arbitrators shall be appointed, one by each party. 4. The submission must not express an intention that the power shall not be exercised. 5. The party wishing to exercise the power must have appointed his arbitrator. 6. The party wishing to exercise the power, after appointing his arbitrator, must have served the other party with notice to appoint an arbitrator, either originally or by way of substitution, as the case may be. 7. Seven clear days must have elapsed after service of such notice. 8. The other party must have failed to make the appointment required. "Reference . . . to two arbitrators." The section does not apply where the reference is to three arbitrators, one to be appointed by each of the parties and the third by the two so chosen. POWER OF PARTY TO SUPPLY VACANCY 131 lUustrations. 1. A charter-party provided for the reference of disputes to three arbitrators, one to be appointed by each of the parties and the third by the two so chosen. In reference to an action by the shipowners against the charterers, Lord Esher, M.R., said : " As this was to be a reference to three arbitrators, it is obvious that the case does not come within section ... 6 and the point is given up." Lindley, L.J., said : " Section ... 6 does not touch this point" {In re Smith and Service and Nelson & Sons (1890), 25 (,>. B. D. 545). 2. A charter-party entered into by G. and T. provided for the reference of disputes to " three persons . . . one to be appointed by each of the parties hereto, and the third by the two so chosen." Disputes having arisen, T. appointed M. to be his arbitrator and requested G. to appoint his, intimating that if he did not do so he would appoint M. as sole arbitrator. G. did not appoint an arbitrator and did not appear at the arbitration before M. alone. Held that the case did not come within s. 13 of the Common Law Procedure Act, 1854, and M.'s award was bad (Gimim v. Hallett (1872), L. li. 14 Eq. 555). But where the reference is to two arbitrators, with power to appoint •a third, whose decision is to be final, the section will, it seems, apply, Ilhi&tration. A charter-party provided for the reference of disputes to two arbi- trators, " one to be appointed by each of the parties to this agreement ; if necessary, the arbitrators to appoint a third, whose decision to be final and binding upon both parties to the agreement." Disputes having arisen, the defendants appointed an arbitrator and gave the plaintiffs seven days' notice to do so also. The plaintiffs, however, made no appoint- ment. The defendants thereupon appointed their arbitrator to act as sole arbitrator. Bray, J., held that the case came within s. 6, and this view was apparently adopted by the Court of Appeal {S.S. Den of Air lie Co. v. Mitmi d; Co. (1912), 106 L. T. 451). " One to be appointed by each party." Each party to the submission must appoint an arbitrator if the section is to apply. A case where the parties mutually agree upon 'two arbitrators would appear to be outside the section. Illustration, S. 16 of the Common Law Procedure Amendment Act (Ireland), 1856, is in substantial!}' the same terms as s. 6 of the Arbitration Act. Parties to an action agreed to refer the matters in dispute under the Act of 1856 to two arbitrators, A. and B., who were mutually decided upon. Held by the Irish Court of Appeal that the case did not come 132 REFERENCE BY CONSENT OUT OF COURT within s. 16, since the arbitrators were not "one appointed by eacb party " (Yeates v. Caruth, [1895] 2 Ir. R. 146). Aiypointtnent of both must refer to same suhject-matter. It is also essential that the appointment of both arbitrators should". refer to the same subject-matter. Ilhistration. Parties to a lease agreed to refer any difference between them respecting the construction of the lease "or anything therein contained, or respecting any other matter or thing connected with or relating to any one or more of the subjects thereof," to three arbitrators, one to be appointed by each of the parties and the third by the two so chosen. Disputes having arisen as to the construction of the lease and also in regai*d to matters connected with the subject thereof, the parties appointed arbitrators. The defendant appointed his arbitrator to deal with the construction of the lease only. In an action on the award, it was held that the award dealing with matters other than the construc- tion of the lease was bad {Davies v. Price (1862), 6 L. T. 713). .For forms of appointment of arbitrator, see Appendix of Forms. " Refuses to acty Two arbitrators appointed under the Land Clauses Act, 1845, held a meeting in the reference, at the close of which meeting it was agreed that, they should proceed next day with the case. Early the following morning, before the time of the meeting, one of the arbitrators wrote to the solicitor of the railway company who had appointed him, stating that he could not attend on account of important business; he also expressed his desire that the meeting should go on without him, and that he should be furnished with notes of the evidence taken. He did not attend, and the meeting was held without him. Vice-Chancellor Knight Bruce held that this was not such a refusal to act as to justify the other arbitrator in proceeding alone {Havdey and North Staffordshire Bail Co., In, re (1843), 2 De Gex & S, 33). Failure or neglect to act. S. 6, like s. 5, provides for cases where an arbitrator refuses to act,. is incapable of acting, or dies ; but makes no provision as to what is to happen if he should fail or neglect to act as arbitrator, as in Willoughhy V. Willoughhj (1847), 16 L. J. Q, B. 251, where it was held that an arbitrator who failed to make his award withm the time limited under- ^nJijelosvire Act h^d neglected to act in the matters submitted to him. POWER OF PARTY TO SUPPLY VACANCY 133' "On snch a refereiibi.'* . It should be noticed that there is no provision analogous to the •provision in s. 5 expressly making the appointment dependent on whether or not differences have arisen. There can, however, be no reference in the ordinary sense of the word until arbitrators are •appointed, and there could in no case be any default unless a difference had arisen. It would therefore seem that the power given by s. 6 (h) does not become operative until differences have arisen, and one of the ^parties has appointed an arbitrator to deal with such differences. Notice to cq^point. Where the party giving the notice refuses to inform the other .party as to the alleged dispute, the notice is bad_ and subseququt ^proceedings based thereon are void. Illustration. Articles of partnership between A., B., and C. provided for the reference of disputes to three arbitrators, one to be appointed by each partner. A. and B. gave C. notice of their appointment of two arbitrators and required him to appoint one. C. enquired as to the subject-matter of the dispute, but A. and B. refused to give him any information except before the arbitrator, and said that if C. did not nominate an arbitrator he must take the consequences. Held that in^ the circumstances, unless C. came in and consented, there could be no arbitration which could be binding on him of any legal or practical vahie iFarrar v. Cooper (1890), 44 Ch. D. 323. See also May v. Mills (1914), ^30 T. T,. R. 287). Aiypointment not comijlete till notified. The appointment of. an arbitrator by a party is not considered complete until it has been notified to the other side {Tew v. Harris' <1848), 11 Q. B. 7; 17 L. J. Q. B. 1; Thomas v. Fredrichs {IS^1\ ■ 10 Q. B. 775 ; 16 L. J. Q. B. 393), and therefore it would seem that the, party who receives notice to appoint an arbitrator must not only make the appointment but also give notice of it to the other party within the seven clear days in order to avoid the appointment by the other party of his arbitrator to act as sole arbitrator in the reference. Po}i'er to set aside appointment. The only appointments which can be made in pursuance of this ssection are : — (a) of a new arbitrator in place of one of two arbitrators appointed under the submission ; --'■S'^'-i (b) of an arbitra,tor already appointed under the submission-tb Wcfe* as sole arbitrator. '. " -' 134: REFERENCE BY CONSENT OUT OF COURT Nothing is provided as to what is to happen if either of those appoint- ments is set aside. If an appointment of a new arbitrator under clause (a) is set aside^ by the Court, assuming that the power to set aside an appointment- applies to clause (a) (see ante, p. 129), there is no provision giving the party any right to appoint another arbitrator in place of the arbitrator whose appointment has been set aside, nor is any power given to the Court to make such an appointment. The right conferred by the sec- tion is merely to appoint a new arbitrator in the place of one of two arbitrators appointed under the submission. The appointment which can be set aside under clause (h) is the appointment of an arbitrator (already appointed under a submission) as sole arbitrator. If that appointment as sole arbitrator is set aside, it would seem that the appointment under the submission remains, though the arbitrator so appointed cannot act as sole arljitrator. If this is the correct interpretation, when an appointment under either (a) or (b) is set aside, a deadlock would seem to be produced,, and the arbitration provided for by the submission cannot take place except by consent. Lands, Raihuays, and Com^Mnies Ckmses Acts. When the parties have each appointed an arl)itrator on a reference respecting the compensation to be paid for lands taken under a special Act of Parliament for the purposes of a public undertaking sanctioned by the Act, or injuriously afllected l»y the works done under it, the- Lands Clauses Act, 1845 (8 & 9 Vict. c. 18), enacts, in s. 26, that, if any arbitrator appointed by either party die, or become incapable, the party who appointed him may appoint some other person to act in his place, and if for the space of seven days after notice in writing he fail to do so, the remaining arbitrator may proceed ex jjcu'^^te. S. 30 provides that : " If, where more than one arbitrator shall have been appointed, either of the arbitrators refuse or for seven days neglect to act, the other arbitrator may proceed ex parte." Clauses almost verbatim with the above are to be found in ss, 127, 131 of the Railways Clauses Act, 1845 (8 & 9 Vict. c. 20). There is a similar provision in the Companies Clauses Act, 1845' (8 & 9 Vict. c. 16), s, 129, as follows : — " If before the matters so referred shall be determined any arbitrator appointed l)y either party die, or become incapable or refuse or for seven days neglect to act as arbitrator, the party by whom such arbitrator was appointed may nominate and appoint in writing some other person to act in his place ;. and if for the space of seven days after notice in writing from the other party for that purpose he fail to do so the remaining or other arbitrator may proceed ex jxirte ; and every arbitrator so to be substituted as- aforesaid shall have the same powers and authorities as were vested POWERS OF ARBITRA.TOR 135 in the former arbitrator at the time of such his death, refusal, or disability as aforesaid." Bailway Companies Arhitration Act, 1859. Under the Eailway Companies Arbitration Act, 1859 (22 & 23 Vict. c. 59), the company on failure of one appointment of an arbitrator is to make a new appointment. If for fourteen days after request in writing such company does not appoint an arbitrator, the Board of Trade may make the appointment (ss. 9, 10). Section 7. POWERS OF ARBITEATOR. 1. Conditions f(yr exercise of poniers tinder the section. 2. Examination of ivitnesses on oath or affirmation. Discretion of the arbitrator. What constitutes an "examination on oath." Statutory references. No power to issue a commission to take evidence abroad. Giving or procuring false evidence before an arbitrator. Privilege of witnesses, &c., from arrest. 3. Statement of aivard in form of special case. Discretion of the arbitrator. Distinction between ss. 7 and 19. Case stated for opinion of counsel. Form of award stating a special case. Statutory references. Practice. Appeal. Costs. 4. Power to correct clerical midakes and error?. 7. The arbitrators or umpire acting under a submission shall, unless the submission expresses a contrary intention, have power — (a) to administer oaths to or take the aflarmations of the parties and witnesses appearing; and (h) to state an award as to the whole or part thereof in the form of a special case for the opinion of the Court ; and (c) to correct in an award any clerical mistake or error arising from any accidental slip or omission. (See also First Schedule, clauses (/) and (g).) 136 REFERENCE BY CONSENT OUT OF COURT 1. Conditions for exercise of powers under the section. The powers conferred on arbitrators, including a single arbitrator (Interpretation Act, 1889, s. 1 (1) (h)) or an umpire, by this section arise when : — 1. There has been a valid submission (for what constitutes a valid submission, see s. 27 and commentary thereon) ; 2. Disputes have arisen and arbitration proceedings have been commenced ; 3. The submission does not express an intention that the powers should not be exercised. 2. Examination of witnesses on oath or aflBrmation. The section does not for the first time give an arbitrator power to ■administer oaths to witnesses. S. 16 of the Evidence Act, 1851 (14 & 15 Vict. c. 99), already provides that " every . . . arbitrator or other person now or hereafter having by law or by consent of parties authority to hear, receive, and examine evidence, is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively." Discretion of the arhitratoi\ S. 7 of the Arbitration Act, while giving power to arbitrators or umpires to have the examination of witnesses taken on oath or affirma- tion, does not make it compulsory for them to do so. The matter, therefore, is one within the discretion of the arbitrator or umpire, unless the mode of examination is expressly stipulated for in the submission. If there is such a stipulation, the examination must be conducted in accordance with the terms of the submission, unless the parties clearly consent to, or acquiesce in, its being taken other- wise. The fact that no objection is taken to evidence being received otherwise than on oath, when examination on oath is specially provided for by the submission, is, in itself, a waiver of the objection, and the award will not be set aside for this reason. Ilhistrations. 1. An arbitrator took the examination of witnesses who were not ' sworn. No objection was taken at the time. The Court refused to set aside the award {Ridout v. Pye (1797), 1 Bos. & Pul. 91). 2. The plaintift''s witnesses were examined without being sworn, and the defendant raised an objection, but afterwards allowed his own witnesses to be sworn and examined. Held that this amounted to a waiver of his objection {Allen v. Francis (1845), 9 Jur. 691). 3. A cause was referred to arbitration. On the defendant's objec- tion a clause giving the arbitrator power to examine the parties to the EXAMINATION OF WITNESSES 137 cause was struck out. The plaintiff, however, tendered himself and was received by the arbitrator as a witness in the proceedings. The defendant objected, but did not withdraw from the reference, and the arbitrator allowed the plaintiff to give evidence and the defendant cross-examined him under protest. Held that the defendant by cross- examining the plaintiff and proceeding in the arbitration had not waived his rights under the terms of the reference, and that the award must be set aside {Smith v. Sparrow (1847), 4 D. & L. 604). 4. A lay arbitrator was not asked to examine any of the witnesses on oath, and no objection was raised by either side at the time of the examination. Held that there was no ground for setting aside the award {Biggs v. Hansell (1855), 16 C. B. 562). 5. A party to an arbitration asked that the evidence should be taken on oath, but the umpire observed that it was not usual to do so, and the objection was not pressed. Held that this did not amount to a waiver of the objection {Wakefield v. Llanelly Rail, and Dock Co. (1864), 34 Beav. 245). ' If the matter is not taken out of the discretion of the arbitrator •Or umpire by any express term of the submission, a refusal to take the examination on oath, when requested by one of the parties to do so, will not invalidate the award. Illustration. The order of reference was : " The arbitrators shall be at liberty, if they think fit, to examine the parties and their witnesses on oath." Held that the arbitrators had a discretion, even though one of the parties desired that the witnesses should be sworn {Smith v. Goff {184:5), I4M. &W. 264). What constitutes an " examination on oath." When witnesses, by an express term of the submission, are required to be examined on oath, viva voce examination is intended, and the taking of evidence by affidavit is not a sufhcient compliance with the jprovision. Illustration. The order of reference was "so that the witnesses be examined on oath," and the Court held that to mean that they must be examined vivd voce, and the admission of affidavits to be improper {Banks v. Banks (1835), 1 Gale, 46). The usual course where the arbitration involves a judicial enquiry is to administer the oath to all witnesses when they attend to give evidence. For forms of oath and affirmation to be administered by arbitrators, «ee Appendix of Forms. 138 REFERENCE BY CONSENT OLT OF COURT Statutory references. By the enactments of various Acts, e.g. the Lands Clauses Act, 1845^ (8 & 9 Vict. c. 18, s. 32), the Eailways Clauses Act, 1845 (8 & 9 Vict. c. 20, s. 133), the Railway Companies Arbitration Act, 1859 (22 & 23 Vict. c. 59, s. 18), and the Companies Clauses Act, 1845 (8 & 9 Vict. c. 16, s. 132), arbitrators or umpires appointed under those statutes " may examine the parties or their witnesses on oath and administer the oaths necessary for that purpose." And they should examine them on oath unless the oath is dispensed with ( Wakefield v. Llanelly Bail, and Bock Co. (13^4), 34 Beav. 245, at p. 249). For form of oath, see Appendix of Forms. No pover to isstte a commission to take evidence abroad. In the case of a reference by consent, the Court has no power to order a commission to issue for the examination of witnesses abroad. (Such power exists where an action is referred for trial by order of the Court under s. 14 (Hayivard v. Mutual Reserve Association, [1891] 2 Q. B. 236).) Illustrations. 1. A contract of carriage provided for the reference of disputes between the parties to arbitration. Disputes having arisen, the arbi- trators sat on several occasions. In the course of the hearing one of the parties desired to obtain the evidence of witnesses in America, and applied to a judge in chambers for an order under Order XXXVII., r. 5, for their examination on commission. Held that the arbitration proceedings, since they were not " proceedings in the Court " (Judicature Act, 1873, s. 100), and notwithstanding any provision in s. 1 of the Arbitration Act, did not constitute a " matter " within the meaning of Order XXXVII., r. 5, and that the judge in chambers had no power to order the issue of a commission in them (Shaio and Ronaldson, In re (1892), 1 Q. B. 91). 2. A contract of sale contained an arbitration clause. Disputes having arisen, recourse was had to arbitration. The buyers wished that certain evidence should be taken abroad on commission, but the sellers would not consent. An application for an order for a com- mission having been refused, the buyers moved for a rule that the submission should be revoked unless the sellers should consent to the evidence being taken on commission. Held that it was very doubtful in view of the fact that the Arbitration Act, 1889. made no provision for obtaining evidence on commission, and that a submission was by the Act irrevocable, whether the Court had power to grant such a rule, but even if it had, it was a matter of discretion, and the Court would not, therefore, review the decision of the judge refusing the application (In re Dreyfus & Sons and R. & N. Paul (1893), 9 T. L. R. 358). EXAMINATION OF WITNESSES 139 Giving w procuring false evidence he/ore an arbitrator. The Perjury Act, 1911, s. 1 (1) provides that "if any person; lawfully sworn as a witness or as an interpreter in a judicial proceed- ing wilfully makes a statement material in that proceeding which he knows to be false, or does not believe to be true, he shall be guilty of perjury. . . . (2). "The expression 'judicial proceeding' includes a proceeding before any Court, tribunal, or person having by law power to hear, receive, and examine evidence on oath." These provisions take the place of s. 22 of the Arbitration Act, 1889, which was repealed by s. 17 of the Perjury Act, 1911. The manufacture of false evidence intended to deceive and mislead an arbitrator, even though the evidence is never actually used, is a misdemeanor at common law. Illustration. Under a contract for the purchase of a cargo of wheat, which contained a provision for arbitration in case of disputes arising, samples were taken and sealed in bags by the two parties. The defendant tampered with the contents of the bags. No arbitration in fact ever took place, but the defendant was on these facts convicted of attempt- ing, by the manufacture of false evidence, to pervert the due course of law and justice (B. v. Freones, [1891] 1 Q. B. 360). Privilege of vntnesses, &c., from arrest. The power of compelling the attendance of witnesses gives to the proceedings of an arbitrator, even though no action be pending, a judicial character, and protects the parties, the solicitors, and the witnesses, appearing before him, from arrest, eunclo, morando, et redeuiulo, in the same manner as on a trial at law {Webb v. Taylor (1843), 1 D. & L. 676 ; lo L. J. Q. B. 24; Spence v. St^iart (1802), 3 East, 89 ; FMndall v. (?70'//o/ (1819), 3 B. .^' A. 252; 1 Chitt. liep. 679; Bichetts v. G^irney- (1819), 7 Price, 699 ; 1 Chitt. Ptep. 682 ; Moore v. Booth (1797), 3 Ves. 350). But there is no protection in cases where the witness could not be compelled to attend. A voluntary attendance, however, when the- attendance might be enforced, does not deprive him of his privilege- {Webh v. Taylor (1843), 1 D. & L. 676; 13 L. J. Q. B. 24), The protection extends during the adjournment of an arbitration, from one period to another of the same day, or when the adjournment is from day to day, but not when many days are to elapse before the- next meeting {Spencer v. Newton (1837), 6 A. & E. 623; Temple, Eon- paHc (1814), 2 V. & B. 391 ; Russell, Ex parte (1812), 1 Itose. 278). 140 REFERENCE BY CONSENT OUT OF COURT 3. Statement of award in form of special case. Discretion of the arbitrator. The arbitrator or umpire has an option under the section to state his award as to the whole or part in the form of a special case, and his discretion in regard thereto is absolute. Illustrations. 1. In Baguley v. Markwick (1861), 30 L. J. C. P. 342, Erie, C.J., said : The power under s. 5 [of the Common Law Procedure Act, 1854] is to be exercised only at the arbitrator's discretion. 2. An arbitrator under the Common Law Procedure Act, 1854, ^. 5, had power to state his award in the form of a special case. The defendant asked him to do so but he refused. An application was made that the award be remitted to be reconsidered and stated as a special case. Held that this could not be done (Hollowatj v. Francis (1861), 9 C. B. (X. S.) 559). He is in the same position as he would have been before the passing •of the Common Law Procedure Act, 1854, where the submission gave ^CE BY CONSENT OUT OF COURT The mistake which the arbitrator has made, and which he admits', may be one of law. No distinction appears to be drawn between mistakes of law and mistakes of fact as a ground for remitting awards. As in the case of a mistake of fact, so in the case of mistake of law the mistake must consist in failing to express correctly in the award the decision at which the arbitrator lias previously arrived, or in omitting to decide something which he ought to have decided. Lord Esher, M.E., in Re Kcighley, Maxsted & Co. and Bryan Durant & Co., [1893] 1 Q. B. 405; 68^ L. T. 61, said: "Where, however, the submission contains a power to refer back to the arbitrator, if the party alleges that there has been a mistake on the arljitrator's part, either of law or fact, the Court gives this effect to tlie power ; that upon such a state of facts alone the decision cannot be questioned either on the law or on the facts, the parties having chosen their arbitrator for better or worse ; but that if the arbitrator himself informs the Court that he thinks he has made a mistake either of law or fact, and both he and the party approach the Court, the Court would send the matter liack to him for reconsideration, although such a course will not be taken on the mere allegation of one of the parties. That was the law under the Act of 1854, and that is the view adopted in Dinn v. Blalcc (1875), L. E. 10 C. P. 388. That law or rule of the Court, therefore, applies only where there is an allegation by the arbitrator that he has made a mistake of law or fact ; and the case of Dinn v. Blake {libi supra) is no authority for anything beyond." "No distinction was there drawn by Lord Esher between a mistake of law and a mistake of fact " {per Vaughan Williams, L.J., in Re Baxters and the Midland Rail. Co. <1906), 95 L. T., at p. 22). Illustrations. 1. A rule niai was obtained to remit an award to the arbitrator to correct an alleged mistake. The arbitrator did not admit the mistake, but, ou the contrary, decUned to interfere. Held that the award could only be remitted if there was some mistake which the arbitrator desired to amend, and therefore that the rule must be discharged {ll'alton v. Swanage Pier Co. (1862), 10 W. R. 629). 2. An arbitrator to whom an action for a claim above £20 had been •referred as a matter of account awarded to the plaintiff a sum less than £20, and certified that the action was fit to be brought in a superior 'Court, but gave no other certificate. The Master having taxed the costs on the lower scale, the arbitrator stated that he had not intended that " the plaintiff should be deprived of his costs, but that the matter was not present in his mind when he made the certificate." Held that the award should be remitted to correct the error at the expense of the person applying for such remission (Casivell v. Groucott (1862), 31 L. J. Ex. 361 ; followed in Cross v. Cross (1862), 13 C. B. (N. S.) 253). 3. A. owed B. £70, of which she paid £60. Subsequently A. lent REMITTING OH REFERRING BACK AWARD 173. B. £50 on his promissory note. In an action on the note B. pleaded a set-off. The whole matter was referred to an arbitrator, who bj' mistake omitted to deal with the payment by A. of £60 on account, I and made an award in favour of B. The mistake was admitted by the arbitrator. Held that the award should be remitted, as the mistake was clear and was admitted by the arbitrator and as the arbitrator had ; not applied his mind correctly to the facts and so had not really adjudicated upon them {Flyyin v. Bobertson (1869), L. R. 4 C. P. 324). 4. An action was compulsorily referred under the Common Law Procedure Act, 1854, to a Master, who made an award in favour of the defendant. Subsequently the Master told the plaintiff in conversation the grounds upon which he had based his decision. The plaintiff applied to the Court to remit the award, since these grounds showed that the Master had made a mistake in law. Held that in the absence of any admission by the Master that he had made a mistake the Court had no power to remit the award (Dinn v. Blake (1875), L. li. 10 C. P. 388). 5. An arbitrator, in an arbitration under the Light Railways Act, 1896, who had, by the provisions of that Act, a discretion as to costs, made an award in which he was silent on the question of costs. He stated in an affidavit that he had not dealt with the matter, as he had been under the mistaken impression that the provisions of the Lands Clauses Consolidation Act, 1845, governed the reference, and that con- sequently the costs would follow the event. He said that, but for his having been under this impression, he would have awarded costs to the claimants. Held that as the arbitrator had admitted his mistake, which was one of omission and not commission, and did not seek to impeach his award, the award should be remitted to his reconsideration {Be Baxters and the Midland Bail. Co. (1906), 95 L. T. 20. See also Harland v. Newcastle Corporation (1869), L. R. 5 Q. B. 47). 6. To a declaration containing a single count for work and labour done, money paid, board and lodging, and on an account stated, the defendant pleaded (I) never indebted and (2) a set-off. The cause Avas referred, the entire costs of the matter to abide the event. The arbitrator awarded in favour of the plaintiff on the first issue and in favour of the defendant on the second. He afterwards stated that he considered that the plaintiff had made out no claim against the defen- dant except for board and lodging. Held that the arbitrator was entitled to find separately upon each of the different heads of claim and that the award would be remitted to him to do so {Gore v. Baker (1855), 24 L. J. Q. B. 94). Misconduct of arbitrator. The Court may remit the matters referred or the award where the arbitrator has been guilty of misconduct, if the misconduct is of such a nature as does not disqualify him from acting, or render it impossible for the Court to trust him. If the misconduct is of a kind (c.ff. fraud) to justify the removal of the arbitrator, the Court will not remit the 174 REFERENCE BY CONSENT OUT OF COURT award, but will act under s. 11, and if it is of such a kind as to justify the setting aside of the award the Court will exercise its discretion as to whether to remit the award or set it aside. Hearing witnesses or consulting documents in the absence of the parties, awarding a lump ;sum for his own costs and other expenses so as to deprive the parties of their right to challenge his charges, failure to exercise all his powers -or improperly exercising a discretion, is such misconduct, if coupled with a complete absence of dishonest motive, as will justify the Court in remitting the award instead of setting it aside if, in its discretion, the Court thinks fit to do so. Illustrations. 1. By the statute 3 & i Vict. c. 24, s. 2, a judge had a discretion to grant or refuse a certificate for costs to the plaintiff in an action brought to try a right, when such plaintiff recovered less than 40s. An action brought to try a right was referred, the order of reference providing that the arbitrator should have the same powers as a judge. The arbitrator awarded in favour of the plaintiff with one farthing damages, and refused a certificate for costs. The plaintiff applied to remit the award. Held that the arbitrator had a discretion which he had not exercised improperly and the application must be refused {Bury V. Dunn (1843), 1 D. & L. 141). 2. During the hearing of a cause which had been referred as a ■matter of account, a question of fraud arose. The arbitrator refused to go into it, considering that the account only was referred to him, and made an award in favour of the defendant. Held that the award should be remitted for the arbitrator to deal with the question of fraud, as, though the case was referred as a matter of account, he should hnve gone into whatever questions arose during the reference, although they might not be a matter of account (hisuU v. Moajen (1857), 27 L. J. €. P. 75). 3. An action was referred to two arbitrators with power to appoint a third. The arbitrators heard evidence, but could not agree upon their award, so they appointed a third. The third arbitrator re:id the notes of the evidence and sent for two or three of the witnesses, to whom he put a few questions. The parties were given no notice of this and were not present. The third arbitrator executed his award apart from the other arbitrators. Held that as there was no imputation against the arbitrators in regard to hearing the witnesses in the absence of the parties, and as their omission to execute the award together was a mere informality, the award would be remitted to their reconsideration {Anning v. Hartley (1858), 27 L. J. Ex. 145). 4. In the course of arbitration proceedings certain letters in a letter- book were adduced in evidence. The letter-book was left with the arbitrator while he was considering his award, and he read letters other than those which had been put in evidence, his decision being materially influenced thereby. Held that while it was not a proper REMITTING OR REFERRING BACK AWARD 175 ■case in which to set aside the award, the award would be remitted to the reconsideration of the arbitrator {Davenpwt v. Vickery (1861), ■9 W. E. 701). 5. An arbitrator was at liberty by the terms of the agreement to refer " to appoint some person not objected to by any of the parties as an accountant to assist him." The arbitrator appointed a gentleman as accountant without communicating with any of the parties. Romillv, M.R., said : " If this had been the only objection to the award I should have been much disposed to have sent the matter back to the same arbitrator" {Re Tidmell (1863), 33 Beav. 217). 6. An action was referred to an arbitrator, who was to have all the powers of a judge at Nisi Prixis. Costs of the cause were to follow the •event. The arbitrator awarded the plaintiff £2, 14s. damages, but failed to give him a certificate for the costs of the action. Subsequently, the arbitrator gave the plaintiff a document in which he said that it appeared to him that " there was sufficient reason for bringing the action •in the Court of Queen's Bench, and I hereby certify for costs accord- ingly." The plaintiff eventually obtained a rule calling on the defendants to show cause why he should not be allowed his costs, or why the award should not be remitted to the arbitrator to certify for the same, but the arbitrator made no affidavit. Held that while the Court ought not to accept the bare statement of an arbitrator as to what he intended at the time of the reference, the award, in the circumstances, would be remitted, since the question whether the plaintiff should have his costs of the action was one of the matters the arbitrator had had to decide and had not been dealt with by him, and the arbitrator, therefore, had not exercised all his powers {Harland v. Neiccastle Corporation (1869), L. R. 5 Q. B. 47). 7. An umpire concluded an award with the words : " I further award, adjudge, and settle the amount of the costs of and incident to the award, including my own costs as umpire, and the costs of the said as arbitrators" at a certain sum, Avhich he directed to be paid to him on taking up the award. On a motion to set aside the award, it was submitted that " an arbitrator could not in his award fix his own costs or lump the amount up with other sums, so that it did not appear what he was charging for his costs." Held that it was improper for an umpire or arbitrator to act so as to deprive a party to the arbitration of his right to challetige the charge which he made for his services or which the arbitrators were making for theirs, and that the case should be remitted for the umpire to state the amount of his charges and that of the arbitrators {Gilbert and Wright, In re (1904), 20 T. L. R. 164). Arbitrator refusing to state a case. The Court has no power to remit an award to an arbitrator on tiie ground that he has refused to state his award in the form of a special case, the arbitrator's power to do so, under s. 7 of the Act, being merely permissive and enabling, and not compulsory. 176 REFERENCE BY CONSENT OUT OF COURT Ilhistrations. 1. An arbitrator to whom a cause had been referred refused a- request of the defendant to state a case for the opinion of the Court and ultimately made an award in favour of the plaintiff. The Court dismissed a motion that the award might be remitted to the arbitrator for reconsideration in order that a case might be stated {Uolloway v. Francis (1861), 9 C. B. (N. S.) 559). 2. An action was referred to an arbitrator, who was to be at liberty to state any point of law desired by either party for the opinion of the Court. The arbitrator made an award in favour of the plaintiff and refused a request of the defendant to state a point of law. On a motion to set aside or remit the award it was held that the clause in the order of reference giving liberty to the arbitrator to state a case was not compulsory, and that the motion must be dismissed {Gibbon v.. Parker (1862), 5 L. T. 584). The Court in like manner has no power to remit an award to an arbitrator on the ground that he has refused to state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference under s. 19 of the Act, provided he lias respected the right of a party to apply to the Court for an order directing him to do so. The arbitrator has a discretion under s. 19 as he has under s. 7, and his powers under both sections are permissive and enabling and not compulsory. But if the arbitrator refuses in a proper case to delay making his award until the party can apply to the Court under s. 19, the Court has power to set aside or remit the award. Illustration, A contract of sale provided for the reference of disputes to arbi- trators, an appeal from whose decision lay to the directors of a trade association. Differences having arisen, reference was made to the arbi- trators, who made an award in favour of the sellers. The buyers appealed to the directors of the association. During the hearing of the appeal the buyers requested the directors to state a special case for the opinion of the Court under s. 19 of the Arbitration Act, or to adjourn the con- sideration of the matter, so that the buyers might apply to the Court for an order for a special case. The directors refused on the ground that they were competent to deal with the case without the assistance of the Court. Held that the refusal of the directors to comply with the request of the buyers constituted misconduct and justified the Court in remitting the award for their further consideration {Palmer £ Co. and Eosken & Co., In re, [1898] 1 Q. B. 131). Where parties are entitled under the submission to call upon the arbitrator to state a case, and more especially as parties have during the reference power under s. 19 of the Act to apply to the Court for an order that the arbitrator shall state a special case for the opinion REMITTING OR REFERRING BACK AWARD 177 of the Court, the Court will not remit an award on the ground that the arbitrator has not stated a ease if he has not been asked to do so, or if the parties have not troubled to apply to the Court under s. 19, and the arbitrator has done nothing to prevent either of them from making such an application. Illustratimi. An agreement of reference in an appeal against a poor-rate contained a clause enabling the arbitrators, at the request of either party, to state a case to be settled by the umpire for the opinion of the Court. The arbitrators having disagreed, the umpire made his umpirage, and sub- sequently, at the request of the appellants, set out the principles upon which he had acted, with a view to enabling the appellants to have the matter discussed in Court. Upon a rule calling upon the defendants to show cause why the umpirage should not be sent back to the umpire to state the facts more fully, the Court refused to interfere, as the appellants had had an opportunity of getting a case stated, and instead of doing so had taken their chance of getting an umpirage in their favour (In re London Dock Co. and Tnistees of the Poor of Shadwell (1862), 32 L. J. Q. B. 30). Discover')/ of fresh evidence. The discovery of new and material evidence since the award may be good ground for an application to remit the award. The exercise of the power of the Court to remit an award on this ground is analogous to the power of the Court to grant a new trial in similar circumstances (see Annual Practice, note to Order XXXIX., r. 6). Illustrations. 1. After an award made in favour of B. against W, on a submission to arbitration between them, where the agreement to refer contained a clause empowering the Court to remit the matters to the reconsideration of the arbitrators, W. moved to send back the award to the arbitrators, on the ground that since the award he had discovered a letter in the handwriting of B. which contained material evidence in his favour. The arbitrators deposed that the production of such a letter at the reference would have materially affected their decision. B. swore that the letter was a forgery. Held that the matter should be remitted to the arbitrators for them to say whether the letter had been written by B., and if so, to reconsider the matters in difference (Burnard v. Wainwright (1850), 19 L. J. Q. B. 423). 2. A contract of sale provided that any disputes arising thereunder should be referred to arbitration. Disputes having arisen, two arbitrators were appointed, who proceeded with the reference and made an award, which was affirmed by the appeal committee of a trade association. Subsequently material evidence was procured which, had it been before the arbitrators, might have influenced them in their decision. Held by 12 178 REFERENCE BY CONSENT OUT OF COURT the Court of Appeal, approving Burnard v. Wainwright {supra), that the discovery of this evidence constituted a ground for remitting the award to the appeal committee for reconsideration {In re Keighley, Maxsted & Co. and Bryan Durant & Co., [1893] 1 Q. B. 405). 3. An action for commission was referred to an arbitrator, who made an award in favour of the plaintiff. The defendants subsequently found that the plaintiff had based his commission on a sum which was inaccurate. Held that evidence which would certainly have affected the mind of the arbitrator had been discovered, and that the award should be remitted {Sprague v. Allen & Sons (1899), 15 T. L. R. 150). The new evidence must be such as could not have been reasonably anticipated, and could not with reasonable diligence have been discovered before the award. Illustration. After an award had been made one of the parties procured new evidence and on that ground applied to the Court to remit the award. The Court refused the application as there was nothing to show that the new evidence was not such as a reasonable man might anticipate or as could have been obtained by reasonable diligence before the making of the award {Eardhy v. Otley (1818), 2 Chitt. 42). The following more recent cases of applications for a new trial, which, as has been said, are analogous, may also be referred to : — In Yoimg w. Kerslmw (1899), 81 L. T. 531, Smith, L.J., said: "Now, what is the rule as to granting a new trial in order to enable a party to adduce new evidence after an action has once been decided by a jury ? It seems to me that the cases which have been referred to show that a new trial may be granted if new evidence, which could not have been obtained before, has been discovered which, if it had been adduced at the trial, would have been conclusive, so that the verdict must have been found otherwise than it was." In the same case Collins, L.J., said : "The party asking for the new trial must show that there was no remissness on his part in adducing all possible evidence at the trial." This case was approved by the Court of Appeal in Warhim v. SeJfridge r Procedure Act, 1854, an order was made remitting the matters referred to the reconsideration and redetermination of the arbitrator. At the reopening of the hearing the plaintiff tendered several witnesses whose evidence,, which was material, was not known of before making the award. It was held that, having regard to the scope of the remission to him, he was wrong in refusing to hear the evidence which was tendered, and the Court, therefore, set aside the award. Tlie assumption in that case was that the arbitrator had not arrived at a decision on the matters submitted to him, and, the order having been drawn up so that all matters were referred back to him, it was held by Lord Denman, C.J., that he was in a position to hear the whole cause again, and was not 188 REFERENCE BY CONSENT OUT OF COURT entitled to refuse to hear further evidence. No such order is likely to be made again, for it would seem to be directly contrary to the principles laid down in Alle7i v. Greenslade (1875), 33 L. T. 567, since the effect would be to permit the arbitrator to impeach his own award. It would seem that the duty of the arbitrator to hear fresh evidence is limited to cases — (a) where the arbitrator has omitted to decide some matter submitted to him; or (&) where fresh evidence has been dis- covered after the making of the award ; or (c) where the arbitrator had, during the proceedings in the arbitration, refused to receive certain evidence which he ought to have received. In cases where the award is remitted upon some question of law, the duty of the arbitrator apparently would generally be limited to hearing such evidence only as might be necessary to come to a correct legal decision. In cases where the award is remitted for the correction of errors apparent on the face of it, the arbitrator is not, as a rule, required to hear fresh evidence or to give notice to the parties that he intends to make his second or amended award. Ilhistrations. 1, A cause was referred to an arbitrator. In his award the arbitrator by mistake called the plaintift' by his wrong name. On an application to set aside the award on this ground the matter was remitted to the arbitrator " to reconsider and amend the award if he think fit." The arbitrator endorsed the award to the effect that the correct name of the plaintiff should be substituted for the incorrect one wherever it occurred in the award, and redelivered the award without giving notice to the parties to attend before him on the reopening. Held that the award was remitted to the arbitrator for a specific purpose," for the performance of which he required no assistance from the parties, and he was, therefore, not bound to give them notice (Howett v. Clements (1845), 1 C. B. 128). 2. The award of an arbitrator, to whom a cause and all matters in difference between the parties had been referred, was objected to by both parties. " The matters arbitrated upon " were therefore, by consent, remitted to him to make such alterations as he should think tit. The arbitrator altered the award and redelivered it without giving notice to the parties of his intention to do so. On a motion to set aside the award it was held that, as the arbitrator had not been requested by the parties to hear fresh evidence or further arguments, he was not bound to give them notice and thereby an opportunity of adducing the same {Baker v. Hunter (1847), 16 M. & W. 672). .3. The Court ordered an award to be remitted to an arbitrator to ascertain the amount of the costs payable by one of the parties. A., to the other, B. A. claimed to be allowed to give additional evidence which had been discovered since the making of the award, and to be heard REMITTING OR REFERRING BACK AWARD 189- in the further proceedings. The arbitrator refused to accede to the- application. Held that, as the award had been remitted to the arbitrator for a specific purpose, he had a right to refuse to hear further evidence {In re Huntlerj (1853), 1 E. & B. 787). 4. Parties referred "all matters in difference" to an arbitrator, who made an award in favour of the plaintiff". On the hearing of a rule to enforce the award it appeared that the award was bad on the face of it. The Court ordered " that the award be remitted back to the arbitrator to set it right on the face of it." The arbitrator did so without further hearing the parties. Held that, in the circumstances, the arbitrator was not bound to hear the parties (In re Morris and Morris (1856), 6 E. «fe B. 383. See also Bird v. Penrice (1840), 6 M. & W. 754, and Johnson v. Laiham (1851), 20 L. J. Q. B. 236). Form of fresh award. Whether the remission is general or limited to some one or more- matters, the amended award should embrace every matter originally referred. It may confirm the first award in terms as to matters not remitted, but a simpler course is to re-copy the first award as to those matters and adjudicate in the others (see Johnson v. Latham (1851), 20 L, J, Q, B, 236). The amended award need not recite the order for remission. Illustration. An award was remitted to the arbitrator by order of a judge. The arbitrator made certain alterations and delivered an amended award which did not recite the judge's order. On a motion to set aside the award it was held that an arbitrator need not recite his authority, and that if he misrecites it it is immaterial {Baler v. Hunter (1847), 16 M, & W, 672). Time for fresh award. The fresh award, unless the order of remission otherwise directs, must be made within three months after the date of the order (s, 10 (2)), "Month" means calendar month (Interpretation Act, 1889 (52 & 53 Vict, c, 63), s. 3; Order LXIV,, r, 1), Enlargement of time. The limit of time prescribed by this section may be enlarged by the order of the Court under s. 9 of the Act. The arbitrator has not, it would seem, in the case of a remitted award, the powers given by clause (c) of the First Schedule as to enlargement of time. The pro- visions of s. 10 (2) seem to be imperative as to the time within which tlie fresh award must be made. 190 REFERENCE BY COXSEST OUT OF COURT Costs. If the Older for remission is silent as to costs, and the arbitratoi- had power under the submission to deal with costs, he will have power over the costs of the second reference and award. Illxistration. A cause was refeired to an arbitrator, who was given power to deal with the costs of the reference. He made an award in favour of the plaintiff and ordered the defendant to pay the costs. The award was subsequently remitted to him by order of the Court for the purpose of deciding certain points which had not been dealt with sufficiently. Xo direction as to costs was given in the order remitting the award. Held that the arbitrator had power to deal with the costs under the original order {M'PMt v. McLean (185.3), 2 E. & B. 946). Section 11. KEMOVIXG ARBITRATOR. SETTING ASIDE AWARD. 1. Previous leijislation, 2. The law before the Arbitration Act. 3. 71ie i)ihereid jurisdiction of the Court. 4. JJiffurences in the lav: 5. Removal of arbitrator or umpire for misconduct. ■6. Liabilitij of arbitrator. In respect of fees. AVant of skill or care. Refusal to complete reference. In case of fraud. ^Mandamus to arbitx'ators to assess costs. Wilful misconduct a misdemeanor under tlie Lands Clauses Acts, &c. Appointing an insolvent receiver. '7. Settinoraneous document. Award not final. Mattei\s not brought to arbitrator's notice. Award of one sum in respect of all matters. Omitting to give directions. Duty to decide specific question referred. Award of mutual releases a decision of all matters. Silence as to severance damage under Lands Clauses Act. Several awards, each deciding part. Not deciding the cause or all the issues properly. Presumption in favour of award. Award of sum as balance. Ordering release to a day before submission. Conditional award. Alternative award. Where one alternative uncertain or impossible. . Award reserving judicial authority. Reservation as to matters not submitted. Award delegating judicial authority. Reservation or delegation as regards ministerial acts. Reservation, whether construed as judicial or ministerial. Award uncertain. As to amount awarded. When arbitrator to allow at market price. Awarding sufficient to release securitie.s. Award to pay over money received, if any. Money due from A., B., and C, some or one of them. Giving rule for computing airiount. To Apportion trust estate. As to nature of security. As to identity of property awarded. Other directions by arbitrator. Award impossible or inconsistent. Award in excess of authority. Where award invalid, but not entirely a nullity. Disability of party. Discovery of new material matter or new evidence. 9. Insufficient yroundsfor setting aside award. Unexpected case set up by opponent. Discovery of felony of party. False evidence given. Witness having given different evidence elsewhere. Perjury of witness. Objection very small. 10. Effect of setting aside airard, in ivhole or in part. 192 REFERENCE BY CONSENT OUT OF COURT Where bad part separable. Where bad part inseparable, 11. Aiyplication of section to statutory arbitrafwns. Award on reference by order of County Court. 12. Practice. Who may move to set aside award. Time for application. " Before the last day." " Published to the parties." Power of Court to extend the time. Application, how made. Notice of motion. Stating grounds of application. Service of affidavits. Service out of the jurisdiction. Form and contents of affidavits in support. Affidavits in answer to support an award bad on its face. Affidavits by arbitrator. Inspection of documents mentioned in affidavits. Turning motion into a special case. Hearing of the motion. Inspection of original agreement of reference. Arbitrator's notes. Admission by arbitrator. Grounds of opposition to motion. Motion out of time. Affidavits defective. Party moving not injured. Matter not brought to notice of arbitrator. Matter not in dispute. Acquiescence by taking benefit under award. Acquiescence by performance of the award. Permitting other party to act on award. Result of the motion. Second motion to set aside award. Costs. Where motion dismissed. Where motion allowed. Condemning arbitrator in costs. Appeal. 11. (1) Where an arbitrator or umpire has misconducted himself, the Court may remove him. (2) Where an arbitrator or umpire has misconducted himself, or an arbitration or award has been improperly procured, the Court may set the award aside. 1. Previous legislation. S. 11 (1) is entirely new legislation. S. 11 (2) is partly new and partly a re-enactment. The statute of 9 Will. III. c. 15, passed in 1698, enacted by s. 2 as follows : — SETTING ASIDE AWARD 193' II. And be it further enacted by the authority aforesaid, that any :arbitration or umpirage procured by corruption or undue means, shall be judged and esteemed void and of none efiect, and accordingly be •set aside by any Court of law or equity, so as complaint of such ■corruption or undue practice be made in the Court where the rule is made for submission to such arbitration or umpirage, before the last day of the next term after such arbitration or umpirage made and published to the parties ; any thing in this Act contained to the ■contrary notwithstanding. 2. The law before the Arbitration Act. In Russell on Awards, 6th ed., 1882, at p. 687, the law as existing before the Arbitration Act was commented on as follows : — "[When an aicard is under the statute of Williavi III.'] " In considering what may be the grounds of a motion to set aside an award, a distinction may be noticed between awards pursuant to submissions made rules of Court by the inherent jurisdiction of the Courts, and those on submissions of which the Courts take cognizance by virtue only of the statute of William III. (9 Will. III. c. 15). " In an old case it is laid down that under that statute nothing is a ground for impeaching the award but manifest corruption of the arbitrators (Anderson v. Coxeter (1720), 1 Stra. 301); but the language of the Act provides that awards 'procured by corruption or undue means ' shall be set aside, thus not limiting the grounds to corrup- tion only. " It is evident that the term ' undue means ' signifies something different from corruption; for although* there be no ground for imputing improper motives to the arbitrator, the Court will set aside the award as procured by ' undue means ' if the course pursued in the reference has been inconsistent with justice; as, for instance, if the witnesses have been examined in the absence of the parties {Pleios and Middletmi, In re (1845), 6 Q. B. 845; Harvey v. Shelton (1844), 7 Beav. 455), or the plaintifl' was not allowed a proper opportunity of discussing his case {Spettiguc v. Carpenter (1735), 3 P. W. 361; S. C. Vin. Ab. Supp. Arb. 301). "The restriction, liowever, imposed by the language of the Act has subsequently been much disregarded, for the Courts will listen to applications to set aside awards under the statute on other grounds than the two enumerated in the section " ( Veale v. Warner (1670), 1 Haund. 327 d, notes). 3. The inherent jurisdiction of the Court. In addition to the powers exercised by the Court under the statute of William III., the Court exercised certain powers of setting aside- 13 194 REFERENCE BY CONSENT OUT OF COURT awards under its inherent jurisdiction. The Arbitration Act does not refer to these inherent powers of setting aside awards, and it would' seem that the powers of the Court under that Act are limited by the terms of the section, and that any other powers of the Court must still be derived from its inherent jurisdiction. In construing the Arbitration Act as regards other sections, e.g.. s. 5, the Court has looked strictly to the powers conferred by the statute {Re Smith and Nelsons Arh. (1890), 25 Q. B. D. 545). The inherent jurisdiction of the Court appears to consist chiefly of the power to set aside an award which is bad on its face, or on some, ground which is more or less an extension of the same principle. 4. Differences in the law. Under the statute of William III. there were two grounds for setting aside an award — one where any arbitration or umpirage was procured by "corruption," and the other where it was procured by " undue means." The latter phrase was interpreted to mean some act contrary to natural justice, and included misconduct when such mis- conduct was contrary to natural justice. Under the Arbitration Act there are still two grounds for setting aside an award, but both grounds are much wider than before the Act. The first ground is misconduct of the arbitrator or umpire, which is much wider than anything in the statute of William III. The word " misconduct " includes any act which is contrary to natural justice, but is not limited to such acts, and there is no necessity for the Court to consider whether the misconduct has resulted in the procurement of an arbitration or award by " undue means." The Act does not place any limitation on the meaning of the word " misconduct," and the Court might now set aside an award or remove an arbitrator for ordinary misconduct, e.g. if during the proceedings in the arbitration he was constantly drunk and therefore incapable of adjudicating properly. The power now given to the Court to remove an arbitrator or to set aside an award on the ground of misconduct, as compared with the more limited powers of the Court before the Arbitration Act, must be borne in mind in considering the decisions before and since the passing of the Act. The second ground is where an " arbitration or award has been improperly procured." This is practically a re-enactment of s. 2 of the statute of William III., but more comprehensive. 5. Removal of arbitrator or umpire for misconduct. It should be observed that the power of removing an arbitrator or umpire who has misconducted himself is given to the Court alone and not to the " Court or a judge," and cannot llierefore be exercised by a Master (see Order LIV., r. 12a). REMOVING ARBITRATOR. 195 The word " misconduct," it would seem, may be construed in its widest sense (see ante, p. 194), and need not be confined to the kind of misconduct which was necessary to justify the setting aside of an award before the Act, i.e. some act contrary to natural justice. The following cases have been decided under the Arbitration Act : — Illustrations. 1. Disputes arising out of a contract for the performance of certain works were referred to arbitration. The arbitrator decided to commence the arbitration on 29th July 1889. The contractor asked for an earlier date, as his most important witness was leaving England on 26th July. The arbitrator refused this request. On an application to remove the arbitrator on the ground that he had refused to take an examination of the witness in question before he left England, it was held that the arbitrator had not done anything which he was not entitled to do and the application must be dismissed {Re JVhiivjham and Wrev.ham, &c., Bail. Co. (189.5), .39 S. J. 692). 2. An arbitrator made certain orders as to costs which he had no jurisdiction to make. On a motion to remove the arbitrator on the ground that, in acting ultra vires, he had been guilty of misconduct, it was held by the Court of Appeal that the arbitrator had been mis- informed as to his juriisdiction, and that though he had made grave mistakes, he had not been guilty of misconduct within s. 11 (1) of the Arbitration Act, and would not be removed {Schofielcl v. Allen (1904), 116 L. T. J. 239). 3. A contract of sale contained an arbitration clause. Disputes having arisen, arbitrators were appointed, who in turn appointed an umpire. The umpire made his award in favour of the buyers, and the sellers moved for an order that he should be removed and the disputes should be remitted to the arbitrators on the grounds (1) that the umpire without the consent of the parties insisted upon a gentleman in no way connected with the case giving evidence ; (2) that he admitted evidence which was inadmissible ; (3) that he refused to give the sellers an opportunity of meeting this evidence by adjourning the proceedings ; (4) that throughout the proceedings he showed bias against the sellers ; and (5) that when asked by the sellers to state a case, he said that he was quite willing to do so, but that he must first ask them to hand him a cheque for £150 on account of legal expenses, &c. Held by the Court of Appeal that the umpire had been guilty of misconduct and must be removed {In re Enoch and Zaretzky, Bock & Co., [1910] 1 K. B. 327). 6. Liability of arbitrator. In respect of fees. The Courts formerly seem to have assumed that the amount charged for fees by an arbitrator might be summarily reviewed by them as against the arbitrator. As between party and party it is clear that 196 REFERENCE BY CONSENT OUT OF COURT the arbitrator's charges will be taxed on application to the Court, and, if excessive, reduced {Brazier v. Bryant (183-1), 2 Dowl. 600 ; Westivood C. P. 127). Illustrations. 1. On a reference of all matters in difference between the parties to a Chancery suit, the Court held the award void for not deciding the various claims existing between the co-defendants, on the ground that the order of reference required that not merely the matters in difference between the plaintiffs on one side and the defendants on the other should be determined, but that the individual rights of all the parties to the suit should be adjusted (Turner v. Turner (1827), 3 Russ. 494). 2. It being disputed whether A. had been in partnership with B., and if so, whether and when it had been put an end to, an award that if a partnership ever existed it was terminated by consent on a certain day is not final (Bhear v. Harradine (1852), 7 Ex. 269 ; 21 L. J. Ex. 127). 3. An award that one should release to the other all actions and debts except bonds made for the performance of former awards was held a good award, as amounting to an award that the bonds should stand in full force, and not as excepting them from decision (Salloivs V. Girling (1612), Cro. Jac. 277). 4. An award that all suits and actions should cease, and that all matters should be determined, except concerning a certain bond which was to stand in full force, was held a sufficient determination con- cerning all the controversies {Berry v. Penring (1616), Cro. Jac. 399). 5. On the reference of a claim between A. on the one side, and B. and C. on the other, an award that B. shall pay A. a sura of money in respect of it is good against B., whatever objection either A. or C. might make to it, as not saying anything about C.'s liability [Wood V. Adcoch (1852), 7 Ex. 468; 21 L. J. Ex. 204). 6. An award deciding that the plaintiff had no cause of action, but declaring that it was not intended to exclude him from the receipt of a certain commission, to which he would subsequently be entitled under an agreement, was held sufficient, on the ground that the award in fact said that there was nothing due on that agreement at present {Harding v. Forshaw (1836), 1 M. & W. 415. See Cockburn v. Newton (1841), 2 M. & G. 899; 10 L. J. C. P. 207), Matters not hrovjjlit to arhiirator's notice. iSTo objection can be made to the award if the arbitrator determines all questions brought before his notice, though there are other matters within the scope of tiie submission to which his attention has not been drawn {Middleton v. Weeks (1613), Cro. Jac. 200 ; Elsom v. Rolfe (1805), 2 Smith, 459; Hmvhsworth v. Brammall (1839), 5 My. & Cr. 281). In order to invalidate the award for not deciding a particular question, the point must have been specifically raised {Rces v. Waters (1847), 16 M. & W. 263). 216 REFERENCE BY CONSENT OUT OF COURT Award of one sum in respect of all matters. It is sufficient for an arbitrator to whom a cause and all matters in difference are referred, after duly determining the cause, to award a gross sum in respect of the matters in difference not included in the cause, without in his award specifying what they are, for "id certum est quod certum reddi potest," and on showing by parol evidence what the claims brought before the arbitrator were, the award will be final as to them {Wrightson v. Byivatcr (1838), 3 M. & W. 199). An arbitrator may award one sum generally in respect of all money claims submitted to him, unless the intention of the parties, as expressed by the submission, is that he is to award separately on some one or more of them, or there is some legal necessity for his awarding separ- ately — as, for instance, to determine the right to costs ( Whitworth v. Hulse (1866), L. K. 1 Ex. 251 ; 35 L. J. Ex. 149. See Bule v. Brrjde (1847), 1 Ex. 151 ; 16 L. J. Ex. 256). Of course, if the submission is ambiguous it is better to make a distinct adjudication on each head. Omitting to give directions. If the arbitrator omits to give the necessary directions to effectuate the objects for which he is appointed, the award is not final {Johnson v. Wilson (1741), Willes, 248). Duty to decide the specific question referred. On a reference on the ordinary terms, the arbitrator must decide the very question submitted to him, and is not justified in lieu thereof in directing what seems to him an equitable arrangement on the whole. Illustration. On a reference of all questions relating to an agreement for the sale of land, the sufficiency of the vendor's title being disputed, an award that the purchaser should take a conveyance of the title with all its faults, receiving an indemnity, was held invalid, as not finally settliug the question of title {Ross v. Boards (1838), 8 A. & E. 290; 7 L. J. (N. S.) Q. B. 209. See Anon. (1565), Dyer, 242 a). Atvard of mutiial releases a decision of all matters. But if, on a submission of a cause and all matters in difference, the award orders the defendant to pay the plaintiff a sum of money, and directs mutual and general releases to be executed, the award is final, although the arbitrator does not expressly adjudicate on some specific questions raised before him (Birks v. TripjJet (1666), 1 Saund. 32; IFJiarton v. King (1832), 2 B. e^- Ad. 528; 9 L. J. (0. S.) K. B. 271; Addison v. Gray (1766), 2 Wils. 293). The rule as to the necessity of specifically adjudicating upon thfr SETTING ASIDE AWARD 217 ■matters submitted to the arbitrator has been thus laid down by Parke, B.: *' The rule is this — where there is a further claim made by the plaintiff or a cross demand set up by the defendant, and the award professing to be made of and concerning the matters referred is silent respecting such further claim or cross demand, the award amounts to an adjudication that the plaintiff has no such further claim, or that the defendant's cross demand is untenable ; but where the matter so set up from its nature requires to be specifically adjudicated upon, mere silence will not do." And he illustrated the latter position by the case of an arbitrator called upon to decide upon which of two demises a plaintiff in ejectment was entitled to recover, or whether or not a partnership •existed between two persons, or what was the interest that a party took in certain property, whether an estate tail or an estate in fee, and said that in such cases a general award professing to adjudicate upon all the matters referred would not suffice {Harrison v. Cresivick (1852), 13 C. B. 399 ; 21 L. J. C. P. 113. See notes to Birks v. Trippet (1666), 1 Wm. Saund. 33 a). Silence as to severance dainage under Lands Clauses Act. Though by s. 63 of the Lands Clauses Consolidation Act, 1845, the arbitrator, on estimating the compensation, is to have regard not only to the value of the land taken, but to the damage, if any, by severance, and the landowner claims compensation for his land taken and for severance damage also, the award will be good if it gives compensation for the value of the land only, for the Court will assume from the silence of the arbitrator that he is of opinion that there is no damage by sever- ance {Diihe of Beaufort v. Simnsea Harhoicr Trs. (1860), 29 L. J. C. P. :241 ; 8 C. B. (N. S.) 146). Several awards, each deciding part. It is implied in all cases, unless something to the contrary is expressed, or may be inferred from the submission, that the arbitrator can make but one award {Gould v. Staffordshire Potteries Waterivorlis Co. (1850), 5 Ex., at p. 223, per Parke, B.). This must be one entire and complete instrument in itself ; therefore, if it is made part at one day and part at another, though each and every part is made within the time limited for the award, it will be void (Com. Dig. Arb. E 16). If without special power, the arbitrator makes two awards, each deciding part of the matters referred, and not one entire award on all together, both may be set aside, for there is no one final award on all the subjects {Winter v. Munton (1818), 2 Moore, 723). Where an arbitrator had power to make two awards, and in the first to state a case for the opinion of the Court and assess damages contin- gently, but neither party was to enforce payment of any sum found due by the first award until the arbitrator had made his final award, it was 218 REFERENCE BY CONSENT OUT OF COURT considered that the first award was not a final award ( Wood v. The^ Cojjper Miners Co. (1854), 15 C. B. 464 ; 24 L. J. C. P. 34). Under the Eaihvay Companies Arbitration Act, 1859 (22 & 23 Yict.^ c. 59), s. 21, the arbitrators may, if they think fit, make several awards, each on part of the matters referred. Not decidinfj the cmcse or all the issues proiKrly. An award will also be set aside as not being final if, when it ought, for the purpose of costs, to show in whose favour the cause is decided, it awards merely that the proceedings in the cause are to cease (Hunt V, Himt (1836), 5 Dowl. 442) ; or if it fails to decide every issue joined in the cause {Kilhurn v. Kilbv.rn (1845), 13 M. & W. 671 ; 14 L. J. Ex. 160). If an award omits to assess damages on the issues found for the plaintiff, it may be impeached {Wood \. Duncan (1838), 7 Dowl. 91), but not if there is an issue found for the defendant on a plea covering the whole cause of action ( Warv:ick v. Cox (1844), 1 D. & L. 986 ; 13 L. J. Ex. 314). When all matters in difference, as well as the cause, are referred, and the arbitrator finds for the defendant on the general issue in debt, the award may be set aside for failing further to ascertain the amount of the defendant's set-off {Moloney v. moeldeij (1842), 2 Dowl. (N. S.). 122; 12 L. J. C. P. 92). Deciding a cause by an unwarranted direction that a judgment be entered is a sufficient ground of motion, but not if the award also shows by other provisions how the cause has been determined {Doe d. Body v. Cox (1846), 4 D. & L. 75 ; 15 L. J. Q. B. 317).. On a general reference, when the costs of the cause abide the event of the award as to the cause, it will be a good ground of motion that the arbitrator has awarded one gross sum in respect of the cause and all other matters together, since it cannot be seen for whom the cause is decided {Croshie v. Holmes (1846), 3 D. & L. 566 ; 15 L. J. Q. B. 125);. or if the cause is determined for the plaintiff, since it cannot be said what amount of damages he has recovered in the action, so as to give information on what scale his costs are to be taxed {Lund v. Hudson (1843), 1 D. & L. 236 ; 12 L. J. Q. B. 365). But if no injury can result to the defendant from the omission to separate the damages, the defendant will not be allowed to impeach the award for this defect (Taylor v. Shuttleivorth (1840), 6 Bing. N. C. 277). PresumjJtion in favour of aivard. The Courts are always inclined to support the validity of an award, and will make every reasonable intendment and presumption in favour of its being a final, certain, and sufficient termination of the matters, in dispute (Wood v. Griffith (1818), 1 Swanst. 43; Hawkins v. Coldough (1757), 1 Burr. 274; Harrison v. Creswick (1852). 13 C. B. 399; 21 SETTING ASIDE AWARD 21D L. J. C. P. 113; Cargcy v. Aiichcson (1823), 2 B. & C. 170; 1 L. J. (0. S.) K. B. 252 ; Bland v. Russian Bank for Foreign Trade (1906), 11 Com, Cas. 71). Although it is generally advisable to draw the award in that form, it need not in terms profess to be made " of and concerning the premises," or formally express that the arbitrator adjudicates on every matter in difference, if it appears on the face of the instrument that it is an award on all the matters submitted {Broiun and Croydon Canal Co., hire (1839), 9 A. & E. 522 ; 8 L. J. (K S.) (,). B. 92). The award will be sustained although the arbitrator has omitted in his award to notice some claim put forward by a party if, according to the fair interpretation of the award, it is to be presumed that the arbitrator has taken the claim into his consideration in making his award {Gray v. Givcnnaf (1822), 1 B. & A. 106 ; Craven v. Craven (1817), 7 Taunt. 644; Dimn v. Warlters (1842), 9 M. & W. 293; 11 L. J. Ex. 188 ; Perry v. Mitchell (1844), 12 M. d- W. 792 ; 14 L. J. Ex. 88 ; Jeivell V. Christie (1866), L. E. 2 C. P. 296 ; 36 L. J. C. P. 168). Award of sum as halancc. Where the submission was of all matters in difference, an award that the defendant should pay to the plaintiffs a certain sum as the balance due on their banking account was held good ; for no other matter in difference should be intended, unless the party seeking to impeach the award could show that there was some other matter in difference between them {Ingram v. Milnes (1807), 8 East, 445. See Wyatt v. CiirneU (1841), 1 Dowl. (N. S.) 327; Bay v. Bonnin (1836), 3 15ing. X. C. 219 ; 6 L. J. (N. S.) C. P. 1 ; Wyome v. Edirards (1844), 12 M. & W. 708 ; 13 L. J. Ex. 222). Ordering release to a day heforc snhmissio7i. An award that the parties shall execute mutual releases of all actions and demands before a certain day is good, though that day be before the day of the date of the submission, for the Court will not presume that any new controversies arose in the intervening period ;. but if it is shown that any new demands arose in the interval, the award will be void i^i toto {Ward v. Unrorn (1632), Cro. Car. 216; Bnssfcld V. Bussfield (1619), Cro. Jac. 577; Barnes v. G recnn-cl {l^^l), Cro. Eliz. 858). Conditional award. Although in an old case a conditional award was held void {Crofts. V. Harris (1692), Carth. 187 ; see also Baillic v. EdAnhurgh Oil Gas Co. (1835), 3 C. & F. 639), yet awards in which conditions were imposed have been supported. 220 REFERENCE BY CONSENT OUT OF COURT Illustrations. 1. A lease of certain premises was awarded to the defendant, and it was provided that if the rent awarded to be paid by him were not paid, the award should be void as to his enjoying the lease, and the Court held the award good, notwithstanding the conditional award as to the lease, for it became absolute if the defendant paid the rent, and if he did not he lost the enjoyment by his own default {Purser v. Prmvd (1618), Cro. Jac. 423). 2. A direction in an award to do an act on the premises of a third party, though void if absolute, is good if made conditional on obtaining the consent of the owner of the land {Turner v. Swainson (1836), 1 M. & W. 572 ; 5 L. J. (N. S.) Ex. 266). If an award contains a proviso that it shall be wholly void on the liappening of a certain event, whether that event is within the control of the parties to the reference or not, the award will be bad in toto, for by adding the proviso the arbitrator has prevented his decision being a certain and final termination of the matters in dispute {Kiiige v. Fines (1662), Sid. 59; Yin. Ab. Arb. H 18; Sherry v. Richardsm (1591), Pop. 15). Where a submission authorised the arbitrator to set aside certain deeds, and gave him power to direct what should be done, and he awarded that certain specified deeds should be set aside, " if and so far as the same respectively are in force, and if and so far as I have jurisdiction to set the same aside ; and if I have no power to set them, or any of them, aside, I declare that the rest of my award is yet to stand," Turner, L.J., was of opinion that the award was not final {NicMs V. Hancoch (1855), 7 De G. M. & G. 300). A Iternative ai rard. An award in the alternative may be sufficiently certain and final. Illustrations. 1. An award to pay £100 at such a day, or if the party does not pay it by the day, to pay £110 at a future day, is good, the additional payment being in the nature of a penalty, which the arbitrator has a power to impose {Eoysion v. Bydal (1605), Roll. Ab. Arb. H 8; Com. Dig. Arb. E 15). 2. An award is good which orders a party to pay a certain sum by instalments on several days, and if he fails on the first day, to pay the whole sum {Kockill v. IVitherell (1672), 2 Keb. 838). 3. On a difference respecting a right-of-way, an award was sustained which directed that in case the way were taken away the plaintiff was to pay so much less than a specified sum, and if not, so much more (CoUeit V. Podu-eU (1670), 2 Keb. 670). SETTING ASIDE AWARD 2215 Where one alternative is uncertain or impossible. If an award directs one of two things to be done, and one of them is vmcertain or impossible, the award is nevertheless sufficiently certain and final if the second alternative is certain and possible ; and it will be incumbent on the party to perform the second alternative {Simmons- V. Swaine (1809), 1 Taunt. 549). Illustrations. 1. Where an award directed that defendant should cause satisfaction to be entered on the judgment-roll in a certain action, or pay a sum of money, and there was no such action in fact, the award was held good to compel the defendant to pay the money {Wharton v. King (1832), 2 B. & Ad. 528 ; 9 L. J. (0. S.) K. B. 271). 2. An award to deliver a deed which is not in the power or possession of the party, or to pay a sum of money, is good, and the party must perform the alternative of paying the money {Lee v. Elkins (1702), 12 Mod. 585). 3. In an old case an award that the defendant should pay the plaintiff £100 by such a day, or should find two sureties to be bound with him to the plaintiff to pay the £100 by £20 a year until the whole was paid, was held a good award as to the former part, but void as to the latter, and not even to give the defendant the liberty of electing whether he would pay the £100 at once, or find the sureties to secure the yearly instalments {Oldfield v. Wilmer (1577), 1 Leon. 140, 304). Aivard reserving judicial authority. An arbitrator cannot in his award reserve either to himself, or delegate to another, the power of performing in future any act of a judicial nature respecting the matters submitted {Winch v. Sanders (1621), 2 Eolle, Eep. 214; Cro. Jac. 584; Palmer, 145; Com. Dig. Arb. E 16; Selhy v. Russell (1698), 12 Mod. 139; Nott v. Long (1736), cited in Cayhill v. Fitzgerald (1743), 1 Wils. 28). His duty is to make a final and complete determination respecting them by his award, and it is a breach of that duty to leave anything to be determined hereafter. Lllustrations. 1. An award directing the defendant to leave on certain land so many trees to the plaintiff for house-bote and hedge-bote as the arbitrators, upon advice with counsel at the next assizes, should appoint, was held void as imperfect, and as reserving a future authority to themselves {Thinne v. liighy (1612), Cro. Jac. 314). 2. An award which directed A. to pay B. certain sums by instal- ments, and to give B. a bond, and execute a warrant of attorney to enter judgment thereon to secure the payment, the warrant to be lodged with the arbitrators, and judgment not to be entered thereon 222 REFERENCE BY CONSENT OUT OF COURT without their consent, was held bad {Lindscuj v. Lindsay (1860), 11 Ir. C. L. Kep. Ml). EcscTvatioii as to riiattcrs not suhmitted. Where, however, the award contains a final decision on the matters referred, with a reservation as to matters not submitted, the award will be crood, although the reservation of authority be void {Manser v, Heca-cr (1832), 3 B. & Ad. 295; Goddanl v. Mansfield (1850), 19 L. J. Q. B. 305). Aivard delegating judicial authority. An award is bad if the arbitrators, instead of deciding the matter submitted, award that the parties shall abide by the award of a third person whom they name {Lov:er v. Lov-er (1595), liolle, Ab. Arb. B 20 ; liolle, Ab. Arb. H 11); or that the defendant shall account before such auditors as the plaintiff shall assign, and if he be found in arrears, shall pay the amount (Eolle, Ab. Arb. I 9). A partial delegation of authority equally vitiates the award if the defective part cannot be separated from the rest {Johnson v. Latham (1850), 19 L. J. Q. B. 329 ; Toralia v. Mayor of Fordidch (1836), 5 A. & E. 147; 5 L. J. (N. S.) K. B. 209). Illustrations. 1. An award that the defendant should pay to the plaintiflf a certain sum, unless within a definite time the defendant should exonerate himself by affidavit from certain payments and receipts, in which case he was to pay a less sum, was held bad by Lord Kenyon, on the ground that the arbitrators, instead of determining all the points in dispute had left one sum in dispute to be decided by the person who, of all others, was least cj[ualified to decide it, namely, the defendant himself {Fnlhy V. Goddard (171)6), 7 T. K. 73). 2. An arbitrator directed that A. should pay B. £50, and that A. should beg B.'s pardon in such manner and in such place as B. should appoint, and the award was held void as to the latter direction, because it gave B. the power to determine the time and place, which the arbitrator ought to have determined {Glover \. Barrie (1699), 1 Salk. 71). 3. An award, directing the costs to be taxed by one who was not an ofhcer of the Court, was held bad, as a delegation of authority, though it provided that the costs should be such as a Master in Chancery would allow {Knott V. Lovg (1736), 2 Str. 1025). Reservation or delegation as regards riiinisterial acts. Though the arbitrator cannot make a valid reservation in respect of a further judicial act to be done, he may in respect of a further ministerial act to be done either by himself or a stranger at any time, even after the time limited for making the award has expired {Thorp v. Cole (1835), 2 C. M. & B. 3G7). SETTING ASIDE AWARD 223 Illustrations. 1. An award which directs the payment of such costs as shall be taxed by the officer of the Court which has cognizance of the submission is good, for such an officer, in taxing costs, is considered as acting in a ministerial capacity {Selhy v. Russell (1698), 12 Mod. 139; Thorp v. Cole (1835), 2 C. M. & E. 367; Cargey v. Aitcheson (1823), 2 B. & C. 170; 1 L. J. (0. S.) K. B. 252; Holdswoiih v. Wilson (1863), 4 B. & S. 1 ; 32 L. J. Q. B. 289). 2. Whether the matters are referred to be finally decided by the arbitrator, or whether he is simply to make a valuation of certain landed property, after ascertaining in his award the rate to be charged per acre, he may direct the number of acres to be ascertained by measurement, for measuring is a merely ministerial act {Thorp v. Cole (1835), supra). Reservation, lohethcr construed as judicial or ministerial. Arbitrators often direct the parties to execute bonds, releases, or other documents, to be settled by themselves or others. Such a direction will sometimes avoid tlie award, and sometimes not, accord- ing to wliether it is to be treated in the particular case as a reservation of a judicial or ministerial authority. Illustrations. 1. It has been held that, if the arbitrators award that the defendant shall pay the plaintiff a sum certain, and in security for the payment shall execute such a bond as they shall advise, the award is invalid (Rolle, Ab. Arb. H 4). 2. A direction to execute such bond by way of security for the sum awarded, or such releases, as a stranger shall advise, has been held bad (Kolle, Ab. Arb. H 6 ; Emery v. Emery (1699), Cro. Eliz. 726). 3. A direction that one party shall execute to the other such a bond, by way of security for the amount, as his opponent's counsel shall advise, or a direction that one shall execute to the other a general release, as fully and beneficially as counsel shall advise, may be good ; for the delegation to counsel is not a delegation to him as arbitrator, and he acts in a ministerial capacity only and not judicially {Cater v. ^tartut (1650), Kolle, Ab. Arb. H 7 ; Sty. 217). 4. In order to decide the title to certain land the arbitrator awarded that an action should be conceived by the advice of certain counsel, and this was held to be a reference to their judgment, not on the substance, but only as to the form (Brooke, Ab. Arb. 37). 5. On a reference respecting the right to a certain house and premises the award, which directed certain parties to execute to another party all such conveyances, releases, and assurances as might be necessary to pass their respective interests to him, was held void in toto, because it reserved to the arbitrator a power to appoint a 224 REFERENCE BY CONSENT OUT OF COURT counsel or solicitor to settle the proper deeds {Tandy v. Tandy (1841)^ 9 Dowl. 1044). 6. Where the arbitrators, on a reference out of Chancery, awarded mutual releases of all matters in diflPerence, it being left to the Court, if it thought proper, to give directions to the Master to settle the form of the releases, it was held that the award was good (Lingood v. Ead&- (1742), 2 Atk. 501). Award uncertain. An award ought to be certain, so that no reasonable doubt can arise upon the face of it as to the arbitrator's meaning, or as to the nature and extent of the duties imposed by it on the parties. If the arbitrator directs one party to pay money, or to execute a release to the other, the award is sufficiently certain, though it mentions no time ; for if a request to do the act is necessary, it must be done in a convenient time after the request; if no request is necessary, it must be performed in a reasonable time {Freeman v. Bernard (1698), 1 Salk. 69. See Armitt V. Breame (1705), 2 Ld. Eayjn. 1076). If it is doubtful whether the award has decided the question referred it will be set aside for the uncertainty. Thus, where the main question in the reference was whether a certain agreement should be rescinded^ the award was set aside because it did not clearly determine whether or not the agreement was to be rescinded {Tribe and Upperton, In re (1835), 3 A. & E. 295). The award will be equally invalid if it is uncertain how it has decided the matters referred {Morthi v. Burge (1836), 4 A. & E. 973). An award directing an executor to pay the balance due from his testator out of the assets in his hands is sufficiently certain, though it does not ascertain whether there are any assets in his hands {Love v. Honeyhourne (1824), 4 D. & E. 814). As to amount aivarded. If the arbitrator orders a sum of money to be paid, the award must ascertain the amount ; therefore an award is bad if it orders one party to pay the others so much money as is due in conscience, without settling what is due {Watson v. Watson (1671), Sty. 28); or so much as certain land is worth, the value of the land being undetermined {Titus v. Perkins (1686), Skin. 247, per Jones, C.J., 248); or the money due for task work, without ascertaining the amount owing in that respect {Pope v. Brett (1670), 2 Saund. 292); or to pay the arrears of rent accruing due after the purchase by a stranger of certain lands, without showing what the arrears are, or from what period they are to be calculated {Massy v. Aubry (1652), Sty. 365) ; or to pay a moiety of a debt for which A. is bound, without saying in what sum {Gray v. Gray (1619), Eolle, Ab. Arb. Q 2, p. 263; Com. Dig. Arb. E 11); or to pay so much for every SETTING ASIDE AWARD 225 •quarter of malt as malt may then be sold for, without saying in what place, for the price of malt may vary in different markets {Hurst v. Bamhridcjc (1635), Ab. Arb. Q 7; Com. Dig. Arb. E 11). When arhitrator to allom at market price. But where the parties had agreed that in case the arbitrator should think the plaintiff not entitled to recover in respect of some articles of iron machinery supplied to the defendant, the arbitrator was to allow the plaintiff the value of them at the market price of pig-iron, as the defendant still kept them, an award directing the defendant to pay for them according to the present market price of pig-iron was held good, and to have sufficiently ascertained the price, because, according to the agreement of the parties, the arbitrator was merely to determine whether the defendant was to pay for them as machinery or as pig-iron ( Waddle V. Doivnman (1844), 12 M. & AV. 562 ; 13 L. J. Ex. 115.) Awarding siiffi.ciei\t to realise securities. When the submission, among other things, provided that the arbitrator should direct the plaintiff to pay into a bank such a sum of money as would be sufficient to entitle the defendant to have restored to him some documents deposited by him with the bank as a security for advances, and the arbitrator, following the submission, awarded that the plaintiff should pay to the bankers such a sum of money as would be sufficient to entitle the defendant to have his securities restored to him, the Court held the award bad, because it did not ascertain the amount which was due to the bankers and necessary to be paid in order to release the securities {Hevntt v. Hewitt (1841), 1 Q, B. 110). Aivard to pay over 'money received, if any. Where on a reference between assignees of a bankrupt and a banking company respecting some bills of exchange the arbitrator awarded that the bills and money secured thereby were the property of the assignees, that the bills, and moneys, and proceeds should be delivered and paid to the assignees, and that in case the bank should have received the whole or any part of the money secured by the bills they should pay it to the assignees, the award was held bad on its face, because it did not ascertain the amount, if any, received by the bank in respect of the bills {Marshall and Dre.sser, In re (1842), 3 Q. B. 878; 12 L. J. Q. B. 104). Money due from A., B., and C, some or one of them. An award that so many pounds are due to the defendant from A., ])., and C, " some or one of them," and directing the amount to be paid by them, " some or one of them," is uncertain {Jiainforth v. Hamer (1855), 25 L. T. (0. S.) 247). 15 226 REFERENCE BY CONSENT OUT OF COURT Giving rule for cmnjmJing amount. If the arbitrator gives the rule for calculating the amount of money to be paid, without stating the result of such calculation, the award is sufficiently certain according to the general rule "id cerium est quod Gci'tum reddA potest" {Higgins v. Willes (1828), 3 M. & R. 382; Hopcraft V. Hickman (1824), 2 S.'& S. 130 ; 3 L. J. (O. S.) Ch. 43). Illustrations. 1. An award that one party should pay the other all such moneys as he had expended about the prosecution of a suit was held sufficiently certain, because the amount could be ascertained by the attorney's bill {Beale v. Beale (1635), Cro. Car. 383). 2. An award to pay the charges of a suit depending between the plaintiff and defendant, and that the plaintiff should give the defendant a bill of the charges, was held certain on the ground that the charges would be ascertained by the bill delivered {Linfield v. Feme (1682), 3 Lev. 18. See Tlmp v. Cole (1835), 2 C. M. & ^., per Parke, B., at p. 381). 3. An award by a referee under s. 33 (1) of the Finance (1909-10) Act, 1910, directing that "any expenses incurred by the Commissioners " should be paid by the appellant was held void for uncertainty (Simpson V. Inland Revenue Commissioners, [1914] 2 K. B. 842) ; but where the referee awarded " that the costs of the appellant incidental to this appeal be borne by the Commissioners " it was held that the award was good {Matthews v. Inland Revenue Commissioners, [1914] 3 K. B. 192). 4. Where the arbitrator ordered two persons to pay a debt in pro- portion to the shares which they held in a certain ship, without saying what they were, the Court held it sufficiently certain, as it did not appear that there was any dispute what their respective shares were {Wohlenhertj v. Lageman (1815), 6 Taunt. 251. See Plummer v. Lee (1837), 2 M. & W. 495 ; 6 L. J. (N. S.) Ex. 141). To apportion trust estate. An arbitrator who had to award and to apportion a trust estate among the persons entitled, after finding a certain sum due from a party, directed him to pay or account for it to the trust estate. The award was held uncertain, on the ground that it ought to have specified to whom and in what proportions the money ought to be paid {Tidsu:eU, In re (1863), 33 Beav. 213). As to nature of security. The arbitrator must be equally precise in his directions to the parties to do any act as in those with respect to payment of money {Stonehcicer V. Farrar (1845), 6 Q. B. 730). Hence, if an arbitrator directs a party SETTING ASIDE AWARD 227 to give security for payment of a specified sum, without naming the kind of security, this is void for the uncertainty {Tipping v. Smith (1736), 2 Stra. 1024 ; Thinne v. Birjhy (1612), Cro. Jac. 314. See I>uport V. Wildgoose (1615), 2 Bulst. 260). So if he directs the defendant to enter into a bond to the plaintiff' conditioned that the plaintiff and his wife should enjoy certain lands, the award will be void for uncertainty if he does not specify the amount of the bond {Samon's ease (1594), 5 Eep. 77 b). Where a sum was directed by the award to be paid, or to be secured to be paid, within a week from the date of the award, the Court held the award good and that the party must within the time either pay the sum or give such security as was satisfactory to the party entitled to receive the money (Simmons v. Svaine (1809), 1 Taunt. 549). As to identity of property aicarded. If the arbitrator orders a party to give up a document described merely as a "certain obligation " {Bedam v. Clerkson (1696), 1 Ld. Eaym. 120), or to deliver up " three boxes and several books," without specify- ing the number or otherwise identifying the books, the direction is void {Cockson V. Ogle (1702), 1 Lutw. 550). Other directions hy arbitrator. A reasonable degree of precision is all that is required of the arbitrator. Hence a direction to a mortgagee to reassign the mortgaged lands is sufficient, although it does not state for what period the reassign- ment is to be ; for the Court will intend that it is to be extended to the whole interest mortgaged (Eosse v. Hodges (1698), 1 Ld. Eaym. 233). A direction that a nuisance erected on the defendant's land should be pulled down, without saying by whom, has been held certain enough, on the ground that it will be intended that the defendant, who is the owner of the soil, is the party meant to pull it down (Arniitt v. Breame (1705), 2 Ld. Eaym. 1076 ; Com. Dig. Arb. E 11). It was held that an award that the defendant or his executors or administrators should execute a release to the plaintiff was not void for uncertainty, and that it might be read as if it were that he and his executors and administrators were to do the act, and that the intro- duction of the personal representatives into the award was but caution- ary, and did not vitiate it, since executors and administrators are by law bound by the submission of the testator {Freeman v. Bernard (1608),. 1 Ld. Eaym. 247 ; Bac. Ab. Arb. E 4 ; Dawney v. Vesey (1690), 2 Vent. 249). The arbitrator must specify the particular party who is to perform what the award directs. Therefore, where by the submission the arbitrator was to direct at what price A. or B. should purchase a certain piece of land, and the arbitrator, following the submission, directed that 228 REFERENCE BY CONSENT OUT OF COURT A. or B. should purchase it at a certain price, the Court set aside the award for uncertainty, as the arbitrator, as well as ascertaining the price, ought to have decided which of the two was to purchase it {Lavrrmce v. Hodgson (1826), 1 Y. & J. 16). Where an award directed that part of the costs should be paid " by such of the parties through whose default, in the performance of the award, the same should become necessary," it was held to be uncertain as to costs and was set aside {In re Smith mid Wilson (1848), 2 Ex. 327). But awarding payment to be made to the plaintiff, or to A., his solicitor in the cause, is sufficiently certain {Hare v. Fleay (1851), 11 C. B. 472 ; 20 L. J. C. P. 249). An award directing the defendant to pay the plaintiff a sum of money upon proof that the plaintiff had discharged certain claims, but not saying to whom the proof was to be made, was upheld {Miller v. De Burgh (1850), 4 Ex. 809; 19 L. J. Ex. 127). On the reference of an action, an award directing the defendant to pay the costs of the reference and award is sufficient without saying to whom they are to be paid, for the plaintiff will be intended to be the party to receive them {Baily v. Curling (1851), 20 L. J. Q. B. 235; 2 L. M. & P. 161). Award iinpossihle or inconsistent. An award ought to be possible. If the arbitrator awards a thing which is impossible e;c natura rei, as to surrender an estate or to pay a sum of money at a day already past, the award will be void. But if he directs a thing to be done which cannot be done by the party, but which is not in the nature of the act itself impossible and is not con- tradictory or repugnant, it may be a good award, as an award that one «hall pay twenty pounds when he has not twenty pence, for no contra- diction appears on the award itself (Com. Dig. Arb. E 12 ; Eolle, Ab. Arb. E 248 ; Eolle, Ab. Arb. F ; Bac. Ab. Arb. E 4 ; Cohoel v. Child (1667), 1 Cas. in Chanc. 86). If an act which is possible at the time of the award afterwards "becomes impossible by the act of the party or of a stranger, the party is not freed from his obligation to perform the award (Com. Dig. Arb. E12). An award must be intelligible and consistent {Storhe v. De Smeth (1738), Willes, 66; Sherry v. Richardson (1591), Pop. 15). On the reference of an action for a fraudulent representation of A.'s circum- stances, the arbitrator in his award distinctly acquitted the defendant of all fraud, but concluded by finding in favour of the plaintiffs. The Court set aside the award, Parke, J., saying, " The conclusion to which the arbitrator has come in this case is quite absurd. He says, ' I think he is innocent,' and then awards against him " {Ames v. Mibcard (1818), S Taunt. 637. Cf. Grenfcll v. Edgcome (1845;, 7 Q. B. 661 ; 14 L. J. SETTING ASIDE AWARD 22^ Q. B. 322 ; Jones v. Poivell (1838), 6 Dowl. 483 ; Williams v. Moulsdale (1840), 7 M. & W. 134; 10 L. J. Ex. 2 ; Cooper v. Langdon (1842), 10 M. & W. 785 ; 10 L. J. Ex. 485 ; Beaufort v. Welch (1839), 10 A. & E. 527 ; Boodle v. Davies (1835), 3 A. & E. 200). Avjard in excess of authority. An excess of authority may appear on the face of the award, as, for instance, by a recital of the submission therein, and if it does the award is bad on the face of it, and may be set aside on that ground. The setting aside of awards for an excess of authority which does not appear on the face appears to be an extension or application of the principle of setting them aside when they are bad on the face, the excess being proved aliunde, as, for example, by reference to the submission. Where there is jurisdiction to make an award, the award is not bad because the possibility that matters not within the jurisdiction of the arbitrator may have been taken into account is not in terms excluded on the face of the award. In such a case the award can be impeached only by showing that the arbitrator did in fact exceed his jurisdiction {Falhingham v. Victorian Baihvays Commissioner, [1900] A. C. 452; 69 L. J. C. P. 89). In Fuller v. Femvick (1846), 16 L. J. C. P. 79 ; 3 C. B. 705, the Court refused to grant a rule to set aside an award on a suggestion that the arbitrator had improperly treated as a penalty that which was by the express terms of the contract of the parties stipulated and ascertained damages. On a reference of the plaintiff's claims in an action where the plaintiff made a claim of a certain amount as a debt, including therein a sum for extra expenses incurred by the failure of the defendants to give him possession of certain land, and the arbitrator found that the sum claimed was a debt, the Court held that the award was conclusive (Faviell v. Eastern Counties Rail. Co. (1848), 2 Ex. 344 ; 17 L. J. Ex. 297). But it is in all cases a good ground for setting aside an award that the arbitrator has exceeded his authority, unless the bad part is. clearly separable from the rest of the award, and does not affect the good part (Botves v. Fernie (1838), 4 My. & Cr. 150). If he awards on matters not submitted to him (Tandy v. Tandy (1841), 9 Dowl. 1044;. Morgan v. Mather (1792), 2 Ves. jun. 15), or awards as to costs without authority {Boodle v. Davies (1835), 3 A. & E. 200), or improperly directs, costs to be taxed as between solicitor and client {Seccomhe v. Bahh (1840), 6 M. & W. 129 ; 9 L. J. (N. S.) Ex. 65), the award is open to objection ;, so if, without power to say what shall be done by the parties, he gives unwarranted directions as to the replacement of some fixtures {Price v. Fopkin (1839), 10 A. & E. 139 ; 8 L. J. (N. S.) Q. B. 198) ; or if, instead of deciding whether a title to an estate is good, he awards that the party shall take it with all faults on receiving an indemnity {Ross v. Boards (1838), 8 A. & E. 290; 7 L. J. (N. S.) Q. B. 209); or if he. 230 REFERENCE BY CONSENT OUT OF COURT attempts to regulate the payment of sums to become due in future, the submission being confined to present differences (Morphett, In re (1845), 2 D. & L. 967 ; 14 L. J. Q. B. 259) ; or if he awards all the partnership stock and effects to one partner, when the submission contemplated a division between the two (Wood v. Wilson (1835), 2 C. M. & R. 241; 4 L. J. (K S.) Ex. 193); or if of his own authority he appoints a receiver to collect and apply money of a firm pursuant to an award {Mackay, In re (1834), 2 A. & E. 356); or if he directs a party to do an act which would be a trespass on the property of another, or an act of waste, for which he would be liable to his landlord {Turner v. Sivainson <1836), 1 M. & W. 572; 5 L. J. (X. S.) Ex. 266): in all these cases the award may be impeached (see also Pcdler v. Hardy (1902), 18 T. L. R. 591 ; Leadhetter v. Marylebone Corjmration, [1904] 2 K. B. 893 ; In re Stoker and Morpeth Corporations Arbitration, [1915] 2 K. B. 511 ; Qv^he^ Improvement Co. v. Quebec Bridge and Rail, Co., [1908] A. C. 217 ; 77 L. J. P. C. 45; Farquharson v. Morgan, [1894] 1 Q. B. 552; 63 L. J. Q. B. 474; In re Cimdall and Vavasour (1906), 95 L. T. 483). Where award invalid, but not eiUirely a nullity. If the award is altogether void, and can be considered a nullity, and nothing can be done upon it but by suit, the Court will not usually set it aside unless some step can be taken to enforce the award which renders the interference of the Court necessary {Doe d. TurnbuU^ v. Brourii (1826), 5 B. & C. 384; Wo-rrall v. Deanc (1833), 2 Dowl. 261). An award made after the time for making it has expired may l)e set aside {Scrinford and Horn, In re (1817), 6 M. «& S. 226), unless the conduct of the parties amounted to an enlargement of the period {Hallett \. Hallctt (1839), 7 Dowl. 389; 8 L. J. (N. S.) Ex. 174); so also may an award made after the submission had been revoked, either by the act of a party or by his death {Clapham v. Higharn (1822), 1 Bing. 87 ; 1 L. J. (0. S.) C. P. 5 ; Potts v. Ward (1814), 1 Marsh. 366). Disability of party. Although a party may, by reason of some disability, be legally incapable of submitting matters to arbitration, that fact is not one that can be raised as a ground for disputing the award by other parties to a reference who were aware of the disability. If one of the parties is incapable, the objection should be taken to the submission. A party will not be permitted to lie by and join in the submission, and then, if it suits his purpose, attack the award on that ground. The presumption, in the absence of proof to the contrary, will be that the party com- plaining was aware of the disability when the submission was made {Wrightson v. Byvater (1838), 3 M. & W. 199; Jones v. Powell (1838), € Dowl 483). SETTING ASIDE AWARD 231 ' Illustidtions. 1. The son of a bankrupt took up a bill for the honour of the iDankrupt, and claimed to prove for the amount in the bankruptcy. A dispute as to his right was referred, and the award was against his claim. He then pleaded that the award was bad dn the ground that no ■consent to the reference had been obtained under the Bankrupt Law Consolidation Act, 1849 (12 & 13 Vict. c. 106), s. 15.3. Held that he was bound by the award and could not take the objection at that stage (Ex parte Wyld (1860), 30 L. J. Bk. 10). 2. A dispute as to administration under a will was referred, and an award made. Held that it was not competent for the unsuccessful parties to object to the submission to which they themselves had been parties, on the ground that certain of the other parties were married women or that certain infant legatees were not bound by it, or that the trust estates of these married women or infants were affected {In re Warner (1844), 2 D. & L. 148). Discover]! of netv material matter or n&w evidence. How far, when there lias been no fraud or concealment, the mere •discovery of new material matter will be a ground for setting aside the award does not seem clear, but it has been held that such discovery is a ground for remitting the award to the arbitrator for reconsideration {Keighkij, Maxsted & Co., In re, [1893] 1 Q. B. 405 ; 62 L. J. Q. B. 105 ; Sprague v. Allen (1899), 15 T. L. R. 150). It has been said that it is not a sufficient ground for setting aside an award to allege merely that new evidence has been discovered since the award has been made. The affidavit must show what the evidence is, that there is some surprise, and that it is such evidence as by reason- able diligence could not have been obtained {Eardley v. Otley (1818), 2 Chit. 42 ; Reynolds v. Ashev) (1887), 5 Dowl. 682). As to the discretion of the Court to remit an award for reconsidera- tion instead of setting it aside, see ante, pp. 163-165. 9. Insufficient grounds for setting aside award. Unexpected case set up hy opponent. It is no ground for setting aside an award that a party has been surprised by an unexpected case set up by his opponent on the refer- ence, which he believes not to be true, if he did not apply to the arbitrator to postpone making his award, and to give time for enquiry {Solomon v. Solomon (1859), 28 L. J. Ex. 129). Discovery of felony of party. , , The Court refused to set, aside an award on the ground that the iparties had been examined by consent, and that after the award the 232 REFERENCE BY CONSENT OUT OF COURT plaintiff had discovered that the defendant was a convicted felon, then- incompetent as a witness. The Court laid some stress on the fact that the arbitrator stated that his judgment was formed wholly independently of the defendant's testimony (Smith v. Sainslmry (1831), 9 Bing. 31 ^ 1 L. J. (N. S.) C. P. 150). False evidence given. When in the third term after an award had been made the plaintiff (who swore that he had not until then discovered the facts) moved to set it aside, on an affidavit of a witness, who stated that before the arbitrator he had sworn falsely, the Court refused the application, partly on account of the delay, but also on the ground that the witness might have been cross-examined before the arbitrator, and that to allow such an affidavit to be sufficient would open the door to innumerable- frauds (Pilmmr v. Hood (1840), 8 Dowl. 21). Witness having given different evidence elscvjhere. The Court refused to set aside an award on the ground merely that- it was discovered after the award that a material witness had given evidence on another occasion apparently contradictory to that given by him before the arbitrator (Glasgow, tCu, Bail. Co. and Lmidon & North Western Rail. Co., In re (1888), 52 J. P. 215). Perjury of witness. On one occasion the Court refused a motion to set aside an award on the allegation that a witness had wilfully and corruptly given false- evidence before the arbitrator, saying that proceedings might be taken against the witness for perjury, and that it would be setting a mischievous example to interfere at that time (Scales v. East London Wateri'-orJcs (1835), 1 Hodges, 91 ; 4 L. J. (N. S.) C. P. 195). Objection very small. On the principle de minimis nan cnrat lex, the Court refused a rule to set aside an award where the objection only appHed to the decision in respect of a claim of £2, 2s. (Brouii v. Hcllahy (1857), 1 H. k X. 729^ 26 L. J. Ex. 217). 10. Effect of setting aside award, in whole or in part. If an award is wholly set aside, the arbitrator is functus officio. Though before the time of James the First, according to Holt, C.J., an award void in part was considered void altogether (Furlong v. Thornigold (1702), 12 Mod. 533), it is now clear that an award bad in part may be good for the rest. If, notwithstanding that some portion of the award is clearly void, the remaining part contains a final and SETTING ASIDE AWARD 233^ certain determination of every question submitted, the valid portion may frequently be maintained as the award, and the void part be- rejected {Stone v. Phillipps (1837), 4 Bing. N. C. 37 ; 7 L. J. (N. S.) C. P. 54). JVJiere bad part separable. The bad portion, however, must be clearly separable in its nature- in order that the award may be good for the residue {Tandy v. Tandy (1841), 9 Dowl. 1044; Auriol v. Smith (1823), 1 Turn. & E. 121). When it is so divisible, the faulty direction will alone be set aside or treated as null {Caledonian Rail. Co. v. Zockhart (1860), 3 Macq. 808, See Barton v. Eanson (1838), 3 M. & W. 322; Doe d. Body v. Cox (1846), 4 D. & L. 75; 15 L. J. Q. B. 317; Pickering v. Watson (1777), 2 W. Bl. 1117). Where the plaintiff seeks to enforce an award which orders the defendant to pay him a specified sum, and also the amount of the cost* of an action between them, or of the reference, or to pay them at a particular tmie, and the arbitrator has no such power over the costs as he assumes, and consequently the direction as to costs is void ; yet if the latter be clearly separable from the otlier portion of the award the Court will compel the defendant to perform the rest of the award, and to pay the sum awarded {Harder v. Cox (1774), Cowp. 127 ; Bees v. Waters (1847), 16 M. & W. 263). When the costs of the action are to abide the event, if the arbitrator,, after finding on all the issues, directs a stet lyrocessus, the direction is void, as being an excess of authority, but, being clearly separable, may be rejected without invalidating the rest of the award ( Ward v. Halt (1841), 9 Dowl. 610). An arbitrator appointed to decide upon the method of draining certain lands, after ordering certain works, exceeded his authority by giving a direction respecting future repairs. The House of Lords held the award bad only as regards the excess, since by striking out that, direction the rest of the award was not affected {Johnston v. Cheape (1817), 5 Dow, 247. See Winter v. Lethbridge (1824), 13 Price, 533 ; Manser v. Heaver (1832), 3 B. & Ad. 295). An unnecessary statement of facts for the purpose of clearing a. party's character may be disregarded and will not render the award bad {Laacastcr v. Heniiagton (1835), 4 A. & E. 345). Where an arbitrator directed payment to the defendant of a sum of money as the balance of the general account, and also of another sum stated on the face of the award to be due to the defendant on account of illegal insurance partnership transactions between him and the plaintiff, the award was held bad as to the latter sum only {Aiibert v. Maze (1801), 2 B. & P. 371). In a ease where an arbitrator directed mutual releases on payment 234 REFERENCE BY CONSENT OUT OF COURT of a sum of money over which he had jurisdiction, as well as of a sum over which he had none, it was held that the award was good as to the former sum {Kendrick v. Davics (1837), 5 Dowl. 693). Though the award may be deficient as to a matter within the submission, if this is separable the rest of the award may often be supported. Thus, if the arbitrator, having power over the costs, omits to determine the amount of costs, which he ought to have ascertained and which cannot be taxed, the Court, if the party to whom they are awarded agrees to waive them, will set aside the award as regards the •costs, but will allow it to stand as to the rest (Morgan v. Smith (1842), 9 M. & W. 427 ; 11 L. J. Ex. 379 ; England v. Davison (1841), 9 Dowl. 1052). When bad part inseparable. If the objectionable provisions in the award are inseparable from the rest, or not so clearly separable that it can be seen that the part of the award attempted to be supported is not at all affected by the faulty portion, the award will be altogether avoided {Starke v. De Snieth (1738), Willes, 66 ; Bowes v. Fernie (1838), 4 My. & Cr. 150 ; Buccleuch (DAe) V. Metropolitan Board of Works (1870), L. R. 5 Ex., 2Jer Blackburn, J., At p. 229 ; 39 L. J. Ex., at p. 136). Illustratioris. 1. In a case in equity, where the arbitrator (who by the submission had no authority to disallow a particular sum admitted by the defen- dants), after finding the general balance due from them, stated in his award that in the accounts be had not charged them with the sum in question, although the defendants, when the award was pronounced bad for the disallowance, offered to allow that sum in account against themselves, the Master of the Rolls held that the error could not be so cured, and set aside the whole award {Skipxoorth v. Skipwwth (lb46), S Beav. 135). 2. Where an arbitrator, who had no power to order a verdict to be entered, made an award in these terms, " I award and direct that a verdict in this cause be finally entered for the plaintiff, with £284, lis. damages," the Court, agreeing that if the faulty part had been con- tained in a distinct paragraph it might have been rejected and the rest sustained, held the award bad in tola, since the whole being comprised in one sentence, the clause containing the excess could not be divided from the rest {Jackson v. Clarke (1825), M'Clel. & Y. 200. See Seccombe v. Babb (1840), 6 M. & W. 129; 9 L. J. (N. S.) Ex. 65; W^atkins v. Fhillpotts (1825), M'Clel. & Y. 393; Hawhyard v. Stocks (1845), 2 D. Sz L. 936; U L. J. Q. B. 236). 3. By the terms of an agreement a lease of a colliery was to be granted for sixty-three years, from the 1st May 1801, the lessees to be allowed three years for winning the colliery rent free. An arbitrator, to whom it was referred " to give such directions as to a lease, according SETTING ASIDE AWARD 235 to the agreement, as he should think fit," having directed a lease for sixty -three years from the 1st May 1804, was held to have exceeded his authority, as the sixty-three years were, by the agreement, to be counted from the 1st May 1801, and he had no power to go beyond the agreement ; and the award was held void altogether {Bonner v. LiddelJ (1819), 1 B. & B. 80). See also the cases cited in the commentary on s. 12, 2}ost. 11. Application of the section to statutory arbitrations. Under this section the Courts have set aside awards made under the provisions of the Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), and the Public Health Act, 1875 (38 & 39 Vict. c. 55). Illustrations. 1. The Court entertained and dismissed a motion to set aside an award made by an umpire in an arbitration under the Lands Clauses Consolidation Act, 184.5 (In re Haigh and the London <(• North Western and Great Western Hail. Cos., [1896] 1 Q. B. 649). 2. S. 180 (10) of the Public Health Act, 187.5, provides that before an arbitrator or umpire enters upon an arbitration under the Act, he shall make a declaration before a justice of the peace that he will faithfully and honestly, and to the best of his skill and ability, hear and determine the matters referred, and s. 180 (11) requires such declaration to be annexed to the award when made. Disputes having arisen between the defendant and the plaintiffs as to the amount of compensation to which the defendant was entitled under the Act, the matters were referred under the Act to arbitrators, who appointed an umpire. The umpire made his award, but failed to annex thereto the declaration as required by s. 180 (11). The award was set aside {Ludlov: Corp(yratim v. Prosser (1906), 22 T. L. R. 597). A Divisional Court, however, held that it had no jurisdiction to set aside an award made under s. 22 of the Friendly Societies Act, 1875 (see now s. 68 of the Friendly Societies Act, 1896 (59 & 60 Vict. c. 25)). Illustration. S. 22 of the Friendly Societies Act, 1875 (see now s. 68 of the Act of 1896), provided that any disputes between a member of a registered society and the society should be decided in the manner directed by the ^ . rules of the society, and that such decision should be binding and con- , elusive on all parties without appeal and should not be removable into any Court of law or restrainable by injunction. A dispute between a member of a society and the society arose and was referred under the rules of the society to arbitrators, who made an award in favour of the society. On a motion by the member to set the award aside, it Was held that s. 11 of the Arbitration Act, 1889, did not give the Court 236 REFERENCE BY CONSENT OUT OF COURT jurisdiction to entertain the motion, which was dismissed (GolUvgs aiu^ the Tradesmen's Friendly Society, In re (1891), 64 L. T. 775). But in Backe v. Billingkam, [1894] 1 Q. B. 107, the Court of Appeal, which had Gollings and the Tradesmen's Friendly Society {s^ipra) before it, specifically left the question open. Award on reference by order of County Court. The High Court has no jurisdiction to set aside an award on a reference by a County Court order. The County Court judge alone has the power, on application made to him at the first Court held more than a week after the entry of the award, as to judgment (51 & 52 Vict. c. 43, s. 104. See Mayer v. Farmer (1878), 47 L. J. Ex. 760 ; 3 Ex. Div. 235). 12. Practice. Who may move to set aside aivard. The parties to the submission or their representatives may move to- set aside the award (Tyler v. Jones (1824), 3 B. & C. 144; Zeivis v. Winter (1837), W. W. & D. 47 ; Tayler v. Ifarliiig (1840), 2 M. & G. 55 ;. 10 L. J. C. P. 26; Leurin v. Holbrook (1843), 11 M. & W. 110; 12 L. J. Ex. 267). The executors or administrators of a deceased party being at liberty to enforce it, and liable to its burdens as far as they have assets, have, it is presumed, a right to apply to set it aside. When the assignee of a bankrupt had an interest in the award, it did not seem to be questioned that he would be entitled to move to impeach it (Robbs. V. Ferrars (1840), 8 Dowl. 779 ; Tayler v. Marling (1840), 2 M. & G. 55 ; 10 L. J. C. P. 26). A clause in the submission prohibiting the parties from bringing an action or suit respecting the matters referred does not apply so as to. prevent a motion to set aside the award (Mackay, In re (1834), 2 A. & E. 356). Time for application. By Order LXIV., r. 14, " An application to set aside an award may be made at any time before the last day of the sittings next after such award has been made and published to the parties." This rule is practically identical with the enactment of s. 2 of 9 & 10 Will. III. c. 15. An "application," for the purposes of time, may be treated as. equivalent to service of the notice of motion, and if this is done within the time specified in the rule, the proceedings will be in time, even though the motion is not heard until after the time has expired, and, seemingly, even if the affidavit in support of the motion is not filed until after the- time has expired. SETTING ASIDE AWARD 237 Illustrations. 1. A submission was made a rule of the Court of Chancery, and an -application was made under 9 & 10 Will. III. c. 15, s. 2, to set aside the award. That statute provided that an award could be set aside only if the complaint were made before the last day of the term next after the publication of the award to the parties. Notice of motion was given, and an affidavit in support was filed before such time expired, but the •motion did not come on within the time. Held that the application was in time (In re Huddersfield {Mayor of) and Jacomh (1874), L. R. 10 Ch. 92). 2. A motion was made to set aside an award on the last day but one •of the term after the award was published, but was refused because notice of motion had not been given as required by the rules. On the same day, however, notice of motion was served, though the notice stated that the Court would be moved on a date after the last day of the term. Held that the service of notice of motion within the time limited was sufficient, following In re Huddersfield (sujn-a), although in this case no aflSdavit in support was filed within the time (Smith v. Parkside Mining Co. (1880), 6 Q. B. D. 67). 3. Notice of motion to set aside an award was served before the last day of the sittings next after the award was made and published, but the motion did not come on in those sittings. Held that the application was within the time prescribed by Order LXIV., r. 14 {In re Gallop and Central Queensland, &c., Co., Ltd. (1890), 25 Q. B. D. 230). " Before the last day." The application must be made before the last day of the sittings next after the award is published to the parties, whether the award is made during sittings or in vacation, although this may make a consider- able difference in the length of time available {In re Burt (1826), 5 B. & C. 668; Allenhy v. Proudlock (1835), 4 D. P. C. 54). The application will be too late if made on the last day of the sittings instead of before the last day. Illustration. A party applied on the last day but one of the term for leave to move to set aside an award on the last day of term, on the ground that an affidavit had not arrived from the country. Held that the time would then have expired {In re Evans and Howell (1842), 5 M. & G. 767. See also In re Holloway a.nd Monte (1839), 8 D. P. C. 138; Reynolds v. Aske^o (1837), 5 Dow, 682; Fraeme v. Pinneger (1774), 1 Cowp. 23). " Puhlished to the parties." " Publication " of an award does not entail notice to the parties. An award is " published " if it is complete, i.e. if the arbitrator has finally adjudicated and retains no power of altering the award {Henfree v. Bromley (1805), 6 East, 309 ; Brown v. Vawser (1804), 4 East, 584). 238 REFERENCE BY CONSENT OUT OF COURT Illustration. An award was duly executed and attested, and on the next day the umpire, about noon, gave notice to the attornies of the parties that he was about to deliver his award, and asked thera to attend at five o'clock on that afternoon, which they did. The umpire then read over and declared his award. At 10 a.m. of that day one of the parties had died. Held that the award was " published " in the lifetime of both parties {Brooke v. Mitchell (1840), 9 L. J. Ex. 269). But publication " to the parties," which, it is to be noticed, is required here, does entail notice to them that the award has been published (Broolce v. Mitchell (1840), 9 L. J. Ex. 269). Illustration. An award was published, but notice of publication was not given to one of the parties sufficiently early to enable him to move to set it aside within the time limited, calculated from the publication of the award. Held that the time ran from the date of the notice to the party (Potter V. Newman (1835), 4 D. P. C. 504). Publication to the parties, however, merely means notice to the parties of the fact of publication, and it is immaterial, in calculating the time, that it was not until long after such notice that the party was made acquainted with the contents of the award or was served with a copy of it. Illustratmi. An award was made and notice of it was given to H. on the last day of Easter Term. H. applied on the last day but one of Michaelmas Term to have the award set aside, and urged that he did not receive a copy of the award until 8th November. Held that the time ran from the date of the notice in Easter Term and that the motion was too late (Hemsicorth v. Bryan (1844), 14 L. J. C. P. 36). Power of Court to extend the time. By Order LXIV,, r. 7, " A Court or a judge shall have power to enlarge or abridge the time appointed by these rules, or fixed by any order enlarging time, for doing any act or taking any proceeding, upon such terms, if any, as the justice of the case may require ; and any such enlargement may be ordered although the application for the same is not made until after the expiration of the time appointed or allowed." This power will be exercised, on good cause being shown, by extending the time for moving to set aside an award, although the time for such a motion has run out before the application to extend the time is made {In re Oliver and Scott (1889), 43 Ch. D. 310). The Court appears to have an unfettered discretion under the rule (see Baker v. Faber, [1908] W. N. 9 ; Cusack v. London & North Western Rail. Co., [1891] 1 Q. B. SETTING ASIDE AWARD ^39 347 ; In re Manchester Economic Building Society (1883), 24 Ch. D. 497 ; , Rumlold V. L. C. C. (1909), 100 L. T. 259). Under the Act of 9 & 10 Will. III. c. 15, s. 2, the Court had no. jurisdiction to extend the time fixed by the statute {In re Christ's College- and Martin (1877), 3 Q. B. D. 16), even if the parties agreed to the motion being heard after time (In re North British Bail. Co. and' Trowsdale (1866), L. li. 1 C. P. 401). The cases governed by that statute, therefore, afford no guide as to how the discretion of the Court will be exercised under the present rule, and do not now appear to be of any importance. But in cases which did not fall within the statute, e.g. where the reference was by an order of the Court, the time was extended where a clear and sufficient explanation of the delay was given, and it is submitted that, in cases analogous to the cases where this course was pursued, the Court would be inclined under the present practice to grant similar relief. Certain of these cases, therefore, are set out below, in order to indicate how the Courts dealt with them, although in a matter of discretion they cannot be taken as authorities, or as binding in any way. Illustrations. 1. Counsel was instructed to move to set aside an award within the time limited. For some reason he failed to do so. Held that this was a case where the Court would use its discretion and hear the motion although it was out of time {Rogers v. DaUimore (1815), 6 Taunt. 111. But see Coles v. Ravenshear, [1907] 1 K. B. 1). 2. An award was made, but it was impossible for the opinion of counsel to be obtained and the necessary steps taken to move to set it aside within the time limited. The Court therefore granted further time in which the party impeaching the award might apply for a rule {Bennett v. Skardon (1829), 5 M. & R. 10. See also Rawsth&iii v. Arnold (1827), 6 B. &C. 629). 3. A party moved to set aside an award after the time had expired. He explained the delay by saying that the other party had given him to understand that he was moving for this, otherwise the motion would have been made in time. Held that he should not have relied on the other party and that the motion was now too late {Emet v. Ogden (1831), 7 Bing. 258). 4. A party moved to set aside an award after the time had expired, on the ground that the submission had been revoked before the award was made. He sought to excuse his lateness by saying that he did not expect his opponent to act on a void award. Held that this was no answer, and that the application must fail {IVorrall v. Deane (1833;, 2 D. P. C. 261). 5. A trustee in bankruptcy moved to set aside an award after the time. He offered as an excuse that he had moved at once on his appointment. Held that this was insufficient {Ilobbs v. Fcrrars (1840), ' 8 D. P. C. 779). .^40 REFERENCE BY CONSENT OUT OF COURT 6. A party moved to set aside an award after the time, pleading that he had been delayed by the fact that he had become bankrupt. Held that this was not-a sufficient excuse (Hemsworth v, Brian (1844), 7 M. & G. 1009). 7. A party wished to move to set aside an award, but the other party refused to produce the order of reference and delayed making it a rule of Court, so that the motion could not be made within the time limited. The Court allowed the party desiring to move to make his motion in the next term nunc pro tunc (Boitoiidey v. Buckley (1845), 4 D. & L. 157, following In re Perring (1834), 3 Dowl. 98. But see S7nith V. Blahe (1840), 8 Dowl. 133). 8. An award was made and notice given to the parties that it was ready for delivery to them or either of them on the payment of £154 for the arbitrator's expenses. M., one of the parties, declined to take up the award on the ground that £154 was an extortionate charge. The other party, however, took it up and gave M. notice of its contents. M. applied to have it set aside but was out of time. Held that the excuse that he had been prevented by the extortionate demand from knowing the contents of the award was not material {Moore v. Darky (1845), 1 C. B. 445, following Macarthur v. Campbell (1833), 5 B. & Ad. 518, a precisely similar case. But see Musselbrook v. DunJcin (1833), 9 Bing. 605). 9. Application was made by a party to set aside an award after the time had run out. He produced an affidavit by his doctor showing that he had been in bad health, and had been on that account away, and for pait of the time unable to attend to business. Held that, even if he had been too ill to be consulted on the matter, it would be no excuse, and that an application to extend the time should have been made before {Gaadiano v. Brown (1856), 2 Jur. (N. S.) 358). Application, hoi': made. An application to set aside an award must be. made by motion, in the King's Bench Division to a Divisional Court, and in the Chancery Division to the judge to whom the motion is assigned under the pro- visions of Order V., r. 9 (c). This motion is not, under the present practice, as it formerly was, for a rule 7iisi, for by Order LII., r. 2, " No motion or application for a rule nisi or order to show cause shall hereafter be made . . . (a) to set aside, remit, or enforce an award. . . ." Notice of motion. Notice of motion must be given to the parties afiected, under Order LIL, r. 3 ; and by r. 5 of the same Order, " unless the Court or a judge give special leave to the contrary, there must be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion." This notice need not be served upon the arbitrator, any more than notice of appeal is served on a SETTING ASIDE AWARD 241 judge (see per Sir E. Malins, V.-C, in Moselcy v. Simpson (1873), L. E. 16 Eq. 226, at p. 237). By Order LII., r. 4, " Every notice of motion to set aside, remit, or enforce an award . . . shall state in general terms the grounds of the application ; and, where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion." (For form of notice of motion, see Appendix of Forms.) Stating [/rounds of application. Under the old practice, which has already been alluded to, the grounds of objection to the award were required to be stated in the rule nisi, though the affidavits in support might be referred to to cure a want of particularity in the statement of objections in the rule. Now, by Order LII., r. 4, the grounds of objection must be stated in general terms in the notice of motion. In effect this rule does not differ materially from the old practice, and the cases decided under the old practice are, therefore, generally applicable and to some extent important. Under both the old and the new practice what was and is required is that the other side should not only know what objection is being taken to the award, but how the objection is being taken, and in respect of what particular defect or defects the award is being sought to be set aside. If that information can be obtained from the notice of motion and the affidavits accompanying it, the notice will be sufficiently specific, and vice versa. Order LII., r. 4, only requires the grounds of objection to be stated in general terms, but it is submitted that it is necessary that the other party, from the notice of motion and the affidavits combined, should be able clearly to ascertain the points which he will be called upon to meet and answer. Illustrations. 1. A rule nisi to set aside an award because the arbitrator had not decided certain matters in difference did not specify these matters. Held that this was not necessary, for they were specified in the affidavits in support of the rule (liawsthorn v. Arnold (1827), 6 B. & C. 629). 2. A rule nisi to set aside an award did not specify the grounds on which this was sought to be done. Objection was taken on this ground, but Bayley, J., while agreeing that the rule was defective, thought that it could be amended {Whailey v. Norland (1833), 2 C. & M. 347). 3. A rule nisi for setting aside an award stated that the arbitrator had "exceeded his authority" and the award was "uncertain" and "not final." Held that the rule must be discharged, and that it was not sufficient to state mere heads of objection, but that particular objections must be specifically set out {Boodle v. Davies (1835), 4 N. & M. 788). 16 242 REFERENCE BY CONSENT OUT OF COURT 4. A rule nisi for setting aside an award stated as the ground of the rule " misapprehension of the terms of the reference." Held that this was not sufficiently specific to be enquired into (Allenby v. Provdlock (1835), 4 Dowl. 54, folloAving Boodle v. Davies, supra). 5. A rule nisi for setting aside an award alleged that the award was not certain or final. Held that, within Boodle v. Davies {supra), this was not sufficiently particular in that it did not state in what respects the award was not certain or final {Jones v. Powell (1838), 6 Dowl. 483). 6. A rule nisi for setting aside an award stated as the grounds for the rule that the award was not final, that the arbitrator had exceeded his authority, that the award was uncertain, that the suit referred was not properly determined, and that the arbitrator had not awarded on all matters referred to him. Held that the grounds were not sufficiently particular and did not show what objections were to be taken, and that the rule must be discharged {Gray v. iea/ (1840), 8 Dowl. 654). 7. A rule nisi to set aside an award stated as the ground of the application that the arbitrator had " not awarded on a matter in differ- ence." The award was made on the reference of an action, and the pleadings disclosed the points in issue. Held that the rule sufficiently directed the attention of those opposing it to the defect relied upon in support of it {Dunn v. Warlters (1842), 11 L. J. Ex. 188). 8. A rule nisi to set aside an award stated {hiter alia) that the facts iound were not sufficient to enable the Court to decide the points of law raised by the award, that the facts stated were not sufficient to enable the Court to form any opinion thereon, that the arbitrator had not stated on what points of law the opinion of the Court was required, that the arbitrator had not raised the points which the plaintiff had asked him to raise, that the arbitrator had not determined the cause referred to tim, or determined all matters referred to him, and that the award was not final or certain. Held that these objections were too general for consideration {Bradbee v. Christ's Hospital (1842), 4 M. & G. 714). 9. A rule nisi to set aside an award stated that " the arbitrator has exceeded his authority." Held that, as there were a multitude of points in which an arbitrator might exceed his authority, this was too general, and the particular ways alleged should have been specified, although it would have been enough if these had been set out in the affidavits in support {Staples v. Hay (1843), 13 L. J. Q. B. 60). 10. An award was defective for not awarding at least nominal damages to a successful plaintiff who had proved a tort. The rule nisi to set aside the award alleged that the findings of the arbitrator were inconsistent and repugnant on grounds other than this. Held that this defect, not being specified in the rule, could not be relied upon {Gixufell v. Edgecombe (1845), 14 L. J. Q. B. 322). 11. A party moved in the Chancery Division to set aside an award " on the ground of misconception or oversight of the said arbitrator as to the facts deposed to and the evidence adduced before him, both verbal and documentary, and on various other good grounds." Held that the rule of practice in the Chancery Division is that a notice of SETTING ASIDE AWARD 243 motion to set an caward aside must state the grounds for setting the award aside with considerable partieulai'ity, and that "good grounds'' was not sufficiently explicit (Mercier v. Pepperell (1881), 19 Ch. I). 5S). Where the statement of the grounds of objection to the award is limited by particular words of complaint, no defects other than those ■■particularly complained of will be allowed to be put before the Court, •even when the general statement, standing alone, would have been ■sufficiently particular {Boodle v. Davics (1835), 4 N. & M. 788; Broivn V. Frolert (1833), 1 Dowl. 659). The effect of an objection not being sufficiently set forth is only to prevent that objection from being relied upon. Any other sufficiently stated objections are not invalidated thereby {Boodle v. Davies, stiport ; 'Gray v. iw/ (1840), 8 Dowl. 654; Bradhee v. Christ's Hosjntal {184:2), 4 M. & G. 714). Service of affidavits. Copies of the affidavits are to be served with the notice of motion, and service of them separately is irregular, although the Court may direct the proceedings to be dealt with as and on such terms as it thinks fit (Order LXX., r, 1), and may accordingly disregard the irregularity if in its discretion it thinks fit to do so {Hanvpden v. Wallis (1884), 26 Ch. D. 746. See also In re Wyggcstoii Hospital and Stephenson (1885), 54 L. J. Q. B. 248). In Rosenhamn v. Bclson, [1901] W. N. 124, Byrne, J., held that copies of the exhibits to any affidavit in support of a motion must 1)6 served with the motion as well as a copy of the affidavit itself. But in Carter v. Boherts, [1903] 2 Ch. 312, the same judge held that within the terms of Order LIL, r. 4, copies of the exhibits to any affidavit need not be served with the affidavit, but that if, by not serving an exhibit, the applicant fails to enable the respondent thoroughly to understand the grounds of the application, the motion may be dismissed on this ground. Service out of the jurisdiction. A contract of sale between companies carrying on business in Sweden and France, sellers and buyers respectively, provided that all disputes should be settled by two arbitrators, with power to appoint an 'Umpire, and that " every foreign seller shall elect in France a domicil to which all writs and legal communications may be addressed." The sellers under this clause "elected "a French domicil. Neither of the parties carried on business in this country. Disputes which arose were referred to an English arbitrator and a French arbitrator, wlio appointed an English umpire. An award was made in due course in favour of the buyers. The sellers obtained leave to serve the buyers in France with notice of motion to set aside the award, but, on an application by the buyers that the order giving such leave should be set aside, it was held 244 REFERENCE BY CONSENT OUT OF COURT that Order XL, r. 8a, conferred no power to grant leave for service out of the jurisdiction of a notice to set aside an award in circumstances in which service out of the jurisdiction of a writ of summons could not be allowed under Order XI., r. 1, and as this case did not fall within the scope of Order XL, r. 1, the application must be granted. Held also, that where service of a notice of motion to set aside an award out- side the jurisdiction is permissible, and the service is to take place in a country to which, by order of the Lord Chancellor, Order XL, r. 8, applies, or is made to apply, such service must be according to the procedure prescribed by Order XL, r. 8 {In re Aktieholaget Robertsfors- and La SocUU Anonyme des Papeteries de I'Aa, [1910] 2 K. B. 727). Form and contents of affidavits in swpjim^t. By Order XXXVIIL, r. 2, "every affidavit shall be intituled in the cause or matter in which it is sworn," and by Order XXXVIIL, r. 15, every affidavit must " be stamped with the proper filing stamp." Any alteration, interlineation, or erasure in any affidavit must be initialled by the officer taking the affidavit (Order XXXVIIL, r. 12. See In re Cloake (1891), 61 L. J. Ch. 69). Where an arbitrator, who by mutual agreement of the parties had closed the case, refused the application of the defendant's attorney for another hearing to receive new evidence in reply to some accounts put in by the plaintiff, a motion to set aside the award made on the affidavit of the defendant's attorney was refused, on the ground, among others, that under the circumstances the Court required an affidavit from the defendant himself {Rinrjcr v. Joyce (1815), 1 Marsh. 404). If the objection upon which the Court is being moved to set aside the award arises on the award itself, the award must be verified by affidavit. (For form of affidavit of execution of the award, see Appendix of Forms.) The affidavit verifying the copy of the award need not state that the copy has been examined with the original, for frequently the party has never seen the original award, but has merely been furnished with a copy. An affidavit of the deponent's belief in the correctness of the copy is, therefore, sufficient. (For form of affidavit, see Appendix of Forms.) Jlludrations. \. A defendant swore an affidavit "that the paper writing annexed to the affidavit is or contains, as the deponent believes, a true copy of the award, the deponent having been served with the same by the attorney of the plaintiff." Held that this sufficiently verified the copy of the award {Hayward v. Phillips (1837), 1 N. & P. 288). 2. A defendant swore an affidavit " that the paper writing marked A was . . . delivered by the arbitrator personally into the hands of this deponent as a copy of the award made by him in this cause." Held that this was priind facie proof that the copy of the award was correct {Lund v. Hudson (1843), 1 D. & L. 236). SETTING ASIDE AWARD 245 3. A clerk to the London agents of the plaintiff's solicitors swore an affidavit " that the paper writing hereto annexed marked D is a true copy of the award or umpirage of A. B. as this deponent has been informed and believes," and that he had received the copy from the plaintiff's solicitors in the country. Held that this was a sufficient affidavit to verify the copy of the award (Hawkyard v. Stocks (1845), 2 D. & L. 936). But if the objection is dehors the award, it is not necessary to bring the award before the Court, and, therefore, no affidavit verifying it is necessary. Illustration. A matter was referred to two arbitrators, with power to appoint an umpire. A party moved to set aside the award on the ground that it had been made by one arbitrator and the umpire without the knowledge of the other arbitrator. The award was not brought before the Court, as the party objecting had not taken it up. Held that this was no objection to the application on the ground on which it was made (Ilinton V. Meade (1855), 24 L. J. Ex. 140). Any document which is relevant and necessary to the motion must be placed before the Court and verified by affidavit. Illustration. A motion was made to set aside an award as not being final. The award was made concerning a referred action, and the want of finality was that all the points in the pleadings in the action were not dealt with by the award. Held that the pleadings must be brought before the Court and verified by affidavit {Lowe v. Allen (1843), 4 Q. B. 66). Where a motion to set aside an award is made on the ground of the misconduct or mistaken conduct of the arbitrator, the affidavit in support ought to set out any reasons given by the arbitrator for acting ■as he is alleged to have done. Illustration. An affidavit in support of a motion to set aside an award because the arbitrator would not examine a material witness merely stated that the witness was material and was tendered for examination, and that the arbitrator refused to hear him. Held that the affidavit ought to be amended and state the reason given by the arbitrator for the refusal {Bradley v. Ihhetso7i (1851), 2 L. M. & P. 583). Where the application is out of time, an explanation of the delay •ought to be given in the affidavits in support. The Court may refuse to allow further affidavits to be filed after an objection that the motion is too late has been taken (see liiccxinl v. Kingdon (1846), 3 D. & L. 773 ; 15 L. J. Q. B. 269). 246 REFERENCE BY CONSENT OUT OF COURT Affidavits in (insv:er to svjp'povt an aicard lad on its face. If an award is bad upon the face of it, it is doubtful whether the- party opposing a motion to set it aside can explain away the irregularity by affidavit. This question was raised in In re MarsJiall and Dresser (1842), 3 Q. B. 878, where the irregularity was admitted by the party opposing the motion, who sought to show by affidavit that it was mere surplusage. As, however, the Court considered that the irregularity was relevant, the question was not decided, Lord Denman, C.J., expressing a doubt whether the Court would admit affidavits to support an award bad on its face. ' Affidavits hy arbitrator. As has been already stated, an affidavit will not be received from an arbitrator to explain his intention in awarding in a particular manner, the terms of the award being clear (Gordon v. Mitchell (1819), 3 Moore, 241). But he may state facts concerning the pro- ceedings before him, and accordingly on motions for setting aside awards, or in showing cause against such motions, affidavits of arbitrators have been constantly used in the Courts of law and equity to explain alleged irregularities, to answer charges of misconduct, to show under what circumstances particular meetings were held, and in what manner the award was executed (Price v. Williams (1791), 1 Yes. jun. 365; Hare, In re (1839), 6 Bing. X. C. 158; 8 Dowl. 71; Kingwell V. miiott (1839), 7 Dowl. 423: 8 K J. (N. S.) C. P. 241; Blundell v. Brcttavfjh (1810), 17 Yes. 232; Clcesby v. Peese (1812), 8 Moore, 524, n. ; Stahcorth v. Inns (1844), 13 M. & W. 466 ; 14 L. J. Ex. 81 ; In re Hall and Hinds (1841), 2 M. & G. 847). When the arbitrator happens to be a barrister, he is not usually expected to make an affidavit for the purpose of either supporting or setting aside the award (see Dobson v. Groves (1844), 6 Q. B. 637 ; 14 L. J. Q.^B. 17). Bias on the part of the arbitrator may be shown by an affidavit made by him in proceedings taken to set aside his award (In re Enoch and Zaretzhy, Bock cO Co., [1910] 1 K. B. 327). Inspection of documents mentioned in cffidavits. Documents referred to in affidavits may, under Order XXXI., r. 15, be inspected by the other party or parties, if they give notice requiring their production for this purpose, and if such notice is not complied with the documents may not be used except by special leave of the Court on such terms as may seem proper. This rule applies to the documents mentioned in any affidavit in support of or in opposition to a motion to set aside an award, a copy of which is sent to the other party, even though it is not filed. Illuairation. L. gave notice of a motion to set aside an award on the ground of the misconduct of the arbitrator. The arbitrator made an affidavit SETTING ASIDE AWARD 247 which was not filed, but a copy of it was sent to L. In this affidavit certain letters between the arbitrator and the solicitors of the other party were referred to, and L. gave notice of his desire to inspect these letters. Held that L. was entitled to inspect them, and an order for discovery was made {In re Fenner and Lord, [1897] 1 Q. B. 667). Turning motion into a special case. If the facts of the matter are very complicated, the Court may on the motion direct that the facts be stated in a special case, and then the question of the validity of the award will be considered when the special case comes on for argument. Illustrations. 1. The plaintiff chartered a ship to the defendants by a charter-party which provided that she should proceed to New Zealand, where the defendants were, within a specified time, to load a return cargo or by an agent there to give the plaintiff notice that they abandoned the adventure, in which case they were to pay him £500. The ship went to New Zealand and waited a reasonable time, but found neither cargo nor agent. She then made a circuitous voyage home by way of Batavia, where she obtained a freight which, notwithstanding the increased expense and loss of time of the longer voyage, was more valuable than she could have earned under the charter-party. An action by the plaintiff against the defendants on the charter-party to recover £500 having been referred to arbitration, the arbitrator held that there had been a breach of contract, but that the event on which the £500 penalty was to be due had not happened, and that the plaintiff could not recover that sum as general damages, having regard to the larger freight which he had earned on the longer voyage, and he therefore awarded the plaintiff nominal damages of Is. The plaintiff having obtained a rule nisi to set aside the award, on the ground that the arbitrator ought not to have taken into account the amount of the freight earned from Batavia, the Court directed that the facts should be stated in the form of a special case, and this was accordingly done. The Court eventually discharged the rule (Staniforth v. Lyall (1830), 4 M. & P. 829). 2. The defendant having disturbed the plaintiff in the limited use of a watercourse which he enjoyed under the award of an arbitrator, the plaintiff brought an action against the defendant, which was referred to another arbitrator on condition that he should not interfere with the rights acquired under the first award. The second arbitrator having made his award, the defendant put upon the second award a construction which seemed at variance with the rights acquired under the first, whereupon the plaintiff obtained a rule nisi to set aside the second award on this objection, or as ambiguous and not final. The matter was afterwards turned into a special case in order that the Court might compare the two awards ; when, on the Court expressing an opinion that the second award did not interfere with the rights under the first, the plaintiff did not press his objection, and the rule was discharged {Hocken v. Grenfell (1837), 4 Bing. N. C. 103). 248 REFERENCE BY CONSENT OUT OF COURT Hearing of the motion. his'pection of original agreement of reference. The original agreement of reference may be looked at on the hearing of the motion, because under the former practice it was made part of the rule embodying it (Oswald v. £arl Gh-eg (1855), 24 L. J. Q. B. 69), and now, by s. 1 of the Arbitration Act, a submission has the same effect as if it had been made an order of the Court. Arbitrators notes. But it would seem that the notes made by the arbitrator at the hearing of the arbitration cannot be referred to {Doe v. Preston (1846), 3 D. & L. 768). Admission hg arbitrator. In Whitekg v. Roberts, [1891] 1 Ch. 558; 60 L. J. Ch. 149, Kekewich, J., refused to set aside an award on oral evidence that after the award the arbitrator had made statements admitting that he had been bribed, the arbitrator not being called as a witness. Grounds of opj^osition to motion. Motion out of time. It is a good ground of objection to the motion that it has been made too late. As to the time within which a motion must be made, see ■ante, p. 236. Affidavits defective. It is a good ground of objection that the affidavits produced in support of the motion are insufficient or defective. As to the require- ments in this respect, see ante, p. 244. Partg onoving not injured. The motion can be successfully opposed by showing, to the satis- faction of the Court, that, even if the error upon which the motion is based can be substantiated, the party moving has not suffered any injury by reason of the error. In such circumstances the Court will not interfere (see Bignall v. Gale (]841), 10 L. J. C. P. 169). lllxLstrations. 1. In an action a verdict was taken for the plaintiff for £10,000, subject to a reference under an order of the Court authorising the arbitrator to settle the cause and all matters in difference, and required the defendant to pay to the arbitrator before a specified date £3500 on account, to be paid out to the parties as the arbitrator might think fit, and if the money was not paid to the arbitrator l)y that date judgment was to be entered for the amount of the verdict. The arbitrator SETTING ASIDE AWARD 249 awarded that the plaintiff was entitled to a verdict in the action, and had sustained damages by reason of the matters in the action and of the other matters in difference to the amount of £6067, and he ordered the £3500, which had been duly deposited with him, to be paid to the plaintiff on account of the damages so found by him, and directed the defendant to pay the balance of such damages on a certain date. The defendant obtained a rule nisi to set aside the award on the ground that the arbitrator had awarded a gross sum, without distinguishing how much was to be paid in respect of the action and how much in jrespect of the matters in difference, or for how much the verdict was to be entered, so that the award was not final. The Court held that as the verdict of £10,000 was subject to the reference, and as the £3500 had been paid to the arbitrator by the specified date, so that the only •event on which the plaintiff could have availed himself of the verdict for £10,000 had not happened, no possible injury could accrue to the defendant from the form of the award, that the award was valid and final as against the defendant, and that the rule should be discharged {Taylor v. Shuttleworth (1840), 6 Bing. N. C. 277). 2. To a declaration containing counts for goods sold, money paid and on an account stated, the defendant pleaded non-assumpsit and also a set-off. On the action being referred, the arbitrator ordered a verdict to be entered for the plaintiff on both issues as to all the counts, except as to the count for money paid, and as to that count for the •defendant on both issues, and he assessed the plaintiff's damages at £19. The defendant obtained a rule md to set aside the award on the ground that the plea of set-off was not divisible, and that the award was bad in awarding on the issue of set-ofi" as to some of the counts for the plaintiff", and as to one of them for the defendant. Held that the contention of the defendant was right, and that as the set-off did not equal the aggregate claims of the plaintiff, the award should have ordered a verdict for the plaintiff generally ; but that as the mistake was in favour of the defendant and did not deprive him of any benefit, the rule should be discharged {Moore v. Butlin (1837;, 7 A. & E. 595 ; 7 L. J. Q. B. 20). 3. A claimant for compensation under the Lands Clauses Consolida- tion Act, 1845, in respect of land of which he is tenant in fee, cannot object that the award of the umpire under s. 28 has assessed the compensation on the assumption that he is in possession of the land, whereas it is occupied by a lessee, inasmuch as such assumption is in his favour and to his advantage (BradsJiaw's Arbitration, In re (1848), 12 Q. B. .562; 17 L. J. Q. B. 362). Matter not brought to notice of arbitrator. Where the ground of the motion is that the award is not final in that it does not dispose of some specific matter, it will be a good defence to the motion to show that the matter referred to was not brought to the notice of the arbitrator by the submission, or by being raised at the hearing, or otherwise. In Middleton v. Weeks (161o), Cro. Jac. 200, 250 REFERENCE BY CONSENT OUT OF COURT Lord Coke said : "The submission being of all matters, with an ita quod it be made of the premises, there it ought to be made of all things whereof they [the arbitrators] have notice or information given them, otherwise it is not good ; but if it be without such a clause of ita quod,. &c., if they make an award of two matters, and do not speak of the residue, although they had notice of them, it is well enough; but if there be a submission of three things or more, particularly, with a. general clause of all other matters, there they ought to make the arbitrament of those which are particularly named without other notice ; for of them they have notice that they are in controversy by the submission ; but of the other matters they shall not take notice, unless by information from the parties." Illustration. An action of trespass in the Court of Exchequer by a plaintiff against three defendants, and all matters in difference between the said parties, were referred to an arbitrator, a verdict having been taken for the plaintiff; and an action of replevin in the Queen's Bench, by the same plaintiff' against one only of the defendants, was also referred to the same arbitrator. The main question was, whether or not the plaintiff had, in 1842, become tenant to that party who was defendant in both actions. No other tenancy was ever set up or brought in question. The reference of the replevin was first proceeded in, and the evidence taken in it was, by consent, read over as evidence in the action of trespass. The arbitrator awarded in the replevin that the plaintiff had good cause of action against the defendant and was entitled to a verdict. In the action of trespass he awarded nothing in respect of the^ costs of the replevin, or whether at the date of the order of reference, or of either action, a tenancy of the plaintiff to the party who was defendant in both actions existed. The defendant having obtained a rule to set aside the award, it was held that the award was good, these matters, if in difference, not having been brought before the arbitrator at the hearings {Rees v. IVaters (1847), 16 M. & W. 263). Matter not in disinite. So, also, it will be a good defence to a motion based upon want of finality to show that the question upon which no decision has been included in the award was one upon which there was no dispute between the parties, and one, therefore, upon which no decision was required. Illustration. An award provided that the costs of certain actions should be paid by the parties in certain proportions. This award was alleged to be uncertain on the ground that it did not decide what sum each was to pay. Held that the arbitrators were right to leave the question of amount to the taxing-master, and that the award could be rendered SETTING ASIDE AWARD 251 certain by mere calculation, about which no question could arise, and that it was good {Cargey v. Aitcheson (1823), 2 B. c^' C. 170). Acquiesceoice hy taking henejit under award. It will be a good answer to a motion to set aside an award if the opposing party can show that the party moving has acquiesced in the- award by knowingly accepting a benefit under it. Even an accept- ance of a benefit under protest may amount to acquiescence in the award, especially if there is delay in taking proceedings to set it aside. Illustrations. 1. By an order of the Court disputes were referred to arbitration on the terms of the defendant paying the costs of the cause and the refer- ence, and of the award. The plaintiff sought to have the award set aside, but the defendant objected that the plaintiff had acquiesced in the award by accepting payment of the costs of it. Held that the plaintiff in these circumstances was precluded from seeking to have the award set aside (Kennard v. Harris (1824), 2 B. ^ C. 801). 2. By an agreement of November 1865 the plaintiff engaged to sell the defendant a farm lease, the stock and growing crops to be taken at a valuation by valuers in the usual way and to be estimated at the market value. By the custom of the district as to crops, grain was valued at the market price, but straw at a lower value. In August 1866 the valuation was completed, taliing the straw at the lower value. The plaintift' received the amount awarded for the stock, but objected to the mode of valuation of the crops on the ground that the straw should have been taken at the market value. On 25th August he received a cheque for half the sum awarded for the crops and signed a receipt for it, at the top of which he had written the words "under protest," and he also received a promissory note for the other half of that sum. On 17th May 1867 he tiled a bill to set aside the award. Held that he vvas precluded by delay and by what amounted to acquiescence from disputing the valuation, and that the bill should be dismissed (Parrotf v. Shellard (1868), 16 W. R. 928). Acquiescence hy 'performance of the award. It is very questionable whether a party by performing an award so acquiesces in it that he will be precluded from moving subsequently to have it set aside for irregularity. In Goodman v. Saycrs (1820), 2 J. & W. 249, it was held that a party was precluded from asking that an award should be set aside by reason of his having voluntarily paid to the other party a sum declared to be due by the award, but this was treated on the facts as in the nature of a compromise, while in Bartle v. Hhcsyrave (1841), 1 Dowl. (N. S.) 325, Patteson, J., said that such a payment did not appear to him to preclude a party from subsequently moving to have an award set aside. "252 REFERENCE BY CONSENT OUT OF COURT Permitting other 'party to act on aioard. The mere fact that the party moving has, without protest, permitted the other party to act on an award is not of itself a good ground of opposition to a motion to set aside the award ; something more active than this is required to preclude a party from pursuing any remedy he may have. Illustration. In an action by landlord against tenant for breaches of covenant, one by non-payment of rent and three by not repairing, an order of nisi jjrius directed a verdict for the plaintiff for a certain sum on the first breach, subject to the award of an arbitrator to whom the cause and all matters in difference were referred. The doing of repairs by the plaintiff was not a matter in difference. By his award, dated 22nd January 1836, the arbitrator awarded the plaintift" the sum assessed for the first breach, and other sums for the other breaches, and directed a verdict for the aggregate of these sums, and he also directed that the plaintiff should expend £193 in repairs to the premises. On 28th January 1836 the plaintiff employed a builder to do the repairs, which were thereupon commenced, and next day this was mentioned to the defendant's attorney, who did not then intimate any objection to the award. In Easter term 1836 the defendant obtained a rule nisi to set aside the •award on the grounds that the arbitrator had exceeded his authority in awarding larger damages than he had power to give by the order of reference, and in directing the above sum to be expended in repairs. Held that the defendant had not waived his right to object to the award by permitting the plaintiff' to enter and perform the repairs, and the rule was made absolute {Hayward v. Phillips (1837), 6 A. & E. 119 ; 1 N. &P. 288; 6 L. J. K. B. 110). Result of the motion. Under the old practice the Court would not set an award aside on motion unless it was clearly void on the grounds on which it was impeached, because then there was an end of it altogether ; whereas if ■an action were brought, the question of its validity might be in general more formally raised and taken to a Court of error {Coch v. Gent (1844), 13 M. & W. 364 ; 15 L. J. Ex. 33 ; Stalwovth v. Inns (1844). 13 M. & W. 466 ; 14 L. J. Ex. 81). After cause had been shown, the Court would usually either dis- charge the rule or make it absolute ; but on one occasion, after the argument, the Court of Common Pleas enlarged the rule till the following term, to give the parties the opportunity of filing fresh affidavits, in order that the facts might be more fully stated ; additional affidavits were accordingly filed, and the case was re-argued in the subsequent term {Little v. Newton (1841), 2 M. & G. 351, 353; 10 L. J. C. P. 88). SETTING ASIDE AWARD 253 Where a cause and all matters in difference were referred, and the arbitrator found for the plaintiff in the cause, and then stated facts pursuant to a power given in the submission, the Court, on an appli- cation to set the award aside, deciding that the action could not be maintained on the case stated in the award, directed a nonsuit to be entered in the action, and that the rest of the award should stand good. The report does not show whether there was a conditional award of a nonsuit in case the Court should be of opinion that the plaintiff was not entitled to recover {Sherry v. Ohe (1833), 3 Dowl. 349). Second motion to set aside award. The Court will very rarely permit a second application to set aside an award, when the party has once failed in consequence of a defect in the way in which he has brought his case forward. The Court will assume that the objections taken on the first application are all that can be taken to the award {Hellyer and Snook, In re (1818), 2 Chit. 265 ; R v. Great Western Bail. Co. (1844), 1 D. & L. 874). The only excepted instances are where the defects were in the title or jurat of the affidavit (B. v. Great Western Bail. Co., supra). In one instance, where the rule was discharged on a preliminary technical objection, that a copy of the award had not been annexed to the affidavit verifying it, and that therefore the Court had not the contents of the award before it, Patteson, J., allowed a second applica- tion to set the award aside, although the time had expired, as the previous rule had been enlarged by consent {Sherry v. Oke (1833), 3 Dowl. 349) ; but on a subsequent occasion the same learned judge, with the concurrence of the full Court of Queen's Bench, intimated that in the above case he thought he had gone too far {B. v. Great Western Bail. Co., supra). Costs. Where motion dismissed. By s. 20 of the Arbitration Act the Court has full authority over the costs of any order made under the Act. When the motion to set aside an award is dismissed, the Court will, as in other cases, exercise a discretion whether it is to be dismissed with costs. If the motion had been made on slight grounds, it will generally be dismissed with costs {Snool: v. Hellyer (1818), 2 Chit. 43). Where the objection was that the arbitrator had decided contrary to law, costs were refused, on the ground that the point had been fully submitted to the Court when the rule was moved {Wade v. Malpas (1834), 2 Dowl. 638). In a later case, where the award was assailed as repugnant for finding inconsistent issues in favour of the same party, costs were granted, Lord Denman, C.J., intimating that in such cases the practice was to discharge the rule with costs {Duke of Beaufort v. Welch (1839), 10 A. & E. 527). 254 REFERENCE BY CONSENT OUT OF COURT Where the arbitrator had directed a verdict for the plaintiff, and stated special facts in his award, on which the defendant moved to set it aside, and the Court directed the verdict to stand for the plaintiff', at an amount of damages less than the arbitrator had given, the plaintiff was held to be entitled to the costs of showing cause against the rule, although the defendant had succeeded in part ; for the practice had always been to consider these costs as costs in the cause, since there was, in fact, no verdict until the discussion of the award was over, and therefore all proceedings till then were steps in the cause {Goodall V. Ray (1835), 4 Dowl. 1). Where the defendant put a construction upon the award which induced the plaintiff' to move to set it aside, and the Court, considering the defendant's construction untenable, discharged the plaintiff's rule, it was held that the plaintiff' was not entitled to the costs of the motion ; and Tindal, C.J., said, that as the award was not set aside, the motion must take the ordinary course, and the costs of it be costs in the cause {Hocken v. Grenfell (1837), 4 Bing. N. C. 103). An award in the plaintiffs favour being referred back, on a motion by the defendant to set it aside, and sustained as valid on the arbi- trator's explanation, the plaintiff was allowed the costs of the motion '{Goddard v. Smith (1865), 13 L. T. 159). Where motion allov-ed. The Court has refused to grant a successful mover the costs of the ■motion, when it has not been satisfied as to his conduct in regard to ithe matters complained of. Illndration. A landlord and his tenant agreed to refer certain disputes to two arbitrators and an umpire. The hearing took place on •22nd October 1893, both parties attending with solicitors and witnesses. On 15th November the arbitrators and the umpire viewed the property and held H long conference, at which the tenant was present but not the landlord, as the latter had not been given any notice of the view. On 5th December the umpire made his award. The Divisional Court, in these circumstances, set aside the award on the ground of misconduct on the part of the arbitrators, but as they did not feel sure that the landlord had not some inkling that the meeting was going to take place, and as the tenant was in no way to blame, the award was set aside without costs (7'c Grcgson and Armstron;/ (1894), 70 L. T. 106). Condemning arbitrator in costs. In Lendon v. ICce/i, [1916] 1 Iv. B. 994, the following principles were laid down as to the circumstances in which an arbitrator under the Agricultural Holdings Act, 1908, may be ordered to pay the costs of a successful motion to set aside his award : — (1) If he appears and takes SETTING ASIDE AWARD 255 part in the proceedings, he may be ordered to pay the costs. (2) If hel has been guilty of such colhision as would entitle one of the parties to bring an action against him, and the award is set aside on that ground, he may be ordered to pay the costs whether he appears in the proceedings or not. (3) If he has been guilty of technical misconduct only, without dishonesty or want of good faith, and he does not take part in the proceedings, he cannot be condemned in costs. (See also ■ante, p. 197.) Appeal. An appeal to the Court of Appeal from an order of the High Court, allowing or dismissing a motion to set aside an award, which does not otherwise deal with the disputes or determine the rights of the parties, is an interlocutory appeal, and must accordingly be entered within fourteen days from the date of the order. In In re Delagoa Bay Rail. Co. and Sir T. Tancred Arh. (1889), 61 L. T. 343 ; 37 W. E. 578, a company being dissatisfied with an award moved that the award be set aside or remitted to the umpire, on the ground, amongst others, that he had exceeded the scope of the reference. The motion beinw refused, the company gave notice of appeal and set down the appeal in the final list. The Court of Appeal dismissed an application to expedite the hearing, Lord Esher, M.R., adding that the motion, beinf analogous to a motion for a new trial, should be transferred to the final list. In Croasdell v. Cammell, Laird & Co., Ltd., [1906] 2 K. B. 569; 75 L. J, K. B. 769, an award was made by an arbitrator in the form of a special case. The respondents applied to the Divisional Court to set aside the award on the ground of technical misconduct. The Court made an order setting aside the award and the appellants gave notice of appeal against the order and entered the appeal in the final list. It was held that as the order set aside the award on technical grounds, and did not otherwise deal with the disputes between the parties, it must be treated as interlocutory and not final, and the appeal be transferred to the interlocutory list. In this case Collins, M.K., said : " The question now is whether the order so made by the Divisional Court was final or interlocutory. It appears to me that, whatever test is applied, it is certainly interlocutory. In my opinion the parties to this arbitration are for the present purpose in substantially the same position as the parties to a litigation. The law having asserted its jurisdiction over these consensual arrangements for the decision of disputes between parties, and the machinery of the law having been introduced which gives effect to them beyond that given by the mere agreement of the parties, the proceedings must be treated on the same footing for the present purpose as proceedings in a litigation. Where there is, as in this case, an agreement for the reference to arbitration 256 REFERENCE BY CONSENT OUT OF COURT of disputes which may arise, and, disputes having arisen, proceedings for the determination of them by arbitration have been commenced, and the machinery of the law has thereby been introduced, so that the disputes have been crystallised and brought for determination before an arbitrator, who is then acting in the exercise of a jurisdiction subject to the sanction and control of the Court, it seems to me that an order of the Court such as that in the present case, which does not determine any of those disputes, but leaves them where they were, and merely asserts an informality in the award which has been given, is only interlocutory. It decides none of the rights in dispute ; and the Court retains its jurisdiction over the arbitration, and could send the matter back to the same or another arbitrator," An appeal lies on a question of law from a decision of a County Court judge on the hearing of an application to set aside an award under the Agricultural Holdings Act, 1908 (Williams v. Wallis, [1914] 2 K. B. 478X Section 1 2. ENFORCEMENT OF AWARD. 1. Previous legislation. 2. Effect of the section. Execution. Execution levied an act of bankruptcy. When award will not be enforced as a judgment. 3. Practice . Application for leave to enforce award. Service of summons. Time. Appeal. Costs. 4. Enforcement of avarcl by action. Action after proceedings for attachment. Action after leave to enforce as a judgment. Action upon a foreign award. Recovery of costs. Recovery of interest. Statement of claim. Defence. Pleading invalidity of award. Proof of appointment of umpire. Reference to several arbitrators. Misconduct or mistake of arbitrator. Disputes as to facts on which award based. Statute of Limitations. Revocation of submission. Excess of jurisdiction. ENFORCEMENT OF AWARD 257 Attaclinient of sum awarded. Accord and satisfaction. Award not made within a reasonable time. Counterclaim for remission of award. Arbitrator as witness. Arbitrator proving proceedings in reference. Proving admissions of parties. Where award not taken up. Specifir ])erformance of award. When specific performance may be decreed. Laches. Unreasonable agreement. Award bad in part. Statute of Frauds. Part performance. Enforcement ofaivard by attachment. Attachment at common law. Attachment under the statute of Will. III. Arbitration Act. When attachment will be granted. On reference of indictment. Party beyond the jurisdiction. Award against several. When attachment will be refused. To enforce payment of money. Where submission has not effect of order of Court. For a strangei'. Privilege from arrest. Against executors or administrators. Against public officer. Corporation. Grounds of opposition to motion. Irregularity in demand or service. Defects on face of the award. Misconduct of arbitrator, &c. Award made after time or submission revoked. Appointment of umpire by arbitrators separately. Party not liable to attachment. Award performed as far as possible. Condition precedent. Duty not distinctly ascertained by award. Mistake in award. Validity of award doubtful. Delay. Attachment together with action on award. Attachment on discontinuing action. Action after attachment. Demand of performance necessary. No demand pending motion to set aside award. Demand by all parties. What should be demanded. By whom demand may be made. Service of documents. Documents necessary to be served, i ^ 258 REFERENCE BY CONSENT OUT OF COURT Giving notice of enlargement of time. What is sufficient service. \VTien personal service unnecessary. Practice. Motion or summons. Notice of motion. Service of notice of motion. Second application for attachment. Affidavits in support of motion. Affidavit verifying award. "Where time enlarged. Affidavits must show demand and service. Performance of condition precedent. Misnomer of umpire in affidavit. "Where award lost. Affidavit by attesting witness. Cross motions. Staying proceedings on terms. Proceedings on attachment. Setting aside attachment. Disobedience not purged by imprisonment for a term. Costs. 7. Enforcement of award by ride to pay amount awarded. Discretion of Court. "When rule refused. Set-oflF. Lands Clauses and Public Health Acts. Rule to pay no longer of advantage. Practice. 8. Enforcement of award by mandamus. 9. Enforcement of part of award. Bad part separable. Bad part inseparable. 10. Enforcement of award after bankruptcy of party. Penalty in arbitration bond a good petitioning creditor's debt. 12. An award on a submission may, by leave of the Court or a judge, be enforced in the same manner as a judgment or order to the same effect. 1. Previous legislation. By s. 1 of 9 "Will. Ill, c. 15, it was provided, inter alia, that "in case of disobedience to such arbitration or umpirage, the party neglecting or refusing to perform and execute the same, or any part thereof, shall be subject to all the penalties of contemning a rule of Court when he is a suitor or defendant in such Court, and the Court on motion shall issue process accordingly . . . unless it shall be made appear on oath to such Court that the arbitrators or umpire misbehaved themselv^es and that such award, arbitration, or umpirage was procured by corruption or by undue means." By the Common Law Procedure Act, 1854, s. IT, it was provided that " every agreement or submission to arbitration by consent, whether ENFORCEMENT OF AWARD 259 "by deed or instrument in writing, not under seal, may be made a rule of any one of the superior Courts of law or equity at Westminster, on the application of any party thereto, unless such agreement or sub- mission contain words purporting that the parties intend that it should not be made a rule of Court. . . ." The above provisions were repealed by the Arbitration Act, 1889. Ss. 17 and 18 of the Judgments Act, 1838 (1 & 2 Vict. c. 110), which still remain in force so far as material, are as follows : — 17. That every judgment debt shall carry interest at the rate of £4 per centum per annum from the time of entering up the judgment, or from the time of the commencement of this Act in cases of judgments then entered up and not carrying interest, until the same shall be satisfied, and such interest may be levied under a writ of execution on such judgment. 18. That all decrees and orders of Courts of equity, and all rules of Courts of common law, and all orders of the Lord Chancellor or of the Court of review in matters of bankruptcy, and all orders of the Lord Chancellor in matters of lunacy, whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, shall have the effect of judgments in the superior Courts of common law, and the persons to whom any such monies, or costs, charges, or expenses, shall be payable, shall be deemed judgment creditors within the meaning of this Act ; and all powers hereby given to the judges of the superior Courts of common law with respect to matters depending in the same Courts shall and may be exercised by Courts of equity with respect to matters therein depending, and by the Lord Chancellor and the Court of review in matters of bankruptcy, and by the Lord Chancellor in matters of lunacy; and all remedies hereby given to judgment creditors are in like manner given to persons to whom any monies, or costs, or expenses, are by such orders or rules respectively directed to be paid. This Act, which gives to a rule of Court for the payment of money the effect of a judgment, afforded, before the Arbitration Act, a simple and summary method of obtaining execution as on a judgment for the amount awarded, whenever the submission had been or could be made a rule of Court. The application of the Act is dealt with later, but it is no longer of the value that it was before the Arbitration Act, s. 12 •of which affords a readier method of arriving at the same result. 2. Effect of the section. In In re Willesclcn Local Board and Wriglit, [1896] 2 Q. B. 412, at p. 417, A. L. Smith, L.J., said: "I read that section [s. 12], coupled with s. 24 of tlie same Act, to mean that where an award has ■definitely settled the rights and liabilities of the parties so that they cannot be further litigated, in such a case either party may ask, under s. 12, that judgment may issue on the award." 260 EEFERENCE BY CONSENT OUT OF COURT The section, however, gives no power to the Court to direct judgment to be entered in accordance with an award. Illustration. In arbitration proceedings by agreement between A. and B. an award was made in favour of A., who apphed under s. 12 of the Arbitration Act that the award might be enforced. The Master directed that the award be enforced and "that judgment be entered in accordance therewith." By a judgment in accordance with this order it was adjudged that B. should pay the amount of the award to A. An application to a registrar in bankruptcy to issue a bankruptcy notice was refused on the ground that the judgment was not a final judgment in an action within s. 4 (1) (g) of the Bankruptcy Act, 1883. On appeal, it was held by the Court of Appeal that this decision was right, since s. 12 gave no power to turn an award into a judgment, but merely gave to an award the same status as a judgment for the purpose of enforcement (In re a Bankruptcy Notice, [1907] 1 K. B. 478). At p. 482, Fletcher Moulton, L.J., said: '-That section . . , gives no power to turn an award into a judgment. It gives to the award the same status as a judgment for the purpose of enforcement, but it leaves it what it was before, viz. an award. Therefore, in my opinion, the insertion in the Order of the direction that judgment should be entered . . . was without jurisdiction." The fact that leave to enforce an award as a judgment under the section has been obtained does not prevent the applicant bringing an action on the award. Illustration. The successful party under an award obtained leave to enforce the award as a judgment under s. 12 of the Arbitration Act. He subse- quently brought an action upon the award. Held that the action lay {China Steam Navigation Co. v. Fan Laun (1905), 22 T. L. R. 26). K7:ecution. When an order under this section has been obtained, execution thereon may be enforced in the manner provided by Order XLTI. (see especially rr. 1, 2, 3, 5, 6, 7, 9, 19, 22, 31, 31a, 33, and also Table of Official Kequirements (Executions) (1916), Xo. 72 (h)). The Court, when dealing with similar words in the Workmen's Com- pensation Act, 1897, in reference to the enforcement of the memorandum of compensation, held that a committal order against the employer was a proper means for the purpose. Illustration. The Workmen's Compensation Act, 1897, Schedule II. (8), provided that a memorandum of the compensation awarded by the arbitrator. ENFORCEMENT OF AWARD 261 when recorded as therein provided, " shall for all purposes be enforceable as a County Court judgment." Held by the Court of Appeal that a committal order against the employer under the Debtors Act, 1869, was a means by which the memorandum could be enforced (Bailei/ v. Plant, [1901] 1 K. B. 31). Execution levied an act of hanhruptcy. A debtor commits an act of bankruptcy within the meaning of s. 1 (1) (e) of the Bankruptcy Act, 1914, if execution has been levied •against him by seizure of his goods, under process following upon an •order against him to enforce an award as a judgment. Illustration. Arbitration proceedings between a trading corporation and X. resulted in an award which directed the payment of a sum of mone}'^ by X. to the corporation. The corporation obtained leave to enforce the award under s. 12 of the Arbitration Act and, subsequently, leave to issue execution for the amount due on the award. A writ oi fi. fa. was issued against X. and there was a seizure and sale of his goods there- under. Held by the Court of Appeal that an application to enforce an award under s. 12 was a "civil proceeding in the High Court" within the meaning of s. 1 of the Bankruptcy Act, 1890, and that as X. had had execution levied against him by seizure of his goods under process in such civil proceeding he had committed an act of bankruptcy (Exparie Caucasian Trading Corpwation, [1896] 1 Q. B. 368). When award vnll not he enforced as a judgment. An award will not be enforced as a judgment under the section, but the successful party will be left to bring an action on the award in the following cases : — (1) When the submission is by parol. Such a submission is not a submission within the meaning of the Arbitration Act (see s. 27 and commentary thereon, ^os^), and s. 12, therefore, has no application. (2) "Where the award ascertains only the amount to be paid, and not the liability in law to pay. In In re Willcsden Local Board and Wright, [1896] 2 Q. B. 412, at p. 417, A. L. Smith, L.J., said : " Where there has been nothing more than a quantum or amount adjudicated upon, and no adjudication as to the liability of the person who is called upon to pay the amount, in my judgment the section does not apply." Illustration. Compensation was awarded for injury to land under the Public Health Act, 1875, and an application to make the award a rule of Court (as provided by the same Act) was refused, on the ground that the title to the land affected was not proved, the arbitrator not having the power to do anything beyond settling the amount of compensation. 262 BEFERENCE BY CONSENT OUT OF COURT Enforcing the award in such circumstances must be by action {Re Walker and Beckenham District Local Board (1884), 50 L. T. 207). (3) Where the validity of the award or the right to proceed upon ib- is doubtful. Illustrations. 1. An award under the London Building Act, 1894, was made in favour of an adjoining owner. Leave to enforce the award was given by the Master, but was refused by the judge in chambers. On appeal it was held by the Court of Appeal that the arbitrators, in making the award, bad exceeded their jurisdiction, and that leave could not be given to enforce the award under s. 12 of the Arbitration Act (In re Stone and Hastie, [1903] 2 K. B. 463). 2. The successful party under an award sought leave to enforce it as a judgment under s. 12 of the Arbitration Act. The Master refused the application, and his decision was confirmed by the Court of Appeal, which expressed doubt as to whether the arbitrator had not exceeded his jurisdiction, and left the applicant to bring an action upon the award (Mai/ v. Mills (1914), 30 T. L. K. 287). 3. In an action to enforce an award a rule nisi had been granted for an order under 1 & 2 Vict. c. 110, s. 18, for the payment of the money awarded. The Court refused to make the rule absolute, Maule, J., say- ing : " The statute 1 & 2 Vict. c. 1 1 gives to an order of one of the superior Courts the effect of a judgment. The power to make such an order, therefore, I think, should be exercised within certain limits. Before the statute passed, the Court, in the exercise of its discretionary power, granted an attachment where a party wilfully refused to comply with the practice of the Court. But if he had any reasonable ground for so refusing, the Court left the other party to his remedy by action. ... I think that where there would not have been ground for an attachment, the Court ought not to make an order under the statute 1 & 2 Vict. c. 110" {Cresivick v. Harrison (1850), 20 L. J. (C. P.) 56, at p. 59). Under the old practice, when the validity of an award was doubtful^ the Court would leave the parties to their action unless the objections to the award were such as could not be raised in an action {Hall and Hinds, In re (1841), 2 M. & G. 847; 10 L. J. C. P. 210; Stalicorth v. Inns (1844), 13 M. & W. 466 ; 14 L. J. Ex. 81). (4) Where the award is one giving compensation for land taken under the Lands Clauses Acts, an action is the proper remedy {Im re Newhold and Metropolitan Rail. Co. (1863), 14 C. B. (N. S.) 405; Buccleuch {DuJce) v. Metropolitan Board of Works (1872), L. E. 5 H. L. 418 ; 41 L. J. Ex. 137 ; Loniher v. Caledonian Rail. Co., [1891] 3 Ch. 443 ; [1892] 1 Ch. 73; East London Union y. Metropolitan Rail. Co. (1869), L. E. 4 Ex. 309). (5) Where the award is made under a statute which expressly pro- ENFORCEMENT OF AWARD 263 vides how it is to be enforced, as, for instance, an award made under s. 150 of the Public Health Act, 1875, as to the proportion of expenses incurred by an urban authority in sewering and otherwise making good a street, to be borne by a person to whom notice has been given requiring him to sewer and otherwise make good a portion of the street. Illustration. S. 150 of the Public Health Act, 1875, provides that an urban authority may give notice requiring occupiers of premises to do certain works, and that, if such notice is not complied with, the authority may execute the works and recover from the occupiers in a summary manner the expenses so incurred, in such proportion as is settled by the surveyor of the authority, or, in case of dispute, by arbitration. In 1893 a local board served a notice on the occupiers of a street within its district to sewer, pave, and make good the same. The notice was not complied with, and the board, therefore, executed the works themselves, the proportion which they alleged to be due from W., an adjacent owner, being fixed by arbitration under s. 150. The board did not proceed before justices to recover the amount of the award within the six months limited by s. 11 of the Summary Jurisdiction Act, 1848, but in June 1896 applied in chambers under s. 12 of the Arbitration Act for leave to enforce the award. Held, by the Court of Appeal, that the award was not enforceable under the section, the only remedy open to the board being to go before justices to recover the amount in a summary way as provided by s. 150 of the Public Health Act, 1875 (In re Willesden Local Board and Wright, [1896] 2 Q. B. 412. See also and compare In re Lloyd and Tooth, [1899] 1 Q. B. 559 ; 68 L. J. Q. B. 376 ; In re Holmes and Farmhy, [1895] 1 Q. B. 174 ; 64 L. J. Q. B. 391). 3. Practice. Aijplication for leave to enforce award. Both in the King's Bench Division and Chancery Division an application to enforce an award under this section is made by originat- ing summons before a Master in chambers (see Practice Masters' Eules (20), Annual Practice (1917), 2512) under Order LIV., rr. 4b, 4f, and must be served two clear days before the return thereof (r. 4e). The summons should be entitled, " In the matter of an arbitration between A. B. and C. D. And in the matter of the Arbitration Act, 1889," and should ask for " leave to enforce the award dated on the above arbitration in the same manner as a judgment or order to the same effect." The applicant must produce before the Master the submission and the original award (or a duplicate thereof) together with a copy, both to be verified by affidavit entitled in the same manner as the summons. The verified copy of the award must subsequently be filed in the Writ, "264 REFERENCE BY CONSENT OUT OF COURT ^c, Department (without fee), together with the order for leave to enforce it. (For forms of summons and affidavits verifying the award and copy, see Appendix of Forms.) Service of summons. The summons must be served personally unless otherwise ordered (see Order IX., r. 2, Order LIV., r. 4e, and Order LXVII., rr. 5, 6). It cannot be served out of the jurisdiction. Illustratiati. W. alleged tbat, in an arbitration under an agreement to refer in a contract of agency, he had obtained an award against the other parties to the contract, who were foreigners resident out of the jurisdiction. He apphed exjMrte for leave to serve a summons upon these persons out of the jurisdiction for the purpose of enforcing the award in this country under s. 12 of the Arbitration Act. Held, by the Court of Appeal, that there was no power to order service of such a summons out of the jurisdiction (Easch & Co. v. Wnlfert, [1904] 1 K. B. 118). The respondent to the summons is not required to enter an appear- ance (Order LIV., r. 4f). Time. With the leave of the Court or a judge an award may be enforced at any time, though the time for moving to set it aside has not elapsed (Order XLIL, r. 31a). Aiypeal, From the decision of a Master in chambers, upon an application under the section, an appeal lies to a judge in chambers (Order LIV., r. 21), and from the judge in chambers to the Court of Appeal. Illustration. A party to arbitration proceedings obtained leave from a Master to enforce the award under s. 12 of the Arbitration Act. On appeal the judge in chambers reversed this order. The applicant thereupon appealed to the Court of Appeal. Held by the Court of Appeal that the appeal was an appeal in a " matter of practice and procedure " within the meaning of s. 1 (4) of the Supreme Court of Judicature (Procedure) Act, 1894, and therefore lay to the Court of Appeal {In re Colman and Watson, [1908] 1 K. B. 47). Costs. Any order made under this section may be made on such terms as to costs as the authority making the order thinks just (s. 20, j^osf). 4. Enforcement of award by action. Notwithstanding the provisions of s. 12 of the Arbitration Act, an award may be enforced by action as of right, whether the submission ENFORCEMENT OF AWARD 265 •was by parol, by writing under liand, by deed, by rule of Court, or by order of a judge. " The submission is an actual mutual promise to per- form the award of the arbitrators " {per Holt, C.J,, in Purslow v. Baily <1705), 2 Ld. Raym. 1039, at p. 1040). The plaintiff may either claim the amount awarded as the sum contracted to be paid by the agreement to refer, in which is implied an agreement to perform the award, or may ■claim damages for breach of the agreement (Sharpe v. Hancock (1844), 7 M. & G. 354 ; 13 L. J. C. P. 138). Illustrations. 1. The Statute of Limitations (21 Jac. I. c. 16, s. 3) was set up as a defence to an action on an award for £15. In a note to the pleadings, Serjeant Williams says : "An action for debt lies on an award for a sum of money awarded, upon a submission either by rule of Court or by deed, or in writing without deed, or by parol" {Hodsden v. Harridge (1670), 2 Wms. Saund. 62 a, note (5)). 2. A judge's order, made by consent of the parties, referred all matters in dispute to an arbitrator, and provided that the parties should fulfil and perform the arbitrator's award. By an indorsement on the order -signed by the parties the arbitrator was given power to order what the parties should do to prevent a repetition of injuries complained of. The defendant neglected to do what was ordered under this indorsed submission. Held that an action would lie (Liei-esley v. Gilmore (1866), L. R. 1 C. P. 570). 3. In the last of successive leases for years there was a covenant that the lessors would perform the arbitrators' award, which was to be delivered shortly after the execution of the lease. The award imposed a liabihty on the lessors. The lessors afterwards assigned all their interest to a railway company. Held that the lessors still remained liable on the covenant {•'ituart v. Joy, [1904] 1 K. B. 362). Where the submission is by parol, and does not, therefore, fall within the Arbitration Act, the award can only be enforced by action, and an action is also the appropriate method of enforcing the award, where the sum payable has been ascertained, but not the legal liability to pay it, or where the validity of the award, or the right to proceed upon it, is doubtful (see ante, pp. 261, 262). An action is also the appro- priate remedy where the party against whom it is sought to enforce the award is out of the jurisdiction (ante, p. 264). Action after 23'>'oceedings for attachment. A refusal by the Court to enforce an award by attachment does not necessarily involve a decision on the validity of the award (Jackson v. Clarice (1825), M'Clel. & Y. 200), or prevent an action from being subse- quently brought upon it (see Perry v. Nicholson (1757), 1 Burr. 278) ; and the fact that a party has been committed for contempt, by reason 266 REFERENCE BY CONSENT OUT OF COURT of his non-compliance with an award, does not preclude the other party from proceeding by action to enforce the same award. Illustration. An arbitrator in his award ordered H. to pay a certain sum of money and deliver up wine and brandy warrants, and wine in bottles. H. did not perform the award, and a rule was made absolute for his- attachment. After protracted proceedings he was adjudged in contempt, and sentenced to two years' imprisonment, Wilde, C.J., saying: "The non-performance of the award is not a single act of contempt which will be purged by a definite period of imprisonment ; but the prisoner may, at the expiration of the term for which the Court upon this occasion sentences him, if the award shall then remain unperformed, be again brought up to answer for his continuing contempt. Xor will he thereby, as I conceive, be relieved from an action on the award " {R. v. Eemsworth (1846), 3 C. B. 745, at p. 753). Action after leave to enforce as a judgment. The fact that leave to enforce an award as a judgment under s. 12' of the Arbitration Act has been obtained does not prevent the applicant bringing an action on the award. Illustration. The successful party under an award obtained leave to enforce the award as a judgment under s. 12 of the Arbitration Act. He subse- quently brought an action upon the award. Held that the action lay {China Steam Navigation Co. v. Van Laun (1905), 22 T. L. E. 26). Action upon a foreign av-ard. An award made by foreign arbitrators, which requires an enforcement order to render it enforceable by the local law, is not a judgment of a foreign tribunal which can be enforced by action in English Courts. Illustratimi. An English firm and a German firm entered into a contract which contained an agreement to refer disputes to arbitration. Disputes arose but the English company refused to submit to arbitration. Arbitration proceedings then took place in Germany, and an award was made in favour of the German firm which, according to German law, required an enforcement order to make it enforceable in Germany. In an action by the English firm against the German firm, the German firm counter-^ claimed (1) for a declaration that the German award was valid and binding ; and (2) payment of the sum awarded. Held, that while the German award was a valid and binding award, it was not the judgment of a foreign tribunal which the English Courts would recognise and enforce in an action brought on the award (Merrijield, Ziegler & Co. v. Liverpool Cotton Association (1911), 105 L. T. 97). E^'^ORCEME^T of award 267" Recovery of costs. When the award gives the costs of the reference but does not fix the amount, they need not be taxed before an action is commenced to recover them {Holdsivorth v. Wilson (1863), 32 L. J. Q. B. 289 ; 4 B. &. S. 1 ; Levns v. Rossiter (1875), 44 L. J. Ex. 136 ; Metropolitan District Rail. Co. v. Sharpe (1880), 5 App. Cas. 425 ; 50 L. J. Q. B. 14). Where two parties agreed to employ an arbitrator, and that the costs of the reference and the award should follow the event, and one paid a sum to take up the award, it was held that, in the absence of any pro- vision to the contrary, and there being no event of the award to entitle the other party to costs, that he might recover a moiety from the other party in an action for money paid {Marsack v. Webber (1860), 6 H. & N. 1). Recovery of interest. Interest may be recovered on the amount of a sum awarded to be paid if the award directs a day for payment, or, if no time is directed, then after demand made at any time {Pinhorn v. TucJciiiyton (1813), 3 Camp. 468 ; Johnson v. Burant (1830), 4 C. & P. 327 ; In re Churcher and Stringer (1831), 2 B. & Ad. 777. See In re United States Direct Cable Co. (1879), 48 L. J. Ch. 665 ; 3 & 4 Will. IV. c. 42, s. 28). A demand for payment is therefore important in cases where a party does not pay the amount awarded or moves to set the award aside. The amount of interest pending proceedings in the Court may be very considerable. Statement of claim. In an action on an award the plaintiff must allege all facts material to his claim (Ord. XIX., r. 14). (For forms of statement of claim in such an action, see Appendix of Forms.) He must plead the submission of the parties to the arbitration in order to show the binding nature of the award. " There is a great deal of difference where the action is brought upon the bond of submission and where it is upon the award. In the first case the defendant by craving oyer shows that there were mutual submissions, the conditions always so reciting it ; but in the other case it must be averred, before you can properly introduce your award. ... A mutual submission is necessary to be shown " {Dilley v. Polhill (1732), 2 Stra. 923, at p. 924). " Authorities show that it was necessary for the plaintiffs to give evidence of the execution of the bond [of arbitration] by themselves " {'per Lord Tenterden, C. J., at p. 429). " Dilky v. Polhill is an authority to show that it was necessary for the plaintiff to allege a mutual sub- mission. That being a material averment, it ought to have been, proved" {per Holroyd, J., at p. 430, in Ferrer v. Oven (1827), 7 B., & C. 427). 268 REFERENCE BY CONSENT OUT OF COURT Where an award ordered the defendant to sign a memorandum, by which he undertook not to pirate the plaintiff's inventions, proof that he liad signed a memorandum in terms according with the direction of the award was held sufficient evidence of his having submitted to the arbi- tration {Stitart V. Nicholson (1836), 3 Bing. K C. 113; 6 L. J. C. P. 66. •See Murray v. Gregory (1850), 19 L. J. Ex. 355). An averment of the performance or occurrence of all conditions precedent necessary for the plaintiffs case is implied, and if the defen- dant contests the same, the failure alleged must be distinctly specified by him (Order XIX., r. 14). It is not necessary to plead that the defendant had notice of the award, because both parties equally are deemed to have notice of it <2 Wms. Saund. 62 (4). See Fraunces case (1610), 8 Co. Eep. 92 b). Xor is it necessary to set out the terms of the submission or of the award, but it should be stated whether the submission was in writing or by parol. Illustration. In an action on a guarantee the statement of claim alleged that "it was agreed " between the parties. On an application to strike out the paragraph containing these words, Thesiger, L.J., said : "It is not, as a rule, necessary to set out the agreement verbatim, but it is necessary to state whether the agreement is in writing or by parol, and if it was in writing, to set it out so far as to show the efl'ect of it " {Tunpiand v, Fearon (1879), 4S L. J. Q. B. 703, at p. 704). Befoice. If the defendant, in an action on an award, desires to deny that he •entered into the submission upon which the award is alleged to be based, he must plead this specifically, otherwise he will be taken to admit it. •Similarly, if he intends to dispute the effect of the award as pleaded in the statement of claim, or any material allegation of fact, he should deny it specifically, otherwise he may be taken to have admitted it. A denial that the alleged award was made only puts in issue the question whether it was in fact duly made, and not the validity of any award which has been made. ♦ Illustration. In an action to enforce an award the declaration set out the submis- sion and the eftect of the award. It was pleaded by the defendant that the arbitrators did not make and publish their award modo et forma, and on this plea it was sought to impugn the validity of the award. Parke, B., said : " We think that the plea in this case merely puts in issue the fact of an award . . . and not the validity of that award on the face of it, and that the latter is a matter of law on the record " (Adcock v. TFood <1851), 6 Exch. 814, at p. 818. See also Whitmm-e v. Smith, post, p. 269). ENFORCEMENT OF AWARD 269^ Order XIX., r. 15, provides that " the defendant or plaintiff (as the case may be) must raise in his pleading all matters which show the- aetion or counterclaim not to be maintainable, or that the transac- tion is either void or voidable in point of law, and all such grounds of defence or reply as the case may be, as if not raised would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the preceding pleadings." And r. 20, that "When a contract, promise, or agreement is alleged in any pleading, a bare denial of the same by the opposite party shall be construed only as a denial in fact of the express contract, promise, or agreement alleged, or of the matters of fact from which the same may be implied by law, and not as a denial of the legality or sufficiency in law of such contract, promise, or agreement." Pleading invalidity of award. Where it is alleged that the award is invalid, either because of some irregularity in its making, e.g. that all the arbitrators did not execute it together, or that it was not made in time, or because the award has. been set aside, the facts must be specifically pleaded. Illustrations. 1. In an action on an award the defendant pleaded "no award." The defendant then wished to raise the point that the arbitrators had substituted the opinion of another person for their own. Held that the plea of no award only raised the question of there being in fact such an award, and that matters of objection to the award as it existed must be specially pleaded {Whitmore v. Smith (1861), 5 L. T. 618. See also Limerick and Ennis Rail. Co. v. Athenry, &c., Rail. Co. (1875), Ir. K. 9 C. L. 131 ; Pedler v. Hardy (1902), 18 T. L. R. 591). 2. In an action on a bond to enforce an award, the submission to arbitration was of all matters in difference between the parties. The defendant pleaded that certain matters in difference had been brought to the notice of the arbitrators, but they had not dealt with them in their award. Held that this was a good plea in bar, and that the award was no award at all respecting one of the matters in difference, and that it would be to no purpose to amend the pleadings {Mitchell v. Stavely (1812), 16 East, 58. See also Dresser v. Stansfield (1845), U M. & W. 822 ; 15 L. J. Ex. 274 ; Roberts v. Eherhardt (1857), 28 L. J. C. P. 70; 3 C. B. (N. S.) 482; Ingram v. Milnes (1807), 8 East, 445 ; Rhodes V. Airedale Drainage Commissioners (1876), 1 C. P. D. 402 ; 45 L. J. C. P. 861). 3. In an action where the award of an arbitrator was set up as a defence, the replication was " no such award." The Court, on being asked to decide as to the validity of the reference, held that the replica- tion merely put in issue the fact that the award was made . . . and did not raise the question whether the reference was made in due form of law {Roper v. Levy (1851), 7 Exch. 55). :270 REFERENCE BY CONSENT OUT OF COURT 4. A submission of disputes and differences was made to two arbi- trators and an umpire appointed by them to arbitrate, &c., "so as the award of the said arbitrators and umpire, or any two of them, should be made in writing under their hands " ; and the award was signed by two of them — one in London, the other in Bristol. On a plea of "no award," it was held that the two arbitrators having signed at different times and places constituted no execution. Erie, J., said : "This is not the award for which the submission stipulates. That was to be an award made upon the joint judgment of the arbitrators, considering all that they had heard up to the giving of their judgment" {Wade y. Dmvling (1854), 4 E. & B. 44. See also Peterson v. Aijre (1854), 15 C. B. 724). 5. In an arbitration under the Lands Clauses Consolidation Act, 1845, £80 was awarded for injuriously aflfecting a messuage "by the erection of an embankment, and by the narrowing of the road in front of the said messuage." In an action to recover the amount it was admitted that the narrowing of the road did not injuriously affect the messuage. It was held that the whole award was bad, as it was impossible to divide the lump sum between the two causes of injuries {Beckett v. Midland Rail Co. (1866), L. K. 1 C. P. 241). Proof of appointment of umpire. Where the award is made by an umpire, or by arbitrators and an •umpire, the appointment of the umpire must be proved {Still v. Halford <1814), 4 Camp. 17). Reference to several arhitrators. Where the reference is to several arbitrators, the award, to be valid, must be unanimous, in the absence of a provision to the contrary in ^he submission. Illustration. The rules of a mutual insurance association, which contracted to indemnify its members against liability in certain circumstances, pro- vided that if the member did not accept the decision of the committee as to the amount of the indemnity the matter should be referred to the decision of three arbitrators, one to be appointed by each of the parties and the third by the two so named. Arbitration proceedings having taken place under these rules, the third arbitrator and the nominee of the association made an award in favour of the association. The other arbitrator, who dissented, refused to sign the award. In an action on the award, it was held that in a reference to three arbitrators all three must concur in the making of the award ; that the award in this case was therefore bad ; and that the action upon it could not be main- tained {United Kingdom Mutnal Steamship Assurance Association v. Houston & Co., [1896] 1 Q. B. 567). ENFORCEMENT OF AWARD 271 Misconduct or mistake of arbitrator. The defendant cannot, in an action on an award, plead as a •defence misconduct or mistake on the part of the arbitrator. His proper course, if .these grounds exist, is to move to have the award «et aside. Illustratimis. 1. Defendant pleaded partiality and improper conduct in an arbi- trator in making his award without hearing the defendant and his witnesses. Held a bad plea, Lord Ellenborough, C. J., saying : " How could the injustice of an arbitrator be pleaded against one of the parties without at least implicating him in that misconduct, which was not attempted to be done by this plea ; and still the defendant could not get rid of the award unless by showing that the arbitrator's not hearing him made it no award" (BradcUck v. Thompson (1807), 8 East, 344. See also Wills v. Maccarmick (1762), 2 Wils. 148). 2. In an action of debt on a bond conditioned for the performance of an award to be made on a day named therein, the defendant pleaded that the plaintiffs had occupied all the time of the arbitrator with their witnesses, and closed their case on the day when the time for making the award expired, and, consequently, that he had no time to present his case or examine his witnesses, and the arbitrator refused to allow him any further time. Held, following Braddick v, TJiompson (supra), that the plea was bad (Glazebrook v. Davis (1826), 5 B. & C. 534). 3. An order of reference was made in an action to determine whether goods, the value of which (£246) the defendants proposed to set off against the plaintiff's claim, had been bought by the plaintiff of the defendants or of A. B. The question stated in the order was whether or not the defendants were entitled to set off the sum of £246. The arbitrators being unable to decide the main point, but finding a small deduction (£8, 1 2s.) ought to be made from the £246, awarded that the defendants were not entitled to set off £246. An application to set aside the award failed. In an action on the award it was held that the defendants could not now set off the difference between £246 and £8, 12s., for the award was conclusive as to the sum now sought to be set off, as well as that mentioned in the order, and if the arbitrators had gone on a mistaken ground, their decision could not be questioned in this form (Johnson v. Duraiit (1831), 2 B. & Ad. 925). 4. In an arbitration between Hinds and Hall, the latter admitted a sum of £143 odd to be due from him to Hinds; but Hinds claimed a larger sum, and the arbitrators found that a further £75 odd was due from Hall. Instead of adding the two sums together, the arbitrators deducted the smaller from the larger, and by another mistake directed that Hinds should pay the difference to Hall. Hinds applied to have the award set aside. Tindal, C.J., in giving the judgment of the Court, said : " Unless the award be set aside, it seems, at the least, ■extremely doubtful whether, in an action upon the award itself, any 272 REFERENCE BY CONSENT OUT OF COURT defence could be made; so that, unless the injured party succeed in this application, he will be remediless altogether " {Re Hall and Hinds- (1841), 2 Man, & G. 847 ; and see the cases in support of the above statement of the law collected in note (a) on p. 852). 5. Two arbitrators, appointed by an outside party to determine a dispute between A. and B., having received on behalf of A. a copy of the contract in dispute and of the correspondence, without giving B. an opportunity of being heard, and, in fact, within two hours of his receipt of the notice of their appointment, gave their award against him. Senible there was in this misconduct on the part of the arbitrators, but "insufficiency or want of hearing must be urged as a ground for setting aside the award on motion, and cannot be set up as a bar to an action upon it" 0-er Willes, J., in Thm-hurn v. Barnes (1867), L. R. 2 C. P. 384, at p. 402). 6. In an arbitration under the Friendly Societies Act, 1875, the arbitrators excluded the claimant from the room and examined two witnesses, giving him no opportunity of cross-examining them. The claimant applied to the justices under s. 22 of the Act, who held that there had been no decision, and they therefore had authority under that section to decide the claim. The Court of Appeal held that there was a decision, even if an improper one. Lopes, L.J., said : " If this were an ordinary arbitration, I take it that would be a good ground for applying to the Court to set it aside on the ground of the misconduct of the arbitrators ; but if an action had been brought upon that award, it would not have been a good plea to have said there was no award "■ {Bache v. Billingham, [1894] 1 Q. B. 107, at p. 112). Disputes as to facts on ivhich award based. The facts found by an award cannot be disputed in an action on the award. Hlustration. W. owned meat which was seized by the medical officer of health as unsound and destroyed by order of a justice of the peace. A summons under the Public Health Act against "W. was dismissed for a defect in form. W. then claimed damages for loss of the meat, and expenses before the magistrate, and loss of trade. The claim went to arbitration and the award found that the meat was sound, and damages £96, lis. In an action on the award Rigby, L.J., said: "The duty of the arbitrator is to determine the fact of damage and the amount of compensation. It is impossible for him to do that without investigat- ing the question whether the meat was unsound or not. . . . Hi* finding is conclusive ; and it is impossible for any Court, when he has found that the meat was sound, to say as a matter of law that it was not" {Walshaw v. Brighouse Corporation, [1899] 2 Q. B. 286, at p. 292). ENFORCEMENT OF AWARD 273 Statute of Limitations. By the Civil Procedure Act, 1833 (3 & 4 Will. IV. c. 42), s. 3, it is provided that " all actions of debt upon any award where the submis- sion is not by specialty" shall be commenced and sued within six years after the cause of such actions, but not after. Lapse of a longer period, therefore, may be pleaded as a defence to such an action. A submission to arbitration does not, in the absence of some express provision in the submission itself, exclude the right of either party to set up such a defence. Illustration. Before an arbitrator it was proved in 1897 that one coUiery company had in 1878 trespassed on the property of another and had acknowledged in 1888 having done so. Also that another trespass was committed in 1880, which did not come to the knowledge of the two Qompanies till 1895. Held that a submission to arbitration does not per se exclude the right of either party to raise the defence of the Statute of Limitations, unless an express term to that effect be imported into the agreement of submission (Re Astly and Tyldesley Coal and Salt Co. and Tyldesley Coal Co. (1899), 68 L. J. Q. B. 252). An action to enforce an award under the Lands Clauses Consolida- tion Act, 1845, must be brought within six years from the date of the- award. It need not be within six years after the execution of the works causing the damage in respect of which the compensation is awarded. Illustration. In 1903 the defendants under a special Act carried out certain works which injuriously affected the plaintiff's property within s. 68 of the Lands Clauses Act, 1845. The plaintiff, being ignorant of her right to compensation, made no claim therefor until 1909. The matter went to arbitration and an award was made in her favour in 1910. In the same year an action was brought to enforce the award. Held that the cause of action accrued at the time of the making of the award and not of the execution of the work whereby the plaintiff's land was damaged, and that, as by the Statute of Limitations, 1623 (21 Jac. I. 0. 16), the plaintiff had six years to sue from the date of the cause of action, this action was in time (Turner v. Midlmid Rail. Co., [1911] 1 K. B. 832). Bevocation of submission. When the submission is revocable, a plea of revocation before the award was made will be a good defence to an action on the award. (As to revocation, see ante, p. 46 et seq.) Illustration. In an action to enforce an award the defendant pleaded that before the award he bad revoked by deed the authority of the arbitrators, of which 18 274 REFERENCE BY CONSENT OUT OF COURT revocation they had notice. Held that the plea was good although it disclosed a breach of the covenant in the bond of submission to abide by the award {Marsh v. Bulteel (1822), 5 B. & Aid. 507). Excess of jurisdiction. It will be a good defence in an action on an award to plead that the arbitrator has exceeded his jurisdiction. This will go to the whole or a portion of the cause of action, as the case may be, according as the excess pleaded invalidates the award wholly or in part. (As to excess of jurisdiction generally, see ante, pp. 229, 230.) llhistration. In an action to enforce an award of £8125 under the Lands Clauses Consolidation Act, 1845, for injuriously affecting a house in Whitehall by constructing the Thames Embankment, the umpire was called as a witness, and said £5000 (part of the award) was for loss of prospect and amenities. Held that the plaintiff was entitled to recover. Kelly, C.B., said : " It must be conceded that, as the award was for one entire sum, if any part of that sum was given contrary to law, the whole award is invalidated. No doubt, if the umpire . . . included in his award sub- jects of compensation which he ought not to have included . . . and thus to have exceeded his jurisdiction, the award is bad " {Buccleuch (Duke) V. Metrqjolitan Board of Works (1868), L. R. 3 Exch. 306, at p. 321). Attachment of sum aicarcled. If an action of debt is brought upon an award for the payment of a certain sum of money it is a good defence to plead that the money has already been attached by somebody other than the plaintiff. Illustration. In an action on a bond conditioned to perform an award the defendant pleaded that the money payable under the award was attached in his hands the day after it was due to be paid. Held that the plea was ill. Holt, C.J., saying: "It would have been a good plea to an action of debt upon the award, not to debt upon the bond " {Ingram v. Bernard (1701), 1 Ld. Raym. 636). Accord and satisfaction. Accord and satisfaction may be pleaded in an action on an award, and will constitute a good defence. Illustration. Partners, owing to disputes, agreed that one should retire and receive whatever an arbitrator should award. An award was made of a certain sum payable by instalments. Default was made in payment of the first instalment. The parties then agreed by parol on a less sum. ENFORCEMENT OF AWARD 275 Held in an action on the award that the parol agreement might be pleaded as accord and satisfaction {Smith v. Trowsdale (1854), 3 E. & B. 83). Award not made ivitJiin a reasonable time. If the submission does not provide for a time within which the •award shall be made, it is not a good defence to an action on an award that it was not made within a reasonable time. Illustration. In an action on an award part of the defence was that the arbitrators did not make an award within a reasonable time, no time having been specified in the submission. Lord EUenborough, C.J., said : "There is no necessity for resorting to any implication that the award should be made within a reasonable time, because it was open to the parties to have requested the arbitrators to proceed within a reasonable time ; and if after such request the arbitrators had neglected or refused, they might have revoked their authority" (Cariis-v. Foils (1814), 3 M. & S, 145). Coiinterclaim for remission of aioard. It is very doubtful whether a defendant in an action on an award -can ask by way of counterclaim that the award should be remitted to the arbitrator for reconsideration. If this course is desired he should proceed by motion within the proper time {Pedler v. Hardy (1902), 18 T. L. E. 591). Arbitrator as witness. An arbitrator may be called as a witness to give evidence respecting proceedings in the arbitration. There does not seem to be any privilege attaching to him in his judicial character, whether he is a legal or lay arbitrator, entitling him to refuse his testimony ; but where, in an action on an award, the defendant called the arbitrator to prove the ground on which he made his award, in order to show that he had exceeded the limits of the submission, Mansfield, C.J., told the witness that he need not be examined unless he chose. The arbitrator in consequence declined to be examined. On a motion for a new trial no objection was made to this decision {Ellis v. Saltan (1808), 4 C. & P. 327, n. ; Johnson v. Durant (1830), 4 C. & P. 327. See Padley v. Lincoln Waterworks Co. (1850), 2 Mac. & G. 68 ; 19 L. J. Ch. 436). It was decided in the House of Lords that an arbitrator called as a witness, in an action on an award, might (per Lord Cairns) be examined as to every matter of fact with reference to the making of the award, what claims were made and what admitted, so as to put the Court in possession of the history of the litigation up to the time of his proceed- ing to make the award, and {'per Lord Chelmsford, C.) whether in his estimate of the compensation he took into consideration any matters 276 REFERENCE BY CONSENT OUT OF COURT not included in the reference, and, therefore, not within his jurisdiction ;. but it was laid down that the defendants had no right to go farther and question the arbitrator as to the elements which he took into his con- sideration in determining the quantum of compensation, or to scrutinise the exercise by the arbitrator of his discretionary power to award com- pensation {Bucclevch (Dulc) v. Metropolitan Board of Works (1872), L. K^ 5 H. L. 418, followed in GRourhe v. Rail. Commissioners (1890), 15 App, Cas. 371. See Broijlnj v. Holmes (1828), 2 Molloy, 1 ; Dare Valley Rail. Co., In re (1868), L. E. 6 Eq. 429 ; 37 L. J. Ch. 719). Arhitrator proving ])roceeclings in reference. The arbitrator may be a witness to prove a submission by parol, to state facts relating to the conduct of a party, which show his assent to be bound by the award {Adams v. Bankhart (1835), 1 C. M. & E. 681), and to prove what matters were matters in difference in the reference {Bavee v. Farmer (1791), 4 T. E. 146 ; Triminyham v. Triminghani (1835), 4 K & M. 786; Martin v. Thornton (1803), 4 Esp. 180); and may be asked wliether he was requested by either party to find on specific issues, he being authorised to award generally, unless so requested {Wilson V. Hinckley (1868), 18 L. T. 695). Proving admissions of ixirties. He may be called upon to prove admissions made by the parties in the course of the proceedings, other than mere admissions made for the purpose of buying peace ; for there is no ground why the statement of the parties before an arbitrator should be excluded, as they are not made in confidence or with a view to compromise, and the matter comes as adversely before him as before any other tribunal {Slack v. Buchanan (1790), 1 Peake, K P. C. 7 ; Doe d. Lloyd v. Evans (1827), 3 C. & P. 219 ; Westlake v. Collard (1789), Bull. K P. 236 b, 7th ed. ; Ch-egonj v. Howard (1800), 3 Esp. 113. But see Hahershon v. Troby (1800),. 3 Esp. 38). Where award not taken up. Where the award has not been taken up, the arbitrators will be protected from producing the submission and from disclosing the con- tents or the grounds of the award, or the discussions which took place between themselves, but they ought to answer whether either party had requested them to discuss certain accounts, and must produce the documents put in evidence before them which are in their hands {Ponsford v. Sicaine (1861), 1 J. & H. 433). 5. Specific performance of award. The Court can enforce specific performance of an award, or, to be more accurate, of the contract between the parties to abide by the award. ENFORCEMENT OF AWARD 277 in the same way as it can decree specific performance of any other •contract. This power is part of the general law of contract and in no way -special to contracts to abide by an award, and the usual practice with regard to specific performance is fully applicable. The power is not limited or dealt with in any way by the provisions of the Arbitration Act, but, owing to the provisions of s. 12, is now seldom resorted to, the enforcement of the award as a judgment being in most cases a sufficient and less expensive remedy. When specific 'performance may he decreed. Specific performance of a contract to abide by an award will only be enforced in the same circumstances as any other contract would be so enforced (see Wood v. Griffith (1818), 1 Wils. Ch. 34, and Fry on Specific Performance). If the award is that one party shall do some specific ascertained act ■other than the payment of money for the non-performance of which damages are not an adequate remedy, specific performance will, as a general rule, be decreed. Illustrations. 1. There was a dispute between the plaintiff and defendant (brother and sister) about the fee-simple of some land under their father's will. This was referred to an arbitrator, who awarded that the plaintiff should pay a certain sum of money to the defendant, who should there- upon procure his wife to join with him in conveying the land to the plaintiff. The money having been tendered, the defendant would not sign the necessary deeds. The Court decreed specific performance against him {Hall v. Hardy (1733), 3 P. Wms. 187). 2. W. and Gr. were jointly interested in a contract for the purchase of an estate on which AV. had paid £7000 out of the £23,000 purchase- money. Disputes arose between them and were referred to an arbi- trator, who awarded that they should put the estate (or their interest in it) up for sale, and respectively execute all proper and necessary conveyances, &c., and do all acts necessary to carry the sale into effect. In decreeing specific performance of the award Lord Eldon, L.C., said : " This is an agreement embodied in an award, that a judge of the party's own choosing has decided. It is ^n agreement which the Court has carried and will carry into effect" {Wood v. Grijjith (1818), 1 Wils. Ch. 34). 3. A difference between two brothers regarding the "estate of their father was voluntarily referred to an arbitrator, who awarded that the defendant should enjoy a former estate tail settled upon him and the heirs male of his body by the testator (the father), and that the plaintiff should confirm the same at the charge of the defendant ; and that the defendant should do no act to debar or discontinue the estate tail, or the remainder of the plaintiff, without the plaintiff's consent. 278 REFERENCE BY CONSENT OUT OF COURT Held that, as the plaintiff had performed his part of the award, the Court could compel the defendant to perform his part, but that it was absolutely against the practice of the Court to decree a perpetuity or give any relief in that case {Bishop v. Bisltof (1639), 1 Rep. Ch. 75, [142]). 4. The rent under a lease was to be fixed by arbitration. The umpire awarding under this agreement took into account an agreement made with himself (the umpire) by the lessee to expend a large sum in repairs, which agreement the original lessor could not have enforced. To this award the arbitrator appointed by the lessee agreed, not in the exercise of his own judgment, but at the request of the lessee's wife. Held, by the House of Lords, that specific performance ought not to be decreed under these circumstances {Chichester v. M'Intyre (1830), 1 Dow (N. S.), 460). It was no ground to prevent the Court of Chancery decreeing a specific performance that the Court of King's Bench had granted an attachment against the defendant for non-performance of the award, in his refusing to execute an authority to sell an estate, and had discharged the attachment on receiving their officer's report that the defendant had not been guilty of a contempt {Wood v. Griffith (1818), 1 Wils. Ch. 34). The Court will not generally decline to decree specific performance of an award because it is an unreasonable award {Mcdcalfe v. Ixes (1737), 1 Atk. 64. But see Nickels v. Hancock (1855), 7 De G. M. & G. 300). In A.-G. V. Jachson (1846), 5 Hare, 365, Wigram, Y.-C, expressed it as his opinion that the refusal of one party to act equitably, though he were within his legal rights, would be a ground for the other party resisting a decree of specific performance of an award. Specific performance will not be decreed unless the position is such that full relief can be given to both parties. Illustrations. 1. In a submission to arbitration of all differences between two patentees, the arbitrator had power to set aside certain deeds connected with the working of the patents, and in his award said that, if and so far as he had power and jurisdiction, he set aside certain deeds, but if he had not power and jurisdiction, he declared that the rest of his award was to stand. In dismissing a bill for specific performance. Turner. L.J., said : " Nor do I feel at all satisfied that this Court would enforce the performance of part of an award, if it appears that it cannot be enforced wholly. I think that this Court, in its ordinary exercise of this juris- diction, does not enforce parts of agreements" {Nickels v. Hancock (1855), 7 De G. M. & G. 300, at p. 317). " 2. Plaintiff was the owner of a colliery firm which ran a railway to the Tyne. The railway was made under a private arrangement over the lands of six landowners, of whom the defendant was one. Disputes ENFORCEMENT OF AWARD 279 arose between the parties, and an action between them was referred to arbitration. The award, among other things, directed a lease in a form set out in a schedule to be executed by the defendant, but the lease did not provide for the privileges awarded to the defendant in respect of those parts of the line not situate on his property, such as keeping in repair the railway for the use of the defendant. The Court (Lord Cranworth, L.C.), in refusing specific performance of the award on the ground that the Court could not give full relief to both parties, said : "Here the plaintiff gets at once what he seeks — the lease; but the defendant cannot get what he is entitled to . . .a right to enforce the performance by the plaintiff of daily duties during the whole term of the lease. The Court has no means of enforcing the performance of these duties. ... If the arbitrator had awarded that the lease to be executed should contain covenants by the plaintiff to do certain acts, the case would have stood on an entirely different footing " {Blackett v. Bates (1865), L. E. 1 Ch. 117, at pp. 124, 125. See also Hide v. Petit (1670), 1 Ch. Ca. 185). Laches. Specific performance will not be decreed where there has been unwarrantable delay in seeking the remedy. The relief must be sought with all reasonable promptitude, having regard to the circumstances. Illustrations. 1. The terms of a lease of a colliery were to be settled by two arbi- trators, who accordingly made their award on 13th April 1848. The defendant was informed of the terms on 10th June, and on 8th August objected to the validity of the award. Negotiations followed, but in February 1849 the defendant abandoned the colliery. In 1852 the plaintiffs filed a bill for specific performance of the agreement for a lease. Lord Cranworth, L.C., said: "Specific performance is relief which this Court will not give, unless in cases where the parties seek- ing it come as promptly as the nature of the case will permit " {Eads v. Williams (1854), 24 L. J. Ch. 531, at p. 535). 2. Where an award was made in June 1863, and proceedings to have it specifically enforced were not taken until July 1864, the Court was of opinion that, even if otherwise the party seeking it had been entitled to specific performance, he would have been barred by his delay (Blackett v. Bates (1865), L. R. 1 Ch. 117). Unreasonable agreement. Specific performance will not be decreed if the award and submission together constitute an unreasonable agreement, or one which is not •capable of being worked out in a manner consistent with the intention of the submission (Nickels v. Hancock, s^q^ra). 280 REFERENCE BY CONSENT OUT OF COURT Av:ard had in 2}ci7't. Specific performance may be decreed of an award which is void in part, if the good part is clearly separable, and it is not necessarily an objection to such a decree that the specific performance will involve building operations (Selhy v. Whithrecul & Co., [1917] 1 K. B. 736. See, however, as to the latter point, Blackett v. Bates (1865), L. R. 1 Ch. 117). Statute of FraAuls. Specific performance will not, apart from the doctrine of part per- formance, be decreed of an award which, by reason of the Statute of Frauds, is not enforceable at law. When the parties agreed by parol that the arbitrator should determine whether a long lease should be granted of certain premises, and he directed a lease to be made, the award, though in writing, was held to be unenforceable because the submission was not evidenced by writing so as to satisfy the Statute of Frauds, and specific performance of that part of the award which awarded the lease was accordingly refused {Walters v. Morgan {11 %'2), 2 Cox, Ch. Ca. 369). Part "perfornumce. I Where there has been part performance of the award, a decree of specific performance may be granted, although the award is not bind- ing at law, or otherwise in circumstances in which, without such part performance, it would not have been granted. For this purpose part performance means complete performance of his obligations by the party seeking the decree (see Nickels v. Hancoch (1855), 7 De G. M. & G. 300). Illustrations. 1. Two arbitrators made an award as to the lease of a farm to be surrendered to the defendant upon terms. The plaintiff insisted on an allowance for improvements, and the arbitrators, with the assent of the parties, referred the matter of improvements to other arbitrators, who awarded the plaintiff £120. Plaintiff" had given up the farm, and the defendant refused to pay the £120. The Court held that there was one award, though in two parts, and, the plaintiff having duly performed his part, decreed specific performance against the defendant {Church v. Roper (1639), 1 Eep. Ch. 75 [140]). 2. Performance of an aw-ard made fifty years before performance by one party was decreed {Poole v. Pipe (1666), 3 Rep. Ch. 11 [20]. See also Bishop v. Bisliop (1640), 1 Rep. Ch. 75, 142). 3. An award, not binding in law, had been made, whereby the plaintiff was to pay the defendant £900, and seal a release to him ; and the defendant was to assign several securities he had from the plaintiff. The plaintiff sold some lands and raised the £900, which he tendered with the release to the defendant. Specific performance was decreed against the defendant {Norton v. Mascall (1687), 2 Yern. 24). ENFORCEMENT OF AWARD 281 6. Enforcement of award by attachment. Attachment at common lata. Before the time of Charles II. it was not considered by the Courts ■of common law that obedience to an award could be enforced by attachment. But in that reign the Courts ultimately allowed recourse to this procedure, and the granting of the remedy by attachment was in William the Third's reign spoken of as the settled practice of the Courts {Veale v. War7ier (1670), 1 Saund. 327 c). Attachment binder the statute of Will. III. So convenient a remedy was it found, that the statute 9 Will. III. c. 15 was passed to extend to all submissions respecting matters of a civil nature, which should contain consent clauses for making them rules of Court, the same compulsory method of enforcement which had previously been confined to submissions concerning matters respecting which actions or suits had been commenced (see cmte, p. 258). Arhitration Act. The statute of Will. III. has been repealed by the Arbitration Act, but by the first section of the latter Act it is provided that on references by consent out of Court the submission generally shall have the same effect in all respects as if it had been made an order of Court (see ante, p. 260). At the present day, however, it is rarely sought to enforce an award by attachment. When attachment will he gi^antecl. Formerly, when an award was made under a submission which had been made a rule of Court, the award could be enforced by attachment (under the penalty, in ordinary cases, of imprisonment), whether the award directed the payment of money or the performance of any act by the party against whom it was made, the refusal or neglect to per- form the award being a contempt of Court. Although by s. 4 of the Debtors Act, 1869 (32 & 33 Vict. c. 62), an award containing a direc- tion for the payment of money cannot now be enforced by attachment, the practice as regards awards other than for the payment of money has undergone no alteration. On reference of indictment. On proceedings of a criminal character an attachment lies. Thus, if an indictment for a nuisance is referred and a verdict taken subject to the reference, the defendant may be compelled by attachment to abate the nuisance as directed by the award, although the prosecutor had the choice of moving for judgment on the verdict {li. v. Gore (1839), 8 Dowl. 102). 282 REFERENCE BY CONSENT OUT OF COURT Party hcyoncl the jurisdiction. Though the party was beyond the jurisdiction of the Court at the time of his neglect to perform the award, and remains out of the juris- diction, the Court will nevertheless issue the process, as an attachment to enforce an award is in the nature of a civil process, and the Court will not enquire whether it can be made available {Hopcraft v. Fernior (1823), 1 Bing. 378. See R. v. Myers (1786), 1 T. E. 265). Aivard against several. "Where an award is made against several persons, an attachment may issue against one alone of such persons {Bichmoiul v. ParJdnson (1835), 3 Dowl. 703). When attachraent v:Hl he refused. To enforce payment of money. The Debtors Act, 1869, s. 4, provides that, with certain exceptions therein mentioned (not material to arbitration), " no person shall, after the commencement of this Act, be arrested or imprisoned for making default in payment of a sum of money." The effect of this provision is that an award containing a direction for the payment of money cannot now be enforced, as regards that direction, by attachment (see Buckley V. Crav-ford, [1893] 1 Q. B. 100; 63 L. J. Q. B. 87). Where submission has not effect of order of Court. Whenever the submission could not be made a rule of Court, as where it was merely oral (Ansell v. Evans (1796), 7 T. E. 1 ; Anon. v. Mills (1811), 17 Ves. 419), or where, if in writing by agreement out of Court, it contained words showing an intention that it should not be made an order of Court, no attachment could be granted, even though a cause was the subject-matter referred {Clarke v. Baker (1835), 1 H. & W. 215), for the Court had no jurisdiction where there was no rule of Court {Oimi v. Hurd (1788), 2 T. E. 643). Xow, if the submission does not come within the definition of a submission in s. 27 of the Arbitration Act (see 2^ost), so that it cannot have the same effect in all respects as if it had been made an order of the Court (see s. 1 of the Act), the Court, it would seem, has no juris- diction to grant attachment. In the case of an oral submission, for example, the Court has no such jurisdiction. For a stranger. A stranger to the submission could not have an attachment to enforce payment of a sum which the award directed to be paid to him, though the direction itself, under the circumstances, was perfectly valid {Skeete, In re (1839), 7 Dowl. 618; Butler, In re (1849), 13 Q. B. 341). ENFORCEMEKT OF AWARD 283 Privilege from arrest. Peers {Walker \. Earl Grosvenor {VI ^1), 7 T. 11. 171), members of Parliament {Catmnr v. Knatehhull (1797), 7 T. E. 448), and barristers and solicitors going to or returning from professional attendance in Court {Freston, In re (1883), 11 Q. B. D. 545 ; 52 L. J. Q. B. 545), are privileged from arrest unless the attachment is granted for contempt of Court of a criminal nature. Against executors or administrators. Attachment will not issue against the executor of a party who dies after the award is made without having performed it, for the contempt is personal, and the liability to punishment for a contempt dies with the person ( Webster v. Bishoi) (1703), Prec. in Chanc. 223 ; S. C. 2 Vern. 444; Neivton v. Walker (1742), Willes, 315; Doe d. Pain v. Grundy (1823), 1 B. & C. 284; HoidditeliN. Hoidditeh (1818), 1 Swanst. 58); nor, it would seem, will attachment issue against the executor of a party who dies before the conclusion of the reference {Lcwin v. Holhrook (1843), 11 M. & W. 110, ^cr Lord Abinger, at p. 112). Even where there is a clause preventing the death of a party from revoking the arbitrator's authority, and the party dies pending the reference, his executors cannot be compelled by attachment (though they may by action) to perform the award on the part of their testator {Tyler x. e/o?ic.s (1824), 3 B. & C. 144). Where, however, an executor or adminis- trator CO nomine submits disputes to arbitration, an attachment may issue against him for non-performance of the award {Re Joseph and Webster (1830), 1 E. & M. 496 ; Spivy v. Webster (1833), 2 Dow, 46). Against public officer. Where a public company is authorised by statute to sue and bfr sued in the name of one of its officers, but he is not to be liable in person or goods by reason of being a defendant, the reference of an action in which he is so made the nominal plaintiff or defendant does not impose upon him any personal liability to an attachment for not paying the amount awarded against him {Corpe v. Gbjn (1832), 3 B. & Ad. 801 ; .1 L. J. (K S.) K. B. 272). Corporation. An attachment does not lie against a corporation for non-performance of an award {Guilford v. Mills (1666), 2 Keb. 1 ; Anon. (1666), T. Eaym. 152 ; London v. Lynn (1789), 1 H. Bl. 206 ; Mackenzie v. Sligo ^Sliannon Rail. Co. (1850), 9 C. B. 250 ; 19 L. J. C. P. 142). Any process of contempt for wilfully disobeying any "judgment or order "must be enforced by sequestration of the corporate property, or by attachment of the directors or officers thereof, or by a writ of sequestration against their property (Order XLIL, r. 31). 284 REFERENCE BY CONSENT OUT OF COURT Grounds of opposition to motion. Irregularity in demand or service. Any deficiency or irregularity in the demand, or any want of proper personal service of the rule, or award, or other necessary documents, may be shown to the Court as a ground of resisting the motion {'post, p. 287 et seq.). But no irregularity in the form of the affidavits on which the motion is made can now be relied on (Order XXXVIII., r. 14). Defects on face of the aivard. Objections to the validity of the award apparent on its face may be taken advantage of in answer to the motion for an attachment {Ptandcdl V. Randall (1805), 7 East, 81), even although the time limited for moving to set aside the award has expired {Pedley v. Goddard (1796), 7 T. E. 73). Misconduct of arbitrator, &c. The Court will not allow any extrinsic objections to be alleged {Butler, In re (1849), 13 Q. B. 341 ; Faidl v. Faidl (1833), 2 C. & M. 235). Xeither the partiality nor misconduct of the arbitrator (Brazier v. Bri/ant (1825), 10 Moore, 587; MacartJmr v. Camjjhell (1833), 2 A. & E. 52), nor apparently his omission to decide on some of the matters referred {Macarthur v. Camjjhell (1833), 2 A. & E. 52. See Wright v. Graham (1849), 3 Ex. 131; 18 L. J. Ex. 29), can be alleged in bar of an attachment. Reference cannot even be made to the plead- ings in a cause referred, even though brought before the Court by an affidavit identifying them, so as to show the award defective on its face {Davies v. Pratt (1855), 17 C. B. 183; 25 L. J. C. P. 71. See Bowc v. lawyer (1839), 7 Dowl. 691). Nor can advantage be taken in answer to a motion for attachment of any matter in difference within tlie scope of the submission which was not in fact brought before the arbitrator {Smith v. Johnson (1812), 15 East, 213). Au-ard made after time or sid)mission revoked. On one occasion the Court refused to allow a party to prove that the award was made beyond the limited period, or that the submission had been revoked {Holland v. Brooks (1795), 6 T. E. 161); in two subsequent instances, however, proof that the award was a nullity by reason of a revocation of the arbitrator's authority was held admissible and conclusive against the right to an attachment {MUne v. Gratrix (1806), 7 East, 608; King v. Josci^h (1814), 5 Taunt. 452). The refusal of the Courts in other instances, before the Arbitration Act, to set aside awards merely because the arbitrator's authority had been revoked, proceeding on the ground that the award was a nullity and could not be enforced, and that therefore the interference of the ENFORCEMENT OF AWARD 285 Court was unnecessary, shows clearly their opinion that the revocation would be a good answer to an application for an attachment {Doc d. Turnhdl v. Brotvn (1826), 5 B, & C. 384; Worrall v. Deanc (1833), 2 Dowl. 261). Since the Arbitration Act, revocation in answer to a motion for attachment must be of rare occurrence, for by s. 1 of that Act sub- missions to which the Act applies are made irrevocable, except by leave of the Court. If leave has been given, then only the mere act of revocation can be in question. Appointment of umpire hj arbitrators separately. The above-mentioned cases were commented on and afhrmed in principle in a later case where the Court allowed a defendant whom it was sought to attach for not obeying the award of an umpire, to^ show, for cause, that the appointment of the umpire had been signed by the arbitrators apart from each other, and that consequently the award was probably a nullity {Lord v. Lord (1855), 26 L. J. Q. B. 34; 5 E. & B. 404). Party not liable to attachment. If the party whom it is sought to attach falls under the class of persons against whom an attachment cannot be issued {ante, p. 283), he- may prove the fact by affidavits, and the motion will be dismissed. Avjairl per/o7'med as far as possible. A party may prove, in answer to the application, that he has per- formed the directions in the award as far as possible {Russell v. Yorke- (1837), 4 Scott, 422). But if, pending the reference, he sells the pro- perty in dispute, and thus cannot deliver it up pursuant to the award,, he may nevertheless be liable to attachment {Tyler v. Camjjbcll (1839), 5 Bing. K C. 192). Condition precedent. There is no contempt if any condition precedent to the attaching of the duty remains unperformed. Thus, when a defendant is ordered to execute a conveyance, if the plaintiff is bound to prepare and tender the conveyance, the refusal of the defendant to convey the land is no ground for attachment, unless the proper deeds have been tendered to him for execution {Standley v. Hemminytooi (1816), 6 Taunt. 561 ; Doe d. Clarice v. Stilhccll (1838), 8 A. & E. 645). Diity not distinctly ascertained by aboard. The award itself, though valid, may be so framed as to preclude a remedy by attachment. Thus an attachment will not be granted unless the whole and entire duty with which it is sought to charge the party 1286 REFERENCE BY CONSENT OUT OF COURT is distinctly ascertained by the award {Graham v. Darcey (1848), 6 C. B. 537; 18L. J. C. P. 61). If an award directs that A. or B. shall do an act, it seems doubtful whether an attachment can issue against either {Lawrence v. Hodason (1826), 1 Y. & J. 16). Mistake in airard. Where the arbitrator made a mistake in his award in the Christian name of the defendant, the Court refused to enforce it against the defendant by attachment {Lees v. Hartley (1840), 8 Dowl. 883; Davies V. Fratt (1855), 16 C. B. 586). Validity of award douhtfid. If there is any reasonable doubt as to whether the award is sufficient in law, or if the question turns on a disputed matter of fact and the affidavits are contradictory, the Court will refuse the application and leave the party to his action ; for if- an attachment issues the award must be obeyed, and there are no means of appealing against the decision of the Court and solemnly trying the validity of the award {Thornton v. Hornhj (1831), 8 Bing. 13 ; 1 L. J. (X. S.) C. P. 6; Stal- u-orth V. Inns (1844), 13 M. & W. 466 ; 14 L. J. Ex. 81 ; Hales v. Taylor (1726), 2 Stra. 695 ; In re Cargey (1822), 2 D. & Pt. 222 ; Lord v. Lord (1855), 5 E. & B. 404 ; 26 L. J. Q. B. 34 ; Mackenzie v. Sligo, &c., Bail. Co. (1850), 9 C. B. 250; 19 L. J. C. P. 142; Tattcrsall v. Parkinson (1848), 2 Ex. 342; 17 L. J. Ex. 208). Thus, where the parties agreed to abide by the award made by the " two arbitrators and their umpire," and the award was made by the two arbitrators only, the objection being taken that all three ought to have executed it, the Court con- sidered the point too doubtful to grant an attachment {Heat Jicriny ton V. RoUnson (1839), 7 Dowl. 192; 8 L. J. (X. S.) Ex. 148). The Court refused to grant an attachment or make absolute a rule to pay where the reference related to partnership transactions, and one of the partners, against whom the proceedings were taken, alleged that he did not authorise the action which was referred, nor the reference, of which he had had no notice until after the award, and that for years he had not interfered in the affairs of the firm : and the Court left the successful party to enforce the award by action {Bohertson v. Hatton (1857), 26 L. J. Ex. 293). A refusal by the Court to enforce an award by attachment does not decide on the validity of the award {Jackson v. Clarke (1825), M'Cl. & Y 200). An action can then be brought upon it (see a7ite, p. 265). Delay. After a long delay, for four years from the time when the award was made, Patteson, J., said he required an affidavit explaining the ENFORCEMENT OF AWARD 287 •delay before an attachment could be allowed (Storey v. Garnj (1840), S Dowl. 299). But in a later instance, though the above case was cited, Erie, J., held that a delay of two years and three months unexplained ■was no objection to proceeding by attachment {Baily v. Ourling (1851), .2 L, M. & P. 161 ; 20 L. J. Q. B. 235). Attachmetit together vith action on aivard. As it is considered vexatious to bring two separate proceedings for the same ground of complaint, the Court will not permit a party to enforce the award by action and attachment at the same time (Stock V. De Smith (1735), Cas. temp. Hardw. 106 ; Badley v. Loveclay (1797), 1 B. & P. 81). Attachment on discontinuing action. But an attachment has been allowed to issue on the plaintiff's undertaking to discontinue his action, although the more regular course is to discontinue the action and pay the costs of it first, and after that to apply to the Court for the process of contempt (Paidl \. Paull (1833), 2 C. & M. 235 ; 3 L. J. (N. S.) Ex. 11). The fact of an action having been commenced is no bar to the motion, provided it is not pending when the demand of performance is made, and it lies on the party resisting the application to show that it is pending (Higgins v. Willes (1828), 3 M. & E. 382; Baker v. Wells (1841), 9 Dowl. 323). Action after cdtachment. Where an action was brought on an award after the defendant had been taken into custody on an attachment, it was held that the plaintiff should be put to his election, and if he preferred to proceed with the action the attachment should be set aside and the defendant discharged out of custody on his entering into a bond to the plaintiff in the nature of bail (Earl of Lonsdale v. Whinnay (1835), 3 Dowl. 263 ; 4 L, J. (N. S.) Ex. 7). In one case, Wilde, C.J., stated his opinion that where a party who, having wilfully refused to perform an award, which he had the means of obeying if he chose, had been taken on attachment, and sentenced to a term of imprisonment for the contempt, he was not, after suffering the punishment, entitled to his discharge, or relieved thereby from an action on the award (B. v. Hemsivorth (1846), 3 C. B. 745). Demand of performance necessary. The party or parties entitled under the award must make a demand upon the party or parties liable under it to obey the directions of the arbitrator (Brandon v. Brandon (1799), 1 B. & P. 394; Doddington V. Hudson (1823), 1 Bing. 410; Sidvfen v. Swinfen (1856), 25 L. J. C. P. 363 ; 18 C. B. 485). 288 REFERENCE BY CONSENT OUT OF COURT A demand is necessary even where a time and place are specified for the performance of the award {Brandon v. Brandon (1799), 1 B. & P. 394). In such a case the Court may grant an attachment even though the demand is not made on or before the specified date, since- there is a continuing duty on the unsuccessful party to the arbitration proceedings to perform the award {Fie Craike (1839), 7 Dow, 603), unless the act to be done is subject to a condition precedent to be per- formed by the other party. If, for instance, the defendant is, " on or before a certain day," to execute a conveyance to be prepared by the plaintiff, the latter must tender the conveyance for execution on or before the day. If he allows the day to slip by, and demands execution afterwards, no attachment will be granted, and it seems he will be- wholly without remedy {Doe d. Williams v. Hovjell (1850), 5 Exch. 290 ; 19 L. J. Ex. 232). Deliberate evasion of the demand has been held to render a personal demand unnecessary {Smith v, Troup (1849), 7 C. B. 757 ; 18 L. J. C. P. 209). Order XLII., r. 1, provides that "where any person is by any judgment or order directed to pay any money, or to deliver up or transfer any property, real or personal, to another, it shall not be necessary to make any demand thereof; but the person so directed shall be bound to obey such judgment or order upon being duly served with the same without demand." But, as this rule applies only to judgments or orders, it is apprehended that the old practice as to makiuCT a demand of obedience to an award has not been altered, and that such a demand must still be made, unless an order for the enforce- ment of the award has been made under s. 12 of the Arbitration Act. No demand pending motion to set aside award. A demand to comply with the award, so as to bring the party into contempt, cannot be made while a rule for setting aside the award is pending; for while the validity of the award is under the considera- tion of the Court on a motion to set it aside, non-performance of its- directions is no contempt {Balling v. Matchett (1740), Willes, 215; Morris v. lieynolds (1704), 1 Salk. 73). Demand hy all i^at'ties. Where the arbitrator ordered the defendant to deliver a bond to the three plaintiffs, and only one demanded it, the Court refused an attach- ment, holding that the demand ought to have been made by all three, or have been made under a power of attorney executed by them all, so that the defendant might have known that it was by their joint authority {Sykes v. Haigli (1835), 4 Dowl. 114. See Drnv v. Woolcock (1854), 24 L.' J. Q. B. 22). ENFORCEMENT OF AWARD 289 What should he demanded. If the arbitrator awards on a matter not within his authority, the 'demand should be only in respect of what is well awarded, or it may be held bad as to the whole (see Whitehead v. Firth (1810), 12 East, 166; Fojjner v. IIatt07i (18-40), 7 M. & W. 211 ; Tattersall v. Parkinson (1848), 2 Ex. 342; 17 L. J. Ex. 208; Earl of Cardigan v. Henderson (1852), 22 L. J. Q. B. 83). Thus, where an arbitrator, without authority, awarded on the costs of the reference, and the demand was of one sum, including the costs, the rule for an attachment was dis- charged (f>trntt V. jRogers (1816), 7 Taunt. 213. See Spivi/ v. Webster (1833), 1 Dowl. 696; 2 L. J. (K S.) Ex. 38). Generally speaking, however, the demand of performance of an act beyond the power of the arbitrator to order will not vitiate the demand as to other matters properly awarded {Smith and Beeves, In re (1836), 5 Dowl. 513). The precise thing awarded should be demanded. ^ Where, on an award to pay money, and to deliver a wine warrant for a certain hogshead of wine lying in the docks, a demand of the money and of the hogshead of wine was made, the Court ordered an attachment for all excepting the wine, and refused it for that, a demand of wine not being equivalent to demanding the wine warrant, since the delivery of the wine would impose upon the party the payment of the dock dues, while the delivery of the warrant would not {Hemsioorth v. Brian (1845), 1 C. B. 131; 14 L. J. C. P. 134). By ichom demand may he made. The demand may be made either by the party himself or by an ■agent authorised by power of attorney {Laugher v. Laugher (1831), 1 Dowl. 384 ; Mason v. Whitehouse (1838), 6 Dowl. 602). A demand by the clerk of the party entitled is not necessarily enough {Hartley v. ^arloiv (1819), 1 Chit. 229). A distinction has, however, been taken between demanding money awarded and calling upon a party to [»erform other acts directed to be done. Thus, if an award directs the execution of certain deeds, the agent who tenders the deeds for execution need not be empowered by deed or power of attorney to make the demand {Lodge v. Forthouse (1774), Lotft, 388 ; Keiiyon v. Grayson (1804), 2 Smith, 61 ; Tehhutt v. Ambler (1843), 2 Dowl. (N. S.) G77 ; 12 L. J. Q. B. 220). A solicitor may demand the performance of an award as to costs {himan v. Hill (1838), 4 M. & W. 7; Mason v. Whitehouse (1838), 4 Bing. N. C. 692), or the payment of a sum awarded to be paid to the plaintiff or his solicitor, without a power of attorney {Hare v. Fleay (1851), 20 L. J. C. P. 249). 19 290 REFERENCE BY CONSENT OUT OF COURT Service of doc^iments. Documents necessary to he served. In general, besides the demand, in order to ground an attachment, there must be personally served on the party sought to be charged, at the time of making the demand, a copy of the award (Thomas v. Fuiivlings (1859), 28 L. J. Ex. o47). If an agent makes the demand, there must be personally left with the party a copy of the power of attorney or other authority under which the agent acts. From Bass V. 3Iaitland (1823), 8 Moore, C. P. & Ex. 44, it would appear that where the award directs the payment of taxed costs the Master's allocatur must be served. The originals of all these documents must be produced and shown at the time of serving the copies (E. v. Tooley (1700), 12 Mod. 312; Chanler v. Driver (1700), 12 Mod. 317 ; Gifford v. Gifford (1801), Forrest, 80 ; Bass v. Maitland (1823), 8 Moore, C. P. & Ex.. 44, contra ; Laugher v. Laugher (1831), 1 Dowl. 284; King v. Pachvood (1834), 2 Dowl. 570; Boyes v. Heivetson (1836), 2 Scott, 831; Doe d. Hickman v. Hichnan (1840), 1 S. C. N. E. 398 ; Tidd's Pr., 9th ed., 837), even if the party does not require to see them {Jackson v. Clarke (1824), M'Clel. 72 ; Reid v. Deer (1826), 7 D. & E. 612 ; R. v. Sloman (1832), 1 Dowl. 618). They need not be delivered into the hands of the party when produced to him. If they are shown so that he can. read them, it is sufficient {Calvert v. Redfearn (1834), 2 Dowl. 505).. Serving a copy of the award one day and showing the original two days afterwards, when the demand was made, was held insufficient {Lloyd V. Harris (1849), 8 C. P.. 63; 18 L. J. C. P. 346). Care must be taken that all copies served are correct {R. v. Ccdvert (1833), 2 C. & M. 189). Giving notice of enlargement of time. If the award has not been made within the period limited by the submission, but the time has been enlarged, notice of the enlargement, and that the award has been made within the extended time, must be given, in order to fix the party with a contempt {Hilton v. Hopioood (1814), 1 Marsh. 66). Mere verbal notice is sufficient. Though the submission requires that the enlargement should be made in writing, it is not necessary to produce the original to the party, or to serve him with a copy. It is enough to bring the knowledge of the enlarge- ment home to him in any manner {Doddington v, Baihrard (1839), 7 Dowl. 640; 8 L. J. (X. S.) C. P. 331). A recital in the award that the arbitrator has enlarged the time to a certain day does not, it seems, amount to a good notice, although the award purports to be made within the extended period {Davis v. Vass (1812), 15 East, 97). ENFORCEMENT OF AWARD 291 What is snffi.cic7it service. Tendering the copies of the proper documents to the party, and leaving them by him, is sufficient service, though he refuses to take them up {Ellis v. Giles (1836), 5 Dowl. 255). When personal service unnecessary. Formerly no attachment could be granted if personal service and a personal demand could not be effected, even when a party kept out of the way purposely to avoid service (Stunnell v. Tower (1834), 1 C. M. & E. 88 ; Doe d. Steer v. Bradley (1841), 1 Dowl. (K S.) 259 ; Thomas v. Rawlings (1859), 28 L. J. Ex. 347. See also Richmond v. Parkinson (1835), 3 Dowl. 703), though it has been said that personal service may not be necessary where it is begun and is then interrupted or pre- vented by an assault {per Pollock, C.B., in Thomas v, Raivlings (1859), 28 L. J. Ex. 347). Now, however, Order LXVIL, r. 6, provides for substituted or other service of any document where prompt personal service cannot be effected (see Bassett v. Bassett, [1894] 3 Ch. 179 ; 63 L. J. Ch. 844). Where it was proved that one of two unsuccessful parties had served the other with the rule and award in regular form, the Court, on an application against them both for non-performance, held personal service unnecessary, since personal knowledge of the award and rule had been brought home to both {Bower, In re (1823), 1 B. & C. 264). Practice. Motion or summons. Till modern times, every application for an attachment to enforce an award had to be made in open Court. It is apprehended that this is still the proper mode of procedure where no order has been made for the enforcement of the award under s. 12 of the Arbitration Act and the application is based upon the award itself. By the modern practice in the King's Bench Division, an application for attachment may be made to a judge at chambers {Salm Kyrhurg v. Posnanski (1884), 13 Q. B. D. 218; 53 L. J. Q. B. 428. See Amstell v. Lesser (1885), 16 Q. B. D. 187; 55 L. J. Q. B. 114); and where an order has been made for the enforcement of the award under s. 12 of the Act, an order for attachment in the King's Bench Division may in general be obtained by summons. The summons cannot be heard by a registrar in the Probate Division, nor by a Master in the King's Bench Division (Order LIV., r. 12); nor does Order LIV., r. 12a, which enables a Master to exercise all the powers conferred upon the Court or a judge by the Arbitration Act, seem to empower him to grant an attachment. In the Chancery Division the application ought to be made by motion in open Court {per Cotton, L.J., in Davis v. Galmoyc (1888), 292 REFERENCE BY CONSENT OUT OF COURT 39 Ch. D. 322; 58 L. J. Ch. 120), and if a summons is taken out the order must be made by a judge, not by the chief clerk. The judge in chambers will, if desirable, himself adjourn the application to open Court {per North, J., in Davis v. Galmoye (1889), 40 Ch. D. 355 ; 58 L. J. Ch. 338). Notice of motion. Order XLIV., r. 2, provides that " no writ of attachment shall be issued without the leave of the Court or a judge, to be applied for on notice to the party against whom the attachment is to be issued." By Order LIT., r. 2, no motion or application for a rule nisi or order to show cause shall hereafter be made to enforce an award or for attach- ment. And by Order LII., r. 4, every notice of motion to enforce an award, or for attachment, shall state in general terms the ground of the application (see Trehrrne v. Dale (1884), 27 Ch, D. ^Q ; Hipkiss v. Felloivs (1909), 101 L. T. 701); and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion. If not so served it is irregular, and the Court may refuse the attachment, or, if it has been granted, may set it aside. But the Court, if it pleases, may condone the irregularity {Wyggeston Hos^ntal, In re (1885), 54 L. J. Q. B. 248; Hampden v. Wallis (1884), 26 Ch. D. 746 ; 54 L. J. Ch. 83 ; Petty v. Daniel (1886), 34 Ch. D. 172 ; 56 L. J. Ch. 192 ; Taylor v. Roe (1893), €8 L. T. 213; Bcndell v. Grundy, [1895] 1 Q. B. 16; Wadham v. Lempriere (1885), 29 Sol. J. 725 ; Jeffries v. Jeffries (1907), 51 Sol. J. 572 ; Fla7it v. Mritt (1886), 30 Sol. J. 704). Service of notice of motion, A notice of motion must be given in every case {Eymle v. Gould (1882), 9 Q. B. D. 335 ; 51 L. J. Q. B. 425. See Jupp v. Coop)er (1879), 5 C. P. D. 26, where there was an order nisi ; Baigent v. Baigent (1S7 5), 1 P. D. 421), but need not be served personally. It may be served by leaving the notice at the place of residence of the party affected thereby (Solicitor, In re A (1880), 14 Ch. D. 152 ; 49 L. J. Ch. 295), or by service on his solicitor, if he has one (Browning v. Sabin (1877), 5 Ch. D. 511 ; 46 L. J. Ch. 728; Bichards v. Kitchen (1877), 25 W. R. 602. See Morris v. Fo2vler (1890), 44 Ch. D. 151 ; 59 L. J. Ch. 407). Under the old practice, if the party appeared to the rule nisi for an a,ttachment, he waived the necessity of personal service of that rule, even if, when he appeared to show cause, he took the objection that there had been no personal service of the rule (Levi v. Duncomhe (1835), 1 C. M. & R. 737). So also, if he consented to its enlargement, he could not afterwards rely on the want of such service (CartivHght v. Blackworth (1832), 1 Dowl. 489 ; Alcock, Ex parte (1875), 1 C. P. D. QB). ENFORCEMENT OF AWARD 293 Second ap2Mcation for attachment. In spite of the rule that an application once disposed of cannot be renewed under the same circumstances and for the same object, the Court will sometimes allow a second application for an attachment where a new fact is brought forward {Butler, In re (1849), 13 Q. B. 341). Affidavits in support of motion. An application for attachment must be supported by affidavit. All affidavits must be entitled in the High Court of Justice and in the Division in which they are to be used. But when there is no cause in Court, the affidavits should be entitled "In the matter of an arbitration between A. B. and C. D. And in the matter of the Arbitration Act, 1889 " (see Order XXXVIIL, r. 2). When the reference is of a cause, the affidavits on which the motion for an attachment is made must be entitled in the cause ( Wood V. Wehh (1789), 3 T. R. 253 ; Whitehead v. Firth (1810), 12 East, 166). Affidavit verifying avMrd. The affidavit on which the application is made must verify the award. The affidavit should in general state the date of execution, but where the award annexed to the affidavit bore a date within the time limited by the submission it was held sufficient {Higgins v. Street (1856), 25 L. J. Ex. 285). The affidavit should also state that the award has not been performed (see Gifford v. Gifford (1801), Forrest, 80). It is not necessary that the party entitled should himself make the affidavit {R. v. Paget (1841), 9 Dowl. 946). Where time enlarged. If the time for making the award has been enlarged, the affidavit should state the fact, and that the award was made within the enlarged time, and also that the party against whom the application is made has been served with notice of those facts (Wohlenberg v. Zageman (1815), 6 Taunt. 251). Where an arbitrator had power to enlarge the time for making his award by endorsement thereon, and exercised this power on two occasions, the award with the two endorsements being made a rule of Court, it was held, on a motion for a writ of attachment, that it was unnecessary to produce an affidavit that the endorsements were duly made {Dickins v. Jarvis & Smith (1826), 5 B. & C. 528). Affidavits must shoiv demand and service. It must be stated in the afifidavits that the steps previously shown to be necessary to bring the party into contempt have been taken. 294 REFERENCE BY CONSENT OUT OF COURT They must, therefore, show a proper demand of performance, and allege personal service, at the time of or prior to the demand, of a copy of the award, and, where an agent makes the demand under a power of attorney, of a copy of that document. They must also aver that at the time of such service the originals of these several documents were produced and shown. There must be an affidavit of the due execution of the agent's power of attorney, and it should if possible be made by the attesting witness, for there must be the proper legal evidence of the giving of the authority {Laugher v. Laugher (1831), 1 C. & J. 398). Performance of condition ^precedent. The affidavits must specifically aver the performance, or offer of performance, of every act necessary as a condition precedent to entitle the party to performance of the award, and readiness and willingness to perform every concurrent act {Smith and Reeves, Ln re (1836), 5 Dowl. 513; Standley v. Henimington (1860), 6 Taunt. 561. See Lindsay v. The Direct London & Portsmouth PmH. Co. (1850), 19 L. J. Q. B. 417). Misnomer of nmjnrc in a^davit. Where a true copy of the award had been served on the defendant, and the original duly shown to liim, a misnomer of the umpire in the affidavit of service was held immaterial {Smith ami Peeves, In re (1836), 5 Dowl. 513). Where award lost. Though the original award is usually produced and sworn to, yet if it is lost, on an affidavit stating that fact, a motion for an attachment may be made on a copy {Rohinson v. Davis (1722), 1 Stra. 526; Hill v. V. Toumscnd (1810), 3 Taunt. 45). Affidavit hy attesting witness. If an award is attested an affidavit of the attesting witness or one of the attesting witnesses is necessary, or, if such an affidavit is not produced, it is necessary to account for its absence. Illustration. A preHminary objection was taken against a rule for setting aside an award on the ground that there were two attesting witnesses to the award, and that no affidavit by either of them had been produced nor any affidavit accounting for such non-production. Coleridge, J., over- ruled the objection, saying that "such an affidavit was unnecessary, except in cases where applications were made to enforce awards by attachment. In those instances, if such an affidavit was not produced, it was necessary to account for its absence" {England v. Davison (1841), ■9 Dowl 1052). ENFORCEMENT OF AWARD 1^95 Cross ^notions. Cross motions for an attachment and for setting aside the award have sometimes been heard together {King v. Joseph (1814), 5 Taunt. 452). Staying ijroceedings on terms. When there is any fair ground for giving indulgence to a party in contempt, though it is not sufficient to induce the Court to refuse or set aside the attachment, the Court may direct it to be stayed for a certain period in the office, or impose such terms as seem equitable {Caila V. Elgood (1822), 2 D. & R. 193; Smith and Reeves, In re (1836), 5 Dowl. 513 ; Tyler v. Campbell (1839), 5 Bing. N. C. 192). Proceedings on attachment. The attachment must be taken to the sheriffs office and a warrant obtained on it, and on this warrant the sheriff's officer will arrest the party (2 Arch. Pract., 14th ed. 952). See also the Crown Office Rules, 1886, rr. 261-276, affecting the practice on the Crown side of the Court of Queen's Bench). By Order XLIV., r. 1, "A writ of attachment shall have the same effect as a writ of attachment issued out of the Chancery Division has heretofore had." Setting aside attachment. If an attachment has been irregularly obtained, it will be set aside j but when an attachment has been granted on the usual affidavit of service, the Court will not set it aside on the mere affidavit of the party that he has never been served, unless he can show some mistake in the service, as that another person has been served for him ; since, as process is usually served without a witness, it would lead to great inconvenience if a different rule should prevail {Hoplcy v. Granger (1805), 1 B. & P. K R. 256). Disobedience not inirged by imprisonment for a term. The non-performance of an award is not purged by a definite period of imprisonment ; the prisoner may at the expiration of the term, if the award then remains unperformed, be again brought up to answer for his continuing contempt. Nor is he thereby relieved from an action on the award {R v. Hemsworth (1846), 3 C. B. 745). Ante, p. 287. Costs. Costs are in the discretion of the Court, and should be asked for when the writ is applied for {Abud v. Riches (1876), 2 Ch. D. 528. See Order LXV., r. 1). If an order is made that the defendant be dis- charged from an attachment on certain terms, and on payment of the 296 REFERENCE BY CONSENT OUT OF COURT costs of the attachment, such costs will include the costs of an enquiry before the Master, rendered necessary by the defendant's conduct {Tyler V. CampMl (1S39), 5 Bing. N. C. 192). If the motion is dismissed on a preliminary objection without costs, the party taking the objection may be allowed, without waiving his advantage, to go into the merits, so as, if successful on them, to have the motion dismissed with costs {In re Chamberlain (1840), 8 Dowl. 686). 7. Enforcement of award by rule to pay amount awarded. In old times, when there was no cause in Court, though the sub- mission was made a rule of Court, there was no summary method of enforcing payment of a sum of money awarded by levying it out of the debtor's property {Doe v. Amey (1841), 8 M, & W. 565). It is true the amount might have been recovered by action on the award, and then execution might have issued on the judgment against the defendant's goods and lands, but the process was slow and expensive. The penal process by attachment was also open, but if the party was out of the jurisdiction of the Courts, he could not be attached, and if, after being arrested, he chose to lie in prison, in neither case, however ample the property, could satisfaction of the debt be obtained. The Judgments Act, 1838 (1 & 2 Yict. c. 110), s. 18, which is set out ante, p. 259, gives to a rule of Court for the payment of money the effect of a judgment, and so affords a simple and summary method of obtaining execution as on a judgment for the amount awarded, whenever the submission can be made a rule of Court. Discretion of Court. The power to grant such a rule is not given by this statute. It existed previously by virtue of the inherent authority of the Courts, and was not exercised previously because before the Act such a rule coitld have been enforced only by attachment. The power to grant such a rule is discretionary, and in the exercise of their discretion the Courts were guided by much the same principles as influenced them in allow- ing or refusing an attachment {Cresvnclx. v. Harrison (1850), 20 L. J. C. P. 56 ; Lainrj v. Todd (1853), 13 C. B. 276). But they might grant a rule to pay, though not an attachment, where the award contained no order to pay the amount which was found to be due {Baler v. Cotterill (1849), 7 D. & L. 20 ; 18 L. J. Q. B. 345 ; Boicen v. Bou-en (1862), 31 L. J. Q. B. 193). The Court would not refuse a rule merely because the successful party had, since the award, been sent to take his trial on a charge of perjury alleged to have been committed by him before the arbitrator, no application having been made to set aside the award on the ground of the alleged perjury ( ^oo^/m v. Bradford (1864), 33 L. J. Q. B. 129). ENFORCEMENT OF AAVARD 297 When rule refused. A rule would be refused when the right was doubtful, as when an attorney who claimed a lien on the amount awarded sought in this way to enforce it {Eolcroft v. Manby (1844), 2 D. & L. 319; Lloyd v. Manscll (1853), 22 L. J. Q. B. 110 ; Breary v. Kemp (1855), 24 L. J. Q. B. 310), or when the validity of the award seemed questionable, for the parties ought to have an opportunity of raising their objections to the award for deliberate decision {Haivhins v. Benton (1845), 2 D. & L. 465 ; 14 L. J. Q. B. 177; Dickenson v. Allsop (1845), 13 M. & W. 722; 14 L. J. Ex. 136 ; Graham v. Darcey (1848), 6 C. B. 537; 18 L. J. C. P. 61). If the party was proceeding to obtain the benefit of the award by any other legal proceeding at the time of applying for the rule, it would be refused ; but where the party had merely filed an affidavit of debt with a view of making the defendant a bankrupt, and the latter had entered into a bond conditioned to pay what might be found due- in an action, the Court, as no action had been commenced, granted the rule on the party undertaking not to bring an action on the award {Mcndcll V. Tyrrell (1841), 9 M. & W. 217; 12 L. J. Ex. 121). In Bobertson v. Ration (1857), 26 L. J. Ex. 293, the Court refused to make absolute a rule to pay, but left the successful party to enforce the award by action, where the reference related to partnership trans- actions, and one of the partners, against whom the proceedings were taken, alleged that he did not authorise the action which was referred,., nor the reference, of which he had had no notice until after the award, and that for years he had not interfered in the affairs of the firm. Set-off. Where an award ordered the defendants to pay to the plaintifts a certain sum, and it appeared on the face of the award that there were other claims and other accounts between the parties than the one on which the arbitrators decided, and in the view of the Court there was a honil-fide cross-claim for a larger amount than that recovered by the award, which claim the defendants might reasonably hope to support by way of set-off', it was held, on an application by the plaintiffs for a rule nisi directed to the defendants to pay the sum found due by the award, that the defendants must be given an opportunity of raising their claim and that the rule must be discharged (Sivaync v. White- (1862), 31 L. J. Q. B. 260. See also Lamhc v. Jones (1860), 9 C. B. (N. S.) 478). Lands Clauses and Puhlic Health Acts. When an arbitrator has awarded compensation on a reference under the Lands Clauses Act, 1845, the claimant cannot enforce payment by means of a rule to pay, if it appear on the face of the award or by affidavit that there is a substantial question as to the claimant's right- 298 REFERENCE BY CONSENT OUT OF COURT to recover, but the party will be put to his action for the amount {New- hold and The Metroijolitan Bail. Co., In re (1863), 14 C. B. (K S.) 405). The same course will be followed on a reference under the Public Health Act, 1875 {Walker and Beckenliam Local Board, In re {1^'^^), 50 L. T. 207). With regard to costs also, if the arbitrator under the Lands Clauses Act has by a separate subsequent instrument settled the amount of the party's costs, the latter cannot in any case, it seems, have a rule calling on the promoters to pay them. His remedy is by action {London & North- Western Bail. Co. v. Quick (1849), 5 D. & L. 685 ; 18 L. J. Q. B. 89). Bide to pay no longer of advantage. Although the procedure under the Judgments Act, 1838, is not in terms abolished, yet, as the provisions of s. 12 of the Arbitration Act afibrd a readier mode of arriving at the same result, there would seem to be no longer any advantage to be gained by applying for a rule under the earlier statute. Bractice. The practice with regard to obtaining a rule to pay being regulated generally by the same considerations as are applicable to obtaining an order for attachment (see Tatterscdl v. Barkinson (1848), 2 Ex. 342; 17 L. J. Ex. 208 ; Hawkins v. Benton (1845), 2 D. & L. 465 ; 14 L. J. Q. B. 9, 177), it is considered that what has been said with regard to proceed- ings for attachment (see p. 291 ct sec/.) will afibrd sufficient information on the point. As in cases where the award is sought to be enforced by attachment, so before a rule to pay can be made absolute, personal service is generally essential. Where the party against whom enforce- ment was desired was absent from home and could not be served personally, acceptance by his attorney of service of the rule and consent by him to its being made absolute were held to be insufficient {Evans v. Brosscr (1865), 34 L. J. Q. B. 256). 8. Enforcement of award by mandamus. Where a public company was authorised by Act of Parliament to sue and be sued in the name of its treasurer, who was not to be liable in his own person or goods by reason of his being defendant in any such action, and all costs incurred by him in prosecuting or defending any action for the company were to be defrayed out of the moneys applicable to the purposes of the Act ; and where two actions between the treasurer eo ownvme and another person were referred to an arbi- trator, who awarded against the treasurer in both actions with costs, the Court, having regard to the terms of the Act by which the treasurer was protected against personal liability, refused an attachment against him for non-performance of the award, but granted a mandamus to the ENFORCEMENT OF AWARD 299 treasurer and directors of the company directing them to pay the sums awarded and the costs, or cause the same to be paid to the successful party {Corpe v. Glyn (1832), 3 B. & Ad. 801 ; 1 L. J. (N. S.) K. B. 272; Rex V. .S'^;. Katharine Dock Co. (1832), 4 B. & Ad. 360 ; 2 L. J. (K S.) K. B. 67). In arbitrations under the Lands Clauses Acts a mancUtmus may be issued to compel the promoters to take up the award if they neglect to do so, and they are bound to pay the arbitrator his fees on taking it up {R. V. South Devon Rail. Co. (1850), 15 Q. B. 1043 ; 20 L. J. Q. B. 145 ; R. V. West Midland Rail. Co. (1862), 10 W. E. 583). Though they join in the arbitration under protest, the promoters are bound to take up the award and furnish a copy to the claimants, and may be compelled by mandamus to do so, but the validity of the award may be contested afterwards {London & North Western Rail. Co. v. Walker, [1900] A. C. 109 ; 69 L. J. Q. B. 367). The process of enforcing an award is the same under the Light Eailways Act, 1896 (59 & 60 Vict. c. 48) {R. v. Barton, &c., Rail. Co., Ex parte Simon, [1912] 3 K. B. 72 ; 81 L. J. K. B. 964). 9. Enforcement of part of an award. Bad part seixtrahle. Though before the time of James I., according to Holt, C.J., an award void in part was considered void and unenforceable altogether {Furlong v. Thornigold (1702), 12 Mod. 533), it is now quite clear that an award bad in part may often be good for the rest. The bad part must, however, be clearly separable for the award to be good for the residue, and when it is so divisible the faulty direction alone will be treated as null {Barton v. Ranson (1838), 3 JM. & W. 322. See also ante, pp. 233-235). Thus, where the plaintiff seeks to enforce an award which orders the defendant to pay him a specified sum, and also the amount of the costs of an action between them, and the arbitrator has no such power over the costs as he assumes, and consequently the direction as to costs is void, yet if the latter is clearly separable from the other portion of the award, the Court will compel the defendant to perform the rest of the award and to pay the sum awarded {Aitcheson v. Cargey (1824), 2 Bing. 109. See also Candler v. Fuller (1738), Willes, 62). Where the award orders the defendant to pay one sum to the plaintiff and another to a stranger, or to execute a lease for life of certain lands to the plaintiff, with remainder in fee to a stranger, the defendant may be compelled to give the plaintiff what the award directs, tbougli he is not bound to obey the arbitrator as far as regards the stranger (Bretton V. Prat (1600), Cro. Eliz. 758; Bac. Ab. Arb. E 1; Com. Dig. Arb. E 14. See also Ingram v. Milnes (1807), 8 East, 445). So if, on a submission respecting suits for tithes, the award orders 300 REFERENCE BY CONSENT OUT OF COURT all suits between the parties to cease, there being suits for other things- depending between the parties, the award is void as to the suits for the other things and good as to the suits for tithes ( JVehb v. Ingram (1628),. Cro. Jac. 663). Though the award may be deficient as to a matter within the sub- mission, if this is separable, the rest of the award may often be supported. Thus, if the arbitrator, having power over the costs, omits to determine the amount of costs, which he ought to have ascertained and which cannot be taxed, the Court will, if the party to whom they are awarded agrees to waive them, set aside the award as regards the costs, but will enforce it as to the rest {Addison v. Gray (1766), 2 Wils. 293 ;. Lloyd and Spittle, In re (1849), 18 L. J. Q. B. 151 ; 6 D. & L. 531). Bad part inseparable. If the objectionable provisions in the award are inseparable from the- rest, or not so clearly separable that it can be seen that the part of the award attempted to be supported is not at all affected by the faulty portion, the award will be altogether unenforceable (Storke v. De Snieth (1738), Willes, 66; Buccleuch {Duke) v. 3Ietro2)olitan Board of Works {1872), per Blackburn, J., 39 L. J. Ex., at p. 136 ; L. Pw 5 Ex., at p. 229). Ante, p. 234. Where by a submission the validity of a poor rate, the costs of preparing for an appeal to the sessions respecting it, and the costs of the reference were left to arbitrators, who awarded on each matter, the majority of the Court of Exchequer held that, as the chief subject- matter, namely, the rate, was one which could not lawfully be referred to arbitration, the award respecting it was void, and being void as the principal matter, it was void as to the costs also {Thorp v. Cole (1835)^ 5 L. J. (N. S.) Ex. 24, 281 ; 2 C. M. & E. 367). Where an arbitrator, who had to settle the terms of a lease, among other things ordered the premises to be put in repair to the satisfaction of a third party named, this provision, being void as a delegation of authority, was held to render the whole award void {Tomlin v. Fordivich Corporation (1836), 5 L. J. (N. S.) K. B. 209 ; 5 A. & E. 147). If, by the nullity of the award in any part, one of the parties can- not have the benefit intended as a recompense or consideration for that which he is to do, the award will usually be treated as wholly void (Bac. Ab. Arb. E 3 ; Eolle, Ab. Arb. K 8, p. 253 ; Com. Dig. Arb. E 14 • Winch V. Sanders (1621), Cro. Jac. 584. See notes to Pope v. Brett (1670), 2 Saund. 293 b). Thus, where the payment of a sum of money was directed to be made to A., on A., his wife, and son conveying an estate, as the wife and son were not parties to the submission, tlie direction as to them was void, and therefore the whole award was void, since the party could not enforce the intended equivalent for which his money was to be paid {Barney v. Fairchild (1638), Kolle, Ab. Arb. N 9, p. 259), POWER TO ORDER WRITS OF SUBPCENA, ETC. 301 10. Enforcement of award after bankruptcy of party. The validity of an award is not necessarily affected by the fact that a party, after entering into the submission, became bankrupt before tlie ■execution of the award {Edivards, Ex parte (1886), 8 Morrell's Bank. Eep. 179); and the award may, nevertheless, be enforced as in other <;ases. If, however, nothing but the question of the liability of a party to a debt, or of the amount of a debt owing by him, was referred, and after the reference, but before the award, he became bankrupt, the fact of the arbitrator having awarded against him does not preclude him from claiming the benefit of the bankruptcy law to relieve himself from liability in respect of all debts from which, had there been no reference, he would have been discharged. In such eases the award will be set aside {B. v. Bingham (1831), 2 Tyrw. 46). Where, after an award for the plaintiff in an action for the balance of an account, the defendant, before judgment was entered on the verdict taken subject to the reference, committed an act of bankruptcy by filing a declaration of insolvency, and giving notice thereof immedi- ately to the plaintiff, the Court allowed the plaintiff to prove as a creditor for the amount awarded and for interest and costs {Harding, Ex parte (1854), 5 De G. M. k G. 367). Benalty in arbitration bond a good petitioning creditor's debt. When a party failed to perform an award, in consequence of which the arbitration bond was forfeited, the penalty, until the award was set aside, became a sufficient petitioning creditor's debt to support a com- mission of bankruptcy. The mere filing of a bill in Chancery to impeach the award did not suspend its effect or make the debt insufficient iLingood, Ex parte (1742), 1 Atk. 240). Sections 13 to 17. See PAET II. KEFEEENCES BY OEDEE OF THE COUET. Section 18. POWEE TO OEDEE WEITS OF SUBPa:NA OE HABEAS COEPUS. 18. (1) The Court or a judge may order that a writ of subpoena ad testificandum or of subpoena duces tecum shall issue to compel the attend- ance before an official or special referee, or before any arbitrator or umpire, ■of a witness wherever he may be within the United Kingdom. 302 REFERENCE BY CO^SE^T OUT OF COURT (2) The Court or a judge may also order that a writ of habeas corpus ad testificandum shall issue to bring up a prisoner for examination before an oflQicial or special referee, or before any arbitrator or umpire. Subs. (1) of this section appears to be based upon s. 1 of the Attendance of Witnesses Act, 18.54 (17 & 18 Vict. c. 34), which was passed to enable any of the Superior Courts in England, Scotland, or Ireland to compel the attendance of witnesses who were resident out of their respective jurisdictions in any part of the United Kingdom to give evidence in any action or suit depending in any such Court. Ss. 3 and 4 provide for the punishment by the Court of the country in which the process is served of any person who does not obey the writ after tender of a proper sum for expenses. Xo provision is made in the Arbitration Act for punishing persons for disobedience to writs issued in pursuance of an order under 8. 18 (1). If the witness is within the jurisdiction of the Court (i.e. in England or Wales) the writ may be issued under s. 8 of the Arbitration Act without any order of the Court, and disobedience to it after tender of a reasonable sum for conduct money and expenses may be punished as a contempt of Court (see coite, p. 151). But it would seem that in the case of a submis- sion by consent out of Court (where there is no action or suit depending), a witness in Scotland or Ireland may disobey the writ with impunity,, though it is issued in pursuance of an order of the Court. An application for an order under s. 18, supported by affidavit, may be made ex parte to a Master in chambers. Section 19. STATEMENT OF CASE PENDING AEBITEATION. Object and effect of the section. Refusal to state a case. Agreement by parties not to ask for case to be stated. Application of section to statutory arbitrations. Statement of case. Procedure. Appeal. Costs. 19. Any referee, arbitrator, or umpire may at any stage of the proceed- ings under a reference, and shall, if so directed by the Court or a judge, state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference. Object and effect of the section. The object of this section is to give the Court a control over arbitra- tions while they are still proceeding, and " any stage of the proceedings " STATEMENT OF CASE PENDING ARBITRATION 303 lias been held to mean any stage before the proceedings have come to an end by a completed award {Tabcriiacle Permanent Building Society v, Kaifiht, [1892] A. C. 298). Before the Arbitration Act the remedy of a party, if the arljitrator was going wrong in law, was to apply to the Court for leave to revoke the submission ; " now it may he extremely difficult for a party to make such a case to a Court as will induce them to make an order giving leave to revoke the submission" (ijer Lord Halsbury, L.C., ihicL, at p. 301). Where proceedings are taken by a party to set aside an award which discloses on its face some erroneous decision of law, which might have been raised during the arbitration proceedings by asking for a case to be stated, the provisions of the section may have some bearing upon the success of the application. The Court is strongly opposed to a party lying by, and then, if the award is not in his favour, seeking to have it set aside upon some ground which he might have raised during the proceedings. In London Dock Co. v. Shadtrcll (1862), 7 L. T. 381, the submission contained a clause giving either party power to call upon the umpire to state a case. The parties allowed the umpire to make his award without calling upon him to state a case, and after the award was made the umpire stated the principle upon which he had acted. The appellants then came to the Court to set aside the award on the ground that the principle on which the umpire had acted was bad in law. Cockburn, C.J., said : " You allow the opportunity to go by and take your chance and then come here putting all the parties to great expense. It cannot be permitted." Refusal to state a case. The power of the arbitrator to state a case under the section is discretionary, subject to this, that he must respect the right of either party to apply to the Court for an order directing him to state in the form of a special case any question of law arising in the course of the reference. Illustration. A party to an arbitration applied to the arbitrators to state a case on a point of law, or, if they declined to do so, to adjourn the further- consideration of the matter until the party had had an opportunity of applying to the Court for an order that a case should be stated. The arbitrators refused to state a case, and on the same day made an award. Held that j»rimr2 /«ae this was a breach of duty, although, if the applica- tion were frivolous and merely for the purpose of delay, the arbitrators would have been right to refuse it, and would have been upheld by the Court in so doing. In the circumstances the matter was sent back for reconsideration {Palmer & Co. and Iloslcen & Co., In re, [189S] 1 Q. B. 1.31; 67 L. J. Q. B. 1). In Li re Pcdiner & Co. and Hoskcn & Co. {siqrra), Chitty, L.J., said : •304 REFERE^CE BY CONSENT OUT OF COURT " It seems to me that the Legislature intended to confer on the Court or a judge a discretionary power to be exercised according to the circumstances of the case over arbitrators in reference to questions of law, at least to this extent, namely, that when a request for a case is made in good faith and on reasonable grounds, and the request is made for an adjournment for the purpose of applying to the Court or a judge, the arbitrator, by summarily making his award, ought not to preclude or attempt to preclude the party from applying to the Court." In the same case, Liudley, M.K., said: [S, 19] "impliedly confers on the parties to an arbitration the right to apply to the Court for an -order directing the arbitrator to state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference. The right thus conferred must be respected by the arbitrator." It is not misconduct, therefore, for an arbitrator to refuse to state -a case, provided that he gives to either party a reasonable opportunity of applying to the Court for an order directing him to do so. The arbitrator would be guilty of misconduct if he imposed an improper condition as a term of his stating a case on a question of law for the opinion of the Court. Illustration. An arbitrator on being asked to state a case replied that he would do so, but must first ask for £150 on account of legal expenses, &c. Held that this was an exorbitant and improper demand, and showed misconduct on the part of the arbitrator {In re Enoch and Zaretzky, Bock & Co., [1910] 1 K. B. 327). Agreement hy 'parties not to ask for case to he stated. A question arises whether the parties, by the terms of the sub- mission, can exclude the discretion of the Court to direct the arbitrator to state a case under the section. Prior to the Arbitration Act the Court, except in the case of the East and West India Docks Co. v. Kirk tt Randall (1887), 12 App. Cas. 738, refused to give leave to revoke, except in the event either of some clear departure by the arbitrator from his jurisdiction, or his refusing jurisdiction or failing to do all that his jurisdiction required him to do (see commentary on s. 1, ante, p. 53 et seq. ; ^;er Denman, J., in James v. ■James (1889), 22 Q. B. D. 669, at p. 673). Lindley, L.J., in James v. James, in the Court of Appeal (1889), 23 Q. B. D. 12, at p. 15, said that he did not " understand the case of East and West India Docks Co. V. Kirk & Randall as laying down any general rule opposed to what liad been the ordinary practice previously." The Courts were careful, therefore, to preserve the position of an arbitrator as final arbiter of fact and law, if the facts and the law were submitted to his decision. STATEMENT OF CASE PENDING ARBITRATION 305 S. 19 introduces a new method by which the arbitrator or the parties may consult the Court upon questions of law, but it would seem that the parties may stipulate by the submission for the final decision of the arbitrator, both as to law and fact, without the advice of the Court, thus preserving the position in which the parties have always been at liberty to place the arbitrator and to take him "for better or worse." The Court of Appeal in In re Nuttall and Lynton & Barnstajjle ruiil Co. (1900), 82 L. T. 17, ordered a ease to be stated under s, 19, where the terras of the submission were very wide and the decision of the arbitrator was to be conclusive and binding on both parties. The direction in this case to the arbitrator to state a special case did not destroy the conclusiveness of the arbitrator's decision, and Williams, L.J., said : " I think that it would be unfortunate if we had to put that construction upon the Act, that the parties could not finally or absolutely submit the questions between them to the decision of an arbitrator." But in In re Heinhold and Hansloh (1895), 1 Com. Cas. 215, Matthew, J. (in chambers), ordered the arbitrators to state a special case upon a question of law arising in the reference, notwith- standing that a clause in the submission provided that "Neither buyer, seller, trustee in bankruptcy, nor any other person as aforesaid, shall require, nor shall they apply to the Court to require, any referee, arbitrator, or umpire to state in the form of a special case, for the opinion of the Court, any question of law arising in the course of the reference, but such question of law shall be determined by arbitration in manner herein directed." It is submitted that it cannot be against public policy that parties should stipulate for the decision of an arbitrator without consulting the Court or any lawyer, and that such a clause is not void as ousting the jurisdiction of the Court (see ante, p. 73 et seq.). There was a clause similar to the above in the case of Montgomery, Jones c& Co. and Lielenthal & Co., In re (1898), 78 L. T. 406. In that case Smith, L. J., said : " It is contended that this latter part of the clause violates the rule against ousting the jurisdiction of the Courts ; that s. 19 of the Arbitration Act, 1889, gives the Court jurisdiction to direct arbitrators to state questions of law in a special case for the opinion of the Court ; and that the parties cannot by any agreement oust that jurisdiction. This clause does not purport to oust the juris- diction of the Court, but only contains a term of the agreement to refer to the arbitration of a layman. It is not, however, necessary to decide this point, and I do not propose to decide it " (see also Jones v. Victoria Graviny Bock Co. (1877), 2 Q. B. D. 314). In Lohitos Oilfields v. Admiralty Commissioners (1917), 86 L. J. K. B. 1444, it was held, in a reference to the Admiralty Transport Arbitration Board of a dispute as to the rate of hire and liability for loss of a 20 306 REFERENCE BY CONSENT OUT OF COURT requisitioned ship, that a rule providing that the award should be final and conclusive, and should not be subject to appeal or review, did not exclude the jurisdiction of the Court to order a case to be stated on a point of law. In Gray, Laurier & Co. and Boustead & Co., In re (1892), 8 T. L. R. 703, the Court appears to have followed the same practice as had been the practice of the Court in cases of revocation, and refused to direct a case to be stated on a question of the construction of the contract when every question arising out of, or relating to, the construction of the contract was agreed to be left to arbitration. The Court (Wright and Collins, J J.) said : " The fact of there being a question of law to be decided was not sufficient ground for a case to be ordered unless there was some evidence that the arbitrators were going beyond their jurisdiction, or were about to act contrary to law." Application of section to statutory arbitrations. It is not infrequently provided in statutes that, notwithstanding anything contained in the Arbitration Act, 1889, the arbitrator shall not be compelled to state a special case on any question of law arising in the case, but may do so on the request of either party, e.g. the Building Societies Act, 1894 (57 & 58 Vict. c. 47), s. 20, and Friendly Societies Act, 1896 (59 & 60 Vict. c. 25), s. 68 (7). Where the Local Government Board are appointed by a private Ace to decide disputes between local authorities, and are thereby made judges and not arbitrators by consent, they cannot state a case {Bexlcy Local Board v. West Kent Main Sewerage Board (1882), 9 Q. B. D. 518 ;. 51 L. J. Q. B. 456). But an arbitrator appointed by the Local Govern- ment Board, in a case where that Board is required to determine differences under s. 63 of the Local Government Act, 1888 (51 & 52 Vict. c. 41), may state a special case for the opinion of the Court pending the reference, and if he refuses, may be directed to do so under s. 19 of the Arbitration Act {In re Kent County Council and Sandgatc Local Board, [1895] 2 Q. B. 43 ; 64 L. J. Q. B. 502). Statement of case. In stating a case the arbitrator should find the facts material for the decision of the point or points of law on which the opinion of the Court is to be given. The Court will not decide the method for ascer- taining a fact, and will only decide questions of law upon facts found by the arbitrator. " The Courts have from time to time given decisions as to what are and what are not proper considerations in arriving at a conclusion on that subject when the facts are found before them. But the case as stated in each of the alternative propositions suggests to your Lordships for decision questions of fact, and even suggests the question STATEMENT OF CASE PENDING ARBITRATION 307 which of two alternative methods is the best for arriving at the conclusion of fact. My Lords, no Court has ever given directions in such a case " {per Lord Halsbury, L.C., in North & South Western Junction Bail. Co. v. Assessment Committee of the Brentford Union (1888), 13 App. Cas. 592 ; 58 L. J. M. C. 95). Procedure. "When a party wishes to have a special case stated under the sec- tion he must formulate the question of law upon which he wishes the case to be stated and request the arbitrator to state it. If the arbi- trator refuses to state a case the party should request him to adjourn the proceedings to enable him to apply to the Court, unless it can be arranged that the hearing of some other matter comprised in the submission can be proceeded with. The party should then make an application in chambers l^y originating summons before a Master, supported by an affidavit or affidavits, for an order that the arbitrator be directed to state a case. Such an application can be made, notwithstanding that the arbitrator has expressed no opinion adverse to the party making the application {In re Spillers & Baker, Ltd. and Leetham & So7is, [1897] 1 Q. B. 312 ; 66 L. J. Q. B. 326). A^jpeal. An appeal lies to the judge in chambers from a decision of the Master directing, or refusing to direct, the arbitrator to state a case. The order of the judge in chambers not being a " matter of practice and procedure " in a cause or matter in the High Court within the meaning of s. 1. (4) of the Judicature Act, 1894, no appeal lies from such an order to the Court of Appeal {In re Frere and Staveley, Taylor & Co. and North Shore Mill Co., [1905] 1 K. B. 366 ; 74 L. J. K. B. 208), but an appeal lies, with leave, to a Divisional Court and thence to the Court of Appeal. The order being interlocutory (see In re Croasdell and Camvull, Laird & Co., [1906] 2 K. B. 569 ; 75 L. J. K. B. 769), the appeal must be by four days' notice, and must be brought within fourteen days (Order LVIIL, rr. 3, 15). No appeal lies from the decision of the High Court on the special case when stated, the functions of the Court being consultative only {In re Knight and the Tabernacle, &c.. Building Society Arhitration, [1892] 2 Q. B. 613 ; 62 L. J. Q. B. 33). In this respect there is a distinction between an award stated in the form of a special case under s. 7, and a special case stated in the course of the reference under s. 19 {^ihid. See ante, p. 141). In In re Holland Steamship Co. and Bristol Steam Navigation Co. (1906), 95 L. T. 769, an award which purported to be made in the form of a special case under s. 7 stated as the question for the opinion of the Court, " Whether our construe- 308 REFERENCE BY CONSENT OUT OF COURT tion of the contracts upon the two points above stated is correct. If both points are correctly decided, this, our award, is to stand. If either or both points is or are wrongly decided, the matter is to be remitted to us to give effect to the true construction of the contract in our interim and final awards." It was held that the special case must be deemed to have been stated under s. 19, and that therefore no appeal lay to the Court of Appeal. Though no appeal lies from the decision of the Court on a special case stated under s. 19, it is competent for the Court of Appeal and the House of Lords to review such decision when it is incorporated in the award of the arbitrator, if the validity of the award is subsequently questioned on the ground that it is erroneous in law on the face of it. Illustration. An arbitrator consulted the Court by a special case stated under s. 19 of the Arbitration Act, 1889. The case was argued before a Divi- sional Court and judgment was given. The arbitrator then made his award, reciting the opinion of the Divisional Court. The unsuccessful party then moved to set aside the award on the ground that it contained an error in law on the face of it. Held, that though the judgment of the Divisional Court on the special case could not be appealed against, the opinion of the Divisional Court, if wrong, when recited in the award, was an error on the face of the award, and the award was sent back to the arbitrator (British Westinglwuse Electric Co. v. Underground Electric Rail. Co., [1912] A. C. 673). Costs. By virtue of s. 20 of the Act an order directing an arbitrator to state a case may be made on such terms as to costs or otherwise as the Court thinks just. But if the arbitrator states a special case, whether, in the first instance, at the request of a party or by tlie order of the Court, the Court's jurisdiction on the hearing of the case is consultative only, and it has no power to make any order as to the costs of stating the ease or the arguments thereon, except where the case has been stated by the order of the Court, and the Court in that order reserved the cpestion of costs {In re Knight and the Tabernacle Building Society Arhitration, [1892] 2 Q. B. 613). Except in so far as they are dealt with in the order of the Court directing a case to be stated, the costs of the special case are in the discretion of the arbitrator, who ought to deal with them by his award and should be requested to do so. Such costs are part of the costs of the reference and award within the meaning of clause {i) of the First Schedule. They are, however, also " costs incidental to the arbitration " within the meaning of s. 3-1 of the Lands Clauses Act, 1845 {Sidney v. North Eastern Bail. Co., [1916] 2 K. B. 760). EXERCISE OF POWERS BY MASTERS AND OTHER OFFICERS 309 Section 20. COSTS OF OEDEKS UNDER THE ACT. 20. Any order made under this Act may be made on such terms as to costs, or otherwise, as the authority making the order thinks just. This must refer to orders which the Court has power to make under the various sections of the Act. The authorities referred to are " the Court " and " the Court or a judge," and also, in the case of references under order of the Court, the Court of Appeal (s. 17). " Court," by s. 27, means the High Court of Justice, and "judge" means a judge of the High Court of Justice. " The general rule with regard to jurisdiction acquired by statute is stated in Smeeton v. Collier (1847), 1 Ex. 457, to be that where a statute in general terms and without any special limitation, either express or to be inferred from its terms, gives any power to one of the superior Courts, that power may be exercised by a judge at chambers as the delegate of the Court, and it is only in cases of special limita- tion, or where the statute contains expressions from which it may be inferred that the application was intended to be made in open Court, that the judge in chambers has no jurdisdiction. This rule of construc- tion is still applied" (Archibald and Vizard's Practice, p. 1). The words " the Court " mean the judge or judges sitting in open Court, and the words " a judge " mean a judge sitting in chambers (see the cases cited in the Annual Practice, Pt. IV. Div. 1, Construction of Judicature Acts and Rules), and by virtue of s. 21 of the Arbitration Act and Order LIV., r. 12a, a Master of the Supreme Court may exercise all the jurisdiction and powers conferred on a judge by the Act. Section 21. EXERCISE OF POWERS P,Y MASTERS AND OTHER OFFICERS. 21, Provision may from time to time be made by rules of Court for con- ferring on any Master, or other officer of the Supreme Court, all or any of the jurisdiction conferred by this Act on the Court or a judge. The only rule which appears to have been made under this section is Order LIV., r, 12a, which provides that " A Master of the Supreme Court may exercise all the jurisdiction and powers conferred upon the Court or a judge by the Arbitration Act, 1889." 310 REFERENCE BY CONSENT OUT OF COURT Section 22. This section was repealed by the Perjury Act, 1911 (1 & 2 Geo. V. c. 6), s. 17, and its provisions replaced by s. 1 of that Act (see ante, p. 139). Section 23. CEOWN TO BE BOUND. 23. This Act shall, except as in this Act expressly mentioned, apply to any arbitration to which Her Majesty the Queen, either in right of the Crown, or of the Duchy of Lancaster or otherwise, or the Duke of Cornwall, is a party, but nothing in this Act shall empower the Court or a judge to order any proceedings to which Her Majesty or the Duke of Cornwall is a party, or any question or issue in any such proceedings, to be tried before any referee, arbitrator, or officer without the consent of Her Majesty or the Duke of Cornwall, as the case may be, or shall affect the law as to costs payable by the Crown. Section 24. xVPPLICATION OF ACT TO STATUTOKY AEBITEATIOXS. 24. This Act shall apply to every arbitration under any Act passed before or after the commencement of this Act as if the arbitration were pursuant to a submission, except in so far as this Act is inconsistent with the Act regulating the arbitration or with any rules or procedure authorised or recognised by that Act. The effect of this section is to apply the provisions of the Act to arbitrations under any other Acts, except in so far as the provisions of those Acts are inconsistent with the provisions of the Arbitration Act. The effect is not to introduce into arbitrations under the Arbitration Act any of the provisions as to arbitration contained in any other Act (Zelma Gold Mining Co. v. HosJcins, [1895] A. C. 100 ; €4 L. J. P. C. 45). " This Act " means the whole Act, including the First Schedule {In re Williams and Stepney, [1891] 2 Q. B. 257 ; GO^L. J. Q. B. 636). " In my opinion the Arbitration Act, 1889, was intended to intro- duce a code for the regulation of all arbitrations, and its operation is only excluded where its provisions are absolutely inconsistent with the Act under which the arbitrators were appointed " (per Fry, L. J., REPEAL 311 In re Knight and Tcibernacle Permanent Building Society (1891), 39 W, E. 507, at p. 508). " The appellants were accordingly constrained to argue that when- ever the provisions of the Arbitration Act are found to add to the enactments of any other statute regulating arbitrations, they are in the sense of the exception inconsistent with it. To hold that the Legislature intended to attach that meaning to the word ' incon- sistent' would be to defeat the object of the leading enactment in s. 24. In my opinion the object of the Legislature was to add to the remedies open to the parties under a statutory arbitration; and the sole purpose of the exception was to prevent the application of the powers conferred upon the Court by the Act of 1889 to arbitrations under any statute whose provisions, either expressly or by reasonable implication, excluded the exercise of such powers " {per Lord Watson, Tabernacle Permanent Building Society v. Knight, [1892] A. C, at pp. 303, 304). The extent to which the provisions of the Act have been held to apply, or not to apply, to arbitrations under other Acts is indicated in the commentaries on the various sections under which the cases respectively arose. Section 25. SAVING FOK PENDING AEBITEATIONS. 25. This Act shall not affect any arhitration pendincj at the conwiencemeiit of this Ad, hut shall not apply to any arbitration commenced after the commence- ment of this Act under any agreement or order made before the commence- ment of this Act. The words in italics were repealed by the Statute Law Eevision Act, 1908. Section 2G. EEPEAL. 26. (1) {Repealed, S. L. li. Act, 1908). (2) Any enactment or instrument referring to any enactment repealed by this Act shall be construed as referring to this Act. 312 REFERENCE BY CONSENT OUT OF COURT Section 27. DEFINITIONS. MEANING OE "SUBMISSION." The definition of " submission." ""Written agreement." Whether signature necessary. " Differences." Distinction between arbitration and valuation. Submission to foreign Court. Parol submission. Conflict of laws. 27. In this Act, unless the contrary intention appears,— " Submission " means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not. "Court" means Her Majesty's High Court of Justice. "Judge" means a judge of Her Majesty's High Court of Justice. "Rules of Court" means the rules of the Supreme Court made by the proper authority under the Judicature Acts. The definition of "submission." There is no previous legislation defining the term "submission." S. 11 of the Common Law Procedure Act, 1854, provided that "when- ever the parties to any deed or instrument in writing to be hereafter made or executed, or any of them, shall agree that any then existing or future differences between them or any of them shall be referred to arbitration, and any one or more of the parties so agreeing, or any person or persons claiming through or under him or them, shall never- theless commence any action at law or suit in equity against the other party or parties, or any of them," &c., the proceedings in the action or suit might be stayed. That section was in many respects similar to s. 4 of the Arbitration Act, and it defined the kind of agreement of reference to arbitration which, on certain conditions, enabled the Court to stay an action com- menced by any of the parties to such agreement, or any person or persons claiming through or under him. The section did not purport to give a definition of a " submission," the meaning of which was well understood. A " submission," as understood before the Arbitration Act, was an agreement to refer existing disputes to a named arbitrator, while an " agreement to refer " was an agreement by which parties agreed that if any differences should arise, such differences should be referred to arbitration. The agreement referred to in s. 11 of the Common Law Procedure Act for the purpose of a stay comprised both an agreement to refer future differences and a submission, i.e. an agreement to refer existing disputes to a named arbitrator. MEANING OF "SUBMISSION" 313 The framers of the Arbitration Act have combined these different kinds of agreements which, if and when existing, gave the Court juris- diction to stay an action brought by any of the parties thereto, as the definition of " submission," and have applied this definition to every section of the Arbitration Act where the word " submission " occurs, unless the contrary intention appears. If the definition had been applied only to s. 4, the meaning and object of such a definition would have been clear, whereas the effect of applying it to the provisions of the Act generally, unless the contrary intention appears, is to introduce uncertainty, and make the word " submission " in some sections ambiguous and inaccurate. For example, in s. 1 the term " submission " cannot include an agreement to refer future differences which may arise, but must mean a submission as understood before the Act, i.e. an agreement to refer existing disputes to a named arbitrator, the power reserved to the Court or a judge to- give leave to revoke being applicable only to the authority conferred upon the arbitrator by the submission to decide the disputes in ques- tion, it being that authority which, before the Act, the parties had power to revoke at will (except in certain cases where the submis- sion had been made a rule of Court), and which by s. 1 of the Act they are not at liberty to do except by the leave of the Court or a judge. Neither of the parties could, before the Arbitration Act, revoke an agreement to refer, and they cannot do so now, any more than they can revoke any other contract they may enter into. In Smith and Sewice and Nelson & Sons, In re (1890), 25 Q. B. D., at p. 547, Bowen, L.J., said: " The language of s. 1 — ' a submission shall be irrevocable ' — is ambiguous ; it is applicable not to the agreement to refer but to the authority of the arbitrator." Again, in s. 8 the words " any party to a submission may sue out a writ of subpoena " cannot apply to an agreement to refer future differences to arbitration, nor can it apply to an agreement to refer existing differences to arbitration when an arbitrator has not been named or agreed upon. The submission in this section must mean a submission as understood before the Act, namely, an agreement to refer existing disputes to a named arbitrator, and it would seem also that the arbitrator must have been called upon to act, and have entered on the reference, otherwise there would be no tribunal before whom witnesses could give evidence or documents be produced. The result is that the object of each section in which the term " submission " occurs must be considered in order to ascertain whether the term can or cannot bear the interpretation in s. 27. In some cases it means the agreement to refer, and in others the submission to a particular arbitrator, and it may, as in s. 4, include both an agreement to refer and a submission to a particular arbitrator. 314 REFERENCE BY CONSENT OUT OF COURT " Written agreement." There must be an agreement — that is to say, the parties must be ad idem (see Caerleon TiniJlate Co. v. Hughes (1891), 60 L. J. Q. B. 640 ; JEx parte Munro (1876), 1 Q. B. D. 726) — and such agreement must be in writing. But it is not necessary that it should be a formal agreement, ■or that the terms should all be contained in one document. All that is necessary is that the parties should agree in writing to submit present or future differences to arbitration, and such an agreement may be found in correspondence consisting of a number of letters (see Lohitos Oilfields V. Admiraltg Commissioners (1917), 86 L. J. K. B. 1444). The agreement need not be contained in the original instrument under which the dispute arises {Randell v. Thompson (1876), 1 Q. B. D. 748; 45 L. J. Q. B. 713, following Mason v. Haddan (1859), 6 C. B. (X. S.) 526, and overruling Blythe v. Lafone (1859), 1 E. & E. 435 ; 28 L. J. Q. B. 164), and it may arise by the incorporation of one document containing an arbitration clause in another under whicli the dispute arises, provided that the arbitration clause in the incorporated document is applicable to the dispute in question. Illustrations. 1. An arbitration clause in a charter-party was held to apply to a dispute as to delay in the unloading of a ship after the completion of the loading, notwithstanding that the charter-party contained the usual cessor clause providing that the charterers' liability should cease upon the shipment of the cargo. The bill of lading, however, incorporated " all the terms and exceptions " contained in the charter-party and gave the owner or master a lien on the cargo, inter alia, for demurrage. The parties to the bill of lading and the charter-party were the same {Temperley Steam Shipping Co. v. S^nyth & Co., [1905] 2 K. B. 791, over- ruhng Uunciman v. Smyth (1904), 20 T. L. E. 625). 2. A bill of lading contained the words "all other terms and con- ditions as ])er charter-party " and the charter-party contained an arbitration clause. In an action by the shipowners against the con- signees of the cargo and endorsees of the bill of lading, the Court refused a stay on the ground that the arbitration clause in the charter- party was not incorporated in the bill of lading. Lord Esher, M.R., said that where in a bill of lading there was such a condition as " all other conditions as per charter-party," the conditions of the charter-party must be read verbatim into the bill of lading as though printed there in extenso. " Then if it was found that any one of the conditions of the charter-party, on being so read, was inconsistent with the bill of lading, they were insensible and must be disregarded." ... It was clear that the arbitration clause referred to disputes arising, not under the bill of lading, but under the charter-party. The condition was therefore insensible, and had no application to the dispute which arose under the bill of lading {Hamilton & Co. v. Mackie & Sons (1889), 5 T. L. E. 677). MEANING OF "SUBMISSION" 315 3. A bill of lading provided for the shipment of goods to the shipper or his assigns, " he or they paying freight for the said goods, with other conditions as per charter-party." There was also a clause in the margin : " Deck load at shipper's risk, and all other terms and conditions and exceptions of charter to be as per charter-party , including negligence clause." The charter-party contained a cesser clause and a proviso for the reference to arbitration of any dispute arising out of the conditions of the charter-party. The shipowners having brought an action against the holder of the bill of lading, to whom the cargo had been consigned, the House of Lords, following Hamilton & Co. v. Mackie & Sons (supra), held that the arbitration clause in the charter-party was not incorporated in the bill of lading, since "conditions" and "terms and conditions" did not include more than referred to those matters necessary to be dealt with by the shipowner and the consignee in relation to the carriage, dis- charge, and delivery of the cargo, and consequently that the proceedings could not be stayed (The ''Portsmouth," [1912] A. C. 1 ; 81 L. J. P. 17). 4. A contract between A. and B. for the performance of work included a " general specification " which contained an arbitration clause. A. entered into a subcontract with C. for the performance of part of the work " according to plans and specifications " in the main contract. In an action by the subcontractor against the principal con- tractor for certain sums alleged to be due under the subcontract, the Court of Session held that a stay should not be granted, on the ground that the arbitration clause in the contract was not incorporated in the subcontract in the case of disputes between B. and C, although it was so incorporated in the case of disputes between A. and C. (Goodwins, Jardine & Co., Ltd. v. Brand & Son (1905), 7 F. 995). 5. A lease contained a provision for the reference to arbitration of all disputes thereunder. A supplemental deed subsequently entered into between the parties, by which the lessee was released from the observance of certain of the covenants in the lease, contained no arbitration clause. The plaintiff brought an action in respect of a dispute arising under the supplemental deed. On a motion by the defendant to stay the proceedings under s. 11 of the Common Law Procedure Act, 1854, the Court granted the application on the ground that the lease and tire supplemental deed must be read as one instru- ment, since though the supplemental deed varied the lease as to the covenants it did not vary it as to the provision for arbitration (IVade- Gery v. Morrison (1878), 37 L. T. 270). Nor is it any objection to the validity of the submission that one party is bound by deed and the other by agreement under hand only, as, for instance, on a reference between an individual and a corporation, under the hand of the former and the common seal of the latter (Tomlin v. Fordivich (Mayor of) (1836), 5 A. & E. 147; 5 L. J. (N. S.) K. B. 209). The written agreement may also be made by the endorsement by counsel of their briefs in an action, the whole question being whether 316 REFERENCE BY CONSENT OUT OF COURT there is in fact an agreement between the parties recorded in writing- (Aitken v. Batchelor (1893), 62 L. J. Q. B. 193. See also Bramloii v. Smith (1853), 22 L. J. Q. B. 321 ; Clevients v. Devon Ins2ira7ice Commissioners^ [1918] 1 K. B. 94). Under s. 11 of the Common Law Procedure Act, 1854, it was held that where articles of partnership containing an arbitration clause were entered into for one year, and the partnership was continued by verbal agreement beyond the year and ultimately dissolved, the articles con- stituted a deed in writing containing an agreement to refer to arbitration differences between the parties after the expiration of the year, and a suit to take the accounts was stayed {Gillett v, Thornton (1875), L. E. 19 Eq. 599). This case was followed in Cope v. Cope (1885), 52 L. T. 607. Whether sigyiature necessary. It would seem that the agreement must be one which is binding on and enioreeable against the parties, and, therefore, if it is within th& Statute of Frauds, must be not only in writing, but also signed by the party to be charged therewith or by some other person thereunto law- fully authorised. For example, a contract or sale of lands, tenements, or hereditaments, or any interest in or concerning them, must, by the Statute of Frauds, be evidenced by a memorandum in writing, signed by the party to be charged or his duly authorised agent, otherwise it is not enforceable by action, and if not so enforceable, a clause in it pro- viding for the reference of disputes to arbitration, or an award on such a reference would seem to be equally unenforceable (see Walters v. Morr/an (1792), 2 Cox, Ch. Cas. 369). In Morgan v. William Harrison, Ltd., [1907] 2 Ch. 137, at p. 144, Cozens-Hardy, M.R., said : " A point was suggested under the Arbitra- tion Act, 1889, namely, that there was no submission in writing. But the letter of 22nd March headed ' Little "VVyrley Colliery Lease,' signed by Mr. Chinn, whom I must treat as having signed as agent for all the lessors, seems to me, according to its true construction, to be an offer to the tenants to continue as tenants at will of the mine and wayleave upon the terms of the written document, namely, the lease which is mentioned. That is the offer which is accepted here, and, therefore, I think that that objection ought not to prevail." There is some conflict of authority as to whether the signatures of the parties or their agents are necessary in cases which do not fall within the Statute of Frauds, and in which there is no other statutory provision expressly requiring such signatures. Where in an action for the price of goods sold the bought note signed by the defendants contained a provision for arbitration in case of dispute, whilst in the sold note signed by the plaintiffs there was no such provision, it was held that there was no valid submission by the parties (Caerleon Tinplate Co. v. Hughes (1891), 60 L. J. Q. B. 640). MEANING OF "SUBMISSION" 317 In this case Denman, J., said that in his judgment there could be no written agreement to submit unless it was in writing signed by the parties as their agreement, and Wills, J., took the same view as to the necessity of both signatures. In Baker v. Yorkshire Assurance Co., [1892] 1 Q. B. 144; 61 L. J. Q. B. 638, it was held that an insurance policy containing an arbitra- tion clause, though not signed by the assured, amounted to a valid submission to arbitration within the meaning of the Arbitration Act, and that an action on the policy which had been commenced by the assured was rightly stayed, Lord Coleridge, C.J., saying, " The plaintiff sues on the policy, and by so suing affirms it to be his contract." Caerleon Tinplate Co. v. Huglics {swpra) was treated as depending on the facts of that particular ease (see also United Kingdom, &c., Associa- tion V. Houston & Co., [1896] 1 Q. B. 567). The decision in Baker v. Yorkshire Assurance Co. was approved and applied in Hickman v. Keiit or Bomney Marsh Sheep Breeders' Association, [1915] 1 Ch. 881, where the plaintiff sought to enforce his rights under the articles of associa- tion of the defendant company, which contained a provision for the reference to arbitration of disputes between the company and any of the members, and it was lield that the contract contained in the application for membership and the acceptance thereof by the company constituted a submission within the Act, Astbury, J., saying, " It would seem reasonable that the plaintiff ought not to be allowed, in the absence of any evidence filed by him, to proceed with an action to enforce his rights under the articles, seeing that the action is a breach of his obligation under Article 49 to submit his disputes with the association to arbitration, and if the case falls within the Act, I see no reason for exercising my discretion under s. 4 in his favour." But in Forden v. Whittle (18th April 1907, unreported, referred to in Halsbury's Laws of England, Vol. I. pp. 441, 476), Bray, J., held that the signatures of the parties or their agents were necessary. In Re Leivis, Ex parte Munro (1876), 1 Q. B. D. 724, it was held that a document containing the terms of an agreement as to the amount of costs payable by a client to a solicitor, assented to by the client but signed only by the solicitor, was not an " agreement in writing " within the Attorneys and Solicitors Act, 1870 (33 & 34 Vict. c. 38), s. 4. But this was disapproved, and the contrary held, in Eo; parte Baylis, In re Thompson, [1894] 1 Q. B. 462 ; 63 L. J. Q. B. 187. , "Differences." Bistinction betiveen arhitration and valuation. The Arbitration Act has not altered the previous rule that to con- stitute a subnnssion there nnist be a difference. If there is no difference there is nothing for the arbitrator to arbitrate about, and in the case of an agreement to refer future disputes to arbitration, the arbitrator's jurisdiction does not arise until a dispute has arisen. The distinction 318 REFERENCE BY CONSENT OUT OF COURT between an agreement to refer a difference and an agreement to prevent differences from arising is sometimes difficult to determine. One of the elements of an agreement to refer to arbitration, or of a submission to arbitration, is that the subject-matter to be decided must be a dispute, and this element must exist whether at common law or under the Arbitration Act. If the agreement between the parties is in effect to prevent disputes from arising, then it is neither an agree- ment to refer to arbitration nor a submission to arbitration, and it is not within the Arbitration Act, In Chambers v. Goldthoiye, [1901] 1 K. B. 624, at p. 635, however, A. L. Smith, M.E., said : " It was argued that there was no dispute between the parties prior to the plaintiff giving his certificate, and that unless there was a dispute the plaintiff could not be in the position of an arbitrator. I do not see why there should not be an arbitration to settle matters, as to which, even if there was no actual dispute, there- would probably be a dispute unless they were so settled," Instances of agreements which may not constitute submissions to arbitration arise where parties agree to sell property or goods at a price to be fixed by a third person. In such cases, however, there may be a dispute, as, for instance, in cases where one party claims one price and the other party another, and they agree to refer the dispute between them to some third person. " Although an appraisement or valuation is not necessarily an award, there is no reason why it should not be " {per Lord Esher, M.R., in In re Daicdy and Hartmqy (1885), 15 Q. B. D., at p. 431). But here, again, another test may be necessary in order to discover whether the reference to the third person is a reference to him as an arbitrator or as a valuer. Speaking generally, if the third person is intended to act as valuer and to form an opinion between the parties as to which is the correct price from his own judgment and skill as a valuer, he is not an arbitrator. Even where the reference was to two persons described as arbitrators in the agreement, who were directed to appoint an umpire in case of dispute, and the question was as to the amount to be paid to a nurseryman for yielding up his lease, and for his plants, the Court refused to enforce the decision of the umpire as an award because it did not appear that any judicial enquiry was intended {In re Hammond and Waterton (1890), 62 L. T. 808). This is not, however, an absolute test, because there may be cases where a dispute has arisen in which the third person is an arbitrator, though by reason of his knowledge of the subject-matter or his skill it is not intended that he should hear evidence or hold a judicial enquiry. " If it appears from the terms of the agreement by which a matter is submitted to a person's decision that the intention of the parties was MEANING OF "SUBMISSION 319" that he should hold an enquiry in the nature of a judicial enquiry and hear the respective cases of the parties and decide upon evidence laid before him, then the case is one of an arbitration. The intention in such cases is that there shall be a judicial enquiry worked out in a judicial manner. On the other hand, there arc cases in which a person is appointed to ascertain some matter for the purpose of preventing ditferences from arising — not of settling them when they have arisen — and where the case is not one of arbitration but of a mere valuation. There may be cases of an intermediate kind, where, though a person is appointed to settle disputes that have arisen, still it is not intended that he shall be bound to hear evidence and arguments. In such eases it may be difficult to say whether he is intended to be an arbitrator or to exercise some function other than that of an arbitrator. Such cases must be determined each according to its particular circumstances {i^er Lord Esher, M.li., in In re Cams- Wihon and Greene (1886), 18 Q. B. D. 7, at p. 9). In the construction of an agreement which provided for the appointment of two valuers and an umpire " in pursuance of and in accordance with the Arbitration Act, 1889," Neville, J., held that the parties intended an agreement for arbitration and not merely a valuation, but " you cannot make a valuer an arbitrator by calling him so, or mce versd" (Taylor v. Yielding (1912), 56 Sol. J. 253). On the other hand, if it is clear that a judicial enquiry was intended, the reference is a submission to arbitration and the person referred to an arbitrator. "If a reference is made to a person to state what is the value of a stack of hay or the plant of a brewery, and he has only to use his eyes, so to speak, to ascertain the value, that may not be an arbitration ; but if the matter referred be one on which a judicial decision must be exercised, on which parties are heard and witnesses are examined, it is clearly an arbitration" (^^er Cockburn, C.J., in I71 re Hopper (1867), L. K. 2 Q. B. 367 ; 36 L. J. Q. B. 97). IllustraHons. 1. An agreement between an outgoing and an incoming tenant pro- vided that the latter should buy the hay belonging to the former upon the farm, and that the former should allow to the latter the expense of repairing gates and fences, and that the value of the hay and of the repairs should be settled by third persons. Held that the decision of tbese persons was a valuation, not an award, and need only be stamped accordingly (Leeds v. Burroivs (1810), 12 East, 1. See also Lee v. Hemivgway (1834), 3 Nev. & M. 860 ; 3 L. J. (N. S.) K. B. 124 ; Jenkins V. Betham (1855), 15 C. B. 168; 24 L. J. C. P. 94; Boss v. Hehham (1866), L. K. 2 Ex. 72). 2. Parties entered into a contract to sell and purchase a brewery and plant at a price to be fixed by third persons, who were to choose an 520 REFERENCE BY CONSENT OUT OF COURT umpire before entering on the consideration of the matter. These persons could not agree on an umpire. Held that these persons were valuers merely, and not arbitrators, and that the Court could not appoint an umpire (Collins v. Collins (1858), 26 Beav. 306). 3. On a sale of land one condition was that the purchaser should buy the timber on the land at a valuation, and that each party should appoint a valuer, who should appoint an umpire, and that, if the valuers could not agree, the umpire should value. The umpire in fact made the valuation. Held that this was a valuation and not in the nature of an award, and that an application to set it aside must be refused ' {In re Cams- Wilson and Greene (1886), 18 Q. B. D. 7 ; 56 L. J. Q. B. 530). 4. A lease of a farm stipulated that if the premises were sold during the term the tenant shall quit and yield up the premises, and each party should appoint a valuer to assess the compensation to be paid to the tenant. These circumstances having in fact arisen, the parties by deed referred the question of compensation to A. and B. or their umpire. Held that this was not a mere appraisement, but an arbitration within s. 17 of the Common Law Procedure Act, 1854 {hi re Hopjyer (1867), L. R. 2 Q. B. 367 ; 36 L. J. Q. B. 97. See also Turner v. Goulden (1873), L. R. 9 C. P. 57 ■ 43 L. J. C. P. 60). 5 The validity of a notice to dissolve partnership was disputed, and it was agreed that one partner should retire and that the value of his share and the question of notice (if raised) should be decided by third persons or their umpire. One of these persons died before their decision had been arrived at, and his successor did not join in appointing an umpire. Held that this, as it was to decide upOn a dispute existing at the date of reference, must be regarded as a submission to arbiti'ation, and the Court ordered an umpire to be appointed under the Common Law Procedure Act, 1854 (Be Ecans, Davies and Carrick (1870), -22 L. T. 507). 6. A building contract provided for payments on account of the price of the works during their progress, and for payment of the balance after their completion, upon certificates of the architect, and that a certificate of the architect, showing the final balance due to the con- tractor, should be conclusive evidence of the works having been duly completed, and that the contractor was entitled to receive payment of the final balance. The Court of Appeal (Romer, L.J., dissenting) held that the architect, in ascertaining the amount due to the contractor, and certifying for the same under the contract, occupied the position of ;in arbitrator {Chamhers v. Goldtharpe, [1901] 1 K. B. 624; 70 L. J. K. B. 482). 7. A building agreement, authorising proceedings in case of cer- tain defaults by the builder to be ascertained and decided on hy the architect without appeal, was held not to be a submission to arbitration (JVadsworth v. Smith (1871), L. R. 6 Q. B. 332; 40 L. J. Q. B. 118. See also Jowett v. Neath R. D. C. (1916), 80 J. P. Jo. 207, and Hudson on Building Contracts, 4th ed., pp. 728-739, where the subject is discussed at length). MEANING OF "SUBMISSION" 321 A failure to pay is not necessarily a "difference." In London & JVorth Western Bail. Co. v. Jones, [1915] 2 K. B. 35, in a case arising under a provisional order empowering a railway company to make an additional charge for the detention of trucks, which order contained a provision for arbitration, Eowlatt, J., said : " It does not, however, follow that the Courts cannot be resorted to without previous recourse to arbitration to enforce a claim which is not disputed but which the trader merely persists in not paying " (see also London & North Western and. Great Western Joint Bail. Co. v. Billington, [1899] A. C. 79). Submission to foreign Court. A written agreement to submit a dispute to the decision of a foreign Court is a submission to arbitration within the Arbitration Act and, if no Court is specified, will be treated as a submission to whatever Court may be competent to deal with the dispute in the place named. Illustrations. 1. A bill of lading provided that any disputes as to the interpretation of its clauses were to be decided in Hamburg according to German law. Held that this clause must be treated as a submission to arbitration within the Arbitration Act, 1889, s. 4, and that although no tribunal Avas specified the contract must be deemed to mean that the disputes were to be submitted to the competent Court at Hamburg (The " Cap Blanco," [1913] P. 130). 2. The plaintiffs' steamer loaded at a foreign port under a berth note which provided that the defendants, the freighters, should do the stevedoring, and that " in case of any dispute arising at loading ports " it should be submitted to an arbitration Court in the foreign country. The stevedoring account was signed by the Master without objection, and the defendants deducted the amount from the freight. The plaintiffs complained to the defendants in London that their stevedoring rate was too high and brought an action for the amount of the alleged overcharge. Held that "dispute" meant, not disputation, but matter in dispute, and therefore that the dispute was one "arising" at the loading port, and that the action should be stayed under s. 4 (The " Daidish," [1910] P. 339). 3. G. agreed to serve K. & Co. on certain terms. G. was German and K. & Co. traded at Leipzig, but G. was to work in England. The contract referred all disputes to the Leipzig Courts, to be tried under German law. Held that this was a good submission and would not be disregarded by the Courts without good reason, and, no good reason being shown, an action in England was stayed (Kirchner & Co. v. Gh'uban, [1909] 1 Ch. 413. See also Law v. Garrett (1878), 8 Ch. D. 26 ; Austrian Lloyd S.S. Co. v. Gresham Life Assurance Society, [1903] 1 K. B. 249, cited ante, p. 36). The same principles would seem to be applicable where it is provided that a contract made or to be carried out in one part of the United 21 322 REFERENCE BY CONSENT OUT OF COURT Kingdom shall be governed by the law in force in another part, and that disputes arising thereunder shall be decided by the Courts having jurisdiction there. Illustration. A contract between an Irish corporation and a company registered and trading in England was made in Ireland, and was to be performed there. But an express term of the contract provided that it should " in all respects be construed and operate as an English contract and in con- formity with English law." The corporation subsequently commenced an action on the contract in the Irish Courts, and the company applied for a stay on the ground that disputes had been submitted to the juris- . diction of the English Courts. Held that a stay should be granted {Limerick Cor])oration v. Crompton, [1910] 2 Ir. E. 416). Parol submission. A parol submission is generally perfectly valid. If, on the hearing of a summons before a judge, the parties consent that he shall adjudicate on the case, such consent is a parol submission to him as arbitrator, and his decision is binding as an award though, without the consent of the parties, he would have had no jurisdiction to make the order made by him {Harrison v. Wright (1845), 13 M. & W. 816. See "also In re Durham County Building Society (1871), L. E. 7 Ch. 45 ; 41 L. J. Ch. 164). It often happens in practice, where the submission is originally in writing, that it is altered or added to by parol, and it then becomes a parol submission ( v. Mills (1811), 17 Ves. 419 ; Thames Iron Works, &c.. Go. v. The Queen (1869), 10 B. & S. 33). There are various disadvantages attending parol submissions. They are open, like other verbal contracts, to dispute respecting the exact terms used, which often become material, and awards made on them cannot be enforced by attachment, since a parol submission could not formerly be made a rule of Court so as to give the Court jurisdiction {Ansell V. Evans (1796), 7 T. E. 1 ; v. Mills (1811), 17 Ves. 419), and cannot now be enforced under s. 12 of the Arbitration Act, because they are not submissions within the meaning of the Act. Moreover, a parol submission may be revoked at any time before the award is made (see ante, p. 46). A parol submission is sometimes ineffectual, even if it is not revoked, and an award is made. For example, if, on such a submission, a written award is made respecting land, and the provisions of the award are such that, if they had been verbally agreed to by the parties themselves, the contract would have been unenforceable by reason of the Statute of Frauds, the award cannot be enforced, since the parol submission and written award form but one parol contract {Walters v. Morgan (1792), 2 Cox, Ch. Cas. 369). An award on a parol submission of the question whether a tenant has a continuing interest in land, or is bound to quit MEANING OF " SUBMISSION " 323 at once, is within the Statute of Frauds {Rainforth v. Hamer (1855), 25 L. T. (0. S.) 247). A parol appointment of an arbitrator under the Public Health Act, 1875, is ineffectual {Gifford and Bury Town Council, In re (1888), 20 Q. B. D. 368; 57 L. J. Q. B. 181). Conflict of laws. Where a contract is made between parties resident in different countries, or is made in one country to be performed in another, the law by which the validity and effect of an arbitration clause in the contract are to be determined depends upon the intention of the parties as indicated by the terms of the contract as a whole and the surrounding circumstances. Illustrations. 1. A contract for sale of grain to be delivered in Scotland, made in England between a seller resident in Scotland and a buyer resident in England, contained a provision for arbitration by two members of the London Corn Exchange. The Scottish Court, in which the seller brought an action against the buyer for non-acceptance of the goods, held that the arbitration clause, not being good according to Scots law, afforded no defence to the action, but the House of Lords held that the intention of the parties, gathered from the whole contract, was that it should be governed by English law and, therefore, that the arbitration clause was good {Hamlyn & Co. v. Talisker Distillery Co., [1894] A. C. 202). 2. An English office issued a fire policy by its agents in Jersey to cover loss in damage to certain property in Jersey. The policy was in the English language and contained the usual conditions. One condition provided for the appointment of arbitrators, who were to appoint an umpire, and made the issuing of the award a condition pre- cedent to any right of action for damages or loss. The submission was to be subject to the provisions of the Arbitration Act, 1889. The policy was executed in Jersey. Held that the intention of the parties was plain, and that the contract was an English contract, to be governed by English and not by Jersey law {Spurrier v. La Cloche, [1902] A. C. 446). Section 28. EXTENT OF ACT. 28. This Act shall not extend to Scotland or Ireland. 324 REFERENCE BY CONSENT OUT OF COURT Section 29. (Eepealed, Statute Law Revision Act, 1908.) Section 30. SHORT TITLE. 30. This Act may be cited as the Arbitration Act, 1889. THE FIRST SCHEDULE. PROVISIONS TO BE IMPLIED IN SUBMISSIONS. (a) Reference to be to single arbitratoe. Mode of appointment. No stamp required on appointment, unless it is by deed. Appointment of two arbitrators. [Unless a contrary intention is expressed in the submission (s. 2)] (a) If no other mode of reference is provided, the reference shall be to a single arbitrator. This provision of the Schedule must be read in conjunction with s. 2. The words " if no other mode of reference is provided " have no application at all if the Schedule is excluded by a contrary intention expressed in the submission. If the Schedule is not excluded, then this clause merely provides that the reference shall be to a single arbitrator, if no other mode of reference is provided. 3£ode of appointment. As regards the appointment of an arbitrator, see commentary on s. 5 of the Act. The appointment ought to be in writing, for although the definition of submission in s. 27 includes an agreement in writing to submit differences to arbitration which does not name an arbitrator, yet it might be contended that the term " submission," for the purposes of s. 1, must be a submission in writing as vmderstood before the Act. " The language of s. 1 : 'A submission . . . shall be irrevocable ' is ambiguous ; it is applicable, not to the agreement to refer but to the authority of the arbitrator " {per Bowen, L.J., In re Smith and Nelson (1890), 25 Q. B. D., at p. 547). The authority of the arbitrator, unless PROVISIONS TO BE IMPLIED IN SUBMISSIONS 325 it is desired that it should be revocable by either party without leave of the Court, sliould therefore be in writing ; and it is also desirable that it should be conferred in a way which is not open to dispute. As to the ambiguity of the word " submission," which has a different meaning in different sections of the Act, see ante, p. 313. No stamp required on appointment, unless it is by deed. The appointment of an arbitrator or of arbitrators or an umpire, if it is not by deed, requires no stamp {Routledge v. Thornton (1812), 4 Taunt. 704; Oliver v. Collings (1809), 11 East, 367). Where the appointment is by deed, a ten-shilling stamp is required (Stamp Act. 1891 (54 & 55 Vict. c. 39), First Schedule, tit. "Deed"). For forms of appointment, see Appendix of Forms. Appointment of tivo arbitrators. In cases where each party has to appoint an arbitrator it is equally important to see that both appointments are properly made, because a defect in the appointment of one arbitrator may invalidate the award, and, further, the disputes in respect of which each arbitrator is appointed must be the same and must be co-extensive. Any limitation of authority to one arbitrator may invalidate the award. Illustration. Two arbitrators, A. and B., not having chosen a third arbitrator in time, a third arbitrator, C, was appointed by a judge under the pro- visions of the Common Law Procedure Act, 1854, and A. and C. made their award, by which they awarded damages to the plaintiffs, who had appointed A. Upon a rule being obtained by the defendant to show cause why the verdict found for the plaintiffs should not be set aside and a non-suit entered, it appeared that the defendant had appointed his arbitrator, B., with a limited authority, and had so given notice to the plaintiffs, viz. that he had appointed him as to the construction of a lease, and not otherwise. The arbitrators, however, insisted on going into the consideration of damages after objection taken by the defendant. Held that the arbitrators in awarding damages had exceeded their authority, and the rule for a non-suit was made absolute {Davies v. Price (1864), 6 L. T. (N. S.) 713 ; 10 W. R. 865). First Schedule {b). APPOINTMENT OF UMPIRE. Previous legislation. " May appoint." Mode of appointment. 326 REFERENCE BY CONSENT OUT OF COURT Time for making appointment. Appointment must be an act of will and judgment. Appointment by lot bad. Approval of parties not required. Acceptance by umpire necessary. Refusal of umpire to act. Acquiescence of parties in invalid appointment. Refusal, incapacity, or failure to act, or death of arbitrator. [Unless a contrary intention is expressed in the submission (s. 2)] (/') If the reference is to two arbitrators, the two arbitrators may- appoint an umpire at any time within the period during which they have power to make an award. Previous legislation. S. 14 of the Common Law Procedure Act, 1854, contained an exactly similar provision to this clause of the Schedule, but that Act contained the following additional words : " unless they can be called upon by notice as aforesaid to make the appointment sooner." These additional words are not re-enacted, but by s. 5 (c) of the Arbitration Act : " Where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him . . . any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint ... an umpire or third arbitrator," and if the appointment is not made within a certain time, then the powers of the Court under the section arise. " May airpoint." The word " may " must be read in conjunction with s. 5 of the Act, and is in effect qualified by the provisions of that section {supra) as to any party serving written notice upon the arbitrators to make the appointment. It should be noticed that clause (&) of the Schedule gives power only to appoint an umpire, and does not refer to a third arbitrator, as s. 5 does. Mode of appointment. The term " appoint " means " concur in appointing " {In re Eyre and Corporation of Leicester, [1892] 1 Q. B., at p. 141). No particular method of appointment of an umpire is prescribed by the Act. The usual method prescribed by submissions, and in references under various statutes, is by writing under the hands of the arbitrators. But it would seem that a parol appointment is valid, subject to any express provision in the submission or in the statute under which the appointment is made {Oliver v. Collings (1809), 11 East, 367). If a special method of appointment is prescribed by the submission, APPOINTMENT OF UMPIRE 327 that method must be strictly adhered to. In Bates v. Toivnley (1847), 1 Exch. 572, disputes were referred to two arbitrators who should choose a third person and appoint him " by writing under their hands to be endorsed on the agreement of submission before proceeding on the said reference to arbitrate." In an action on an award the declaration did not state that all these formalities had been complied with, and was, therefore, held to be bad on demurrer. If the appointment of the umpire is by the terms of the submission to be in writing, it has been held that the arbitrators must either sign together or agree together on the person to be umpire, so that the •subsequent signatures are a mere record of their previous decision. Illustrations. 1. By a deed of submission which had been made a rule of Court the matters in dispute were referred to two arbitrators, and in case they should not agree, then to such third person as the arbitrators should by writing under their hands, indorsed upon the deed, appoint as umpire. A memorandum was indorsed upon the deed stating that the arbitrators appointed a named person as umpire, and it was signed by both arbi- trators, but not at the same time or in each other's presence. Held that the appointment of an umpire is a judicial act j that every judicial act to be done by two or more must be completed in the presence of all who do it ; that in this case, therefore, the appointment of the umpire was not valid, and that his award should not be enforced {Lord v. Lord (1855), 26 L. J. Q. B. 34; 5 E. & B. 404). 2. By a deed of submission the parties referred the matter in dispute to two named arbitrators or such third person as they should appoint umpire by writing under their hands, to be indorsed on the submission. The arbitrators, having decided together upon the umpire to be appointed, agreed to meet to indorse the appointment on the submission ; one only attended, and he signed the appointment and forwarded it to the other, who signed the next day. Held, distinguishing Lord v. Lord (supra), that the judicial act of agreeing upon the umpire having been done by the arbitrators at the same time, the indorsing of the appointment upon the submission, which was not the judicial act, but only the record of it, did not require to be done by them at the same time {Hopper, In re (1867), L. R. 2 Q. B. 367 ; 36 L. J. Q. B. 47). For forms of appointment of an umpire, see Appendix of Forms. No stamp is requisite unless the appointment is by deed, in which case a ten-shilling stamp is required (see ante, pp. 72, 73). Time for making appointment. "At any time within the period during which they have power to make an award." To these words must be added " unless called upon by notice under 328 REFERENCE BY CONSENT OUT OF COURT s. 5 to act earlier," so as to incorporate the provisions of that section. If the arbitrators have allowed their time, original or enlarged, for making an award to expire, they can no longer appoint an umpire. And the parties cannot in such a case give notice under s. 5, because the arbitrators are not " at liberty to appoint an umpire," the period during which they were at liberty to do so having expired. The Court, therefore, has no pov/er in such a case to appoint an umpire under s. 5, or at all. This illustrates the desirability of inserting a provision in all sub- missions that the arbitrators " shall, before they enter on the reference, appoint an umpire," and, in the absence of such a provision, the necessity of parties to arbitrations being careful not to allow the arbitrators to exceed their time for making an award. The usual form of submission, as well as the form of reference prescribed by various statutes, is that " the arbitrators shall, before they enter in the reference, appoint an umpire." By long practice this form must have been found to be the most convenient and desirable. Before the Arbitration Act, 1889, as far back as 1845, every statute providing for a reference to two arbitrators incorporated this usual form, and even since the Arbitration Act this form is preserved in certain statutes. Eeference may, for instance, be made to the following statutes : — The Eailways Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 20), s. 128. The Lands Clauses Consolidation Act, 1845 (8 & 9 Vict. c. 18), s. 27. The Companies Clauses Consolidation Act, 1845 (8 & 9 Vict, c, 16), s. 130. The Eailway Companies Arbitration Act, 1859 (22 & 23 Vict, c. 59), s. 12. The Explosives Act, 1875 (38 & 39 Viet. c. 17), Schedule (10). The Public Health Act, 1875 (38 & 39 Vict. c. 55), s. 179 (7). The Coal Mines Eegulation Act, 1887 (50 & 51 Vict. c. 58), s. 47 (10). The Agricultural Holdings Act, 1900 (63 & 64 Vict. c. 50) Pt. II., 5. The Factory and Workshop Acts, 1891 (54 & 55 Vict. c. 75) and 1901 (1 Edw. VII. c. 22), respectively, Eirst Schedule (10). As to the appointment of an umpire by the Board of Trade under the Lands Clauses Consolidation Act, 1845, or by the Local Govern- ment Board under the Public Health Act, 1875, when the arbitrators neglect or refuse to appoint an umpire within seven days after request, see In re Bradshavfs Arbitration (1848), 17 L. J. Q. B. 362 ; Holdsivorth V. Wilson (1863), 4 B. & S. 1 ; 32 L. J. Q. B. 289 ; In re Gifford and Bury Town Council (1888), 20 Q. B. D. 368 ; 57 L. J. Q. B. 181. If the arbitrators have allowed their time for making an award APPOllNTMENT OF UMPIRE 329' to expire, and no umpire has been appointed, one of the parties (if both parties do not agree) must apply to the Court under s. 9 of the Arbi- tration Act to enlarge the time for making the award, and then, if an umpire is not appointed, notice can be served under s. 5, and an application be made to the Court under that section in default of appointment. Formerly, when the submission made no special provision respecting the time when the arbitrators were to appoint the umpire, and a day was given to the umpire subsequent to that fixed for the arbitrators to make their award, they might appoint an umpire at any time before the time for making the umpirage had expired {Harding v. Watts (1812), 15 East, 556). And the appointment of the umpire was valid, although the arbitrators, before his appointment, had enlarged the time for making their award {Cudliff v. Wallers (1839), 2 Moo. & E. 232). But it was competent for, them to appoint the umpire in the first instance, before they had investigated the matters or found that they could not agree {Bates v. Coolce (1829), 9 B. & C. 407). These cases may still be of importance where the provisions of the First Schedule to the Arbitration Act are excluded by the submission. A^oint7iient must he an act of will and judgment. The appointment by arbitrators of an umpire or third arbitrator must be an act of will and judgment. " The appointment of the third person must be the act of the will and judgment of the two, must be matter of choice and not of chance unless the parties consent to or acquiesce in some other mode " {per Lord Tenterden, C.J., in In re Cassell (1829), 9 B. & C. 624, at p. 628). But if two arbitrators have by their act of will and judgment chosen more than one person as fit and proper persons to act as umpire or third arbitrator, they may ballot for the selection of one of those so chosen. Illustrations. 1, Two named arbitrators were to name a third, and these three, or any two of them, were to make an award. Each arbitrator suggested a third, and each agreed that both the proposed persons were suited for the position, but they could not agree upon the election of either, and therefore decided between them by lot. Held that this did not invalidate the appointment of the third arbitrator so selected {Neale v. Ledger (1812), 16 East, 51). 2. Two arbitrators were to appoint an umpire. They each suggested a name, and then tossed up as to which of them should choose between the two. The nominee of the winner being very objectionable to the other arbitrator, the winner waived his choice and proposed tossing for choice again. The other arbitrator claimed, however, that it was his 330 REFERENCE BY CONSENT OUT OF COURT time to choose, and the winner gave way for the sake of peace, and so an umpire was chosen. Held that this amounted not to a choice by chance, but to a nomination and consent, and was therefore a good appointment {Inre Vinicomhe and Morgan (1841), 10 L. J. Q. B. 128). 3. Two arbitrators appointed an umpire by selecting by lot one of two persons, both of whom they agreed to be fitted for the position. Held that this was a valid appointment (Moi-gan v. BoiiU (1863), 11 W. E. 265). 4. Two arbitrators each named an umpire, and each agreed that the umpire proposed by the other was a fit person, but not being able to agree which of these two persons they should appoint, they drew lots to settle the matter. Held that this choice was valid (In re Hopper (1867), L. R. 2 Q. B. 367, following Neale v. Ledger, siqyra). Appointment hj lot had. The appoiutment by arbitrators of an umpire or third arbitrator must not be a matter of chance, or be made by ballot or tossing, and if so made, the appointment, subject to certain exceptions referred to later, will be bad, and the award be liable to be set aside. Illustrations. 1. Two arbitrators were to choose an umpire. Each nominated a person for the post and they tossed for choice. Held that the appoint- ment was bad, and the award of the umpire was set aside (Harris v. Mitchell (1704), 2 Vern. 485). 2. Two arbitrators tossed up who should select an umpire to be appointed by them. Held that the appointment and the award made by the umpire were bad (Hewitt v. Penny (1753), Sayer, 99). 3. Two arbitrators were to choose an umpire. Each arbitrator suggested a person who was objectionable to the other arbitrator. They then decided to draw lots as to which of them should nominate the umpire, and the winner nominated the person to whom the loser had objected. Held that the appointment was bad (JVells v. Cooke (1818), 2 B. & Aid. 218). 4. Two arbitrators were to choose a third, the award of any two of them to be final. They agreed that each should name one person, and that the right of selecting one of these two should be decided by tossing up a coin. Held that this method of appointment was bad, as the tossing was agreed upon before the selection of the proposed persons, and therefore the arbitrators could not have agreed that either of the two was fitted for the post (Young v. Miller (1824), 3 B. & C. 407, following Wells v. Cooke, s^ipra, and distinguishing Neale v. Ledger, supra, p. 329). 5. A submission was made to two arbitrators and such third person as they should appoint. The award was to be made by any two of these three persons. The two arbitrators met for the purpose of appointing a third, but were not able to concur in the appointment. APPOINTMENT OF UMPIRE 331 They therefore agreed that they should each propose two persons, and that the four names should be put into a hat, and the person whose name was drawn should be the third arbitrator. An award was made by one of the original arbitrators and the third. Held that the appointment of the third arbitrator was bad, as the choice of him should have been the act of the will and judgment of the two original arbitrators, and not a matter of mere chance {In re Cassell (1829), 9 B. & C. 624. See also Ford v. Jones (1832), 3 B. & Ad. 248). 6. Two arbitrators were to choose an umpire. Each made five suggestions, and the ten names were put into a hat and one drawn. Held that the appointment and an award made by the umpire were bad {Hodson v. Drewry (1839), 7 Dowl. P. C. 569). 7. Two arbitrators, who were to select a third, each named a different person. The person named by one was unknown to the other. They then selected by drawing one of the two proposed names from a hat. Held that this was bad {In re European, a particular arbitrator may or may not be named. If no arbitrator is named, the manner in which he is to be appointed may or may not be- prescribed by the clause. If the method of appointment is not pre- scribed by the clause, the arbitrator must be agreed upon by the parties or be appointed by some method agreed upon by them, or be appointed by the Court. If the arbitrator is named in the contract the usual course is for the party claiming arbitration to write to the arbitrator named in the con- tract informing him that disputes have arisen under the particular contract, sending him a copy of the arbitration clause, and asking him to fix a preliminary meeting for the purposes above referred to. Or the claimant or his solicitor may attend upon the arbitrator and make a verbal request to the same effect, supplying the arbitrator with a copy of the clause in the contract. In either of the above cases the original contract must be deposited with the arbitrator, and if his name is not mentioned therein, his appointment duly made must also be deposited with him. As to the appointment of arbitrators, see ante, p. 126 et seq., and for forms of appointment, see Appendix of Forms. 3. There may be cases where an action has been brought and the parties have agreed that the action and all matters in difference should be referred to an arbitrator agreed upon. This is effectuated by an, order of the Court, and derives its validity from the inherent jurisdic- tion of the Court and the agreement of the parties, the power of the; CONDUCT OF THE REFERENCE 365 Court to make an order of reference without such an agreement being limited to the cause or matter in respect of which the action has been brought. In this case the order of the Court must be served upon the arbitrator. The usual course is for the solicitor who has the conduct of the proceedings to call upon the arbitrator and deliver the order to him, and otherwise to proceed as above mentioned in case 1 (formal submission by consent). 4. The arbitrator may be appointed in pursuance of a general or special Act of Parliament, in which case his appointment in accordance with the terms of the statute must be deposited by the arbitrator. In the case of an appointment in a submission to arbitration under a statute, the powers and procedure under the statute in question must be followed by the arbitrator, and he must in particular observe whether the statute excludes the provisions of the First Schedule of the Arbitration Act or is silent on the subject. - If the statute is silent on the subject, then, by s. 24 of the Arbitra- tion Act, that Act is to apply as if the arbitration were pursuant to a submission, except in so far as the Arbitration Act is inconsistent with the statute regulating the arbitration or with any rules or procedure authorised or recognised by that statute. And as by s. 2 a submission, unless a contrary intention is expressed therein, is deemed to include the provisions in the First Schedule to the Act, as far as they are applicable to the reference under the submission, such rules or pro- cedure will be deemed to include the provisions in the First Schedule, except in so far as those provisions are inconsistent with such rules or procedure, or with the Act regulating the arbitration. Distinction betvjeen arbitrators and referees under order of the Court. In the case of the submissions numbered 1, 2, and 3 above, the powers and duties of the arbitrator are those of an arbitrator under a reference by consent out of Court, and proceedings in arbitrations under such submissions are those here dealt with. The question of references of causes or matters under the order of the Court are dealt with separately under Part II., -post, so as to avoid any confusion. It should be explained that the Court has power, under s. 13 of the Arbitration Act, to refer any question arising in any cause or matter for enquiry or report and, under s. 14, to refer the whole cause or matter or any question or issue of fact arising therein for trial, but the person to whom such matters are referred is, by s. 15, to be deemed an officer of the Court, and has such authority and is to conduct the refer- ence in such manner as may be prescribed by rules of Court, and subject thereto as the Court or a judge may direct. The referee under such references has much wider powers than an ■arbitrator under a submission by consent out of Court, and in the case 366 REFERENCE BY CONSENT OUT OP COURT of a reference for trial under s. 14 his decision is given, not by art award, but by directing judgment to be entered. This is provided for by Order XXXVI,, r. 50, one of the rules of the Supreme Court. The arbitrator must, therefore, carefully examine the order of the Court, so as to ascertain whether he is an arbitrator only or an officer of the Court. First duties of arhitrator. The first duties of the arbitrator arise on the receipt of his appointment. To see that appointment is in order. He should then see that his appointment is in order, and in case it is not, should have it put in order before he proceeds with the arbitration. Acceptance of office. Acceptance of the office by the arbitrator appears to be necessary to perfect his appointment. It has been so decided in the case of an umpire, and it would seem to be only reasonable that an appointment should not be considered effective until the person appointed has agreed either expressly or tacitly to exercise the functions of the office. Illustration. In 1858 the plaintiff made a claim for compensation against a local board under the Public Health Act, 1848. S. 126 of the Act provided ' that on such a claim the time for making the award was not to be extended beyond three months from the day on which the umpire should have been appointed. Arbitrators having been appointed and having refused to appoint an umpire, the plaintiff applied to the Sessions on 3rd July 1861 to appoint an umpire, and one J. was named as umpire, but as his consent had not been obtained, no formal appoint- ment was then made. Another application was made in October, and on 13th November 1861 J. was appointed umpire and accepted the appointment. The umpire made his award in favour of the plaintiff on 30th December 1861. In an action on the award it was held that the appointment of the umpire took place on 13th November, and con- sequently that the award was duly made within three months thereof (Pdngland v. Lowndes (1863), 15 C. B. (N. S.) 173 ; 33 L. J. C. P. 25; and in Ex. Ch. on another point, 17 C. B. (N. S.) 5U; 33 L. J. C. P. 337). Performance of condition precedent. Where the terms of the submission require that any condition pre- cedent shall be performed by the arbitrator before the hearing, he must duly comply with the condition, otherwise his award will be liable to be set aside. For instance, if the agreement of reference directs that the arbitrator shall view the premises which are the subject of the CONDUCT OF THE REFERENCE 367 dispute within a certain time before proceeding with the reference, he ought to view within the prescribed period, otherwise it may afterwards be urged against the validity of the award that he has not acted in pursuance of the powers entrusted to him {Spence v. Eastern Counties Bail. Co, (1839), 7 Dowl. 697). Statutory declaration hy arhitrator. In some statutes it is provided that before any arbitrator or umpire shall enter into the consideration of any matters referred to him, he shall make a declaration in a prescribed form in the presence of a justice. Special Acts sometimes contain a similar provision. Thus, under the Lands Clauses Consolidation Act, 1845, the Railway Clauses Consolidation Act, 1845, the Public Health Act, 1875, and certain other statutes, a declaration in the statutory form must be made. The form varies slightly, but under the Lands Clauses Consolidation Act, 1845, it is as follows : — " 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 provisions of the Act \iiaming the special Act\ "A. B. " Made and subscribed in the presence of [ ]." The justice before whom the declaration is made need not be a justice of the county or place where the dispute arises or the lands in respect of which compensation is claimed are situated {Davics v. South Staffordshire Bail Co. (1851), 21 L. J. (M. C.) 52). Many special Acts which provide for arbitration incorporate the Lands Clauses Act, 1845, and an arbitrator or umpire appointed under any such special Act must be careful to make the required declaration before he enters on the consideration of the matters referred to him. An umpire need not make the declaration before the arbitrators have performed any part of their functions. It is enough if he makes the declaration before exercising any part of his own functions {In re Bradshaw and East and West India Docks, &c. (1848), 12 Q. B. 562; 17 L. J. Q. B. 362). In this case an umpire who was appointed on the 17th, and made his declaration on the 27th of the same month, before he entered on the matter referred, was held to have made it in due time. Where other matters were submitted besides the question of com- pensation under the Lands Clauses Act, 1845, the Court refused to set aside the award on the ground that the declaration had not been made, it not being clearly shown that the party making the application was ignorant that the declaration was required {In re Lcvick and Epsom and Leatherhead Bail. Co. (1859), 1 L. T. 60). t368 REFERENCE BY CONSENT OUT OF COURT The declaration may, it seems, be dispensed with by consent of the parties (see i^er Mellor, J., in Palmer v. Metropolitan Rail. Go. (1862), ;31 L. J. Q. B., at p. 260). It is provided by the Lands Clauses Consolidation Act, 1845, that the declaration shall be annexed to the award when made, and it is also provided that if any arbitrator or umpire, having made such declaration, shall wilfully act contrary thereto, he shall be guilty of a misdemeanor. Enlargement of time for making award. Another duty should be performed by the arbitrator as soon as, but not before, he enters on the reference or is called on to act by notice in writing from any party to the submission, namely, to enlarge the time for making his award (see ante, p. 337 et seq.). There is no obligation to wait to enlarge the time until just before "the expiration of three months limited by clause (c) of the First Schedule to the Arbitration Act, or until just before any other date limited by the submission. As the arbitrator becomes funetus officio if he allows the time for making his award to expire, it is most important that the risk of omitting to enlarge the time should not be run by trusting to memory, which may fail. Further, when the enlargement is made, it need not be for a short period, the expiration of which might possibly arrive before the award is made, thus again requiring trust to memory. The better way is to make one enlargement to cover every reasonable possibility of the award not being made by the time the enlargement expires. Another duty of the arbitrator, as soon as the proceedings begin, is to satisfy himself that the disputes with which he deals are within the terms of the submission, for any excess of jurisdiction may invalidate his award (see ante, pp. 229, 230). The preliminary meeting. Matters visually dealt with. The proceedings at this preliminary meeting are somewhat in the nature of the proceedings on a summons for directions in an action in the High Court. The subjects generally dealt with are applications by either party — (a) For particulars of his opponent's claim or counterclaim, as the case may be ; (&) For discovery and inspection of documents ; (c) For inspection of property and things (i) by parties, (ii) by the arbitrator ; (d) For delivery of points of claim and defence ; CONDUCT OF THE REFERENCE 369 (e) For the fixing of a time and place of hearing ; (/) For the arrangement of other matters to shorten or facilitate the hearing. Particulars. The arbitrator has implied power to order each party to deliver particulars of the claim, and of the counterclaim if there should be one, in order to enable his opponent to know the case he has to meet and to prepare his evidence for the trial. "What particulars are to be stated must depend on the facts of each case. But in my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which will put the defendants on their guard, and tell them what they will have to meet when the case comes on for trial" (per Cotton, L.J., in Fhilipps v. FJiilipps (1878), 4 Q. B. D. 127, at p. 139). In all cases it will be a question for the arbitrator to decide what are reasonable particulars to order, having regard to the above general principles, and he will be asked to fix and must fix a time within which the particulars are to be delivered. The time will necessarily depend upon the labour involved, and the other circumstances brought to his notice at the time when the application is made. Depending upon the terms of the submission, it may not only be necessary to order particulars, but also to define the actual disputes between the parties, though not necessarily by pleadings or points of claim and defence, and this is absolutely necessary if the disputes are not already defined by the terms of the submission. For example, in the case of disputes arising out of a contract in which there is an arbitration clause, it not infrequently happens that at the date of the appointment of the arbitrator the disputes are not fully defined. An account may have been delivered, disputes may have arisen upon that account, an arbitrator may have been appointed, yet at the date of the preliminary meeting or the hearing it may not be clear what is in dispute between the parties or what it is the parties desire the arbitrator to decide. The arbitrator must, therefore, whether the parties particularly wish it or not, obtain a clear statement of the disputes which are submitted to him for his decision. Discovery of doc^iments. The power of the arbitrators or umpire to order an affidavit of documents requires careful consideration. By clause (/) of the First Schedule to the Arbitration Act : " The parties to the reference and all persons claiming through them respec- tively shall, subject to any legal objection, . . . produce before the •arbitrators or umpire all books, deeds, papers, accounts, writings and 24 370 REFERENCE BY CONSENT OUT OF COURT documents within their possession or power respectively which ma}'- be required or called for, and do all other things which during the- proceedings in the reference the arbitrators or umpire may require." In order that it may be known what documents in relation to the matters in dispute are within the possession or power of the parties to the reference, and persons claiming through them respectively, it is necessary that the parties should either make a list or an affidavit of such documents. It seems, therefore, as ancillary to the power to- require the production of documents, that the arbitrators or umpire should have power to order a list or an affidavit of documents. The Court has no power to order discovery. Whatever jurisdiction there is in this respect is vested in the arbitrator. Illustrations. 1. A submission to arbitration had been made a rule of Court under s. 17 of the Common Law Procedure Act, 1854. One of the parties to the submission applied by summons in chambers to compel the other party to make discovery of documents. The summons being adjourned into Court, Wood, V.-C, said that he did not think that s. 50 of the Act applied to such a case as the present, even at common law. . . . That section simply applied to proceedings pending before the Courts of common law, and gave to them powers of compelling discovery which Courts of equity already possessed. The appHcation was refused (In re Anglo- Australian Banlc (1864), 10 L. T. 369). 2. An action and all matters in difference were by an order of the Court, with the consent of the parties, referred to the award of an^ arbitrator. One of the terms of the order was that the arbitrator might, if he thought fit, examine the parties to the action and their respective witnesses upon oath or affirmation, and another term was- that the parties should produce before the arbitrator the pleadings in the action, and all books, deeds, papers, and writings in their or either of their custody or power relating to the matters in difference. The arbitration being still pending the plaintiff took out a summons under the Rules of Court, 1875, Order XXXI., r. 12, for an affidavit and inspection of documents in the possession of the defendants. Held by Chitty, J., that there is, " so far as the Court is concerned, no matter in question in the action" within the rule, and that the power of the Court to make the order asked for, or any other judicatory order, was gone {Penrice v. Williams (1883), 23 Ch. D. 353). In the latter case, as will be seen, the terms of the order of the Court as to production of documents were almost identical with the provisions of clause (/) of the First Schedule to the Arbitration Act, except that the arbitrator under the Schedule has much wider power, for the parties must do all things which during the proceedings in the reference the arbitrators or umpire may require. In that case two CONDUCT OF THE REFERENCE 371 objections were taken to the application to the Court for discovery: (1) That the Court had ceased to have jurisdiction after it had made the order referring the matter to arbitration ; and (2) that the applicant ought to have made his application to the arbitrator. The Court decided the case on both grounds, and as regards the second ground Chitty, J., said, at p. 356 : " There is also a further objection taken by the defendants, that the parties having, as is sliown on the face of the order itself, themselves agreed to place the whole jurisdiction with reference to discovery in the hands of the arbitrator, it was open to the plaintiff to have made an application to the arbitrator, which he has not done." Chitty, J., therefore decided that the order by consent placed the whole jurisdiction with reference to discovery in the hands of the arbitrator, and as this order in its terms was almost identical with the provisions of clause (/) of the First Schedule to the Arbitration Act, it would seem to follow that where the provisions of that clause are deemed to be included in the submission the arbitrator has jurisdiction to make an order for an affidavit of documents. This appears to be the only case on the point. It can hardly be disputed that the parties ought in some form or another to disclose the documents in their possession or power, so as to enable the arbitrator properly to decide the disputes submitted to him. The parties,, therefore, must, if required, make either a list or an affidavit of documents. The arbitrator by s. 7 (a) of the Arbitration Act is given power to administer oaths to or take the affirmations of the parties and witnesses appearing, and by clause (/) of the First Schedule (to be implied in submissions unless a contrary intention is expressed therein), " the parties to the reference, and all persons claiming through them respec- tively, shall ... do all other things (besides producing documents) which during the proceedings on the reference the arbitrators or umpire may require." The words " do all other things . . . the arbitrators? nv umpire may require" are very wide, and may well be construed as giving the arbitrators or umpire power to require from the parties affidavits of all documents within their possession or power which, by the terms of the clause, they are bound to produce. Arbitrations ought, as far as possible, to be conducted in the same- way as any other judicial proceedings, and the words should be given such an interpretation as will enable the arbitrator so to conduct tliem. In cases where the provisions of the Schedule are excluded by a contrary intention expressed in the submission, the terms of the sub- mission in each case must be considered in order to ascertain the jurisdiction and powers of the arbitrator. In such a case, if the arbi- trator has no power to order discovery, a party cannot obtain it by any process in the Court (ante, p. 370). 372 REFERENCE BY CONSENT OUT OF COURT Inspection of documents. It would seem that the arbitrator should act on the same principles as the Court with regard to inspection of documents. The place of production would primarily be the office of the party's solicitor. Where a party does not comply with a proper and formal request to produce documents, it would seem that the arbitrator is justified in refusing to allow such party to put the documents in evidence in the arbitration, unless (following the principle of Order XXXL, r. 15) such documents relate only to the party's own title, he being, in effect, a defendant in the arbitration, or he has some other reason or excuse for non-production which the arbitrator deems sufficient ground for non- compliance with the request to produce. The terms of clause (/) of the First Schedule make the production of documents subject to any legal objection. The parties, therefore, are entitled, as they are in the High Court, to set up the recognised legal objections to production, which may be urged under the heads of legal professional privilege, disclosing the party's evidence, criminatory or penal, and injury to the public interest, besides the more general ground that the production is not necessary for disposing of the disputes between the parties or that the documents asked for are not relevant. If, on a general reference of all differences, the arbitrator calls for the production of certain books of account, it is no answer for the party who is ordered to produce them to say that they relate to settled accounts which are not in dispute, for on such a reference it is for the arbitrator to determine, for this purpose, what are the matters in dispute (Arbuckle v. Price (1835), 4 Dowl. 174). Inspection of property and things hy the parties. There does not appear to be any case in which the power of the arbitrator to order inspection of property, whether goods or other- wise, which is the subject of the dispute, has been called in question, and it would seem that if such inspection by either party is necessary for the fair trial of the dispute between the parties, the arbitrator, following the ordinary rules for the administration of justice, is at liberty to order it. He may by the terms of the submission be given express power to do so, in which case no question can arise, and if the First Schedule to the Arbitration Act is deemed to be included in the submission, he can, under clause (/), require the parties during the proceedings in the reference to give such inspection in pursuance of the provision requiring the parties to " do all other things which during the proceedings on the reference the arbitrators or umpire may require." A party cannot be ordered to give inspection of property which is not in his sole possession or power {Kearslcy v. Philips (1883), 10 Q. B. D. 465 ; Coomes & Son v. Hayivard, [1913] 1 K. B. 150). CONDUCT OF THE REFERENCE 373 Illustration. In an action against a tenant in common, an order was made that the defendant should allow the plaintiff to enter upon and inspect the common property. The defendant appealed against this order and it was held that the case of Kearsley v. Philips {supra) applied in principle to land as well as to documents, and that there was no power in the Court to make such an order, and it must be set aside (Coomes & Son v. Hayward, [1913] 1 K. B. 150). By the arhitrator. As regards the right of the arbitrator himself to inspect property or view premises, when such right is not expressly conferred upon him by the submission, it appears to be quite clear not only that he has the right to view, but that it is in his discretion whether he will view or not. " It is a matter quite in the discretion of an arbitrator whether he will view premises or not^' {per Erie, C.J,, in Munday v. Black (1861), 30 L. J. C. P. 193). Illustration. An arbitrator was requested by one of the parties to the dispute to view the premises in question. This he refused to do, and awarded without a view. Held that the matter was entirely in his discretion, and that his refusal did not form a ground upon which his award could be set aside {Munday v. Black, supra). When the provisions of the First Schedule to the Arbitration Act are deemed to be included in the submission, it would seem that the arbitrator could, within the powers before referred to, require the parties to show him the property. Such a requirement would not be any departure from the ordinary rules for the administration of justice, for by Order L., r. 4, it is made lawful for any judge to inspect any property or thing concerning which any question may arise. Where it is a term of the submission that the arbitrator shall view the premises, it is his duty to do so. In such a case he has no discretion in the matter {Spence v. Eastern Counties Bail. Co. (1839), 7 Dowl. 697). A view or inspection does not do away with the necessity for evidence {London Gen. Omnibus Co. v. Lavell, [1901] 1 Ch. 135), except in cases where it is clear from the terms of the submission that the arbitrator was appointed on account of his skill and knowledge of the subject, and that it was intended that he should decide without receiving evidence {Johnston v. Cheape (1817), 5 Dow, 247); Points of claim and defence. In some cases it may be desirable that pleadings or points of claim and defence shall be delivered, so that each party may know the exact issues which have to be tried and the case he has to meet. Points of 374 REFERENCE BY CONSENT OUT OF COURT claim and defence are similar to pleadings in an action. The arbitrator has a discretion to order them, and after hearing the parties he should do so if he thinks that they are necessary for properly defining the issues to be tried. See cases infra. If he decides to make such an order, he ought to fix a time within which the claim and defence respectively are to be delivered, giving so long after the delivery of the claim for the delivery of the defence. The time allowed in each case should be reasonable. Amendments. The arbitrator has a discretion, except in so far as the discretion may be limited by the terms of the submission, to refuse or allow amendments during the proceedings in the claim or defence, if applica- tion is made to him for that purpose. Illustrations. 1. It was agreed between the parties that all points in dispute in reference to a contract for the sale and purchase of a certain property should be referred to arbitration, and the Court held that the arbitrator had the widest powers of allowing amendments in order that the parties might raise points not disclosed in the documents before him, and to allow evidence to be given before him to entitle one of the parties to claim a rescission of the contract (Edtvard Lloyd, Ltd. v. Sturgeon Falls Pulp Co., Ltd. (1900), 85 L. T. 162). 2. A dispute arose over a policy of insurance, and all matters in ditference were referred to arbitration. The solicitors for both parties attended before the arbitrator, who on their suggestion directed points of claim and defence. These were delivered. The arbitrator eventually held a sitting and one party desired to amend his points of defence. Held that the arbitrator had a discretion to allow or refuse to allow the amendment (hi re Crighton and Law Car and General Insurance Corporation, Ltd., [1910] 2 K. B. 738). In this case Lord Coleridge, J., said : "The amendment that was asked to be introduced arose under the provisions of condition 5 of the contract contained in the policy. Leave to insert an allegation of the non-fulfilment of that condition by way of amend- ment as an additional point of defence was asked. In those circum- stances we are of opinion that the arbitrator has a discretion to admit the amendment or to refuse permission to make it." It must always be borne in mind that the arbitrator has no power to allow an amendment the effect of which would be to alter the terms of the submission under which his powers arise; that is to say, he cannot, without the agreement of the parties in writing, allow a fresh dispute to be introduced as an amendment which is not comprised in the submission. Nor can he strike out any substantial ground of claim that is presented to him {Wilson v. Conde d'Eu Bail. Co. (1887), 51 J. P. 230). CONDUCT OF THE REFERENCE 375 If, however, the submission is wide enough to cover all disputes ■which may arise, he may, and indeed must, hear all such disputes, and may therefore allow disputes to be brought before him during the pro- ceedings. The arbitrator, however, has a discretion as to costs under the provisions of clause (i) of the First Schedule to the Arbitration Act. On the other hand, when disputes are definitely submitted to the arbitrator, and a party announces his intention of withdrawing any claim, or of not calling any evidence in respect thereof, the arbitrator must, in the absence of consent by the other party, deal with such claim by his award, otherwise there would be no decision by the arbitrator on the subject, and the party withdrawing the claim might afterwards prosecute such claim in some other way. It is advisable in such a case that the arbitrator should in his award recite the matters submitted to him, and show by the award that he has dealt with or decided all the claims submitted to him. In dealing with amendments generally, the arbitrator should follow the principles adopted by the Courts. The main principle is that amendments should be allowed when they can be made without manifest and grave injustice. Generally speaking, any injustice which might otherwise be done can be cured by an order that the party asking for the amendment shall pay the costs occasioned thereby. In Cropper v. Smith (1884), 26 Ch. D., at p. 74-4, Bowen, L.J., said : " There is one panacea which heals every sore in litigation, and that is costs. I have very seldom, if ever, been unfortunate enough to come across an instance where a person has made a mistake is his pleadings which has put the other side to such a disadvantage as that it cannot be cured by the application of that healing medicine." JSFo potver to require security for costs. An arbitrator has no power to require the parties to give security for costs, unless there is an express provision to that effect in the submission {Lanza v. Wiener, [1917] 2 K. B. 558). Fixing time and place of hearing. In fixing the place of trial the arbitrator should take all the circum- stances into consideration and decide according to the balance of convenience. The chief circumstances to be taken into consideration are the place where most of the witnesses reside, the situation of the subject-matter of the dispute, and the balance of convenience and expense. When the place is fixed, it is the duty of the solicitor having the conduct of the arbitration to engage a room and make all reasonable arrangements for the hearing. ^76 REFERENCE BY CONSENT OUT OF COURT Discretion of arbitrator as to meetings and adjournments. Unless otherwise provided by the submission, the time and place of hearing, and the fixing of adjournments from time to time, rest with the arbitrator, who, in making appointments, exercises a discretion vested in him, and, provided he exercises it in accordance with principles of natural justice, his award will not be impeachable by reason of the way in which he has used such discretion. The arbitrator, in fixing appoint- ments, cannot always suit the convenience of everyone. His duty, therefore, is to hear any application which may be made to him, exercise a judicial discretion and decide honestly ; and if he so acts, his award will not be set aside on the ground that he has exercised his discretion unreasonably. He has to judge upon such matters, as well as upon the- main merits of the case {LarcUn v. Ellis (1862), 11 W. E. 281). Illustrations. 1. "Where an award is made by rule of Court, it shall not be set aside unless there was . . . some irregularity, as want of notice of the meeting" (Anon. (1698), 1 Salk. 71). 2. R. M., a party to a reference to arbitration, had no notice of a meeting, at which, however, no business was transacted beyond adjourn- ing to another date. R. M. attended this later meeting, but raised no protest on the ground of want of notice of the former meeting. Held that he was not prejudiced by the want of notice, and that this was no ground for setting aside the award (Be Morphett (1845), 2 Dow & L. 967). 3. It is no ground to set aside an award that the solicitor takes upon him to say that he cannot attend at the time the arbitrators appoint. He must attend a reasonable appointment (Fetherstone v. Cooper (1803),^ 9 Ves. 67, per Lord Eldon, L.C., at p. 68). 4. An arbitrator, having fixed a date for the hearing, refused to- change the date, although an important witness for one of the parties had arranged to leave England a day or two before that date for a long stay. Held that his action was no ground for his removal (Be Whitiohmn and the Wrexham, Mold and Connah's Quay Bail. Co. (1895),, 39 Sol. J. 692). But a refusal to allow an adjournment so as to enable a party to call relevant evidence may, with breaches of duty in other matters, have a cumulative effect which will induce the Court to come to the conclusion that there has been misconduct in the arbitrator, Illustratioji. An umpire called a witness himself, which he had no right in the circumstances to do, and, having done so, refused to allow an adjourn- ment in order to enable a party to give evidence to test the testimony of the witness whom the umpire himself had improperly called. For this and other reasons the Court remitted the matters in dispute CONDUCT OF THE BEFERENCE 377 to the arbitrators to appoint another umpire {Enoch and Zaretzky, Bock & Co., In re, [1910] 1 K. B. 327). If either party finds that he is unable to attend an appointment, his first duty is to notify the other side and the arbitrator, so that the arbitrator may in his discretion put off the meeting and fix another day (see Uastham v. T7/ler (1847), 2 Bail Court Eep. 136). Agreement of figures and admission of Hems not in dispute. It is not unusual, where complicated figures are in question, for arrangements to be made by which the parties shall agree figures as figures only, so as to avoid the great expense of deciding such matters in the arbitration, when the figures can quite well be agreed as figures without admitting any right of a party to make any claim in respect of the matters to which such figures relate. It also may and should be arranged that items which are not in dispute shall be admitted. In dealing with such questions of figures and admissions, the arbi- trator has no power to compel either party to comply with his requests, and it may be necessary for him, for the purpose of shortening the proceedings, if either party raises unreasonable objections, to remind the party so objecting that he has a discretion as to costs, and this is a leverage which generally produces compliance. Shorthand oiotes of proceedings. The arbitrator, it would seem, has no power to employ a shorthand writer at the expense of the parties. It is the duty of the arbitrator to make his own notes of the evidence, unless the parties agree between themselves to employ a shorthand writer, and provide the arbitrator with a transcript of the notes. It should be remembered that the successful party cannot recover in the High Court, on the taxation of costs as between party and party, the cost of taking notes or transcribing the same without the direction of the Court, although the solicitors of the parties may have agreed between themselves that the shorthand notes should be part of such costs (see cases in Annual Practice) ; and this rule would, it would seem, apply to the taxation of costs on a reference. The arbitrator may, therefore, be asked to make an order in his award by whom and to whom the cost of shorthand notes should be paid, and if he is so requested, he should make his award accordingly. Arhitrator should take notes of the evidence. As a general practice, the arbitrator should himself carefully take notes in writing of everything material stated by the witnesses, in order that he may be enabled to do full justice between the parties, by going 378 REFERENCE BY CONSENT OUT OF COURT over the whole of the evidence collectively, by accurately comparing what a witness says at first with what he admits on cross-examination, and what one witness states with what another witness deposes to. Even when the case is so short that the arbitrator can safely trust to carrying all the evidence in his head, it is advisable that there should be written minutes of the evidence, in case of ulterior proceedings being taken on the award, and the arbitrator being required to give informa- tion respecting the proceedings before him and desiring to refresh his memory. Persons entitled to he 2}resent. Arbitration is a private tribunal for the settlement of disputes. The public, therefore, may not be admitted if their admission is objected to by either party or the arbitrator. The various persons who may appear are the parties themselves, all persons claiming through them respectively, and parties interested for or attending on behalf of the parties. Parties are entitled to have persons to attend to assist them in presenting their case, as, for instance, a son accustomed to his father's accounts, or a shorthand writer to take notes, and unless there is good ground to justify the exclusion of such persons when their presence is desired by a party the award may be set aside (ffaigh v. Haigh (1861) 31 L. J. Ch. 420). In this case, at p. 424, Lord Justice Turner said : " I certainly do not mean to lay it down that an arbitrator is bound to submit to insults from those who attend him ; but I think that before he excludes anyone from attending on behalf of any of the parties interested, he is bound to ascertain that there is good ground for the exclusion, and to take the best care he can that the party who is affected by the exclusion is not prejudiced by it." Illustration. At a reference one of the parties desired to have his son present, as the son had assisted him in the business in question and was well acquainted with the account, but the arbitrator, on the ground of the son's behaviour in the matter, refused to allow him to be present, and refused to allow a shorthand writer to be present also. Held that the exclusion of these persons without adequate cause entitled the party to have the award set aside without any enquiry as to its substantial justice, and that the party had not acquiesced in the reference by -attending the meetings after the exclusion (In re Haigh, Haigh v. Haigh, supra). In an earlier case (a farming dispute), where an arbitrator refused to allow a stranger skilled in agriculture to remain in the room to assist the defendant's attorney with practical hints for his conduct of the case, the Court held that it was a matter for the arbitrator's discretion, and refused to set aside the award (Tillam v. Copp (1847), 5 C. B. 211). • CONDUCT OF THE REFERENCE 379 And in a case where the arbitrators excluded the parties and their attornies, and examined witnesses privately, Abbott, C. J., said : " As to the exclusion complained of, I think it right in my situation to say that where parties refer to a private tribunal, the mode of conducting the enquiry must be left to the arbitrators, and there may be circum- stances in which it is important to exclude attornies. There is less reason certainly for excluding the parties themselves, but where both parties are excluded there is no reason of complaint " {Eewlett v. Laycock (1827), 2 C. & P. 574, at p. 576). Hearing counsel or solicitors. Generally, the enquiry before an arbitrator is assimilated as near as may be to the proceedings on a trial in the Courts. In the ordinary course, at the appointed time and place, the parties appear with their witnesses to support their respective cases. They are usually attended or represented by their solicitors or counsel, who conduct the proceed- ings on behalf of their respective clients, and it would not be safe for any arbitrator to object to such recognised procedure, or to refuse to permit solicitors or counsel to appear for either party. It was held, under a former Friendly Societies Act, that the arbitrator had a dis- cretion to refuse to hear counsel, and that he had acted rightly in refusing, having regard to the intention of the statute {In re M' Queen and the Nottingham Caledonian Societij (1861), 9 C. B. (N. S.) 793). But this case cannot be relied upon as an authority with regard to arbitrations generally. Notice of intention to appear hy counsel. If it is the intention of a party to be represented at the hearing by counsel, it is his duty to give notice of such intention to his opponent, in sufficient time to permit of his being so represented also, should he desire it. If proper notice has not been given, an adjournment should be granted by the arbitrator, if requested by the other party, in order that he may also instruct counsel to represent him. A refusal by an arbitrator to adjourn in such a case might amount to misconduct. Ilhistration. A cause having been referred, the plaintiflf appeared before the arbitrator by counsel without having given notice to the defendant of his intention to do so. The defendant asked for an adjournment to enable him to instruct counsel, and the plaintiff refused to consent except on the terms of having his costs of the day. The arbitrator having proceeded ex parte and decided in favour of the plaintiff, the Court referred the matter back to the arbitrator, and disallowed the plaintiff his costs of the day {Whatley v. Morland (1833), 2 Dowl. 249). 380 REFERENCE BY CONSENT OUT OF COURT Ordinary course of procedure at hearing. The ordinary course of procedure on a reference, as at a trial in Court, is that the party upon whom the burden of proof lies in the first instance begins, and he or his counsel opens his case and produces his evidence. When his case is closed the opposite party, if he adduces any evidence, proceeds by himself or his counsel to open his case and comment upon that of the other party; and at the conclusion of his evidence he sums up the whole case, and the party who began, or his counsel, has the right to reply. If the defending party offers no evidence, a statement is made to that effect, and the party who began, or his counsel, then sums up his case, after which the defending party or his counsel replies upon the whole case (see Order XXXVI., rr. 36, 49 ; and Roscoe's Nisi Prius Ev., 16th ed., 271). All legal defences available. All legal grounds of defence are open in answer to a claim in an arbitration, including the Statute of Limitations, unless the terms of the submission preclude such defences or any of them. " I am not quite sure whether it was contended that the Statute of Limitations did not apply at all in a case of arbitration, but if that was contended, I have no hesitation in saying that I do not attach any importance to that argument " (per Bruce, J., in lie Astley and Tyldesley Coal Co., infra). Illustration. A submission to arbitration between two colliery companies referred two questions to the arbitrator: (1) what encroachment had been made by one on the other, and (2) how one had been damaged and what compensation was payable. Some of the trespasses were committed twenty years before the action, and only came to the knowledge of the two companies eleven and three years respectively before the action. Held that the submission to arbitration did not preclude the setting up of the Statute of Limitations as a defence {Re Astley and Tyldesley Coal Co. (1899), 68 L. J. Q. B. 252 ; 80 L. T. 116). Arbitrators bound by rides of evidence. Arbitrators are bound by the same rules of evidence as the Courts of law {Attorney-General v. Davison (1825), M'Cl. & Y. 160, 166 ; Hast and West India Bock Co. v. Kirk (1887), 12 App. Cas. 738 ; 57 L. J. Q. B. 295 ; In re Enoch and Zaretzky, Bock & Co., [1910] 1 K. B. 327, explaining In re Keighley, Maxsted & Co. and Bryan Durant & Co., [1893] 1 Q. B. 405 ; 62 L. J. Q. B. 105). In Attorney-General v. Davison (1825), M'Cl. & Y. 160, at p. 166, Alexander, L.C.B., said: "I have always understood that arbitrators are bound by the same rules of evidence as the Courts of law " ; Graham, B., said : " A general state- ment has been made that arbitrators may proceed in receiving evidence * CONDUCT OF THE REFERENCE 381 without reference to principles of law or equity. Now we know that position to be contrary to law and the practice of the Courts"; and Hullock, B., said : " I never understood that arbitrators were at liberty to deviate from those rules which govern the Superior Courts. . . . I agree . . . that this is not legal evidence, and, if it is not legal evidence, that it ought not to be received." In East and West India Dock Co. v. Kirh (supra) a rule had been obtained to show cause why the submission to arbitration should not be revoked on the ground that the arbitrator had admitted evidence which was in point of law inadmissible and exceeded his jurisdiction ; this rule was discharged by the Divisional Court and their decision was affirmed by the Court of Appeal. On appeal to the House of Lords, Lord Halsbury, L.C., said, in the course of the argument, that their Lordships had no doubt that they had jurisdiction to give leave to revoke the submission if there was reasonable ground for supposing that the arbitrator was going wrong in point of law, even in a matter within his jurisdiction. And the submission would have been revoked had not the parties consented to an order that the arbitrator should state, as part of and on the face of his award, all the purposes for which he had received, and the effect, if any, which he had given to the evidence to the receipt of which objection was made, and which had 4)een held by the arbitrator to be relevant and admissible. Illustration. Commissioners, who were in the position of arbitrators, admitted as evidence depositions taken without the party, against whom it was proposed to use them, having any opportunity of being present at the examination or of cross-examining the witnesses. It was held that such evidence was not legal evidence, and that the commissioners should not have admitted it {Attorney-General v. Davison (1825), M'Cl. & Y. 160). Arbitrator should generally hear all the material evidence tendered. The arbitrator should hear all the evidence material to the question which the parties choose to lay before him as on a trial before a jury. It has been said that he may exercise some discretion as to the quantity of evidence he will hear {Nickalls v. Warren (1844), 6 Q. B. 615, per Lord Denman, C.J., 618 ; S. C. 14 L. J. Q. B. 75. See Maplin Sands, In re (1849), 71 L. T. 56, 594) ; but declining to receive evidence on any matter is, in ordinary circumstances, a delicate step to take, for the refusal to receive proof where proof is necessary is fatal to the award (Johnston v. Cheape (1817), 5 Dow, 247). " The first and most important question in this case is, what was the subject in dispute between the parties when this arbitration was had recourse to ? That is a subject upon which, according to all the 382 REFERENCE BY CONSENT OUT OF COURT authorities, parol testimony may be received, and of course must b& received, because otherwise arbitrators might be taking upon them- selves to determine matters which had never been in any way sub- mitted to them " (j)er Fry, J., in Re an Arbitration between Green & Co. and Balfour & Co. (1890), 63 L. T. 325, at p. 327). The award may be impeached if the arbitrator makes his award without having heard all the evidence or having allowed the parties a reasonable opportunity of proving their whole case. Illustrations. 1. If an arbitrator, to whom an action for not repairing a house has been referred, makes his award on a view of the premises without calling the parties before him, the Court will set aside the award ; for, though the premises may almost tell their own tale, yet there may be other facts which ought to be enquired into, such as payments by the party, or excuses for not repairing (Anon. (1814), 2 Chit. 44). 2. On a general reference by an executor respecting differences between his testator and a third person, an arbitrator is not justified in rejecting evidence offered by the executor to show that he has no assets to meet the demand upon his testator's estate (Riddell v. Sutton (1828), 5 Bing. 200). 3. An action brought to recover the price of a phaeton which had been built under a written contract was referred to an arbitrator. The plaintiff produced seven witnesses and requested that they might be examined, but the arbitrator, after inspecting the phaeton, said that it was no use examining the witnesses. He proceeded, however, to hear the defendant's witnesses and ultimately made his award in favour of the defendant. On the hearing of a rule nisi to set aside the award, it was held that the arbitrator was bound to examine the plaintiff's witnesses, and as he had failed to do so the award must be set aside (Phipps V. higram (1835), 3 Dowl. 669). 4. Disputes between a landlord and tenant were referred to two arbitrators and an umpire in accordance with the terms of the lease. The landlord said that "he would leave the matter in his arbitrator's hands, and that the valuation would be paid." On 23rd May the arbitrators and umpire met and agreed upon their award, subject only to the umpire taking legal advice upon one point. The landlord, being dissatisfied with the course of the arbitration, put in a claim to be heard. About 26th May this claim came to the ears of the umpire, who refused the application on the ground that the arbitration was closed on 23rd May, and that it was not competent for him to reopen it. The award was made on 5th June. Held that, as the arbitration could not be closed until the reserved points of law were determined, it was not concluded on 23rd May, and that the refusal by the umpire to hear the lessor was sufficient ground for setting aside the award (Be Maunder (1883), 49 L. T. 535. See also Pejt);?er v. Gorham (1825), 4 Moo. 148; Pitt V. Dawkra (undated), 2 Vern. 251). * CONDUCT OF THE REFERENCE 383 Evidence onust he tendered. In order to make out a case entitling the party to impeach the award, the witnesses must be distinctly tendered to the arbitrator for hearing. It is not enough to put an abstract proposition to an arbitrator, and upon his answer to decline to give evidence or prefer a claim. The party should tender a specific case and specific evidence (Craven v. Craven (1817), 7 Taunt. 644; Glazehrook v. Davis (1826), 5 B. & C. 534). JYeiv evidence after accounts closed. After an accountant employed under the arbitrators had made his report to them respecting the accounts, and it was agreed that he should close the accounts, one of the parties, having found some new docu- ments respecting the accounts which had been closed, tendered them in evidence to the arbitrators at the last meeting in the reference. The arbitrators, after looking at them to see their general nature, refused to protract the arbitration in order to sift those papers, and, declining to receive them, made their award. Coleridge, J., held that this was merely a rejection of evidence by the arbitrators, and afforded no ground for impeaching the award, and said : " The arbitrator, learned or lay, is judge of the law, and if he makes a mistake the parties are bound ; but if an arbitrator refuses to take into consideration matters which are submitted to him, he does not do the duty which he has undertaken to do. ... I must act on the view that this was merely a rejection of evidence " (In re Marsh (1847), 16 L. J. Q. B. 330, at p. 333). When arbitrator may refuse to hear evidence. Where a submission recited that the arbitrator had been appointed on account of his skill and knowledge of the subject, and one of the parties brought before him a statement of certain facts which he alleged to be material, and offered to support it by proof, the House of Lords held that the arbitrator was justified in refusing to receive it, if, taking all the matters alleged to be facts into consideration, with his own local knowledge to guide him, and all the circumstances in his view, he felt that such facts would have no effect upon his determination (Johnston V. Cheape (1817), 5 Dow, 247). So, where it was referred to surveyors to settle the amount of rent and the other terras of a lease of a coal mine, and one objection to the award was that the arbitrators examined no witnesses. Lord Cranworth, L.C., said : " I do not agree in the suggestion that it was incumbent on the arbitrators to examine witnesses. I do not think that is the meaning, when a matter is referred to surveyors and people of skill to settle what the value of the property to be bought or let is. Necessarily, they are entrusted, from their experience and their observa- tion, to form a judgment which the parties referring to them agree shall 384 REFERENCE BY CONSENT OUT OF COURT be satisfactory ; therefore I do not think there was anything of import- ance in their not examining witnesses, provided, bond fide, they meant to say, ' We know sufficient of the subject to decide properly without examining witnesses ' " {Each v. Williams (1854), 24 L. J. Ch, 531. See Bottomlcy v. AmUcr (1878), 38 L. T. (N. S.) 545). And in Wright v. Hoivson (1888), 4 T. L. E. 386, an arbitrator experienced in cloth was held justified in deciding a dispute as to quality upon inspection of samples only. Misreception or misrejection of evidence. Prima facie no ground for imiJeaching avjard. In deciding as to admissibility of evidence tendered, the arbitrator must act honestly and judicially, and if while so acting he decides erroneously that evidence is or is not admissible, that is not in itself misconduct, and his award will not be set aside on that ground, unless the error of law appears on the face of the award {Hagger v. Baker, infra ; Armstrong v. Marshall (1836), 4 Dowl. 593 ; Perriman v. Steggall (1833), 9 Bing 679 ; 2 L. J. (N. S.) C. P. 151 ; Synus v. Goodfellow (1836), 2 Bing. K C. 532; 5 L. J. (X. S.) C. P. 153; Wilson v. King (1834), 2 C. & M. 689 ; 3 L. J. (K S.) Ex. 212 ; Camplell v. Tivemlovj (1814), 1 Price, 81 ; Faviell v. Eastern Counties Rail. Co. (1848), 2 Ex. 344; 17 L. J. Ex. 223). Illustration. A party tendered to an arbitrator books containing entries made by himself and others at his dictation. The other party objected to their being received, and the arbitrator thereupon stated that the same strict- ness in regard to the rules of evidence was not necessary in an arbitration as at Nisi Frius, and that although the books by themselves were inad- missible he should receive them. It did not appear that he had formed his judgment upon the entries. Held that this did not amount to misconduct {Hagger v. Baker (1845), 14 L. J. Ex. 227) In the above case of Sagger v. Baker, which was a decision of the Exchequer Chamber, Pollock, C.B., said : " In the case of In re Hall and Hinds, 2 M. & G. 847 ; 10 L. J. C. P. 210, which was cited on the motion for this rule, the arbitrators had not done what they intended to do; and this is the best ground on which to rest that decision, for it is certainly difficult to reconcile it with previous cases. If an arbitrator intending to act according to law makes a mistake, which is not apparent on the face of his award, the party injured thereby has no redress, and there is no difference between a mistake as to law and one as to facts " ; and Parke, B., said : " I am of the same opinion. The case of Pn re Hall and Hinds has gone far enough, and in the case of Phillip V. Eran, 12 M. & W. 309 ; 13 L. J. Ex. 80, we refused to carry it further." Alderson, B., and Kolfe, B., concurred. • CONDUCT OF THE REFERENCE 385 The grounds of the decision in In re Hall and Hinds, referred to by the Exchequer Chamber in the above case, are expressed by Tindal, C. J., who said : " We consider the mistake in the present case to be a mere clerical mistake, by which the arbitrators have not expressed, in the copy of the award delivered out, the intention of their own minds, but one widely different. At the same time, the mistake, as a matter of carelessness is so gross as to amount, though not in a moral point of view, yet in the judicial sense of that word, to misconduct on the part of the arbitrators. Lata culpa, et crassa negligcntia, both by the civil law (Dig., lib. 50, tit. 16, 226; Dig., lib. 11, tit. 6, 1. 1) and our own, approximate to and cannot be distinguished from dolus mains or mis- conduct. We think we do not extend the jurisdiction of the Court beyond its limits when we give relief under such peculiar circumstances, by holding this to fall within the power of the Court to give relief in cases of arbitration" {In re Hall and Hinds (1841), 10 L. J. C. P., at p. 212). This was an exceptional case, and the mistake was extraordinarily gross, as appears from the facts as stated below, and the decision of the Court appears to be well expressed in the headnote of the case : " The Court will set aside an award, though good on the face of it, upon distinct evidence that the arbitrators have made a gross mistake contrary to their judgment and intention." Illustration. On a reference to three arbitrators, A. admitted owing B. £143. B. claimed a larger sum as due to him. The arbitrators found £75 more was due, but, instead of adding the two sums together, deducted £75 from £143, and by their award directed B. to pay the balance of £68 to A. On affidavit of these facts by two of the arbitrators the award was set aside {In re Hall and Hinds (1841), 10 L. J. C. P. 210). ' In the other ease referred to {Phillips v. Uvans), Parke, B., said : " I am far from saying that the decision of the Court of Common Pleas in Ee Hall and Hinds is not correct, for it must be observed that there the arbitrators' mistake was apparent on the face of the award, and that they themselves made an affidavit. But I am not disposed to enlarge the rule that was there laid down. I think it better to adhere to the general principle of not allowing awards to be set aside for mistakes, although such principle may be productive of some injustice in the particular case, than to go a step beyond it " {Phillips v. Hvans (1843), 13 L. J. Ex. 80). Illustration. In the above case the arbitrator omitted by mistake a sum admitted to be due to the plaintiflT, the result being that he awarded in favour of the defendant instead of the plaintiff. It appeared on affidavit that on 25 386 REFERENCE BY CONSENT OUT OF COURT the error being pointed out the arbitrator admitted it and requested the defendant to allow him to reconsider his award, which the defendant refused. The error did not appear on the face of the award, nor did the arbitrator make any affidavit. The Court refused to set aside the award {PhiUijJS v. Evans (1843), 13 L. J. Ex. 80). Applying the principle in the above cases, the following rule, as an exception to the general rule, may be laid down, namely, that if upon distinct evidence it is shown that the arbitrator has made a gross mistake, whether of fact or law, contrary to his judgment and intention, that will amount to misconduct for which the award may be set aside. The general rule that an award is final both as to fact and law, and that a mistake of the arbitrator is no ground for setting it aside, is further exemplified by the decision of Channell, J., in King and Buveen, In re, [1913] 2 K. B. 82, at p. 36, that when "a specific question of law is submitted to an arbitrator for his decision and he does decide it, the fact that the decision is erroneous does not make the award bad on the face so as to permit of its being set aside." Evidence excluded so as to amount to a reficsal to decide issue suhmittcd. Recently it has been held by a Divisional Court that if the effect of an arbitrator refusing to hear or excluding evidence is that he thereby declines to decide the very issue that was submitted to him, that may amount to misconduct which would entitle a party to have the award set aside {Williams v. Wallis & Cox, [1914] 2 K. B. 478). In this case Lush, J., said : " If the arbitrator did exclude the evidence it would follow that he had declined to decide the very issue that was before him. The deputy County Court judge came to the conclusion that it was unnecessary for him to decide whether the arbitrator had or had not rejected this evidence, and I think it is manifest that his reason for coming to that conclusion was that he considered that even if the arbitrator had rejected it, that would not be misconduct so as to entitle the deputy County Court judge to set aside the award. With great respect to him, I cannot agree with that view." Atkin, J., said : " The tenant's contention is that the arbitrator refused to hear any evidence upon that material issue. If in fact he did reject that evidence, that would in my opinion be evidence of misconduct upon which the County Court judge would be entitled to set aside the award." Illustration. In an arbitration arising out of a dispute over the repair of premises, it was vital to the issue which the arbitrator had to decide whether the condition of the demised premises was worse when the tenant went out than when he entered in 1906. It was alleged that the arbitrator excluded evidence as to the condition of the premises in 1906, and the question CONDUCT OF THE REFERENCE 387 whether he did or did not exclude such evidence was a question for the deputy County Court judge to decide, but the deputy County Court judge came to the conclusion that it was unnecessary to decide this question. Held that the case must go back to him to decide it {Williams V. Wallis & Cox, supra. See also Samuel v. Cooper (1835), 2 A. & E. 752; Brophy v. Holmes (1828), 2 Molloy, 1). Receiving inadmissible evidence which goes to the root of the issue suhmittcd. In a later case decided by the same Court it was held that an arbitrator who wrongfully admitted evidence which went to the root of the question submitted to him was guilty of legal misconduct, and the award was set aside on this and other grounds. Illustration. A contract for the sale of sugar contained no provision for the sus- pension of deliveries " if the production by the sellers was prevented or lessened by causes beyond their control," nor any similar clause. Owing to a cause beyond their control, the production by the sellers was lessened. Disputes having arisen, recourse was had to arbitration. A former contract between the parties containing such a suspension clause as the above was produced to the arbitrator by the sellers. The arbitrator awarded simply that "the sellers are entitled to suspend delivery under this contract." The Court were satisfied that, in making this award, the arbitrator was influenced by the terms of the earlier contract. Held that the award must be set aside on the ground that the arbitrator had been guilty of legal misconduct, inasmuch as he had in making his award looked to a document other than the contract, which was the only matter before him, or, in other words, had allowed to be given, and had acted upon, evidence which was wholly inadmissible and which went to the root of the question submitted to him for decision (JValford, Baker S Co. v. Macfie & Sons (1915), 84 L. J. K. B. 2221). Lush, J., at p. 2223, said: "There is another way in which this conclusion might be justified. It may be that the rules of evidence which are acted on in these Courts may not be strictly enforced in pro- ceedings before a lay arbitrator. It is unnecessary to express an opinion whether that is so or not. But when it appears that an umpire allows to be given, and acts upon, evidence which is absolutely inadmissible, and which goes to the very root of the question before him, this Court has ample jurisdiction to set the award aside on the ground of legal misconduct on the part of the umpire. Furthermore, this award ie inconclusive, and on that ground also it cannot stand." " Legal misconduct " is an ambiguous term, though constantly used. It would seem that it means misconduct in the judicial sense of the word, not from a moral point of view (see the quotation ante, p. 385, from the judgment of Tindal, C.J., in the case of In re Hall and Hinds 388 REFERENCE BY CONSENT OUT OF COURT (1841), 10 L. J. C. P., at p. 212), and means, for example, some honest, though erroneous breach of duty causing a miscarriage of justice. Receiving evidence of collateral matter. The arbitrator is authorised to enquire into matters not submitted to him, if that enquiry be necessary to enable him to decide rightly upon the questions before him; and even if he receives evidence on matters not properly affecting the points upon which he "has to decide, the objection only amounts to the reception of improper evidence, and is no such excess of authority as to induce the Court to set aside the award {Eastern Counties Bail. Co. v. Rohertson (1843), 1 D. & L. 498 ; 6 M. & G. 38). And where the arbitrators had taken evidence on matters not referred, but not shown to have been irrelevant to the enquiry or to have been taken into account in the lump sum awarded, it was held that the award was not bad {Falkingliani v. Victorian Rail. Commis- sioners, [1900] A. C. 452 ; 60 L. J. P. C. 89). Arbitrator to take notice of stamps on documents. The arbitrator or referee, even though the parties do not take the objection, is bound by the Stamp Act, 1891, to take notice of any omission or insufficiency in the stamping of any document produced before him. He is also to require payment of the necessary duty and penalties before receiving it in evidence. Arbitrator himself calling vntness. The arbitrator would be guilty of a breach of duty if, contrary to the will of the parties, he called a witness to fact. The will of the parties may be expressed during the proceedings or in the submission, but, unless with the consent of the parties, an arbitrator has no right to call a witness himself. " It is certainly not the law tbat a judge or any person in a judicial position, such as an arbitrator, has any power himself to call witnesses to fact against the will of either of the parties. There may in some cases be a person whom it would be desirable to have before the Court ; but neither party wishes to take the responsi- bility of vouching his personal credibility, or admitting that he is lit to be called as a witness. In such a case the judge may relieve the parties by letting him go into the box as a witness of neither party ; and of course if the answers are immaterial he may refuse to allow cross- examination " {2Jer Lord Moulton in Enoch and Zaretzky, Bock '& Co., In re, [1910] 1 K. B. 327, at p. 333). In this case Farwell, L.J., said: "If an umpire knows of a witness who can give evidence, he should inform both of the parties and invite them to call him." CONDUCT OF THE REFERENCE 389 Examination of witnesses on oath. See commentary ou s. 7 of the Act, ante, pp. 136-139. Examination of sick or infirm jjersons. An'arbitrator may properly and conveniently take the examination of a sick or infirm person at that person's own residence {Tillam v. Copj) (1847), 5 C. B. 211). Applications for adjournments. One of the duties of an arbitrator is to do nothing to prevent a party from calling his evidence. And if an arbitrator refuses to allow a reasonable adjournment so as to enable a party to call relevant evidence, that may amount to misconduct. Whether it does so or not depends on the circumstances {In re Enoch and Zaretzky, Bock ^- Co., [1910] 1 K B. 327, cited ante, p. 377). But it is not in all cases that an application for an adjournment should be granted. Applications of the kind are constantly made for the purpose of delay. The duty of tlie arbitrator appears to be as expressed by the Court in Larchin v. Ellis (1862), 11 W. K. 281, at p. 282. " It was by no means obligatory upon the arbitrators to allow of any delay that was asked for within the time during which they were bound to make their award. It was for them to judge, in the first place, whether the application for further time was honcl fide, or only for delay. And even supposing it to be hond fide, still they were to judge whether it was reasonable " (see also ante, p. 376). Duty to proceed only v:hen both parties pircsent. Both sides must be heard, each in the presence of the other. However immaterial the arbitrator may deem a point to be, he should be very careful not to examine a party or a witness upon it, except in the presence of the opponent. If he errs in this respect he exposes himself to the gravest censure, and the smallest irregularity is often fatal to the award {Harvey v. Shelton (1844), 7 Beav. 455 ; 13 L. J. Ch. 466 ; Hick, In re (1819), 8 Taunt. 694 ; Drew v. Drevj (1855), 2 Macq. 1 ; Tidswell, In re (1863), 33 Beav. 213). " They [the arbitrators] heard him [one of the parties], but then they examined witnesses against him when he was not present, and did not give him the opportunity of cross-examining those witnesses. That is a wrong procedure in the arbitration ; but nevertheless they did that to come to a decision, and they came to a decision. . . . That does not make the decision void. It only gives ground for a Court to set it aside or for an appeal " [to the tribunal specified in the agreement to refer] {per Lord Esher, M.Pt., in Bachc v. Billinyham, [1894] 1 Q. B. 107, at p. 110. See also ^er Lopes, L.J., at pp. 112 and 113). Where some witnesses attended before the arbitrator to give 390 REFERENCE BY CONSENT OUT OF COURT evidence on behalf of the defendant, and the arbitrator, notwith- standing that the parties, pursuant to his recommendation, had agreed to produce no inore evidence, received the testimony of these witnesses,, the parties and solicitors on both sides being absent, Lord Eldon, L.C.,. set aside the award on the ground that the evidence had been improperly admitted, although the arbitrator swore that the evidence thus received had had i?o effect on his award — the learned Lord Chancellor being of opinion that no Court should permit an arbitrator to decide so delicate a matter as whether a witness examined in the absence of one of the parties had an influence on him or not ( Walker V. Frohisher (1801), 6 Ves. 70. See also Fetherstone v. Cooper (1803), 9 A^es. 67). The Court of Queen's Bench on two subsequent occasions adopted the rule so laid down by Lord Eldon {Bohson v. Groves (1844), 6 Q. B. 637 ; 14 L. J. Q. B. 17 ; Flews and Middleton, In re (1845), 6 Q. B. 845 ;: 14 L. J. Q. B. 139). And in Dreio v. Dreio (1855), 2 Macq. 1, Lord Cranworth, L.C., said, at p. 2 : " The arbitrator is bound to proceed fairly and honestly, and to conduct himself without bias or partiality towards either side ; and he subjects himself to the gravest censure if he acts otherwise." And at p. 3 : "I wish to be understood as not in the slightest degree questioning or insinuating a doubt against the authorities which have been referred to, laying down that an arbitrator miscon- ceives his duty if he in any the minutest respect takes upon himself to listen to evidence behind the back of a party who is interested in controverting it or is entitled to controvert it. . . . I agree with Lord Eldon that the principles of universal justice require that the person who is to be prejudiced by the evidence ought to be present to hear it taken, to suggest cross-examination or himself to cross-examine, and to be able to find evidence, if he can, that shall meet and answer it ; in short, to deal with it as in the ordinary course of legal proceedings." And at p. 9 : " nevertheless, if, from any reason whatsoever (and here the reason suggested is the consent of the parties), the arbitrator has examined a v/itness behind the back of the parties, and afterwards tells the parties, ' I have examined so-and-so behind your back ; do you wish that I should re-examine them ? ' and they say, ' No, we do not ; we desire you to proceed nevertheless ' ; then that is an error that may be waived. It is not enough that he should tell them, ' I have examined A. and B. behind your back, now come and let me examine them in your presence.' I think, in that case, the party might very fairly say, ' You have examined them behind my back, therefore I beg leave to say that I shall double up my papers and walk away.' " Illustrations. 1. During the conduct of a reference the arbitrator required the attendance of a witness whom neither side proposed to call. After this- CONDUCT OF THE REFERENCE 391 witness had given evidence the proceedings terminated, and the arbitrator said that he required nothing further from either of the parties. Subsequently, however, the plaintiff found the arbitrator closeted with the witness and a special pleader who was acting for the defendants, the three persons being engaged in considering the papers and plans connected with the arbitration. The arbitrator explained that the witness was explaining to him some of the plans, and the special pleader was present to give him information in con- nection with the case, by which, however, his opinion would not be biased. Held that, as there had been an opportunity for the mind of the arbitrator to have been biased by information given on behalf of one side without the other having had an opportunity of meeting it, the awards eventually made by the arbitrator must be set aside {Dohson v. Groves (1844), 14 L. J. Q. B. 17). 2. In an arbitration the arbitrators wanted some explanation as to the amount of interest due from a third person ; they each examined such person separately, and, having come to the same conclusion, they acted upon the evidence and made their award. The award was set aside {In re Pleivs and Middleton (1845), 6 Q. B. 845). In this case Coleridge, J., at p. 852, said: "To uphold this award would be to authorise a proceeding contrary to the first principles of justice. The arbitrators here carried on examinations apart from each other, and from the parties to the reference ; whereas it ought to have been con- ducted by the arbitrators and umpire jointly in the presence of the parties." Note. — The erroneous proceeding related to a very small matter. Nevertheless it was held fatal to the award. 3. An arbitrator on a reference concerning five bills of costs received two of them after the last meeting in the arbitration in the absence of the party complaining. Held a fatal objection to the award {Tidswell, Be (1863), 33 Beav. 213). 4. Arbitrators appointed to determine disputes between incoming and outgoing tenants of a farm heard a witness on behalf of one party in the absence of the other party, whom they refused to hear. Held that the award must be set aside (Oswald v. Earl Grey (1855), 24 L. J. Q. B. 69. See also Braddick v. Thoiwpson (1807), 8 East, 344; Phipps v. Ingram (1835), 3 Dowl. 669 ; Sharpe v. Bicherdye (1815), 3 Dow, 102), 5. An agreement to work a farm in partnership provided that the arbitrators or their umpires, appointed in pursuance of another clause in the agreement, should, on the dissolution of the partnership, determine the value of the farm. It was arranged that each of the arbitrators, on behalf of the party appointing him, should make a separate valuation. One of the arbitrators visited the farm, and in company only with the party appointing him went over it. An informal notice of the arbitrator's proposed visit was all that appeared to have been given to the other party ; no notice was given to the other arbitrator, and the attendance of any person to represent the other party was not requested. The arbitrator in due course made his valuation. On a motion to discharge a conditional order confirming the award, it was held that the action "892 REFERENCE BY CONSENT OUT OF COURT of the arbitrator in examining the farm in the absence of one of the parties amounted to misconduct, and that the award must be set aside (In re Brien and Brien, [1910] 2 I. R. 84). 6. Where an arbitrator in a dispute between the landlord and out- going tenant in respect of a farm spent two hours going over the farm with the tenant, in the absence of and without notice to the landlord, the award was set aside (In re Gregson and Armstrong (1894), 70 L. T. 106). Commercial arbitratiojis. Examining one party or his witnesses, or receiving evidence from •one party, in the absence of the other, is often adopted by mercantile arbitrators. But the Courts in many eases have strongly repudiated the idea that a different course is allowable, in this respect, in the case ■of mercantile referees; and although the lawful usage of merchants may be imported into the contract of reference, they have said that the practice of receiving evidence which the party affected has no opportunity of meeting is not lawful usage (Matson v. Troiuer (1824), 1 Ry. & Moo. 17; Harvey v. Shelton (1844), 7 Beav. 455; 13 L. J. Ch. 466; Brook and Delcomyn, In re (1864), 16 C. B. (N. S.) 403; 33 L. J. C. P. 246). In Harvey v. Shelton (1844), 7 Beav., at p. 462, Lord Langdale, M.E., said: "I wholly deny the difference which is alleged to exist 'between mercantile arbitrations and legal arbitrations. The first principles of justice must be equally applied in every case ; except in the few cases where exceptions are unavoidable both sides must be heard and each in the presence of the other. In every case in which matters are litigated you must attend to the representations made on both sides, and you must not, in the administration of justice, in what- ever form, whether in the regularly constituted Courts or in arbitrations, whether before lawyers or merchants, permit one side to use means of influencing the conduct and the decisions of the judge, which means are not known to the other side." Illustrations. 1. Disputes as to the condition of a cargo of rape seed were referred to two arbitrators — A. nominated by the seller and B. by the buyer, and an umpire, C, appointed by them. The arbitrators did not agree, so the matter was left to the umpirage of C, to whom A. and B. each sent a statement. Without giving notice to the seller or A. the umpire inspected samples of the seed at B.'s counting-house. He subsequently made an award in favour of the buyer. Held that the umpire had been guilty of misconduct, and that the award must be set aside (Re Brook and Delcomyn, supra). 2. The rules of an insurance company provided that " in the event of a collision occurring between two vessels insured in this company CONDUCT OF THE REFERENCE 393 . . . and damages being caused thereby to either or both of the said vessels, the owners of such vessels shall immediately submit a statement of the whole circumstances of the collision . . . and the directors, after receiving such statement, shall have power to arbitrate on the matter, and their decision in the matter shall be final and conclusive." A collision having occurred between the B. and the W., both vessels being insured in the insurance company, the necessary reports were made to the insurance company. A meeting of the directors was convened, but the plaintiff had no notice of such meeting and neither he nor his agent was present. The captain of the defendant's vessel was examined, but as the plaintiff was absent he had no opportunity of cross-examining him or of calling evidence or saying anything on his own behalf. The directors then passed a resolution that the defendant's vessel had not been in collision with that of the plaintiff. Held that there had not been a proper hearing of the case by the directors and their resolution could not be treated as a valid award {The " Warwick" (1890), 15 P. D. 189). Mere enquiry as to whether party admits or disputes items. It has, however, been held by the House of Lords to be no objection to an award that the arbitrator had, in the absence of one of the parties, called in the other and asked him whether he admitted or disputed certain items in an account, and had merely taken his answer to that question {Anderson v. Wallace (1835), 3 C. & !F. 26). No notice of meeting at which disputes not entered upon. Where a meeting took place of which one of the parties had no notice, but nothing was done except to discuss the question of adjourn- ment, and the meeting was in fact adjourned without the subjects of the reference being entered upon, the Court refused to set aside the award on the mere ground of the party having had no notice of the meeting {Morphett, In re (1845), 2 D. & L. 967; 14 L. J. Q. B. 259). Meeting at which points of law alone discussed. Disputes as to partnership accounts were referred to arbitration. During the arbitration proceedings one of the parties, or his arbitrator on his behalf, obtained an opinion upon a point of law arising in tiie matter from the lawyer of that party, and this opinion was produced and adopted by the arbitrators. The transaction was done without any concealment, and the opinion was correct in point of law. Subse- quently, the other party produced] the opinion of other lawyers, which seemed to be at variance with that first obtained, and a meeting was accordingly arranged between the lawyers. At one of these meetings the first-named party was present. He wished to withdraw, l)ut was told it was not necessary, and he in no way interfered with the dis- cussion. The result of the interview was that all the lawyers agreed 394 REFERENCE BY CONSENT OUT OF COURT in the opinion originally given. Held by the Privy Council that while it might have been more discreet for the arbitrators not to hold any communication with anyone in regard to the matters involved in the arbitration in the presence of one party but in the absence of the other^ as it was clear that it was only a legitimate communication, perfectly in good faith, bearing only upon the point of law and resulting in nothing except correct information about the law, the award would not be set aside {Rollancl v. Cassidy (1888), 13 App. Cas. 770). Eo: parte statements to accotmtant. AVhere in an arbitration it was arranged that the accounts should be referred to an accountant, and that either party was to be at liberty to examine the books in his presence, it was held that there was no objection to either party, when attending separately before the accountant, giving explanations respecting the items, for the accountant was not the arbitrator but only an assistant of the arbitrator {Harvey V. Shelton (1844), 7 Beav. 455 ; 13 L. J. Ch. 466). But a person to whom the duties of the arbitrator are delegated is under the same duties as the arbitrator, and in the case of an accountant who was deputed by the arbitrator, in pursuance of the terms of the submis- sion, to report upon the accounts. Turner, L.J., said, in referring to this accountant : " It is true that he states in his affidavit that he did not allow those explanations (viz. explanations given by one party in the absence of the other) to influence him in his report upon the accounts, and I have no doubt he honestly intended this to be the case ; but it is impossible to gauge the influence which such statements have upon the mind. ... I think this statement furnishes no justifi- cation for this course of proceeding " {Raigh v. Haigh (1861), 31 L. J. Ch. 420, at p. 423). Statutory arbitrator's absolute discretion. According to Turner, L.J., the award of a Government Board, such as the Eailway Commissioners, made arbitrators by statute, cannot be set aside by the Courts for hearing witnesses behind the backs of the parties, on the ground that they have an absolute discretion, and are only responsible to Parliament for its exercise {Newry and Enniskillen Rail Co. V. Ulster Bail. Co. (1856), 8 De G. M. & G. 487). Assent of parties or their agents to irregularity. The assent of the parties to what would otherwise constitute an irregularity disposes of any objection (see post, p. 414 et scq.). Illustration. Where the plaintiflF's agent for conducting the reference assented to the defendant calling upon the arbitrator alone and producing his CONDUCT OF THE REFERENCE 395 books before him, it was held that the plaintiff could not object to the award on the ground of the private meeting between the defendant and the arbitrator {Hamilton v. Banldn (1850), 3 De G. & S, 782). Arhitrator should inform oioponent of all communications from a party. In the ordinary course of an arbitration it is sometimes difficult for an arbitrator to prevent communications of some kind being made to him by one party or the other. It is a prudent course when such communications do take place and go beyond mere formal matters, such as appointments for sittings and so on, for the arbitrator to make a rule of handing over to the opponent copies of all written com- munications sent to him by a party, and to take care that no kind of communication, written or verbal, concerning the matters in dispute is made to him without giving information of it to the other side. When arhitrator empowered to proceed ex parte. Every arbitrator is authorised, by the nature of his ofiice, to proceed ex parte for good cause. It is unnecessary, though not unusual, to give him the power in express terms in the submission. No application to the Court is necessary to warrant his so proceeding, but the arbitrator is to judge for himself of the discretion of exercising his power {Wood w Leake (1806), 12 Ves. 412; Hetley v. Hetley (1789), Kyd on Awards, 100). In cases of references under order of the Court, Brett, M.E., said :. "It is a necessary implication of the powers of a referee, whether official or special, and whether he has to try the matter or to report, that he has power, subject to the control of the Court, to give a peremptory appointment for the hearing of the reference, and in case of default of appearance by either party, to proceed with the reference in his absence" (Wenlock {Baroness) v. Biver Dee Co. (1883), 53 L. J. Q. B. 208). It would seem that a similar implication arises in the case of an arbitration under a submission, because, otherwise, either party ,^ by refusing to attend, could render the arbitration abortive, and in effect revoke the submission. Party neglecting to attend. If one of the parties, after having been duly summoned, neglects to attend before the arbitrator, and the latter is of opinion, from the circumstances which are brought to his notice, that the party is absenting himself with a view to prevent justice and defeat the object of the reference, it is the arbitrator's duty to give due notice to the absent party that he intends, at a specified time and place, to proceed with the reference, whether the said party shall attend or not. If this notice is ineffectual to secure his attendance, and he- 396 REFERENCE BY CONSENT OUT OF COURT does not allege some excuse satisfactory to the arbitrator, the latter not only may, but ought, to proceed ex parte {Waller v. King (1724), 9 Mod. 63; Wood v. Leake (1806), 12 Ves. 412; In re Hall and ATiderton (1840), 8 Dowl. 326). Party attempting to revoke. When a party has ineffectually attempted to revoke the submission, and refused to attend a meeting on the ground that the arbitrator has no authority, the arbitrator may proceed ex parte at once {Harcourt T. Bamshottom (1820), IJ. & W. 512). Notice of intention to proceed ex parte. In general, the arbitrator is not justified in proceeding ex parte ■without giving the party absenting himself due notice. It is advisable to give the notice in writing to each of the parties or their solicitors. It should express the arbitrator's intention clearly, otherwise the award may be set aside {Gladtvin v. Chilcote (1841), 9 Dowl. 550; Scott v. Van Sandau (1844), 6 Q. B. 237). An ordinary appointment for a meeting with the addition of the word " peremptory " marked on it is, however, sufficient {Gladiuin v. Chilcote, siipra ; Doddington v. Hudson (1S23), 1 Bing. 384). If the arbitrator declines to proceed on the first failure to attend a peremptory appointment, and gives another appointment, he is not authorised to proceed ex 'parte at the second meeting, unless the appointment for it was also marked peremptory or contained a similar intimation of his intention {Gladwin v. Chilcote, suprci). Where, however, in an action against a tenant for dilapidations which was referred, the arbitrator appointed a meeting for a view and "to go into the reference," and the defendant having attended the view and withdrawn without saying anything, the arbitrator there- upon proceeded ex parte and made his award, the Court refused to set the award aside {Tryer v. Shaio (1858), 27 L. J. Ex. 320. See Angus v. >S'm7/^/ms (1861), 2 r. & F. 381 ; He^vitt and Portsmouth Waterworks Co., In re (1862), 10 W. E. 780). Whether notice requisite when authority denied. If a party says " I will not attend, because you (the arbitrator) are receiving illegal evidence, and no award which you can make will be good," the arbitrator may go on with the reference in his absence ; and it seems that it is not necessary in such a case to give the recusant any notice of the subsequent meetings. But, though it may not always be necessary, it is certainly advisable that notice of every meeting should be given to the party who absents himself, so tliat he may have the opportunity of changing his mind, and of being present if he pleases CONDUCT OF TBE REFERENCE 39? {Scott V. Van Sandatt (1844), 6 Q. B. 237 ; Harcourt v. Ramshottom (1820), 1 J. & W. 512 ; Bignall v. Gale (1841), 2 M. & G. 830; 10 L. J. (N. S.) C. P. 169 ; Kyle, In re (1838), 2 Jur. 760). Railway Companies Arbitration Act, 1859. By the Eailway Companies Arbitration Act, 1859 (22 & 23 Vict, c. 59, s. 20), "The arbitrator, and the arbitrators, and the umpire respectively, may proceed in the absence of all or any of the companies in every case in which, after giving notice in that behalf to the com- panies respectively, the arbitrator or the arbitrators or the umpire shall think fit so to proceed." Lands, Raihvays, and Companies Clauses Acts. Under the provisions of the Lands Clauses Act, 1845 (s. 26), the Eailvvays Clauses Act, 1845 (ss. 127 and 131), and the Companies Clauses Act, 1845 (s. 129), powers are given to one of two arbitrators to proceed ex parte, if the party who appointed the other arbitrator fails for a certain time to appoint another in his place in the event of the death, incapacity, or refusal to act of the arbitrator so appointed. Requiring matters in difference to he stated in writing. If on a reference " of all matters in difference " many questions are discussed, it is a prudent course for the arbitrator, before the close of the case, to request the parties to put down in writing the matters on which they respectively require him to adjudicate. For, provided that he decides on the matters set out in the written statements, the award will be considered good and final {Angus v. Redfo7\l (1843), 11 M. & W. 69; 12L. J. Ex. 180). Making interlocidory aivard. The arbitrator is sometimes empowered, before making his final award, to regulate by interlocutory awards the intermediate enjoyment, or to give directions respecting the intermediate management of some subject of dispute, as, for instance, the mode in which a stream of water, in which the parties claim opposing rights, is to be used pending the reference. These, from their very nature, are intended to have a temporary effect only {Wrightson v. Byivater (1838), 3 M. & W. 199; Manser v. Heaver, 1832, 3 b'. & Ad. 295). Closing i^'^^oceedings. The proceedings in an arbitration end, as a general rule, with counsel's speeches, the arbitrator then informing the patties that he will make liis award in due course. He must be careful not to allow any mistakes to take place as to his intentions. He should make it clear, if there is any possibility of 398 REFERENCE BY CONSENT OUT OF COURT iloubt, that the proceedmgs are at an end {Maunder, Be (1883), 49 L. T. 5o5 ; Peterson v. Ayre (1854), 14 C. B. 665, 677 ; Pei^inr v. Gorham (1820), 4 Moo. C. P. 148 ; Earl v. Stodcer (1691), 2 Vern. 251), and that he will proceed to make his award. Thus, if, after promising to hear some witnesses, he makes his award without calling them, or giving notice that he shall not examine them {Earl v. Stocker (1691), 2 Vern. 251) ; or if, after declaring that he can take no further proceedings in the reference till some books of account have been looked into and examined, he makes his award without giving notice to the parties that he has found the inspection of the books unnecessary {Pepper v. Gorham (1820), 4 Moore, 148), the award may be set aside. Closing case too hastily. If, though there has been some needless delay, an arbitrator does not give the party who has caused it proper opportunity to go into liis case, but makes his award too hastily, without giving due notice of his intention to do so, the Court will set the award aside {Dodclington v. Hudson (1823), 1 Bing. 384 ; Bedington v. Southall {1^11), 4 Price, 232 ; Gladtvin v. Chilcote (1841), 9 Dowl. 550; Haigh v. Haigh (1861), 31 L. J. Ch. 420 ; 3 De G. F. & J. 157 ; Tryer v. Shaiv (1858), 27 L. J. Ex. 320). Where a party desired tlie arbitrator to defer making his award until he should satisfy him as to some things which the arbitrator took to be against him, and as this was within two or three days before the time for making the award was out, the arbitrator refused his request, and made his award, and it seemed that there was a just ground for the plaintiff's desire to be heard, though it did not appear that he was ready to be heard within the time, the Court set aside the award {Spettigue v. Carpenter (1735), 3 P. W. 361). So, where, while the matters were still open, one party asked to be heard and the umpire refused and made his award, it was set aside {Maundxr, In re (1883), 49 L. T. 535). Party asking for time. If a party is surprised by an unexpected case set up by his opponent, and asks for time to enquire into the matter, it is proper for the arbi- trator to comply with his request, and to give reasonable opportunity for investigating the matter {Solomon v. Solomon (1859), 28 L. J. Ex. 129). Where an arbitrator refused to wait for the return of an alleged material witness, absent on a voyage to China, and made his aw\ard, the Court declined to interfere with the exercise of his discretion {Cinder v. Curtis (1863), 14 C. B. (N. S.) 723). Be-opening case. The arbitrator is not functus officio until he has made an award. Until then either party can make any application to him he pleases, CONDUCT OF THE REFERENCE 399 and the arbitrator, still having jurisdiction, must deal with such applica- tion. Though the case has been formally closed, it is in the discretion of the arbitrator whether he will re-open it and receive further evidence {Bignall v. Gale (1841), 2 M. & G. 830; 10 L. J. C. P. 169; Ringer v. Joyce (1815), 1 Marsh. 404. See Hall and Anderton, In re (1840), 8 Dowl. 326 ; Hemming v. Parker (1866), 14 W. E. 328). Where award remitted. Where the whole case is referred back to the arbitrator by the Court, he should hear additional evidence, if tendered, otherwise objection may be taken to the award {Nickalls v. Warren (1844), 6 Q. B. 615 ; 14 L. J. Q. B. 75). 4. Delegation of duties by arbitrator. An arbitrator must not, generally speaking, delegate his duties. Delegatus non j^oiest delegare. " One who has an authority to do an act for another must execute it himself, and cannot transfer it to another ; for this, being a trust and confidence reposed in the party, cannot be assigned to a stranger, whose ability and integrity were not so well thought of by him for whom the act was to be done " (Bac. Ab. " Authority," D, Vol. I.). "Arbitrators cannot refer their arbitrements to others, nor to an umpire ; if the submission be not so : neither can they make their arbitrement in the names of themselves, and of a third person to whom no submission was made ; nor alter it after it is once made " (Anon. (1468), Jenk. 128. [Decided by all the judges of the Court of Exchequer.]). Delegating 'performance of ministerial act. It seems that an arbitrator may delegate to another the performance of acts of a ministerial character only, e.g. the measurement of the number of acres in a field or the surface of a lake are acts of such a character {Thorp v. Cole (1835), 2 C. M. & E. 369, per Parke, B., at p. 380). It is not always easy to ascertain what acts are included under the head of ministerial acts (see Stevenson v. Watson (1879), 4 C. P. D. 148 ; 48 L. J. C. P. 338). Referring costs to he taxed. One act of delegation has been recognised from early times, namely, where arbitrators refer costs to be taxed. "But now Courts of law have in some measure departed from very strict rules, as where arbitrators refer costs to be taxed, the judges have compared awards to judgments at law, which, though they must have certainty, yet the officers tax costs, and, therefore, where arbitrators give such directions it shall not vitiate the award ; though in the old cases it has been held 400 KEFERENCE BY CONSENT OUT OF COURT that arbitrators could not in any instance delegate their power " (pe7- Lord Hardwicke, L.C., in Lingood v. Eade (1742), 2 Atk. 501, at p. 504). As to referring costs to be taxed under the Lands Clauses Acts, see Metropolitan District Bail. Co. v. Sharpe (1880), 5 App. Cas. 425 ;. 50 L. J. Q. B. 14; Lauds Clauses (Taxation of Costs) Act, 1895 (58 Vict. c. 11). Arbitrators to decide hj skill and knoivledgc may consult other persons. "Where arbitrators are appointed on account of their skill and knowledge of the subject-matter referred to them, and are not required to decide by the hearing of evidence, they may consult other persons when it is necessary that they should do so in order to decide the matter submitted, and may adopt the views of the persons consulted as their own. Surveyors, for example, who have to decide as arbitrators as to the value of land must of necessity base their decision to some extent upon the information of others. " If a person is examining as to the value of an estate, nobody means to say that he is to examine every rood of land. He takes a cursory view, examines it here and there, knowing the land and the neighbourhood ; and knowing the value he asks some questions, and is in some respects guided by the answers " {per Lord Cranworth, L.C., in Eads v. Williams (1854), 24 L. J. Ch. 531). And there is no objection even to such arbitrators taking the opinion of others as to the value of the specific matter which they have to decide {ibid.). " One objection made (as to a valuation) is that Bishton (the valuer) did not exercise his own judgment about the timber. That alone is not sufficient to prove the award bad ; for a man may make use of the judgment of another upon whom he can depend; and the valua- tion of that person is his, if he chooses to adopt it " {^er Sir Eichard Pepper Arden, M.E., in Emery v. Wase (1801), 5 Ves. 846, at p. 847). On appeal Lord Eldon, L.C., said : " As to the timber, I do not mean to determine that referring the valuation of that to Thorpe would be a sufficient ground to refuse a specific performance. But by this evidence a reasonable ground is laid before me for doubting whether Thorpe's valuation is such that Bishton, adopting it, can be said to have made a reasonable valuation" {Emery v. Wase (1803), 8 Ves. 504, at p. 518). Where valuers appointed to value an estate took the opinion of two builders as to the value of the mansion-house (with the knowledge of the parties) and adopted it as their own, it was held that the award (so-called) could not be objected to on that ground {Hopcraji v. Hickman (1824), 2 S. & S. 130). Arbitrators onust form tlieir oivn judgvient. But in such cases the arbitrators must form their own judgment upon the information they have received from others. "If the two CONDUCT OF THE REFERENCE 401 arbitrators had agreed together to be bound by the opinion of the two builders whom they consulted, there would have been much weight in the objection to the award. . . . They received that opinion merely as evidence and adopted it as their own " {'per Leach, V.-C, in Hopcraft V. Hickman (1824), 2 S. & S. 130, at p. 136). Illustrations. 1. Arbitrators were appointed amongst other things to determine the value of land. They consulted a Mr. Peacock as to the value. The result of the evidence before the Court was that one of the arbitrators said, not that he consulted Mr. Peacock and was satisfied with his decision on the land as being worth £400 an acre, but that, although he did not think it worth £200, concui-red because he did not think it worth while differing. It was held that that was not an award by which the persons who had agreed to the reference were bound {Each v. Williams (1854), 24 L. J. Ch. 531). In this ease, at p. 534, Lord Cran- worth, L.C., said ; " I do not think it is fatal to the award that he [li.] relied on the report of his grandson ; neither should I have thought it an objection that they consulted P., . . . but they consult him and then make their award, not because his opinion has determined in their minds what it ought to be, but subscribing to what they think or one of them thinks wrong, because somebody else thinks it right. That was a course they had no right to take." 2. Certain questions of account were submitted to an arbitrator, who was in his award to have regard to the principles of taking accounts in certain accounts prepared by professional accountants named C. Each party submitted to the arbitrator his claim in writing, the opposite party replying in writing. The arbitrator handed over these statements and counter-statements to C. to examine and report. The arbitrator made his award in accordance with C.'s report, without further com- munication with the parties. Held that the award must be set aside, because there had been too great delegation of authority, and that it had been made in undue haste and in the absence of the parties {Eastern Counties Bail. Co. and Eastern Union Bail. Co., In re (1863), 3 De G. J. & S. 610). In the case of a reference of a builder's account to a Master the Court approved of the practice of sending an independent surveyor to report, but laid down that the rejDort must be received just like other evidence, and that the Master must hear in addition such evidence as the parties tendered {Gray v. Wilson (1865), 35 L. J. C. P. 123). In this case the reference was to a lawyer, who had to decide upon the evidence before him, and not upon his own judgment as a valuer would decide, guided though he might be by the reports or opinions of others. In Anderson v. Wallace (1835), 3 CI & Fin. 26, at p. 42, Lord Brougham said : " There is no objection taken to H.'s assistance in examining the accounts. A professional arbitrator would have examined 26 402 REFERENCE BY CONSENT ODT OF COURT him as a witness, which would have been the more regular and advisable course." Aivard not readily set aside, unless injustice done. If justice has been done the Courts will not set an award aside if they can help it, though the arbitrators may in strictness be said to have delegated their authority. " As to the second objection, with regard to the receiver, which is recommended by the arbitrators, I own 1 have grave doubts ; but as the justice between the parties is the material thing, and the award being good to a common intent, answers the purpose of parties in submitting to a reference, I am of opinion it is sufficient, for in cases of this sort in mercantile affairs, which cannot admit of certainty, it would be too nice to defeat awards upon objections of this kind" (pei' Lord Hardwicke, L.C., in Lingood v. Bade (1742), 2 Atk. 501, at p. 504). Delegation by the award. Arbitrators must not by their award delegate their duties. Illustration. It was objected to an award that the arbitrators had delegated their authority ; . . . (2) by recommending to the parties to consent to a receiver of the debts due to a partnership, and (3) by leaving the form of a release to be settled by a Master under the order and directions of the Court. The Court held that as to (2) it was only a recommenda- tion, and as to (3) that the award described what was to be done in giving releases, and, the reference to the Master being only as to form, refused to set aside the award. Lord Hardwicke, L.C., said : " And to be sure, if they have delegated their power, the award is void for the whole" (Lingood v. Bade (1742), 2 Atk. 501, at p. 504). Delegation in intrs^mnce of submission or agreement of ^parties. Arbitrators may properly delegate their duties if so authorised by the terms of the submission or by agreement of the parties, e.g. to accountants, surveyors, lawyers, &c. "His (the third party's) decision then comes before the arbitrator in the shape of an admission, which is nothing more than a matter of evidence agreed upon " {per Wilde, C.J., in Sharp v. Koiuell and Another (1848), 6 C. B. 253). Illustrations. 1. Pending a reference the parties, by a memorandum to which the arbitrator was an assenting party, agreed that a particular portion of the account in dispute between them should be settled and adjusted by a third person, whose report was to be adopted by the arbitrator as conclusive evidence. Held that this was not an improper delegation CONDUCT OF THE REFERENCE 403 ■of authority by the arbitrator {Sharp v. Nowell and Another (1848), 6 C. B. 253). 2. A submission contained a clause that the arbitrator should be attended by T. as his attorney. The award was drawn by the attorney. Held that there was no improper delegation of authority (Baker v. Cotterill (1849), 18 L. J. Q. B. 345). Where the submission authorises the delegation of the arbitrator's •duties, the terms of the authority must be complied with. Illustration. An arbitrator was at liberty under the reference to appoint an accountant " not objected to by any of the parties." He appointed one without communicating with the parties. The award was set aside (Tidswell, Be (1863), 33 Beav. 213). Implied authority to obtain professional assistance. Arbitrators may be impliedly authorised, depending upon the subject-matter referred to them for their decision, to obtain such assistance as may be necessary to enable them to perform their duties (see Anderson v. Wallace (1835), 3 C. & F. 26). Illustration. An order by consent having been made in a suit that a Mr. Sturge should determine, inter alia, the costs and expenses, Mr. Sturge obtained-the professional help of a Mr. Dax. Due notice was given to Mr. Sturge that Mr. Dax would on a certain day go into the matter. The defendants refused to pay because it was a delegation of power from Mr. Sturge to Mr. Dax. Held that the defendants must pay (Rowcliffe V. Devon, &c.. Bail. Co. (1873), 21 W. E. 433). Per Bacon, V.-C. : "Mr. Sturge having, by the consent of both parties, the duty of deciding as to costs, did what he could not help doing. That is to say, he obtained professional help. He rationally discharged his duty by so doing. ... If the company were dissatisfied, why did they not go before Mr. Daxl" (ibid.). Delecjation ly judicial arbiters in Scotland. In Scotland it appears to be the practice for judicial arbiters to remit matters upon v^hich they desire expert opinion to surveyors or other experts for report. "What is now chiefly relied upon is the remit to Mr. Newlands, an expert, which is said to be contrary to the maxim delegatus non potest delegare. In answer it has been shown to us that this proceeding was according to the established practice of Courts of Justice in Scotland and of judicial arbiters. 404 REFERENCE BY CONSENT OUT OF COURT Indeed the remit was never complained of by the company, nor by counsel in the Court of Session. An opportunity was afterwards given of examining Mr. Newlands as a witness, when a great number of witnesses were examined on both sides " {j)er Lord Campbell, L.C., in Caledonian Rail. Go. v. Lockhart (1860), 2 Maeq., at p. 812). Taking the opinion of solicitors and counsel. It has become so common for lay arbitrators to take the opinion of solicitors and counsel that it would seem to be almost a settled and recognised practice, whether right or wrong, and it is almost necessary that they should do bo if they are to come to a correct conclusion on questions of law. It must not be forgotten, however, that arbitrators are judges of both law and fact, unless there is some provision in the submission to the contrary, and that the parties are entitled to the award of those to whom they submit their disputes. But since the Arbitration Act the parties must be taken to know that either party may insist on a legal decision, for under s. 19 of that Act the Court may be consulted on questions of law, whereas, prior to the Act, a party had no absolute right to obtain a legal decision, the mere fact that the arbitrator was making a mistake of law not being sufficient to entitle a dissatisfied party to claim leave to revoke the submission, which was then the only remedy available, as a right {James v. James (1889), 23 Q. B. D. 12). In considering the earlier cases this should be borne in mind. In Threlfcdl v. Fanshaice (1850), 19 L. J. Q. B. 334, at p. 336, Coleridge, J., said : " But where parties appoint a lay arbitrator, if the reference is to be brought to a safe conclusion, it is almost of necessity that he should have professional assistance in the conduct of it and in framing the award ; and as the defendant was present at the hearings by one who represented him, I must take him to have assented to w^hat was so reasonable and so much to his own interest ; and if so, he cannot object to that item swelling the amount which he has in this instance to pay." It would seem, however, that advice should not be obtained in the absence of the parties unless both parties agree that the arbitrators should so inform their mind. It is different from a lawyer arbitrator discussing a question of law with a legal friend. "It appears that the special pleader was consulted by the arbitrator, though the arbitrator said he should not allow his mind to be biased; and it is also clear that some information was derived from the other gentleman, who had not been called as a witness for either party, and who might, as a man of science, have given important information. It seems to me no information of that sort ought to be given in the absence of parties, unless there is a specific power for that purpose reserved, or unless both parties agree that the arbitrator should so inform his mind. It is quite CONDUCT OF THE REFERENCE 405 -a different thing from a learned person consulting a legal friend on a piece of legal information ; that he may have a perfect right to do " {per Lord Denman, C.J., Dohson v. Groves (1844), 14 L. J. Q. B, 17, at p. 21). Lay arhitrator expressly stipulated for. Parties are entitled to have the judgment of the person for whom they stipulated, and there are many disputes in respect of which a legal decision is not desired, nor in some cases even desirable. Ilhistrations. 1. A cause was referred to a mining agent at the instance of the defendants, who had objected to the appointment of a legal arbitrator. The arbitrator called in an attorney to sit with him, whereupon the defendants protested and withdrew from the reference, and an award was made in their absence. Held that the award was bad {Prodm- and ■Others^. JVilliamson and Others (1860), 29 L. J. C. P. 157). In his judg- ment, Williams, J., said: "The parties expressly agreed upon a lay arbitrator, and they find a lawyer present for the declared purpose of giving advice. No wonder that the defendants object. ... I think the defendants were justified in refusing to go on " ; and Erie, C. J., said : " I consider it before anything important that they should have the judgment of that person for whom they so stipulated." 2. A case was referred, it being agreed that no counsel or attorney should attend on either side, but that the question should be decided by gentlemen skilled in engineering. The umpire made his award in favour of the plaintiffs, subject to the opinion of his attorney as to the legal effect of a certain agreement and resolution. Held that the award was that of the umpire's attornej'^, and must be set aside {Ellison and Others v. Bray (1864), 9 L. T. (N. S.) 730). Shee, J., said : "It is clear that an arbitrator or umpire is allowed to consult others if he wishes to inform his own mind, but he must not substitute the opinion of another for his own." As late as 1860, in the case of Proctor v. Williamson, 29 L. J. C. P, 157, Erie, C.J., enquired whether there was any case where an attorney had been called in except to settle the form of the award, and the answer of counsel was that he was not aware that there was. Arhitrator employing attorney of one of the parties. When a legal opinion is taken by an arbitrator, it is improper for him to employ the attorney of one of the parties (though his own attorney also) to assist him in framing the award, but it is not sufficient ground for' setting the award aside {In re Underwood and Bedford, clic, Rail. Co. (1861), 11 C. B. (N. S.) 442. See Bchren v. Bremer (1854), 3 G. L. Pt. 40). In Fetherstone v. Cooper (1803), 9 Ves. 67, Lord Eldon 406 REFERENCE BY CONSENT OUT OF COURT said : " The circumstance that the award was prepared by the solicitor for the defendant, though indelicate, is no ground for setting aside the award." Case submitted to counsel should he shoivn to both parties. When a case is submitted to counsel it ought, as a matter of prudence,, to be shown to both parties, because, if an arbitrator obtains an opinion, based on an erroneous statement of facts and acts upon it, the award, may be set aside. In Be Hare (1839), 6 Bing. K C. 158, at p. 162, Tindal, C.J., said : " The first objection made against the award, as it was argued before us, was in substance that Mackillop (the umpire or third arbitrator) took the opinion of counsel upon an incorrect state of facts against the consent of Hare, and acted upon such opinion. And if this objection had remained unanswered in point of fact, we should have thought the award impeachable upon grounds so clear and manifest that it is sufficient barely to state the proposition. But we think this objection satisfactorily removed by the statements in the affidavits in support of the award." Where a third arbitrator had taken the opinion of counsel on a case which he had drawn up, stating the circumstances respecting which the arbitrators differed, and it was sworn that he had formed his own opinion on the point in dispute before he took the opinion of counsel, which was taken for no other purpose than to guide his determination whether to accede or not to the request of a fellow-arbitrator that certain facts should be set out in the award, and that the case submitted to counsel contained a fair and true statement of the circumstances, the Court held that no objection could be taken to the award on that ground {Hare, In re (1839), 6 Bing. N. C. 158). Delegation by one arbitrator to another. As to delegation by one arbitrator to another where there are two or more arbitrators, see 'post, p. 409. 5. Joint arbitrators. Duty to act judicially. It would seem that arbitrators sitting together or with an umpire are equally bound to act judicially. It was said by Farwell, L.J. {obiter), in Enoch and Zaretzky, Bock & Co., In re, [1910] 1 K. B. 327, at p. 334, that " where a case is referred to two arbitrators and an umpire, it is well understood that the arbitrators act as counsel who try and settle the case without going into Court, but the umpire or single arbitrator occupies a judicial position and exercises judicial powers, CONDUCT OF THE REFERENCE 407 and is bound, as far as practicable, to follow legal rules." But it is respectfully submitted that if this statement means that each arbitrator is not intended to act judicially and independently of the person who appointed him, it is not in accordance with earlier decisions. The following passage is from the sixth edition of Eussell on the Duties and Powers of an Arbitrator : " The arbitrators selected, one by each side, ought not to consider themselves the agents or advocates of the party who appoints them. When once nominated they ought to perform the duty of deciding impartially between the parties, and they will be looked upon as acting corruptly if they act as agents or take instructions from either side {Fetherstone v. Cooper (1803), 9 Ves. 67; Watson v. Duke of NoTthu7fiberland (1805), 11 Ves. 153; CakraftN. Boehuclc (1790), 1 Ves. jun. 226; Maule v. Maule (1816), 4 Dow, 363)." In Osivald v. Earl Grey (1855), 24 L. J. Q. B. 69, at p. 72, Erie, J., said : " It appears in the present case that each of the arbitrators. Clay and Black, has considered himself as the agent of the party who nominated him. The other passage read from Eussell on Arbitrators, p. 206, warrants me in joining with the other judges in saying that this is a notion which ought strongly to be repudiated ; and that it is wrong for an arbitrator so nominated to consider himself as appointed to take care of the interests of one party only, and not of the other as well." Further, it is the duty of the arbitrators in selecting an umpire "to exercise a judicial choice" {per Kay, J., in Pescod v. Pescod (1887), 58 L. T. 76. See also Lord v. Lord (1856), 26 L. J. Q. B. 34). And it follows that if they are advocates of the person who appointed them they cannot act judicially. Moreover, under s. 6 of the Arbitration Act, where the reference is to two arbitrators, one to be appointed by each party, if one party fails to appoint an arbitrator, the party who has appointed an arbitrator may appoint that arbitrator (after compliance with certain conditions) to act as sole arbitrator in the reference, and his award in that event is made binding on both parties as if he had been appointed by consent. It would be intolerable, if an arbitrator were entitled to consider himself as counsel for one of the parties, that the party who appointed him should have power in certain circumstances to appoint him as sole arbitrator. " Though it is the popular impression that a valuer or arbitrator is only to act for the party who appoints him, that is not so in law ; each valuer or arbitrator is bound to act fairly towards both parties and he contracts a duty to each " {per Bramwell, B., in Cooper v. Shuttleworth (1856), 25 L. J. Ex. 114, at p. 115). 408 REFERENCE BY CONSENT OUT OF COURT Arhitrator should not confer with 2^c^'^ty appointing him. An arbitrator appointed by one of the parties must not confer with the party who appointed him. He must not attend conferences with solicitors or counsel, but must act in all respects as an arbitrator, and endeavour to decide fairly and impartially between the parties to the submission. He has a known interest in favour of the person who appointed him, and in that respect he is in a similar position to that of an engineer or architect under a building contract, who, though appointed and also employed by the building owner, must, if appointed arbitrator under the building contract, do his best to act fairly and impartially whatever his natural bias may be. Reference to two arlitrators and a third. In order to ensure a decision in case of difference of opinion, a submission to two arbitrators frequently goes on to provide that the two arbitrators shall name a third, and that an award made by any two, if they cannot all agree, shall be sufficient. It is in general much better to refer the matters to a single arbitrator at once, for the arbitrators named by the parties often seem to think, notwithstanding the objectiouable nature of such a course, that they are to represent their respective nominors, and act rather as advocates than judges, while the third arbitrator frequently supposes that he is an umpire, and that his active interference is not to commence until the others have differed finally. Eeferences of this sort have been strongly condemned as being " senseless and mischievous, founded on a totally wrong principle, expensive in their operations, and constantly ending in failure and disappointment" {Templeman and Reed, In re (1841), 9 Dowl. 962, at p. 966), Submission amhigtwus. Sometimes the framing of the submission is so ambiguous that it is difficult for the Court to decide on the respective duties of each arbitrator. Thus, 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 by attachment performance of an award made by the two arbitrators alone, considering it a doubtful point whether the award was not intended to be the joint act of the three (Hcatherington v. RoUnson (1839), 7 Dowl. 192; 8 L. J. (K S.) Ex. 148. See Winteringham v. Robertson (1858), 27 L. J. Ex. 301). Each arbitrator must act. On a reference to several arbitrators together, when 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. CONDUCT OF THE REFERENCE 409 as if he were sole arbitrator; for, as the office is joint, if one refuses or omits to act, the others can make no valid award {Little v. Neivton (1841), 2 M. & G. 351 ; 10 L. J. C. P. 88 ; Stalworth v. Inns (1844), 13 M. & W. 466 ; 14 L. J. Ex. 81). Where the reference is to three arbitrators, all three must concur in the award, an award by two of them only being bad {United Ki7igdom, &c., Assurance v. Houston, [1896] 1 Q. B. 567 ; 65 L. J. Q. B. 484. See Morgan v. Boult (1863), 7 L. T. 671, and Cameron v. Cuddy, [1914] A. C. 651). Waiving ohjedion to not acting. But if two arbitrators are to appoint a third to act with them, and they mistakenly appoint a person as umpire, and the two alone hold the reference and make the award, a party who has attended the meetings without objecting to the ease being heard by the two only cannot afterwards impeach the award as invalid for want of the concurrence of the third arbitrator {Marsh, In re (1847), 16 L. J. Q. B. 330). Arbitrators mag not delegate to each other. The arbitrators may not delegate their authority even to each other. Two merchants, arbitrators, may not delegate to the third arbitrator, though he be a barrister, the decision of a point of law arising out of the case {Little v. Ne%oton (1841), 9 Dowl. 437 ; 10 L. J. C. P. 88). " It is clear that the parties to the submission of reference had a right to the joint judgment of the two arbitrators, who signed the award, upon each and every point embraced by it, after a communication between them so as to insure their agreement of mind in each point. . . . But here the determination of the point of law appears to have been the judgment of the legal arbitrator alone. . . . But there is no principle of law which will authorise such a delegation of their opinion, and it is impossible to say, but that if the legal arbitrator had expressed his opinion to the others before the award was signed, some arguments might have been raised which would have produced a different result " {2ier Tindal, C.J., Little v. Neivton (1841), 9 Dowl. 437, at p. 444). But if each of the arbitrators exercises his own independent judg- ment on the matters referred, it is no objection to the award that on discussion one gives way to the other, for where two differ in opinion, one or both must give way, otherwise they never can agree {Eardlcy V. Steer (1835), 4 Dowl. 423; 4 L. J. (N. S.) Ex. 293). "The third objection, that the award was made by one arbitrator only, also entirely fails, because it appears that each of them exercised his own independent judgment on the matter; and though Hayman was of opinion that £100 was due to the plaintiff' — more than the sum which Flood was willing to give — and that he gave way to Flood in that respect, tliat is a circum- stance which must frequently happen; one or both must give way, 410 REFERENCE BY CONSENT OUT OF COURT otherwise they never could agree" {jier Parke, B., Eardley v. Steer (1835), 4 Dowl. 423, at p. 430). Illustration. An action and all matters in difference were referred to P. and H. as arbitrators, and F. was appointed umpire. All three heard the evidence, but the award was made by H. and F. only. It appeared that H., though exercising an independent judgment, gave way to F. as to an amount which H. thought was due to the plaintiflF more than F. thought. Held no objection to the award {Eardley v. Steer (1835), 4 Dowl. 423). All the arbitrators must act together. As they must all act, so they must all act together. They must each be present at every meeting ; and the witnesses and the parties must be examined in the presence of them all (Plews and Middleton,. In re (1845), 6 Q. B. 845 ; 14 L. J. Q. B. 139 ; Lord v. Lord (1855), 5 E. & B. 404; 26 L. J. Q. B. 34; Bech and Jackson, In re (1857). 1 C. B. (N". S.) 695). Where there are two or more arbitrators all should execute the award at the same time and place. If they fail to do so, it may invalidate the award {Lord v. Lord (1855), 5 E. & B. 404 ; 26 L. J. Q. B. 34 ; Stalworth v. Inns (1844), 13 M. & W. 466 ; 14 L. J. Ex. 81 ; Eads v. Williams (1854), 24 L. J. Ch. 531 ; Wade v. Doivling- (1854), 4 E. & B. 44), but as the objection is one of a formal character, if no other objection is shown, the Court may remit the award to the arbitrators for correction {Anning v. Hartley (1858), 27 L. J. Ex. 145 ;. Goodman v. Sayers (1820), 2 J. & W. 249). See ante, p. 327. Two choosing third to act with them. If two arbitrators only are appointed by the submission, and they are to choose a third to act with them, and an award made by any two is to be valid, they must choose their colleague before they take any step in the reference, in order that the parties may have the benefit of the judgment of all three on the whole of the matters. They have no- business to treat the third arbitrator as an umpire to be called in in case of difference except by consent of the parties {Peterson v. Ayre (1854), 14 C. B. 665 ; 23 L. J. C. P. 129). But it is not necessary to appoint the third arbitrator before disagreement, unless it appears from the terms of the submission that it was the intention of the parties that they should do so. Where such an intention does not so appear, the third arbitrator need only be appointed in case the other two are unable to agree {In re Kitts & Murray, &c., Ltd., and Gator & Go., [1917] W. K 4). Two may act if third refuses. Under such a submission it will be sufficient for any two of them to act jointly, though the third absents himself from the meetings, provided CONDUCT OF THE REFERENCE 411 that he has full notice, and opportunity of being present at them if he pleases, and is not kept away by any practice of the other arbitrators or of the parties {Goodman v. Sayers (1820), 2 J. & W. 249 ; Dalliny v. Matchett (1741), Willes, 215; 'Moseley v. Simpson (1873), L. E. 16 Eq. 226 ; 42 L. J. Ch. 739). The two arbitrators must take the opinion of the third, but if after discussion he refuses to concur with them in the award, they may then execute it ( White v. Sharp (1844), 12 M. & W. 712; 13 L. J. Ex. 215; Sallows v. Girling (1612), Cro. Jac. 277; Berry V. Perry (1616), 3 Bulst. 62; Perring and Keymer, In re (1835),, 3 A. & E. 245). When the two originally named arbitrators, having differed about some items, agreed each to furnish the third with a written statement of what he thought the award should be, and an award was made by the third and the one whose views he adopted, without any further meeting of all three, the Court set aside the award because the three never consulted together upon it, the one whose views were rejected being entitled to the opportunity to discuss the award with the other two {In re Templeman and Beed (1841), 9 Dowl. 962). 6. Duties of umpire. Duty to hear evidence. The powers and duties of an umpire, when he is called upon to act, are in general the same as those of the arbitrators. The umpire must hear the evidence of the parties and their witnesses, if application is made to him to do so by either party, not- withstanding that the same evidence has already been adduced before the arbitrators. The umpire is not justified, in the face of an objection by either party, in taking any part of the evidence from the notes of the arbitrators, unless there are special provisions in the submission permitting him to do so. Per Patteson, J., " I do not see that you can carry the proposition, attempted to be laid down in support of the award, any further than this, that an umpire may make his award on the notes of the arbitrators, if no objection is taken " {In re Jenkins, infra). In Tunno v. Bird (1833), 3 L. J. K. B., at p. 6, Denman, C.J., said : " With regard to the fourth objection, there was no necessity for the umpire to hear the evidence. If it was necessary, for the justice of the case, that he should personally have heard the witnesses, and application had been made to him for that purpose, he would not have been justified in refusing to hear them ; but here no application was made to or refusal given by the umpire in his character of umpire to hear evi- dence ; at the time when the application was made he was appointed to that office in case the arbitrators should disagree, but was not acting as such." 412 REFERENCE BY CONSENT OUT OF COURT Illustrations. 1. Parties by bond referred matters in difference to two arbitrators, and in case they should not agree within a certain time, to an umpire. Witnesses were examined before the arbitrators on both sides, and gave conflicting testimony. The arbitrators did not make their award in time, and the case went before the umpire. The attorney of one of the parties insisted on the umpire hearing the oral evidence of certain witnesses, but the umpire refused, except as to a matter which had not been before the arbitratsrs, and made his award. There having been no waiver by that party of his rights, he obtained a rule to set aside the award. Held that the umpire ought to have heard the witnesses, and the rule was made absolute (Salkeld and Slater, In re (1840), 12 A. & E. 767). In this case Lord Denman, C. J., said : " It is highly necessary that it should be distinctly and clearly understood that it is the duty of the party presiding to see the witnesses and hear the evidence . . . that is undoubtedly the meaning of an umpirage." Littledale, J., said : " I quite agree in the general rule as laid down by my Lord. The umpire is to hear all the evidence over again upon application." 2. A matter in difference was referred to two arbitrators, and in the event of their disagreeing, to an umpire. The arbitrators, having con- sidered the case and examined witnesses, differed, and the umpire was appointed. He was requested by one of the parties to examine all the witnesses who had been called before the arbitrators, but declined, as the request was not that of both parties. He merely read the arbitrators' notes of the evidence and made his award. Held that the award must be set aside {In re Jenkins (1841), 11 L. J. Q. B. 71). 3. The parties to a written submission agreed by parol that notes of the evidence should be taken in writing by a clerk and signed by the arbitrators, and that, in case of their disagreeing, the umpire should be at liberty to make his award on the notes so taken without examining the witnesses. The notes were so taken and the arbitrators disagreed. The umpire, though required to do so by one of .the parties, refused to examine any witnesses, and on reading the notes made his award. The Court refused to set aside the award (Firth and Howlett, In re (1850), 19 L. J. Q. B. 169). Umpire sitting with arbitrators. In order to save the delay and expense 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 sits with the arbitrators and hears the evidence, that is no ground of objection to the award, but the umpire ought not in such a case to interfere with the arbitrators when they discuss the case. Illustrations. I. Parties by a submission referred the matters in difference to two arbitrators, and if they disagreed, to an umpire to be appointed by them. CONDUCT OF THE REFERENCE 413 The arbitrators disagreed and appointed an umpire, who sat with them throughout the proceedings, heard and made notes of the whole of the evidence in order to save the expense of hearing it over again, but did not interfere so as to prevent the arbitrators from coming to a final agreement. The arbitrators having failed to agree, the umpire made an award. The Court discharged a rule to set aside the award {Flag Lane Chapel V. Sunderland Corporation (1859), 5 Jur. (N. S.) 894). 2. An agreement between the parties referred disputes to two arbitrators, and, on their failure to make an award within a specified time, to an umpire to be appointed by them. By arrangement between the parties the umpire sat with the arbitrators to hear the evidence, so that in the event of their differing he might decide the case without a rehearing. The umpire, however, did not interfere until the time within which the arbitrators were to make their award had expired, when he assumed the burden of the umpirage and duly made his award. This was not. regarded by the Court as any objection to the award {Ellison V. Ackroyd (1850), 1 L. M. & P. 806). 3. By an order of reference all matters in difference were referred to two arbitrators, or such umpire as they should appoint, before proceed- ing in the reference, such umpire, when appointed, to be present and decide each matter as it might arise, so that the arbitrators or umpire made their or his award before a specified date. The umpire in presence of the arbitrators allowed the whole of the defendant's set-off, and dis- allowed part of the plaintiff's claim, the result being that there was a balance in favour of the defendant; and afterwards, without further discussion or notice to the defendant or the arbitrators, made his award in favour of the plaintiff. Held that the award must be set aside {Potter V. Newman (1835), 4 D. P. C. 504). Duty of impartiality. The umpire must be strictly impartial, and, like an arbitrator, must not hear one party in the absence of the other. The umpire should not receive any statement as to the case from one of the arbitrators except in the presence of the other, and should hear such statements equally from both or from either. Illustrations. 1. A contract for the sale of rape seed contained an arbitration clause. A dispute as to the condition of the seed was referred to two arbitrators, A. and B., and, in case they did not agree, to an umpire to be chosen by them. They did not agree, and the matter came before the umpire, to whom the arbitrators sent written statements of their views and also the documents which had been before them. The umpire, without calling the parties, but purporting to proceed on these statements and documents, made an award in favour of the buyer. The seller afterwards discovered that the umpire, without the knowledge of the seller, or of A. his arbitrator, inspected samples of the seed, which B. 414 REFERENCE BY CONSENT OUT OF COURT laid before him, but which had not been seen by A. On the application of the seller the award was set aside on the ground that the conduct of the umpire was a violation of the principles of justice {Brook and Delcomyn, In re (1864), 16 C. B. (N. S.) 403). 2. Arbitrators having been appointed to ascertain the value of land and compensation for damage between a landowner and a railway company appointed an umpire. A meeting was held and witnesses examined, and the proceedings adjourned to the following day; but the company's arbitrator sent notice that he could not attend. The other arbitrator and the umpire, against the protest of the company's solicitor, who retired, went on with the case and examined another witness. The umpire made an award without any further proceedings being had. On a motion on behalf of the company the award was set aside {Hawley v. North Staffordshire Rail. Co. (1848), 12 Jur. 389). Undisclosed interest. Any undisclosed personal interest will disqualify an umpire, as it would an arbitrator, and even where the umpire himself is not open to any suggestion of impropriety, the discovery of impropriety on the part of one of the arbitrators may be enough to cause the Court to set aside the award of the umpire, if there is any reason to fear that the decision of the umpire may have been influenced by the arbitrator who was proved to have acted improperly. Whether such a course will be adopted depends on the view taken by the Court of the facts of each particular case. Illustration. By an arbitration clause in a fire policy any dispute was to be referred to two indifferent arbitrators, and in case of their disagreement to an umpire to be appointed by them before entering on the reference. An action on the policy by the assured was referred under the clause. Arbitrators and an umpire having been duly appointed, the arbitrators sat together with the umpire and differed, and the umpire then made his award in favour of the assured. The insurers then discovered that the assured, after appointing his arbitrator and before the meetings, had assigned to his arbitrator for value his claim under the policy. Held that the award must be set aside (Blanchard v. Sun Fire Office (1890), 6 T. L. R. 365). 7. Waiver and acquiescence. "Waiver" is a term loosely used and difficult to define when applied to irregularities in the proceedings before an arbitrator, or in the conduct of the arbitrator during those proceedings. In Wharton's Law Lexicon " waiver " is defined as " the passing by of an occasion to enforce a legal right whereby the right to enforce the same is lost." CONDUCT OF THE REFERENCE 415 " A waiver must be an intentional act with knowledge " {per Lord "Chelmsford in Darnley {Earl) v. London, GTiatham & Dover Bail, Co. (1867), L. E. 2 H. L., at p. 57). " The burden of proving a case of waiver and acquiescence is upon the person who suggests it " {joer Lord Selborne in Eolland v. Cassidy (1888), 13 App. Cas., at p. 778). In Darnley v. London, Chatham & Dover Bail. Co., supra, at p. 60, Lord Cranworth said : " When parties, who have bound themselves by a written agreement, depart from what has been so agreed on in "writing and adopt some other line of conduct, it is incumbent on the party insisting on, and endeavouring to enforce, a substituted verbal agreement, to show not merely what he understood to be the new terms on which the parties were proceeding, but also that the other party had the same understanding — that both parties were proceeding ■on a new agreement, the terms of which they both understood." In proceedings before an arbitrator the practical question is : "What form of protest is sufhcient or what line of conduct should be followed to avoid the loss of a party's rights ? The strongest line of conduct and the strongest form of protest for a party to adopt or make is to retire from the proceedings, but such a course, when a party is brought before or tied to a particular tribunal, is obviously extremely dangerous, because he may ultimately find, when he has moved to set aside the award made against him, that the irregularity of which he complains is not sufficient to upset the award. The obvious course, therefore, is for a party complaining of irregu- larity to protest against the irregularity, and to continue to conduct his case in the proceedings before the arbitrator under such protest. The other alternative is to submit to the irregularity, and forego any rights he may have to object to the award on that ground when it is made, for he cannot lie by and then object to the award if it is against him. Excess of authority. In cases where an arbitrator enters into the consideration of matters which are not referred to him, or which he has no jurisdiction to try, " the question is not one of waiver or estoppel, but of authority " {per Blackburn, J., in Bingland v. Lowndes, infra), and a party continuing to attend the reference after objection taken and protest made does not give the arbitrator authority to make an award. Ilhistration. Where an arbitrator who had allowed the time to expire for making his award proceeded with the reference notwithstanding an objection taken and protest made on that ground by a party to the reference, it was held that that party, by continuing to attend and contest the case 416 REFERENCE BY CONSENT OUT OF COURT before the arbitrator, did not give the arbitrator authority to make an award (Bingland v. Loumdes (1864), 33 L. J. C. P. 337). If a party to a reference objects that the arbitrators are entering upon the consideration of a matter not referred to them and protests against it, and the arbitrators nevertheless go into the question and receive evidence on it, and the party, still iinder protest, continues to attend before the arbitrators and cross-examines the witnesses on the point objected to, he does not thereby waive his objection, nor is he estopped from saying that the arbitrators have exceeded their authority by awarding on the matter {Davies v. Price (1864), 34 L. J. Q. B. 8). " I do not see why — if an arbitrator deals with a matter beyond his jurisdiction, and the party protests, doubting the arbitrator's authority, and yet goes on to take care of his own interests as best he can, saying I am not sure that you are right — he is to be bound by the award. . . . I think it a much more difficult question whether the defendant could have availed himself of a decision in his favour" (per Pollock, C.B., in Davies V. Price, supra). In Hamlyn v. Betteley (1880), 6 Q. B. D. 63, at p. 65, Lord Selborne, L.C., said : " In arbitrations, where a protest is made against jurisdiction, the party protesting is not bound to retire; he may go through the whole case, subject to the protest he has made." Continuing to take part in the proceedings after protest made does not amount to a consent. " We find that the defendant did protest and did all in his power to resist the proceeding. I cannot agree that it amounts to a consent on the part of the defendant, because, being tied to the stake and dragged on to trial, he endeavours to make the best of it" {p)eT Lord EUenborough, C.J., Holt v. Mecldoircroft {IQ^Q), 4 M. & S. 467, at p. 469. See also Blisset v. Tenant (1828), 7 L. J. C. P. 108 ; Sheonath v. Ramnath (1865), 35 L. J. P. C. 1). Illustrations. 1. Where a common jury panel was returned together with a special jury panel, and no special jurymen appearing, the cause was tried by a common jury and the defendant protested, but continued to conduct his case, it was held that there was a mistrial {Holt v. Meddov:aroft, supra). 2. At a former trial Denman, J., had directed a jury to find for the defendant, but the plaintiff, having obtained a new trial on the ground of misdirection, gave notice of that under Order XXXVL, r. 3, before a judge. No counter-notice for trial by any other mode of trial was given on behalf of the defendant. When the issue came on to be tried before Kelly, C.B., the defendant's counsel protested that a judge had no jurisdiction to try the case without a jury, but did not withdraw or offer to withdraw from the conduct of the case. The learned judge overruled the objection, and the case having been tried out, gave CONDUCT OF THE REFERENCE 4l7 judgment for the plaintiff. The defendant appealed. Held, that as the judge at the trial had no power to try the particular case without a jury, he had caused a mistrial. The protest was held to be sufficient and the appeal was allowed {Hamlyn v. Betteley (1880), 6 Q. B. D. 63). It would seem that, where a party orally consents to an arbitrator ■deciding matters beyond his jurisdiction under the submission, the award founded on such oral consent is not one which can be enforced under the provisions of the Arbitration Act, because s. 12 of the Act applies only to an award on a submission within the meaning of the Act, i.e. a submission in writing. The only remedy in such a case would seem to be by action on the award (see ante, p. 265). Where an arbitrator, by consent, makes an award after the time for making it "has expired, an application may be made under s. 9 of the Act for an enlargement of the time for making the award, which will then, if the application is granted, revive his jurisdiction and the award will be •enforceable under the original submission. Irregularity, Contiiuiing to attend proceedings after protest. An arbitrator who receives evidence behind the back of a party is guilty of serious irregularity, and the proceeding is contrary to all principles of justice (see ante, p. 389 et seq.), and a party does not waive his objection by continuing to attend the proceedings after protest, or under the compulsion of the irregularities, and without any intention to waive his objection. " It was attempted to meet these fourth and fifth objections by insisting that they must be taken to have been waived by Mr. G. A. Haigh ; but the irregularities to which these objections apply were of such a description and calculated so seriously to prejudice Mr. G. A. Haigh, and it is so clear upon the evidence that what he afterwards did was done by him under the compulsion of the irregularities and without any intention to waive his objection, that, with every disposition to support these awards, I think it would be going too far to hold that he was bound by waiver " (jjer Turner, L.J., in Haigh v. Haigh (1861), .31 L. J. Ch., at p. 424). What is sufficient protest. Where there is a request to be permitted to be present when evidence is taken or information obtained by the arbitrator and a refusal, that is a protest, and the party making the request is not bound to take any further step. His not doing so is not a waiver of his right to object to the award. "With regard to any supposed waiver, it is clear here that one of the plaintiffs wished to be present, but M'as excluded. That was a 27 418 REFERENCE BY CONSENT OUT OF COURT protest against the proceeding; and I think, upon that refusal, the plaintiff was not bound to take any further step. It raises in his mind not a very unjust suspicion that there might be something wrong as to the motive too. It is solely on this ground that we are of opinion these awards cannot stand " {per Lord Denman, C.J., in Dobson v. Groves (1844), 14 L. J. Q. B. 17, at p. 22). Continuing proceedings with knouiedge and without protest. Irregularities in the mode of conducting an arbitration will be waived by the party continuing the proceedings with full knowledge and without protest. The Courts will not permit a party to lie by or act in an indecisive manner, so as to obtain the benefit of the award if it is in his favour and endeavour to set it aside if it is not. In Bignall v. Gale (1841), 10 L. J. C. P. 169, at p. 171, Tindal, C.J., said : " In coming to a determination upon this case, I cannot get rid of what makes a great impression upon my mind, that the defendant for three weeks knew of every objection which has now been urged to this award, and gave no notice of his intention to dispute it on those grounds. He knew, on the 17th of December, these witnesses had been examined in his absence. What right had he then to lie by, with his grievance dormant in his own bosom, and now dispute, for the first time, the validity of the authority which has been exercised ? He ought at the time to have made his election, and to have insisted on another meeting, at which he might have been confronted with the witnesses and given his explanations of their testimony. But this case may be decided on another ground." In Hewlett v. Za7jcocJc (1827), 2 C.-& P. 574, at p. 576, Abbott, C.J., said : " The reason urged in support of the revocation is, that the arbitrators thought proper to exclude the parties and their attornies and to examine a witness at his own house. ... I am perfectly satisfied, in point of law, that if a party means to object on such a ground as that which is relied on in this case, it is his duty to give notice that he means to rely on it, otherwise it is no answer. For unless he gives such notice, the arbitrators go on thinking that the objection is waived, and the parties are put to unnecessary expense." In Mills V. Boivyers Society {infra), at p. 71, Sir "W. Page Wood, V.-C, said : " I accede to the view that it would be a great deal too dangerous to allow any arbitrator, or any umpire, to have communica- tions with some of the parties without the knowledge of the other parties to the reference, and then to say that he was not influenced by anything which took place. But in this case it appears that the only thing that took place was one which every person kiLew of at the time, and they allowed the reference to proceed without making any objection." CONDUCT OF THE REFERENCE 419 Illustrations. 1. During a reference to arbitration the umpire held a communica- tion with the agent of one of the parties, this fact being known to all the parties at the time and not objected to by any of them, and the reference having proceeded and the award having been subsequently made, it was held that it was too late for either of the parties, after the award was made, to object to it on the ground of such communica- tion between the umpire and the agent of one of them (Mills v. Bowyer's Society (1856), 3 K. & J. 66. See also Hallett v. Hallett (1839), 7 Dowl. 389; 8 L. J. (N. S.) Ex. 174; Peterson v. Ayre (1854), 14 C. B. 665; 23 L. J. C. P. 129). 2. By the terms of a reference to arbitration the two arbitrators were to appoint an umpire before entering on the reference, and to make their award before a certain day or such time as they or any two of them should appoint. The arbitrators, before appointing an umpire, enlarged the time and afterwards held a meeting at which the parties attended. Held that the parties, being aware of these facts, and having afterwards attended, must be taken to have waived this objection to the award (Hick, In re (1819), 8 Taunt. 694). In this case the award was set aside on the ground that a party had been examined in the absence of the other party. 3. The award of an umpire was held good in a mercantile matter in which the arbitrators had no power to appoint an umpire but had appointed one, and though the umpire had examined the parties separately and the award was in the form of an opinion (Matson v. Trower (1824), 1 Ry. & Moo. 17). Per Abbott, L.C.J., " The parties have recognised the authority of the umpire by submitting to be examined by him as to the matters in dispute. It does not appear that either party desired to be present when the other was examined . . . the umpire here was a mercantile man, and the defendants, not having expressed a desire to be present at the examination of the plaintiffs, cannot now object to it having taken place in their absence " (ibid.). 4. Evidence was received by arbitrators at a meeting improperly convened, at which neither plaintiff nor defendant attended. It was subsequently agreed that this evidence should be struck out. The parties subsequently objecting to the award then went on calling witnesses and cross-examining others, and made no further objection until they found that the award was made against them. The Court refused to set aside the award which had been made, the arbitrators swearing that they did not consider the evidence, which had been improperly received, in making their award (Kingwell v. Elliott (1839), 7 Dowl. 423). 5. In an action a commission was issued to take evidence abroad. At the taking of the evidence, when both parties were represented, secondary evidence of the contents of a written document was received without objection. The action was then referred. Held that on the reference neither party could object to this evidence in the deposition (Robinson v. Davies (1879), 49 L. J. Q. B. 218). 420 REFERENCE BY CONSENT OUT OF COURT 6. A reference was made to three arbitrators, one to be appointed by each of the parties and one by the arbitrators so chosen. The parties selected their arbitrators, who selected another, whom they erroneously appointed as umpire, and the sittings were commenced without him. Held that the irregularity was waived by commencing the proceedings de novo after the mistake was discovered, and by an agreement between the parties by which they agreed not to impugn the award on any ground {Moseley v. Simpson (1873), L. R. 16 Eq. 226). 7. A landlord and tenant agreed by deed that differences between them should be referred to two named arbitrators, or, in case they should not agree, to such umpire as they should appoint by writing. The umpire was chosen as follows : — Six names, three proposed by each arbitrator, were written on papers and thrown into a hat, and the person whose name first came out was appointed. The person who drew acted by the authority of the landlord and he had previously received a letter from the tenant introducing a friend who would repre- sent him " in the business of drawing for an umpire," and stated the manner in which the tenant expected the drawing to take place, which was in fact adopted. The tenant's friend attended at the drawing. Neither arbitrator was present, but the drawing had been agreed to by them. None of the six persons named had been objected to by either arbitrator. The agreement of reference was afterwards, with the con- currence of both parties and both arbitrators, indorsed with a memo- randum appointing the person chosen as umpire, and the memorandum was signed by the arbitrators. The agreement and memorandum were afterwards made a rule of Court. The arbitrators having disagreed, the umpire made an award in favour of the landlord. The tenant obtained a rule nisi to set aside the award on the ground {inter alia) that the umpire had been appointed by lot and not by the will and judgment of the arbitrators. Held that, as the tenant had consented to and acquiesced in the mode of appointment of the umpire, the objec- tion could not prevail ; and the rule was discharged (Tunno and Bird, In re (1833) 5 B. & Ad. 488 ; 3 L. J. K. B. 1). 8. By an order of reference an action of trespass was referred to an arbitrator, who was to settle all matters in difference between the parties at law and in equity. Two equity suits were then pending in which the parties to the action were interested, and in which certain infants were also concerned, and there were also other matters in difference between the parties. The arbitrator made an award in favour of the plaintiff as regards the action and the last-mentioned matters in difference. The defendants obtained a rule to set aside the award on the ground {inter alia) that the infant parties to the equity suits were not bound by the submission. Held that the objection could not be upheld, as all parties well knew that there were infant parties, and must be presumed to have known that they were not bound by the attorney's consent on their behalf; and the rule was discharged {Wrightson v. Bywater (1838), 3 M. & W. 199; 7 L. J. Ex. 83). 9. An action of replevin and two actions of ejectment having been CONDUCT OF THE REFERENCE 421 referred and the arbitrator having made his award, a rule nisi was obtained by one of the parties to the actions and to the reference to set aside the award on the grounds {inter alia) that some of the parties were not of full age, and that two persons, one of them a defendant in the replevin, and the other a lessor of the plaintiff in one of the eject- ments, were not parties to the submission. Held that whatever might be the weight of these objections in other circumstances, a party to the reference was not entitled to relief on these grounds, inasmuch as he must be taken to have known who were the parties to the actions to which he himself was a party, and to the submission which he entered into, and it would be most unjust to allow him to take the chance of an award in his favour and, that failing, to claim to set aside the whole proceedings for a defect in the submission of which he had full cognis- ance when he entered into it ; and the rule was discharged (Jones v. Powell (1838), 6 Dowl. P. C. 483, 485). 10. A dispute as to a bill of exchange was referred to arbitration by the consent of the claimant and the assignees of a bankrupt. The assignees did not obtain the consent of the Court to refer the matter, but no objection to the arbitration was taken by the claimant on this ground until the whole matter had been disposed of, when he sought ta have the award set aside on this ground. Held that as the claimant had agreed to the arbitration, attended the arbitration, adduced evidence, and argued his claim, he could not now raise this objection (Ex parte Wyld (1860), 30 L. J. Bk. 10). 11. An action for work done was referred to an arbitrator, and the time for making the award was enlarged to 9th January. On 8th January the arbitrator examined a witness privately without notice to and in the absence of either party. On 9th January both parties came before the arbitrator to consider whether there should be a further enlargement of the time for the award, when the arbitrator told them that he had examined the witness, and offered to furnish them with a copy of the witness's evidence in order that they might cross-examine him, or to adjourn for further evidence. Both parties declined these offers and left it to the arbitrator to make his award as he thought best. The award being in favour of the plaintiff, and the defendant having obtained a rule nisi to set it aside, it was held that the applicant having with knowledge of what had been done relied upon the probity of the arbitrator before the award was made, it was too late for him to com- plain after he found that the award was against him {Thomas v. Morris (1867), 16 L. T. 398). Irregularity in party's absence. There is a marked distinction between an irregularity passed over when all parties are present and an irregularity committed when the parties are not present. The latter may be incapable of being set right except by agreement of the party injured. "It is suggested that the complaining parties waived their rights. 422 REFERENCE BY CONSENT OUT OF COURT to object by not protesting before the award was made. When an irregularity takes place at a meeting of all the parties and is passed over, tliat observation may apply. But when a party wishing to be present has been excluded from the meeting, the opportunity of setting right what is irregular is past. The mischief was done at the time, and cannot be removed " (j)er Lord Denman, C. J., in Ddbson v. Groves (1844), 6 Q. B., at p. 648). Misconduct on one side not necessarily an excuse for misconduct on the other side. Where the misconduct of one party is contrary to the proper administration of justice, similar misconduct by the other may not be an excuse. Illustration. An arbitrator, having a difficulty about an item of £350 in certain accounts the subject of the dispute, sent for one of the parties, con- sulted him on the matter, and after that consultation, and in the absence of the other party, was satisfied as to the item and came to a conclusion. A similar proceeding took place on another occasion. It was suggested that the other party also had had improper private interviews with the arbitrator. Lord Langdale, M.E., said as to this suggestion : " I should have found it very difficult to say that this species of mis- conduct on the one side was to be an excuse for the mode of proceeding which was adopted on the other. This is not a matter of mere private consideration between two adverse parties, but a matter concerning due administration of justice. . . ." The award was set aside {Harvey v. Shelion (1844), 7 Beav. 455, at p. 464). Umpire not rehearing evidence. An objection on the ground that an umpire has not reheard the evidence may be waived by the conduct of the parties, and the fact that the party seeking to impeach the award made no application to the umpire before the award was made to rehear the evidence will generally operate as a waiver. Illustrations. \. An umpire being furnished by the arbitrators with the evidence taken before them, and having himself viewed the premises, the con- dition of which was in question, made his award without calUng for further evidence or giving any notice on that subject to the parties. One of the parties, who knew that the case had gone before the umpire, made no application to him to hear further evidence. Held that that party could not be heard to object to the award on the ground that the umpire had not heard the evidence {Tunno and Bird, In re (1833), 5 B. & Ad. 488). 2. Parties referred matters in difference to two arbitrators, or, in CONDUCT OF THE REFERENCE 423 case of their disagreeing, to an umpire. The arbitrators heard all the evidence, but disagreeing, stated it to the umpire, who thereupon, without re-examining the witnesses, made his award. The party against whom it was made then applied to the umpire to hear the evidence himself, but he refused. The Court refused to set aside the award, as no application had been made to the umpire to examine the witnesses before he had made his award {Hall v. Laivrence (1792), 4 Term Eep. 589). 3. Parties referred matters in difference to two arbitrators, and, in -case they should not agree within a certain time, to an umpire. Witnesses were examined before the arbitrators, who, however, did not make their ^ward in time, and the case went before the umpire. The attorney of one of the parties insisted on the umpire hearing the oral evidence, which he refused to do. On a rule to set aside the award, it was stated in evidence on behalf of the other party that when the umpire was disposed to refuse to act in the matter on account of the probable length of the proceedings, the party for whom that attorney appeared had told him that a few hours only would be necessary, as all the evidence had been taken before the arbitrators, and he would merely have to read the examinations. Held that the evidence did not show any waiver by the party on whose behalf the objection had been made, and that the rule should be made absolute (Salkeld and Slater, In re (1840), 12 A. & E. 767). Waiving statutory provisions. Where an arbitration takes place in pursuance of a statute, e.g. the Lands Clauses Act, 1845, it is competent to the parties to renounce or waive statutory provisions which are for their benefit. " The first point urged by Mr. Collier was that the award was made after the time for making it had expired, and therefore was a nullity, and that the objection could not be cured by consent of parties. I do not think that objection is good. The arbitration clauses being intro- duced for the benefit of the parties, they are at liberty to renounce at their pleasure the advantages which those clauses afford " (Caledonian Baihvay Co. v. Lockhart (1860), 3 Macq. (H. L.) Cas. 808. See also Tyerman v. Smith (1856), 6 E. & B. 719; 25 L. J. Q. B, 359; ^jer Mellor, J., in Palmer v. Metropolitan Railway Co. (1862), 31 L. J. Q. B. 259, at p. 260). Waiver must he based on knoidedgc of facts. There can be no waiver without knowledge of the material facts. Illustrations. 1. Arbitrators were appointed who were not members of either the London Corn Exchange, the Baltic, or the London Corn Trade Associa- tion, under a submission by the terms of which the arbitrators were to be members of one of those bodies. The award was declared to be null 4'Z4 REFERENCE BY CONSENT OUT OF COURT and void as having been made without jurisdiction, though the partie? had appeared before the arbitrators, the plaintiffs not being aware until after the award was made that the defendant's arbitrator was not duly qualified, though they may have known that their own arbitrator was not {Jungheim, Hopkins <& Co. v. FonJcelmann, [1909] 2 K. B. 948 ; 7a L.J. K. B. 1132). 2. Arbitrators chose an umpire by lot, and informed the parties that they had "mutually chosen" A. B. as umpire. The parties assented. Held that this assent, not shown to have been given with knowledge of the facts, did not waive the irregularity (Be Greenwood (1839), 9 A. & E. 699). 3. An umpire was appointed by lot, and the parties afterwards attended the reference, but in ignorance of the method of appointment. Held that this did not amount to a waiver of the irregularity (Hodson V. Drewry (1839), 7 Dowl. 569). 8. Powers of Court to control proceedings in arbitrations. The powers of the Court to control the proceedings in an arbitration under a reference by consent out of Court, conferred by the Arbitration Act, are as follows : — (a) To give leave to revoke the submission unless a contrary inten- tion is expressed in the submission (s. 1. See ante, p. 46 et seq.). (6) To appoint an arbitrator, umpire, or third arbitrator in certain cases (s. 5. See ante, p. 117 et seq.). (c) To set aside any appointment of a party's own arbitrator to act as sole arbitrator (s, 6. See aiite, p. 129 et seq.). (d) To order from time to time an enlargement of the time for making an award (s. 9. See ante, p. 152 ct seq.). (e) To remit the matters referred, or any of them, to the reconsidera- tion of the arbitrators or umpire (s. 10 (1). See ante, p. 160 et seq.). (/) To remove an arbitrator or umpire who has misconducted him- self (s. 11 (1). See a7ite, p. 192 et seq.). (g) To set aside the award where an arbitrator or umpire ha& misconducted himself, or an arbitration or award has been improperly procured (s. 11 (2). See ante, p. 192 ct seq.). (h) To give leave to enforce the award in the same manner as a judgment or order to the same effect (s. 12. See ante, p. 258 etseq.). (i) To order that a writ of subpoena ad testificandum or of subpoena duces tecum shall issue to compel the attendance of a witness wherever he may be within the United Kingdom (s. 18 (1). See ante, pp. 301, 302). {j) To order that a writ of habeas corpus ad testificandum shall issue to bring up a prisoner for examination (s. 18 (2). See antcr p. 302). {Ic) To direct an arbitrator or umpire at any stage of the proceedings- to state in the form of a special case for the opinion of the Court any CONDUCT OF THE REFERENCE 425' question of law arising in the course of the reference (s. 19. See ante, p. 302 et seq.). {I) To make any order under the Act on such terms as to costs or otherwise as the authority making the order thinks just (s. 20. See ante, p. 309). These are all the powers which the Court has under the Arbitration Act in the case of submissions by consent, but the Court has also certain powers derived from its inherent jurisdiction (see, e.g., ante,. p. 206 et seq.). Hides of the Su'preme Court do not apply to submissions by consent out of Coiirt. There is a proviso to Order XXXVI. r. 55c, of the Rules of the Supreme Court which appears to be open to some misconception, for it might seem to imply that rr. 48 to 55 of Order XXXVI., are applic- able to arbitrators acting under references by consent out of Court. If, however, the proviso is read carefully, it will appear that it is not so. The proviso is as follows : — Provided that where the arbitrator is appointed otherwise than by an order of the Court, the provisions of r. 48 as to sitting de die in diem shall not apply. The meaning of the proviso is apparently that where in " any cause or matter" the referee or arbitrator is agreed on by the parties e.g., under s. 14, the provisions of r. 48 as to sitting de die in diem shall not apply. That proviso is quite reasonable and natural, because, although by s. 15 such referee or arbitrator so agreed upon is an officer of the Court for the purposes of the reference, he is not an officer of the Court for other purposes, and, probably having his private business or profession to attend to, cannot be expected to sit de die in diem.. Er. 48-53 of Order XXXVI. would seem to have no application to references by consent out of Court, or to references under order of the Court when the order of the Court is merely evidence of an agree- ment by the parties to submit the cause or matter and all matters in difference to arbitration. Even if, having regard to the above proviso, such rules could be construed as applying to submissions by consent out of Court, it is submitted that they would in that respect be ultra vires. Distinction between ordinary arbitrators and special referees. It is important, therefore, for the person designated in an order of the Court, to examine carefully the form of the order of reference to him, so that he may see (a) whether the reference is made to him under s. 13 or 14, in which case he is deemed to be an officer of the Court, and his powers and duties are regulated by rules of Court, or (b) whether the 426 REFERENCE BY CONSENT OUT OF COURT reference is a submission to him as arbitrator, in which case his powers and duties are regulated by the terms of the submission and, unless a contrary intention is expressed in the submission, by the provisions of the First Schedule to the Arbitration Act and the various sections of that Act in so far as they relate to submissions by consent out of Court. 9. Special referees to whom actions or questions arising therein are referred. It should be explained that in s. 14 of the Arbitration Act the words used are " special referee or arbitrator." Why the word " arbi- trator" is used in that section is not clear, but whether the person designated in the order is called a special referee or an arbitrator, he is under s. 15 (1) deemed to be an officer of the Court, and as such comes under the powers of the Court, and is subject to the Kules of the Supreme Court and the provisions of the Arbitration Act in so far as they relate to such officers. As an officer of the Court, the person to whom an action or any question arising therein is referred for report or for trial under s. 13 or 14 has much greater powers than an arbitrator acting under a submission by consent. The first consideration, therefore, for a person receiving an order of the Court is to examine the terms of the order, for upon them depend the powers of the Court over him, and his powers in relation to the action or question referred to him. If the person to whom such an order is delivered is a layman, e.g. an engineer, architect, or surveyor, as distinguished from a lawyer, he will almost of necessity have to consult some legal adviser as to his powers and duties, and such adviser will, upon examining the order, ascertain whether it is made under s. 13 or 14 of the Arbitration Act or Order XXXVI. of the Rules of the Supreme Court, or whether it is a consent order for reference of the cause and all matters in difference under the inherent jurisdiction of the Court (see commentary on s. 14, Part II., jpost). If the order of the Court is a consent order made under the inherent jurisdiction, the person designated in the order is an ordinary arbitrator acting under a submission, the terms of the submission being evidenced by the order of the Court. If the order is made under s. 13 or 14 of the Arbitration Act or Order XXXVI. of the Rules of the Supreme Court, the referee is deemed to lie an officer of the Court, and the powers of the Court over him, and his powers and duties respectively, may be summarised as follows. \_Note. — This subject more properly belongs to Part II. of this work, relating to references under order of the Court, which are really part of the procedure in actions, and are therefore not arbitrations at all. CONDUCT OF THE REFERENCE 427 But, inasmuch as the same class of persons (generally laymen) as sit as arbitrators may be called on to sit as special referees, and the matters referred to them are similar to those which are often referred to arbitra- tion in the proper sense of the term, it has been thought desirable to give this summary here.] Powers of the Court over special referees. The Court or a judge (which includes a Master) has under the Arbitration Act : (1) Power to determine the remuneration to be paid to any special referee or arbitrator (s. 15 (3)). (2) All the powers which are by th^ Arbitration Act conferred on the Court or a judge as to references by consent out of Court (s. 16). These powers include power to remit the matters referred or any of them for reconsideration (s. 10 (1)). (3) Power to compel the attendance of witnesses (s. 18 (1)). (•4) Power to issue a writ of habeas corpus to bring up a prisoner for examination (s. 18 (2)). (5) Power to direct a special case for the opinion of the Court to be stated on any question of law arising in the course of the reference (s. 19). The powers of the Court over its officers are naturally very wide. Some of the rules of Court which relate in particular to the exercise of these powers are as follows : — The Court or a judge, when ordering an action or any question therein to be referred, may prescribe or regulate : (a) The place of trial and adjournments thereof, and inspections or view by the referee (Order XXXVI., r. 48). (b) The conduct of the reference or trial (Order XXXVL, rr. 49 and 50). (c) The authority of the referee with respect to discovery and pro- duction of documents (Order XXXVI., r. 50). {d) The entry of judgment for any or either party (Order XXXVI., r. 50). (e) The exercise of the discretion of the referee as to costs (Order XXXVI. r. 55b). The Court may also : (a) Kequire any explanations or reasons from the referee upon ques- tions submitted by him for the decision of the Court or upon which he has stated any facts specially (Order XXXVI., r. 52). (6) Eemit the action or any part for re-trial or further consideration to the same or any other referee (Order XXXVI., r. 52). (c) Decide the question referred to any referee on the evidence taken before him, with or without additional evidence (Order XXXVI., r. 52). 428 REFERENCE BY CONSENT OUT OF COURT The special referee's poivers and duties. (1) The referee may, subject to the order of the Court or a judge: (a) hold the trial at or adjourn it to any place which he may deem most convenient (Order XXXVL, r. 48) ; (h) have any inspection or view, either by himself or with his assessors (if any), which he may deem expedient for the better disposal of the controversy before him (Order XXXVI., r. 48). (2) Subject to any order of the Court or a judge ordering the reference, evidence must be taken, and the trial be conducted, in the same manner, as nearly as circumstances will admit, as trials are conducted before a judge (Order XXXVI., r. 49). (3) Subject as aforesaid, the attendance of witnesses may be enforced by subpoena (Order XXXVI., r. 49). (4) Subject as aforesaid, the referee has the same authority as a judge of the High Court with respect to discovery and production of documents and in the conduct of any reference or trial (Order XXXVI., r. 50). Under this rule the referee, subject as aforesaid : (a) has power to grant a commission to examine witnesses {Hayward v. Midual Reserve Association, [1891], 2 Q. B. 236); (b) has power to make an order for inspection of premises in thfr sole possession of a party to the reference {Macalpine v. Colder, [1893] 1 Q. B. 545), but not for inspection of premises- held in common with others {Coomes & Sons v. Hayicardy [1913] 1 K. B. 150), or as joint tenant with others {Kearsley V. Phili2Js (1883), 10 Q. B. D. 465). (5) Subject as aforesaid, the referee has the same authority as a judge of the High Court to direct that judgment be entered for any or either party (Order XXXVL, r. 50); and when the whole action is referred for trial, the referee is bound to direct how judgment shall be entered (Order XL., r. 2). (6) The referee cannot commit any person to prison or enforce any order by attachment or otherwise (Order XXXVL, r. 51). (7) The referee may, before the conclusion of any trial before him, submit any question arising therein for the decision of the Court, or state any facts specially, with power to the Court to draw inferences therefrom (Order XXXVL, r. 52). (8) The referee may at any stage of the proceedings, and must, if so directed by a Court or a judge, state in the form of a special case- for the opinion of the Court any question of law arising in the course of the reference (Arbitration Act, s. 19). (9) The referee is not required, as official referees are, to sit de die in diem (Order XXXVL, r. 55c). THE AWARD 429 Costs. Fees of referee. Note. — The practice of official referees is to make no distinction Itetween the costs of the action and the costs of the reference, as the costs of the action include the costs of the reference {Patten v. West of England Iron, Timber, and Charcoal Co., Ltd., [1894] 2 Q. B. 159) ; but special referees (who are not paid by the State as official referees are) have to consider the question of their fees. It is desirable, therefore, that they should give directions as to the costs of the reference and the amount of their fees (which form part thereof), as well as the costs of the action. First Schedule {h). THE AWARD. 1. Effect of the clause. 2. General requisites of a valid axvard. 3. Aboard by several arbitrators. 4. Joint axvard by umpire and arbitrators. 5. Power to make more than one aivard. 6. Formal requisites of aivard. Necessity of writing. Parol award. Employment of legal adviser to draw up award. Execution of award. Joint execution by two or more arbitrators. Original award and copies for parties. Stamping the award. Publishing award. When publication to the parties necessary. Delivery of award. "Award ready to be delivered." When actual delivery necessary. Award usually retained till arbitrator's fees paid. Stamp duty on award. What documents are liable to duty. Award under seal. Amount of duty. One stamp only required for all parties. Time for stamping. Judicial notice of want of stamp. Formal requisites of awards under Lands and Railways Clauses Acts, &c, 7. Form of award. Any words expressing a decision sufficient. No recitals necessary. What recitals advisable. Recitals specifying matters in difference. False recitals. 430 REFERENCE BY CONSENT OUT OF COURT 8. Directions iinder general powers of arbitrator. No implied power over person or land. As to apprentice. No power to award marriage. That defendant shall keep plaintiffs goods. As to salvage of goods burnt. That one party shall beg the other's pardon. As to property in dispute. Awarding power of distress. Regulating future enjoyment of property. Acceptance of goods with deduction from price. Directing illegal act. Directing payment of money. Fixing time of payment, &c. Penalty. Payment on Sunday. Ordering payment of rent not due. Directing executor to pay. Directing payment to wife instead of husband and wife. Directions as to payment of interest. Compound interest. Allowing interest contrary to practice of Court. Future interest. Interest as jury. Interest on money borrowed for purchasing estate. Interest on money deposited. Interest to member of benefit building society. Directions in cases of partnership. Power to award dissolution. Directions as to debts and credits of firm. Making no provision for defining of assets. Settling terms of dissolution. When an indemnity may be directed. Directions as to executing conveyances. Specifying nature of conveyance. Advisable to' direct which party to prepare it. Directing lease of charity estates. 9. Directions under special pioivers. Discretion of arbitrator. To enjoy property as before. Directions as to nuisances. Directions when presumed suificiently certain. Continuing damage up to date of award. Regulating a stream. Directing change from w^ood to iron machinery. Directing payments to be made to third persons. Exceeding authority. Delegating authority. Uncertain directions invalid. 10. Directions affecting strangers to submission. Direction to pay money to stranger. Though direction void, rest of award may be good. Direction valid when for party's benefit. Stranger not expressly authorised to receive. Agent of firm. THE AWARD 43: Payment to one of arbitrators for party's benefit. Directing stranger to do an act. Assignee of a patent. Where stranger bound to obey. Act of stranger condition precedent. When stranger merely ministerial. Party submitting on behalf of a stranger. Directions affecting jsroperty of stranger. To pay at stranger's house. Payment out of stranger's funds. Directing repairs of property not belonging to party. Directing tenant to commit waste. Showing in award that direction as to stranger is justified. 11. Effect of award generally. Award a final judgment on all matters referred. Proceeding in rem. Effect on a judgment. No estoppel as regards matters not referred. Conclusive on construction of contract. Damages awarded not a specialty debt. Award under Public Health Act, 1875. Effect on matters in difference not broi;ght forward. Accidental omission or refusal to consider matter. Party made to account in equity for item omitted. Matters not in difference at time of reference. No waiver of extrinsic objections. Cannot operate as a transfer of property. May decide title as between parties. Award by statute may operate as a conveyance. Extinguishing right to tithes. When title to compensation money complete. When title to land passes by allotment. Award as a parliamentary declaration. Persons claiming through or under parties bound. Assigning contingent right before award made. 12. Performance of award. What is a sufficient performance. Time for performance. Performance at different times or places. Obligation to take notice of award. Stakeholder not bound to take notice of award. Performance must be honest. Performance partly illegal or impossible. Award directing payment of money. Breach of award. Award directing execution of deed. No request necessary. Who is to prepare and tender conveyance. Tender for execution by agent. Award directing execution of release. Award directing execution of indemnity. Award in excess of powers. Death of party. 432 REFERENCE BY CONSENT OUT OF COURT 13. Award as a bar to an action. AVlien performance must also be pleaded. Wliere stranger may plead award. 1 4. Effect of aivard as evidenee. Valid award conclusive evidence as between the parties. Award as evidence of account stated. Award as evidence of title to land. Award as evidence of assets held by executors. Award not evidence in criminal proceedings. Award not evidence against strangers. Award not evidence of reputation. Award as evidence for a strangei". Award as evidence for arbitrator. Impeaching award put in evidence. 15. Action on award. See ante, p. 264 et seq. \Q. Enforcement of award. See anie, p. 258 ei sej. 17. Remitting award. See ante, p. 160 et seq. 18. Setting aside award. See ante, p. 192 et seq. [Unless a contrary intention is expressed in the submission (s. 2)] (h) The award to be made by the arbitrators or umpire shall be final and binding on the parties and the persons claiming under them respectively. 1. Effect of clause. There is no corresponding provision in previous legislation, but by the common law an award, unless and until set aside, is final both as to fact and law, and this provision in the Schedule adds nothing to the common law. If it did, the proper place to put such a provision would be in the body of the Act. The provision of the clause that an award shall be final and binding on the parties does not affect the jurisdiction of the Court to set aside an award which is bad on the face of it (see ante, p. 209 et seq.), and, on a motion to set aside an award, a finding by the arbitrator that a custom is reasonable and therefore a lawful custom does not preclude the Court from enquiring into the reasonableness of the custom, and setting the award aside if in the opinion of the Court the custom, as described in the a\vard, is unreasonable (Olynqna Oil and Cahe Co. v. Produce Brokers Co. (1916), 86 L. J. K. B. 421). This is merely an example of an error of law appearing on the face of the award. 2. General requisites of a valid award. An award, in order to be valid, must be final {ante, p. 214 et seq.), certain {ante, p. 224 et seq.), consistent and possible {ante, p. 228), and must decide the matters submitted, and no more than the matters submitted {ante, pp. 215, 216, 229, 230). THE AWARD 433 3. Award by several arbitrators. Where there are several arbitrators, all must join in making the award, in the absence of a provision to the contrary in the submission, and all of them ought to execute it at the same time and place (see ante, pp. 408-410). 4. Joint award by umpire and arbitrators. The fact that the arbitrators purport, after their authority has expired, to join with the umpire in his award, will not vitiate it, any more than if an entire stranger so purported to join in the award, and the award will stand good as the award of the umpire alone (Beck v. Sar(/ent (1812), 4 Taunt. 232 ; Soulshy v. Hodgson (1764), 3 Burr. 1474). 5. Power to make more than one award. An arbitrator can make only one award, unless he is expressly empowered by the submission to make more than one. Sometimes the submission directs or empowers him to make one or more awards. Under such a special provision his authority will, of course, not necessarily be terminated by the making of one award, though final as to part. It is not till he has made what he intends as a last and final award within the meaning of the submission that his power can be considered as exhausted {Doivse v. Coxe (1825), 3 Bing. 20; 3 L. J. (0. S.) C. P. 127; Stephens v. Lowe (1832), 9 Bing. 32; 1 L. J. (N. S.) C. P. 150 ; WrigUson v. Bywater (1838), 3 M. & W. 199; 7 L. J. Ex. 83). Under a statute an arbitrator may sometimes make a second award though the first award is intended to be final, if the first is invalid {Great North, &c., Bail Co. v. Clarence Bail. Co. (1844), 1 Coll. 507). 6. Formal requisites of award. The award must be made in such a way as to comply in point of form with the directions contained in the submission. Unless these directions are complied with the award will not be valid, unless the directions are of an immaterial character. Illustrations. 1. A submission by bond was conditioned to perform the award of an arbitrator, provided it was made in writing under his hand and seal. The award was in writing, but not under hand and seal. In an action of debt upon the bond the plaintiff declared that the arbitrator had made his award in writing and assigned a breach ; and the defendant demurred. Held that the award was bad, and the demurrer was allowed {Henderson, v, Williamson (1714), 1 Strange, 116). 28 434 REFERENCE BY CONSENT OUT OF COURT 2. A submission provided that the award should be in writing under the hands of the arbitrators. In an action of debt on the award the plaintiff in one count of the declaration averred that the arbitrators in due manner duly made their award in writing, but he did not aver or show that it was under the arbitrators' hands. Held that the plaintiff was not entitled to judgment on that count (Everard v. Paterson (1816), 6 Taunt. 625 ; 2 Marsh. 304). 3. By a submission, which was made a rule of Court, the parties agreed to refer their dispute to arbitrators, whose award was to be made in writing indented. An award was made but was not indented. On a motion by the plaintiff to attach the defendant for non-performance of the award the defendant took the objection that the arbitrators had not pursued their authority. Held an immaterial objection (Gatliffe v. Dunn (1738), Barnes, 55). Necessity of writing. Where the arbitration falls within the provisions of the Arbitration Act the award must be in writing, unless a contrary intention is expressed in the submission (s. 2 and First Schedule (c). See ante, p. 335). Parol avjard. If the arbitration is not within the provisions of the Arbitration Act, for example, when the submission is by parol, or if, although the arbitration is within the Act, the provisions of the First Schedule are excluded by the expression of a contrary intention in the submission, and the submission does not itself require that the award shall be made in writing, it may be made by parol, in the absence of a statutory provision to the contrary. Illustrations. 1. The parties entered into a bond to perform the award of an arbitrator, so that the award should be " made and given up " to the parties by the arbitrator. The arbitrator delivered his award by parol. Held sufficient (Cocfc v. Macclesfield (1562), 2 Dyer, 218 b; Benloe, 97). 2. A submission bond was conditioned to perform an award, so that it should be " made and ready to be delivered " by such a day. The arbitrator made a parol award. In an action of debt on the bond it was held that the award was valid {Oates v. Bromil (1704), 1 Salk. 75). 3. An award made by parol was held good, and an attachment was granted for non-payment of money pursuant thereto {Bawling v. JVood <1735), Barnes, 54). 4. Parties entered into a submission bond for performance of an award "so as the award be made in writing or by word of mouth." The arbitrators made by word of mouth, in favour of the plaintiff, an award which was uncertain. The plaintiff in his pleading made an aver- ment which, if admitted, would cure the uncertainty in the award. THE AWARD 435 Held that, the award being by parol, the averment should be allowed to make it certain {Hanson v. Leversedge (1689), Carth. 156). Where writing is not required, there must still be some external act •showing the determination of the arbitrator. An unexpressed deter- mination cannot be a good award, even if a parol award would be sufficient. In Thompson v. Miller {infra) Christian, J., said : " In the absence of a declaration, what evidence would there be of a sole arbitrator having made up his mind ? The test of the making of an award is, Can the arbitrator change his mind ? So long as it remains in his power to do so, he has not made an award. ... A declaration made in an empty room would be pretty much the same as if it were not made at all." Illustration, A submission between the plaintifi" and the defendant provided that all matters in dispute should be left to the decision of a named arbi- trator, but did not require that his award should be in writing. The arbitrator intimated .to the defendant, in the absence of the plaintiff, that he intended to award to the plaintiff £122, 16s. lOd,, and he did not otherwise make any award. In an action by the plaintiff on the alleged award the defendant traversed the award. At the trial, on proof of the above facts, the jury found a verdict for the plaintiff for the above sum, whereupon the defendant obtained a conditional order to set aside the verdict. Held that there was no evidence of an award, and the conditional order was made absolute {Thomioson v. Miller (1867), 15 W. R. 353). Employment of legal adviser to draw up award. There is no objection to an arbitrator employing a legal adviser to put the award into a proper form and to advise him upon its prepara- tion. The adviser employed should, however, be quite disinterested and unconnected with any party to the dispute. To employ an adviser who has already acted for one of the parties, or is otherwise interested, is highly inadvisable, and may lead to the award being set aside. Illustration. In a reference under the Lands Clauses Consolidation Act, 1845, to assess the compensation payable to a landowner by a railway company for land taken, the arbitrator, a layman, consulted and was attended by an attorney, who had acted in the reference for the landowner and was also the private solicitor of the arbitrator, the company at these attendances being represented only by their surveyor. The award was prepared by that attorney and awarded the landowner a larger sum than the company had offered him. The arbitrator claimed, besides his fee as arbitrator, a sum in respect of the costs of the refer- ence and award, sending in to the company a bill which included charges 436 REFERENCE BY CONSENT OUT OF COURT made by the attorney for his attendances for acting as his adviser at the reference, and for preparing the award. The arbitrator in evidence denied that he had received any advice or assistance from, or had any connection with, the attorney before he had fully made up his mind as to the sum he would award. A rule having been obtained to set aside the award, it was held that, though the course pursued by the arbitrator must be highly disapproved of, yet, having regard to the evidence of the arbitrator, the rule should be discharged, though without costs {Underwood and Bedford Rail. Co., In re (1861), 31 L. J. C. P. 10; 11 C. B. (N. S.)442). Execution of aivarcl. It is usual for the arbitrator to sign a vs^ritten award at the foot,. and for the signature to be attested by a witness. Joint execution hy ttvo or more arbitrator's. In the case of an award by more than one arbitrator all the arbi- trators should execute it at the same time and, in the presence of each other (see ante, p. 410). Original award and copies for parties. The usual practice in preparing an award is to have two copies made of it. One the arbitrator signs, which then becomes the original award, and this is delivered to the party who takes up the award. The other copy is available for the other parties if they apply for it. Stamping the aivard. The original award, before it is " available for any purpose what- soever," must be duly stamped, but there is no obligation upon the arbitrator to stamp it, and he does not usually do so. Puhlishing award. Submissions frequently provide that the arbitrator shall " make and publish " his award. In such cases the award is not valid unless it is published (see Armitt v. Brcame (1705), 1 Salk. 76). The Arbitration Act says nothing of " publishing " the award, either in the First Schedule or elsewhere. The distinction, however, does not seem to be of any practical importance, because an award is generally regarded as " published " as soon as the arbitrator has done any act whereby he becomes functus officio. In other words, as soon as the arbitrator has made a complete award, such award is regarded as made and published. Illustration. A submission to arbitration gave power to appoint an umpire, who was to " make and publish " his umpirage ready to be delivered THE AWARD 437 to the parties, or such of them as should require the same, on or before loth July, The award was duly executed and attested on 11th July, and on the following day notice was sent to the attorneys of both parties by the umpire between the hours of twelve and one that he was about to deliver his award, and he requested them to attend him for that purpose at five o'clock that evening, which they accordingly did, when the umpire read over and declared his award. One of the parties died on the following day, before he had notice that the award was ready. Held that the award was made and published in the lifetime of both parties (Brooke v. Mitchell (1840), 9 L. J. Ex. 269 ; 6 M. & W. 473). Where there are several arbitrators, the award cannot be regarded as published until there are all the necessary signatures to it. When 'publication to the parties necessary^ . For the purposes of the rule regulating the time within which a motion must be made to set aside the award (Order LXIV., r. 14), the publication, from which time begins to run, is the publication to the parties. The arbitrator, therefore, as soon as he has executed the award, should give notice to the parties that it is made and is ready to be delivered. In some cases publication to the parties is expressly stipulated for by the submission, and in such cases it would appear that publication to all the parties is a condition precedent to the right of any party to proceed upon the award. Illustration. A submission entered into by the plaintiff of the one part and the two defendants of the other provided that the award should be made and published to each of the parties (utriqm partium) before a certain day. The arbitrator made his award and published it to the plaintiff and to one of the defendants, but not to the other. In an action of debt on the award it was held that there had not been a sufficient publication of the award, and judgment was given for the defendants {Huntgate v. Mease (1600), Cro. Eliz. 885). Delivery of award. " Axoard ready to he delivered." It is often stipulated by the submission that the award should be ready to be delivered by a specified date. An award is ready to be delivered as soon as it has been duly made. Illustrations. 1. A submission bond provided that the parties should stand to the award " so as it be made under hand and seal, ready to be delivered to 438 REFERENCE BY CONSENT OUT OF COURT the parties," before a certain date. In an action of debt on the bond the plaintiff stated in his declaration that the award was made before that date, but not that it was ready to be delivered. Held that the declaration was good, and that the plaintiff could recover {Bradsey v. Chjston (1639), Cro. Car. 541). 2. In an action of debt upon a bond to perform an award, so that the award be made under the hands and seals of the arbitrators ready to be delivered to the parties, the defendants pleaded that there wa& no award, and the plaintiffs in their replication set forth an award, but did not aver that it was ready to be delivered to the parties. Held that there was no need for the plaintiff to make that averment, for as soon as the award was made it was ready to be delivered {Joyce v. Haines (1665), Hardr. 395; Anori. (1703), 2 Ld. Raym. 989; RoUson V. Calwood (1703), 6 Mod. 82). 3. A bond was conditioned to perform the award of an arbitrator^ so that the, award should be made in writing and delivered, or ready to be delivered, before a certain day, upon request, to either of the parties. In an action of debt on the bond the plaintiflF showed that the award had been made before that day, but not that it was ready to be delivered by that day. It did not appear that the defendant had made any request. Held that the plaintiff's allegations were sufficient {Marks v. Matriot (1697), 1 Ld. Raym. 114). 4. In an action of assumpsit the defendant pleaded a submission to arbitration, so that the award should be made and ready to be delivered by such a day, and that the award was made before that day. The plaintiff demurred, alleging that the defendant had not averred that the award was ready to be delivered by the day. Held, that as it appeared that the award was made by the day, it was ready to be delivered by the day {Freeman v. Bernard (1698), 1 Ld. Raym. 247). Such a stipulation merely requires that the award shall be ready for delivery by the date specified, and the fact that it is not actually delivered by that date will not affect its validity (Broicn \\ Vawser (1804), 4 East, 584). Wlien actual delivery necessary. But if the stipulation is that the award shall be delivered by the named date, actual delivery is essential to its validity. If the delivery is required to be made to either party, the word " either " will be con- strued as " every " and delivery must be made to both parties, but if the award is to be delivered " to the parties or one of them," delivery to any one of them will be sufficient. Illustrations. 1. A bond was conditioned to stand to the award of J. S., so as it be delivered to either of the parties before a certain date. In an action of debt upon the bond it appeared that the award had been delivered TBE AWARD 439 to the plaintiff only. Held that the word "either" in the bond should be construed as " every," that one part of the award should have been delivered to each party, and that the matter should be referred again to arbitration {Parher v. Parker (1596), Cro. Eliz. 448). 2. A bond was conditioned for performance of an award, to be in writing delivered to either of the parties before Michaelmas. In an action of debt on the bond the defendant pleaded no award. The plaintiff showed that an award was made and delivered to him, but did not allege that it was delivered to the defendant also. The defendant demurred. Held that the delivery should have been to both, the intention of the condition being that both should have conusance thereof {Block v. Palgrave (1600), Cro. Eliz. 797). 3, A bond was entered into by A. and B. of the one part, and C. and D. of the other part, to perform the award of an arbitrator, so that the award should be made or given up " to the parties, or to one of them," before a certain date. In an action of debt on the bond the defendant pleaded that the arbitrator made no award, inasmuch as he did not deliver any award to A. and B. or either of them, although it was not denied that it was delivered to C. and D. Held that delivery of the award to either of the parties thereto, although not to both, or to one of each party, was sufficient {Cocks v. Macclesfield (1562), 2 Dyer, 218 b). In the absence of any express stipulation, the duty of the arbitrator is merely to have the award ready for delivery to the parties, on their request, before the period of his authority is at an end, and to acquaint them with the fact. The time of actual delivery in such a case is not material. Aioard usually retained till arbitrator's fees paid. It is usual for the arbitrator to keep the award in his own hands until his fees have been paid by the party taking it up. This course has been approved by the Court, and is a proper one even where the party who is desirous of taking up the award is not the party who, under it, will ultimately be liable to bear the costs in question. In Hicks v. Richardson (1797), 1 Bos. & P. 93, the parties having submitted to arbitration, the arbitrator awarded 10s. Id. as the balance due to be paid by the plaintiff to the defendant, and, inter alia, that each party should pay a moiety of the costs of the arbitration. After notice of the award the defendant, in order to get it out of the hands of the arbitrator, paid the whole expense of the arbitration. The defendant then tendered the sum awarded to the plaintiff, and called upon him to pay a moiety of that expense, but the plaintiff refused to do so. The defendant obtained a rule nisi for an attachment against the plaintiff, who contended that it was not competent for the defendant to pay the plaintiffs moiety voluntarily and then seek to attach him. The Court made the rule absolute, Eyre, C.J., saying: 440 REFERENCE BY CONSENT OUT OF COURT " I cannot but think that it was the better course to be taken in this case for the arbitrator to get the whole costs from the defendant by withholding the award, who may redress himself by one attachment, than for the defendant to have an attachment against the plaintiff for not obeying the award as far as concerned him, and then for the arbitrator to have an attachment against him for the moiety of the costs of the arbitration." He added that perhaps on strict legal grounds the arbitrator ought to have applied for the attachment to enforce payment of the costs of the arbitration, but that he was unwilling to force arbitrators to come into Court. See, further, as to the arbitrator's remuneration, the commentary on clause (i) of the First Schedule (post). Stamp duty on avjard. Wliat documents are liable to duty. Written awards are liable to stamp duty in all cases, unless specially exempted by statute. Any decision, however informal, which is in fact an award in writing, even though it does not purport on its face to be such, is so liable. Illustrations. 1, A bond conditioned for the due discharge by A. of the duties of clerk, provided that such discharge should be ascertained by the inspection of A.'s accounts by J., and that the amount so ascertained should be liquidated damages. A paper by which J. ascertained such amount was held to be an award and to require a stamp as such (Jebb V. M'Kiernan (1829), 1 Moo. & M. 340). 2. Several coach proprietors, who horsed a coach for certain stages respectively, had monthly accounts made out by the clerk of one of the proprietors, partly from materials furnished by them, and partly from the way bills, showing the amount which each had to receive or pay, and the proprietor or proprietors from or to whom he was to receive or pay such amount, and the practice was for the clerk to send to each proprietor a copy of the monthly account. Held that the account was not an award, and was admissible in evidence without a stamp {Goodyear v. Simpson (1845), 15 M. & W. 16; 15 L. J. Ex. 191. See also Carr v. Smith (1843), 5 Q. B. 128). But it is submitted that in order to constitute an award for the purpose of stamp duty there must be not only a decision but also an intention on the part of the person making the decision to act as an arbitrator. A valuation or appraisement is not an award, nor, it would seem, is the opinion of counsel, even where the parties have agreed to 1)6 bound by such opinion. Illustrations. 1. In an action for the price of building a house for the defendant the declaration was on an award which had an appraisement stamp but THE AWARD 441 no award stamp. It was contended for the plaintiff that when persons are appointed only to fix prices an appraisement stamp is sufficient. It was decided, however, that here the finding was in substance an award which was final and binding on the parties (Perkins v. Potts (1814), 2 Chitt. 399). 2. An agreement having been made between an outgoing and an incoming tenant that the latter should buy the hay on the farm from the former, and that the former should allow to the latter the expense of certain repairs on the farm, and that the value of the hay and repairs should be settled by referees, a memorandum in writing was drawn up which set forth these facts and stated that the referees, having examined the hay, appraised and valued it at .£184, 4s., and deducted therefrom for repairs £6, 16s., leaving due to the outgoing tenant £177, 8s., and this memorandum was dated and signed by the referees. Held that the memorandum was sufficiently stamped with an appraisement stamp, and that an award stamp was unnecessary {Leeds V. Burrows (1810), 12 East, 1). 3. A horse having been killed by falling down an old shaft of a mine not sufficiently covered, the owner of the horse charged a certain person with being in possession of the shaft. The latter denied that the shaft was his, but said that if a miners' jury should say it was his, he would pay for the horse. A miners' jury found in writing that the shaft was his. Held that as the document did not, on the face of it, appear to be an award, it did not need to be stamped as such {Syhray V. White (1836), 1 M. & W. 435). 4. The parties to a dispute entered into an agreement to state a case and abide by counsel's decision and opinion thereon. The case, mentioning the agreement, was stated, and the opinion given and subjoined to the case, and it began : *' Upon the facts here stated, I am of opinion," &c. Semble, that this opinion did not require an award stamp (Boyd v. Emmerson (1834), 2 A. & E. 184 ; 4 L. J. K. B. 43). Aioard under seal. Where an award is made under seal, and is delivered merely as an award, it requires only an award stamp and not a deed stamp. It would be otherwise if it were delivered as a deed and not merely as an award. Illustrations. 1. A submission provided that the parties were to abide the award "so as the award of the said arbitrator be made and set down in writing under his hand and seal, and ready to be delivered to the said parties on or before the 1st of May " ; but it did not say that the award was to be by deed. The arbitrator made his award in writing and under seal, but it was delivered as an award and not as a deed. One of the parties having obtained a rule nisi for an attachment for non- performance of the award, the other party in showing cause took the objection that the award was on an award stamp, whereas, being under 442 REFERENCE BY CONSENT OUT OF COURT seal, it ought to have been on a deed stamp. Held that the award having been delivered only as an award and not as a deed, the stamp- was sufficient; and the rule was made absolute (Brovm v. Fawser (1804), 4 East, 584). 2. A contract of sale provided that the vendor should sell certain premises to the purchaser at a price which should be fixed by arbitrators, whose award, provided it was in writing under their hands and seals ready to be delivered to each party by a certain date, should be final and conclusive. Before that date the arbitrators gave their decision in writing under their hands and seals, ready to be delivered to the parties, but it was not stamped with a deed stamp. Held that the writing, when signed and sealed, constituted an award, delivery, which, was of the essence of a deed, not being necessary to it, and therefore that it did not require to be stamped as a deed (Blundell v. Brettargh (1810), 17 Ves. 232). Amount of duty. Formerly, by Schedule I. of the Stamp Act, 1891, an ad valorem duty was chargeable on an award, ranging from 3d. where the amount or value awarded did not exceed £5 to £1, 15s. where it exceeded £1000. Now, by s. 9 of the Kevenue Act, 1906 (6 Edw. VII. c. 20) : "A uniform duty of ten shillings shall be substituted for the duties chargeable under the Stamp Act, 1891, on an award in England or Ireland, and on an award or decreet-arbitral in Scotland, and specified under that heading in the First Schedule to that Act." One stamp only required for all parties. An award only requires one stamp, although there may be several parties to the submission having separate rights and liabilities, provided that they have a community of interest in the matters decided. Illustration. By a policy of insurance the plaintifi" was insured by the defendants, who were underwriters. Subsequently the plaintifi" on the one hand and all the defendants on the other hand entered into an agreement to refer to arbitration the plaintiff"s demand on the policy, and the- arbitrator made an award. There was only one stamp on the agree- ment to refer and one stamp on the award. Held that the agreement to refer and the award were sufficiently stamped, and that it was not necessary that either of them should be stamped with as many stamps as there were defendants (Goodson v. Forbes (1815), 6 Taunt. 171. See also Allen v. Morrison (1828), 8 B. & C. 565). Time for stamping. An award ought to be stamped when it is made, but may be- stamped at any time upon the payment of a penalty. THE AWARD 445- An award cannot be set aside upon the ground that it reinains' unstamped or is improperly stamped, so long as no steps are taken to enforce it. Illustration. An award in favour of the plaintiff was made on an improper stamp^ but the plaintiff had not taken any step to enforce the award by attachment or otherwise. The defendant having obtained a rule to set aside the award because of the defect, it was held that the application was made too early, the plaintiff not having as yet sought to enforce the award ; that the award might still be made valid by having it properly stamped and paying the penalty ; that in its present form it might be considered a nullity and not a proper object of any applica- tion; and that the rule should be discharged (Preston v. Eastwood' (1797), 7 T. R. 95). Judicial notice of ivant of stamp. The Court will take judicial notice of the want or insufficiency of a stamp in any proceedings upon an award which is not properly stamped. Illustration. A party seeking to have a rule drawn up for an attachment for non-performance of an award, the officer of the Court observed that the award was unstamped, and therefore refused to draw up the rule. On^ an application by the party to the Court for a direction to the officer to draw up the rule : held that it was competent to the officer to take the objection, and to refuse to draw up the rule {Hill v. Slocomhe (1841),. 9 Dowl. P. C. 339). And if a party proposes to rely upon the want of a stamp upon> a motion to have the award set aside, this must be specifically stated in his notice of motion, otherwise he will not be permitted to raise the- point at the hearing (see Liddell v. Johnstone (1798), Tidd's Practice^ 9th ed.. Vol. IL, p. 844). Formal requisites of awards under Lands and Raihvays Clauses Acts, &c. In arbitrations under the Lands Clauses Act, 1845 (8 & 9 Vict. c. 18), 8. 33, and the Railways Clauses Act, 1845 (8 & 9 Vict. c. 20), s. 134, the award must be in writing, and the declaration made and subscribed by the arbitrator before entering on the reference must be annexed to the award when made. The effect of omitting to annex the declaration is not stated. The 37th section of the former Act and the 137th section of the latter Act enact that "no award made with respect to any question referred to arbitration under the provisions of this or the special Act shall be set aside for irregularity or error in matter o£ 444 REFERENCE BY CONSENT OUT OF COURT form." A like provision is contained in the Eailway Companies Arbitration Act, 1859 (22 & 23 A^ict. c. 59), s. 24. Under this Act the award must be in writing under the hands of the arbitrators or umpire. 7. Form of award. Any loords expressing ci decision sufficient. With regard to the substance of the award, any form of words amounting to a decision of the questions referred will be good as an award. No technical expressions are necessary {Eardley v. Steer (1835), 4 Dowl. 423 ; 4 L, J. (K S.) Ex. 293). But as awards often bind valuable rights for all time, the arbitrator should be precise and clear in his adjudication. The words " I have surveyed and estimated the several works necessary to be done in repairing the dilapidations to the house, and find the same amount to £55, 5s.," were held a conclusive award ( Whitehead v. Tattersall (1834), 1 A. & E. 491). So the words " I am of opinion that A. is entitled to claim of B. £134 for non-performance of his contract " were held a sufficient award {Matson v. Trov:er (1824), 1 Ey. & Moo. 17). But where the arbitrator wrote a letter saying, " To meet the circumstances of the case in a liberal manner I propose that B. should pay A. £10," this was not considered an award, because it did not express a decision that A. was entitled to the £10, but only recommended that that sum should be paid to him {Lock v. Vulliamy (1833), 5 B. & Ad. 600. See also Clapcott v. Davy (1701), 1 Ld. Eaym. 611). An award deciding in the plaintiff's favour, and requesting the '>'actice of Court. Interest may be allowed by an arbitrator in cases where the Court would not give it, as, for instance, in taking the accounts in a suit he may allow interest on both sides of the account, although the Court would not do so ; for so allowing it is a breach of a mere rule of practice and not a violation of any general rule of law, and the authority to adjust the account carries with it an implied authority to allow interest {Badger, In re (1819), 2 B. & A. 691). Future interest. But the arbitrator cannot award the payment of interest subsequent to the date of the award, unless the submission expressly gives him power to do so {Mori^hett, In re (1845), 14 L. J. Q. B. 259; 2 D. & L. 967). Interest as jiwy. An arbitrator is at liberty to award interest, under the stat. 3 & 4 Will. IV. c. 42, ss. 28, 29 {Echvards v. Great Western Bail. Co. (1851), 11 C. B. 588; 21 L. J. C. P. 72). THE AWARD '45-1 Interest on money horroived for ^5?MT7tasm^ estate. An arbitrator may award to a purchaser of an estate, who has ■brought an action against the vendor for not completing the sale, the amount of interest paid by the former upon money borrowed by him to complete the purchase, and necessarily kept idle, pending an endeavour of the vendor to clear the title, and the Court will presume that the arbitrator was justified by the circumstances in making the allowance, nothing to the contrary appearing on the face of the award iShernj v. Oke (1833), 3 Dowl. 349). Interest 07i moiiey de])osited. On the reference of an action brought by a servant to recover the ■balance of a sum deposited by him with his master, the arbitrator allowed him interest on the balance, and the Court refused to disturb the award {Beahan v. Wolfe (1832), Alcock & Napier, 233). Interest to memher of henefit building society. An award by arbitrators of a benefit building society, allowing interest to a member, is not bad on its face, and the Court will not enquire into the propriety of the amount (Armitage v. Walker (1855), 2 K. & J. 211). Directions in cases of jpartncrship. Power to award dissolution. On a reference of all matters in difference between partners, the arbitrator may award a dissolution of the partnership {Green v. Waring <1764), 1 W. Bl. 475 ; Walmsley v. White (1892), 67 L. T. 433 ; Vawdrey V. Simpson, [1896] 1 Ch. 166 ; 65 L. J. Ch. 369), and where he has power to award a dissolution he may, in addition, award a return of a premium or any portion thereof {Belfiekl v. Boiirne, [1894] 1 Ch. 521 ; 63 L. J. Ch. 104). But he is not bound to direct a dissolution even if he is appointed " to arbitrate and determine as well a dissolution of the said co-partnership and a remuneration to either party, and the cancel- ling of the indenture of co-partnership, as of and concerning all matters in difference between the parties " {Simmons v. Sivaine (1809), 1 Taunt. 549; Joplin v. Postlethwaite (1890), 61 L. T. 629). Directions as to debts and credits of firm. The arbitrator may direct that the partners shall pay the debts of the firm, and be entitled to receive the amounts due to it, in such pro- portions as he thinks just. Where there are two partners only, it is not -uncommon to award that each shall pay and receive a moiety, and to provide that if one advances or pays any sum beyond the half share due 452 REFERENCE BY CONSENT OUT OF COURT from him, the other shall reimburse him the amount overpaid. In like manner the arbitrator may direct that if any sum due to the firm be paid to one partner, he shall pay a moiety of it to the other partner. There is no necessity for any more specific directions how the several sums are to be received and paid. Directing a division in equal shares of the amounts due to the firm is clearly all he can prescribe effectually, since he has no control over the debtors (Wood v. Wilson (1835), 2 C. M. & II. 241 ; 4 L. J. (N. S.) Ex. 193 ; Lingood v. Bade (1742), 2 Atk. 501). It seems an unobjectionable course, instead of awarding a division as above, to direct that one of the parties shall pay all the liabilities of the firm, and collect for his own use all the money owing to it, and to allow in the ultimate account a specified sum for or against the other partner, according to the balance of advantage or loss calculated to accrue to the former {Coppard, Ex parte (1833), 4 Deac. & Ch. 102; Aitken's Arbitration (1857), 3 Jur. (N. S.) 1296). Mahing no provision for deficiency of assets. An award as between partners, providing for the application of the partnership assets, if there should be a surplus, but not providing for the event of a deficiency, is not necessarily invalid ; for as the arbitrators proceed on a supposition that the partnership effects are sufficient, the Court, in support of the award, will presume the supposition well founded, in the absence of proof to the contrary ( Wilkinson v. Page (1842), 1 Hare, 276; 11 L. J. Ch. 193; Bouth v. Peach (1796), 3 Anst. 637). Settling terms of dissolution. An arbitrator who was to decide the terms upon which an agreement of partnership between two attorneys should be cancelled, and also which of the parties had a right to receive certain bills of costs, was held authorised, after deciding that one of them was entitled to receive the bills of costs and collect and keep the amount for his own use, to award further that that one should be at liberty to use the name of the other, eitlier alone, or jointly with his own, in suing for the same {Burton v. Wigley (1835), 1 Bing. X. C. 665 ; 4 L. J. (N. S.) C. P. 176). A direction in an award in restraint of trade may be lawful. Where the arbitrator was to settle the terms and conditions on which the co-partnership between two persons, carrying on business as surgeons and apothecaries in a certain town, should be dissolved, and it was part of the terms of the submission that one of them should still carry on the business for his sole benefit, the arbitrator was held justified in awarding that it should not be lawful for the other to carry on the practice or profession of a surgeon and apothecary in the particular town, or within thirteen miles of it {Morley v. Neivman (1824), 5 D. & E. 317). THE AWARD 453 When an indemnity may he directed. It seems that an arbitrator, without special authority, has, in general, no power to order one party to the reference to indemnify the other against particular contingencies {Ross v. Boards (1838), 8 A. & E. 209 ; 7 L. J. (N. S.) Q. B, 209), but sometimes the nature of the case will warrant such a step. Illustrations. 1. An award ordering the defendant to execute a covenant to indemnify the plaintiff against all costs, damages, and expenses, which would happen by means of any further proceedings in a qui tarn action against the plaintiff, begun at the instance of the defendant, was held good, on the ground that as the action could not be released, the poor being interested in it, the direction to indemnify was vaUd from the necessity of the case ; and that it was no objection that the amount to be indemnified against was uncertain, since the defendant, by causing the action to be proceeded with, might ascertain it ; but it was added that the awarding of the indemnity would have been an excess of authority had there been any means of releasing or discharging the action (Phillips v. Knightley (1731), 2 Stra. 903; S. C. note to Fisher v. Pimhley (1809), 11 East, 190). 2. The Court refused to set aside an award on the ground that the arbitrator had ordered the defendant to give a bond to indemnify the plaintiff against a bill of exchange, which the plaintiff had given to ransom his ship in a case of extreme necessity {Miller v. Robe (1811), 3 Taunt. 461). 3. On a reference of all matters in difference, it appeared that the parties were proprietors of a ship, and that disputes had arisen as to their liability to pay expenses, the shijD having been arrested by Admiralty process on 24th March 1825. The arbitrators ordered one party to pay all debts incurred after that date, and that he should give the other party a bond of indemnity against payment of those debts. Held that the award was good {Brown v. Watson (1839), 6 Bing. N. C. 118). Wherever an arbitrator has authority to settle the liability of the respective parties to the reference with regard to debts due to third persons, he may order one party to pay them and to indemnify the other against them {Goddard v. MansfuM (1850), 19 L. J. Q. B. 305. See Aitken's Arbitration (1857), 3 Jur. (N. S.) 1296). 4. When the arbitrator has to settle the terms on which a partner- ship is to be dissolved, and he empowers one partner, to whom he awards the debts due to the firm, to use the other's name in bringing actions for the sole benefit of the former, the arbitrator may have power to order him to indemnify the other against any liability in respect of costs by reason of the use of his name in the actions {Burton v. Wigley (1835), 1 Bing. N. C. 665 ; 4 L. J. (N. S.) C. P. 176). 5. Where the arbitr-ator had to settle at what price and on what terms the defendant should purchase an estate of the plaintiff, and he awarded that the defendant should be at liberty to use the plaintiflp's 454v REFERENCE BY CONSENT OUT OF COURT name in enforcing certain rights and remedies in respect of the estate. Lord Abinger, C.B., expressed the opinion that the arbitrator, if he had pleased, might have fixed the terms on which the defendant should have indemnified the plaintiff (Round v. Ration (1843), 10 M. & W. 660;. 12 L. J. Ex. 7). Directions as to executing conveyances. When the question in dispute relates to land, it often happens^ from the nature of the differences, that the arbitrator has to order one party to execute a conveyance to the other; for as the title to land will not pass by the award, the arbitrator, when he intends that one party shall have the land, may find it necessary to award a release or conveyance, in order that the award may be final {Johnson v. Wilson (1741), Willes, 248). Specifying nature of conveyance. In directing a conveyance or other deed, the arbitrator should take care to specify the nature and character of the instrument {Tandy v. Tandy (1841), 9 Dowl. 1044; Tipping v. Smith (1736), 2 Stra. 1024; Thinnc v. Bighy (1612), Cro. Jac. 314), but he need not prepare it himself {Tehhutt v. AmUer (1843), 2 Dowl. (K S.) 677 ; 12 L. J. Q. B. 220). Advisable to direct which party to prepare it. The arbitrator should state in the award at whose expense the- conveyance or other instrument is to be prepared, and which of the parties is to prepare it and tender it to the other for execution, as the parties are very likely to contest the point with each other, and difficulties may arise in enforcing the performance of the award {Boe d. Clarke v. Stillwell (1838), 8 A. & E. 645). Directing lease of charity estates. Where the arbitrator has to deal with matters affecting estates dedicated to charitable purposes, he should be cautious to see that his directions are such as the Court will sanction. If he directs the trustees of the property to grant a lease of the estates, he should, it is apprehended, in directing the terms of the lease, award such terms and such terms only as the Court would permit the trustees of their own accord to have granted {Attorney-General v. Clements (1823), 1 Turn. & E. 58). 9. Directions under special powers. With a view of removing causes of future differences, large dis- cretionary powers to affect the property of the contending parties are. THE AWARD 45^ in many instances, given to the arbitrator by the submission. The clause giving the authority is often worded thus : " That the arbitrator shall have power to determine what he shall think fit to be done by the parties respecting the matters in dispute." Discretion of arbitrator. Under this power the arbitrator need not, unless he chooses, give any directions at all, the words " what he shall think fit " importing a discretionary power {Angus v. Bedford (1843), 11 M. & W. 69 ; 12 L. J. Ex. 180 ; Grenfell v. Mgcomhe (1845), 7 Q. B. 661 ; 14 L. J. Q. B. 322). So, a power to direct " what, if anything, shall be done by the parties respectively," is permissive and not compulsory (Nicholls v. Janes (1851), 6 Ex. 373 ; 20 L. J. Ex. 275). On the reference of a claim respecting a will and the granting of an annuity, a clause in the submission " that in case the arbitrator shall award any such annuity, he shall or may award the same with a proviso that in case of a deficiency of assets of the testator the annuity or the fund from which the same shall arise shall abate in the same manner as if it were a provision contained in the will," was held to be imperative, and to make it incumbent on the arbitrator when awarding the annuity to insert the proviso in his award {Crump v. Adney (1833), 1 C. & M. 355 ; 2 L. J. (N. S.) Ex. 150). To enjoy property as before. Where the arbitrator, who had " power to direct how the property should be enjoyed for the future," awarded damages to the plaintiff for certain claims, and directed " that the parties should enjoy the property respectively as heretofore," the Court held that this was not a final adjustment {Boss v. Clifton (1841), 9 Dowl. 356). Directions as to nuisances. Actions brought for injuries by certain manufactories or by gas- works to neighbouring landowners are often referred to an arbitrator, with power to him to say what shall be done with a view of regulating the future course of the works. If the injury is of a recurring or continuous nature, it is important for the manufacturer to suggest some scheme for the future, which the award may direct to be followed. Eor if the question as to regulations for the future is not brought before the arbitrator, and the award is confined to an assessment of damages, the continuance of the business of the manufacturer may be stopped by a perpetual injunction, the award being treated like the verdict of a jury as establishing the existence of an actionable nuisance {Im2oerial Gaslight Co. v. Broadhcnt (1859), 7 H. L. Cas. 600 ; 29 L. J. Ch. 377). 456 REFERENCE BY CONSENT OUT OF COURT Directions when presumed snjfficiently certain. In considering whether an award is sufficiently certain, it will be presumed, in the absence of proof to the contrary, that there was a state of facts to which the directions in the award can reasonably apply {Mays V. Cannell (1854), 15 C. B. 107 ; 24 L. J. C. P. 41). Continuing damage up to date of award. A tenant of a water mill sued his landlord for breach of a covenant in the lease by the landlord to repair the mill, weir, and mill bank. The cause being referred to an arbitrator with power to decide all matters and questions, and do justice between the parties, and to order and direct what should be done, either immediately or prospectively, it was held that the arbitrator had power to award damages for the continuing breach of covenant up to the date of the award (Leicis v. Jlossiter (1875), 44 L. J. Ex. 136). Begidating a stream. Under a power to the arbitrator to decide the right to a certain stream of water claimed in the action, and to regulate the use of it in future, and to order and determine what he should think fit to be done, it was considered that the authority given to the arbitrator to regulate the flow of the stream in dispute incidentally and necessarily em- powered him to affect the enjoyment of other rights of the parties, and to make regulations respecting the flowing of the water in the stream in question, notwithstanding that they interfered with the former enjoy- ment of other streams not the subject of dispute ( Winter v. Lethlridge (1824), 13 Price, 533). Directing change from wood to iron machinery. Under a reference to settle the matters in difference, and to award such alterations in the defendant's works as to the arbitrator should seem necessary, regard being had to their state at a particular period, an award directing no other alteration than that certain parts of the machinery, which were of wood, should be made of cast iron, was held a due execution of the authority (Walker v. Frohisher (1801), 6 Ves. 70). Directing payments to he made to third persons. An arbitrator, who was empowered to investigate legal and equit- able claims and to give directions, by his award directed that, on production by the plaintiffs to the defendant of proper receipts from certain persons to whom the plaintiffs were directed to make certain payments, the defendant should pay the plaintiffs a sum of money. This was held good {Miller v. Dc Burgh (1850), 4 Ex. 809 ; 19 L. J. Ex. 127). . THE AWARD 457 Exceeding authority. An action in which the plaintiff claimed a right-of-way (not a carriage way) was referred to an arbitrator, who was to settle all matters in difference between the parties, and to direct in what manner the road in question (if he should find for the plaintiff) should be enjoyed. The arbitrator awarded a verdict for the plaintiff, and that the plaintiff was entitled to a right-of-way, including a carriage way. The Court held that the arbitrator, in awarding a carriage way, had clearly exceeded his authority, and set aside that part of the award {Hooper v. Hooper (1825), M'Clel. & Y. 509). (As to excess of authority generally, see ante, pp. 229, 230.) Delegating authority. Disputes having arisen between the owners of two mills on a river, an arbitrator, appointed to define the water rights and depths of weir, and authorised to order any erections to be put up about the defen- dant's weir, awarded that the defendant was entitled to maintain his weir at the depth of fourteen inches and no more, and for the purpose of marking the depth ordered such durable marks and erections to be placed about the weir as B. might direct. The Court held the direction as to the depth of weir sufficient, but that the award was avoided by delegating to B. to fix the marks {Johnson v. Latham (1850), 19 L. J. Q. B. 329). (As to delegation generally, see ante, p. 399 et seq.) Uncertain directions invalid. A landlord having removed some gates, locks, bolts, and fastenings from the demised premises, a direction by the arbitrator ordering the tenant to put up other gates, locks, bolts, and fastenings in the place and stead of such as had been removed was held bad for uncertainty, the award not showing what fixtures had been removed, or specifying the nature, quality, or price of those which were to be substituted {Price V. Poplcin (1839), 10 A. & E. 139; 8 L. J. (K S.) Q. B. 198). ►So, where an award directed that the defendant should take all proper and reasonable precautions and measures for preventing the water of the stream from being rendered unfit for the use of the plaintiff, and that all refuse waters from the defendant's works should, at the defendant's expense, be passed through filters, so as to be thereby effectually purified and cleansed, so far as the same could be purified and cleansed by the ordinary and most approved process of filtering, it was held that the award was bad, because it was uncertain, as not describing or ascertaining the precautions which were to be taken ■{Stonehewer v. Farrar (1845), 6 Q. B. 730; 14 L. J. Q. B. 122. See :^harpe v. Hancock (1844), 7 M. & G. 354; 13 L. J. C. P. 138). (As to uncertainty in awards generally, see ante, p. 224 et seq.) 458 REFERENCE BY CONSENT OUT OF COURT 10. Directions affecting strangers to submission. Direction to -pay money to stranger. If an arbitrator directs a party to pay a stranger a sum of money >. the direction is void unless the payment is for the benefit of one of the parties to the submission, and the omis of showing that it is so is on^ the party seeking to enforce the award ( Wood v. Adcoch (1852), 7 Ex.. 468 ; 21 L. J. Ex. 204. See Laing v. Todd (1853), 13 C. B. 276). Though direction void, rest of aivard may he good.. Where the award directed that the defendant should make a lease- of certain land to the plaintiff for life, with remainder to a stranger in fee, the Court held that, though the award was void as to the remainder to the stranger, it ought to be performed as to the lease for life {Bretton V. Prat (1600), Cro. Eliz. 758 ; Pope v. Brett (1670), 2 Saund. 292). So, where there were disputes between the plaintiff and defendant respect- ing certain lands, an award that the plaintiff and his wife should enjoy the land was held void as to the wife, she not being a party to the submission (Samon's case (1594), 5 Eep. 77 b; Samon v. Pill (1595), Ptolle, Ab. Arb. B 7). Direction valid ivhen for party's heneft. If the thing to be done with respect to the stranger to the sub- mission is beneficial to the party entitled to receive satisfaction; for instance, if the arbitrator directs that one party shall pay money to the servant of the other (Dudley v. Mallery (1576), 3 Leon. 62; Noricich v, Norwich (1576), 3 Leon. 62), or that a party shall pay a sum to a stranger to discharge money owing to the latter by the other party, the award may be sustained (Bcdam v. Clcrkson (1696), 1 Ld. Kaym. 123;. Rolle, Ab. Arb. E 4, 5). An award to pay a sum of money to two part-owners of a ship for the use of themselves and the rest of the part-owners and mariners parties to the submission is good {Wood v. Thompson (1647), Eolle, Ab. Arb. F 11). So, an award that the parties shall in certain proportions discharge a debt by bond in W'hich they are jointly bound is valid although the obligee of the bond is no party to the submission {Gray v. Gh^ay (1619), Eolle, Ab. Arb. E 6). And so is a direction that one of two joint owners of a vessel shall discharge a debt due to a stranger for things supplied to the vessel (Skeete, In re (1839), 7 Dowl. 618). In such cases the party is bound to pay the stranger according to the award, and if the latter dies, to pay his personal representatives, whether the award orders payment to the stranger simply, or to the stranger or his assigns {Anon. (1588), 1 Leon. 316). THE AWARD 459* Stranger not expressly autJiorised to receive. It has been held that directing payment to a third person for the use of a party is good, even though the person to receive the money does not appear to be invested with any express authority by the party for whom the money is to be paid {Snook v. Hellyer (1818), 2 Chitt. 43). Agent of firm. On a dispute between two partners, principally as to whether one of them had brought his proper share into the stock, the arbitrator was considered justified in awarding that the party who was deficient should pay a sum of money into the hands of a person who was agent for the partners, in trust for both partners, and for the benefit of the partner- ship {Dale v. Mottram (1733), 2 Barnard. 291). Payment to one of arbitrators for party's hefiefit. "When on a reference of partnership disputes the award directed that some of the parties to the reference should pay certain amounts found due from them into the hands of one of the arbitrators, to be by him applied in the payment of certain specified debts subject to all equities between the parties, the Court held the direction bad, and the whole award void, although it appeared by the award that the payments would have been for the benefit of the parties ; since the arbitrators who directed the payments had no control over the single arbitrator to compel him to a due application of the money {Mackay, In re (1834), 2 A. & E. 356). But an award ordering a defendant to pay a sum to one of the arbitrators, to be by him immediately paid over to the plaintiff, was held good, {Wood v. Adcock (1852), 7 Ex. 468; 21 L. J. Ex. 204). The case of Mackay, In re {supra), was distinguished on the ground that there the defendant could not have discharged himself by paying the money directly to the plaintiff, which, as Patteson, J., observed, would no doubt have satisfied the award in the present case. Directing stranger to do an act. A direction in an award that a stranger shall do an act is, as a general rule, void (Bac. Ab. Arb. E 4; Miidy v. Osam (1628), Litt. 30). Illustrations. 1. An award that the defendant shall enter into a bond to the plaintiff, with sureties, conditioned for payment of money at a future day, is void as to the sureties {Cooke v. Whorwood (1671), 2 Saund. 337; Kolle, Ab. Arb. F 2 ; Norwich v. Norwich (1576), 3 Leon. 62 ; Thurshy v, Ilelbert {16S8), Carth. 159; 1 Show. 82; Moore v. Bedel (1600), Rolle, Ab. Arb. B 5). 2. An award that the defendant and one of the arbitrators shall 460 REFERENCE BY CONSENT OUT OF COURT enter into a bond to the plaintiff is void as to the arbitrator (Pits v. JFardal (1611), Godb. 164). 3. Directions that a party to the reference and his wife and son (the two latter not being parties) should convey an estate were held void (Barney v. Fairchild (1638), Rolle, Ab. Arb. E 10, N 9). 4. A direction that a party shall deliver up a deed or a house stated to be in the possession of another is void (Lee v. Elkins (1702), 12 Mod. 585; Lane v. Tanner (1714), cited in Dale v, MoUram, 2 Barnard. 291). Assignee of a 2>cctent. Where an arbitrator was authorised to deal with the rights of the parties under existing or any future patents, it was held that he had exceeded his authority by giving directions in such wide terms that they applied to any patents in which the alienee of a licensee under the award might become interested (Nickels v. Hancock (1855), 7 De G. M. & G. 300). Where stranger hotind to obey. But if it appears that a party has any means either at common law or equity to compel the stranger to perform the act which he is directed to do, the award is good (Philli^js v. Knightley (1731), Fitzg. 270 ; Dudley v. Mallery (1576), 3 Leon. 62 ; Lynch v. Clemence (1700), 1 Lutw. 571 ; Eolle, Ab. Arb. F 1). Illustrations. 1. An award that one of the parties shall discharge the other of a bond in which both are bound to a stranger is a good award (Braclsey v. Clyston (1639), Cro. Car. 541; Bac. Ab. Arb. E 4; Anon. (1640), March, 18). 2. An arbitrator may order one of the parties to discharge the other from his undertaking to pay a debt to a third person not a party to the submission ; for when the debt is paid the stranger can be compelled in equity to give a release to the party who had undertaken to pay it (Beckett v. Taylor (1669), 1 Mod. 9; 2 Keb. 546, 554). Act of stranger condition precedent. An award whereby it was made a condition precedent to the delivery up by Unwin of a promissory note of Kirk and one M. K. (who was no party to the reference) that Kirk and M. K. should incapacitate themselves from compelling Unwin to prosecute or pay the costs of an action which he had commenced against Kirk and M. K. on the note was held good, the condition being for the benefit of Unwin (I^irk v. ■Unwin (1851), 6 Ex. 908 ; 20 L. J. Ex. 345). When stranger merely ministerial. It is said that an award that one should surrender his copyhold into the hands of the tenants of a manor who should present it, or that one THE AWARD 461 party should cause a feoffment to be made with a letter of attorney ta J. S. to make livery, was good, on the ground that the tenants in the former and J. S. in the latter case, though strangers to the reference, were to be used only as instruments {Coote v. Pooley (1616), Eolle, Ab. Arb. r 7) ; but where the submission is respecting the right, title, and possession of certain land, the arbitrator has no authority to award that one of the parties shall procure the lord of the manor to grant a copy- hold, or a stranger to make a release or a confirmation {Anon. (1543), r. Moore, 3 pi. 11). Party submitting on hehalf of a stranger. If a person submits to an award on the part and behalf of a stranger, the arbitrator has full authority to direct an act to or by the stranger; not that he can bind the stranger himself by the award, but the party, when submitting on behalf of another, incurs the penalty of disobeying the award, if that other fails to do what the award requires {Shelf v. Baily (1710), 1 Com. Eep. 183 ; Bacon v. Duharry (1697), 1 Ld. Eaym. 246 ; Cayhill v. Fitzgerald (1743), 1 Wils. 28, 58 ; Adams v. Statham (1678), 2 Lev. 235; Browne v. Meverell (1562), Dyer, 216 b). Directions affecting property of stranger. As a submission only refers to the arbitrator questions between the parties, the moment he professes to bind the interests of strangers he exceeds his authority. Where, therefore, an award under a clause empowering the arbitrator to direct what should be done, ordered a party to put up a stile and footbridge on land which belonged to a stranger, the Court set the award aside so far as regarded that pro- vision, but intimated that the award would have been valid if the terms had been conditional upon the consent of the owners and occupiers of the land being obtained {Turner v. Sivainson (1836), 1 M. & W. 572; 5 L. J. (N. S.) Ex. 266. See Doddington v. Baihvard (1839), 7 Dowl. 640 ; 8 L. J. (K S.) C. P. 331). If it can be gathered from the sub- mission that there was an undertaking by the party ordered to do the act on the stranger's land to procure his consent, the award is valid {Nicholls V. Jones (1851), 6 Ex. 373; 20 L. J. Ex. 275). To pay at strangers house. A direction to pay money at the house of a stranger is good ; for the party ordered to pay can come to the house without entering it {Lynsey v. Ashton (1613), Eolle, Ab. Arb. E. 2; 2 Bulst. 38 ; Anon. (1661), 1 Keb. 92; Bac. Ab. Arb. E 4). But if the payment is to be on the land of a stranger, or at a house the owner of which has the adjacent land, so that the party cannot go there to pay witliout com- mitting a trespass, the direction is void {Taverner v. Skingley (1632),. Eolle, Ab. Arb. E 3). 462 REFERENCE BY CONSENT OUT OF COURT Payment out of stranger's funds. Where the arbitrator ordered some bankers, parties to the reference, to pay to the other party, the defendant, out of funds in their hands belonging to a firm of which the defendant was a member, a certain sum, stated to be the amount of a debt due to the defendant from his partners, wlio were not parties to the submission, the direction was held invalid {Ingram v. Milnes (1807), 8 East, 445). Directing repairs of property not belonging to 'party. Ordering a person to repair a river bank not his own property, nor a place to which he has a right to go for the purpose of executing repairs, is an invalid direction {Lewis v. Rossiter (1875), 44 L. J. Ex. 136). Directing tenant to commit v-aste. Under a power to determine what should be done, the arbitrator ■ordered the defendants, who were lessees of a water mill, to make a tumbling bay on the land in their tenancy for the discharge of the water injuring the plaintiff's land. The Court held that if the defendants had been seised in fee of the land, the direction in the award would have been perfectly good, but that the power given to the arbitrator must be •confined to reasonable acts, and that, as the making a tumbling bay on •the land held by them as tenants would render them liable to be sued by their landlord for waste, the award was void as to that direction, but good as to the rest {Alder v. Savill (1814), 5 Taunt. 454). Slioioing in avxird that direction as to stranger is justified. Whenever an arbitrator embodies in his award a direction as to any- thing to be done by a stranger to the submission, or affecting the property of a stranger, which ^j?-i;?u? facie would appear to be exceeding his authority, he is recommended to state on the face of the award sufficient facts to enable the Court to see that he is justified in giving such directions. Where an arbitrator awarded that the defendants had no title to a certain roadway, but that they should have and enjoy another road which ran in a different direction (not saying over whose lands), the Court held the award bad, as it did not appear by the award that the defendants had any legal title to the road granted them, the award not stating that the ground of the road belonged to either of the parties {Harris v. Curnoiv (1789), 2 Chitt. 594). 11. Effect of award generally. Aivard a final judgment on all matters referred. A valid award on a voluntary reference is a final and conclusive judgment, as between the parties, respecting all the matters referred by THE AWARD 463 the submission. It binds the rights of the parties for all time without appeal both as to fact and law {Hodgkinson v. Fernie (1857), 3 C. B. (K S.) 189 ; 27 L. J. C. P. 66 ; Hill v. Ball (1828), 2 Bli. (N. S.) 1 ; 1 Dow (K S.) 164 ; BcNcwey, ExjiarU Whiteman (1913), 107 L. J. 832 ; Keighley, Maxsted & Co., In re, [1893] 1 Q. B., at p. 409, 'per Lord Esher, M.R. ; Caledonian Rail. Co. v. Turcan, [1898] A. C. 256 ; 67 L. J. P. C. 69), unless it is provided expressly that it shall have a temporary effect only (see e.g., the Kailway Companies Arbitration Act, 1859 (22 & 23 Vict. c. 59), s. 21). Where a reference to arbitration had been directed by a judge of the Chancery Division, and afterwards the award had been made an order of Court, against which there had been no appeal, it was held by the Court of Appeal that the award could not be disputed, even although it was bad on the face of it {Jones v. Jones (1880), 14 Ch. D. 593). The Court has no power to alter or amend an award {Hall v. Alderson (1825), 2 Bing. 476; Moore v. Btdlin (1837), 7 A. & E. 595: 7 L. J. (N. S.) Q. B. 20) ; it can only set it aside or remit it to the arbitrator. Proceeding in rem. Where a claim made by a diver for injuries received from the defendant's steamer was referred to arbitration, with a clause in the agreement of reference that in case the award should not be performed by the defendants all the plaintiff's rights should be reserved, upon the failure of the defendants to pay the sum awarded it was held that the plaintiff was entitled to proceed in rem in the Court of Admiralty {The Sylph (1867), L. E. 2 A. & E. 24; 37 L. J. Ad. 14). It seems that the decision would have been the same had there been no reservation of the plaintiff's rights. Effect on a jitdgnient. If a judgment is referred with other matters, and an award is made, the judgment is not extinguished and null, so as to make seizing under it a trespass ; but an action may be brought for breach of the agreement to abide by the award or for maliciously seizing {Barry v. Grogan (1868), 16 ^N. li. 727). No estoppel as regards matters not referred. Where a question as to the validity and infringement of a patent was referred to arbitration, and the arbitrator found that the patent was not illegal and void, it was held that in an action between the same parties for another infringement the defendant was not estopped from again disputing the validity of the patent {Nevmll v. Elliott (1863), 1 H. & C. 797 ; 32 L. J. Ex. 120). The ground of this decision was that the action was not in respect of the same matter upon which the arbitrator had made his award, and it was only by inference that the 464 REFERENCE BY CONSENT OUT OF COURT award could be made a decision upon the points in dispute in the action, whereas an estoppel must be certain and not matter of inference. Conclusire on construction of contract. Where the construction of a contract has been referred to an arbi- trator, his award thereon is conclusive evidence as to its construction in a subsequent action between the same parties for other breaches of the contract {Gueret v. Auclouy (1893), 62 L. J. Q. B. 633. See Gray and Boustead, In re (1892), 8 T. L. E. 703). Damages axvardecl not a specialty debt. On a reference of an action for rent, and of a cross suit to have the acfreement for a lease set aside, the arbitrator awarded that the agree- ment was valid, but that it should be cancelled, and that the lessee should pay the lessor a certain sum. It was held that the sum awarded was by way of damages and not rent, and could not be set up as a specialty debt {Tallot v. Earl of Shreivshury (1873), L. E. 16 Eq. 26; 42 L. J. Ch. 877). Au'Cird under Public Health Act, 1875. An award in an arbitration under the Public Health Act, 1875, between one of several frontagers, called upon to pay his proportion of the expense of paviug a street, and an urban authority, by which the arbitrator alters not merely the assessment on the particular frontager, but the assessment in regard to all the frontagers, is not binding upon any frontager not a party to the arbitration, so as to entitle the urban authority to recover from him the sum which would be due from him on the footing of the altered assessment {Tunbridge Wells Local Board V. Ackroyd (1880), 5 Ex. D. 199 ; 49 L. J. Ex. 403). Effect on matters in difference not brought forward. When a cause and all matters in difference were referred ta arbitration no fresh action could be brought in respect of any matter within the terms of the order of reference, nor could advantage be taken of the fact that such matter was not brought before the arbitrator {Dunn v. Miirray (1829), 9 B. & C. 780; 7 L. J. (0. S.) K. B. 390 ; Dicas v. Jay (1830), 6 Bing. 519 ; 8 L. J. (0. S.) C. P. 210; Collins V. Powell (1788), 2 T. E. 756 ; Clegg v. Dearden (1848), 12 Q. B. 576; 17 L. J. Q. B. 233; Smith v. Johnson (1812), 15 East, 213). Illustration. In an action of ejectment the cause and all matters in difference were referred to arbitration, and the arbitrator awarded the compensa- tion to be paid for the purchase of lands which had been wrongfully THE AWARD 465 taken by a railway company. The plaintiff subsequently brought an action for mesne profits. Held that the subject-matter of the second action was within the terms of the order of reference. Judgment was given for the defendant {Smalley v. Blackburn Hail. Co. (1857), 2 H. & N. 158; 27 L. J. Ex. 65). Accidental omission or refusal to consider matter. It has been said by an equity judge in Ireland that though an award made on a reference in an action of all matters in difference is a bar to any action respecting a claim intentionally kept back on the reference, yet it is not so if there have been a purely accidental omission, or a positive refusal by the arbitrators to consider the claim as not being within the reference; though if they treat it as within the reference, and decide, though wrongly, against its validity, no action respecting it can be maintained, and no relief can be had in equity {Brojphy v. Holmes (1828), 2 Molloy, 1). Party made to account in equity for item omitted. On a submission of all matters in difference to arbitration, for the purpose of winding up the affairs of a partnership and dividing the capital, an item in the account of good debts owing to the partnership was accidentally omitted, and the award was made on the basis of that incorrect account, directing one of the partners to receive the good debts. It was held that the appointed partner was liable, in equity, to account for what he had received of the good debts beyond the amount estimated in the award {Spencer v. Spencer (1828), 2 Y. & J. 249), Matters not in difference at time of reference. An award on a submission of all matters in difference is no bar to the recovery of a demand which, though it existed as a claim at the time of the reference, was not then a matter in difference and had not been referred to the arbitrator {Ravee v. Farmer (1791), 4 T. E. 146; GoligUly v. Jellicoe (1769), 4 T. K. 147, n. ; Upton v. Upton (1832), 1 Dowl. 400). No waiver of extrinsic objections. Nothing but the questions actually referred are concluded by an award. Thus, a reference of the quantum of a demand does not waive any objection on the ground of illegality in an action for the sum awarded, and if the illegality is proved the award cannot be enforced (Steers v. Lashlcy (1794), 6 T. K. 61). Nor, where a verdict is found for the plaintiff, subject to a point of law, and leave is reserved ta the defendant -to move to enter a nonsuit, does an agreement to refer to arbitration the amount of tlie damages, and an award made, waive the legal objection unless the defendant expressly consents to abandon it {Oxenham v. Lemon (1823), 2 D. & E. 461). 30 466 REFERENCE BY CONSENT OUT OF COURT * Cannot operate as a transfer of pr&peHy, An arbitrator cannot by his award transfer an interest in lands from one to another, whether the submission is by deed or not (Eolle, Ab. Arb. A 3 ; Marks v. Harriot (1697), 1 Ld. Raym. 114; Henry v. Kirivan (1859), 9 Ir, C. L. Eep. 459); nor can he effect a partition of land between tenants in common by his award, for the land will not pass by it, but he must direct the parties to execute conveyances to each other of the allotted portions {Johnson v. Wilson (1741), Willes, 248). Where an action as to the terms on which a party was holding certain land was referred to arbitration, and the award found that the holding was as tenant, the Court held that the award had not the effect of transferring the property in the land or in the growing crops which would pass with the land {Thorpe v. Eyre (1834), 1 A. & E. 926). Nor can an award by itself transfer the property in personalty {Hunter v. Mice (1812), 15 East, 100). May decide title as between parties. It is said, in an old case, that if there is a dispute between two respecting the title to a lease for years of land, and they submit the matter to arbitration, and the arbitrator awards that one party shall have the land, this is a good gift of the interest in the term ; but if the award is that one shall permit the other to enjoy the term, this is no good gift of the interest in it {TriLsloe v. Yeivre (1591), Cro. Eliz. 223). This case, however, seems in effect only to show that the award is con- clusive as between the parties on a question of disputed title, not that it operates to transfer the right from one to the other. Although an award cannot have the operation of conveying the land, yet the parties may consent that the award of an arbitrator shall be conclusive as to the right to land which is in controversy between them {Doe d. Morris v. Eosser (1802), 3 East, 15). Award hy statute may operate as a conveyance. An award made under an Act of Parliament often has the effect of transferring property of its own force without any subsequent act of the parties. Thus, under the old general luclosure Act (41 Geo. III. c. 109), the legal title to an allotment of land was acquired by the award of the commissioners, when duly executed and proclaimed, without any convey- ance. It is to be observed that by that Act the title did not vest by the mere allotment of the land to the party. It was the subsequent award that conveyed the title. Even where a local Act gave the parties power to inclose or fence in their allotments, and to sell and convey their interests in them before the execution of the award, it was held that the legal freehold did not pass to the allottee before the execution of the award {Farrer v. Billing (1818), 2 B. & A. 171). THE AWARD 467 The effect of s. 105 of the Inclosure Act, 1845 (8 & 9 Vict. c. 118), is, that an award under the Act is not conclusive as to the title of the allottee when it has been made on the application of persons not interested in the lands allotted (see 11 & 12 Vict. c. 99, ss. 13 and 14), and such lands were included in the schedule to their application by mere mistake (Jacomb v. Turner, [1892] 1 Q. B. 47). Extinguishing right to tithes. The right to tithes may be extinguished by an award under a statute directing commissioners to set out, allot, and award portions of the waste in lieu of tithes ; but the property in such portions does not, under this provision, pass by the mere allotment before the aw^ard is made {Ellis v. Arnison (1821), 5 B. & A. 47). When title to compensation money complete. It may be noticed that the legal title to the purchase-money or ■compensation-money to be ascertained by the award of a commissioner under an Inclosure Act is not complete until the award is made. Therefore, if a person entitled to such money assigns away his interest before the award is made, he is not a necessary party to a bill filed by the assignee for the recovery of the money {Cator v. The Croydon Canal ■Co. (1841), 4 Y. & C. 405 ; 19 L. J. Ch. 89). When title to land passes hy allotment. In some instances, however, the Legislature by the use of appropriate words gives the seisin and legal estate upon the allotment only, and before the execution of the award (JDoe d. Harris v. Saunder (1836)> 5 A. & E. 664 ; Doe d. Duhe of Beaufort v. Neeld (1841), 3 M. & G. 271 ; Kingsley v. Young (1811), 17 Ves. 468 ; 18 Ves. 207). Aivard as a parliamentary declaration. Under a statute which directed that the herbage of certain closes should be and remain to the use and benefit of such persons as the commissioners should appoint, an award assigning the herbage to the surveyors of the highways for a certain township and their successors for the time being was held good, as amounting to a parliamentary declaration of the parties who were to hold it; although the award would have been bad as a common law conveyance, since surveyors of the highways are not a corporate body. The lord of the manor in whom the fee of the soil was vested was held to be a trustee for the surveyors for the time being as to the herbage {Johnson v. Hodgson (1806), 8 East, 38). 468 REFERENCE BY CONSENT OUT OF COURT Persons claiming through or imder parties hound. The finding of an arbitrator is binding not only on the parties to the reference but also on every one who would by claiming through or under them be privy to it (see Martin v. Boulanger (1883), 8 App. Cas. 296 ; 52 L. J. P. C. 31). Assigning contingent right heforc aicard made. If a party, pending a reference, assigns his contingent right under the award, and after an award in his favour receives the sum awarded from his opponent, an action for money had and received will lie against him at the suit of the person to whom he has assigned his claim ; and if the party who has assigned his interest pays the arbitrator's charges- on taking up the award, and receives from the party against whom the award has been made not only the sum awarded but also that amount of the costs of the award for which the latter is made liable, the amount of the costs so paid over, as well as the sum awarded, may be recovered by the assignee in the same action (Smith v. Jones (1842), 1 Dowl, (K S.) 526). 12. Performance of award. What is a sufficient performance. Awards are construed liberally and in accordance with the dictates of common sense, and as far as possible in accordance with the real intention of the arbitrator. It is not often, therefore, that cases arise in which it is really doubtful whether an award has or has not been performed. Performance of the substance of an award will always suffice. Illustrations. 1. The lessees of land and of coal mines found or to be found under it covenanted to proceed to sink for coal in a workman-like manner and erect engines, &c., by 24th June 1806, or pay such damages as an arbitrator fixed. The arbitrator in his award gave £150 damages for non-performance of the covenant up to the date named, and £200 a year rent thereafter so long as the breach continued. The £150 was paid, and to an action for the yearlj'- rent, the lessees pleaded that since the award they had sunk pits and found no coal. Held that the answer was sufficient {Hanson v. Boofhman (1810), 13 East, 22). 2. The defendant was the owner of certain hatches or weirs on a river, and had a share or shares in others on another river. An award directed him to prostrate the former, and also the latter, the award to extend so far as any right or interest which the defendant possessed. Tindal, C. J., said : " If it should appear that the defendant is not able to remove his share of the weir without being liable to an action for trespass, that will be a sufficient answer to that part of the award. But if several matters are directed by the arbitrator to be performed, it is THE AWARD 469 no answer that one of them might subject the defendant to an action, ■or is out of his power to perform, if he has done nothing to show his willingness to obey the award " (Doddington v. Bailward (1839), 7 Dowl. 640). 3. The commissioners under an Inclosure Act in their award directed a certain drain to be made, and ordered the occupiers of lands through which it passed " to cleanse and keep the same of sufficient depth and width to carry off the water intended to run down the same." Many years later the occupier of one close cut a sough through his land open- ing into the awarded drain. Held that he had no right of action against an occupier lower down the drain for not keeping it of sufficient depth and width to carry off the increase of water brought into it by the new sough {Sharpe v. Hancock (1844), 7 M. & G. 354). Time for performance. Where no time for performance is expressly specified in the award, performance within a reasonable time is required. " As to the perform- ance of the award, if there be no time limited, it is to be performed in a convenient time " (Bac. Abr. tit. " Arbitrament and Award " (F), 7th ed., Vol I. p. 302, citing Y. B., 20 Edw. IV. fo. 8, De T.'s case). Holt, C.J., seemed to think the award good, though no time was appointed for performance ; for the law supplies the time. If there must be a request, the law says it must be in convenient time after request ; if there needs no request, but there must be a tender, that must be like- wise in convenient time (Freeman v. Bernard (1698), 1 Salk. 69). Performance at different times or places. Although an award cannot be made partly at one time and partly at another, it may be so performed. For the nature of the award may be such that part of it is to be performed at one time and part at another, and part in one place and part in another (Bac. Abr. tit. " Arbitrament and Award " (F), 7th ed., Vol. I. p. 302). Obligation to take notice of avMrd. Each party must perform and comply with the provisions of an award as far as regards himself ; and as the making of an award is as much within the knowledge of one party as another, no notice of its being made is necessary to impose the duty of obedience. Illustrations. 1. There being some difference between the plaintiff and the defen- dant touching the quantity of rent to be paid by the defendant, the defendant said he would pay if J. S. affirmed the rent to be ,£6. J. S. did so, and defendant moved in arrest of judgment on the ground that be had no notice of what J. S. had settled. Coke, C. J., said : " If a 470 REFERENCE BY CONSENT OUT OF COURT man be bound to perform the order of J. S., no notice is to be given of this, but he at his peril, being bound, is to take notice of this because he hath undertaken upon himself to perform it" {Child v. Horden (1&13), 2 Bulst. 143. See also Gable v. Mossee (1610), 1 Bulst. 44). 2. The plaintiff had erected locks on the river Ouse under the King's licence, who also granted him the right to charge such tolls for passage through the locks as should be agreed upon between him and the users. Disputes as to the amounts having arisen, the matter was referred to an arbitrator to settle the rates payable. The plaintiff brought an action for tolls due at the rate settled by the award. The defendant set up that he had no notice of the award, although he had agreed to be bound by it. Held that the defendant was to take notice of the award as well as the plaintiff, "as where one is obliged to perform an arbitra- ment there needs not any notice to be given unto him, but he ought to take notice at his peril" (Juxon v. Thornhill (1628), Cro. Car. 132). Stakeholder not bound to take notice of award. A stakeholder, not being a party to the reference, is not bound ta obey an award until express notice of it has been given to him. Illustration. P. G. having discovered a new process in dyeing, the plaintiff's deposited £25 with the defendant, to be paid to P. G. if he should dye some silk for them to the approval of B. as referee. P. G. failed in his experiment, but no notice was given to the defendant of B.'s decision. Held that the defendant was bound to retain the money till B.'s judg- ment was communicated, and that no right of action for the return of the money accrued before that time {Wilkinson v. Godefroy (1839), 9 Ad. & El. 536). Performance must he honest. Performance of an award must be honestly and genuinely carried out, and where there is any attempt to set up performance of a collusive or illusory nature, the Court will sweep it aside and look into the real facts of the matter. Illustration. An annuity was devised to the wife of the defendant, not saying for her separate use. Plaintiff disputed her title to receive it, and all matters referring to the annuity were referred to D., who awarded the arrears to be paid to the wife. The plaintiff paid them to the husband (defendant). Held that as there was evidence of collusion between the plaintiff and defendant, a writ of attachment must go against the plaintiff for non-payment as directed {Wynne v. Wynne {\Si2), 4 M. & G. 253). Performance partly illegal or imposiiUe. The fact that performance of an award is partly illegal or partly impossible does not excuse performance, except as to the illegal or THE AWARD 471 impossible matters. The rest of the award must be performed, and this answer of illegality or impossibility can only be raised as to the points to which it is applicable {Dodclington v. Bailward, supra, p. 469 ;. Hanson v. Boothman (1810), 13 East, 22). Award directing payment of money. Where an award directs the payment of money at a particular time and place, it is the duty of the party ordered to make the payment to come at the time and place mentioned and tender the money, even if the other party is not there to receive it. In an action upon a bond conditioned to perform an award, which directed the payment of money at a particular time and place, the defendant took an exception to the award, that the plaintiff did not aver that he was ready at the place to receive the money ; but Holt, C.J., said : " There is no need, because the defendant ought to do the first act, and therefore if he does not come and tender the money, though the plaintiff be not there to receive it, the bond will be forfeited " {Boyhy v. Burton (1700), 1 Ld. Eaym. 533). And it is the duty of a party who is ordered to pay money without demand to seek out the party who is entitled to receive it in order to pay him. Illustrations. 1. A controversy about the lease of a house was the subject of arbitration, and an award was made fixing the rent and the duration of the tenancy. In an action on a bond conditioned for the perform- ance of the award for rent unpaid, the defendant pleaded a tender on the premises, and that none was there to receive it. Held that it was a sum in gross and payable by the defendant at his peril, who ought to seek out the obligee to pay it {Purser and Bond v. Prowd (1618), Cro. Jac. 423). 2. Arbitrators made an award that the defendant should pay £30 to AVilliam Dawney or his assigns within two months. William Dawney died within the two months, and his executrix brought an action for the £30. Held that though the money was awarded to be paid to William Dawney, and there was no mention of his executors, yet the money was to be paid to the executors, for an award creates a duty (Dawney v. Veseij (1690), 2 Vent. 249). Breach of award. What constitutes a breach of an award is, of course, a matter of interpretation and construction in each particular case. The following cases will show how certain awards have been interpreted, but no general rule can be deduced from them. Illustrations. 1. An action was brought on a bond for £500, conditioned to stand to an arbitrament. The arbitrators awarded that the defendant should 472 REFERENCE BY CONSENT OUT OF COURT enjoy a house, of which the plaintiff was lessee for years, during the term, at a yearly rent of twenty shillings ; and for non-payment of this sum an action was brought and a verdict was given against the defen- dant. It was contended in arrest of judgment that this was a con- dition annexed to the award, and by non-payment of the rent the defendant's estate should cease ; and not such a part of the award that for non-payment debt should lie on the obligation. The Court held otherwise {Parsons v. Parsons (1591), Cro. Eliz. 211). 2. "The arbitrament being that he staret acquietatus, that is no more but that by that arbitrament he shall be acquitted, which is sufficient ; for where arbitrators make an award that the one should be quit against the other, that is a good bar in an action brought by any of them" (jyer Coke, C.J., in Freeman v. Sheen (1614), Cro. Jac. 339, where the defendant dropped a bill in Chancery in accordance with the award and started a fresh one for the same matter). 3. An award being that a party should not prosecute in an action in the same term, it was held that the entry of continuance from term to term was not a breach. If one is obliged that he shall not continue a suit, continuing it by attorney is a breach of the obligation ; but if the attorney enters the continuance without his privity, it is no breach (Gray v. Gray (1618), Cro. Jac. 525). 4. An award was made that, mter alia, "all suits between A. and B. should cease." Parker, C.J., said : " It is evident that neither the parties nor the arbitrators designed that this should extend to suits depending between A. and B. and others. But be the intention of the parties what it will, the law is plain that the prosecution of a suit between A. and B. and others is no breach of such an award" {Barnardiston V. Fowler (1714), 10 Mod. Rep. 204). Aivard directing execution of deal. No request necessary. If the award directs the execution of a deed no request by the party to be benefited is necessary (Eosse v. Hodges (1698), 1 Ld. Eaym. 233). JlHio is to 'prejpare and tender conveyance. Where by an award the execution of a conveyance of property is directed, the question arises, in the absence of any express direction in the award on the subject, as to which party is to prepare and bear the expense of the necessary instruments, and as to which party is to tender them for execution. It was laid down in an old case that if a party is ordered to execute a conveyance, the duty of procuring the conveyance to be made rests upon that party. Fllustration. In their award, dated 17th August 1733, arbitrators directed F. to pay to C. eight shillings and the costs of his suit, to be taxed by the THE AWARD 473 Prothonotary of the Court of Common Pleas, on 1st September next. F. duly tendered the eight shillings on that day, but the costs had not been taxed, nor were they taxed till December 1736. In an action to recover such costs, Willes, C.J., in giving judgment, said: "We are of opinion that it was incumbent on the defendant (F.) to procure them to be taxed by the Prothonotary. As in case a man be awarded to convey an estate to another person by such a time, he is to procure the con- veyances to be made" {Candler v. Fuller (1738), Willes, 62), Tender for execution hy agent. Where an award directs a party to execute a deed he is bound to do so if the instrument is presented to him for execution by a duly authorised agent of the other party. The agent need not be authorised by power of attorney. Illustration. An arbitrator awarded the execution of a deed, and the defendant refused to execute the deed on the ground that it was not presented to him for execution by a person having competent authority, not being authorised by deed. Held that it was not necessary that such person should be empowered by deed or power of attorney, though it might be necessary where the demand was for money directed to be paid {Kenyan v. Grayson (1804), 2 Smith (K. B.), 61). Award directing execution of release. Where a party is directed by an award to execute a release upon a payment of money, he cannot relieve himself of the obligation to execute the release by refusing to accept the money ; he must execute the release upon the money being duly tendered to him. Illustration. An award directed that the defendant should pay the plaintiff £10, and that thereupon the plaintiff should give the defendant a general release. The £10 was tendered, but refused, and no release was given. It was held that the plaintiff was as much obliged to release upon the tender and refusal as if he had actually received the money {Squire v. Grevett (1703), 2 Ld. Raym. 961, sub nam. Simon v. Gavil, 1 Salk. 74, following Linnen v. Williamson (1646), 1 Roll. Abr. 254, 255 (Arb. K 16)). If a release which is directed to be executed is executed and tendered to the other party, that is a sufficient performance, even though the tender be made by a stranger, provided that the terms of the award do not specifically direct to the contrary. Illustration. B. and C, arbitrators, made an award that before a certain date the defendant should make a release to the plaintiff, but assigned no place 474 REFERENCE BY CONSENT OUT OF COURT where the release should be delivered. The defendant made and sealed the release in due time, and delivered it to P. for the use of the plaintiflf. P. delivered it to M., a servant of the plaintiff, and two or three days afterwards M. offered it to the plaintiff, who refused it. Held that the award on this matter was well performed, notwithstanding the refusal of the plaintiff (Alford v. Lea (1587), 2 Leon. 110. See also Freeman v. Drew (1588), 2 Leon. 181). Award directing execution of indemnity. Where an award directs that a bond or covenant of indemnity shall be executed, and this is accordingly done, that is a sufficient perform- ance of the award, which is thereby satisfied and completed. If the bond or covenant of indemnity is subsequently broken, proceedings must be taken for breach of such bond or covenant, and not for breach of the award or arbitration bond (Fhillijjs v. Knightly (1728-31), 1 Barn. (K. B.) 84, 387, 457, 463). Award in excess of poivers. If an arbitrator has exceeded his powers by his award, a perform- ance of such of his directions as are intra vires will constitute a due performance of the award. Thus, if a man submits a particular con- troversy to arbitration, and the arbitrators award general releases, which are executed, these release no more than the particular con- troversy ; but if the arbitrators award releases ah initio until the time of the award, and the party releases until the time of the submission, this is a good performance of the award (Stevens v. Matthews (1696),. 1 Ld. Eaym. 116. See also 3IarJ^s v. Harriot (1697), iUd. 114). Death of 'party. If a party dies before the award has been performed, the award being for his benefit, the other party must perform the obligation although the representatives of the deceased are not named in the award, and such representatives must perform the award in so far as the duties under it lay upon the deceased person — at any rate in so far as these duties were not purely personal, and therefore incapable of performance by the representatives {Daivney v. Vesey, supra, p. 471). 13. Award as a bar to an action. If an action is brought to enforce a right which has already been the subject of a valid award between the parties, the award is a good ground of defence in the action. Illustration. In an action for trespass the defendant pleaded an award already made. It was sought to upset the award, but the Court held it a good THE AWARD 475- award, and therefore a bar to the action (Thomlinson v. Arriskin (1719),. 1 Com. 328). In all actions where damages only are recoverable, an award may- be pleaded in bar (Blake's case (1606), 6 Co. Eep. 43 b; 1 EoU. Ab. 268, Arb. B, citing Y. B. 7 Hen. IV. 31 b; Com. Dig. Accord. D 1). When performance must also he pleaded. If an award merely adjudges that a duty lies upon a party to perform some act, then a mere plea that an award has been made is not of itself a defence to an action for non-performance of the duty, but performance of the award must also be averred. Illustrations. 1. A. brought an action for £150 for turnpike tolls, and M. pleaded in bar an award by arbitration of £13, but did not show any perform- ance of the award. Held that the award, without performance of it, was no bar to the action for the original debt (Allen v. Milner (1831)^ 2 C. & J. 47). Per Lord Lyndhurst, C.B. : "The award only ascertains that there is a debt, specifies the amount, and directs the payment, but the money until paid is due in respect of the original debt, i.e. for tolls ; its character remains the same ; nothing is done to vary its nature or destroy its original quality" (ihid., at p. 51. See also Freeman v. Bernard, infra, p. 476). 2. On the dissolution of a'partnership a deed contained a covenant ta pay the retiring partner a certain sum by instalments, such instalments being subject to deductions to be settled, in case of disagreement, by an arbitrator. There was a reference to the arbitrator, who allowed deduc- tions which equalled the amount due by instalment. Held that the award when pleaded was a good plea in bar in an action to recover the original amount (Parkes v. Smiih (1850), 15 Q. B. 297). 3. In an action against an insurance company on a fire policy, the defence contained two allegations: first, an award of £150; secondly^ an excuse for its non-performance, which was non-ascertainment of the costs awarded. The submission was by parol and could not be made a rule of Court, and there was no mode of ascertaining the costs. Held that the award was bad for uncertainty, and if it had not been, perform- ance would have been necessary to constitute an answer to the action (Roulstone v. Alliance Insurance Co. (1879), 4 L. R. Ir. 547). But where an award decides that nothing shall be done by a party in lieu of the right claimed, then the right is at an end, and the award substituted for it. In such a case the award is a complete defence in itself, without the added plea of performance, to any action based on the original right. 476 REFERENCE BY CONSENT OUT OF COURT Illustrations. 1. The defendant pleaded accord, though not executed. Held that, if arbitrament be pleaded with mutual promises to perform it, though the party has not performed his part who brings the action, yet he shall maintain his action ; because an arbitrament is like a judgment, and the party may have his remedy upon it, but upon accord no remedy lies {Allen V. Harris (1696), 1 Ld. Raym. 122). 2. Where the defendant pleaded a submission to arbitration and an award, the Court held that an award may be a good plea in bar, though it be not performed, wherever the award does give a new duty in lieu of the former ; for a submission implies a promise to perform, so that the party has a remedy for that which is awarded. But where the intent of the award is not to discharge the old duty itself, and give a new one, but barely to cause a discharge of the old duty, not by the award itself, but by a release, the award is no plea in bar of the old duty (Freeman v. Bernard (1697), 1 Salk. 69): 3. The defendant pleaded an award. Lord Hardwicke, L.C., said : " A plea of an award is not only good to the merits of the case, but to the discovery ; for a defendant to the bill is not obliged to set out the whole account between him and the plaintiff, after an award in his favour, in relation to that very account, for that is conclusive to all the parties, till an error is shown in taking the account, or partiality and improper behaviour in the arbitrators" {Tittenson v. Peat (1747), 2> Atk. 529). 4. The defendants to an action on a lease pleaded an award under a submission to arbitration by deed, which contained mutual covenants to stand to and perform the award, but did not aver performance of the award. Held that an award without performance was a good bar to an action on the case if the parties had mutual remedies against each other to compel the execution of the matters awarded ; but otherwise if they had no such mutual remedies (Gascoyne v. Edwards (1826), 1 Y. & J. 19). 5. To a claim for £400 for work done and materials provided, the defendant pleaded, except as to £145, parcel of the money claimed, that all disputes up to the commencement of the suit had been sub- mitted to an arbitrator, who had awarded the sum of £145 as due from the defendant to the plaintiff. Held that, as the plea did not profess to answer the entire claim, but was pleaded only to the excess over the sum found due by the award, it was a good plea {Commings v. Heard (1869), L. R. 4 Q. B. 669 ; 39 L. J. Q. B. 9). In short, the question is whether the award has replaced the original rights of the parties, in which case the award is of itself a good defence to an action based on those rights, or whether the award has merely ascertained and defined those rights, in which case not only the award but also its performance must be established to complete the defence. An award which does not extend to the whole of the demand is not a good plea to an action on the demand {Clapcott v. Davy (1701), 1 Ld. Eaym. 611 ; Farrcr v. Bates (1647), Al. 4; Bac. Ab. Arb. G). THE AWARD 477 Where stranger may plead aioard. It would appear that an award might afford a good ground of defence even to a stranger where the action was for a tort, and a joint tort feasor had been a party to the award (Com. Dig. Accord. D 1 ; 1 Eoll. Abr. 268, Arb. B 1. See also Thomlinson v. Arrisldn (1719), Com. 328). 14. Effect of award as evidence. Valid award conclusive evidence as hehveen the 2)ccrties. A valid award is conclusive evidence of the facts found by it, as. between the parties, and so long as it is unimpeached it is not permis- sible to give evidence to contradict it. Illustratiovs. 1. In an action for damages for breach of covenant to repair premises it was shown that the parties had agreed to arbitration, and that an award had been made of £55, 5s. At the trial Lord Denman, C.J., held that in default of evidence to impeach this award the jury must take the damages as found by the award, and the Court of Queen's Bench upheld this ruling {Whitehead v. Tattersall (1834), 1 Ad. & El. 491. See also Leicester Waterworks Co. v. Cropstone Over- seers (1875), 44 L. J. M. C. 92; Hill v. Ball (1828), 2 Bli. (N. S.) 1). 2. The plaintiff's horse was killed by falling down an old mine shaft, insufficiently fenced. He charged the defendant with being the owner of the shaft, and they agreed to refer the question of ownership to a miners' jury. The jury found in writing that the shaft was the defendant's. Held that this finding was admissible in evidence in an action to recover compensation for the loss of the horse {Syhray v. JFJiite (1836), 1 M. & W. 435). Aivard as evidence of account stated. Arbitrators, as a general rule, are not the agents of the parties to state an account, but only judges to decide disputes, and therefore an award is not, as a rule, any evidence of an account stated, unless and until it has been adopted and acted upon by the parties. Illustrations. 1. Matters in dispute having been referred, without any arbitration bond, to arbitrators, there was no way of enforcing their award when it was made. The award was that a certain sum was due to the plaintiff. In an action for the amount so awarded the plaintiff tendered the award in evidence. Eyre, C.J., said that he should take the transaction respecting the reference as a statement of accounts between the parties, and an admission of the balance due {Keen v. Batshwe (1794), 1 P]sp. 194). 478 REFERENCE BY CONSENT OUT OF COURT 2. An arbitrators' award directed that a sum of money should be paid by the defendant to the plaintiff, and that each party should pay half the costs of the reference. The plaintiff took up the award, paying the full costs to the arbitrators. Held that he could not recover the half from the defendant as money paid for his use, nor as on an account stated, the arbitrators not being the agents of the parties, but judges (Bates v. Tovmley (1848), 2 Exch. 152). 3. The defendant agreed verbally to take a house and purchase the • fixtures and some furniture from the plaintiff at a valuation to be made by two brokers. The valuation was made at a lump sum, and the defendant paid a sum on account. In an action for the balance it was held that the plaintiff could recover as on an account stated, the defen- dant having taken possession of the house and fixtures, &c., and adopted the valuation by paying a part on account (Sahncni v. Watson (1819), 4 Moore, C. P. 7.3). Award as evidence of title to land. A valid award is conclusive evidence between the parties as to the title to land. Illustration. The defendant, having an ejectment brought against him in 1799, agreed to refer the matter to arbitration, and the award went against him ; but, being dissatisfied, he applied to the Court to set the award aside and was unsuccessful. As he still retained possession of the premises, another ejectment was brought in 1802, at the trial of which he offered to go into evidence of his title. The judge rejected it, con- sidering him precluded by the award from disputing the lessors' title in this action, and this was confirmed by the King's Bench {Doe d. Morris V. llosser (1802), 3 East, 15). Award as evidence of assets held hy executors. An award is not evidence of assets iu the hands of an executor or administrator if it merely ascertains an amount due from the testator's or intestate's estate to the plaintiff, and does not order the executor or administrator to pay the amount. Illustration. In an action for goods sold and delivered to the defendant's intestate the defendant pleaded ])lenc adminisiravit. At the trial the plaintiffs, in order to prove assets in the defendant's hands, gave in evidence an award against him, as administrator, whereby £2014 was awarded to be due from the intestate's estate, without directing the defendant to pay it, and offered to prove that the defendant had undertaken to pay whatever might be found owing from the intestate. The evidence was rejected and the plaintiffs were non-suited. The Court of King's Bench upheld the non-suit, Grose, J., saying : " It would be very unreasonable THE AWARD 479 to imply an admission of assets from the mere circumstance of the administrator's submitting to arbitration, so as to affect his own personal estate" {Pearson v. Henry (1792), 5 T. K. 6), See also ante, p. 30. Atoard not evidence in criminal i^roceedings. An award is not admissible as evidence of the facts found by it on a. trial for a criminal offence. Illustration. F., in an action of F. v. E., made an affidavit that E. owed him £50. The cause was referred, and the arbitrator awarded that E. owed nothing to F. F. was prosecuted for perjury, and the award was offered and accepted as evidence of perjury in the affidavit. In granting a new trial Lord Denman, C.J., said: "The decision of the arbitrator in respect of that fact [that E. did not owe F. anything] is no more than a declaration of his opinion, and there is no instance of such a declaration of opinion being received as evidence of a fact against the party to be affected by the proof of it in any criminal case " {R. v. Fontaine Moi-eau (1848), 4 Q. B. 1028, at p. 1035). Aioard not evidence against strangers. An award is only effective as regards the parties to it and persons claiming under them, and is not admissible in evidence against a stranger. Illustrations. 1. At the trial of an issue respecting the boundary of a parish there was tendered as evidence an award made by an arbitrator, of recent date but between other parties, setting out the boundary. In holding the evidence inadmissible Lord Denman, C.J., said: "The authority of an arbitrator is entirely derived from the consent of the parties to the reference ; his award has no force except by reason of that consent, and no instance can be proved in which strangers have been held to be in any way affected in their rights by an award, either as evidence of right or of reputation " {Evans v. Fees (1839), 10 Ad. & El. 151, at p. 155). 2. In an action for damages to her reversionary interest in a several fishery, the plaintiff put in as evidence of her right an award, of nominal damages by an arbitrator to whom had been referred the amount of damages in an action by the plaintiff's tenant, F., against the defendant's landlord, (x., in which practically the same issue was decided. The Court of Queen's Bench decided that the evidence was improperly admitted "for the reasons and upon the ground stated in Evans v. Fees, which is a direct authority against the admissibility of an award as evidence of reputation, though the verdict of a jury might be " {fVenman {Lady) v. Mackenzie (1855), 5 E. &. B. 447 ; 25 L. J. Q. B. 44). 3. An action between W. T., owner of the land, and E. T., holding the land by W. T.'s permission, was referred to an arbitrator, who awarded that the holding was as tenant, and that the tenancy should 480 BEFERENCE BY CONSENT OUT OF COURT cease, and the land be delivered up to W. T. E., an execution creditor of E. T. for work done as attorney in the former action, seized the crops on the land. In an interpleader action between W. T. and E., the award of the arbitrator in the action between W. T. and E. T. was held to be admissible in evidence {Thorpe v. Eyre (1834), 1 Ad. & El. 926). 4. The lessor of the plaintiff relied on the title of S. as mortgagee of P. The defendant claimed under a will and offered to prove in evidence that some years earlier he had brought ejectment against P., and that the cause was referred to arbitration, and the award was in his favour. The evidence was refused at the trial, and, in refusing a rule for a new trial, Lord Denman, C. J., said : " The facts offered in proof are no evidence against S. At the time of the arbitration he knew that such an enquiry was going on, but he was not bound to interfere in it" ; and Parke, J., said: "The arbitration was res inter alios. The whole may be considered as passing behind the back of S." {Doe d. Smith & Payne V. Wehher (1834), 1 Ad. & El. 119). In one case {Govdt v. Richmond (1834), 7 Sim. 1) this principle appears to have been departed from on the ground of something in the nature of acquiescence. But of this case it is said in Pollock on Contracts, 7th ed., at p. 204 (8th ed., at p. 215): "In one case of a suit in equity for specific per- formance of an award a third person interested in the matter was made a party and was held to be bound by the award, though he had not been a party to the reference, and had in no way assented to it, but simply knew of it and remained passive. But the contrary has been held by higher authority. It seems obvious that A. and B. have no business to submit C.'s rights to the arbitration of D. It is apprehended accordingly that this exception may be treated as non-existent." In Taylor v. Parry (1840), 1 M. & G. 604, at p. 621, Erskine, J., said : " That agreement [between the plaintiff's lessors and the defen- dants' lessor to refer a question of boundaries] could not of itself be evidence to affect the defendants ; but though the defendants were not originally parties to that agreement, they might make it evidence against themselves by their subsequent conduct." Aivard not evidence of reputation. An award is not evidence of reputation against a stranger. A judg- ment or verdict of a Court of law could be so received, but an award cannot. See ante, Illustration 2, p. 479. Illustrations. 1. C. was indicted for the non-repair of a highway, which it was alleged that he was under an obligation to keep in repair ratione tenurce. A former tenant of the property had submitted the question of liability to arbitration, and it was sought to put in the award then made as THE AWARD 481 evidence of reputation against C. Held that the award not only was not binding upon C, who was a stranger to it, but could not even be tendered as evidence of reputation against a stranger to it (It. v. Cotton (1813), 3 Camp. 444, See also Evans v. Bees, ante, p. 479). 2. A parish was indicted for non-repair of a highway. The defen- dant parish wished to give in evidence an award by commissioners acting under an Inclosure Act, which empowered them to determine to which parish certain roads belonged, after due notice. This award decided that the road in question was in a parish other than the defendant parish. There was evidence of repair and of other admissions of liability by the defendant parish since the award. Held that the award could not be received without proof that the commissioners had given the proper notices, on the ground that the repair and admissions removed the prima facie presumption that all proper steps had been taken (R. V. Haslingfield {Inhabitants) (1814), 2 M. & S. 558. See also Manning V. Eastern Counties Rail. Co. (1843), 12 M. & W. 237). 3. In a dispute as to tolls under the Corporation of Cambridge the plaintiffs produced an award made in the reign of Henry VHL, and a composition deed reciting the award and made in pursuance of it, for regulating disputes between the University and Town of Cambridge. Lord Tenterden, C.J., said: "The deed recites the award, so that the plaintiff will have the full benefit of the award by reading the deed only, which derives no additional authority from being made in pur- suance of the award. I think I ought to receive the deed on its own account. In this case reputation is admissible evidence, and certainly such a solemn deed is admissible evidence of reputation " {Brett v. Beales (1829), Mood. & M. 416). Award as evidence for a stranger. In certain circumstances an award, although it cannot be evidence against, may be evidence in favour of, a stranger to it. Illustration. S. brought an action against F., a servant of the East India Company^ for damages for false imprisonment. F. produced an award between S. and the company, in pursuance of which a release had been given by S. to the company, in return for a large payment of compensation paid ta him in respect of injuries done to him by the company's servants, and in particular by F. The award was upon a submission of matters in dispute, the terms of which embraced the matters upon which the present action was founded. Held that this award and the release were good evidence on behalf of F. in mitigation of damages, although F. was a mere stranger to the award (Shelling v. Farmer (1725), 1 Stra. 646). Aivard as evidence for arbitrator. When a dispute relates to property, and the property is deposited with the arbitrator pending his award, the award may be given in 31 482 EEFERENCE BY CONSENT OUT OF COURT evidence by the arbitrator in any action brought by the unsuccessful party against him to recover the property. Illustration. In a former action by L. against the plaintiffs brother, for trespass in taking away a filly, it had been referred to an arbitrator to decide whose property the filly was, and she had been delivered to the arbitrator to keep for that purpose. He had awarded her to L., but she still remained in his possession. The plaintifi" demanded her, and was refused, and brought an action for trover. Park, J., said : " In effect the defen- dant said, ' I cannot deliver the filly to you because I have awarded that she does not belong to you.' The detention, therefore, cannot be con- sidered as an unlawful conversion, and more particularly so, as the defendant decided on the only point in issue in the former trial " (Gunton v. Nurse (1821), 5 Moore, C. P. 259). Impeaching aivard put in evidence. Where an award is tendered as evidence, the opposite party may -offer evidence in reply to destroy its effect. This evidence may be directed to impeaching the validity of the award, e.g. on the ground that the arbitrator did not award upon all the matters in dispute. Illustrations. 1. The submission was of all matters in difference between the parties and the award was for £472 odd, "being the balance due on the banking account of J. M. (the defendant) with the plaintiffs." In an action for £800 balance of his banking account the defendant put in the award, and the plaintiffs endeavoured to prove the award bad m tofo, as not dealing with all matters in dispute. The Court said that if it could be shown that there was any other matter in difference than the banking account, the award could not be sustained in any respect, but that it lay upon the party who impeached it to show that there was some other matter in difference between the parties (Ingram v. Milnes (1807), 8 East, 445). 2. The submission was of all matters in difference, and the indemnity of the defendant as a drawer of certain bills accepted by the plaintiff, and then outstanding, was at the time of the submission a matter in difference between the parties, and it was notified to the arbitrators, but there was nothing stated in the award respecting this matter. "They were called upon to act on a matter in controversy and have not acted. . . . The award, therefore, is not final. . . . That is an important difficulty against which the plaintiff has to contend, and it would be to no purpose to amend the pleadings" (per Lord Ellen- borough, C.J., in Mitchell v. Staveley (1812), 16 East, 58, at p. QQ). 3. "The award is alleged to have been made of and concerning the premises referred, that is, the cause, which means the issues in the cause. COSTS 483. It being alleged that there were no matters in diflference between the parties except those in the cause, then, in order to make the award good and valid, it must be made on all matters in difference, that is on all the issues in the cause. Therefore a plea that there was no award, that is, no valid award, sufficiently raises this objection " {per Parke, B., in Dresser v. Stansfield (1845), 14 M. & W. 822, at p. 830). 4. To an action for the amount of an award of an umpire in respect of compensation for damage done to land by the execution of works under a private Act, the defendants pleaded that the umpire had awarded compensation in respect of matters not the subject of compensation under the Act. Held that the plaintiffs (on the construction of the private Act) were not entitled to the compensation awarded, as the arbitrator had not found damage in respect of any matter over which he had power {Rhodes v. Airedale Drainage Commissioners (1876), 1 C. P. D. 402). First Schedule {i COSTS. *' Costs of the reference." " Costs of the award." Costs of umpire's award. Arbitrator's right to remuneration. Implied promise to pay. Submission providing for remuneration. Practice not to deliver award until charges paid. Lien for fe Where no award made. Costs of solicitor or counsel employed to draw up award. Fees on award under the Lands Clauses Act. '*' May tax or settle." Settling own remuneration. Fees may be taxed if amount not stated in award. Umpire's charges should Ije stated separately from arbitrators' charge Charges for remuneration and for disbursements should be separated. No costs recoverable if solicitor uncertificated. Arbitrator should exercise liis discretion as to costs. May order successful party to pay costs. Awarding each party to pay his own costs. Power to direct taxation of costs. Costs to be taxed by a certain day. Costs as between solicitor and client. Costs where award set aside. Covenant in lease excluding jurisdiction of arbitrator. Agreement by tliird person to be bound by award. Costs may be taxed before expiration of time for setting aside award. Taxation of costs by Master. «C!osts should be taxed according to award. 484 REFERENCE BY CONSENT OUT OF COURT Taxing arbitrator's charges. Scale of fees allowed. Reviewing taxation of Master. Taxation is between the parties. Costs under Railways Clauses Act, 1845. „ „ Companies Clauses Act, 1845. „ ,, Railway Companies Arbitration Act, 1859. „ „ Public Health Act, 1875. [Unless a contrary intention is expressed in the submission (s. 2)] (i) The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client. The provisions of this clause are, in the absence of an expression of a contrary intention, deemed to be inchided in submissions made before or after the commencement of the Act (In re Williams and Stepney, [1891] 2 Q. B. 257; 60 L. J. Q. B. 36). In order to understand how far the cases decided before the Arbitra- tion Act as to costs are appHcable at the present time, it must be borne in mind that an arbitrator before the Arbitration Act had no power over the costs of the reference and award, unless it was expressly given to him by the terms of the submission. Further, before the Arbitration Act the Court had power compulsorily to refer causes to arbitration, and when the Court did so, the arbitrator also had no power over the costs of the reference or award, unless such power was given by the order of compulsory arbitration. The Arbitration Act now divides references into two kinds : — (1) Eeferences by consent out of Court; and (2) Eeferences under order of the Court. As regards references by consent out of Court, the costs are in the discretion of the arbitrator under this clause of the First Schedule to the Act, unless a contrary intention is expressed in the submission, and as regards references under order of Court, the referee or arbitrator has full power to deal with costs subject to any provision in the order of reference (see commentary on s. 15, Part ILj-post). It is unnecessary, therefore, for the Court to make any order as to costs in references under order of the Court, unless the Court wishes to limit the power of the referee, and as regards references by consent out of Court, no provision in the submission is necessary, unless the parties wish to limit the discretion vested in the arbitrator by clause (t) of the First Schedule to the Arbitration Act. There is a third class of cases, namely, where the Court, with the the consent of the parties, orders a reference as to matters beyond its jurisdiction under the Arbitration Act, as, for instance, in cases where COSTS 485 the Court by consent orders the cause "and all matters in difference" to be referred. In such a case, the person to whom the reference is made is not an official of the Court, but an arbitrator under a submission by consent {Darlington Wagon Co, v. Harding, &c., [1891] 1 Q. B. 245), and his powers as to costs are, it would seem, defined by clause {i) of the First Schedule to the Arbitration Act, unless the order of reference places any limitation upon such powers. This subject is dealt with in Part II., in the commentary on s. 15, post. " Costs of the reference." The "costs of the reference" include all the expenses properly incurred by the parties in the course of the whole enquiry before the arbitrator. They may include the costs of negotiating and settling the terms of the submission, and of any fresh submission, between the parties. Thus, where on an action being stayed, as being contrary to an agreement of reference, the parties then prepared and executed a further submission, under which the arbitration took place, it was held that the costs of and incidental to the further submission were part of the costs of the reference {In re Autothreptic Steam Boiler Co. and Townsend, Hook & Co. (1888), 21 Q. B. D. 182 ; 57 L. J. Q. B. 488). They also include the costs incidental to the statement and argument of a special case on questions of law under s. 19 of the Arbitration Act {In re Knight and Tabernacle, &c., Building Society, [1892] 2 Q. B. 613. See also In re Holliday and Wakefield Corporation (1888), 57 L. J. •Q. B. 620). The costs of the reference include any special expenses incurred in connection with the arbitration by the parties or by the arbitrator with the consent of the parties ; for example, the costs of an accountant employed by the arbitrator, by consent of the parties, to examine one party's books, and of the attendance of the other party's solicitor on the accountant {Haivkins v. Fdghy (1860), 29 L. J. C. P. 228; 8 C. B. (N. S.) 271. See also Westivood & Co. v. Cape of Good Hope Government (1886), 2 T. L. E. 667). Where by the terms of an agreement of reference the arbitrator was given authority to deal with the costs of the reference, it was held the costs of the award were included in the costs of the reference {Li re Walker and Broivn (1882), 9 Q. B. D. 434; 51 L. J. Q. B. 424). " Costs of the atvard." The amount of the costs of the award is the sum demanded by the arbitrator as the terms of giving up his award, on which he has a lien. But as between the parties to the submission, the amount of the costs of the award, if the costs are subject to taxation, is the amount allowed by the taxing Master on taxation, and the sum allowed by the taxing 486 REFERENCE BY CONSENT OUT OF COURT Master is all that can be recovered by one party from the other when the other party has by the award been ordered to pay the costs of the award {Brazier v. Bryant (1834), 2 Dowl. 600 ; Dossett v. Gingell (1841), 2 M. & G. 870; 10 L. J. C. P. 183). The arbitrator's charges may be high, but they must not be- exorbitant or excessive. The arbitrator having a lien on the award for the payment of his charges, a party wishing to take up the award must pay the fees demanded. The result is that, in order to take up the award, the successful party may be compelled to pay a sum in excess of that which the Master may allow on taxation of the costs as between the parties, and yet have no remedy to recover such excess. Illustration, Two arbitrators and their umpire, in a reference as to the value of waterworks required by the local authority, were civil engineers of the first rank. There was no agreement beforehand as to their fees. The taxing Master thought the fees too high, and disallowed about a quarter of them. The fees had already been paid. Held that they were fair fees according to the evidence adduced, and that the plaintififs could not recover from the arbitrators the amount taxed off (Llandrindod Wells Water Co. v. Hawksley (1904), 20 T. L. R. 241). As to the party's right of action against the arbitrator if the fees are excessive, see ante, p. 196. Costs of umpire's award. When an award is made by an umpire on the disagreement of the arbitrators, or on their failing to award, the fees due to the arbitrators are part of the costs of the umpire. By agreement disputes were referred to two arbitrators, and if they failed to make an award by a certain date, to an umpire. The costs of the reference, award, and umpirage were to be in the discretion of the arbitrators and umpire respectively. The parties agreed that the umpire should sit with the arbitrators so as to save the expense of a rehearing. The award was not made by the agreed date, and thereafter the arbitrators sat with the umpire to assist him in taking the evidence. The award ordered the losing party to pay the other party's costs " of the umpirage and of this my award," and that each party " should pay their own costs of the reference otherwise than the costs of my umpirage and of this my award." The umpire included in his costs of umpirage and award the charges of the two arbitrators, and these were paid by the successful party on taking up the award. Held that these charges were costs of the umpirage and not of the reference, and that the successful party was entitled to have allowed on taxation the charges of the arbitrators COSTS 487 though the Master was not bound to allow on taxation the precise sums charged {Ellison v. Achroyd (1850), 20 L. J. Q. B. 193). Arbitrators right to remuneration. Implied promise to pay. The question of what remuneration an arbitrator is entitled to depends either upon express promise or upon an undertaking, to be implied from his appointment, to remunerate him reasonably for his services. In some early cases it was held that the appointment of an arbitrator was not of such a nature as to raise a demand for payment, in the absence of an express promise to pay him for his services (Virany v. Warne (1801), 4 Esp. 47; Burroughes v. Clarke (1831), 1 Dowl. 48). On an express promise to pay for his services an action could always be maintained by an arbitrator {Hardres v. Proud (1655), Sty. 465; Hoggins v. Gordon (1842), 3 Q. B. 466; 11 L. J. Q. B. 286; Crampton & Holt v. Bidley & Co. (1887), 20 Q. B. D. 48). Later, however {Stvinford v. Burn (1818), Gow, 5; In re Coombs (1851), 4 'Ex., per Parke, B., at p. 841 ; Crampton & Holt v. Bidley & Co. (1887), 20 Q. B. D. 48), it was suggested that in mercantile and business arbitrations the appointment of an arbitrator must be taken to imply a promise to remunerate him at a reasonable rate, and, in 1891, it was expressly so decided {Willis v. Waheley Brothers (1891), 7 T. L; E, 604), and this appears to be the law {Brown v. Llandovery Terra Cotta Co., Ltd. (1909), 25 T. L. E. 625 ; Tuckett v. Isle of Thanet Co. (1901), 46 Sol. J. 159). In Brovm v. Llandovery Terra Cotta Co. {supra) it was held in the case of a reference to two arbitrators, one to be chosen by each party ,^ and an umpire, that there was an implied promise by the parties to the submission jointly to pay the arbitrators and umpire for their services, and that the party who was directed by the award of the umpire to pay the arbitrator's charges was liable to be sued on such implied promise by the arbitrator who had not been appointed by him, but by the other party. Hitherto there is no decision that a legal arbitrator can recover his fees on an implied promise, but there does not seem to be any sound reason why he should not. Like a surveyor or engineer he is a pro- fessional man, who generally looks for payment for his professional services. Submission providing for remtineration. A clause in a submission that the remuneration of the arbitrators shall be fixed by them is evidence of a joint promise of the parties to pay them, but no action can be brought on the submission by the 488 REFERENCE BY CONSENT OUT OF COURT arbitrators, as they are not parties thereto {Bates v. Townley (1848), 2 Ex. 152; 19 L. J. Ex. 399). Practice not to deliver award until charges paid. Lien for fees. It is usual for an arbitrator to settle for himself what he considers a proper remuneration for his trouble. On giving notice to the parties that the award is ready for delivery, it is advisable also to notify them what is the amount of his charges, in order that the party who comes to take up the award may be prepared to pay them. Either party can then take up the award. The arbitrator has a lien for his reasonable costs on the award and submission, and on any memoranda or valuation obtained by himself from other persons for his own guidance {In re Coombs (1850), 4 Ex. 839; Laing v. Todd (1853), 13 C. B. 276), but not on documents put in evidence before him by the parties {Tonsford v. Swaine (1861), J. & H. 433). As the retention of the award is prac- tically the chief security on which he can rely for the satisfaction of his claim, the practice commonly prevails not to deliver the award up to the party seeking to take it up until the charges have been paid. Where the party who takes up the award is not by the terms of its provisions to be the party ultimately liable to pay them, he may recover from his opponent all the costs of the award that its directions impose upon the latter {Hiclxs v. Richardson (1797), 1 B. & P. 93 ; Stokes V. LevAs (1804), 2 Smith, 12; Smith v. Trou2J (1849), 7 C. B. 757; 18 L. J. C. P. 209). The difficulty arises when neither party takes up the award. The arbitrator must then rely upon the promise, express or implied, to pay him for his services. Where no award made. The implied promise to pay an arbitrator or umpire is, it would seem, for an award, so that an arbitrator or umpire cannot, in the absence of an express agreement, claim any payment until his services are completed by the making of an award. It may, therefore, be desir- able, that, before accepting office, he should stipulate for a payment on account to be made before the commencement of the proceedings, and for subsequent payments from time to time in the event of the proceed- ings being likely to be prolonged. Otherwise he may find that the parties are needlessly prolonging the proceedings, and there may be little prospect of his being paid. Costs of solicitor or covMsel cmijloyed to draw iip award. It is reasonable in many cases for a lay arbitrator to employ a solicitor or counsel to draw up the award, and to charge the expenses as costs of the award {Thrclfall v. Fanshawe (1850), 19 L. J. Q. B. 334). But the Court will not allow such expenses where the charges for his COSTS 489 •own fees are considered large enough to cover all his costs {Galloway v. Keyiuorth (1854), 15 C. B. 228 ; 23 L. J. C. P. 218). Fees on aivarcl under the Lands Clauses Act. An arbitrator or umpire appointed under the Lands Clauses Act, 1845, is not bound to deliver up the award to the promoters until his reasonable charges are paid, and cannot be compelled to do so by mandamus, for he has a lien on the award for the amount {R. v. The South Devon Rail. Co. (1850), 15 Q. B. 1043). " May tax or settle." The arbitrators (or umpire) may tax or settle the costs of the reference and award ; that is to say, they may assess the amount which one party shall pay to the other, and the amount which shall be paid to themselves. If they do so, such assessment, being part of the award, is binding on the parties unless the award is set aside {Re Gilbert and Wright (1904), 20 T. L. E. 164). Settling own remuneration. Although the costs of the reference and award were left in the arbitrator's discretion, he had, in general, no power under the old law to fix his own fee in the award {Coombs, In re (1850), 4 Ex. 839; Parkinson v. Smith (1861), 30 L. J. Q. B. 178. See Roberts v. Eberhardt (1857), 28 L. J. C. P. 74) ; the right course was for him to direct which party should pay the costs of the award, without naming the sum in his award, and the officer of the Court who taxed the costs would determine, as between the parties, the proper amount to be allowed. But the Court would not set aside or remit an award because the arbitrator had stated therein the amount of his fee, unless there was an affidavit that the amount was excessive {Rose v. Redfern (1861), 10 W. E. 91). If an arbitrator now taxes or settles his own remuneration at an excessive sum, that is misconduct; and the award may be set aside on that ground {Prcbble and Robinson, In re, [1892] 2 Q. B. 602, at p. 604; Fernleyy. Branson (1851), 20 L. J. Q. B. 178; Rose v. Redfern (1861), 10 W. E. 91). Illustration. On a motion to set aside so much of an award as related to the sum of £368, 15s., costs of the award, on the ground that the arbitrators had exceeded their jurisdiction in fixing their own fees, which were unreason- able and excessive, Mathew, J., said: "The only ground on which the motion could be allowed would be the misconduct of the arbitrators " ; and Smith, J., said : " He could not read provision {i) of the Schedule to the Act without seeing that the arbitrators were made judges in their own cause. ... If parties wished to get rid of this provision they 490 REFERENCE BY CONSENT OUT OF COURT must be careful to insert terms in the submission that expressly exclude it " {Re Stephens, Smith & Co. and Liverpool and London and Globe Insurance Co. (1892), 36 Sol, J. 464). Fees may he tctxed if amount not stated in award. The reason that the fees of an arbitrator cannot be taxed if he taxes or settles them by his award is that they become part of the award, and unless it is set aside the award remains binding on the parties to the submission. If the amount is not stated in the award itself, so as to form part of it, the charges of the arbitrators may, as between the parties, be taxed as they could have been before the Arbitration Act. Illustration. An award directed that the defendants should pay to the plaintiff the costs incurred by him "of and incidental to the reference and award." The plaintiff took up the award on payment of the arbitrator's charges of £123, 16s. 8d., as stated in the notice of publication. Held that this sum, not being included in the award itself, was liable to taxation in the ordinary way {Re Prebble and Robinson, [1892] 2 Q. B. 602). Umpire's clmrges slionld he stated separately from arhitrators' charges. An umpire should, in his award, separate the sum which he awards to himself for his charges from the sum which he awards to the- arbitrators for their charges. " As a matter of principle an arbitrator ought not to act in such a way as to deprive a person of his right to challenge the charge which he made for his services" {per Lord Alverstone, C.J., in Gilbert and WrifjU, In re (1904), 20 T. L. E. 164). " It could not be right conduct on the part of an umpire, however hand fide he might be, to render it impossible to say how much he was awarding to himself for costs and how much to the arbitrators " {p>er Wills, J., ibid.). Charges for remu'iuration and for dishursements shoidd he separated. "Where an award directed that a lump sum should be paid ta arbitrators for " preparing the agreement of reference and their award, and for their charge, trouble, and attendance upon the reference and arbitration and certain costs . . ." it was held that the award was void for uncertainty in not defining the particular allowance to be paid to the arbitrators {Bohinson v. Henderson (1817), 6 M. & S. 276). No costs recoverable if solicitor uncertificated. If the solicitor employed by one of the parties to conduct the arbitration is uncertificated, or not duly qualified, the party employing COSTS 491 him, although entitled to costs by the terms of the award, and though he was not, during the arbitration, aware of the disqualification, cannot recover anything for the costs or disbursements of the solicitor in any legal proceeding ("action, suit, or matter"), by reason of the prohibition in the Attorneys and Solicitors Act, 1874 (37 & 38 Vict. c. 68), s. 12 {Fowler v. Monmouthshire FmH, &c., Co. (1879), 4 Q. B. D. 334; 48 L. J.. Q. B. 457). Arbitrator should exercise his discretion as to costs. When the provisions of clause (i) of the Schedule are deemed to be- included in the submission, or when the submission states that the costs of the reference or award are to be in the discretion of the arbitrator, he should give some direction in his award respecting the costs, otherwise the award may be bad as not being final {Morgan v. Smith (1842), 9 M. & W. 427; 11 L, J. Ex. 379; Richardson v. Worsley (1850), 5 Ex. 613; 19 L. J. Ex. 317; Williams v. Wilson (1853), 9 Ex. 90 ; 23 L. J. Ex. 17). Where an arbitrator fails to deal in his award with costs which are left to his discretion, the Court may refer the matter back to him to deal with the costs {Warburg & Co. v. 3f'Kerroio & Co. (1904), 90 L. T. 644). May order success/id party to pay costs. Provided the discretion of the arbitrator is exercised, he may order the successful party to pay the costs {In re Fearon and Flinn (1869), L. E. 5 0. P. 34). In an arbitration under the Agricultural Holdings Act, 1908, the landlord claimed £744 for dilapidations, and the tenant disputed both his liability to pay anything and the amount claimed. The arbitrator decided that the landlord was entitled to £71 only, and he directed that each party should pay his own costs of the proceedings relating to the question of liability, and that the remainder of the costs of the arbitration should be paid by the landlord. It was held that the arbitrator had acted within the discretion vested in him by the Act,^ Schedule II., 14 and 18, and there being no ground for suggesting mis- conduct, that his award as to costs could not be disturbed {Gray v. Ashburton, [1917] A. C. 26). A'Luarding each party to pay his oivn costs. When he does not wish to give a preference to either party, and there is no special reason for awarding otherwise, the arbitrator should direct that each party shall bear his own costs of the reference and pay half the costs of the award. This will save the delay and trouble of taxing the costs of the parties which would be necessary if the award directed that each party should pay half the costs. 492 REFERENCE BY CONSENT OUT OF COURT Poiver to direct taxation of costs. Where a reference contained a provision that the submission might be made a rule of Court, and the arbitrator was given power to deal in his award with the costs of the reference and the award, it was held that he might order that such costs be taxed by the officer of the Court, although no action was pending at the date of the reference (Bhear v. Harradine (1852), 7 Ex. 269). If a submission is within the Arbitration Act it has, by s. 1, " the same effect in all respects as if it had been made an order of Court." It follows, therefore, that if clause {i) of the First Schedule is deemed to be included in the submission, or if the submission, though it excludes the provisions of the Schedule, is within the Act and gives the arbitrator power to deal with the costs, the arbitrator may direct that they shall be taxed by an officer of the Court. If, however, the submission expressly provides that the arbitrator shall fix or ascertain tlie costs, he must settle them himself, and has no power to direct a taxation {Morgaii v. Smith (1842), 9 M. & W. 427). If the submission is by parol, and therefore outside the Arbitration Act and incapable of being made a rule of Court, the arbitrator has no power to direct a taxation, because the Court has no jurisdiction in the matter. In such a case, if the arbitrator gives costs, he must tax and settle them himself, and state the amount in the award {Roulstone v. Alliance Insurance Co. (1879), 4 L. E. Ir. C. L. 547). Costs to he taxed hy a certain day. If arbitrators award costs to be taxed by a certain day it is the business of the party claiming taxation to see that it is carried out. Illustration. Arbitrators awarded to the plaintiff the costs of a referred action to be taxed by a certain day. The plaintiff taxed his costs after the date in question. Held that the objection on this ground was invalid, as it was the defendant's business to see that the costs were taxed {Candler v. Fidler (1738), Willes, 62). Costs as hetiueen solicitor and client. The arbitrator on a reference at common law, unless specially authorised, had no power to order the costs, either of the cause or reference, to be taxed as between solicitor and client {Harder v. Cox (1774), 1 Cowp. 127 ; Whitehead v. Firth (1810), 12 East, 166 ; Seccomhe V. Balh (1840), 6 M. & W. 129 ; 9 L. J. (N. S.) Ex. 65). In equity, however, where, on the reference of a suit, the costs of the suit, refer- ence, and award were in the arbitrator's discretion, the arbitrator had jurisdiction to order the costs to be paid as between solicitor and client {Mordue v. Palmer (1870), L. K. 6 Ch. 22; 40 L. J. Ch. 8). COSTS 493^^ Costs luhere aivard set aside. If the arbitrator exceeds his jurisdiction, and on that ground the award is set aside as being wholly bad, the party to whom the arbitrator has awarded the costs of the proceedings cannot recover them (Davis' V. Witneij U. D. G. (1899), 15 T. L, E. 275. See London & North Western Rail Co. v. Walker, [1903] A. C. 289). Covenant in lease excluding jurisdiction of arbitrator. Where a covenant for the renewal of a lease " at the costs of the lessee," provided for the payment of a fine calculated on, inter alia, the improved annual value of the premises, and also for determining the amount of tlie fine by arbitration, it was held that the costs of the reference and award were costs of renewal of the lease and payable by the lessee, and that the arbitrator had no power or discretion to deal with them {Fitzsivimons v. Mostyn {Lord), [1904] A. C. 46). Agreement hy tJiird -person to he hound hy award. Where defendants agreed with the plaintiff's that, as between them- selves and the plaintiffs, they would be bound by the result of an arbitration between A. and B., it was held that they did not thereby impliedly agree to pay to the plaintiffs any costs the plaintiffs might be liable to pay to B. under the award {Jackson & Co. v. Henderson, Craig & Co. (1916), 115 L. T. 36). Costs may be taxed before expiration of time for setting aside avmrd. Costs may be taxed on an award, notwithstanding that the time for setting aside the award has not elapsed (Order LXV., r. 15). Taxation of costs by Master. Costs shoidd be taxed according to aivard. On a taxation of costs under an award, the Master must tax the costs according to the language of the award. If the arbitrator orders costs to be taxed as between solicitor and client, having no authority to do so, and the Master taxes them on that scale, the Court will not review the Master's taxation on the ground that the arbitrator had no authority to give such costs. The proper application is to move to set aside the award for the excess {Bartlc v, Musgrave (1841), 1 Dowl. (N. S.) 325). Where an arbitrator appointed under the Electric Lighting Act, 1882 (45 & 46 Vict. c. 56), s. 28, directed that one party should pay the other parties " their costs of and incidental to the arbitration and the costs of this award," it was held that only costs as between party 494 REFERENCE BY CONSENT OUT OF COURT and party should be taxed under the award {In re Duhlin Electric, Sujypbj Co. and Kingston V. D. 0. (1917), 51 Ir. L. T. 109). Taxing arbitrator's charges. The taxing Master has power to enquire into the propriety of the arbitrator's charges when objection is made to them and tax them as between the parties ( TFe&& v. IVyatt (18o7), 3 Jur. (N. S.)496; Barnes V. Hayiuarcl (1857), 1 H. & N, 742 ; Westicood & Co. and Cape of Good Hope G-overmnent, In re (1886), 2 T. L. R. 667). Where an umpire had charged a scale fee for his award in an arbitration as to the value of certain land taken for public purposes, and the taxing Master had disallowed the fee and given a fixed sum con- siderably less in amount, it was held that he was right and had acted in accordance with the usual practice {Re James & Sons, [1903] W. N". 99). Sccde of fees cdlowed. It has been said that there was no particular scale of fees allowed for King's Counsel when acting as arbitrators {Sinclair v. Gi'ccd Eastern Rail. Co. (1869), L. R. 5 C. P. 135 ; 39 L. J. C. P. 165) ; but ten guineas a day was the sum usually allowed by the Masters {In re Westicood, &c., and Cape of Good Hope Government (1886), 2 T. L. Pt. 667). Reviewing taxation of 3Iaster. By an agreement for the purchase of the undertaking of a company, at a price to be fixed by arbitration, the purchasers agreed to pay all the costs, charges, and expenses of the company preliminary and incidental to the negotiation for the sale, and the costs of the arbitra- tion, the costs to be taxed in case the parties differed. On taxation the Master allowed costs on a scale lower than that between solicitor and client ; it was held by the Court of Appeal that there was jurisdiction to review the taxation of the Master, and that the company was entitled to costs as between solicitor and client {Malvern U. D. C. V. Mahern Link Gas Co. (1900), 83 L. T. 326). But where the Master acts in the matter as a persona dcsignata, as, for instance, under the Lands Clauses (Taxation of Costs) Act, 1895, and not as an officer of the Court, his taxation is not open to review {In re Cannings and Middlesex Cowntij Council, [1907] 1 K. B. 51 ; 76 L. J. K. B. 44). Taxation is between the parties. The taxation of the Master is as regards arbitrators res inter alios acta. It is binding on the parties subject to review, but is not binding on the arbitrators unless they submit to be bound. If a party has paid an extortionate sum to take up an award his remedy is against the arbitrators or umpire as the case may be {Llandrindod Wells Wata' Co. V. Haivksley (1904), 20 T. L. P. 241). COSTS 495 Costs under Baihoays Clauses Act, 1845. In references under the Eailways Clauses Act 1845 (8 & 9 Vict. c. 20), by s. 135, "except where by this or the special Act or by any Act incorporated therewith, it shall be otherwise provided, the costs of and attending every such arbitration to be determined by the arbitrators, shall be in the discretion of the arbitrators." Costs lender Companies Clauses Act, 1845. The Companies Clauses Act, 1845 (8 & 9 Vict. c. 16), has, in s. 133, a similar enactment verbatim, adding, however, the words, " or their umpires as the case may be." Costs imder Railway Coriipcmies Arbitration Act, 1859. By the Railway Companies Arbitration Act, 1859 (22 & 23 Vict. c. 59), ss. 27, 28, subject to agreement of the companies, the costs of the arbitration and award are in the discretion of the arbitrators, and so far as the award does not determine them, the costs of the arbitra- tion and award are to be borne by the companies in equal shares, and in other respects the companies are to bear their own costs. Costs under Public Hecdth Act, 1875. In arbitrations under the Public Health Act, 1875 (38 & 39 Vict, c. 55), s. 180 (13), the costs of and consequent upon the reference are in the discretion of the arbitrator or umpire. But he has no jurisdic- tion to award costs to a wholly unsuccessful party {In re Barnctt and Eccles Corporation (1901), 65 J. P. 757). Note. — See ante, p. 115 " Costs" under section 4 190 253 295 308 309 10 11 12 19 20. PART 11. REFERENCES UNDER ORDER OF COURT. INTEODUCTIOX. The references dealt with in the Arbitration Act under this heading- are not references to arbitration in the ordinary sense of the term, and their inclusion in an Arbitration Act, or in a book on arbitration, causes confusion. These references are nothing more than a delegation by the Court to an officer of the Court of the trial of the whole or any part of an action, or an enquiry by an officer of the Court as to any question in an action upon which the Court requires assistance. Though a special referee, who may be anyone agreed upon by the parties, is not an ordinary otiicer of the Court, he becomes or is deemed to be an officer of the Court for that purpose when a cause or matter, or any question arising in a cause or matter, is ordered to be referred to him (s. 15 (1) of the Act). The part of the Arbitration Act entitled " Eeferences under order of Court " thus becomes a part of the machinery of the Court for the trial of a particular class of cases in respect of which an action or proceeding in Court has been commenced, or for enquiry or report concerning questions arising in such cases. The wording of the Act is not " action " but " cause or matter.'^ Upon this an interpretation has been placed by s. 100 of the Judicature Act, 1873, but substantially the Court does not obtain jurisdiction to order a reference until some action or proceeding in Court has been commenced. A submission to arbitration is not a " matter " within the meaning of the Act {In re Shaw and Ronaldson, [1892] 1 Q. B. 91). When an order has been made under s. 13 or 14, the officer of the Court in fact, or the special referee who is deemed to be an officer of the Court, is subject to such rules of Court as are made applicable to him. For example, he must conduct the reference in such manner as may be prescribed by rules of Court (s. 15 (1) of the Act), and his remuneration is to be determined by the Court or a judge (s. 15 (2)). The result is that such a person is in no sense an arbitrator, as he would be in a reference by consent out of Court. A reference by consent out of Court means a reference to arbitration under a submission by the parties to the dispute. The Court, however. REFERENCES UNDER ORDER OF COURT 497 has inherent jurisdiction, with the consent of the parties, to make an order which is not within either s. 13 or s. 14 of the Arbitration Act, to refer a cause or matter, and all matters in difference, to arbitration. In such a case the order of the Court derives its validity from the consent of the parties. The consent of the parties is the submission, and the person to whom the cause or matter is referred is an arbitrator (not an officer of the Court). The powers and duties of an arbitrator, whether in a reference by- consent out of Court, or by consent in Court in cases where ss. 13 and 14 of the Arbitration Act do not apply, are the same, and are regulated by the provisions of the Arbitration Act as to " Eeferences by consent out of Court," unless a contrary intention is expressed in the submission out of Court, or in the submission in Court, as evidenced by the consent order, as the case may be. The Court has no jurisdiction under s. 14 to do more than order the whole cause or matter or any question or issue of fact therein to be referred for trial. Any order in excess of the powers contained in that section must be by consent, and the reference under an order in excess of the Court's powers under s. Ij3 or 14 of the Act constitutes a sub- mission to arbitration, as before stated. Lord Esher, M.E,, in a case where an order was drawn up by consent, referring all matters in difference between the parties to an arbitrator, said : " It is said that it is a good order of reference, and no doubt that is so, but it was made under the general authority of a judge to act on the consent of the parties and appoint an arbitrator. The whole validity and force of the order of reference arises from the consent of the parties " {Darlington Wagon Co. v. Harding, &c., Steamboat Co., [1891] 1 Q. B. 245,. at p. 249). In this case it was held that there was no power to review the award made by the arbitrator on any ground upon which an ordinary award, made on a reference by consent, could not be reviewed. The Court may also, by consent of the parties, make an order in such a case, giving the parties rights which they would not have under a submission to which the First Schedule of the Act applied, and taking away rights which they would otherwise have, but the reference remains a submission by consent, and subject to all the provisions of the Arbitra- tion Act as to references by consent out of Court, except as varied by the order. If, for example, the parties consented to an order that the costs of the reference and award should abide the event, the provisions of clause (t) of the First Schedule to the Act would to that extent be excluded, a contrary intention being expressed in the submission, as evidenced by the order (see s. 2 of the Act). S. 15 of the Arbitration Act is intended to prescribe the mode of carrying out references under s. 14, and although the word " arbitrator " appears in both sections, the term does not apply to an arbitrator acting 32 498 REFERENCES UNDER ORDER OF COURT under a submission, but to an arbitrator acting under an order of the Court or a judge " in any cause or matter " {Darlington Wagon Co. v. Harding, &c.. Steamboat Co., sitpra). In Licvesley v. Gihnore (1866), L. E. 1 C. P. 570, it was held that an order by consent in which the action and all matters in dispute were referred to arbitration was only evidence of an agreement between the parties to perform the award. Erie, C. J., in that case said : " I think the opinion expressed by Parke, J., in Wentivorth v. Bullen (1829), 9 B. & C. 840 . . . was perfectly correct. . . . The contract of the parties is not the less a contract and subject to the incidents of a contract because there is superadded the command of a judge. The case of an agreement to refer by order of a judge is a familiar instance, many actions being brought upon such agreements." Montague Smith, J., in the same case {Lievesley v. Gihnore), said : " That an action will lie on a submission by a judge's order is stated in 2 Williams' Saunders 62 b, and in Wharton v. King (1832), 1 Moo. & E. 96, where the precise point now made was taken and overruled by Lord Tenterden." In the above case {Lievesley v. Gilmore) it was unsuccessfully con- tended that an action would not lie, and that a judge's order made in an action by the consent of the parties, by which the action and all matters in difference were referred to the award of J. W., could only be enforced by attachment. Erie, C.J., cited instances of submissions to arbitration under order of the Court, where the rights of the parties to which they would otherwise have been entitled were taken away and other rights substituted by the terms of the order consented to. The order may take the following form : — Upon hearing counsel on both sides and by their consent I do order that the record in this cause be withdrawn and a stet 2^rocessus entered, and the cause and all matters in difference between the parties be referred to the award of A. B., with power to say what shall be done by the parties, &c. . . . and that the costs of the said cause shall abide the event ; and that the costs of the reference and award shall be in the discretion of the said arbitrator (taken from StoMey v. Shopland (1872), 26 L. T. 586). Where parties agree to refer an action, and desire an arbitration as distinguished from a reference for trial under the Act, it is advisable either that the reference should include all matters in difference, so as to take it outside the scope of s. 14, or if only matters in difference in the action are referred, that the parties should avoid taking an order of the Court for the reference. Otherwise a party who desires to put an end to the litigation and have the matters in dispute determined by arbitration may find that he has consented to a reference for trial under s. 14 of the Act, and that he is taken up to the House of Lords by way of appeal from the decision of the referee or so-called " arbitrator." REFERENCES FOR ENQUIRY OR REPORT 499. Section 13. REFEEENCES FOE ENQUIRY OR REPORT: Previous legislation. Distinction between reference under s. 13 and under s. 14. Whether judicial enquiry intended. At what time the enquiry may be ordered. Mode of application for a reference before trial. Form of order of reference. "What questions may be referred. Direction to ascertain amount of damages. Continuing and future damage. Appeal from asse.ssment of damages. To whom questions may be referred. " Special referee." Time for making the report. Form of report. Generally. Reasons for findings. Report as to accounts. Report as to damages. • Notice of report. Filing report. Effect of report. Application to adopt or vary report, or remit the cause, when further considera- tion adjourned. Where cause or matter not adjourned. , Whether the Court has power to ^•ary the report. ^V^here the report disposes of the action. Master no power to adopt or vary report. Appeal from an order on motion to vary report. Power of Court to require explanations or reasons. Costs in the ca.se of a report under s. 13. Statement of special case by referee. 13. (1) Subject to rules of Court, and to any right to have particular cases tried by a jury, the Court or a judge may refer any question arising in any cause or matter (other than a criminal proceeding by the Crown) for enquiry or report to any official or special referee, (2) The report of an official or special referee may be adopted wholly or partially by the Court or a judge, and if so adopted may be enforced as a judgment or order to the same effect. Previous legislation. This section is substantially a re-enactment of s. 56 of the Judicature Act, 1873. In subs. (1) the word "or" is substituted for the word "and" in s. 56 of the Judicature Act, 1873, and it now reads "for ■enquiry or report" instead of "for enquiry and report." 500 REFERENCES UXDER ORDER OF COURT Distinction hetu-een reference under s. 13 and under s. 14. The distinction between a reference under s. 13 and a reference under s. 14 is similar to the distinction which existed before the Act between a reference under s. 56 of the Judicature Act, 1873, and a reference under s. 57 of that Act. Lopes, L.J., in Baroness Wenlock v. River Dee Co. (1887), 19 Q. B. D., at p. 160, said: "Ss, 56 and 57, however, clearly contemplate different kinds of report ; the one kind of report is a report to be made to the judge or Court requiring informa- tion ; the other is to be equivalent to the verdict of a jury." In the one case the Court may adopt or partially adopt or reject the report of the referee, as they think right, but in the other case the report has the effect of the verdict of a jury {joer Lord Esher, M.E., in Baroness Wenlock V. River Dee Co., sujjra, at p. 152). " He [the referee] is not to dispose of the action, and I do not think he is even to determine any matter in issue between the parties ; if there are facts disputed . . . the referee must determine the fact and report it ; his duty is, instead of determining issues of fact or of law, to find the materials upon which the Court is to act " {'per Bramwell, L.J., in Mellin v. Monico (1877), 3 C. P. D., at p. 149). Whether judicial enquiry intended. These being the duties of the referee under s. 56 of the Judicature Act, 1873, the question arose in Baroness Wenlock v. River Dee Co. {su2Jra) whether the referee was to hold a regular judicial enquiry by an examination of witnesses or whether that section was confined to cases where the referee was to enquire by personal observation, and the Court decided that a judicial enquiry was intended. Lord Esher, M.E., considered that the section was not so limited and Lord Justice Fry- entertained considerable doubt. Lord Esher, M.R, said : " The word * enquiry ' in my opinion signifies an enquiry in which he (the referee) is to take evidence and to hold a judicial enquiry in'the usual way in which such enquiries are held. The word ' enquiry ' is used because it is not meant to have the same result as a trial." Fry, L. J., said : " For my own part I must say I entertain more doubt whether the intention of the Legislature in that section was not merely to enable the Court to order a referee to make enquiry into the subject-matter by personal observation, and to report to the Court, and not to enable him to make an enquiry by taking evidence of other people. The Court of Chancery had, under 15 & 16 Vict. c. 80, s. 42, power to procure the report of a scientific expert, and I doubt whether the intention was to do anything more than to give a power of that kind to all the divisions of the Court, . . . but, having given expression to these doubts, I must admit that the practice to the contrary referred REFERENCES FOR ENQUIRY OR REPORT 501 to by the Master of the Rolls, viz, to treat the referee as authorised to take the evidence of witnesses, has been, if not uniform, at any rate very common." The words " enquiry or report " in s. 13 of the Arbitration Act in the place of the words " enquiry and report " in s. 56 of the Judicature Act, 1873, seem to be intended to give the Court additional power, and to divide the classes of references under the section into two heads: (1) An enquiry; and (2) a report. The term " enquiry " would appear to mean a judicial enquiry, and to be on the same footing as an enquiry following on a writ of enquiry, or an enquiry for the ascertainment of damages under Order XXXVL, rr. 57 and 57a. This enquiry must result in a report, for that is tlie only method indicated under Order XXXVI., rr. 54 and 55, by which the referee can bring his enquiry before the Court. This interpretation would agree with the opinion of Lord Esher, M.R,, in Baroness Wcnlock v. River Dee Co. {supra). The term " report " would appear to include a report not made on evidence, as where a surveyor is sent by the Court to look at a house and report, or to a chemist employed by the Court to give advice upon which the Court may form its judgment upon some scientific question, as in BacUsche Analin unci Soda Fahrilc v. Levinstein (1883), 24 Ch. D. 156. If this view is correct, it would agree with the opinion of Fry, L.J., in Baroness Wenlock v. River Dee Co. {s^vpra). The above interpretation of this section of the Arbitration Act would appear to establish consistency in procedure, which was in some doubt before that Act ; but it is desirable in all cases of reference under the section that the referee should be given directions as to whether a judicial enquiry is intended or merely a report upon the observation of the referee. In Attorney-General v. Birmingham, Tame, and Rea District Drainage Board, [1912] A. C, at p. 803, Lord Gorell, with whom Lord Atkinson agreed, said that a reference should be held in the ordinary way, with evidence and the hearing of the parties, but that the parties might waive the formalities of such procedure, and this is in accordance with the recognised practice before the Arbitration Act. With regard to the powers of the referees upon a reference under s. 13, Lord Gorell said : " It is clear that Order XXXVL, r. 55c, makes the provisions of rr. 48-55 of that Order and of r. 55b apply to such a reference." Lord Atkinson agreed with the judgment of Lord Gorell, but Lord Eobson (at p. 809) said : " Under s. 13 of the Arbitra- tion Act, 1889, which replaces various repealed portions of the Judicature Acts dealing with this subject-matter, the Court has power, subject to rules of Court and to any right to have particular cases tried by a jury, to refer any question arising in any cause or matter (other than a criminal proceeding by the Crown) for enquiry or report '502 REFERENCES UNDER ORDER OF COURT to a special referee. Under s. 14 of the same Act it may in certain cases order any question of fact to be tried before a special referee. By Order XXXVI., r. 55c, ' The provisions of rr. 48-55 of Order XXXVI. and of r. 55b shall apply where any cause or matter, or any question or issue of fact therein, is referred to an officer of the Court or to a special referee or arbitrator.' There is no doubt as to the application •of the strictly judicial procedure prescribed in these rules to s. 14 of the Arbitration Act, 1889, which deals only with questions of fact referred- for trial ; but when the rules come to be considered, it is not so clear that they apply any such procedure to a reference for enquiry or report .under s. 13, or that they affect that section at all, except where it is expressly mentioned. It is, however, unnecessary to discuss that question, and I express no opinion on it." It is unfortunate that this difference of opinion exists, and that the .Lord Chancellor did not express any opinion on the subject. In cases where an enquiry as to damages is ordered under Order XXXVI., rr. 57 and 57a, powers are given to the referee to compel the attend- ance of witnesses and the production of documents, but if rr. 48-55b of Order XXXVI. have no application, the referee, though bound to hold a judicial enquiry, has none of the powers given by these rules to compel the attendance of witnesses or to order discovery and production of documents, without which he cannot, except with the consent of the parties, properly carry out a judicial enquiry. At ichat time the enquiiy may he ordered. Under s. 56 of the Judicature Act, 1873, which was, as before stated, an extension of the power given by s. 42 of the Court of Chancery Act, 1852, to obtain the assistance of scientific persons as witnesses, any question arising in any cause or matter before the High Court of Justice, or before the Court of Appeal, might be referred for enquiry and report by the Court, or by any Divisional Court or judge before whom such cause or matter might be pending. Under s. 13 (1) of the Arbitration Act no time is mentioned for the reference of any question, but it would seem that it may be made at any time, and Cotton, L.J., even under s. 56 of the Judicature Act, 1873, said : " I see no reason to doubt that such an order may be made at any stage in the action if the question is one which must necessarily arise and must certainly be decided " ( Weed v. Ward (1889), 40 Ch. D. 555, at p. 560). Jessel, M.K., however, referring to s. 42 of the Court of Chancery Act, 1852, said: "The Judicature Act, 1873, has extended that power so as to enable the judge to make use of scientific persons as assessors at the trial" {Baltic Co. v. Simpson and Others (1876), 24 W. E. 390). S. 13 (1) of the Arbitration Act differs in this respect from s. ^^ of REFERENCES FOR ENQUIRY OR REPORT 503 the Judicature Act, 1873, and inasmuch as the " Court or a judge " may refer, and a Master can, by Order LIV., r. 12a, exercise all the jurisdiction and powers conferred on the " Court or a judge " by the Act, it would seem that the order can be made otherwise than at the trial. Whether it would be made before the trial would seem to depend to some extent upon whether the question is one which must neces- sarily arise. Illustration. In an action to set aside a contract of partnership, or to obtain damages for misrepresentation as to the profits of the business before the contract was entered into, an order was made before the trial of the action for a reference to ascertain what the profits of the business were. The Court of Appeal held that as it was not improbable that the plaintiff had precluded himself by his conduct from claiming either damages or rescission of the contract, the question of the profits of the defendant's business did not necessarily arise in this action, and they discharged the order for a reference accordingly {Weed v. Ward (1889), 40 Ch. D. 555). The above case was commented on in Hurlhatt v. Barnett, [1893] 1 Q. B. 77, but not in such a way as to question the principles upon which the Court there exercised its discretion. The powers of s. 13 do not appear to have been intended by the Legislature to be used as freely, as regards time, as the powers under s. 14, where the words " at any time " occur. Questions are sometimes referred with the consent of the parties before the trial. The case of Broder v. Saillard (1876), 2 Ch. D. 692, is an instance of such a reference, and the report contains the form of the order made. In the Baltic Co., Ltd. v. Simpson (1876), 24 W. K. 390, the Court, in a light-and-air suit in which an interlocutory injunction had been granted, refused a motion by the defendant before the trial for the appointment of a surveyor to view the premises and plans, and report thereon as to the injury to the plaintiffs' light. 3Iode of ajyplication for a reference before trial. Applications for the reference of matters to official or special referees before trial are usually made by summons, supported by an affidavit setting forth the grounds upon which the application is made. The summons is heard in chambers before a Master or district registrar (see Order LIV., r. 12a), and the application may be included in a summons for directions under Order XXX., r. 1. For form of summons, see Appendix of Forms. 504 REFERENCES UNDER ORDER OF COURT For77i of order of reference. It is very important that the order of reference should be quite clear and definite, showing, in particular, that it is a reference for enquiry or report under s. 13, and not a reference for trial under s. 14 of the Act. Brett, L.J., in Longman v. East (1878), 38 L. T. 11, at p. 15, said : "The forms of order used are wrong. The order should point out whether the reference is under s. 56 [Judicature Act, 1873] for report or under s. 57 for trial. If it is under s. 57 it should say whether all the issues, or only certain issues, are referred, and, if only certain issues, which ? " In an application to vary the report of a special referee a pre- liminary objection was taken that the reference must be considered to have been ordered under s. 57 of the Judicature Act, 1873, and not under s. 56, and that consequently the application to vary ought to have been made to a Divisional Court and not to the Court of Appeal. It was held that the objection must be disallowed, but Fry, L.J., said : " It is very unfortunate that in drawing up these orders for reference the forms given are not strictly followed. If they were, there would be no doubt under which section the order was intended to be made " {Wenloch {Baroness) v. River Dec Co. (1887), 19 Q. B. D. 155). For form of order of reference, see Appendix of Forms. Wluit questions may he referred. There is no limitation in this section as to what questions may be referred for enquiry or report, except with reference to the right to have particular cases tried by a jury. The particular cases in which there is a right to trial by jury are set out in Order XXXVL, r. 2, but a party desiring to exercise such right must proceed in the manner prescribed by r. 2 or 6 of the same order. Apparently the intention of the Legislature in the Judicature Act, 1873, was to extend the provisions of the Court of Chancery Act, 1852 (15 & 16 Vict. c. 80), s. 42, tlien only applicable to the Court of Chancery, to all the Divisions of the High Court, so as to enable them all to have the benefit of scientific assistance in matters in which they required it, and s. 13 of the Arbitration Act is, as already stated, practically a re-enactment of s. 56 of the Judicature Act, 1873. In practice the powers given by s. 56 of the Judicature Act, 1873, have been used for other purposes as well. How far the Court should exercise the powers of s. 13 of the Arbitration Act, by referring to special referees for a scientific report, has been the subject of various judicial opinions. Earl Loreburn, L.C., in Attorney -General v. Birmingliam, &c., Drainage Board, [1912] A. C, at p. 795, said: "I am not at all satisfied that such a question as that referred to Sir William liamsay ought to have been REFERENCES FOR ENQUIRY OR REPORT 505 referred, especially as the present appellants objected to that way of dealing with the case. If a trial as to the condition of the river was proper before these improvements were made, I cannot see why one of the parties should be practically compelled to leave it in the hands of an eminent scientist to determine the condition of the river after the improvements were made." The nature of the enquiry in question appears from this quotation. Lord Macnaghten in Colls v. Home and Colonial Stores, Ltd., [1904] A. C, at p. 192, said : " I have often wondered why the Court does not more frequently avail itself of the power of calling in a competent adviser to report to the Court upon the question. There are plenty of experienced surveyors accustomed to deal with large properties in London who might be trusted to make a perfectly fair and impartial report, subject, of course, to examination in Court if required. I am not in the least surprised that the plaintiti's in the present case objected to a report from a disinterested surveyor, but in my opinion the Court ought to have obtained such a report for its own guidance." This was the well-known light-and-air case. It should be observed that in Broder v. Saillard (1876), 2 Ch. D. 694, Sir George Jessel, M.R,, said that " he preferred, as the referee was assisting the Court in a quasi-judicial capacity, not to allow him to be called as a witness." In tliis case a well-known architect had been agreed upon by the parties to report upon an alleged nuisance. In another case {Kclk v. Fearson (1871), L. E. 6 Ch. 809) a sur- veyor, appointed by the Court of Appeal in a light-and-air case to report, was examined by the Courts and by counsel for each side. In Bust v. Victoria Graving Dock Co. (1887), 36 Ch. D. 113, a referee who had been appointed under s. 56 of the Judicature Act, 1873, to enquire and report upon certain damages sustained by flooding was asked, after he had made his report, to answer a certain set of inter- rogatories which were administered to him by the plaintiff and by the defendants, and he made an additional report to the judge trying the case. On an appeal from the judge he was asked to attend, and did attend, the Court after the Court had heard the arguments, and answered questions by the Court as to the grounds for his findings. In Leecli v. Schweder (1874), 43 L. J. Ch., at p. 493 (note), a hearing was adjourned in a light-and-air case in order that, if the parties could not come to an agreement, au architect or surveyor to be appointed by the Court might view the premises and make a report to tlie Court as to the effect produced by the defendant's buildings and the probable effect when the buildings should be completed. In Baroness Wenlock v. River Bee Co. (1887), 19 Q. B. D. 155, the Court of Appeal ordered judgment for £25,000 borrowed and interest, and also ordered that in addition thereto the plaintiffs sliould recover judgment for so much and so much only of certain sums advanced as 506 REFERENCES UNDER ORDER OF COURT was employed in payment of any debts or liabilities of the company properly payable by them and interest from the respective dates of such employment, and that it should be referred to a special referee to enquire as to and report the amount of the interest payable on the said sum, and the amounts of the parts of the said sum so employed as aforesaid and interest thereon. In Badische Anilin unci Soda Fahrih v. Levinstein (1883), 48 L. T. 822, an action for infringement of a patent, where the questions involved considerable technical knowledge, the judge, for his own information and to procure further evidence, gave instructions to a well- known analytical chemist to perform a certain experiment and to report upon the result, citing Longman v. East (1878), 38 L. T. 11, as an authority that he had power to adopt this course. In Wallis v. Sayers (1890), 6 T. L. K. 356, W. gave a bill of sale over certain goods as a security for a loan. The holder of the bill of sale sold the goods, and W. brought an action for damages for wrongful conversion. It being admitted that the bill of sale was void, the judge directed an enquiry as to the value of the goods and as to the damages, before an official referee, who reported that there were no damages to assess and adjourned the enquiry as to the value of the goods. On appeal from the judge, who had made a further order, the Court of Appeal said that "sending an action to a referee might be necessary in some cases," but that they objected to " splitting up a case into two trials ; first as to right, and secondly as to damages." Direction to ascertain amount of damages. Order XXXVI., r. 57, provides a procedure for ascertaining the amount of damages where the damages sought to be recovered are substantially a matter of calculation. The rule is as follows: — " In every action or proceeding in the King's Bench Division in which it shall appear to the Court or a judge that the amount of damages sought to be recovered is substantially a matter of calculation, it shall not be necessary to issue a writ of enquiry, but the Court or a judge may direct that the amount for which final judgment is to be entered shall be ascertained by an officer of the Court, and the attend- ance of witnesses and the production of documents before such officer may be compelled by subpoena, and such officer may adjourn the enquiry from time to time, and shall indorse upon the order for refer- ring the amount of damages to him the amount found by him, and shall deliver the order with such indorsement to the person entitled to the damages, and such and the like proceedings may thereupon be had as to taxation of costs, entering judgment, and otherwise, as upon the finding of a jury upon a writ of enquiry." The order given is a " direction," and this direction may be made to any one of the official referees or to the official referee in rotation. REFERENCES FOR ENQUIRY OR REPORT 507 Order XXXVI, r, 57a, provides that " the direction in r. 57 mentioned may be made to any one of the official referees, or to the official referee in rotation ; and in such case the powers given by the said rule to the officer of the Court therein mentioned shall be exercised by such official referee; and the provisions of the rules as to the distribution of business among the official referees shall apply to directions given under r. 57." This procedure does not appear to be a reference under the- Arbitration Act, and the powers and duties of the official referee are different from those in references under order of the Court. Under rr, 57 and 57a the official referee has power to compel by subpoena («) the attendance of witnesses ; (b) the production of documents ; and he may adjourn the enquiry from time to time. When he has completed the enquiry he must indorse upon the order for referring the amount of damages to him the amount found by him^ and deliver the order with such indorsement to the person entitled to the damages; whereupon such and the like proceedings may be had as to taxation of costs, entering judgment, and otherwise, as upon the finding of a jury upon a writ of enquiry. "Cases ought only to be referred to other persons to assess the damages where the enquiry involved questions of detail which it would be wasting the time of the Court to investigate" (per Bowen, L.J., Wallis v. Saijers (1890), 6 T. L. K. 356). Continuing and future, damage. Where damages are to be assessed in respect of any continuing cause of action, they must be assessed down to the time of the assess- ment (Order XXXVI., r. 58). For cases on this subject, see Role v. Cliard Union, [1894] 1 Ch. 29.3 ; Bead v. Wotton, [1893] 2 Ch. 171 ; Jones v. 8imes (1890), 43 Ch. D. 607. Fears of future damage should not be considered in assessing damages ( West Leigh Colliery Co. v. Twmicliffe, &c., Ltd., [1908] A. C. 27). A-ppeal from assessmeiit of damages. An appeal from the finding under the above rules is to the Court of Appeal {Bunlop Co. v. New Garage and Motor Co., Ltd., [1913] 2 K. B. 207). This follows the practice in cases of an application for a new trial where there has been an assessment of damages by a jury under a writ of enquiry {William Radam's Microbe Co. v. Leather, [1892] 1 K. B. 815). To whom questions may he referred. This section differs from s. 14, for, while under s. 14 the Court or a judge can only refer to a special referee if agreed on by tlie parties, in this section the Court or a judge can refer to any special referee 508 REFERENCES UNDER ORDER OF COURT it or he pleases. Thus, in Badisclie Anilin und Soda Fabrik v. Levinstein (1883), 24 Ch. D. 156, Pearson, J., having referred certain technical questions of chemistry to a professor, without consulting the parties as to his selection, said, at p. 167: "I think I was entitled, whether the parties liked it or not (and they did not assent or dissent from it), in this case to send the questions to Professor Eoscoe, which I did, not to decide any issue in the case, but to get from him that information which would enable me to decide what is before me." It would seem that the intention of the Legislature under this section was to enable the Court to obtain the assistance of experts in scientific or complicated questions, so that the Court might come to a proper conclusion in the cause or matter which it was trying, whether the enquiry was with or without evidence, and was not to permit the Court to delegate its duties to third persons of its own choosing for the trial of any part of a case. Where the Legislature has given power to the Court to refer cases or questions for trial, and so delegate its duties without the consent of the parties, it has taken care to restrict such powers not only to particular classes of cases, but to particular persons — viz. to official referees or officers of the Court — and excepting in such classes of cases and refer- ences to the officials referred to, to make the power of the Court dependent on the consent of the parties. "Special Referee." It would seem that the word " special " must have some meaning attached to it, and that whatever that meaning may be, the powers of reference of the Court under s. 13 (1) are limited to a reference to " any official or special referee." When s. 56 of the Judicature Act was passed, the Court of Chancery had, under s. 42 of the Court of Chancery Act, 1852 (15 & 16 Vict. c. 80), the following power : — " It shall be lawful for the said Court, or any judge thereof, in such way as they may think fit, to obtain the assistance of accountants, merchants, engineers, actuaries, or other scientific persons, the better to enable such Court or judge to determine any matter at issue in any cause or proceeding, and to act upon the certificate of such persons." S. 56 of the Judicature Act, 1873, provided as follows: — "Any question arising in any cause or matter (other than a criminal proceed- ing by the Crown) before the High Court of Justice, or before the Court of Appeal, may be referred by the Court or by any Divisional Court or judge before whom such cause or matter may be pending, for enquiry and report to any official or special referee." This gave all the Divisions of the Court power to refer questions arising in any cause or matter to any official or special referee. It would seem that the words " special referee " must have been REFERENCES FOR ENQUIRY OR REPORT 509* intended to refer to or comprise some such scientific persons as are referred to in s. 42 of the Court of Chancery Act, 1852, and in any case it would seem that the word " special " must refer to some special quali- fication of the person to deal with the question to be referred to him. Tione for making the report. No time appears to be mentioned in any of tlie rules of Court within which the report under s. 13 is to be made. But if there is any undue delay in the prosecution of any accounts or enquiries, or in any other proceedings under any judgment or order, the Court or a judge has power under Order XXXIIL, r. 9, to make such order as the circumstances of the case require. Under r, 4 of this Order a referee is a person before whom accounts or enquiries may be taken, though the order of reference would be made under s. 13 or 14 of the Arbitration Act {Roeliefoiicaidd v.. Boustead, [1897] 1 Ch. 196). Form of report, Genercdly. The report should follow the directions given in the order of' reference. It should set out such facts or figures as will enable the Court to adopt the report either wholly or partially. "If he can state any facts upon his report, or any figures that will enable the Court to^ revise it and adopt a different conclusion — to adopt the report either wholly or partially — it may be done" {per Bramwell, L.J., in Dunkirk Colliery Co. v. Lever (1878), 9 Ch. D., at p. 28). The report should not set out the evidence upon which each issue of fact is found {per Brett, L.J., in Longman v. East (1877), 3 C. P. D., at p. 155). It must be a finding of the materials upon which the Court is to act, and must not be a determination of issues of fact or law. For example, if the report is based upon the observation of the referee it should state what he has found upon such observation, or if the referee has to conduct a judicial enquiry the report should state the facts under each head of the questions referred to him. In Mellin v. Monico (1877), 3 C. P. D. 142, at p. 149, where certain questions had been referred under s. 56 of the Judicature Act, 1873, in an action for breach of an agreement to compensate the plaintiff' for injury done by rebuilding the defendant's premises, Bramwell, L.J., at p. 149, said : " He is not to dispose of the action, and I do not think he is even to determine any matter in issue between the parties — for instance, if one of the parties asserts that a building is 20 feet high and the other that it is 25 feet, the referee in such a case as that must determine the fact and report it ; his duty is, instead of determining issues of fact or law, to find the materials upon which the Court is 510 REFERENCES UNDER ORDER OF COURT to act." This was approved in Badisclie Anilin und Soda Fahrik v. Levinstein (1883), 24 Ch. D. 156. In Badische Anilin und Soda Fcibrik v. Levinstein (1883), 48 L. T, 822, Pearson, J., who had referred to a chemist certain questions as to a patent chemical process, said, at p. 825, " which I did, not to decide any issue in the case, but to get from him that information which would •enable me to decide what was before me." In Mayor of Birminc/ham v. Allen (1877), AV. IST. 190, the Master of the Eolls said " that it was the duty of the official referees, whenever, as in the present case, the question referred to them was one upon which the Court required a great deal of information, to report the facts of the cases referred to them." In this case the Court had directed an official referee to enquire what damage (if any) the defendants had sustained by reason of an undertaking given not to work within a certain distance of the plaintiffs' gasworks. Reasons for findings. The referee is not bound to give reasons for his findings, and it was said by Bramwell, L.J., in Dunkirk" Colliery Co. v. Lever (1878), 9 Ch. D., at p. 28, that he should not do so. " I should like further to say, for the assistance of the referee, that I think he should pronounce his decision and not give his reasons. ... I think it would be a dangerous rule to lay down that a man should give minute reasons for the con- clusions at which he arrives." But in Mayor of Birmingham v. Allen (siqjra) the Master of the Eolls said : " The Court could not form an opinion on the question in dispute unless it knew the mode in which the amount was calculated, or the facts on which the calculation was based " ; and as the Court has power under Order XXXVI., r. 52, to require any explanation or reasons from the referee, it would seem that the referee should supply the Court with all explanations and reasons which he thinks necessary, without waiting for a special request that he should do so. There are many cases in which, if the referee did not give explana- tions or reasons for his decision, the report might be of very little assistance to the Court, as, for instance, in the case of some scientific investigation in which the Court, having sought the assistance of an expert, would naturally desire to ascertain the process by which he arrived at his findings. In the absence of proper explanations or reasons the Court is often obliged to request the attendance of the referee at the trial, so that he may answer such questions as he may be asked by the Court and the parties to the suit (see ante, p. 505). A report under this section is quite different from a report under s. 14 of the Act, where the referee " has to put his report into the same REFERENCES FOR ENQUIRY OR REPORT 511 state as a jury had to do when they found a special verdict " {loer Brett, L.J., in Miller v. Pilling (1882), 9 Q. B. D., at p. 738). Report as to accounts. In the case of accounts being ordered to be taken by a referee, the referee should set out what items he has allowed and what items he has disallowed, and state the result. He should not state the result only, as, for instance, by stating " 1 have found so much to be due from the defendant to the plaintiff" {per Kay, J., in Burrard v. Calisher (1882), 51 L. J. Ch. 223). A referee is not bound to take the accounts in the same way as a Chancery Master does, but he may adopt that method if he finds it convenient and likely to advance the ends of justice (jjer Chitty, J., in Taijlor, In re (1890), 44 Ch. D. 128). Illustration. Mrs. T. carried on the business of her late husband and then died. After her death the business was continued by her son, and advances were made to him from time to time for this purpose by the trustees of her will. The accounts of Mrs. T.'s estate were investigated by the chief clerk for two years, but, owing to the absence of material to form the basis of the accounts, no progress was made. The accounts were then referred to an official referee and his report arrived at a conclusion, which was admittedly as near to justice as was possible, but was not supported by complete vouchers. Held that the Court should accept and act upon this report, and would not refer the matter again for want of strict vouchers {Taylor, In re; Turpin v. Pain (1890), 44 Ch. D. 128). A stricter view was taken of the duties of the referee in Burrard v. Calisher {siqjra), but the decision in Taylor, In re, would seem correctly to describe the duties of the referee in a reference to him of matters of account. He does not, in the strict sense of the term, " take accounts," nor is he, it would seem, bound by the same rules as a Master would be under a direction to " take accounts " (Order XXXIII., r. 2). In Bochefoiuxmld v. Boustead, [1897] 1 Ch. 196, complicated accounts were sent to an official referee, Lindley, L. J., saying, at p. 213 : " This is eminently a case for an official referee, and sending it to him will cause a great saving of time." Report as to damages. In a report upon an enquiry as to damages the referee should set out his findings of fact as to the causes of damage under each head (if several heads are referred to him), together with his finding under each head of the resulting damage from the respective causes, with the grounds for his decisions, so that the Court may come to a conclusion, not only as to whether the referee has assessed the damages on the 512 EEFERENCES UNDER ORDER OF COURT right pi'inciple, but also as to whether he has assessed them at the right figure (see the observations of Lopes, L.J., and the nature of the questions referred back to the referee, in the case of Eust v. Vidwia Graving Dock Co. (1887), 36 Ch. D. 113). Illustration. On a reference as to damages the official referee reported damage to the extent of £2042, without stating the facts or principle on which his report was based. The Court sent it back for certification of items and statement of reasons, and, when these were furnished, reduced the amount to £1549. It was then said that "It was the duty of the official referees, whenever the question referred to them was one upon which the Court required a great deal of information, to report the facts of the case" {Birmmgham {Mayor) v. Allen (1877), W. N. 190). It must be borne in mind that under s. 13 the Court has power to adopt or not to adopt, or partially to adopt, the report, and it follows that the Court may reject the report altogether if it thinks the damages excessive, though assessed on a right principle. The Court cannot, however, assess the damages on evidence not before it {Dunkirk Colliery Co. v. Lever (1878), 9 Ch. D. 20), nor can it direct the referee as to the amount at which he ought to assess them. The Court may, however, express its views, provided it does not in that way interfere with the referee's judicial position. In Dunkirk Colliery Co. v. Lever {supra), where the report was remitted to the referee to rehear the matter and report accordingly, Bramwell, L. J., said : " He [the referee] is not to understand that he is told to reverse his decision and to adopt that of the Master of the Eolls. The thing is remitted to him for his reconsideration, with an expression of opinion by the majority of those who have heard the case that he was wrong in his conclusion, and no doubt he will consider it as impartially as it is possible for a man to do who has expressed an opinion upon the matter before, and will come to a correct conclusion." Notice of report. Order XXXVI., r. 53, provides that "Whenever a report shall be made by a referee, he shall on the same day cause notice thereof to be given to all the parties to the trial or the reference before him by prepaid post letter directed to the address for service of each party, who shall in due course of post be deemed to have notice of such report." Filing report. The report of the referee should be addressed to the Court or judge by whom the order of reference was made, and the report should be filed at the filing office. KEFERENCES FOR ENQUIRY OR REPORT 513 Effect of report. A report upon a reference under s. 13 differs very much in its effect from a report under s. 14 of tlie Act. For while a report under s. 14 is "equivalent to the verdict of a jury " (see^^os^, p. 547), a report under s. 13 may be dealt with by the Court in any of the following ways : — {a) It may be wholly or partially adopted, and in so far as it is so adopted it may be enforced as a judgment or order to the same effect (s. 13 (2). See Wenloch (Baroness) v. Biver Dee Co. (1887), 19 Q. B. D. 208). {h) The Court may differ from the referee as to any finding of fact, where the materials upon which the referee has found are set out in the report (see Longman v. East (1878), 3 C. P. D. 142, and Order XXXVI., rr. 52 and 52a). (c) The Court may remit the report for further consideration to the same or any other referee (Order XXXVI., rr. 52 and 52a ; Wallis v. Sayers (1890), 6 T. L. E. 356). As to whether the Court has power to vary the report, see post, pp. 514, 515. Application to adopt or vary report, or remit the cause, when further- consideration adjourned. Where a case is adjourned for a matter to be reported on by an official or special referee, and a report has been duly made accordingly, Order XXXVL, r. 54, as amended by r. 55a, provides as follows : — " Where, under s. 13 of the Arbitration Act, 1889, the report of the referee has been made in a cause or matter, the further consideration of which has been adjourned, it shall be lawful for any party, on the hearing of such further consideration, without notice of motion or summons, to apply to the Court or judge to adopt the report, or without leave of the Court or a judge to give not less than four days' notice of motion, to come on with the further consideration, to vary the report, or to remit the cause or matter, or any part thereof, for rehearing or further consideration to the same or any other referee." This rule is independent of the provisions of Order LIL, r. 4, and the notice of motion given under the former rule need not state the grounds upon wliich it is sought to vary the report, though it is convenient that it should do so. Illustration. A question of dama<^es was referred to an official referee, who assessed them at £30 (the defendant having previously offered £5). The defendant moved that the report might be varied so as to find that the plaintiff was not entitled to any damages, but did not state in 33 514 REFERENCES UNDER ORDER OF COURT the notice of motion any ground for varying the report. Held that the notice of motion was sufficient. Kekewich, J., said : " It was, however, convenient that the notice of motion should apprise the respondent of the ground on which it was sought to vary the report" (Scheidges v. Williams, [1893] W. N. 158). If no notice of motion is given to vary the report or remit the cause, the Court will not, on an application that the report be adopted, go behind the report or consider the evidence upon v^^hich it is based for the purpose of varying it or remitting the cause. lllustraiion. In an action on a will judgment had been given subject to certain accounts and enquiries being taken. The official referee made his report and the defendant asked the Court to adopt it. The plaintiff, who had given no notice of motion to vary the report, asked the Court to go behind it and vary it by looking into the evidence on which it was based. Held that this could not be done {Re Fiflon's Estate ; Hardy v. Fitton (1893), 42 W. R. 281. See also Walker v. Bunkell (1883), 22 Ch. D. 722; 52 L. J. Ch. 596; Mansfield Union v. Wright (1882), 9 Q. B. D., at p. 686). Where cause or matter not adjouriud. Where a report has been made in a cause or matter, the considera- tion of which has not been adjourned, Order XXXVI., r. 55, provides as follows : — " Where, under s. 13 of the Arbitration Act, 1889, the report of the referee has been made in a cause or matter, the further consideration of which has not been adjourned, it shall be lawful for any party, by an eight days' notice of motion, to apply to the Court to adopt and carry into effect the report of the referee, or to vary the report, or to remit the cause or matter or any part thereof for rehearing or further consideration to the same or any other referee." For form of notice of motion, see Appendix of Forms. Wliether the Court has 'pov:er to vary the report. The powers of the Court are limited by s. 13 (2) of the Arbitration Act to adopting the report wholly or partially, and it follows that the Court may wholly reject the report {fer Lord Esher, M.R., in Baroness Wenlock v. River Dee Co. (1887), 19 Q. B. D., at p. 158, and per Bagallay, L.J., in Dunkirk Colliery Co. v. Lever (1878), 9 Ch. D., at p. 26). The Court, however, has no power under this subsection to alter or vary the report, and in Dunkirk Colliery Co. v. Lever {supra) it was held that the Court had no such power under s. 56 of the Judicature Act, 1873. In this case, at p. 23, James, L.J,, said : " I am of opinion that REFERENCES FOR ENQUIRY OR REPORT 515 the Court has no jurisdiction to alter or vary the report of the referee. . . . The judge has power to adopt wholly or partially the report ; but he has not adopted it either wholly or partially, but has entirely disregarded it, and has taken upon himself to assess the damages, not upon the report either wholly or partially, but upon the shorthand notes of what had taken place before the official referee," And at p. 26 Bagallay, L. J., said : " The view that I take of the case is that it was not open to him [the Master of the Eolls] to amend or vary the report made by the referee in the same way as he might a certificate from his own chambers. He had power to adopt it, wholly or in part, but not to amend or vary it. If he thouglit that the referee had proceeded upon any wrong principle in assessing the damages, or had formed any wrong opinion upon the facts brought under his con- sideration, the proper course then was for him to remit the matter to the referee for further investigation ; but at the same time it was open to him to utterly and entirely disregard what had been done by the referee, and then his duty was to have proceeded and determined the action upon the evidence that might be properly before him." It should be observed that the above case was decided, having regard to the provisions of Order XXXVI., r. 52 (at that time Order XXXVL, r. 34), which provides that " the Court may decide the question referred to any referee on the evidence taken before him either with or without additional evidence as the Court may direct.' This part of the rule, however, would appear to confer no power on the Court beyond that contained in s. 13 (2) of the Arbitration Act, viz. of adopting the report wholly or partially. In so far as Order XXXVI., rr. 54 and 55, provide for varying the report of a referee under s. 13 of the Act, it would seem, according to the decision in Dunkirk Colliery Co. v. Lever {supra), that variation cannot mean more than partial adoption or partial rejection. The cases of Burrard v. Calisher (1882), 19 Ch. D. 644, and Walker v. Bunkell (1883), 22 Ch. D. 722, merely relate to procedure, though Chitty, J., in Burrard v. Calisher, refers to a notice of motion to vary as though there was a right then existing to vary the report, notwith- standing the decision in Dunkirk Colliery Co. v. Lever {swpra). It would seem that rr. 54 and 55, in so far as they refer to varying the report, must be ultra vires if the statute under which they were made confers no such right. The decision in Dunkirk Colliery Co. v, Jjcver {supra) established that under s. 56 of the Judicature Act, 1873, which was in precisely similar terms in tliis respect as s. 13 (2) of the Arbitration Act, the Court had no power to vary. Where the report disposes of the action. Where the report of a referee under s. 13 disposes of the action ■without directing anything to be done, e.g. where it disposes of the 516 REFERENCES UNDER ORDER OF COURT question of liability, it would seem that the proper course is to move- for judgment under Order XL., r. 7, which provides that " where issue& have been ordered to be tried, or issues or questions of fact to be determined in any manner, the plaintiff may set down a motion for judgment as soon as such issues or questions have been determined. If he does not set down such a motion, and give notice tliereof to the other parties witliin ten days after his right to do so has arisen, then after the expiration of such ten days any defendant may set down a motion for judgment and give notice thereof to the other parties." So- that in these circumstances this rule seemingly applies in place of Order XXXVI., r. 55. Illustration. An action for an injunction to restrain an alleged nuisance by noise was referred to an official referee under the Arbitration Act, 1889, s. 13, for enquiry and report. By his report the referee found that no nuisance existed, and the defendant moved, under Order XL., r. 7, to have the action dismissed with costs. Held that this was a proper motion {Larkin v. Lloyd (1891), 64 L. T. 507). Stirling, J., thought that notice to a co-defendant could not properly be dispensed with under the above rule, and directed a motion to stand over in order that such notice might be given {Boaler v. Brodhurst, [1892] W. K 121). Master no power to adojit or vary report. Notwithstanding Order LIV., r. 12a, under which a Master may exercise all the jurisdiction conferred upon the Court or a judge by the Arbitration Act, a Master has no power to adopt the report of a referee under this subsection, because the jurisdiction of a Master can be exer- cised only in chambers, whereas by Order XXXYL, rr. 54 and 55, any application to adopt or vary the report of a referee must be made in Court (see Coole v. Newcastle, &c., Co. (1882), 10 Q. B. D. 332 ; 52 L. J. Q. B. 337). In the King's Bench Division the application is made to a Divisional Court, and in the Chancery Division to the judge to whom the action is assigned. Api^eal from order on motion to vary re'port. For the purpose of an appeal, an order on a motion to vary a referee's report is interlocutory {Dunkirh Colliery Co. v. Lever (1878), 9 Ch. D. 20). An appeal is to the Court of Appeal. Poicer of Court to require explanations or reasons. The Court has power to require any explanation or reasons from the referee (Order XXXVL, r. 52). REFERENCES FOR ENQUIRY OR REPORT 517 Illustrations. 1. An architect was appointed by the Court, with the consent of both parties, as a special referee to enquire into and report on leakage that drained from the defendant's stables into the plaintiff's house, and on the amount of noise caused by the horses kept in the stables, and he was by the order to attend at the sitting of the Court. He made his report and attended the Court on a certain day, and he then answered further questions arising from his report (Broder v. Saillard (1876), 2 Ch. D. 692). 2. A special referee had made a report as to damages caused by a flood. He then answered a set of interrogatories administered by the parties and made an additional report to the judge. On appeal at the conclusion of the arguments he attended in Court and gave explana- tions asked for by that Court {Rust v. Victoria Graving Dock Co. (1887), 36 Ch. D. 113, at pp. 117, 129). Whether such explanations will be asked for by the Court is a matter in the discretion of the Court, and apparently this course will only be adopted if the Court, looking at the evidence, is of opinion that the referee may have decided upon some ground that is wrong in law. Cotton, L.J., in Miller v. Filling (1882), 9 Q.B.D. 736, at p. 740, said : " The official referee can be asked his reasons, but in order to set aside the report it must be shown that he decided on a wrong view of the law." If the referee is asked for any explanation or reasons by the Court, he should not be regarded as a witness, but as acting in a quasi-judicial capacity and as assisting the Court. Sir George Jessel, M.R., in Broder V. Saillard (1876), 24 W. E. 456, said : " He preferred, as the referee was assisting the Court in a quasi-judicial capacity, not to allow him to be called as a witness. He therefore directed the referee to write the points at the foot of his report, and to sign the addition thus made to his report," Costs in the case of a report under s. 13. It would appear that a referee to whom " any question arising in any cause or matter" has been referred under s. 13(1) for enquiry or report has no power to deal with the question of costs, unless express power to do so is given to him by the terms of the order of reference. In the absence of such an express power the costs of the reference would seem to be in the power and discretion of the Court, as part of the costs of the cause or matter. Order XXXVI., r. 55b, gives power to an official referee to deal with costs as the Court or a judge might have done where the whole of any cause or matter has been referred to him, and by r. 55c of the same order this is extended to officers of the Court, special referees, and arbitrators, and to cases where any question or issue of fact in any cause or matter is referred, but it is submitted that r. 55r,, as sup- 518 REFERENCES UNDER ORDER OF COURT plemented by r. 55c, is only applicable to references for trial under s. 14 of the Act, and does not apply, as might be supposed from the wording of r, 55c, to questions referred under s. 13 for enquiry or report. It does not appear to be contemplated by these rules that referees on a reference for enquiry or report should be at liberty to deal with questions of costs ; their duty, under s. 13 of the Act, is not to decide the case, but merely to report to the Court upon the questions referred to them in such a way that the Court may come to a decision upon the whole matter. In Carr Bros. v. Dougherty (1898), 67 L, J. Q. B. 371, it was decided that where an action is referred under s. 14, and the referee makes an award which is silent as to costs, costs follow the event; and Philli- more, J., said that he had come to the conclusion " that s. 15, subs. (2), of the Arbitration Act, 1889, makes the report or award of an ofificial or official referee or arbitrator equivalent, with regard to costs, to the verdict of a jury." This decision, if and in so far as it may be considered to include a report under s. 13, is obiter, and if the report of a referee under s. 13 were equivalent to the verdict of a jury, costs would follow the event of the report, unless otherwise decided for good cause by the Court, but it is submitted that a report under s. 13 is not equivalent to the verdict of a jury, the reference not being a trial {Re Brook, Sykes v. Brook (1881), 29 W. E. 821). " The word ' enquiry ' is used, because it is not meant to have the same result as a trial " (jjer Esher, M.E., in Wcnlock {Baroness) v. River Dee Co. (1888), 19 Q. B. D., at p. 158). Statement of special ease hy referee. By s. 19 of the Arbitration Act, " any referee, arbitrator, or umpire may at any stage of the proceedings under a reference, and shall, if so directed by the Court or a judge, state in the form of a special case for the opinion of the Court any question of law arising in the course of the reference." This section would appear to apply to referees acting under s. 13 of the Act, but having regard to the fact that the duties of referees under that section are limited to assisting the Court, so that the Court, and not the referee, may decide the issues in the action, there would be few cases in which the Court would direct a referee to state a special case on questions of law for the opinion of the Court during the proceedings before the referee. The referee has a discretion, under Order XXXVL, r. 52, to submit any question arising in the reference to him for the decision of the Court or to state any facts specially. An order was made in the case of Bristol Steam Navigation Co. v. Indemnity Mutual Marine Insuranee Co. (1887), 57 L. T. 101, under this rule. No question was raised as to the jurisdiction to make the order, and it does not appear whether REFERENCES FOR TRIAL 51& the reference was under s. 56 or s. 57 of the Judicature Act, 1873, but the form of the special case indicates the kind and form of report which may be made by a referee. Section 14. KEFERENCES EOR TRIAL. Previous legislation. Jurisdiction to refer. " Prolonged examination of documents." " Scientific investigation." " Local investigation." Question consisting " wholly or in part of matters of account." Discretion of Court. "Special referee or arbitrator respectively agreed on by the parties." Summons to refer. Appeal from order of reference. Reference to Master under Order XIV. References by order of Court outside the Arbitration Act. Parties to consent must be parties on the record. Authority of solicitors to refer. Authority of counsel to refer. Express limitation of authority of counsel or solicitor. Submission by order of Court. Submission by judge's or Master's order. Order of Nisi Prius, how drawn up. Indictment. Reference on " the usual terms." Amendment of submission. Adding interested third persons as parties. Pleading award to further maintenance of action. Submission by order of County Court. Submission by order of Quarter Sessions. Costs. Taxing costs out of sessions. Setting aside judgment pursuant to award. Effect of failure of the reference. Reference failing, action proceeds. When juror witlidrawn. When verdict taken, new trial on failure. Infant plaintiff avoiding award. Award set aside. When caixse referred generally. Practice in equity. Abortive reference by Quarter Sessions. 14. In any cause or matter (other than a criminal proceeding by the Crown)— (-^0 If all the parties interested who are not under disability consent : or, (h) If the course or matter requires any prolonged examination of docu- 520 REFERENCES UNDER ORDER OF COURT ments or any scientific or local investigation which cannot in the opinion of the Court or a judge conveniently he made before a jiiry or conducted by the Court through its other ordinary officers : or, (c) If the question in dispute consists wholly or in part of matters of account ; the Court or a judge may at any time order the whole course or matter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the Court. Previous legislation. Some general observations are necessary upon this section, because it is one of the most important in the Arbitration Act. The Act being not merely a consolidating statute, but also an amending one, it is pro- posed to refer to some of the provisions of the Common Law Procedure Act, 1854, and the Judicature Acts, 1873 and 1884, because the present Act was passed with full knowledge of these provisions {Hurlhatt v. Barnett & Co., [1893] 1 Q. B., at p. 79). By s. 3 of the Common Law Procedure Act, 1854, the Court had power to order a reference of the whole cause or matter, when the matter in dispute consisted wholly or in part of matters of "mere account" (see Glow v. Harper (1878), 3 Ex. D. 198) which could not -conveniently be tried in the ordinary way. By s. 57 of the Judicature Act, 1873, in any cause or matter (other than a criminal proceeding by the Crown) before the High Court in which all parties interested who were under no disability consented thereto, and also without such consent in any such cause or matter requiring any prolonged examination of documents or accounts, or any scientific or local investigation which could not, in the opinion of the Court or a judge, conveniently be made before a jury, or conducted by the Court through its other ordinary olticers, the Court or a judge might at any time order any question or issue of fact arising therein to be tried either before an oflticial referee or before a special referee to be agreed on between the parties (see Ward v. Pilley (1880), 5 Q. B. D. 427; Knight v. Coales (1887), 19 Q. B. D. 296; Dawes v. Fountain (1887), 3 T. L. E. 347 ; Longman v. East (1877), 3 C. P. D. 142). And by s. 9 of the Judicature Act, 1884, in any cause or matter (other than a criminal proceeding by the Crown) in which all parties who were under no disability consented thereto, the Court or a judge might at any time order the whole cause or matter to be tried before an official referee, who had power to direct in what manner the judgment of the Court should be entered, and to exercise the same discretion as to costs as the Court or judge could have exercised. By the repeal of s. 3 of the Common Law Procedure Act, 1854, the Ai'bitration Act has abolished compulsory references to arbitration. it was intended by the Common Law Procedure Act that the old law REFERENCES FOR TRIAL 521 as to voluntary submissions should be applied to compulsory arbitra- tions, and there was no difference between them. The arbitrator made an award as in any other arbitration, and there was no other or greater power in the Court to set aside awards made under compulsory arbitra- tions than awards made under voluntary submissions to arbitration {Hogge v. Burgess (1858), 27 L. J. Ex. 318). The referee under the Arbitration Act is an official of the Court and forms a part of the judicial machinery for disposing of actions and matters arising therein by the Court. He directs judgment to be entered or issues a certificate, as the case may be, and is in no sense an arbitrator. [The duties of lay referees, who are deemed to be officers of the Court, and the power of the Court over them, are referred to in the commentary on clause (/) of the First Schedule, ante, p. 428), it being thought desirable to inform such referees (who are not acquainted, as the official referees and Masters are, with these subjects) of the differ- ence between their position as referees under an order of the Court and their position as arbitrators under a submission.] The Arbitration Act greatly extends the powers of reference given by the sections above referred to, and now repealed. Under s. 14, not only can any question or issue of fact arising in a cause or matter be referred, but the whole cause or matter may be referred, although questions of law as well as fact may be involved. Under s. 14 (c) the Court has power to refer " if the question in dispute consists wholly or in part of matters of account," the power not being limited to matters •of "mere account," as in the Common Law Procedure Act, 1854, s. 3. In Hurlhatt v. Barnett & Co., [1893] 1 Q. B., at p. 79, Lord Esher, M.K., said : " The true rule of interpretation, where larger words are used in an amending Act than were used in the principal Act, is that such larger words were used intentionally, and must have a meaning given to them accordingly. . . . The only meaning I can attach to s. 14 (c) of the Arbitration Act is that, if the Court can see that part of the dispute between the parties is matters of account, that gives juris- diction to refer the whole case. If there is a dispute as to what the contract between the parties is, and also a dispute as to the account between them, should it ever come to a matter of account, then part of the question in dispute is matter of account, and the jurisdiction arises." Jurisdiction to refer. The jurisdiction of the Court arises under s. 14 (a) by the consent of the parties, and under s. 14 (h) and (c) upon tlie determination of the question whether one or more of the circumstances mentioned in (IS) or (c) exist or exists. In Ormerod v. Todmorden Mill Co. (1882), 8 Q. B. D. G64, at p. 670, Lord Coleridge, C.J., said : " The statute lays down that the cause or 522 REFERENCES UNDER ORDER OF COURT matter . . . must be one which requires, in fact, a prolonged examina- tion of documents or accounts, or a scientific or local investigation, and the existence of the necessity for such examination or investigation in fact is a condition precedent." It should also be observed that whereas the exercise of the discretion under s. 13 is by s. 13 (1) made "subject to rules of Court and to any right to have particular cases tried by a jury," there is no such limitation in s. 14. The jurisdiction of the Court is, however, limited by Order XXXVI., r, 7a, which provides that " In every cause or matter, unless under the provisions of r. 6 of this order a trial with a jury is ordered, or under r. 2 of this order either party has signified a desire to have a trial with a jury, the mode of trial shall be by a judge without a jury ; provided that in any such case the Court or a judge may at any time order any cause, matter, or issue to be tried by a judge with a jury, or by a judge sitting with assessors, or by an official referee or special referee with or without assessors." This rule " applies to all actions in the High Court except those in which either party has a right to a trial by jury, and has insisted on such right in the mode prescribed by r. 2 or 6 " {jper Lindley, L.J., in Jenkins v. Bushhj, [1891] 1 Ch., at p. 490). The cases in which either party has a right to trial by jury are actions of slander, libel, false imprisonment, malicious prosecution^ seduction and breach of promise of marriage (Order XXXVI., r. 2). Under Order XXXVI., r. 7a, the Court or a judge is given the additional power of ordering the trial before " an official referee or special referee with or without assessors." It will be observed that the word " arbitrator " is omitted from this rule as well as the words " officer of the Court," so that when an order is made for trial before an arbitrator (if any distinction can be drawn between an arbitrator and a special referee), or before an ofiicer of the Court (other than an official referee)^ the Court has no power to order a trial with assessors. The Court cannot in any case order a reference for trial before a special referee or arbitrator not agreed on by the parties. The qualify- ing words " agreed on by the parties " in s. 14 of the Act must be read into Order XXXVI., r. 7a, otherwise the rule in that respect would b& ultra vires, because a reading of the rule without such words would be an extension of the power given by the statute in a manner which is not merely a matter of procedure (see London & Lancashire Fire Insur- ance Co. V. British American Association (1885), 54 L. J. Q. B. 302). " If Order XXXVI., r. 7a, ought to be construed as giving power to send a case to a special referee without the consent of the parties, where, I ask, are we to find the powers under which he is to act " {'per Grove, J.^ ihicl, at p. 388). It would seem, also, that the Court has no power under Order XXXVI., r. 7a, to order any cause or matter to be tried by an official REFERENCES FOR TRIAL 523. or special referee, except a cause or matter of the kind referred to in s. 14 (b) or (c) of the Arbitration Act, or with the consent of the parties under s. 14 (a) (see London & Lancashire Fire Insurance Co. v. British American Association, supra). "Prolonged examination of documents." Whether a cause does or does not require a " prolonged examination, of documents " within the meaning of the section is largely a question of fact in each particular case, but something in the nature of a technical perusal of title-deeds or other documents appears to be indicated, and it has been held that the fact that a lengthy correspondence or lengthy depositions have to be read does not, of itself, bring the enquiry within the scope of the section. Illustrations. 1. In an action for wrongful distress the landlord brought a cross- claim for rent and repairs. The correspondence which was relevant exceeded one hundred and forty pages. It was on this ground urged that the matter was one involving a prolonged examination of documents. Held that this was not a good contention, Lush, J., saying : " Reading a lot of letters is not a prolonged examination of documents ; and there is no more reason for a local investigation in these actions than in any action for non-repair" {Green's Tr. v. Barrett, Barrett v. Rosenthal (1875),. W. N. 204). 2. On a claim for a constructive total loss the main question at issue was whether a twist in the vessel was congenital or had been caused by the perils of the sea. Evidence had been taken upon commission, and the printed transcript of this extended to about three hundred pages, while six expert witnesses were to be called. Held that these facts did not make the case one which involved the " prolonged examination of documents" within the contemplation of the section (Hamilton v. Merchants' Marine Insurance Co. (1889), 58 L. J, Q. B. 544). The " prolonged examination of documents must be a prolonged examination of such documents as it is necessary to enquire into and decide upon in order to enable the judge to leave the questions of fact to the jury. If the examination of the documents or a construction of the documents is not at all required in order to enable the trial of the issues of fact but only to determine a question of legal right, I doubt much whether the examination of such documents is within the meaning of this section " (per Brett, L.J., in Ormerod v. Todmorden Mill Go. (1882), 51 L. J. Q. B. 348, at p. 354, a case under s. 57 of the Judicature Act, 1873). " Scientific investigation." What causes require " scientific investigation " is, again, largely a question of fact in each case. An action for an infringement of a patent 524 REFERENCES UNDER ORDER OF COURT may be taken as an example of the class of cases which would be held to fall witliin the section upon this ground. Illustration. During the opening of a case for the infringement of a patent the judge made an order referring the issues of fact to an official referee, and the Court of Appeal held that it was impossible to say that an action for an infringement of a patent did not require a scientific investigation. The judge had decided that it did, and the Court of Appeal would not interfere with his discretion (Saxby v. Gloucester Wagon Co. (1880), W. N. 28). In a case of ancient lights the Court referred the whole cause to an official referee, with a direction to state a special case under s. 19 of the Arbitration Act on any question of law which might arise {Parks v. Eames (1890), W. N. 143). On the other hand, it has been held in one case that the question of the genuineness of works of art, although expert witnesses were to be called, and in another case, that the question of the quantity of water abstracted from a river and its condition of heat on its return, though two or three scientific witnesses were to be called, did not require scientific investigation within the meaning of s. 57 of the Judicature Act, 1873. Illustrations. 1. In an action by an executrix to set aside for fraud the sale of 130 pictures to her testator, the trial involved the examination of numerous experts, but the Court held that, apart from the right of any man whose character was at stake to have a public trial, the case did not involve a scientific or prolonged investigation within the purview of s. 57 of the Judicature Act, 1873 {Leigh v. Brooks (1877), 5 Ch. D. 592). 2. In Ormerod v. Todmorden Mill Co. (1882), 8 Q. B. D. 664 {su]yra), p. 523, Holker, L.J., at pp. 683, 684, said : " As to scientific investiga- tion : if scientific witnesses were examined, it would be to ascertain whether a substantial quantity of water had been abstracted from the stream, and how much the stream had been unduly heated so as to interfere prejudicially with condensing operations. ... Is it not perfectly obvious that the science, such as it was, would be very simple, and the evidence very easily given? If it was a case within the section, it came within it very slightly indeed, and no great time could have been occupied in going into the investigations which were necessary." ''Local investigation." It is a question of fact in each particular case whether "local investigation" within the meaning of the section is required. In Ormerod v. Todmorden Mill Co. {supra) the necessity of local investiga- tion was raised, and Holker, L.J., said : " There might, perhaps, be wanted REFERENCES FOR TRIAL 525- an investigation or inspection of the features of the county, of the river, of the mills, of the goits and sluices, and so on," but he also said that " the jury had had a view of the spot, and knew all about it." In an action for an injunction to restrain interference with the plaintiff's ancient lights, it apjDcared from the evidence, on the case coming on for hearing, that the matter was one suitable for local investigation, and counsel for both sides being willing, it was referred to an othcial referee, with an expression of opinion that it was a case for local investigation {Bannister v. M'Bonald (1890), W. N. 50). Question consisting " wholly or in part of matters of account." The Court has jurisdiction under s. 14 (c) to refer the whole case though there are other matters which do not involve matters of account. But there will still arise the question of the exercise of the discretion of the Court. " A very good rule is laid down in Knight v. Coales (1887), 19 Q. B. D., at p. 300, that this discretion should be exercised with extreme caution, regard being had to the relative importance of that which is matter of account, as compared with that which is not. The matter of account giving the jurisdiction should not be incidental or subordinate to the other questions in dispute, but should be a sub- stantial element to be decided in the action, and I take that really to mean that the Court ought to see that the dispute as to matters of account is a substantial part of the dispute between the parties. I do- not go to the length of saying that if there is a dispute as to what the contract is, and in one view of the contract no question of account would arise, the Court ought not in the exercise of their discretion to- refer the case ; but I think the Court before doing so ought to see that the dispute is substantial, and not unlikely to be a matter of account "' {per Lord Esher, M.li., in Hurlhatt v. Barnett & Co., [1893] 1 Q. B. 77, at p. 80. See also Case v. Willis (1892), 8 T. L. R. 610). The following cases which were decided before the Arbitration Act, either under s. 3 of the Common Law Procedure Act, or under s. 57 of the Judicature Act, 1873, may be useful as illustrations of the way in which the Court has exercised its discretion in referring disputes consist- ing wholly or in part of matters of account (see -dlao post, pp. 527, 528). Illustrations. 1. A claim was made in an administration suit by a dealer in works of art for £19,000 for goods sold and delivered to the testator. There were twenty-four items in the claim, and the defence involved a question of a guarantee of the genuineness of the goods. The whole matter was referred to an official referee under s. 57 of the Judicature Act, 1873, as a " matter of account " {Ite Leigh ; RowcUffe v. Leigh (1876), 3 Ch. D. 292). 2. In an action for moiiej' had and received, the main defence was that a partnership or co-adventure existed between the parties. The judge referred "the issues in the action, including all the accounts," to -526 REFERENCES XTNDER ORDER OF COURT an official referee. Held that, although a question of liability could not be referred under s. 3 of the Common Law Procedure Act, 1S54, it could be referred with other issues under s. 57 of the Judicature Act, 1873; and that the reference was rightly made, as the questions of partnership might be determined by an examination of the accounts {Goodwin V. Bidden (1880), 42 L. T. 536). 3. There had been a series of transactions in bills of exchange between the parties, and also there was a counterclaim for goods supplied. The matter was referred by the judge to a Master under s. 3 of the Common Law Procedure Act, 1854. The Court of Appeal varied the order by referring the matter to an official referee {Martin v. Fyfe (1883), 50 L. T. 72). 4. To a claim for arrears of rent for a furnished house, a defence was put in that by agreement the arrears had been waived through re-letting the house at an increased rent payable to the plaintiffs. There was also a claim for dilapidations, which was disputed in many par- ticulars. Held that the question of dilapidations was a " matter of account," which could be referred under the Common Law Procedure Act, 1854, and consequently the whole of the issues might be referred under s. 57 of the Judicature Act, 1873 {Knight y. Coales (1887), 19 •Q. B. D. 296). 5. Where there was a long bill of particulars on one side and a set- off on the other, and each party disputed many items in the other's account, the case was held to fall within s. 3 of the Common Law Pro- cedure Act, as involving matters of account, and a reference was enforced (Brotvne v. Emerson (1856), 25 L. J. C. P. 104 ; 17 C. B. 361 ; Chapman V. Fan Toll (1857), 8 E. & B. 396 ; 27 L. J. Q. B. 1). 6. Actions by a rector against his predecessor for dilapidations of the rectory house {Cummins v. Birkett (1858), 3 H. & N. 156; 27 L. J. Ex. 216) and of the chancel of the church {Pell v. Addison (1860), 2 F. & F. 291), and by a landlord against a tenant for not deliA^ering up premises in good repair {Angell v. Felgate (1861), 31 L. J. Ex. 41 ; 7 H. & N. 396), where money had been paid into Court, and the only question was, what was the amount to which the plaintiff in each case was entitled, were held properly referred to arbitration under s. 3 of the Common Law Procedure Act. Discretion of Coiiri. Assuming that one or more of the conditions specified in s. 14 (a), (b), and (c) exist, the exercise of the powers conferred by the section is entirely a matter for the discretion of the Court or judge, except that under s. 14 (6) the Court or judge must be of opinion that the examina- tion of documents or scientific or local investigation cannot conveniently be made before a jury or conducted by the Court through its ordinary officers. These are the governing words of s. 14 (b), and it must be a judicial opinion (per Brett, J., in Longman v. East (1877), C P. D., at p. 154). REFERENCES FOR TRIAL 527 Where there is a charge of fraud, the Court will not order a reference unless the allegation of fraud is so mixed up with the merits of the case, as regards small matters of account and the prolonged examination of documents or accounts, that the case cannot conveniently be tried by a jury. Illustrations. 1. An action was brought to recover a balance of £636, 13s., alleged to be due from the defendant to the plaintiffs. The particulars of demand contained the following item: — "1864. — Money had and received for the use of the plaintiffs, being commission paid by the plaintiffs to the defendant for orders for musical instruments which the defendant alleged he had obtained but which orders were fictitious, £514." The above figure of £514 consisted of five items. An order was made to refer the cause to one of the Masters of the Court under s. 3 of the Common Law Procedure Act, 1854. Held that the matter in dispute consisted in part of matters of mere account and consequently the judge had jurisdiction, and it was a matter which could not be conveniently tried by a jury. The rule nisi to set aside the order was discharged (Imhof v. Sutton (1867), L. E. 2 C. P. 406). 2. Under the Common Law Procedure Act, 1854, a defendant had obtained an order compulsorily referring an action for 7,129,300 cubic feet of gas at 2s. 5d. per cubic foot. The plaintiffs applied to rescind the order, alleging that they proposed at the trial to attempt to prove that the defendant had been guilty of fraudulent conduct by the secret abstraction of their gas. Held (by Channell and Pigott, BB., Kelly, C.B., dissenting) that the nature of the dispute was not altered because the plaintiffs imputed fraud ; that substantially the matter was one wholly or in part of mere account which could not conveniently be tried by a jury, and that therefore the order was rightly made (Biriningha/n & Staffordshire Gas Co. v. PMtcliff (1871), L. R. 6 Ex. 224). 3. An executrix brought an action to set aside, on the ground of fraud, the sale by the defendant to her testator of about 130 pictures for prices amounting in the whole to about £50,000. The Vice- Chancellor refused to refer the matters in dispute to a referee. The appellant contended that the case required a scientific investigation. Held that, even if there was jurisdiction to make the order, which the Court thought there was not, the defendant ought not to be compelled to go before a referee {Leigh v. Brooks (1877), 5 Ch. 1). 592). This case marks a departure from the previous decisions. James, L.J. , said : "If a man says, ' My character is at stake and I insist upon having the case tried in open Court,' I should be shocked to find that any course of proceeding in this Court interfered with his right to have it so tried." 4. An action was brought by the plaintiff' to recover damages for wrongful dismissal from the position of manager of the defendant's business and a balance of salary due. The defendant justified the dis- missal on the ground of the plaintiff's misconduct, the particulars of which were that the plaintiff had made purchases of goods against his 528 REFERENCES UNDER ORDER OF COURT orders ; had supplied goods to customers abroad not equal to sample ; had destroyed the samples to conceal his having done so ; and had invoiced vrheat to the customers at the correct weight and overcharged them. At the trial before a jury Grove, J., made an order that th& issues in the action be referred to an official referee, who was to make his report to the Court. The plaintiff appealed from this order. Held that, as the case involved an unusually prolonged examination of docu- ments, and each overcharge was of small amount, the appeal ought to he dismissed {Hoch v. Boor (1880), 43 L. T. 425, approving Leigh v. Brooks,, sup'o). 5. The plaintiff brought an action for the balance of money paid to the defendants' use, for an account of profits on which he was entitled to commission, and for damages for wrongful dismissal. The defence justified the dismissal on the grounds of disobedience and neglect of duty, and also raised a charge of converting the defendants' money to his own use. The last allegation was struck out by the judge, who made an order referring the issues to an official referee. Held that the order was right (Sucker v. Ragozine & Co. (1881), 44 L. T. 308). 6. A manufacturer of bricks brought an action for royalties. The defence was a plea that up to March 1886 the account had been settled, coupled with a denial of indebtedness since that date. The plaintiff claimed to re- open the settled account on the ground of fraud. An order of reference was made under s. 57 of the Judicature Act, 1873, but the Court of Appeal discharged the order because it was easy to trj the charge of fraud separately from the question of accounts {Dimmock V. Randall (1889), 5 T. L. R. 358). In this case Esher, M.R., said he expressly agreed with the decision in Leigh v. Brooks (supra). 7. The defence set up to a claim for work done under a contract was that the work had not been done to the satisfaction of the defen- dant's architect, this being required by the terms of the contract. There was also a counterclaim fi)r damages for delay and defects in the machinery supplied. The plaintiff replied that the architect improperly refused to certify that he was satisfied, being in collusion with the defendant, and by his procurement. The plaintiff obtained an order for the trial of action by a referee. Held that the order was wrongly made because a charge of fraud had been made which was easily capable of being tried separately from the other issues (Russell ck Co. v. Harris^ (1891), 65 L. T. 752). 8. In an action for alleged breach of a mining lease, in which a scientific investigation was required as to whether the mines had been worked in a fair and honest manner, the Court reversed an order referring the cause for trial in which there was a direction to the official referee to state a special case if requested by either party, Charles, J., saying : " Whether they (the questions of law) be difficult or important or not is a matter upon which I think the defendant has a right to invite the opinion of a judge, and I do not think he should be driven to take the opinion of a judge in the cumbrous mode provided, namely, by insisting REFERENCES FOR TRIAL 529 in the course of the reference on the referee stating a case " {Case v. Willis (1892), 8 T. L. R. 610). For further illustrations, see aiite, pp. 525, 526. " S2Jecial referee or arbitrator respectively agreed on hy the parties" The cause or matter, or any question or issue of fact arising therein, may be ordered " to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the Court." It is clear that under this section the jurisdiction of the Court with regard to references for trial is limited, in the case of a special referee or arbitrator, to a special referee or arbitrator respectively agreed upon by the parties, but by Order XXXVI., r. 7a, the Court may order " in every cause or matter " any cause, matter, or issue to be tried by an official referee or special referee with or without assessors. This rule would seem to permit a reference to a special referee not agreed upon by the parties, but in London & Lancashire Fire Lnsurance Co. V. British American Association (1885), 52 L. T. 385, it was held that the rule gave no power to order any cause or matter to be tried by a special referee without the consent of the parties, the words " special referee " therein meaning " a special referee to be agreed on between the parties," no other kind of reference to a special referee for trial being authorised by the 57th section of the Judicature Act, 1873. The words in s. 14 of the Arbitration Act are in this respect similar to those in s. 57 of the Judicature Act, 1873, and it would therefore seem that Order XXXVI., r. 7a, gives no power to the Court to order any cause or matter or issue therein to be tried by a special referee without the consent of the parties. The " arbitrator," mentioned for the first time under this part of the Arbitration Act, the title of which is " Eeferences under Order of Court," appears to be some kind of referee other than a special referee. The insertion of the word " arbitrator " in this part of the Act, relating to references under order of the Court, is difficult to understand, for no arbitration in the ordinary sense can take place under this section, which is limited to reference for trial, and the referee to whom a cause or matter is referred for trial " shall direct how judgment shall be entered " (Order XL., r. 2). Such judgment " is neither an award nor a certificate, nor was it made on a compulsory reference to arbitration " {per Fry, L.J., in Munday v. Norton, [1892] 1 Q. B. 403). S. 8 of the Judicature Act, 1884, and Order LIX. r., 3, do not apply to references for trial under s. 14 of the Arbitration Act {Munday v. Norton, supra). Summons to refer. By Order LIV., r. 12a, " A Master of a Supreme Court may exercise all the jurisdiction and powers conferred upon the Court or a judge by 34 530 REFERENCES UNDER ORDER OF COURT the Arbitration Act, 1889." The jurisdiction under s. 14 is exercised by the Masters in chambers upon an application made by summons. The application to refer may now be included in the summons for directions provided for by Order XXX., r. 1, under "Mode of Trial." As to the form of the order of reference, see ante, p. 504. Appeal from order of reference. The exercise of the discretion of the Court in making an order of reference will not be interfered with on appeal, unless it appears clearly that the order has been made without jurisdiction, or that the discretion has been wrongly exercised and substantial injustice will be done if the order is allowed to stand. In Eoch V. Boor (1880), 49 L. J. Q. B. 665, at p. 667, Thesiger, L.J., said: "I must add that, in a matter within the jurisdiction of a judge to refer, and, therefore, fit for the exercise of a judicial discretion, the Court will require a very clear case of manifest error before interfering with his exercise of that discretion." And in Ward v. Pilley (1880), 5 Q. B. D. 427, at p. 431, Brett, L. J., said : " They did exercise their discretion, and with that discretion I think we ought not to interfere." Illustrations. 1. A judge in chambers having made an order referring all the issues in an action to an official referee, a Divisional Court rescinded the order on the ground that the questions of account arising in the action were not such as would require a " prolonged examination," and that there was no jurisdiction to make the order. Held by the Court of Appeal that there was jurisdiction and that the judge had rightly exercised his discretion {Ward v. Pilley (1880), 5 Q. B. D. 427). 2. In an action for rent for a furnished house there was added a claim for dilapidations (broken china, etc., etc.), and the judge referred the whole matter in dispute to an official referee. Held that he had jurisdiction to make the order, and the Court declined to interfere with his discretion {Knight v. Coales (1887), 19 Q. B. D. 296). 3. A judge had ordered a cause, in which the main questions related to the abstracting of water from a river and the rendering of it unfit for condensing purposes, to be tried as far as regards questions and issues of fact by an official referee. Held that he had wrongly exer- cised his discretion in taking the consideration away from a special jury drawn from the neighbourhood, who were the best tribunal for the purposes of such a trial, and the order was therefore set aside {Ormerod v. Todmwden Mill Co. (1882), 8 Q. B. D. 664). 4. In an action for damages for breach of covenant in a lease in not working a coal mine in a proper and workmanlike manner, questions of law as well as of fact were involved. The judge ordered that the cause should be tried before an official referee. Held that he had wrongly exercised his discretion and the order must be reversed {Case v. Willis REFERE.NCES FOR TRIAL 531 (1892), 8 T. L. R. 610. See also Imhof v. Sutton, ante, p. 527, and BirmingJiam & Staffmrlshire Gas Co. v. EafcUffe, avte, p. 527). In a case where the judge refused to make an order of reference the Court, in affirming the decision of the judge, did so without prejudice to any order the judge at the trial might think fit to make as to referring the cause, thus leaving the judge's discretion absolutely unfettered {Sheard v. Learoyd (1886), 2 T. L. R. 632). Reference, to Master under Order XIV. By Order XIV., r. 7, " Upon the hearing of " an application by the plaintiff for liberty to enter final judgment under r. 1 of this Order, " with the consent of the parties an order may be made referring the action to a Master." When a case is so referred to a Master he is not in the position of a common law arbitrator, but the reference is to hira as an officer of the Court under s. 14 of the Arbitration Act, and con- sequently rr. 6 and 6a of Order XL. apply, and there is a right of appeal from his judgment to a Divisional Court {Fraser v. Fraser, [1905] 1 K. B. .368; 74 L. J. K. B. 183, overruling Haycocks v. Mid- holland, [1904] 1 K. B. 145; 73 L. J. K. B. 125), but not direct to the Court of Appeal {Fraser v. Fraser, [1904] 1 K. B. 56 ; 73 L. J. K. B. 6). References hy order of Court outside the Arhiiration Act. Orders of reference by consent were constantly made at common law, where there was a cause depending, by order of Court, or a judge's order, or at Nisi Frius, and may still be made (Lucas v. Wilson (1758), 2 Burr. 701. See judgment of Lindley, L.J., in Macalpine v. Calder, [1893J 1 Q. B. 545 ; 62 L. J. Q. B. 607). " It is common knowledge that quite independently of any such Act (the Common Law Procedure Act, 1854), orders of reference by consent were made by order at Nisi Frius, or by rule of Court, or by judge's order, but that such orders could only be made when an action was pending and could only be made by consent. Such orders were, in fact, submissions to arbitration embodied by consent in orders of the Court " (per Vaughan Williams, L.J., Fraser v. Fraser, [1905] 1 K. B. 368). The commonest instance of such orders is where the cause " and all matters in difference" are referred to an arbitrator by consent of the parties. The jurisdiction of the Court under the Arbitration Act is limited to referring the whole cause or matter or any question or issue of fact arising therein ; that is to say, that the Court has only power to refer either the whole subject-matter of the action or any question or issue of fact in such action. " It is not a reference by the judge of the whole cause or matter or of any question or issue of fact arising therein. It is an order by consent for the reference of all matters in difference. 532 REFERENCES UNDER ORDER OF COURT That is a much larger order than any which a judge has authority^ under the Act to make, and if this were an order which purported to- be made under the statute, it would have been an excess of jurisdiction ... it was made under the general authority of a judge to act on the consent of the parties and appoint an arbitrator. The whole validity and force of the order of reference arises from the consent of the parties . . . there is no power to review the award for any ground upon which an ordinary award made on a reference by consent could not be- reviewed " {per Lord Esher, M.E., in Darlington Wagon Co. v. Harding and Trouville Pier and Steamboat Co., [1891] 1 Q. B., at pp. 248, 249). The person named in such an order is an arbitrator and not an officer of the Court. In the case of 3fellin v. Monico (1877), 3 C. P. D., at p. 158, Brett, L.J., said : " I think that the order in that case as drawn up is inconsistent with the powers to refer contained in the Act of 1873, and is therefore a bad order ; but the plaintiff having consented to the order in that form, and acted upon it up to the end, and taken his chance of a decision in his favour, we must hold that he accepted it, not as a reference under the Judicature Act but as a reference to the official referee, which he consented to take, not as official referee but as an arbitrator at common law." Before the Arbitration Act, when orders of that kind were made, it was necessary to make provisions in the order as to the powers and duties of the arbitrator, because, prior to the Arbitration Act, the arbitrator only had such powers as were conferred upon him by the terms of the submission, frequent disputes thus arose, particularly in reference to the arbitrator's power over the costs. But now, by the Arbitration Act, the arbitrator's powers in refer- ences by consent out of Court are defined by the First Schedule to the Act unless a contrary intention is expressed in the submission. It is clear from the decisions in the cases before referred to that the arbitrator derives what authority he has from the consent of the parties, and that the validity of his award depends upon such consent, but it is open to some doubt whether such submissions to arbitration are within the provisions of the Arbitration Act relating to references by consent out of Court. " It would seem that such orders are in fact submissions to arbitra- tion embodied by consent in orders of the Court " {per Vaughan Williams, L.J., in Fraser v. Fra.ser, ante). But in order to bring such submissions within the Act, they must be written agreements to submit differences to arbitration (s. 27). It would seem, however, that the order of the Court drawn up with the authority of the parties is a sufficient agree- ment in writing to satisfy the terms of s. 27 (see Aitken v. Batchelor (1893), 62 L. J. Q. B. 193). If such submissions are not within the Arbitration Act, it follows that either party can revoke the submission. S. 1 of the Act only REFERENCES FOR TRIAL 533 makes submissions irrevocable which are within the Act. Other submissions are revocable as they were before the Act (see ante, p. 46 et seq.). If, on the other hand, such submissions are within the Act, the arbitrator has all the powers given by the First Schedule except in so far as such powers are limited by the order of reference, and he thus has discretion with respect to costs, and all the cases decided before the Act, as to the power of the arbitrator to deal with costs when not mentioned in the order of reference, are more or less obsolete. When an award is made by an arbitrator under such an order, "the rights of the parties in respect of specific performance are the same as if the award had been simply an agreement between them " (per Lord Cranworth, L.C., Blachett v. Bates (1865), L. E. 1 Ch., at p. 124). An action also will lie upon an arbitrator's award made under a submission contained in a judge's order. " That an action will lie on a submission by a judge's order is stated in 2 Williams' Saunders, 62 b, and in Wharton v. King, 1 Mood. & Eob. 96, where the precise point now made was taken and overruled by Lord Tenterden " {per Montague Smith, J., Lievesley v. Gilmore (1866), L. E. 1 C. P., at p. 574). " The contract of the parties is not the less a contract, and subject to the incidents of a contract, because there is superadded the command of a judge" {per Erie, C.J., in Lievesley v. Gilmore, supra). Parties to consent must he piarties on the record. The parties to consent must be the parties on the record, eveii though they are mere nominal parties, for a submission by the persons really interested, without the parties on the record, will not refer the cause {Oioen v. mird (1788), 2 T. E. 643). Authority of solicitors to refer. In an action the solicitor on the record, having the conduct of the suit, has implied authority to do the best he can for his client in the matter {Strauss v. Francis (1866), L. E. 1 Q. B. 379 ; 35 L. J. Q. B. 133). He has implied authority, inter alia, to refer the cause or matter to arbitration {Faviell v. Eastern Counties Rail. Co. (1848), 2 Ex. 344; 17 L. J. Ex. 297; 76 E. E. 615; Smith v. Troup (1849), 7 C. B. 757; 78 E. E. 824; 18 L. J. C. P. 209). "I think that an attorney who has been duly authorised to appear for a litigant has, incidentally, authority to conduct the cause and to refer it. If he does wrong ho may be responsible to his client ; but his client is bound " {per Piatt, B., in Faviell v. Eastern Counties Rail. Co. (1848), 17 L. J. Ex. 297, at p. 299). Illustration. An attorney appeared for a corporation in an action and consented to the judge's order of reference of all claims in the action. The 534 REFERENCES UNDER ORDER OF COURT attorney's appointment was not under seal. Held that the attorney had power ex officio to consent to the reference and required no further authority (Faviell v. Easfern Counties Rail. Co., supra). It is doubtful whether a solicitor authorised to conduct an action has implied authority to refer anything more than the cause — that i& to say, the subject-matter of the action, For instance, it is doubtful whether he has implied authority to refer the cause and all matters in difference, for such an arbitration, being outside the powers of the Court under the Arbitration Act, derives its validity from the consent of the parties and not from any power in the Court over the cause or matter, and would seem to be outside the solicitor's authority to- conduct the action (see Macaulay v. Polley, [1897] 2 Q. B. 122; 6& L. J. Q. B. 665). When infants sue by their next friends in Chancery the solicitors in the suit have no authority to bind the infants by a reference, or the next friends of the infants for the due performance of the award by the infants {Biddell v. Doicse (1828), 6 B. & C. 255). Authority of counsel to refer. Counsel has general authority over the suit, the mode of conducting it, and all that is incident to it, such as withdrawing the record, with- drawing a juror, calling no witnesses or selecting such as in his discretion he thinks ought to be called, and other matters which properly belong to the suit and the management and conduct of the trial, but he has not any power over matters that are collateral to it {Sivinfen v. Lord Chelmsford (1860), 5 H. & K 890 ; 29 L. J. Ex. 382 ; Strauss v. Francis (1866), L. E. 1 Q. B. 379 ; 35 L. J, Q. B. 133 ; Matthews v. Munstcr (1887), 20 Q. B. D. 141 ; 57 L. J. Q. B. 49). The endorsement by counsel upon their briefs of terms agreed upon for a reference, and signed by them, is a submission within the Arbitration Act (AitJcen v. Batchelor (1893), 62 L. J. Q. B. 193). If a party is present in Court and hears his counsel state in Court that the case is referred, he may be bound by the act of his counsel unless he protests openly (Eumsey v. King (1876), 33 L. T. 728. See Neale v. Gordon Lennox, [1902] A. C. 465, 7:>er Lord Halsbury, L.C., at p. 470). Exjoress limitation of authority of counsel or solicitor'. The general authority of counsel or the solicitor may be limited by express instructions from the client. Counsel has no authority to refer an action against the express wishes of his client, or upon terms different from those which the client has authorised, and if he does so, the reference may be set aside, even although the limit put upon the counsel's authority is not made known to the other side when the reference is agreed upon. And the Court before whom the question of REFERENCES FOR, TRIAL 535 setting aside the reference comes is not bound to sanction an arrange- ment made by counsel which is not, in the opinion of the Court, a proper one. Illustration. N. sued L. for defamation, and authorised her counsel to consent to a reference on the condition that all imputations on her character were withdrawn publicly. Her counsel, who did not make this restriction known to his opponent, agreed with the latter to refer the action without any condition as to the imputations being withdrawn. Held that counsel had exceeded his authority and that the agreement to refer should be set aside and the action restored to the list for trial (Neale v. Gordon Lennox, [1902] A. C. 465, reversing the decision of the Court of Appeal, [1902] 1 K. B. 83'8). But the Court has a discretion as to setting aside the reference in such a case, and would not do so if it was of opinion, "upon its general jurisdiction of doing justice between the parties, that it was not a case in which it ought to interfere " (per Lord Halsbury, L.C, in Neale v. Gordon Lennox, supra, at p. 471). The principle of this decision would seem to apply equally to express limitations put upon the general authority of solicitors. If the authority of a solicitor is so limited, and he agrees to a reference in excess of his actual authority, there seems to be no reason why the other party to the cause should not recover any damage he may suffer, by reason of the agreement for reference not being carried out, by an action against the solicitor for breach of warranty of authority. It was formerly thought that if the solicitor disobeyed any such express instructions, but acted within the scope of his apparent authority, the Court would not interfere, but would leave the client to his remedy against the solicitor for negligence (see Fray v. Voules (1859), 1 E. & E. 839). Illustration. An attorney consented to the reference of an action, and his client filed an affidavit stating that she had expressly instructed her attorney not to consent to a reference. Held that to set aside the order of reference would lead to collusion, and that the client must seek her remedy by action against the attorney (Filmer v. Delber (1811), 3 Taunt. 486). But since the case of Neale v. Gordon Lennox (supra), these cases must be regarded merely as instances of the exercise of the discretion of the Court (see^e?- Lord Halsbury, L.C, ibid., at p. 471). Submission by order of Court. The rule of Court referring a cause to arbitration by consent used to be drawn up as of course on motion papers for that purpose signed by counsel. 536 REFERENCES UNDER ORDER OF COURT Submission by judges or Master's order. A judge or a Master will grant an order referring a cause as a matter of course on a consent signed by the solicitors on both sides. Or the solicitor on one side may take out a summons calling on the other side to show cause why the action should not be referred on the terms agreed upon, and to this summons a consent can be given in the usual way, and the clerk at the Central Office or in the registry will draw up the order. This mode of submission is very commonly adopted in every stage before the cause is entered at Nisi Prius (Archb. Pr., 1308, 13th ed. ; 1587, 14th ed.). Order of Nisi Prius, how drawn up. When the cause has been entered for trial, the ordinary mode of referring it is by order of Nisi Prius on its coming on to be tried. This is an order of the Court of Nisi Prius drawn up on the consent of the parties, and embodying the terms on which they agree to refer. The leading counsel on each side usually select the arbitrator and make a minute of his name and of the terms of the reference on their briefs, and from these the officer of the Court draws up the order. He usually makes out two duplicate orders and delivers them to the solicitors of the plaintiff and defendant respectively on their application. If this is not done the solicitor for the party interested in pressing on the reference obtains the order from the associate and serves a copy on the opposite party {Alder v. Savill (1814), 5 Taunt. 454 ; 2 Archb. Pr., 1308, 13th ed. ; 1588, 14th ed.). Indictment. An indictment cannot be referred by order of Nisi Prius when a verdict of not guilty has been taken subject to the reference, and no power is specifically given to the arbitrator to alter the verdict. A verdict of guilty should be taken subject to the award {R. v. Hardey (1850), 14 Q. B. 529 ; 19 L. J. Q. B. 196). Reference on " the usual terms." Parties often agreed to a reference on " the usual terms," with or without additional provisions applicable to the particular case. Such an agreement may be made in respect of matters in the cause only, or of any other matters in difference between the parties, and it should distinctly appear in the order of reference whether the reference is of the cause only, or whether it is to include any and what other matters in difference. The effect of agreeing to a reference on " the usual terms " was as follows : — 1. The arbitrator had power to direct that judgment should be entered for the plaintiff or for the defendant, and he could find in REFERENCES FOR TRIAL 537 the cause generally for either party, unless requested to decide some particular issues {Morgan v. Thomas (1845), 9 Jur. 92). 2. The costs of the cause were to abide the event of the arbitrator's decision in the action, and the costs of the reference and award were to be in the discretion of the arbitrator (Morel v. Byrne (1873), 28 L. T. 627 ; Wimshurst v. Barrow Shijjbuilding Co. (1877), 2 Q, B. D. 335 ; 46 L. J. Q. B. 477). 3. The arbitrator had to make his award within the time limited by the order, with power, however, to extend the time. 4. The death of either party did not abate the authority of the arbitrator. 5. The arbitrator had all the powers as to certifying and amending of a judge at Nisi Prius (TJiompsett v. Bowycr (1860), 30 L. J. C. P. 1 ; 9 C. B. (N. S.) 284). 6. The parties and their witnesses might be examined on oath or affirmation. 7. The parties were bound to produce before the arbitrator all documents relating to the matters referred. 8. No action could be brought against the arbitrator by the parties. 9. Any attempt by delay or otherwise to prevent the arbitrator from making his award rendered the offending party liable to pay such -costs as the arbitrator might direct. 10. The Court had power to remit the matters or any of them to the arbitrator if either of the parties disputed the validity of the award. 11. The Court could appoint a new arbitrator in the event of the appointed arbitrator declining to act or dying before he had made his award. Amendment of s\ibmission. By the consent of parties a submission may be altered or amended •at any time. Without that consent the Court cannot alter it in any material part, because it cannot alter the parties' agreement {Smurthicaite V. Richardson (1863), 15 C. B. (N. S.) 463; Morgan v. Tarte (1855), 11 Ex. 82; Houghton v. Banhirt (1861), 3 De G. F. & J. 16). But the Court can insert into the submission that which the parties assented to at the time of reference {Evans v. Senor (1814), 5 Taunt. 662) ; and where it is made manifest to the Court that there has been some omission on the part of its officer, or that by some accident or mistake the order is not in accordance with the intention of the parties, the Court may make such amendment as will give effect to that which the parties have agreed to {Vanderhjl v. M'Kenna (1868), L. li. 3 C. P. 252). "In the case of mistake or accidental omission, or if any fraud were shown, the Court would doubtless interpose to prevent injustice being done ; but in all other cases, when the reference is by consent, the Courts have been extremely jealous of interfering with orders of reference, lest by so 538 REFERENCES UNDER ORDER OF COURT doing they should be making an agreement between the parties which they themselves would not have entered into " {per Bovill, C.J., ibid.). In a case of a compulsory order of reference under the Common Law Procedure Act, 1854, the Court amended the order after award made nunc jpro tunc by inserting, according to the original intention of the- parties a clause that costs should abide the event {Bell v. Postlethwaite (1855), 25 L. J. Q. B. 63 ; 5 E. & B. 695). In a case in the Common Pleas it was agreed in the order of reference that the parties should admit, and that the arbitrator should take and receive, the account annexed to the order to be a correct account of certain accounts between the parties, and that the arbi- trator should award on the rights of the parties, as if the items stated in the account had been proved before him. After the award had been made the plaintiff applied to the Court to amend the order of reference and refer back the matter to the arbitrator on affidavits which showed clearly that in the account annexed to the order of reference the clerk of the plaintiff's attorney in copying it had, by mistake, given the plaintiff credit for £460, instead of £758. The Court refused the application, saying that they had no jurisdiction, but suggesting that there might be a remedy in equity ( Winn v. Nicholson (1849), 7 C. B. 819 ; 18 L. J. C. P. 231). Xow by Order XXVIII., rr. 11 and 12, the Court or a judge may at any time correct clerical mistakes in j,udgmeuts or orders, or errors arising therein from any accidental slip or omission, and may amend any defect or error in any proceedings. Adding interested third persons as po.rties. It often happens, when a cause is referred, that a third person is made a party to the submission, and imder some forms of submission the arbitrator has been held warranted in treating him as a party to the cause itself {HcivMns v. Benton (1846), 8 Q. B. 479 ; 15 L. J. Q. B. 139; Rogers v. Stanton (1817), 7 Taunt. 575, n. ; Morgan v. Miller (1839), 6 Bing. X. C. 168; Williams v. Lewis (1857), 7 E, & B. 929;. StoeUey v. Shopland (1872), 26 L. T. 586). Even when not inserted as a party in the order of reference, a third person's assent to the proceedings will in many cases preclude him from disputing his obligation to abide by the award {Gunton v. Nurse (1821), 5 Moore, 259 ; 2 B. & B. 447). Where a submission has in the first instance been made between two, a third party may be added afterwards, and the reference may proceed as if all three had been parties to the original order of reference {Winter v. Munton (1818), 2 Moore, 723). Pleading aivard to further maintenance of action. If an action already in progress was referred and an award made, the award could be pleaded as a plea to the further continuance of the action* REFERENCES FOR TRIAL 539 Illustrations. 1. After issue joined the parties had agreed to refer the cause to arbitration. An award was made, but the plaintiff did not submit to it owing to some irregularity, and the cause came on to be heard on the original pleadings. The defendant proposed to give the award in evidence, but Lord Kenyon said that the impression of his mind was that it could not be given in evidence, but must be pleaded as a plea puis darrein continuance {Storey v. Bloxam (1796), 2 Esp. 504). 2. After issue joined and notice of trial given, the parties had agreed to refer the cause to arbitration, and an award was made. The plaintiff, however, being dissatisfied with the conduct of one of the arbitrators, had executed a deed of revocation, but whether before or after the making of the award was in dispute. The plaintiff asked for a stay of proceedings on the ground of an award having been made. The Court said that, seeing the award was disputed, the defendant must plead the award, and the question could go to a jury {Lov:es v. Kermode (1818), 8 Taunt. 146). Where an action was referred to an arbitrator to state a special case, and he had stated a case finding substantially the whole of the facts in the defendant's favour, the Court refused to give leave to the plaintiff to discontinue the action (StaJilschmicU v. Wcdford (1879). 4 Q. B. D. 217; 48 L. J. Q. B. 348). Suhmission hy order of County Court. Under s. 104 of the County Courts Act, 1888 (51 & 52 Vict. c. 43), a County Court judge may, with the consent of the parties, order any action before him, with or without other matters within the jurisdiction of the Court in dispute between the parties, to be referred to arbitra- tion. Such consent does not afford an answer to an application for a prohibition in a case where the subject-matter of the reference is beyond the jurisdiction of the Court {Knoivlcs v. Holden (1855), 24 L. J. Ex. 223 ; Farqulmrson v. Morgan, [1894] 1 Q. B. 552 ; 63 L. J. Q. B. 474). The submission is not revocable without leave of the judge, and the award is to be entered as the judgment in the action (51 & 52 Vict, c. 43, s. 104 ; County Court Pailes, 1903, Order XX.). The County Court judge has authority to issue subpoenas to compel the attendance of witnesses before the arbitrator {In re Ackary, Ex imrtc Bolland (1876), 3 Ch. I). 125; 45 L. J. Bk. 133), and may commit to prison a party who refuses to produce documents accord- ing to the terms of the order of reference {Richards v. Cullern (1881), 7 Q. B. D. 623). Suhmissiun by order of Quarter Sessions. By tlie statute 12 & 13 Vict. c. 45, s. 13, a Court of General or Quarter Sessions may, with the consent of the parties, order matters o40 REFERENCES UNDER ORDER OF COURT of appeal (with few exceptions), before it to be referred to arbitration, in such manner and on such terms as it shall think proper, and the award may be entered as the judgment of the Court. (For form of order of reference, see Appendix of Forms.) Costs. The order of reference may give the arbitrator power over costs, and possibly the Court of Quarter Sessions may in the order reserve to itself power over the costs of the appeal ; but if the order of refer- ence is silent as to costs, no subsequent Court of Quarter Sessions can order them to be paid, even if the appeal has been respited from sessions to sessions. In entering the award as the judgment of the Quarter Sessions, the Court is performing only a ministerial act, and cannot vary the terms of the award {R. v. West Riding Justices (1865), 6 B. & S. 531; 34 L. J. M. C. 142; R. v. Justices of Middlesex (1871), L. R. 6 Q. B. 220; 40 L. J. M. C. 109). In a case in 1870 it was held that where such an order of refer- ence was silent as to costs the arbitrator had no power to award them {West London Extension Rail. Co. v. Fulham Union (1870), L. R. 5 Q. B. 361 ; 39 L. J. Q. B. 178). Now, however, it would probably be held that in such a case the provisions of the Arbitration Act apply by virtue of s. 24, and that, therefore, the arbitrator has a discretion as to costs under clause {i) of the First Schedule to the Act (see s. 2). Taxing costs out of sessions. An appeal to Quarter Sessions against a rate was referred, and by the order of reference the costs of the appeal and reference were to be in the discretion of the arbitrators. The arbitrators awarded in favour of the respondents. The award was thereupon entered, under the provisions of s. 13 of 12 & 13 Vict. c. 45, as the judgment of Quarter Sessions, and the costs having been taxed after the sessions, an order of sessions was subsequently drawn up confirming the rate, and ordering the appellants to pay the taxed costs. The appellants objected that the order was made without jurisdiction, because the costs had not been taxed during the sessions. It was held that it was implied in the terms of the reference that the costs should be taxed out of sessions and that the order was therefore valid {Southampton Gas, &c., Co. W.Southampton Union {ISlI), 2Q.B.D. 371 ; 46 L.J. M. C. 238). Setting aside judgment p^irsiuint to award. If the plaintiff, pursuant to the award, entered up a verdict and signed judgment in the cause referred, the defendant might, within the time limited for setting aside awards, move to set aside both judgment and award, if the latter was defective {Doe d. Body v. Cox REFERENCES FOR TRIAL 541 (1846), 15 L. J. Q. B. 317 ; 4 D. & L. 75). As the sheriff, on a trial by jury under a writ of trial, had no power to permit a verdict to be taken subject to a reference, the verdict and judgment entered pur- suant to an award on a submission under such circumstances would be set aside, but not necessarily the award itself, for that might be perfectly valid (Wilson v. Thorijc (1840), 6 M. & W. 721; 9 L. J. (N. S.) Ex. 232). Although the time for setting aside the award might have long elapsed, a party was at liberty, as soon as the judgment had been signed, to move to set the latter aside; and on such a motion the Court would determine the validity of the award on its face, for there was no other method than this by which the defendant could contest the validity of the judgment (Manse?- v. Heaver (1832), 3 B. & Ad. 295 ; Doe d. Madkins v. Jlortier (1838), 8 A. & E. 235 ; Wrightson V. Bywater (1838), 3 M. & W. 199). The motion might be founded on the same ground of alleged defects apparent on the award on which a motion to set aside the award had been made and refused ; for on the rule to set aside the judgment the Court was necessarily bound to come to a determination on the validity of the award, since refusing the rule had the effect of establishing the award ( Wrightson v. Bywater (1838), 3 M. & W. 199; 7 L. J. (N. S.) Ex. 83. See Gravatt v. Attwood (1850), 19 L. J. Q. B. 474). Effect of failure of the reference. Reference failing, action proceeds. When an action at law is referred, and the reference proves abortive, either from no award having been made, or, if made, from its having been afterwards set aside, the parties may go on with the action unless it was stipulated in the agreement of reference, or agreed at the time of the submission, that the cause should be terminated (Harries v. Thomas (1836), 2 M. & W. 32). When juror withdraivn. Withdrawing a juror on a submission at Nisi Prius does not of necessity put an end to the cause. If the reference fails, the plaintiff is not concluded in the action, unless the cause was abandoned by consent (Harries v. Thomas (1836), 2 M. & W. 32; Thomas v. Exeter Flying Post Co. (1887), 18 Q. B. D. 822 ; 56 L. J. Q. B. 313). When verdict tahen, new tried on failure. When a verdict was taken on a submission at Nisi Prius and the reference failed, either from the arbitrator's refusal to accept it or his omission to enlarge the time (Hall v. Phillips (1832), 9 Bing. 89 ; 1 L. J. (N. S.) C. P. 169), or his death (Harper v. Abrahams (1819), 4 Moore, 3), 542 REFERENCES UNDER ORDER OF COURT or from the order of reference being annulled {Morgan v. Miller (1839), 6 Bing. N. C. 168), or the award being set aside, or from other causes {Bacon v. Cressivell (1835), 1 Hodges, 189 ; Thovqjson v. Jennings (1825), 10 Moore, 110; 3 L. J. (0. S.) C. P. 80), and the parties did not agree to a second reference, the ordinary course, as the case had never been decided, was to send it down again for a new trial. Infant lolaintiff avoiding avxird. Where an action by an infant plaintiff (suing by his next friend) was referred before trial by verbal agreement, the record being with- drawn, and the arbitrator awarded in favour of the defendant and directed the plaintiff to pay all costs, the Court directed that on the plaintiff's refusal to abide by the award and to comply with its terms the defendant should be at liberty to proceed to trial in the action by proviso {Godfrey v. Wade (1822), 6 Moore, 488). Aivard set aside. When an award was set aside, the case was analogous to that of a venire de novo {Wood v. Duncan (1839), 5 M. & W. 87). When cause referred genei'ally. Even when the submission included the general merits of the case, and not merely the amount of damages, the Court, on the reference failing, asserted the power of directing judgment to be entered up and execution to issue for the full amount of the verdict taken, unless the defendant would enter into a new submission, though it was said to be a matter of discretion when the Court would exercise the power {WilJcinson v. Time (1835), 4 Dowl. 37; Porch v. HopUns (1844), 1 U. & L. 881; 13 L. J. Q. B. 137; Doe d. Fisher v. Saunders (1832), 3 B. & Ad. 783 ; 1 L. J. (N. S.) K. B. 273). Practice in equity. The practice in equity was similar, for there, when a suit was referred, and the reference proved abortive, the suit proceeded as if there had never been a recourse to arbitration {Gooth v. Jackson (1801), 6 Ves. 11 ; Grawshay v. Gollins (1818), 3 Swanst. 90 ; Darhey v. Whitaker (1857), 4 Drew. 134 ; Blundcll v. Brettargh (1810), 17 A^es. 232 ; Firth v. Midland Bail. Go. (1875), L. E. 20 Eq. 100 ; 44 L. J. Ch. 313). Abortive reference hy Quarter Sessions. On a reference by order of Quarter Sessions, if it becomes impossible for an award to be made, the King's Bench Division may order the Court of Sessions to enter continuances and hear the appeal (12 & 13 Vict. c. 45, s. 14). POWERS AND REMUNERATION OF REFEREES, ETC. 543 Section 15. POWERS AND EEMUNEKATION OF EEFEEEES, ETC. 1. Interpretation of the section. " In all cases of reference." " Report or award." "Equivalent to the verdict of a jury." 2. Official referees. Distribution of business. Fees of official referees. ■3. Conduct of the reference. Generally. Witnesses and evidence. Commission to take evidence abroad. Discovery and production of documents. Time for trial of cause referred. Appointments for sittings. Sitting are de die in diem. Sittings of official referees. View of premises by referee. Order for inspection of premises. Addition of parties. Amendments of pleadings. Referee no power of committal or attachment. 4. Remuneration of special referee or arbitrator. 6. Special case. 6. Death of a party. 7. Awarding when action referred. Awarding entry of verdict. Power over the issues. Verdict taken on one issue only. Substantial decision sufficient direction. Effect of unauthorised award of a verdict. Awarding damages. General damages on all issues. One breach, damages on several issues. Damages not to exceed amount taken on the verdict. No limit of damages as to matters outside cause. Limiting damages by plaintiff's particulars. Awarding joint damages to plaintiff and party added. Cause only referred, no award of money to defendant. Awarding judgment. Awarding when costs alnde the event. Arbitrator must determine cause. Issues decided. Award of general verdict. Award on the whole, showing cause decided. Each issue should be determined. Substantial decision sufficient. Ejectment. Finding on specific claims in a general count. On one defence where several defences pleaded. Clause in order of reference providing for general award. 544 REFERENCES UNDER ORDER OF COURT No finding on issues necessary when arbitrator to tax costs. Duty of arbitrator when costs of cause do not abide event. 8, Directing judgvient to be entered. Omission to direct judgment. Entering judgment pursuant to direction. Effect of judgment of referee. 9. Report when questio?i or issue of fact referred. 10. Appeals. Ajjpeals from interlocutory orders of referee. Time for appeal on interlocutory matter. Motion to have report set aside. Motion to set aside the judgment directed by referee. Powers of Court to set aside under Order XL., r. 6. Form of notice of motion. Time within which motion may be made. Affidavits necessary in support of motion. Grounds of appeal. Security for costs of appeal. Appeal to Court of Appeal. 11. Costs. What are " costs of the cause." Costs of witnesses. Costs of special cases. Costs of trial. Where verdict taken subject to a reference. A\Tiat are " costs of the reference." Power of referee or arbitrator over costs. Official referee when whole cause referred. Special referee or arbitrator. Discretion not exercised. Wliere cause and all differences referred. Costs of reference and award to be in arbitrator's discretion. Where party to reference not a party to action. Costs on County Coi^rt scale. Arbitrator may apportion or order successful party to pay costs. Costs as between solicitor and client. Costs of indictment. Costs of reference at Quarter Sessions. Duty of referee or arbitrator as to costs. Should deal with costs. Cause in High Court. Cause in inferior Court. Effect of awarding costs of cause. Costs where judgment entered on report. Costs to abide event of award. Effect of order. Event distributive. Meaning of "event." Where claim and counterclaim successful. Cause and all matters in difference. Two plaintiffs, one successful and one unsuccessful. Effect of award when costs abide event of award. County Courts Act. Costs to follow verdict. POWERS AND REMUNERATION OF REFEREES, ETC. 545 ■Certifying for costs. Costs of special jury. Eeniitting award where omission to certify. Solicitor's lien for costs on sum awarded. Set-off. Enforcing lien. Lien in case of bankruptcy or liquidation. Taxation of costs. Costs of special case, costs of cause. Costs of witnesses. Witnesses qualifying. Counsel attending reference. Costs of solicitor to draw award. Legal assessor. Shorthand notes. Costs of cause and reference separately. When sum paid into Court satisfies plaintift''s claim. Fresh taxation after reference back. 15. (1) In all cases of reference to an official or special referee or arbitrator under an order of the Court or a judge in any cause or matter, the official or special referee or arbitrator shall be deemed to be an officer of the Court, and shall have such authority, and shall conduct the reference in such manner, as may be prescribed by rules of Court, and subject thereto as the Court or a judge may direct. (2) The report or award of any official or special referee or arbitrator on any such reference shall, unless set aside by the Court or a judge, be equivalent to the verdict of a jury. (3) The remuneration to be paid to any special referee or arbitrator to whom any matter is referred under order of the Court or a judge shall be determined by the Court or a judge. 1. Interpretation of the section. " In all cases of reference.'' The meaning to be attached to these words is open to some doubt. The section is practically a re-enactment of the provisions of s. 58 of the Judicature Act, 1873, but the words "or trial by" in s. 58 are omitted. The question therefore arises whether the references referred to in s. 15 (1) are intended to be references for trial. Kay, J., in reference to the omission of the word " trial," said : " Whether that was because the words ' reference to ' include ' trial,' or whether it was because it was not intended that in the case of a trial the official referee should be considered an officer of the Court, is a little doubtful. In my opinion the former is the true construction, and I should be inclined to say that the official referee is to be deemed an ' officer of the Court ' when an action goes to him for ' trial ' " {Palmer v. Hardiuick (1890), 63 L. T. 302). 35 546 REFERENCES UNDER ORDER OF COURT This appears to be the correct interpretation, especially having regard to subs. (2), which makes the report or award of the referee " equivalent to the verdict of a jury," which could not be the case if the report were made under s. 13 of the Act. Further, the words " shall conduct the reference in such manner " do not appear to be appropriate to a reference for enquiry or report under s. 13, It should be observed also that the rules of Court which prescribe the conduct of the reference, viz. Order XXXVI., rr. 48, 49, 50, 52, and 53, all refer to a trial before the referee. Er. 54 and 55 of the same order, in which references for report under s. 13 are specifically referred to, contain no provisions with respect to the conduct of the reference. If the above is the correct view, and s. 14 refers only to references for trial, then it is in such cases only that the official or special referee or arbitrator is deemed to be an officer of the Court. " Report or aivard." It would seem that the word "report" in subs. (2) does not refer to a report upon a reference for enquiry or report under s. 13, but only to the finding of a referee on a reference for trial under s. 14, and to a report of that finding, in cases where the whole cause or matter has not been referred, although the word "report" is not used in s. 14. The possibility of such a report being made, and provisions in respect thereof, are contained in Order XXXVI., r. 53. The word " report " appears to have been taken from s. 58 of the Judicature Act, 1873, where it is used in connection with a reference for trial. Any other construction of the subsection would be inconsistent with the provisions of s. 13 (2) of the Act, by which the report of a referee on a reference for enquiry or report can only be enforced as a judgment or order after and within the limits of its adoption by the Court, and cannot be equivalent to the verdict of a jury. The words in the repealed s. 58 of the Judicature Act, 1873, for which s. 15 (2) of the Arbitration Act is substituted, are : " and the report of any referee upon any question of fact on any such trial shall (unless set aside by the Court) be equivalent to the verdict of a jury." The word " award " in subs. (2) appears to have been taken from ss, 3 and 6 of the Common Law Procedure Act, 1854, and to have no meaning under the Arbitration Act, except as a description of the method of giving a decision. An award in the proper sense of the term can only be made under a submission to arbitration, but this section of tlie Arbitration Act refers to a report on " any such reference " ; that is to say, any reference under an order of the Court or a judge (s. 15 (1)). Subs. (2) does not apply to a submission to arbitration, where there POWERS AND REMUNERATION OF REFEREES, ETC. 547 has been a stay of proceedings in an action under s. 4 of the Act ( Warburg v. M'Kerroiv (1904), 90 L. T. 644). The words " report or award " in the subsection mean the completed report or award of the referee, and do not refer to any interim decision at which he may arrive in the course of the trial. Illustration. Five actions pending between L. and W. were referred, with the consent of the parties, to an official referee for trial under s. 14 of the Arbitration Act. The referee, with the consent of the parties, sat to determine first certain issues of fact, and on these gave his decision. L. then moved to have this decision set aside. Held that the motion must fail, because the reference was for the trial of the whole matter, and these findings were not a decision upon the action but were preliminary findings {Lewis v. Walker (1897), 36 Sol. J. 110). Eomer, J., in that case, said : "S. 10 (of the Arbitration Act) refers to the case where the award has been made. . . . Eeference was made to Order XXXVI. , r. 52. On looking at this I am of opinion that it refers to a case where the referee has submitted some question of law or fact to the Court. ... S. 15 (2) cannot possibly apply, because there has been no report of the referee and no award." " Equivalent to the verdict of a jury." The effect of the words "equivalent to the verdict of a jury" is much less wide than might be thought. The trial before a referee cannot be deemed to have been a trial by a jury, and the effect of the words is merely that the referee's decision is enforceable as the verdict of a jury, and is of the same binding effect. Thus, the decision of a referee is not equivalent to the verdict of a jury for the purposes of appeal. In Glashrook v. Owen (1890), 7 T. L. E. 62, it was decided that the Judicature Act, 1890 (53 & 54 Vict. c. 44), which provides that appeals from the verdict of a jury shall go to the Court of Appeal, was inapplicable to the decisions of a referee on a reference for trial under s. 14. See also Gower v. Tohitt (1890), 39 W. E. 193. In Glashrook v. O^vcn {siqora), Hawkins, J., said that " it was impossible to come to the conclusion, because an Act said that a report of a referee should be ' equivalent to the verdict of a jury,' that there- fore the enquiry before a referee should be deemed to have been a trial by a jury. It merely meant that the report or award should be enforced as a verdict of a jury." The decision of a referee is also not equivalent to the verdict of a jury for the purpose of setting it aside. The wording of the section is similar to that of s. 58 of the Judicature Act, 1873, and under that section it was decided that the words " equivalent to the verdict of a jury " did not mean that the mode of setting aside the report was to be 548 REFERENCES UNDER ORDER OF COURT the same as was in use for setting aside the verdict of a jury, but that the words only dealt with the binding effect of the findings of fact of the referee {DtjIcb v. Cannell (1883), 11 Q. B. D. 180). In the Imperial Gaslight Co. v, Broaclhent (1859), 29 L. J. Ch. 877 ; 7 H. L. C. 600, an award in favour of the plaintiff in an action of nuisance was, on proceedings for an injunction to prevent the continu- ance of the nuisance, regarded as equivalent to the verdict of a jury establishing the existence of the nuisance, and as entitling the plaintiff to a perpetual injunction. 2. Official referees. Official referees are permanent officers attached to the Supreme Court. The number and qualifications of the persons to be so appointed from time to time, and the tenure of their offices, are determinable by the Lord Chancellor, with the concurrence of the Presidents of the divisions of the High Court of Justice or a majority of them (of which majority the Lord Chief Justice must be one), and with the sanction of the Treasury (Judicature Act, 1873, s. 83). They must perform their duties either in London or in the country, as directed or authorised by order of the Court. Distribution of hiisiness. The distribution of business amongst the official referees is provided for by the following rules of Order XXXVL : — R. 45. " When an order is made referring any business to the official referees appointed under the principal Act, i.e. Judicature Act 1873, the order may refer such business to any one in particular of the referees ; but if no particular referee is named in the order, the business shall be distributed among the official referees by the clerk to the senior official referee, in rotation or in such other manner as the Lord Chancellor may from time to time direct." E. 46. "When an order shall have been made referring any business to the official referees, not naming any one of them in particular, the order, or a duplicate of it, shall be produced to the clerk in the last preceding rule mentioned, who shall indorse on the order the name of the official referee to whom that business is to be referred, in accordance with last preceding rule, and the order so indorsed shall be sufficient authority for the official referee to proceed with the business so referred." E. 47. " When an order shall have been made referring any business to any one in particular of the official referees, the clerk in making the distribution of the business as by these rules directed shall have regard to such reference." E. 47b. "The Lord Chancellor and the Lord Chief Justice of England, or either of them, shall have power to order the transfer of POWERS AND REMUNERATION OF REFEREES, ETC. 541) any causes or matters from any one or more of the official referees to any other or others of them whenever in his opinion it shall be expedient so to do, having regard to the state of the business pending before the referees." Fees of official referees. By an order as to Supreme Court fees dated February 1903 (see Appendix) the fees on proceedings before an official referee have been fixed as follows : — 88. On every reference on entering a case for trial . .£100 89. In London or Middlesex, for every hour or part of an hour the referee is occupied, including examination of witnesses, if any . . . . . . . 10 90. On every reference (not in London or Middlesex) . . 5 Q And for every hour or part of an hour the referee is occupied beyond two full days . . . 10 91. On every sitting elsewhere than in London or Middlesex, a further fee for every night the referee shall be absent from London . . . . . . 1 11 6 And for his clerk . . . . .0150 The fee No. 88 is due and payable by the party entering the case for trial when the order of reference is entered with the official referee's clerk. If and when the cq^e is tried credit is given against the hearing fees for the fee No. 88, but in no case is such fee repayable. All fees are payable in advance by the party having the conduct of the case from day to day as the case proceeds. In any case in which a party may liave paid an amount in excess of the fees due, the party so paying is entitled to the return of any amount so paid in excess upon the certificate in writing of the official referee indorsed upon the form provided for that purpose. As to enforcing payment of these fees, see Order XXXVI., r. 55d. 3. Conduct of the reference. Generally. The authority of a referee acting under an order of the Court, made in pursuance of s. 13 or 14 of the Arbitration Act, is derived from the order. On any such reference the referee has " such authority, and shall conduct the reference in such manner, as may be prescribed by rules of Court, and subject thereto as the Court or a judge may direct "(s. 15(1)). The authority and mode of conducting the reference are to be found in the various rules of Court, and in particular in Order XXXVI., rr. 49 and 50, which provide as follows: — 49. " Subject to any order to be made by the Court or judge ordering 550 REFERENCES UNDER ORDER OF COURT the same, evidence shall be taken at any trial before a referee, and the attendance of witnesses may be enforced by subpoena, and every such trial shall be conducted in the same manner, as nearly as circumstances will admit, as trials are conducted before a judge." 50. " Subject to any such order as last aforesaid, the referee shall have the same authority with respect to discovery and production of docu- ments, and in the conduct of any reference or trial, and the same power to direct that judgment be entered for any or either party, as a judge of the High Court." The first of these rules deals with procedure, and the second with the powers and authority of the referee. Subject, therefore, to any express provision in the order of reference, the reference is to be conducted, as far as the circumstances will permit, in the same way as a trial before a judge would be conducted, and the authority of the referee is the same as that of a judge of the High Court, except in so far as the rules of Court vary or limit the procedure or powers. The Court, however, has a jurisdiction concurrent with that of the referee, who is deemed to be an officer of the Court (see s. 15 (1), and Haywanl v. Mutual Reserve Association, [1891] 2 Q. B. 236, and Macalpine v. Calder, [1893] 1 Q. B. 545). Witnesses and evidence. The referee has power to examine witnesses. In Wenlock {Baroness) v. River Dee Co. (1887), 19 Q. B. D. 155, the Court expressed a strong opinion that (whether the reference was for enquiry and report under s. 56 of the Judicature Act, 1873, or under s. 57 of that Act) where the form of order gave an express power to the referee to examine witnesses, he had power to take evidence and hold a judicial enquiry in the usual way in which such enquiries are held. Commission to take evidence abroad. And he has power to order a commission to issue for the purpose of taking evidence out of the jurisdiction. Illustration. An official referee refused, on the merits of the case, to order a commission to issue to take evidence abroad. Held, on appeal to the judge in chambers, which was referred to a Divisional Court, that the referee had power to make such an order {Hayward v. Mutual Reserve Association, [1891] 2 Q. B 226; approved in Macalpine v. Calder, [1893] 1 Q. B. 545; 62 L. J. Q. B. 607. See In re Mysore West Gold Mining Co. (1889), 42 Ch. D. 535; 58 L. J. Ch. 731). Discovery and production of documents. The referee has power to order discovery and production of docu- ments (Order XXXVI., r. 50). POWERS AND REMUNERATION OF REFEREES, ETC. 551 Illustration. In an action to administer the personal estate of L. a claim for £19^000 was made by B. for pictures, etc., and disputed by the executrix, Mrs. L., upon whose application the claim was ordered under s. 57 of the Judicature Act, 1873, to be tried by an official referee. B. made an affidavit as to documents, to the sufficiency of which Mrs. L. objected. She applied for an order to the chief clerk, who said it was a matter for the referee and refused to make one. The referee made an order which dissatisfied Mrs. L, She then appealed to the Vice-Chancellor, who held that he had the power either to make the order himself or to make it through his chief clerk, or to entertain an appeal from the decision of the referee {Re Leigh; Rowcliffe v. Leigh (1876), 4 Ch. D. 661). Time for trial of cause referred. No time is mentioned within which an officer of the Court should try a cause or matter referred to him. In the case of an official referee the case would take its place in the particular official referee'^ list. In the case of an arbitrator agreed upon by the parties, he must try the case in a reasonable time, and if he does not, application can be made to the Court, for the Court has control of its officers. Appointments for sittings. An official or special referee has power, subject to the control of the Court, to fix any time for the commencement of a hearing, and may give a peremptory appointment for this purpose, and may then, if a party does not attend, proceed with the hearing in his absence. Illustration. On a reference to a special referee the parties could not agree upon a date for the hearing, and the referee was of opinion that he had no power to fix a day. Held, by the Court of Appeal, that he had such power, and could proceed with the hearing on such an appointment in the absence of a party who did not then attend {Wenlock {Baroness) v. Iliver Dee Co. (1883), .53 L. J. Q. B. 208). Sittings are de die in diem. Eeferees, unless otherwise directed by the Court or a judge, should proceed with the reference de die in diem just as actions proceed before a jury. Order XXXVI., r. 48, provides, inter alia, that " Where any cause or matter, or any question in any cause or matter, is referred to a referee, . . . He shall, unless otherwise directed by the Court or a judge, proceed with the trial de die in diem in a similar manner as in 552 REFERENCES UNDER ORDER OF COURT actions tried with a jury." This rule does not, however, apply to an arbitrator who is appointed otherwise than by an order of the Court (Order XXXVL, r. 55c), and it has been held that the rule is merely directory in its nature, and if a party acquiesces in the sittings not being continuous, that party will not be permitted subsequently to set up the rule and plead this as a default for which the award or report of the referee should be set aside. Illustration. A referee did not sit de die in diem, but the plaintiff continued to attend the reference. Held that the plaintiff could not, after an award had been made in favour of the defendant on all the issues with costs, set up this as a default of the arbitrator and a ground for refusing to carry out the award {Eohinson v. JRoUnson (1876), 35 L. T. 337). Sittings of official referees. By Order XXXYL, r. 48, it is provided that, " Where any cause or matter, or any question in any cause or matter, is referred to a referee, he may, subject to the order of the Court or a judge, hold the trial at or adjourn it to any place which he may deem most convenient " ; and by Order LXIII., r. 16, that "The olticial referees shall sit at least from 10 A.M. to 4 P.M. on every day during the Michaelmas, Hilary, Easter, and Trinity sittings of the High Court of Justice, except on Saturdays during such sittings, when they shall sit at least from 10 a.m. to 1 p.m., but nothing in this rule shall prevent them sitting on any other days." Vieiv of premises by referee. Order XXXYL, r. 48, provides that " "Where any cause or matter, or any question in any cause or matter, is referred to a referee, he may,, subject to the order of the Court or a judge . . . have any inspection or view, either by himself or with his assessors (if any) which he may deem expedient for the better disposal of the controversy before him." It is entirely a matter for the discretion of the referee whether he will hold a view of the premises or not. Ilhistration. In an action by a builder to recover a balance due to him for work done which was compulsorily referred to arbitration, the arbitrator (the Master) declined to view the houses. On a motion to set aside the award on the ground of misconduct in the Master in refusing to view the houses, Eyre, C.J., said : " I know of no law which makes it impera- tive on an arbitrator to go and look at the premises. It is entirely a matter for his discretion " {Munday v. Black (1861), 9 C. B. (N. S.) 557). POWERS AND REMUNERATION OF REFEREES, ETC. 553 Order for inspection of premises. The referee has ample power to make orders for the inspection of premises which form the subject-matter of the dispute before him, under the provisions of Order XXXVI., r. 50. The Court has concurrent jurisdiction, but the convenient and proper course is to apply to the referee in the first instance. Illustration. In an action for work done to the premises of the defendants, all matters in dispute were referred by consent to an arbitrator, and the day after the order was made the plaintiffs applied for an order for inspection of the premises to a judge in chambers, who made the order desired. Held that although the judge had jurisdiction to make the order, the circumstances of the case were such that the order ought never to have been asked for or made in this way and that application should have been made to the arbitrator first (Macalpine & Co. v. Colder & Co., [1893] 1 Q. B. 545 ; 62 L. J. Q. B. 607, approving of Eayward V, Mutual Reserve Association, [1891] 2 Q. B. 236, and citing Barnett v. Aldridge Colliery Co. (18S7), 4 T. L. E. 16). Addition of parties. The referee has power, in a proper case, to order parties to be added, or to make other orders within the provisions of Order XVI., r. 11. Illustration. A lessee under a repairing lease agreed with D. to assign to him the residue of the lease. D. undertook to indemnify the lessee (but there was no mention of her assigns) against any breach of the covenants of the lease. The lessee died and her executors assigned the lease for a nominal consideration to her son, who received the rent from D. and paid it over to the lessors (the plaintiffs). The lessors brought an action for dilapidations, which was sent for trial to an official referee, who added the lessee's executors as defendants. Held that he had power to do this and had rightly exercised it {Byrne v. Brown (1889), 22 Q. B. D. 657). Amendments of pleadings. The referee has power to allow amendments in the pleadings to be made, even at the conclusion of the hearing {Taverner v. C^lff (1907), 51 Sol. J. 248). Referee no power of committal or attachment. The power of the referee on a reference for trial is, however, limited by Order XXXVI., r. 51, which provides that "Nothing in these rules contained shall authorise any referee to commit any person to prison or to enforce any order by attachment or otherwise." 554 REFERENCES UNDER ORDER OF COURT This constitutes an express exception to and limitation of the general terms of r. 50 of the order, set out above. 4. Remuneration of special referee or arbitrator. The amount of the remuneration of a special. referee or arbitrator, which is to be determined by the Court or a judge (s. 15 (3)), must depend upon all the circumstances and upon the position, professional standing, and special qualifications of the referee or arbitrator. Illustrations. 1. Questions had been referred to a special referee who was a Q.C., and his report was brought before the Court, which made an order in conformity with it, and fixed the referee's fee at five guineas per diem (JFallis V. Lichfield (1876), W. N. 130). 2. For an enquiry in a partnership action which had extended over twenty-seven days, and in which the report dealt with a number of difficult questions, the fee of two guineas an hour and twenty-five guineas for the report was fixed by the Court (Collier v. Chadwick (1885), 79 L. T. J. 293). The proper course for a party supporting the fees of the special referee is to adduce evidence before the taxing Master that those fees are reasonable and fair, and a taxing Master, when determining the amount of the remuneration to be paid, is not entitled, if the evidence all goes to show that in the opinion of persons in the same profession the charges made by the referee are, for a person in his position in that profession, fair, to disregard that evidence and to reduce the remunera- tion to such an amount as is in his (the taxing Master's) opinion fair {Maso7i V. Lovatt (1907), 23 T. L. E. 486). 5. Special Case. Order XXXVI., r. 52, provides that " The referee may, before the conclusion of any trial before him, or by his report under the reference made to him, submit any question arising therein for the decision of the Court, or state any facts specially, with power to the Court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the Court may direct ; and the Court shall have power to require any explanation or reasons from the referee, and to remit the cause or matter, or any part thereof, for re-trial or further consideration to the same or any other referee ; or the Court may decide the question referred to any referee on the evi- dence taken before him either with or without additional evidence as the Court may direct." The provisions of this rule apply also to official referees (Order i POWERS AND REMUNERATION OF REFEREES, ETC, 555 XXXVL, r. 52a) and to any officer of the Court or to any special referee -or arbitrator where any cause or matter or any question or issue of fact therein is referred to him (Order XXXVI., r. 55c). The object of the rule was explained by Cave, J., in Dyhe v. Cannell (1883), 11 Q. B. D. 180, at p. 183, as follows :— " It is obvious in the first place that a referee may have a difficulty as to the report he should make, and the rule provides for this by enabling him, before the conclu- sion of the trial before him or in his report, to submit any question for the decision of the Court or state any facts specifically. This provides for any difficulty the referee may feel ; but when that is disposed of, or when the report has been made, the Court may itself have a difficulty, and the rule accordingly enables the Court to require explanations or reasons from the referee." In dismissing a petition for winding up an assurance society, the •Court referred to a special referee the duty of drawing up a scheme for the reduction of the contracts of the society in place of a winding-up. Before reporting to the Court, it was necessary to settle certain points with regard to the rights between participating and non-participating policy-holders, and other matters. The referee stated a special case for the opinion of Court, which was argued and settled before his report was sent in {Re Great Britaiyi Mutual Life Assurance Society (1881), 19 Ch. D. 39). Under this rule the referee has discretion to submit any question arising in the reference, and to state facts in the form of a special case for the opinion of the Court, with power to the Court to draw inferences therefrom. The discretion of the referee under the rule is absolute. The power of the Court in dealing with a case stated under this v\\]^ is much more extensive than where the case is stated under s. 19 of the Arbitration Act ; but where the question submitted is one of law, it would seem that the rule and s. 19 must be read together, in which case the words " and shall if so directed by the Court or a judge " must, it would seem, be read into the rule. The remedy if a referee refuses during the proceedings to state a case on a question of law would appear to be the same as in the case of a reference by consent out of Court, namely, to apply to the Court under s. 19 for an order directing him to state a case. It is not, however, usual in references to official referees for trial, for parties to use the power conferred l)y s. 19, or to request questions to be submitted or facts to be specially stated under Order XXXVI., r. 52, because it is a practice for official referees to deliver oral judgments, in which they give reasons for their decisions, and these decisions can be questioned on the same grounds as the verdict of a jury. But in the case of special referees, whose decisions may be questioned ■on the same grounds, but who seldom by their award do more than direct judgment to be entered under the provisions of Order XXXVI., 556 REFERENCES UNDER ORDER OF COURT r, 50, it may in certain cases be desirable to use the power of s. 19 or to invoke the provisions of Order XXXVI., r. 52, But Order XXXVI., r. 52, contemplates references for report, as well as references for trial, and though in references for trial, if he- desires to submit questions for the decision of the Court, the referee must do so before the conclusion of the trial before him, yet when there is a reference for report, he can by that report submit questions for the decision of the Court, though the report may conclude his duties. S. 7 of the Arbitration Act, as to stating an award in the form of a special case, has no application to references under order of the Court. 6. Death of a party. The effect of the death of a party as a revocation of the authority of the referee or arbitrator or an abatement of the action, where an action is referred by order of the Court, depends upon whether the action alone is referred under s. 14 of the Arbitration Act, or whether the action and other differences are referred by consent under the inherent jurisdiction of the Court, and also upon whether the cause of action survives or is of such a nature that it dies with the person. If the reference is under s. 14 of the Arbitration Act, the question is governed by Order XVII., r. 1, which provides that " a cause or matter shall not become abated by reason of the marriage, death, or bankruptcy of any of the parties if the cause of action survive or continue . . . and whether the cause of action survive or not there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment ; but judgment may in such case be entered, notwithstanding the death." If the reference is under the inherent jurisdiction of the Court, the general rule applies that the death of a party before the award is made operates as a revocation of the authority of the arbitrator in the absence of a provision to the contrary in the submission to arbitration, i.e. the order of reference {aiite, p. 64). But there is a distinction as to the effect of death as a revocation when the referee has to state a case instead of making an award. Where a cause was by order of Nisi Frius referred to a barrister, who was to state a special case, and the case was stated and delivered after the death of the defendant, the Court refused to set it aside {James v. Crane (1846), 3 D. & L. 668). If the cause of action is one which dies with the person, the death of a party before the award will operate as a revocation, even if there is a clause in the order of reference providing that the death of a party shall not revoke the arbitrator's authority. Thus, where an action of tort dying with the person was referred to arbitration by an order made by consent, and with a stipulation that the award should bind the representatives in the case of the death of either party, and the plaintiff POWERS AND REMUNERATION OF REFEREES, ETC. 557 ^ied before the award, it was held that the action abated and that the plaintiff's executors could not be substituted {Bowker v. Evans (1885), 54 L. J. Q. B. 421). 7. Awarding when action referred. l^Note. — The cases cited under this heading were all decided before the Arbitration Act, but they are still of importance, not only in the case of references of actions by consent outside the provisions of the Act, but also in the case of references for trial under s. 14 of the Act, to which the principles governing the older cases are largely applicable.] Aivarding entry of verdict. A cause may be referred at any stage, and it used frequently to happen that a verdict was taken for the plaintiff for a specified amount at the trial, subject to a reference. At whatever stage the reference took place the arbitrator could direct a verdict to be entered, if the power to do so was conferred on him by the order of reference in express terms {Angus v. Bedford (1843), 11 M. & W. 69; 12 L. J. Ex. 180); otherwise he could not do so {Hutchinson v. Blackiuell (1832), 8 Bing. 531 ; 1 L. J. (N. S.) C. P. 98 ; Harding v. Forshaw (1836), 1 M. & W. 415). Poiver over the issiies. An arbitrator empowered to certify for whom and for what amount, if any, a verdict should be entered, had the same authority as a jury of directing a verdict to be entered on the several issues ( Woof v. Hooper (1838), 4 Bing. K C. 449 ; Williams v. Moidsdale (1840), 7 M. & W. 134 ; 10 L. J. Ex. 2). Though no order was drawn up on the verdict taken subject to the reference, the parol consent of the parties was a sufficient authority for the arbitrator to certify that a verdict should be entered {Tomes v. Haivhcs (1839), 10 A. & E. 32). Verdict taken on one issue only. If a verdict was taken on one issue, with specified damages, subject to the reference, and the cause and all matters in difference were referred, it was an excess of authority for the arbitrator to direct a verdict to be entered for the plaintiff for a sum composed of the amount of the specified damages, and the damages which he assessed to be due to the plaintiff on the other issues in the cause {Hayivard v. Phillips (1837), 6 A. «& E. 119 ; 6 L. J. (N. S.) K. B. 110). Srd)stantia.l decision sufficient direction. A strictly formal exercise of the power to direct the entry of a verdict was not necessary to authorise the entry ; though of course the clearer the language used the better. A substantial decision in favour 558 REFERENCES UNDER ORDER OF COURT of either party was sufficient {Nalder v. Batts (1844), 1 D. & L. 700 ; 13 L. J. Q. B. 10 ; Piatt v. Hall (1837), 2 M. & W. 391 ; 6 L. J. (K S.) Ex. 144; Salter v. Ycates (1837), 2 M. & W. 67 ; 6 L. J. (N. S.) Ex. 67). Effect of unauthorised award of a verdict. Where after issue joined a cause was referred and the arbitrator^ who had no power to direct a verdict to be entered, in his award said, " I do award, order, and adjudge that there should be a verdict for the plaintiff " for a certain sum, the Court, in an action on the award, held the award good as a finding of the arbitrator that the plaintiff was^ entitled to recover the sum named (Everest v. Ritchie (1862), 7 H. & N. 698; 31 L. J. Ex. 350. See Law v. Blackburrow (1853), 14 C. B. 77; 23 L. J. C. P. 28; iMays v. Caniiell (1854), 15 C. B. 107; 24 L. J. C. P. 41 ; Cock V. Gent (1844), 13 M. & W. 364 ; 15 L. J. Ex. 33). But wher© the arbitrator ordered a verdict to be entered for the plaintiff when he had no power to do so, his award could not be enforced by attachment (Doidan v. Brett (1835), 2 A. & E. 344 ; 4 L. J. (K S.) K. B. 55), and it might have been set aside {Hayward v. Phillips (1837), 6 A. & E. 119 ; 6 L. J. (N. S.) K. B. 110). The distinction between these cases appears to be between a positive- direction that a verdict shall be entered and a mere expression of opinion that the plaintiff is entitled to recover {Everest v. Ritchie (1862),. 7 H. & N. 698, per Pollock, C.B., at p. 701). Aivarding damages. If the arbitrator finds for the plaintiff on any portion of the claim not covered by any defence, he must in general proceed to assess damages for the plaintiff, or the award will not be final. But if the matters of defence found for the defendant completely answer the plaintiffs claim^ it is more proper not to assess any damages on the issue found for the plaintiff {Savage v. AsMvin (1839), 4 M. & W. 530 ; 8 L. J. (K S.) Ex. 43) ; and if there is an assessment of damages in such a case, the assess- ment is merely surplusage, and will not affect the right to costs {Ross v^ Cliffton (1843), 2 Dowl. (N. S.) 983 ; 12 L. J. Q. B. 265). General damages on all issues. Where an arbitrator found all the issues for the plaintiff, and on, such finding assessed general damages, this was held to mean an award of damages on all the issues on which damages could be assessed (Hobdell V. Miller (1840), 6 Bing. N. C. 292). One breach, damages on several issues. In an action of covenant, where there was only one breach, a direc- tion that a verdict should be entered for the plaintiff on each of the two- POWERS AND REMUNERATION OF REFEREES, ETC. 559* issues raised by the pleas, with separate damages on each, was considered sufficiently certain as to the damages, as the verdict might be entered for the sum of the two separate amounts {Smith v. Festiniog Bail. Co.. (1837), 4 Bing. K C. 23). Damages not to exceed amount taken on the verdict. The arbitrator could not direct a verdict to be entered for a sum exceeding the damages for which the verdict was taken subject to the reference {Bonner v. Charlton (1804), 5 East, 139; Frentice v. Beed (1808), 1 Taunt. 151). No limit of damages as to matters outside cause. When a cause and all matters in difference were referred at Nisi' Prius there was no limit to the amount the arbitrator might award in respect of the matters in difference beyond the cause {Pearse v. Cameron (1813), 1 M. & S. 675). Limiting damages hy plaintiff's particulars. It seems that the amount of damages the arbitrator might award was limited by the sum claimed in the plaintiff's particulars of demand, if the defendant brought the particulars before the arbitrator's notice {Kenrich v. Phillips (1841), 7 M. & W. 415 ; 10 L. J. Ex. 226). Awarding joint damages to plaintiff and party added. Where a cause was referred by consent of the parties and of one Cole, and the arbitrator was empowered to direct for whom and for what sum the verdict should be finally entered, and to settle all matters in difference between the parties to the action and between the defen- dants and Cole, and the arbitrator awarded, inter alia, certain damages " to be paid by the defendants to the plaintiff and Cole, who consented to become a party in the cause," the Court, on an objection being made that under this submission the arbitrator was not entitled to treat Cole as a plaintiff and award damages to him and the original plaintiff jointly,, refused to grant a rule to order the amount to be paid, considering the sufficiency of the award doubtful {Hatvlcins v. Benton (1845), 2 D, & L. 465; 14 L. J. Q. B. 177); but an action being afterwards brought on the award by Cole and the plaintiff jointly, the Court on demurrer sustained the award as valid {Hawkins v. Benton (1846), 8 Q. B. 479; 15 L. J. Q. B. 139). Cause only referred, no award of money to defendant. All matters in difference in a cause and nothing beyond being referred, the arbitrator, before the Judicature Acts, had no authority to- order the plaintiff to pay the defendant anything {Poyner v. Hatton 560 REFERENCES UNDER ORDER OF COURT (1841), 7 M. & W. 211 ; 10 L. J. Ex. 64); but when the submission was of the cause and all matters in difference, the arbitrator ought to have ascertained the amount of the defendant's claim, and if it exceeded the plaintiffs demand, to have directed the plaintiff to pay the balance {Maloney v. StocUey (1843), 2 Dowl (K S.) 122; 12 L. J. C. P. 92). Awarding judgmenL Formerly, on a reference of a cause, the arbitrator under the old law had generally no power to direct judgment to be entered ; but if he did so in excess of his authority, and there was otherwise a sufficient deter- mination of the cause, his direction as to judgment might be treated as surplusage and did not necessarily invalidate the award (Doe d. Body v. 6'ar (1846), 4 D. & L. 75 ; 15 L. J. Q. B. 317). When the determination of the cause required that the arbitrator should find upon issues of law as well as of fact, it would seem that he might order judgment to be entered on the issues in law, but he had no power to order judgment to be arrested (Angus v. Bedford (1843), 11 M. & W. 69 ; 12 L. J. Ex. 180). Awarding when costs abide the event. Arbitrator niitst determine cause. If by the submission the costs of the cause are to abide the event (as to the meaning of the word "event" in this connection, see ^^os^^, p. 578) as to the cause, the arbitrator must determine the cause in favour of one party or the other so as to show by whom the costs should be paid (Hunt v. Hunt (1836), 5 Dowl. 442 ; Norris v. Daniel (1834), 10 Bing. 507; 3 L. J. (N. S.) C. P. 160; Leeming and Fearnley, In re (1833), 5 B. & Ad. 403). Issues decided. If, however, the arbitrator decides all the issues, and then directs that no further proceedings shall be taken in the action, though this award of a stet processus may be void as an excess of authority, yet it will not vitiate the award, as, there being a decision on the issues, there is a legal event on which the officer of the Court can tax the costs (Ward V. Hcdl (1841), 9 Dowl. 610. See Hobson v. Stewart (1847), 16 L. J. Q. B. 145 ; 4 D. & L. 589). Award of general verdict. AVhere the declaration contained eleven special counts for negligence, and also common counts for money paid, and there was a plea of the general issue, and the arbitrator found that the plaintiff had good cause of action for a specified sum, and directed a verdict to be entered for POWERS AND REMUNERATION OF REFEREES, ETC. 561 that sura, the award was considered sufficient as a finding on all the counts {Dicas v. Jay (1828), 5 Bing. 281 ; 7 L. J. (0. S.) C. P. 80). Award on the whole, shovnng cause decided. It was sufficient, before the modern rules as to taxing the costs of particular issues, if, looking at the whole award, though there was no express termination of the cause, the Court could see that the cause was determined in favour of either party, so as to make an event on which costs could be taxed {Jackson v. Yabsley (1822), 5 B. & A. 848 ; Dickins v. Jarvis (1826), 5 B. & C. 528 ; Doe d. Williams v. Bichardson (1819), 8 Taunt. 697). Each issue should he determined. When a cause is referred after issue joined, and the costs of the cause are to abide the event of the award, it is incumbent on the arbitrator, whether he has to make an award or only a certificate, either to dispose specifically of each issue, or so to adjudicate that it can be clearly inferred from the award or certificate in which way each of the issues has been determined, so as to enable the officer of the Court to tax the costs for the party in whose favour each issue is found {Hunt v» Hunt (1836), 5 Dowl. 442; Stoneheiver v. Farrar (1845), 6 Q. B. 730; 14 L. J. Q. B. 122; Armitnge v. Coates (1849), 4 Ex. 641; 19 L. J. Ex. 95; Humiihreys v. Pmrce (1852), 7 Ex. 696; 22 L. J. Ex. 120). The change in the forms of pleadings effected by the Judicature Acts has not relieved the arbitrator from this duty {Ellis v. Desilva (1881), 6 Q. B. D. 521 ; Lund v. CampMl (1885), 14 Q. B. D. 821 ; 54 L. J. Q. B. 281 ; Haivke v. Brear (1885), 14 Q. B. D. 841 ; 54 L. J. Q. B. 315), and Order LXV., r. 2, provides that " When issues in fact and law are raised upon a claim or counterclaim, the costs of the several issues respectively, both in law and fact, shall, unless otherwise ordered, follow the event," a rule which is in accordance with the previous practice (see Reg. Gen. H. T. 2 Will. IV., r. 74, and Reg. Gen. H. T., 1853, r. 62). As the issues must be specifically or substantially decided, if any issue is left undetermined, the award is bad {Bourke v. Lloyd (1842), 10 M. & W. 550 ; 12 L. J. Ex. 4, commenting on Duckworth v. Harrison (1838), 4 M. & W. 432 ; 8 L. J. (N. S.) Ex. 41, and Dihhen v. Marquis of Anglesey (1834), 2 C. & M. 722; 4 L. J. (N. S.) Ex. 278). Where a declaration contained two counts, one on a promissory note, and the other on an account stated, an award that the plaintiff had good cause of action for a certain sum, being the amount of the promissory note, was held bad, since it did not dispose, in favour of either party, of the issue on the account stated {Qisborne v. Hart (1839), 5 M. & W. 50 ; 8 L. J. (N. S.) Ex. 197). So, where there was a plea 36 562 REFERENCES UNDER ORDER OF COURT of 11071 assumiJsit to a declaration containing several counts, and the arbitrator found that the defendant was justly indebted to the plaintiff in a certain sum, the award was held defective; since, although it determined that on some one or more of the counts the defendant was liable, it did not necessarily determine the issues raised by the plea on each of the counts {Kilburn v. Kilhirn (1845), 13 M. & W. 671 ; 14 L. J. Ex. 160). Siibstantial decision sufficient. But a finding by the arbitrator leading by necessary inference to the decision of the issues in the cause is sufficient (Avelett v. Goddard (1842), 11 L. J. C. P. 123; Wilcox v. Wilcox (1850), 4 Ex. 500; 19 L. J. Ex. 27). Thus, an award that a certain sum was due from the defendant to the plaintiff " in respect of all the matters referred," was treated by Wightman, J., as a finding on all of several counts in indebitatus assumpsit in the plaintiff's favour (Baker v. Cotterill (1849), 7 D. & L. 20 ; 18 L. J. Q. B. 345). So, an award that the plaintiff had good cause of action, " as stated in the declaration," was held to mean on the whole declaration (PM^tps v. Higgins (1851), 20 L. J. Q. B. 357). "When to a declaration containing several of the ordinary indebitatus counts the defendant pleaded, first non assumpsit, and also three other pleas, and the arbitrator found, " as to the issues, firstly, thirdly, and lastly joined," that the verdict should stand for the plaintiff, and on the second issue for the defendant, it was held sufficient (Adam v. Roivc (1846), 15 L. J. Q. B. 223 ; 3 D. & L. 331). Where an arbitrator found that the plaintiff had good cause of action in respect of a count to which several pleas were pleaded, each of which, if true, was a sufficient answer to the count, as, for example, in trover, where the defendant pleaded not guilty and not possessed, it was held that such a finding amounted in fact to a distinct finding in plaintiff's favour on each issue (Hobson v, Stewart (1847), 16 L. J. Q. B. 145 ; 4 D. & L. 589 ; Williamson v. Lock (1845), 2 D. & L. 782 ; 14 L. J. Q. B. 93). In an action on the usual money counts, with pleas of never indebted, Statute of Limitations, payment, set-off, and accord and satis- faction, an award that the defendant was not at the time of action indebted to the plaintiff, and finding a verdict for the defendant, was held sufficient (Holland v. Judd (1858), 3 C. B. (K S.) 826). Ejectment. In ejectment, if there were several demises, the arbitrator was bound to find on which demise the plaintiff was entitled to recover, and to award for the defendant on the other demises ; since the defendant was entitled to the costs of the issues on the demises found in his favour (Doe d. Madkins v. Horner (1838), 8 A. & E. 235 ; 7 L. J. (X. S.) POWERS AND REMUNERATION OF REFEREES, ETC. 563 'Q. B. 164; Doe d. Starling v. Hillen (1843), 2 Dowl. (N. S.) 694; 12 L. J. Q. B. 166 ; Doe d. Bowman v. Lewis (1844), 13 M. & W. 241 ; 2 D. «& L. 667; Doe d. Oxenden v. Croijper (1839), 10 A. & E. 197; 8 L. J. (N. S.) Q. B. 241). But an award " in favour of the lessors of the plaintiff" was decided in the Court of Common Pleas to be a sufficient decision of both of two demises in ejectment for the plaintiff •{Mays V. Cannell (1854), 24 L. J. C. P. 41 ; Law v. BlacJcburrow (1853), 14 C. B. 77 ; 23 L. J. C. P. 28). Finding on specific claims in a general count. Though an award deciding every issue was strictly sufficient, yet as a single count in assumpsit or debt under the old forms often contained a number of independent claims, it was advisable for the arbitrator, if he found for the plaintiff on one or two only of these demands, to specify which they were, and to find against him as to the rest : for, if he did not thus limit the finding, the Master would be obliged to allow the plaintiff his costs applicable to every one of the separate claims included in the count, however unfounded the majority of them might be {Gore v. Baker (1854), 4 E. & B. 470 ; 24 L. J. Q. B. 94). On one defence where several defences pleaded. With reference to the distribution of costs on a statement of defence containing many defences, the arbitrator may often with propriety find one defence proved and the others not proved {Reynolds v. Harris (1858), 3 C. B. (K S.) 267 ; 28 L. J. C. P. 26). Clause in order of reference 2^'i'oviding for general aioard. In order to avoid the difficulties which arose as to whether the arbitrator had decided on each issue, a clause was often inserted in orders of reference that it should be sufficient for the arbitrator to award in favour of the plaintiff or defendant generally, unless either party requested him to find on some particular issue or issues. No finding on issues necessary when arbitrator to tax costs. On a reference of a cause and all matters in difference, if the costs are to abide the event and to be taxed by the arbitrator, he need not decide the issues separately, or the cause separately, . from the other matters in difference, or state the amount of the costs separately. In such a case, directing one party to pay the other a specified sum is a sufficient decision of all matters {Bradley v. Phelps (1851), 6 Ex. 897 ; 21 L. J. Ex. 310). Duty of arbitrator vjhen costs of cause do not abide event. Where on the reference of a cause the costs of the cause do not abide the event of the award, but only the costs of the reference ai^d 564 REFERENCES UNDER ORDER OF COURT award abide that event, it is not necessary for the arbitrator to find on each specific issue, unless specially called upon to do so by the order of reference, for the costs of the reference and award are determined by the general event of the action {Duckworth v. Harrison (1838), 4 M. & W. 432 ; 8 L. J. (K S.) Ex. 41 ; Bourhe v. Lloyd (1842), 10 M. & W. 550; 12L. J. Ex. 4). 8. Directing judgment to be entered. Order XXXVI., r. 50, provides, inter alia, that, " subject to any such order as last aforesaid, i.e. any order to be made by the Court or judge ordering the reference, the referee shall have . . . the same power to direct that judgment be entered for any or either party as a judge of the High Court." Order XL., r. 2, provides that " every referee to whom a cause or matter shall be referred for trial shall direct how judgment shall be entered, and such judgment shall be entered accordingly by a Master or registrar as the case may be." And by Order XL., r. 6a, the provisions of Order XL., r. 2, are made applicable to a reference to any officer of the Court or special referee or arbitrator under an order of the Court. For form of order directing judgment, see Appendix of Forms. S. 9 of the Judicature Act, 1884, gave power to an official referee to direct in what manner the judgment of the Court should be entered. This power has not been repeated in s. 14 of the Arbitration Act, although s. 9 of the Judicature Act, 1884, has been repealed. Kay, J.^ on this subject said: "But although s. 9 of the Judicature Act, 1884, gave the official referee power ... to enter up judgment, yet such last- mentioned power was not derived by him from that Act, but from Order XXXVL, r. 50. That rule was not abolished " {Bannister v. M'Donald (1890), W. K 50). Omission to direct judgment. If a referee, officer of the Court, or arbitrator should omit to direct judgment to be entered upon a reference for trial of a cause or matter, it would seem that the proper course would be to apply to him to direct that judgment should be entered. An official referee has the same power to do this as a judge of the High Court, by virtue of Order XXXVL, r. 50, and by r. 55c of the same order this power is also given to an officer of the Court, a special referee, or an arbitrator. Entering judgment pursuant to direction. Order XL., rr. 2 and 6a, provide that a judgment directed by a referee, officer of the Court, or arbitrator on the reference of a cause or matter for trial under an order of the Court " shall be entered accord- ingly by a Master or registrar as the case may be." POWERS AND REMUNERATION OF REFEREES, ETC. 565 The Table of Official Eequirements (Judgments) Annual Practice, 1918, p. 2508, provides that an office copy of the order directing judgment must be produced, the copy having been previously filed at the Filing Department, and that a copy of the pleadings must then be filed also. If the order directs that the judgment is to date from the service of a copy of the order directing it, an affidavit of the due service of the order must also be filed. Effect of judgment of referee. The judgment entered on the direction of a referee, officer of the Oourt, or arbitrator on a reference for trial is as much a judgment of the High Court as if it had been given by the judge who referred the matter after the trial of the cause in the usual way ( Wynne-Finch v. Chmjtor, [1903] 2 Ch. 475). 9. Report when question or issue of fact referred. Where any question or issue of fact arising in a cause or matter is referred to a referee under s. 14, the result must be embodied in a report which the referee should put into the same state as a jury has to do when it finds a special verdict {per Brett, L.J., in 3Iiller v. Pilling (1882), 9 Q. B. D., at p. 738). " In my opinion the official referee is not bound to set out the steps by which he has arrived at his conclusions ; it is unnecessary for him to do so ; he has only to find the ultimate issues of fact. If he were bound to state all the circumstances, what would he be bound to do in cases of account. It would do away with the utility of references if it were necessary for the official referee in every case to state his reasons " (per Cotton, L.J., in Miller v. Pilling, supra, at p. 740). 10. Appeals. Appeals from interlocutory orders of referee. An appeal from an interlocutory order of a referee, e.g. the decision of a referee fixing a peremptory appointment, or from a refusal by him to postpone the hearing, should be to a judge in chambers. Illustration. An official referee refused to postpone the hearing of a reference until the defendant had returned to England. The defendant appealed to a Divisional Court from this decision. Held that the appeal properly lay to a judge in chambers, but in the circumstances the Divisional Court heard the appeal {Richard v. Talhot (1890), 38 W. R. 478, dis- tinguishing Byrne v. Brown (1889), 37 W. R. 592. See also Hayward v. Mutual Reserve A sfsociation, [1891] 2 Q. B. 236, and In re Leigh (1876), 4 Ch. D. 661). In Ilayivarcl v. Mutual Reserve Association, Denman, J., by way of explaining the nature of the appeal, said : *'No doubt in the 566 REFERENCES UNDER ORDER OF COURT notice of motion the application is stated to be by way of appeal, but it is in fact a substantive application to the Court, asking the Court to do what it is contended the official referee ought to have done in the first instance." Time for aj)])eal on interlocutory matter. The time for appealing, as to interlocutory matters, from the decision of a referee, or a Master acting in the same manner as a referee, is within the provisions of Order LIV., r. 21, and must not exceed five days from the decision complained of, or give less than one clear day between service of the notice of appeal and the day of hearing, unless otherwise ordered. This rule only expressly applies to an appeal from the order or decision of a Master, but it is submitted that it is applicable to the order or decision of a referee in the performance of duties analogous to those performed by a Master in an action, e/j. interlocutory orders as to discovery or fixing a time for a hearing. Motion to have report set aside. The proper course for a party who wishes to question a report on a reference for trial is to move to have the report set aside and have the matter referred back to the referee before judgment has been entered on the report. Illustration. An action for the recovery of arrears of rent was referred to an official referee for trial of all questions of fact in the action. The plaintiff gave notice of motion for judgment on the findings, and the defendant gave notice of motion to set aside the findings and remit the action to the referee. Held that the defendant's course was right, and that he was not bound by the rule limiting the time for moving for a new trial in an action tried by a jury {Dyke v. Cannell (1883), 11 Q. B. D. 180). The motion in the King's Bench Division should be made to a Divisional Court, and in the Chancery Division to the judge to whom the action is assigned. In Wenlock {Baroness) v. Biver Dee Co. (1887), 19 Q. B. D. 155, at p. 160, Lopes, L.J., said: " One kind of report is to be equivalent to the verdict of a jury, in the case of which any applica- tion to set it aside or vary it must be made to a Divisional Court." Illustration. An application was made to the judge who ordered the reference to set aside the findings of a special referee and to remit the case to him, but the judge held that an application for a new trial ought to be made to a Divisional Court, though he himself could deal with the report on further consideration and reject all or part of it {Cooke v. Newcastle and Gateshead Water Co. (1882), 10 Q. B. D. 332). POWERS AND REMUNERATION OF REFEREES, ETC. 567 The cause or matter, or any part thereof, may be remitted for re-trial or further consideration to the same or any other referee (Order XXXVI., r. 52). Motion to set aside the judgment directed hy referee. By 0,rder XL., r. 6, it is provided that "Where at a trial by a referee he has directed that any judgment be entered, any party may move to set aside such judgment and to enter any other judgment, on the ground that upon the finding as entered the judgment so directed is wrong: Provided that in the King's Bench Division such motion shall be made to a Divisional Court," and by r. 6a this applies to a reference to any officer of the Court or special referee or arbitrator under an order of the Court. In the Chancery Division such motions are made to the judge to whom the cause is assigned. Illustration. An official referee directed that judgment should be entered for the plaintiff, and judgment was entered accordingly. The defendants gave notice of motion by way of appeal to the Court of Appeal to set aside the judgment and enter judgment for them. The full Court of Appeal heard the case and held that in the Chancery Division, there being no Divisional Court, the motion ought to have been made to the judge to whom the action was assigned {Wynne-Finch v. Chayto7; [1903] 2 Ch. 475; 72 L. J. Ch. 723, overruling Serle v. Fardell (1890), 44 Ch. D. 299). Powers of Court to set aside binder Order XL., r. 6. This rule in terms only provides for an application to set aside the judgment, and for another judgment to be entered, upon the ground that the judgment is, on the finding as entered, an erroneous one ; but the Court on such an application may vary or set aside the finding of the referee by virtue of the provisions of Order XXXVI., r. 52 which must be read with Order XL., r. 6 (see Clark v. Sonnenschein (1890), 25 Q. B. D. 464; 59 L. J. Q. B. 561, and Wynne-Finch v. Chaytor, [1903] 2 Ch. 475; 72 L. J. Ch. 723). Form of notice of motion. The notice of motion to set aside the judgment under Order XL., r, 6, should ask that the judgment be set aside and another judgment be entered accordingly. This form will guard against any attempt to raise an objection to the motion on the ground that judgment has already been entered. Illustration. An official referee made his award, and judgment had been entered on it. On a motion to set aside the judgment, &c., a prehminary 568 REFERENCES UNDER ORDER OF COURT objection was taken that the notice of motion ought to have been delivered before judgment had been entered, but the Court overruled the objection {Prmdfoot v. Hart (1890), 25 Q. B. D. 42). That the motion may ask for judgment to be* entered for the party making the motion is well settled. Esher, M.R., in Clark v, Sonnenschein (1890), 25 Q. B. D. 464, said : " The decision of an official referee is subject to the same rules as to appeal as the decision of a judge trying a case without a jury." Illustration. On a reference for trial an official referee directed judgment to be entered. On a motion to set aside the judgment, the Queen's Bench Division set it aside and directed judgment to be entered for the other party, and it was held by the Court of Appeal that the decision was right (Clark v. Sonnenschein (1890), 25 Q. B. D. 464). For form of notice of motion, see Appendix of Forms. Time within tvhich motion, may he made. The question of the time within which a motion to set aside the judgment must be made does not appear to have been decided, and is one upon which considerable uncertainty prevails. In Forrest v. Todd (1897), 76 L. T. 500, there had been a reference for trial of a cause in the Queen's Bench Division, and a notice of motion asked, inter alia, for a new trial. The Divisional Court held that Order XXXIX., rr. 3 and 4, were applicable. But the attention of the Court does not appear from the report to have been directed to r. 1a of the order in question, which expressly provides that r. 4 of the order shall apply to motion? for a new trial where there has been a trial with a jury, and that the application of the rule is limited to such cases (see Dyke v. Cannell (1883), 11 Q. B. D. 180, and Bedborough v. Army and Navy Hotel Co. (1884), 53 L. J. Ch. 658). Illusfration. An appeal was brought from a judgment directed to be entered by an official referee on a reference for trial. The motion, infer alia, asked for a new trial. The judgment was entered on 2nd March and the notice of motion was served on 24th April. Held that the matter was covered by Order XXXIV., rr. 3 and 4, and that the motion was out of time (Forrest v. Todd (1897), 76 L. T. 500). The Judicature Act, 1890, which deals with motions for new trials or to set aside judgment, only applies where there has been a trial with a jury, and has no application to trials before referees or arbitrators. Illustration. On a motion to the Court of Appeal asking that the findings of an official referee should be set aside and a new trial ordered, under the POWERS AND REMUNERATION OF REFEREES, ETC. 569 provisions of the Judicature Act, 1890, which provides for appeals direct to the Court of Appeal, it was held that this Act was only applic- able where there had been a trial with a jury, and that the motion should have been made to a Divisional Court. The motion was accord- ingly transferred {Gower v. Tobitt (1891), 39 W. R. 193. See also Glashrook v. Owen (1890), 7 T. L. R. 62). Order LXIV., r. 14, which regulates the time within which a motion may be made to set aside an award, is not applicable to a reference under s. 14 of the Arbitration Act, for such a reference is not strictly a reference to "arbitration" at all (see ante, p. 496), and the judgment entered upon the direction of the referee or arbitrator is not an award or certificate (see Mundm/ v. Norton, [1892] 1 Q. B. 403). A judgment so entered would appear to be equivalent to a judgment of the High Court (see Wynne-Finch v. Chaytor, ante, p. 567), but the rules governing appeals from judgments of the High Court apply only to appeals to the Court of Appeal (see Order LVIII.) and not to those appeals to the Divisional Court or the judge as the case may be. It therefore appears that there is no express provision regulating the time for these appeals, and it would seem that there is no limita- tion in this respect apart from the inherent discretion of the Court to refuse to entertain the application if there has been unreasonable delay. Affidavits necessary in support of motion. The motion to set aside the judgment must be supported by affidavit, if necessary, and the statements of counsel as to what took place at the hearing will not be sufficient without an affidavit or a copy of the referee's note in support. Illustration. Judgment had been entered in a case tried before an official referee. In moving a Divisional Court to enter judgment the other way, counsel, who was also counsel at the trial, proposed to give his own statement of what took place there. He had neither the referee's note nor an affidavit of the facts proved. The Court said that an affidavit or some evidence of what took place at the trial must be produced {Stuhhs v. Boyle (1876), 2 Q. B. D. 124). Grounds of appeal. An appeal against the decision of a referee or arbitrator upon a reference for trial under s. 14 is of the same nature as an appeal from the findings of a judge in a non-jury action, and the Court will not disturb the decision except on such grounds as those upon which the verdict of a jury or the judgment of a judge sitting without a jury 570 REFERENCES UNDER ORDER OF COURT would be disturbed, e.g. misdirection, or the improper reception of evidence, or that the decision is against the weight of the evidence. In Clark v. Sonnenschein (1890), 25 Q. B. D. 464, Bowen, L.J., said : " It is suggested that the finding of an official referee is to be treated as a verdict, and that it should only be reversed or set aside if the Court is satisfied that it is perverse or unreasonable. I do not think so, nor do I think that the language of the Court of Appeal in Miller v. Pilling (1882), 9 Q. B. D. 736, ought to be so understood." In Longman v. East (1877), 3 C. P. D. 142, at p. 155, Brett, L.J., said : " With regard to the finding of a referee of issues of fact sent to him ... I think the appeal is of the same nature as the appeal from the finding of a judge when he tries without a jury, or as the appeal from the finding of a jury; that is to say, the Court must accept the finding of the referee unless they can set it aside according to the ordinary rules which would be applicable to the finding of a jury, or to the finding of a judge trying a cause without a jury." And in Walher v. Bunhell (1883), 52 L. J. Ch. 596, at p. 598, Jessel, M.R,, said: "Under s. 58 of the Judicature Act, 1873, the report is equivalent to a verdict. You can apply for a new trial on the ground of the verdict being given by mistake or against the evidence. . . . Where an official referee has had evidence before him, his finding amounts to a verdict." Security for costs of aj)peal. The Court, on the hearing of an appeal from a referee or arbitrator on a reference for trial, has inherent jurisdiction to order the appellant to give security for the costs of the appeal {Billington, Ltd. v. Billington, [1907] 2 K. B. 106 ; 76 L. J. K. B. 664). Appeal to Court of Ai^pieal. An appeal to the Court of Appeal lies without leave from an order of a Divisional Court or a judge of the Chancery Division on an appeal from the decision of a referee, arbitrator, or officer of the Court to whom a reference for trial is ordered under s. 14. The provision of s. 1 (5) of the Judicature Act, 1894, that " in all cases where there is a right of appeal to the High Court from any Court or person, the appeal shall be heard and determined by a Divisional Court constituted as may be pre- scribed by rules of Court ; and the determination thereof by the Divisional Court shall be final unless leave to appeal is given by that Court or by the Court of Appeal," applies only to appeals to the High Court from inferior Courts and not to appeals from judgments or orders of the High Court itself ( Wynne-Finch v. Chaytor, [1903] 2 Ch. 475 ; 72 L. J. Ch. 723, overruling Daglish v. Barton, [1900] 1 Q. B. 284; 68 L. J. Q. B. 1044. See also Munday v. Norton, [1892] 1 Q. B. 403 ; 61 L. J. Q. B. 456). POWERS AND REMUNERATION OF REFEREES, ETC. 571 11. Costs. What are " costs of the cause." When a cause is referred the costs of the cause comprise the costs incurred in the cause up to the time of the reference, the costs of the order of reference, and the costs of ulterior proceedings in the cause, if any, after the award {Ex relatione of a Master. See Goodall v. Bay (1835), 4 Dowl. 1 ; Clarke v. Owen (1836), 2 H. & W. 324). Costs of ivitnesses. Costs of the cause also include the costs of witnesses present at the trial ready to be examined, but not the costs of a witness who was subpoenaed, but who did not arrive until after the cause was referred, though he was examined the same day before the arbitrator {Fryer v. Sturt (1855), 16 C. B. 218; 24 L. J. C. P. 154). Costs of special case. If a verdict is taken by consent, subject to a special case to be stated by A. B., who, in the event of the Court deciding in favour of the plaintiff, is empowered to direct for what amount the verdict is to be entered, and to whom the action and all matters in difference, subject to the special case, are referred, all costs up to the judgment of the Court on the special case are costs in the action {Edwards v. Great Western Bail. Co. (1852), 12 C. B. 419). Costs of trial. Where the whole cause is referred to a special referee for trial under Order XXXVI., r. 50, the special referee is in the position of a judge and the costs of the cause include the costs of the reference {Patten v. West of England Iron Co., [1894] 2 Q. B. 159 ; 63 L. J. Q. B. 757). Where verdict taken subject to a reference. Where a verdict is taken subject to a reference the determination of the arbitrator is in substance a certificate, though in form an award, and the expenses incurred before the arbitrator are costs in the cause {Sim V. Ed'ivards (1856), 17 C. B. 527. See also Deere v. Kirkhouse (1850), 1 L. M. & P. 783). What are " costs of the reference." The costs of the reference comprise all proper expenses incurred by the parties in connection with the whole of the proceedings before the arbitrator. These costs include costs of preparing for the trial and of the trial before the arbitrator, the costs of witnesses, copying and production of documents, fees to counsel, solicitors' charges, hire of room, &c. They include the costs of witnesses and the costs of a brief in the cause 572 REFERENCES UNDER ORDER OF COURT referred, prepared after the reference for the purposes of the arbitration. This is the case even if the arbitrator expressly finds that there are no matters in difference except in the cause {Brown v. Nelson (1844), 13 M. & W. 397 ; Utting v. Evans (1824), M'Clel. 12). Power of referee or arbitrator over costs. Official referee ivhen whole cause referred. By Order XXXVI., r. 55b, " where the whole of any cause or matter is referred to an official referee under an order of Court, he may, subject to any directions in the order, exercise the same discretion as to costs as the Court or a judge could have exercised." There is no appeal against the exercise of this discretion by the official referee except by his leave {Minister & Co. v. Apperly, [1902] 1 K. B. 643; 71 L. J. K. B. 452). Special referee or arhitrator. By r. 55c of the same order the provisions of rr. 48 to 55, anjl 55b, " shall apply where any cause or matter, or any question or issue of fact therein, is referred to an officer of the Court, or to a special referee or arbitrator." Unless the words " officer of the Court " in this rule are to be construed as including an official referee, it would seem that the powers of officers of the Court, special referees, and arbi- trators as to costs are wider than those of official referees, because r. 55b applies only where the whole cause or matter is referred, whereas r. 55c also applies where any question or issue of fact in any cause or matter is referred. Both rules are, however, " subject to any directions in the order," Discretion not exercised. When an action is referred under s. 14 of the Arbitration Act to an arbitrator by an order which is silent as to costs, and the arbitrator does not deal with the costs, the costs of the action, reference, and award follow the event, inasmuch as under s. 15 (2) of the Act the award is equivalent to the verdict of a jury {Carr V. Dougherty (1898), 67 L. J. Q. B. 371). Where cause and all differences referred. Where a cause and all matters in difference are referred by consent, it would seem that in the absence of any special direction contained in the order, the arbitrator has the powers and discretion given by clause (t) of the First Schedule to the Arbitration Act. Before the Arbitration Act, 1889, when a cause alone or a cause with all matters in difference was referred, and nothing was said in the I POWERS AND REMUNERATION OF REFEREES, ETC. 57 S^ submission respecting costs, tliere are decisions to the effect that the arbitrator had an implied authority to adjudicate respecting the costs of the cause but not of the reference or award, and each party had to bear his own expenses of the reference, and was liable to half the costs of the award. Illustrations. 1. A cause and all matters in difference were referred, nothing being said about costs. Held that the arbitrator had power over the costs of the cause, but not over the costs of the reference (Firth v. Robinson (1823), 1 B. & C. 277). 2. All disputes were referred, except the costs of an action. Nothing was said about the costs of the reference. Held that these latter costs were not in the discretion of the arbitrator (Strutt v. Rogers (1816), 7 Taunt. 213). 3. The costs of a referred action are in the discretion of the arbitrator without any express power being set out {Roe d. Wood v. Doe (1788), 2 T. E. 644). 4. Where an order of Nisi Prius made no provision as to the costs of the reference and award, the arbitrator had no authority to adjudicate upon them, but each party had to bear his own expenses of the reference and half the costs of the award {Taylm- v. Gordon (1833), 9 Bing. 570; Grove v. Cox (1089), 1 Taunt. 165; Bell v. Belson- (1814), 2 Chitt. 157). ' 5. An arbitrator under the Common Law Procedure Act, 1854, had no power over the costs either of the cause or of the reference or award unless the rule or order appointing him expressly gave him such power, and unless the rule or order so provided the successful party was not entitled to costs {Leggo v. Young (1855), 16 C. B. 626; Belly. Postle- thwaite (1855), 5 El. & Bl. 695). 6. The word " costs " in an order for the reference of an indictment, which stated that, if by the award the defendant was found guilty and the prosecutor entitled to costs, the defendant agreed to pay the costs, was held not to include the costs of the reference or award (R. v. 3Ioafe (1832), 3 B. & Ad. 237). 7. After a writ had been issued " all matters in difference between the parties" were referred. The order of reference provided that "the costs of the said cause and the costs of the reference and award shall be costs in the cause." Held that the arbitrator had power to deal with all the costs and could order the plaintiff, who was successful, to pay the costs of defendant {Hmjward v. Moss (1885), 49 J. P. 248). 8. After a payment of money into Court, the parties agreed to refer the settlement of the accounts between them. Held that the arbitrator had no power over the costs in the cause up to the payment into Court {Stratton v. Green (1831), 1 Moo. & S. 668). Where an order of reference drawn up by consent provided that the costs of action and of the application to refer, made in chambers, were to abide the event of the award as if it had been a verdict, but was 574 REFERENCES UNDER ORDER OF COURT silent as to the costs of the reference, it was held that the arbitrator had no power over the costs of the reference, but that each party must pay his own {Bullen v. King (1877), 36 L. T. 732). Costs of reference and award to he in arhitrators discretion. Where a verdict is taken subject to a reference by consent, or an order made by consent referring the action, and the costs of the cause are to abide the event, the costs of the reference and award to be in the arbitrator's discretion, he has power to award on the costs of the reference and award, although the County Courts Act may deprive the plaintiff of the costs of the cause (Forshaiv v. De Wette (1871), L. E. 6 Ex. 200 ; 40 L. J. Ex. 153 ; Galatti v. Wakefield (1878), 4 Ex. D. 249; Street v. Street, [1900] 2 Q. B. 57; 69 L. J. Q. B. 574; overruling Moore v. Watson (1866), L. E. 2 C. P. 314; 36 L. J. C. P. 122; and by implication Emmett v. Heyes (1887), 36 W. E. 237). Where 'party to reference not a party to action. Where an action is referred by consent, and the order of reference provides that the costs of the cause shall abide the event, and the costs of the reference and award be in the discretion of the arbitrator, the arbitrator can order a party to the reference, although he was not a party to the action, to pay the costs of other parties. Illustration. An action by A. against B. for pulling down a wall was referred, and C. was made a party to the reference with his consent. The order of reference provided that the costs of the cause should abide the event, and the costs of the reference and award be in the discretion of the arbitrator. The award ordered B. to pay £2 damages to A. and one half of A.'s costs of the reference, and that C. should pay half of A.'s costs of the reference and half of B.'s costs of the reference and half of B.'s costs in the action. Held that the direction as to the costs in the action was within the arbitrator's powers {Stockley v. Shopland (1872), • 26 L. T. 586). Costs on County Court scale. Where an action of contract was referred on the terms that the costs of the cause, reference, and award should follow the event, and the arbitrator awarded to the plaintiffs a sum less than £20, and to the defendant, on his counterclaim, a sum of £63, it was held that the plaintiffs were deprived of all costs by s. 5 of the repealed County Courts Act, 1867 (30 & 31 Vict. c. 142) (AhrhccJcer v. Frost (1886), 17 Q. B. D. 606 ; 65 L. J. Q. B. 476). Where the award on a compulsory reference, under s. 3 of the Common Law Procedure Act, 1854, found the plaintiff entitled to £16, but that the defendant was entitled on his counterclaim to £23, so that POWERS AND REMUNERATION OF REFEREES, ETC. 575 the defendant was entitled to £7 balance, the defendant was held entitled to his costs, s. 5 of the repealed County Courts Act, 1867, having no application to the costs of a counterclaim {Chatjield v. Sedgwick (1879), 4 C. P. D. 459; Blake v. Aj^j^leijard (1898), 3 Ex. D. 195 ; 47 L. J. Ex. 407). Arbitrator may apportion or order successful party to pay costs. When a referee or arbitrator has power over the costs he may apportion them as he thinks right ; he may order either the plaintiff or the defendant to pay the whole amount of them, or that each shall pay in certain proportions {Cargey v. Aitcheson (1823), 2 B. & C. 170 ; 1 L. J. (0. S.) K. B. 252; Young\. Bulman (1853), 13 C. B. 623; 22 L. J. C. P. 160 ; Boyes v. Bluck (1853), 13 C. B. 652, at p. 699). He may direct an infant party to the reference, or a person who, though not a party to any cause referred, has made himself a party to the reference, to pay the whole costs {Proudfoot v. Poilc (1846), 3 D, & L. 624). He may make a successful party pay all the costs {Fearon v. Flinn (1869), L. R. 5 C. P. 34). But where a cause was referred after the defendant had obtained a special jury, the costs of the cause to abide the event, and the costs of the reference and of the special jury to be in the discretion of the arbitrator, it was held that the arbitrator could not, after directing a verdict for the plaintiff, award that the plaintiff should pay the costs of the special jury {Finlayson v. MLeod (1817), 1 B. & Aid. 663). Costs as Ijetuieen solicitor and client. On a reference of an action at common law, the arbitrator had no authority to award costs either of the cause or reference, as between solicitor and client, unless specially authorised to do so ( Whitehead v. Firth (1810), 12 East, 165; Mardcr v. Cox (1774), 1 Cowp. 127; Seccomhe v. Babh (1840), 6 M. & W. 129 ; 9 L. J. (N. S.) Ex. 65). But an arbitrator to whom the matters at issue in a suit, including the costs of the cause, were referred by the Court of Chancery, had power to award costs as between solicitor and client {Mordue v. Palmer (1870), L. R. 6 Ch. 22 ; 40 L. J. Ch. 8). Costs of indictment. A reference concerning all costs, charges, and expenses incident to an indictment for assault, and the subsequent proceedings thereon, gave the arbitrator power to award costs in the previous proceedings also, such as the costs of going before the grand jury {Baker v. Toumshend (1817), 7 Taunt. 422). Costs of reference at Quarter Sessions. When an order of reference of an appeal at Quarter Sessions is silent as to costs, the arbitrator cannot adjudge the costs of the appeal 576 REFERENCES UNDER ORDER OF COURT (West London Extension Rail. Co. v, Fulham Union (1870), L. R, 5 Q. B. 361 ; 39 L. J. Q. B. 178 ; B. v. Justices of Middleseo: (1871), L. R. 6 Q. B. 220 ; 40 L. J. M. C. 109), nor any subsequent Court of Quarter Sessions those of the reference or of the appeal, even though the appeal has been respited from sessions to sessions {II. v. West Riding Justices (1865), 34 L. J. M. C. 142; 6 B. & S. 531; R. v. Justices of Middlesex (1871), L. E. 6 Q. B. 220 ; 40 L. J. M. C. 109). See ante, p. 540. Duty of referee or arbitrator as to costs. Should deal tvith costs. "When the costs of the cause, or of the reference or award, are stated by the submission to be in the discretion of the referee or arbitrator, he should give some direction respecting them, as otherwise the Court may say that the award is not final {Morgan v. Smith (1842), 9 M. & W. 427; 11 L. J. Ex. 379; Richardson v. Worsley (1850), 5 Ex. 613; 19 L. J. Ex. 317 ; Williams v. Wilson (1853), 9 Ex. 90 ; 23 L. J. Ex. 17). Cause in High Court. If the reference is of a cause in the High Court, he may award that one of the parties shall pay to the other the costs to be taxed by the Master, or costs generally, in which case the officer of the Court will tax them. Cause in inferior Court. If the cause referred is in an inferior Court, in which there is no authorised officer to tax the costs of such a Court recognised by the High Court, the arbitrator must take care to assess them himself, or the award will be so far deficient {Addison v. Gray (1766), 2 Wils. 293 ; Fox V. Smith (1765), 2 Wils. 267). Effect of awarding costs of cause. When an arbitrator, having authority, directs one party to pay the other the costs of the cause, this direction, unless the context prevents it, will generally be understood to give a right to such costs, and such only, as the party would in the ordinary course of law have been entitled to had the event of the cause been determined by the Court or a jury instead of by the arbitrator {Righy v. Okell (1827), 7 B. & C. 57 ; 5 L. J. (0. S.) K. B. 357 ; Allenhy v. FroudlocJc (1835), 4 A. & E. 326). Costs where judgment entered on re-port. Where judgment is entered in accordance with a report of a referee or arbitrator, the Court is not bound to exercise its discretion as to costs or to give directions to the taxing Master upon tliis subject. POWERS AND REMUNERATION OF REFEREES, ETC. 577 Illustration, The referee reporting that £15,325 was due on a claim for £19,000, consisting of many items, abstained from reporting as to the costs of the reference, and the Vice-Chancellor left the costs to be settled by the taxing Master without any directions. Held that there was no appeal, and that a judge is not bound to exercise his discretion as to costs {Re Leigh; Eowcliffe v. Leigh (1878), 26 W. R. 729). And if the report makes no mention of costs at all, the costs will follow the event, just as if the report had been a verdict of a jury. Illustration. An action to recover £83, 4s. 5d. for goods sold and delivered was, before delivery of the defence, referred under s. 14 of the Arbitration Act to arbitration. The order of reference was silent as to costs. The defendant paid £30 into Court with a denial of liability, and counter- claimed for damages for defective work. The arbitrator awarded £77 to the plaintiffs and £17, 5s. to the defendant, but made no mention of costs. Held that the award operated as the verdict of a jury and that costs followed the event (Carr Bros. v. Dougherty (1898), 67 L. J. Q. B. 371). Costs to abide event of avard. It frequently happens in references under order of the Court, ■whether within the power of the Court under the Arbitration Act or outside the power of the Court under that Act, that the referee's or arbitrator's powers are limited or even excluded. A common form of order is that the costs of the cause, or the costs of the cause and the reference, shall abide the event of the award. In such cases the arbitrator should in his award omit any reference to costs already provided by the order to abide the event, or, if he has jurisdiction to do so, award costs in such a way that they do follow the event ; but in the latter case, if the arbitrator makes a mistake as to the meaning to be put upon the term " costs to abide the event," his award may be set asitlo either wholly or in part according to whether the good part can be separated from the bad. It is an excess of authority on the arbitrator's part to determine the amount of the costs in such a case {Kendrick v. Dcivies (1837), 5 Dowl. 693; Coclcburn v. NevAon (1841), 10 L. J. C. P. 207; 9 Dowl. 676). Effect of order. The effect of such an order of reference of an action is to substitute the reference as regards the issues of fact and the legal consequences resulting from them for the trial by judge and jury, and the provision that the costs of the action shall abide the event amounts to no more 37 578 REFERENCES UNDER ORDER OF COURT than that whatever would have been the legal effect of the verdict and judgment, as regards costs, remains the same as if the verdict of th& jury had been taken and judgment followed thereupon (Stooke v. Taylor (1880), 5 Q. B. D. 569, ^^er Coekburn, C.J., at p. 581), Event distrihutive. The word "event" must be read distributively {Ellis v. Desilva (1881), 6 Q. B. D. 521 ; 50 L. J. Q. B. 328), and this whether the action alone is referred (Lund v. Campbell (1885), 14 Q. B. D. 821 ; 54 L. J. Q. B. 281), or the action and all matters in difference (HawJce v. ^rmr (1885), 14 Q. B. D. 841 ; 54 L. J. Q. B. 315). Meaning of " event." An action to recover a balance of an account for work and labour, where the defendant had paid money into Court in satisfaction of the plaintiff's claim, was referred before pleadings, the costs of the cause to abide the event ; the arbitrator found that the sum paid into Court was enough to satisfy the plaintiff's claim, and the Court held that the defendant had succeeded on the " event," which was whether the sum paid in was sufficient to satisfy the claim {Langridge v. Campbell (1877), 2 Ex. D. 281 ; 46 L. J. Ex. 277. See Wheeler v. United Telephone Co. (1884), 13 Q. B. D. 597 ; 53 L. J. Q. B. 466 ; and Goutard v. Carr (1883), 13 Q. B. D. 598, n.; 53 L. J. Q. B. 55). Where claim and counterclaim successful. On the reference of an action for £417, when the costs of the cause were to abide the event, and the defendant before the reference had paid £175 into Court and counterclaimed, the award decided that the plaintiff was entitled to £7 more than the amount paid, into Court, and the defendant to £18 on his counterclaim, it was held that the plaintiff was the party substantially successful in the action, that the event was in his favour, and that therefore he was entitled to the general costs of the action, and the defendant to the costs of the issues on the counter- claim (Waring v. Pearman (1884), 50 L. T. 633. See Pearson v. Ripley (1884), 50 L. T. 629). Where an award found in favour of the plaintiff's claim in the action, and also in favour of the defendants' counterclaim, but to a larger amount, it was held that the defendants were entitled to the general costs of the action, reference, and award, and to the costs of the issues found in their favour ; but that the plaintiff was entitled to the costs of the issues found in his favour (Lund v. Cawphell (1885), 14 Q. B. D. 821 ; 54 L. J. Q. B. 281. See also Slatford v. Erlebach, [1912] 3 K. B. 155). Where the costs of the cause and counterclaim were to follow the POWERS AND REMUNERATION OF REFEREES, ETC. 579 event, and the arbitrator found the plaintiff entitled to £371, and the defendant entitled on his counterclaim to £375, and that the plaintiff should pay the defendant the balance of £4, the plaintiff had the costs of proving his claim from the defendant, and the defendant the costs of proving his counterclaim from the plaintiff {Cole v. Firth (1879), 4 Ex. D. 301. See also Neale v. Clarke (1879), 4 Ex. D. 286). Cause and all matters in difference. On a reference of a cause and all matters in difference, an award of a gross sum in favour of either party is insufficient, because it leaves uncertain in whose favour the cause has been decided, since it is impossible to collect from it whether the sum is to be paid in respect of the action, or of any other matters in difference, and there is no determination of the event on which the costs of the cause depend {Pearson v. Archbold (1843), 11 M. & W. 477 ; 12 L. J. Ex. 308 ; Croshie V. Holmes (1846), 3 D. & L. 566 ; 15 L. J. Q. B. 125. See Nicholson v. Si/kes (1854), 9 Ex, 357 ; 23 L. J. Ex. 193). Where on such a reference, in which the costs of the cause were to abide the event of the reference the arbitrator found for the plaintiff £259 in the action, and for the defendant £242 on the other matters in difference, it was held that the event was such as to entitle the plaintiff to the costs of the cause {Stevens v. Chapman (1871), L. E. 6 Ex. 213; 40 L. J. Ex. 123). So, where an action and all matters in difference were referred with a similar clause as to the costs, and the award found a money payment was due to the plaintiff in the action, but found for the defendant on certain matters in difference, it was held that the plaintiff was entitled to the costs of the action, and the defendant was entitled to the costs of the matters in difference on which he had succeeded {Hav:ke v. Brear (1885), 14 Q. B. D. 841 ; 54 L. J. Q. B. 315 ; disagree- ing with GrihUc v. Buchanan (1856), 26 L. J. C. P. 24; 18 C. B. 691). If the decision is partly in favour of one side and partly in favour of the other, each party must generally pay his own costs {Yates v. Knight (1835), 2 Bing. K C. 277; 5 L. J. (K S.) C. P. 12; Woodhams V. Woodhams (1872), 25 L. T. 460). Tvjo plaintiffs, one successful and one unsuccessful. A reversioner and his tenant joined in an action to recover damages for injury to their premises by the defendant. The case was referred with power to the arbitrator to enter judgment, the costs of the cause to abide the event. The arbitrator found in favour of the tenant, but against the claim of the reversioner, and it was held that the successful plaintiff was entitled to recover the whole of his general costs of the action, and the defendant was entitled to recover from the unsuccessful plaintiff only the costs occasioned by such plaintiff having joined in the 580 REFERENCES UNDER ORDER OF COURT action {Gort {Viscount) v. Roicney (188G), 17 Q. B. D. 625; 55 L. J. Q. B. 541). Effect of award ivlien costs abide event of av:ard. When the costs of the cause are to abide the event of the award, the costs which are allowed are generally those costs only which would have followed the legal event had the conclusion arrived at by the award been obtained in the ordinary course of law. Thus, on a reference taking place after a verdict for the plaintiff and a rule for a new trial, the costs of the cause to abide the event, the arbitrator found for the defendant on all the issues, and it was held that as, if there had been a second trial, neither party would have been entitled to the costs of the first trial, the finding of the arbitrator gave the defendant no claim to those costs {Thomas v. Haivhcs (1741), 1 Dowl. (N. S.) 346 ; Siimmers v. Formhj (1822), 1 B. & C. 100). County Courts Act. Whenever the plaintiff is entitled to judgment in the action and gets damages in the action, and the case is such that if there had been no reference the plaintiff would, by virtue of the County Courts Act, have lost his costs in the cause, he equally loses them when there is a reference which fixes the amount, unless he gets the necessary certificate for costs on the High Court scale {Smith v. Edge (1863), 2 H. & C. 659 ; 33 L. J. Ex. 9 ; Cowell v. Amman Aherdare Colliery Co. (1865), 6 B. & S. 333 ; 34 L. J. Q. B. 161 ; Fergusson v. Davison (1882), 8 Q. B. D. 470 ; 51 L. J. Q. B. 266. See Smith v. Ilailey (1872), L. R. 8 Ex. 16; 42 L. J. Ex. 5). This certificate can be given by the Court under Order LXV., r. 12, notwithstanding that the cause has been referred by consent, with judgment to be entered for the amount awarded {Hyde v. Beardsley (1886), 18 Q. B. D. 244 ; 56 L. J. Q. B. 81). When the whole cause is referred to an official referee under Order XXXYI., r. 55b, he can exercise the same discretion as to costs as the Court or a judge. Where in an action for £356 the defendant A., after paying £319 to the plaintiff, pleaded the nonjoinder of B. and C. as co-contractors, and the plaintiff thereupon added them as defendants, and the cause was referred at the trial, costs of the cause to abide the event of the award, and the arbitrator directed the verdict to stand for £3, and refused to certify for costs, it was held that the plaintiff, having in his action against the three defendants recovered less than £20, was not entitled to the costs of the cause even as against A. {Balmain v. Lichford (1875), L. B. 10 C. P. 203 ; 44 L. J. C. P. 94). In an action in which a claim for debt and damages exceeded £100, and the counterclaim for debt and damages also exceeded £100, the award found that the plaintiff was entitled to £10 and £25 damages, and that the defendant was entitled to £20 damages, it was held that POWERS AND REMUNERATION OF REFEREES, ETC. 581 the plaintiff was entitled to the costs on his claim, and the defendant to the costs on his counterclaim (StooJce v. Taylor (1880), 5 Q. B. D. 569 ; 49 L. J. Q. B. 857). Costs to folloio 'oerdict. Where the parties agreed in an action that the arbitrator was to award a lump sum if he found for the plaintiff, and that the costs of the action, arbitration, and award were to follow the event of the verdict, and the arbitrator found for the plaintiff, but only gave one- fifth of the plaintiff's claim, it was held that the plaintiff was entitled to all costs {GRourke v. Raihvay Commissioners (1890), 15 App. Cas. 371; 59 L. J. P. C. 72). Certifying for costs. The ordinary form of order of reference of an action now in use confers on the arbitrator or referee all the powers of certifying and amending of a judge of the High Court of Justice (see E. S. C, Part I., App. K, No. 33a). Before the Arbitration Act an arbitrator had no power to certify or amend {Ward v. Mallinder (1804), 5 East, 489 ; R. v. Moate (1832), 3 B. & Ad. 237 ; 1 L. J. (N. S.) K. B. 78), but now see Order XXXVI,, rr. 55b and c, as to costs, and ante, p. 553, as to amendment. If the arbitrator has power to certify, and omits to exercise it, the judge before whom the cause came on for trial cannot, it seems, grant a certificate, his power being transferred by the submission to the arbitrator {Richardson v. Kensitt (1843), 6 M. & G. 712). Costs of special Jury. Although the Juries Act, 1825 (6 Geo. IV. c. 50), s. 34, provides that the judge shall, immediately after the verdict, certify on the back of the record that the cause was proper to be tried by a special jury, the arbitrator, when clothed by the submission with the same powers as the judge of Nisi Frius, must embody his certificate in his award, for as soon as he has once awarded his power is at an end {Geeves v. Gorton (1846), 15 M. & W. 186 ; 15 L. J. Ex. 169). So, it was held that a Master to whom a cause was compulsorily referred under the Common Law Procedure Act, 1854, with all the powers of certifying as a judge, must have exercised the powers in his award and could not do 80 afterwards {Bedwell v. Wood (1877), 2 Q. B. D. 626 ; 46 L. J. Q. B. 725). Remitting award where omission to certify. When an arbitrator has omitted to certify for costs, the award may be referred back to him to enable him to do so {Harlaiul v. Mayor of Newcastle (1869), L. P. 5 Q. B. 47 ; 39 L. J. Q. B. 67 ; Warburg & Co. v. iWKerrow & Co. (1904), 90 L. T. 644). 582 KEFERENCfiS UNDER ORDER OF COURT Solicitor's lien for costs on sum aiuarded. The solicitor of a party to the action referred has a lien for his costs upon a sum awarded to his client, as he has upon a sum recovered by verdict and judgment ((9r7?ierof^ v. Tate (1801), 1 East, 464; Cowellv. Betteleij (1834), 10 Bing. 432). Set-ojff. Under the old rule (Reg. Gen. Hil., 2 Will. IV., r. 93, re-enacted Eeg. Gen. Hil. 1853 (8). See Pringle v. Gloay (1879), 10 Ch. D. 676 ; 48 L. J. Ch. 380; Caddell v. Smart (1836), 4 Dowl. 760) no set-off of damages or costs between the parties was allowed to the prejudice of the solicitor's lien for costs in the particular suit against which the set-off was sought, and if after notice of the lien a party paid the money to the other party, instead of to that party's solicitor, the latter might compel a repayment to himself by summary application to the Court, and he would not be prejudiced by a collusive release from one party to the other (Ormerod v. Tate (1801), 1 East, 464). But now, by Order LXV., r. 14, " a set-off for damages or costs between parties may be allowed notwithstanding the solicitor's lien for costs in the particular cause or matter in which the set-off is sought." This rule, however, does not apply to costs in independent proceedings (Hassell v. Stanley, [1896] 1 Ch. 607; 65 L. J. Ch. 494. See Barler v. Hemming {l^QQ), 5 Q. B. D. 609 ; David v. Bees, [1904] 2 K. B. 435 ; 73 L. J. K. B. 729 ; Bake V. French, [1907] 1 Ch. 428; 76 L. J. Ch. 299). Enforcing lien. In the case of a reference by an order of the Court a solicitor would probably now be entitled to enforce his lien by application to the Court under the Solicitors Act, 1860 (23 & 24 Vict. c. 127), s. 28. Lien in case of hanhruptcjj or liquidation. If a bankrupt brings an action for work done by him subsequent to his bankruptcy, his solicitor, if the action is referred, has a lien for his costs of the action and reference on the amount awarded to the bankrupt which is paramount to the claim of the trustee in bankruptcy (Jones V. Turnhull (1837), 2 M. & W. 601). Where a company who had employed a solicitor in an arbitration went into liquidation, and the claim of the company was compromised by the solicitor with the sanction of the liquidator, it was held that the solicitor had a lien on the amount recovered for his costs, including the costs incurred before the liquidation {In re Meter Cabs, Ltd., [1911] 2 Ch. 557). Taxation of costs. With a view to the taxation of costs where an action has been referred, one day's notice of taxing costs, together with a copy of the POWERS AND REMUNERATION OF REFEREES, ETC. 583 bill of costs, must be given by the solicitor of the party whose costs are to be taxed to the other party or his solicitor (Order LXV., r. 16). The taxation will proceed in accordance with the ordinary rules applicable to the taxation of costs of proceedings in the Supreme Court, and, generally speaking, the costs will be taxed as between party and party {Eccles v. Blackburn Corporation (1861), 30 L. J. Ex. 358). Costs of sjjecial case, costs of cause. On the trial of an action a verdict was taken by consent, subject to a special case to be stated by A. B., to whom the cause and all matters in difference between the parties were referred, subject to the special case, the costs of the action to be taxed to abide the event of the aivard, and the costs of and incident to the reference and award to be in the discretion of the arbitrator. Many meetings were held before the special case was settled. It was held that the costs of the attend- ances before the arbitrator to settle the special case were costs in the action, and that the reference did not commence until after the judg- ment on the special case {Edtvards v. Great Western Rail. Co. (1852), 12 C. B. 419). Costs of witnesses. When a witness is rejected by an arbitrator, the costs of his attend- ance, either at the assizes, when the cause was referred, or before the arbitrator, will not be allowed by the Master in taxing the costs as between party and party {Galloway v. Kcyivorth (1854), 15 C. B. 228 ; 23 L. J. C. P. 218). Witnesses qualifying. The reasonable charges and expenses incurred in procuring evidence are allowed both in the Chancery and Common Law Divisions ; and Masters allow the costs of qualifying witnesses, to enable them to give evidence ; as, for instance, the expenses of surveyors inspecting premises, on the condition of which they are afterwards examined as witnesses {Macldcy v. Chillingivorth (1877), 2 C. P. D. 273 ; 46 L. J. C. P. 484). Counsel attending reference. Although it has been stated in some of the cases that it is the usual practice on the taxation of the costs of a reference to allow one counsel only on each side, there is no inflexible rule, but each case must depend upon its own particular circumstances, as to which the Master must exercise his discretion subject to review by the Court {Sinclair v. Great Eastern Bail. Co. (1869), L. R. 5 C. P. 135 ; 39 L. J. C. P. 165 ; Hawkins V. Rigly (1860), 29 L. J. C. P. 228 ; 8 C. B. (N. S.) 271 ; Orient Steam Navigation Co. v. Ocean Marine Insurance Co. (1887), 35 W. R. 771 ; Benton v. Ellis, Lever & Co. (1885), 1 T. L. R. 499 ; Brew v. Josolyne (1888), 4 T. L. R. 717). 584 REFERENCES UNDER ORDER OF COURT Costs of solicitor to draw award. In a case before the Master, the plaintiffs claimed to be allowed, as against the defendants, the other party to the reference, £71, 15s. 6d.,. which they had paid, on taking up the award, to the solicitor who had been employed by the arbitrator to draw it up. This sum consisted of £52, 10s., the arbitrator's charges for four meetings, and £19, 5s. 6d. for the solicitor's bill (the arbitrator being a layman). The Master dis- allowed all of the solicitor's bill, except £1, 15s. for the stamp duty on the award. The Court refused to call on the Master to review his taxation, as, without laying down any rule as to whether a lay arbi- trator is entitled to charge for professional assistance in framing his award, it held that the charge of fifty guineas for four meetings was amply sufficient to cover all the expenses which he might fairly have incurred in obtaining the aid of professional advice {Galloway v. Keywoi'th (1854), 15 C. B. 228; 23 L. J. C. P. 218). Legal assessor. A reasonable amount may be allowed to a lay arbitrator for the assistance of a legal assessor (Westvjood & Co. v. Cape of Good Hope Government (1886), 2 T. L. E. 667). Shorthand notes. The cost of employing a shorthand writer, the cost of the transcript of his notes, or the cost of brief copies for the use of counsel, cannot, on taxation of costs, be allowed against the party liable to costs without consent, or an order of a judge or the Court (Croomes v. Gwe (1856), 1 H. & K 14 ; 25 L. J. Ex. 267 ; Wells v. Mitcham Gas Co. (1878), 4 Ex. D. 1 ; Kirhu'ood v. Webster (1878), 9 Ch. D. 239 ; 47 L. J. Ch. 880), costs of shorthand notes not being generally allowed {Autothreptic Co.^ In re (1888), 21 Q. B. D. 182; 57 L. J. Q. B. 488). Costs of cause and reference separately. When the award is in the plaintiffs favour, and the defendant has to pay the costs of the cause, and of the reference and award, the Master should make out two allocaturs — one for the costs of the cause and the other for the costs of the reference and award ; for if the judg- ment is entered up for a less amount of costs than that specified in the allocatur, it may be set aside ; and judgment cannot properly be entered up for the costs of the reference and award, but only for the costs in the cause. If the costs of the cause and reference and award are taxed together in one allocatur, and judgment is entered up for the whole amount, it is, however, only an irregularity, which will be cured, if the application to set aside the judgment is not made in a reasonable time. POWERS OF COURT AS IN REFERENCES BY CONSENT 585 or if the defendant's solicitor consented to the taxing of all the costs together {Bignall v. Gale (1842), 3 M. & G. 858). When sum imid into Court satisfies "plaintiff's claim. In an action for work, &c., the plaintiff claimed a balance of £373. The defendant paid £200 into Court under Order XXX., r. 1 (1875), and gave notice in Form 5, Appendix B, that that sum was sufficient to satisfy the plaintiffs claim. The plaintiff took it out under Order XXX., r. 3, but did not give the notice under Order XXX., r. 4, nor any other notice. The cause was afterwards referred, " the costs of the cause to abide the event." The arbitrator certified that the £200 paid into Court was sufficient to satisfy the plaintiff's claim. It was held that as the £200 was paid in generally, and as the plaintiff recovered nothing beyond that sum, the plaintiff was not entitled even to the costs of action up to the time of taking the money out of Court, but that the defendant was entitled to the costs of the action from the commencement {Langridye v. Campbell (1877), 2 Ex. D. 281 ; 46 L. J.. Ex. 277). Fresli taxation after reference hack. After a reference back, the taxation of costs of the reference mad& on the original award becomes inoperative. There must be a second taxation after the new award is made {Johnson v. Latham (1851);. 20 L. J. Q. B. 236). Section 16. POWEES OF COURT AS IN EEFEEENCES BY CONSENT. 16. The Court or a judge shall, as to references under order of the Court or a judge, have all the powers which are by this Act conferred on the Court or a judge as to references by consent out of Court. The powers to which this section would seem to refer are the power in certain cases to appoint an arbitrator (s. 5), or to set aside an appointment of an arbitrator to act as sole arbitrator (s. 6) ; the power to enlarge the time for making an award (s. 9) ; the power from time to time to remit the matters referred, or any of them, for reconsideration (s. 10), and the power to remove an arbitrator for misconduct or to set aside an award in certain cases (s. 11). 586 REFERENCES UNDER ORDER OF COURT Section 17. POWEES OF COUET OF APPEAL. 17. Her Majesty's Court of Appeal shall have all the powers conferred hy this Act on the Court or a judge thereof under the provisions relating to references under order of the Court. These powers are to refer questions for enquiry or report (s. 13 (1)); to adopt the report of a referee wholly or partially (s. 13 (2)); to refer •causes or matters, or questions or issues of fact arising therein, for trial (s. 14) ; to direct the manner in which any such references shall be con- ducted (s. 15 (1)); and to determine the remuneration of any special referee or arbitrator to whom any matter is so referred (s. 15 (3)). In Attorney-General v. Birmingham District Drainage Boa.rcl, [1912] A. C. 788, it was held that the Court of Appeal had, by virtue of ss. 13 (1) and 17, power to refer questions to a special referee for enquiry or report without the consent of the parties. In RochefoucavM v.Boustead, [1897] 1 Ch. 196; 66 L. J. Ch. 74, the Court of Appeal, in reversing the judgment of the Court below, gave a decision which involved the taking of very intricate accounts, and ordered these accounts to be taken by an official referee, instead of by the chief •clerk, in order to effect a saving of time. APPENDIX OF FORMS. CONTENTS. SUBMISSIONS. PACK 1. Agreement of reference (short form) ..... 591 2. Another form, varying the provisions of the First Schedule to the Arbi- tration Act ........ 591 -3. Agi'eement of reference, excluding the jjrovisions of the First Schedule to the Arbitration Act ....... 591 1. Commencement ....... 591 2. Kecital of differences, subject referred .... 591 3. Appointment of arbitrator ...... 592 4. Formal requisites of award ...... 592 5. Death of party no revocation ...... 592 6. Duration — jiower to enlarge time ..... 592 7. Appointment of new arbitrator in case of neglect or refusal to act, incapacity, or death of arbitrator .... 592 8. Power over costs . . . . . ... 592 9. Parties and witnesses to be sworn ..... 592 10. Power to proceed ex parte ...... 592 11. View — maps or plans ....... 593 12. Power to call for documents . . . , . . 593 13. Parties to forward, not prevent award .... 593 14. „ to abide by award . . . . . . 593 15. „ not to bring action . . . . . , . 593 16. Power to refer back award ...... 593 17. Provisions of Schedule to Arbitration Act excluded . . . 593 18. Conclusion . . . . . . . .593 Additional and alternative clauses. 19. Recital, special differences ; matters referred . 20. „ action pending ; matters referred 21. ,, partnership ; matters referred 22. Appointment of two arbitrators and an umpire 23. Formal requisites of award .... 24. Appointment of arbitrator to supply vacancy 25. „ of umpire to supply vacancy 26. If either arbitrator refuses to act, other to proceed ex parte 27. Umpire to sit with arbitrators before reference to him 28. „ to act on evidence taken before arbitrators 29. Duration — powers to enlarge . 30. Points of claim and defence 31. Power to allow amendments . 32. „ to consult experts and adopt their opinion 33. „ to take counsel's opinion 587 594 694 594 594 594 594 595 595 595 595 595 595 595 595 596 588 APPENDIX OF FORMS 9. 10. 11. 12. 13. 14. 15. ' y Evidence of parties only to be taken ..... 596 36. Shorthand notes of evidence ...... 596 37. Death of party not to affect submission .... 596 38. Costs to be borne equally ...... 596 39. „ of reference to abide event ..... 596 40. „ of cause to abide event — of reference in discretion — power to certify ........ 596 41. Fixed amount of remuneration for arbitrator — arbitrators and umpire 597 42. ]\Iatters to be considered in awarding costs .... 597 43. Power to employ an accountant or surveyor .... 597 44. „ to order what shall be done ..... 597 45. Award in form of special case ..... 597 46. Arbitrator not to be required to state a case .... 597 47. Power to order execution of documents, &c. .... 597 48. „ to make interim awards ..... 598 49. „ to make several awards ..... 598 50. Party preventing arbitrator to pay costs .... 598 51. Parties to pay arbitrator's charges ..... 598 52. Eepresentation of absent party ..... 598 Agreement of reference by executor as to testator's estate . . . 598 „ of reference by executor as to testator's liability, not as to assets 599 Submission of disputes arising out of a purchase .... 599 „ of differences arising out of the execution of building work to one or to three arbitrators ..... 600 „ by deed of differences between various parties . . 602 ,, by bond in common form ..... 603 „ of claim under policy of fire insurance .... 603 Arbitration clause in contract (general form) . . . . 604 „ „ in building or engineering contract . . . 604 „ „ in deed of partnership ..... 604 Agreement for reference of differences in a cause .... 605 „ of a cause and all matters in difference . . 605 . 606 16. Order of reference of a cause and all matters in difference STAY OF PROCEEDINGS. 17. Affidavit in support of summons to stay proceedings in an action 18. Order to stay action under s. 4 of the Arbitration Act 607 607 APPOINTMENTS AND NOTICES TO APPOINT ARBITRATOR AND UMPIRE. 19. Appointment of an arbitrator in pursuance of an arbitration clause in articles of partnership ..... 608 20. „ of an arbitrator in place of one who refuses to act, or has died or become incapable of acting . . . 608 21. „ of an arbitrator to act as sole arbitrator where opponent fails to appoint an arbitrator .... 608 22. „ of umpire by arbitrators indorsed on submission . . 609- 23. „ of umpire by arbitrators ..... 60& 24. Notice to concur in appointment of a single arbitrator . . . 609 25. „ to appoint an arbitrator ...... 609 ] 26. „ to appoint an arbitrator in place of an arbitrator who refuses to act, or has died, or become incapable of acting . . . 610| APPENDIX OF FORMS 589 PAGE 27. Notice requiring arbitrators to appoint an umpire or third arbitrator in the place of one who refuses to act, or is incapable of acting, or has died ......... 610 28. Summons for appointment of an arbitrator or umpire . . . 610 "29. „ to set aside appointment of a party's arbitrator as sole arbitrator 611 30. Master's order appointing umpire under the Arbitration Act, 1889 . 611 PROCEEDINGS DURING THE REFERENCE. 31. Appointment for a meeting in the reference 32. „ with notice, arbitrator will proceed ex i^arte . 33. Oath to be administered by the arbitrator . 34. Another form ..... 35. Affirmation ....... 36. Another form ..... 37. Notice by an arbitrator to produce documents 38. by a solicitor of one of the parties to produce documents 39. Direction for particulars of claims and defences to be delivered 40. Notice by arbitrators to umpire of disagreement 41. Enlargement of time by the arbitrator 42. „ ,, by the parties . 43. Summons for enlargement of time . 44. „ for leave to revoke 45. Revocation of submission by party . 46. Notice of revocation to arbitrator 47. Summons for order directing arbitrator to state a case 48. Special case under s. 19 of the Arbitration Act 49. Notice to parties of award made 612 612 612 613 613 613 613 613 614 614 614 614 615 615 615 616 616 616 617 51. 52. 53. 54. 65. 56. 67. 68. AWARDS. 60. Award between i)artners under submission of parties and order of refer- ence by Master ........ 618 Another award between partners . . . . . .619 Award between children of an intestate ..... 620 ,, by umpire on claim under policy of fire insurance . . . 621 „ „ „ where claim found fraudulent . . 622 ,, on policy of insurance for honesty of clerk .... 624 ,, by majority of three arbitrators ..... 625 ,, stated in form of special case in an arbitration under a policy of assurance ........ 626 „ stated in form of special case in an arbitration between a contractor and a building owner where several claims are made . . 628 on an indictment directing prostration of nuisance. . . 630 made after original award has been remitted for reconsideration . 632 confirmed hy arbitrator on reference back .... 633 Clauses in awards ........ 633 1. Commencement of award reciting submission by agreement or deed. Enlargement of time ...... 633 Recital in award by umpire ...... 634 Award on various issues ...... 634 „ of balance to defendant ..... 634 ,, for defendant ....... 634 „ in action to recover land ..... 636 59. )) 60. )) 61. )) 62. Clau 1. 2. 3. 4. 6. 6. 590 APPENDIX OF FORMS 7. Award each party to bear his own costs of cause 8. „ one party to pay costs of reference and award 9. „ each to bear his own costs of the reference, and pay half costs of award ..... 10. „ each to pay half costs of reference and award 11. Certificate cause fit to be tried before a judge 12. „ cause fit to be tried by a special jury 13. „ action brought to try a right 14. Award against executor .... 15. „ on partner.«liip accounts 16. „ of dissolution of partnership, on terms 17. ,, between partners .... 18. ,, between solicitor and client 19. „ for sum to be paid and taken in full satisfaction, and for execution of general release . 20. „ for mutual releases .... 21. ,, of assignment of leasehold and release 22. „ to deliver up deeds .... 23. „ of conveyance of fee .... PAGE 635 635 635 636 636 636 636 636 636 637 638 638 639 639 639 639 639 PROCEEDINGS OX THE AWARD. 63. Affidavit of execution of an award .... 64. „ verifying co])y of award on motion to set aside award 65. „ of enlargement of time and of publication of award 66. Power of attorney to demand money and costs awarded 67. Notice of motion to set aside award . 68. Order remitting award to arbitrator 69. Summons to enforce award as a judgment . 70. Statement of claim in action on an award . 640 640 641 641 642 642 642 643 REFERENCES BY ORDER OF COURT. 71. Summons for reference under s. 13 of the Arbitration Act 72. „ „ „ under s. 14 of the Arbitration Act 73. Notice of motion to have accounts taken before referee under s. 14 of the Arbitration Act ...... 74. Order of reference under s. 13 of the Arbitration Act 75. „ „ under s. 14 of the Arbitration Act 76. „ „ (short form) ..... 77. „ „ to Master under Order XIY., r. 7 78. „ ,, „ under Ord. XXXVI. , r. 55c . 79. „ ,, of indictment ..... 80. „ „ from a Court of Quarter Sessions 81. Report of official or special referee under s. 13 of the Arbitration Act 82. Notice of report of referee made under s. 13 of the Arbitration Act 83. „ of motion for adoption and enforcement of report . 84. „ of motion to refer bauk report to the referee 85. Order of referee directing judgment .... 86. Notice of motion to set aside fudgment directed 644 644 645 645 645 647 647 647 648 648 649 649 649 650 650 650 APPENDIX OF FORMS. [For terms deemed to he included in all submissions out of Court, unless the contrary is expressed, see the First Schedule to the Arbitration Act 1889, aiid commentary thereon, p. 324 et seq., anteJ] SUBMISSIONS. 1. Agreement of Reference (Short Form). We agree to refer all matters in difference between us to the award of X. Y. Dated the day of A. B. C. D. 2. Another Form, varying the Provisions of the First Schedule to the Arbitration Act, 1889. Memorandum of an agreement made this day of 19 , between A. B., of, &c., and C. D., of, &c. Whereas disputes and differences have arisen, and are still subsisting, between the above-mentioned parties, it is hereby argued by and between them to refer all disputes and matters in difference between them to the award, order, and final determination of X. Y., of, &c. And it is further agreed that the provisions of clauses and of the First Schedule to the Arbitration Act, 1889, shall not apply to the reference. And that [add any clauses that may be desired in lieu of the omitted clauses of the First Schedule to the Arbitration Act, and any other clauses that may be desired in addition thereto]. In witness whereof the said parties have here- unto set their hands, the day and year first above written. Witness, A. B. K. L. C. D. 3. Agreement of Reference, excluding the Provisions of the First Schedule to the Arbitration Act. 1. Memorandum of an agreement made this day of 19 > Commpnee between A. B., of, &c., and C. D., of, I'tc. inent. 2. Whereas disputes and differences have arisen, and are still subsisting. Recital of between the above-mentioned parties, it is hereby agreed by and between subjectre*.' them to refer all disputes and matters in difference w hatsoever between ^^"''^'*- 592 APPENDIX OF FORMS them [or to refer the said disputes and differences, which are more particularly specified in the Schedule hereto], (Note. — Where certain disputes only are referred, and not all disputes, it is essential to define them, because the extent of the jurisdiction of the arbitrator depends on such definition.) Appoint- 3. To the award, order, and final determination of X. Y., of, &c. ment of Formal re- 4. So as the above-mentioncd arbitrator make and publish his award award*'* °' in Writing, and signed by him, of and concerning the matters referred, ready to be delivered to the parties or to either of them. Death of 5. Or if they or either of them shall be dead before the making of the revocation, award, to their respective personal representatives who shall I'equire the same. (See ante, p. 65, as to this provision.) Duration— 6. On or bcforc the day of next, or on or before any other farge time!" day to which the arbitrator shall by any writing signed by him, [indorsed on this submission] from time to time enlarge the time for making his award. (See ante, p. 337 et seq.) Appoint- 7. And it is further agreed that if the arbitrator neglects or refuses to new^rbitra- act, or is or bccomcs incapable of acting, or dies, before he shall have made of neKiMJt'or ^^^ award, and the parties fail to agree and concur in the appointment of refusal to another arbitrator, either party may serve on the other a notice in writing act, incapa- "'"^'^ ' f ^' j ^ o city or death requiring him to agree and concur in the appointment of another arbitrator, tor. and if such appointment is not made within seven clear days from the service of the said notice, then J. K., of, &c., shall have power, on the request in writing of either party, to appoint another arbitrator, who shall have the like authority to act in the reference and make an award, and the like powers in all respects, as if he had been appointed by the parties. (Note. — The Court has no piower to appoint another arbitrator in the place of an arbitrator who neglects, but does not refuse, to act.) Power over 8. And it is further agreed that the costs of preparing and executing *^°'*'^'*" these presents and a duplicate hereof, and the costs of the reference and award, shall be in the discretion of the arbitrator, who may direct to, and by whom, and in what manner, the same or any part thereof shall be paid [and may tax or settle the amount of the costs to be paid or any part thereof, and may award costs to be paid as between solicitor and client]. (See ante, p. 484 et seq.) Parties and 9. And that the witnesses on the reference and the parties (if examined) beTworn! ^ shall bc examined on oath or affirmation. (See ante, fp. 136-139.) Power to 10. And that the arbitrator shall be at liberty to proceed ex parte, in XKu^r ^'' case either party, after reasonable notice, shall at any time neglect or refuse SUBMISSIONS 593 to attend on the reference, without having previously shown to the said arbitrator what the latter shall consider good and sufficient cause for omitting or failing to attend. {See ante, pp. 395-396.) 11. And that the arbitrator shall be at liberty to view or inspect the view— maps subject-matter of the disputes and matters in difference [and to cause to be °''p'^°^- made such plans or maps as he may deem necessary for the purpose of the reference]. 12. And that the said parties and all persons claiming through them Povierto respectively shall, subject to any legal objection, [make an affidavit of documents. documents and] produce before the arbitrator all books, deeds, papers, accounts, vouchers, writings, and documents within their possession or power, which may be required or called for, in the judgment of the arbi- trator relating to the matters referred. {See ante, pp. 369-372.) 13. And that the parties respectively shall do all other things during the Parties to reference which the arbitrator may require or consider necessary to enable prevent' " him to make a just award ; and that neither of them shall wilfully and ^^^^'^• wrongly do or cause to .be done any act to delay or prevent the arbitrator from making his award. 14. And it is further agreed that the said parties, their executors and Parties to administrators, shall, on their respective parts, in all things stand to, obey, awarf. ^ abide by, perform, fulfil, and keep the award, so to be made and published as aforesaid. 15. And that none of them shall bring or prosecute any action against Parties not other of them concern shall have made his award. any other of them concerning the matters referred until after the arbitrator action!^ 16. And it is further agreed, that in the event of either of the parties. Power to their executors or administrators, being dissatisfied with the award, or Iward.*'^ ' disputing its validity, and moving the Court to set the same or any part thereof aside, or on any motion being made respecting the said award, the said Court, whether the award be insufficient in law or not, shall have power, if it shall think fit, to remit the award, or the matters hereby referred, or any of them, from time to time, to the reconsideration and determination of the said arbitrator. 17. And it is further agreed that the provisions in the First Schedule to Provisions the Arbitration Act, 1(S89, shall be excluded from this submission. to Arbitra-" tion Act 18. In witness whereof the said parties have hereunto set their hands, ^^'^^^ ^ ' . *• ' Conclusion. the day and year first above written. Witness, A. B, 0. P. C. D. [Schedule.] 38 594 APPENDIX OF FORMS Additional and Alternative Clauses. Recital, 19. [This cJau^e may he used instead of clause 2, in the above Form 3.] — d?flerences; Whereas certain differences and disputes have arisen and are still pending referred. between the said parties \_for instance, "as to whether the said A. B. is indebted to the said C. D. in any and what sum of money, and as to the price the said C. D. ought to pay for the stock in trade taken by him off the hands of the said A. B."] [w "which differences and disputes are specified in the Schedule hereto"], it is agreed by and between them that the same shall be referred, &c. Recital, 20. [Instead of clause 2, Form 3.] — Whereas an action is now depending ing'°matters in the King's Bench Division of His Majesty's High Court of Justice, wherein re erred. ^^^ ^^.^ ^ -g^ .^ ^-^^ plaintiff, and the said C. D. the defendant, it is agreed that the same, and all matters in difiFerence between the parties, shall be referred, &c. Recitai,part- 21. [Instead of clause 2, Form 3.1 — Whereas A. B., C. D., E. F., Gr. H., and Dcrsliip * ... matters' I. K. have Carried on the business of in partnership, and the accounts between them have become involved, and differences have arisen among them relating thereto, it is hereby agreed that the copartnership accounts and all matters in difference between the parties, or any t»f them, or between any one or more of them, and any other one or more of them, shall be referred, &c., [with power among other things to award that the said partnership shall stand dissolved as from any day in the year 19 which the arbitrator shall fix by his award]. Appoint- 22. [Instead of clause 3, Form 3.] — To the award, order, and determina- arbitrators tion of U. V. and X. Y., arbitrators nominated by the said A. B. and the umpire. ^^.^ ^ -p respectively, and " in case the said arbitrators shall not agree to the umpirage of S. T." [or "in case they shall not agree to the award of such person as the said arbitrators shall appoint as umpire," or "in case they disagree about making an award, or fail to make an award before the day of "], then to the award, umpirage, and determination of such umpire, as the said arbitrators shall by writing under their hands, indorsed on these presents, before they enter upon the consideration of the matters referred, nominate and appoint [to sit with them during the reference]. Formal re- 23. [Instead of clause 4, Form 3.] — So as "the said arbitrators" [or "the awardr° Said arbitrators or umpire"] make and publish their ["or his"] award ["or umpirage"] in writing, under their ["or his"] hands, [o?" "under their [' or his '] hands and seals "] of and concerning the matters referred, ready to be delivered to the parties or any of them. {See ante, p. 433 et seq.) Appoint- 24. And it is further agreed that if before the matters referred are Sbtoator determined any arbitrator dies, or refuses or becomes incapable or unfit, or vac^aMy'.^ for scven consecutive days fails to act as arbitrator, the party by whom he was appointed may by writing appoint an arbitrator in his place. SUBMISSIONS 595 25. And it is further agreed that if before the matters referred are Appoint- determined the umpire dies, or refuses or becomes incapable or unfit, or for "mp^re'to seven consecutive days fails to act as umpire, the arbitrators shall by writing yaeancy under their hands appoint an impartial and qualified person to be their umpire in his place. 26. And it is further agreed that if either of the arbitrators refuses or if either becomes incapable or unfit, or for seven days fails to act, the other arbitrator refuses to may proceed ex parte, and the decision of such other arbitrator shall be as proceed Ix effectual as if he had been a sole arbitrator appointed by both parties. ^'"''^' 27. And it is further agreed that the umpire shall be at liberty to sit Umpire to vi^ith the arbitrators and hear evidence in conjunction with them before the arbitrators matters in dispute shall have been referred to him, and that the umpire may ence'^to'him. base his award upon such evidence and such other evidence (if any) as he may afterwards hear or take sitting alone. {See ante, }?. 412.) 28. And it is further agreed that the umpire shall be at liberty to base umpire to his award upon the evidence taken before the arbitrators as reported by them dene" taken to him [or as contained in the transcript of the shorthand notes to be made arbitrators. by ], and that no further or other evidence shall be taken except with the consent of the umpire. {See ante, />. 411.) 29. [Instead of clause 6, Form 3.] — [When the arbitrator is to have no power Duration— to enlarge the time, omit all in clause 6 that follows the wm'd ^^next."] [When the enilrge.*^" arbitrator is to have a limited power of enlargement, say'] on or before the day of , or on or before any other day not later than the day of to which " the said arbitrator " [where there are arbitrators and an umpire with the same limit of time, say, " the said arbitrators or umpire "] shall {it is letter to add, " by any writing " or " by any writing signed by him " [or " them or him"], or "by any writing under his hand" [or " their or his hands"] ["at the foot of these presents ")] enlarge the time for making his [or " their or his "] award {or " award and umpirage "). 30. That the arbitrator shall be at liberty to direct points of claim and Points of defence to be delivered. Sce?*^ {See ante, p. 373.) 31. That the arbitrator shall be at liberty to allow all such amendments power to in the claims or defences of either party at any time, and upon such terms am^d- as to costs, as he may think proper. ments. {See ante, p. 374.) 32. That the arbitrator shall be at liberty to consult any counsel, engineer, power to architect, surveyor, accountant, or scientific person whom he may think experts and proper to consult, and to adopt his or their opinion in making his award. adopt their 596 APPENDIX OF FORMS Power to 33. That the arbitrators or any umpire appointed by them shall be at counsel's liberty at any stage of the proceedings to obtain and act on the opinion of opinion. counsel in respect of any matter arising in the reference, and that the costs and expenses of and incidental to obtaining such opinion shall be borne and paid by the said parties as the arbitrators or their umpire shall direct. (See ante, p. 404.) Evidence of 34. That [unless the arbitrator otherwise directs] the evidence at the tTbfnike'Z hearing shall be confined to the evidence of the parties hereto, and no further evidence shall be taken. 35. That the arbitrator having special knowledge of the subject-matter in dispute shall not be required to take the evidence of any witness other than [the said parties]. (See ante, pj). 383, 384.) Shorthand 36. That the oral evidence given by the parties hereto and all other eviden'ce. witnesses shall be taken down in shorthand by Messrs. , who shall [supply the arbitrator and] be at liberty to supply either of the parties hereto with a transcript thereof, and such shorthand notes shall be conclusive as to the evidence given by any witness. (See ante, p. 377.) Death of 37. That the submission hereby made shall not be defeated or affected affect sub-*° by the death of the said parties, or any of them, pending the same, but mission. shall or may be proceeded in, and the matters in difference determined, in the same manner as if the award of the said arbitrators had been made or determined in the lifetime of the party or parties so dying ; and the executor or administrator, executors or administrators, of the party or parties so dying shall be, and be deemed and considered to be, a party or parties to the submission hereby made. (See ante, p. 65.) Costs to be 38. [Instead of clause 8, Form 3.] — That each of the parties shall pay and equally. bear his o»vn costs of the reference, and the costs of the award shall be paid and borne by the parties equally. Costs of 39. [Instead of clause 8, Form 3.] — That the costs of the reference and abide^event. award shall abide the event of the award. Costs of 40. [Instead of clause 8, Form, 3.] — [When an action is referred, ivith or with- event.'^^"^'^ out other matters, a common provision is] that the costs "of the cause" [or "of the cause and of the special jury "] shall abide the event of the award as to Costs of the "cause," and that the costs of the reference and award shall be in the arbitrator's discretion of the arbitrator, who may direct to, and by whom, and in what discretion, jjjg^j-jj^gj.^ ^^6 Same or any part thereof shall be paid. [The following addition is very useful with respect to the costs of an action tvheu they abide the event] — and Power to that the arbitrator shall have all the powers of certifying which a judge of cost's? ^°'^ the High Court of Justice would have had on the trial of the said cause. SUBMISSIONS 597 41. [As mi addition to clause 8, Form 3.] — Provided that the arbitrator Fixed shall not be at liberty to tax or settle the amount of his costs of the reference remunera- or award, which are hereby agreed at the sum of £ per day for each day's arwtrator. sitting in the reference, and the sum of £ for making the award. [Or, if Oraru- there are two arbitrators and an iirnjnre.] Provided that neither the arbitrators umpire. nor the umpire shall be at liberty to tax or settle the amount of their or his costs of the reference or award, which are hereby agreed at the sum of £ for each of the arbitrators and £ for the umpire for each day on which they respectively sit in the reference, and the aggregate sura of £ for the making of the award. (See ante, pp. 487-490.) 42. The arbitrator shall, in awarding costs, take into consideration the Matters reasonableness or unreasonableness of the claim of either party, either in sidereTIn respect of amount or otherwise, and any unreasonable demand for particulars cojfts^^°° or refusal to supply particulars, and generally all the circumstances of the •case, and may disallow the costs of any witness whom he considers to have been called unnecessarily, and any other costs which he considers to have been incurred unnecessarily. 43. That the arbitrator, if he shall think it necessary, shall be at liberty, powerto and he is hereby authorised, to appoint an accountant [ar surveyor] to assist accountant him, at the expense of the said parties, who shall be liable to such accountant "'^ surveyor. [or surveyor] for his reasonable remuneration ; and that as between the said parties the expense of such accountant [o?- surveyor] "shall be borne and paid in equal moieties by the said parties " [w " shall be in the discretion of the arbitrator"]; such accountant [or surveyor] to be required to make his solemn declaration according to the statute, of the truth of the account [or measurement or report] or statement to be made out by him. (See ante, pp. 400-403.) 44. That the arbitrator shall be at liberty to order and determine what Power to he shall think fit to be done by either of the parties respecting the matters shaiibe' referred, or any of them. '^°"*^' 4.5. That the arbitrator shall, at the request of either party, state his Award in award in the form of a special case for the opinion of the Court. special case. 46. That neither party shall require, or apjDly to the Court to direct, the Arbitrator arbitrator to state a ease on any question of law arising in the course of the required\o reference, and that all questions of law so arising shall be determined by the ^^'-^^^''^ ^^^^• arbitrator, any provisions to the contrary in the Arbitration Act, 18S9, not- withstanding. {yis to the validity of such a clause as this, see ante, pp. 304-306.) 47. That the arbitrators or any umpire appointed by them may direct Powerto that the parties or either of them shall execute and do such [assurances, cution'^of' releases or other] documents and things as the arbitrators or their umpire °^o^"™*'it''' shall determine. 598 APPENDIX OF FORMS 48. That the .arbitrator may at the request of either party make an interim award or interim awards respecting a portion or portions only of the matters referred, and the making of such inteiim award or awards shall not affect the submission of the other matters referred. {See ante, pp. 214, 433.) 49. That the arbitrator [or the arbitrators and umpire respectively] may, if he [or they or he] thinks [or think] fit, make several awards, each on part of the matters referred, instead of one award on all the matters referred ; and that every such award on part of the matters referred shall be binding as to all matters to which it extends, as if the matters so awarded on were all the matters referred, notwithstanding that the other matters referred or any of them have not then been and are not thereafter awarded on. (Note. — This clause is adapted from 5. 21 of the Eailway Companies Arbi- tration Act, 1859.) Party pre- 50. That if either party shall by affected delay, or otherwise, wilfully arbitrator prevent the arbitrator from proceeding in the reference, or from making his to pay costs, j^^^^^,^^ he shall pay such costs to the other as the arbitrator shall think reasonable. 51. And the said parties [or "the said solicitor of the said parties"] jointly and severally agree to and with the said arbitrator, in consideration of his taking upon himself the burthen of the reference, to pay to the said arbitrator his reasonable charges for the reference and award [provided always that the arbitrator shall not have power to tax or settle or award the amount of such charges]. {See ante, p. 487.) Rppresenta- tion of absent party. 52. [Where a party is resident abroad, the following clause may be inserted.] — That the said A. B. may be represented at the arbitration by J. K., of, &c., who shall be at liberty to take part in the arbitration and (if he thinks tit) to appear thereat by counsel or solicitor. And that all notices relating to the arbitration may be served on or given by the said J. K. on behalf of the said A. B., and shall be as effectual and binding as if they had been served upon or given by the said A. B. within the jurisdiction of the High Court of Justice. And that the said A. B. shall be bound by the award made by the arbitrators or their umpire as fully and effectually as if he had at all times been within the jurisdiction of the said Court. 4. Agreement of Reference by Executor as to Testator's Estate. Memorandum of agreement made this day of 19 , between A. B., of, &c., and C. D., of, &c. Whereas the said A. B. is executor of the last will and testament of E. F., late of, &c., deceased, and whereas certain ditferences have arisen between the said A. B., as such executor, and the said C. D., in regard to claims by the said A. B., as such executor, against the said C. D., and by the said C. D. against the said A. B., in respect of the said testator's estate ; it is hereby SUBMISSIONS 599 agreed by and between the said parties, to refer all matters in difference respecting the said testator's estate to the final award of X. Y., of, &c., for him to determine whether the said A. B., as such executor, has any and what claim against the said C. D., and whether the said C. D. has any and what claim against the said testator's estate, so as, &c. [continue as in Form 2, clauses 4, 5, 6]. And it is further agreed that this submission to arbitration Reference shall not be deemed or taken to be an admission by the said A. B. that he admission of has assets of the said testator,* but that the said A. B. shall be at liberty to ^**^'^*'*- deny before the said arbitrator "that at the date of this submission he had any assets in his hands lawfully liable to the demands of the said C. D." [or "at any time before the case is closed, that he has at the time of such denial assets in his hands lawfully liable to the demands of the said C. D."] ; and if the said A. B. shall make such denial as aforesaid, that he, the said arbitrator, if requested by the said C. D., shall enquire " whether at the date of this submission the said A. B. had " [or " whether at the time of such Arbitrator enquiry the said A. B. has "] assets of the said testator lawfully liable to pay as to assets. the whole or any part of the sums claimed by the said C. D. And if the said arbitrator shall on the balance find any money to be due to the said C. D., he shall, if he shall find that the said A. B. had at the time to which Finding the said enquiry referred assets liable to the demands of the said C. D., direct exe- direct the said A. B. to pay to the said C, D. the balance, or so much thereof sum due.^^^ as the assets so found to be liable shall be sufficient to satisfy. And if the Finding no said arbitrator shall find that the said A. B. had no such assets, or not enough direct'exe- of such assets to pay the whole amount so found due to the said C. D., he out'ofassete shall be at liberty to award that the said A. B. shall pay to the said C. D. '-(^f""'"- the said amount (or as much thereof as the assets in hand do not avail to satisfy as aforesaid) out of any assets which may have come into the hands of the said A. B. since the time to which the said enquiry respecting the assets refers, or which may hereafter come into them. And that if the said Arbitrator arbitrator shall find any money due from the said C. D., he shall direct the payment to latter to pay the same to the said A. B. [Add such other clauses a.y may be money°due. suitahh.^ (See ante, pp. 29-31.) 5. Agreement of Reference by Executor as to Liability, not as to Assets. [Commence as in the previous Fm'm as far as the asterisU] — and that the said arbitrator shall not consider or enquire whether the said A. B. had or has any assets of the said testator, nor shall his award conclude, or be construed to conclude, any questions as to assets, but shall leave the same entirely open. {See ante, pp. 29-31.) 6. Submission of Disputes Arising out of a Purchase. This agreement made the day of 19, between [vendor\ of, Recital of &c., of the one part, and [purchaser], of, &c., of the other part. Whereas by ^^'^^®"'®'^ • 600 APPENDIX OF FORMS Disputes to be referred. That dis- ail agreement dated, &c., [recite agreement for purchase]. And whereas disputes pu s CMS . ^^^ differences exist between the said [vendor] and the said [pwchaser] Testatum, respecting the said agreement and otherwise relating to the premises. Now these presents witness that it is hereby agreed as follows, that is to say : — 1. All disputes and differences which exist between the said parties, and also all other disputes and differences that may, at any time or times before the last ten days immediately preceding the day which shall be appointed by the arbitrator hereinafter named for his first sitting in the arbitration to be made in pursuance of these presents, exist between the said parties, or any matters and things relating thereto, or arising out of the said agree- ment, shall be referred to the arbitration of X. Y., of, &c. ofmatters ^' "^^^ soHcitor of cach of the said parties shall state in writing all the intended to matters and things intended to be referred by his client to the arbitrator, and l)G rsfcrrscl. shall, at least ten days before the day appointed by the arbitrator for his first sitting on the arbitration, deliver a copy of such statement to the solicitor of the other party ; and only those matters and things which shall be compre- hended in such respective statements shall be taken into consideration by the arbitrator. to^h?"^"^ 3. The arbitrator shall give at least days' previous notice to the notice of his solicitor of each of the parties of the day on which he intends to hold bis farst sitting. . . . , , . . nrst sitting on the said arbitration. Parties not 4. Neither of the parties shall bring any action or suit against the other action." party in relation to the premises until after the arbitrator shall have made his award. In witness, &c. Reference to one or three sur- veyors. 7. Submission of Differences Arising out of the Execution of Building Work to One or to Three Arbitrators. {The London Building Act, 1894, s. 91, provides a convenient method of settling disptdes arising out of a building in course of construction, and the following forni is adapted from the provisions of that section.) [After reciting the building agreement and that disputes and differences have arisen thereunder, and that it has been agreed to submit the same to arbitration, such disputes and differences being set forth in the Schedule, proceed] it is hereby agreed as follows : — 1. The said disputes and diff'erences shall be referred to the arbitration and award of one surveyor to be agreed upon by the parties, or if the parties do not concur in the appointment of one surveyor then to the arbitration and award of two surveyors, one to be appointed by each party, and a third surveyor to be appointed by the two surveyors so appointed, and such one surveyor or three survej^ors or any two of them shall settle the said disputes and diff'erences, with power by his or their award to determine the right to do and the time and manner of doing any work, and generally any other matter arising out of or incidental to the reference. SUBMISSIONS 601 2. If either party to the reference makes default in appointing a surveyor Default in , appointing for ten days after notice has been served on him by the other party to make arbitrator. such appointment, the party giving the notice may make the appointment in the place of the party so making default. 3. Where both parties to the reference have concurred in the appointment single arW- of one surveyor for the settlement of the said disputes and differences, then in- &c.,to if such surveyor refuses or for seven days neglects to act, or dies, or becomes incapable to act before he has made his award, the matters in dispute shall be determined in the same manner as if such single surveyor had not been appointed. 4. Where each party to the reference has appointed a surveyor for the Third arW- '^ triitor rcfu.S" settlement of the said disputes and differences, and a third surveyor has been ingor selected, then if such third surveyor refuses or for seven days neglects to act, "o let. "^^ or before the final award is made dies or becomes incapable to act, the two surveyors shall forthwith select another third surveyor in his place ; and every third surveyor so selected as last aforesaid shall have the same powers and authorities as were vested in his predecessor. 5. Where each party to the reference has appointed a surveyor for the Faiiure^to settlement of the said disputes and differences, then if the two surveyors so third appointed refuse, or for seven days after request of either party neglect to select a third surveyor, or another third surveyor in the event of the refusal or neglect to act, death, or incapacity of the third surveyor for the time being, the President for the time being of the niay, on the application of either party, select some fit person to act as third surveyor ; and every surveyor so selected shall have the same powers and authorities as if he had been selected by the two surveyors appointed by the parties. 6. Where each party to the reference has appointed a surveyor for the Death or settlement of the said disputes and diflferences, then, if before the final award of one of is made, either surveyor so appointed dies or becomes incapable to act, the tratoK.'" party by whom such surveyor was appointed may appoint in writing some other surveyor to act in his place, and if for the space of seven days after notice served on him by the other party for that purpose he fails to do so, the other surveyor may pi'oceed ex parte, and the decision of such other surveyor shall be as eflTectual as if he had been a single surveyor in whose appointment both parties had concurred ; and every surveyor so to be sub- stituted as aforesaid shall have the same powers and authorities as were vested in the former surveyor at the time of his death or disability as aforesaid. 7. Where each party to the reference has appointed a surveyor for the Refusal or settlement of the said disputes and differences, then if either of the surveyors act of one of refuses or for seven days neglects to act, the other surveyor may proceed ex trltoTs.'" parte and the decision of such other surveyor shall be as effectual as if he had been a single surveyor in whose appointment both parties had concurred. 8. The parties to the reference and all persons claiming through them Production shall, subject to any legal objection, produce before the surveyor or surveyors ments. 602 APPENDIX OF FORMS all books, deeds, papers, plans, accounts, writings, and documents within their possession or power respectively which may be required or called for, and do- all other things which during the proceedings on the reference the surveyor or surve\'ors may require. View, plans, 9. The surveyor or surveyors may inspect the premises and may make or or map:,. e^use to be made such plans or maps as may be deemed by him or them to be necessary for the purposes of the reference. Evidence. 1 0. The surveyor or surveyors shall not be required to hear or receive evidence on oath or formal evidence, and shall be at liberty to determine the said disputes and differences as surveyors do by their knowledge and skill in the subject of the disputes and differences. Several 11. The surveyor or surveyors shall be at liberty to make one or more bemade'."^^ awards and any award given by such one surveyor, or by such three surveyors, or by any two of them, shall be final and binding on the parties and all persons claiming through them respectively. Costs in 12. The costs of the reference and award or awards shall be in the discre- dlscretron^ tion of the surveyor or surreyors, who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be paid or any part thereof. 8. Submission by Deed of Differences between Various Parties. This indenture, made between A. B., of, &c., and C. D., of, &c., of the first part; E. F., of, &c., of the second part; and G. H., of, &c., of the third part. Recital. AVhereas disputes and differences have arisen, and are depending between the said A. B. and C. D., and the said E. F., and also between the said A. B. and the said E. F., and also between the said E. F. and the said G. H., touching and concerning [here shortly state the matters] : and in order to put an end to the said disputes and differences, the said parties have Asireement agreed to refer " the same" [or "all matters in difference"] to the award of torefer. ^ y., of, &C. Consent to Now this indenture witnesseth that they, the said A. B., C. D., E. F., award. ^ and G. H., do and each of them doth, each for himself severally and respec- tively, and for his several and respective heirs, executors, and administrators, covenant and agree with each other, his heirs, executors, and administrators respectively, to stand to, abide by, observe, and perform the award and deter- mination of the said X. Y. of and concerning the premises aforesaid ; so as the above-mentioned arbitrator [continue as in Form 3, clauses 4, 5, and 6]. And the said parties do hereby further agree that [add clauses considered advisable]. In witness whereof the said parties hereto set their hands and. seals, the day of , in the year of our Lord 19 . Signed, sealed, and delivered by the said , in the presence of A. B. (L.S.) C. D. (L.S.) E. F. (L.S.) G. H. (L.S.) SUBMISSIONS 603- 9. Submission by Bond in Common Form. Know all men that I [obligor], of, &c., am bound to [obligee], of, &c., in the sum of [^^enalttj], to be paid to the said [obligee] or to his attorney, executors, administrators, or assigns. For which payment I bind myself by these presents. Sealed with my seal. Dated this day of 19 . The condition of the above-written bond is such that if the said [obligor], his heirs, executors, and administrators, shall in all things well and truly obey, abide by, and perform the award and final determination of [arbitrator], of, &c., arbitrator named as well on behalf of the above-bounden [obligor], as of the above-named [obligee], to award and determine concerning all actions, causes of action, claims, and demands whatsoever, which at any time or times heretofore have been had, brought, commenced, done, suffered, or depending by and between the parties ; so as the said award be made in writing, under the hand of the arbitrator, and ready to be delivered to the parties, or if they or either of them shall be dead before the award shall have been made, to their respective executors or administrators, who shall desire the same, on or before the day of next [or on or before such other day, not beyond the day of 19 , as the arbitrator shall, by writing under his hand, from time to time appoint], then the above-written bond shall be void and of no effect. Signed, sealed, and delivered by the above-named [obligor], in the presence of 10. Submission of Claim under Policy of Fire Insurance. This agreement, made the day of 19 , between A. B., of. Recital of &c., hereinafter called the claimant, of the one part, and the Assurance ^° "^^^ Corporation, hereinafter called the corporation, of the other part. Whereas the claimant on the day of 19 , effected with the corporation the policy of insurance numbered against loss or damage by fire on certain property therein mentioned in the sum of £ . And whereas Fire. on the day of 19 a fire occurred on the premises in the said policy of insurance mentioned. And whereas on the day of claim. 19 , the claimant delivered to the corporation a claim for his alleged loss and damage by the said fire to the goods and effects upon the said premises amounting to the sum of £ , which claim the corporation disputes, ciaim Ai]d whereas the parties hereto are bound by clause of the said policy ""J.'" ^!' to refer to arbitration all differences which shall arise between the corpora- tore°fe,r. tion and the assured touching any loss or damage. Now it is hereby agreed Agreement between the parties hereto that the matters agreed to be referred to arbitra- ^° ^'^^^^' tion by the aforesaid clause of the said policy shall be referred to the award of X. Y., of, &c., barrister-at-law, and that in all respects the reference subject to shall be subject to the Arbitration Act, 1889. Ic"™'' As witness the hands of the parties the day and year first above written. The Assurance Corporation, Witness, . Manager, Witness, . A. B. <304 APPENDIX OF FORMS 11. Arbitration Clause in Contract (General Form). If any dispute, difference or question shall at any time hereafter arise between the parties hereto or their respective representatives [or assigns] in respect of the construction of these presents or concerning anything herein contained or arising out of these presents or as to the rights, liabilities, or duties of the said parties hereunder, the same shall be referred to the arbitra- tion of X. Y., of, &c., or if he shall be unable or unwilling to act, then of some other person to be agreed upon by the said parties, or failing agreement, to be nominated by the President for the time being of the Society [or the arbitration of two arbitrators, one to be appointed by each of the parties hereto or by his representatives or assigns] in accordance with and subject to the provisions of the Arbitration Act, 1889, or any statutory •variation, modification or re-enactment thereof for the time being in force. 12. Arbitration Clause in a Building or Engineering Contract. In case any disputes or difference shall arise between [the building owner or owners] or the engineer [or architect] on his [or their] behalf and the contractor [not already herein provided to be otherwise settled and determined by the engineer [or architect] in the manner set out in clauses ] such dispute or difference shall be referred to A. B., of, &c., and failing his being willing and able to act as arbitrator then to C. D., of, &c., and failing his being willing and able to act as arbitrator, then to an arbitrator to be appointed by the President for the time being of the Institution of Civil Engineers [or Royal Institute of British Architects]. The arbitrator shall have all the powers conferred on an arbitrator by the Arbitration Act, 1889, and it shall be competent for him to enter upon the reference without any further or more formal submission than is contained in this contract. Provided always that he shall be at liberty to appoint a legal assessor to sit with or advise him during the arbitration and as to the making of his award. [Provided also that neither party to the said reference shall have any claim against the other party until the arbitrator shall have made his award, and then only for the amount of and in accordance with the terms of the said award.] 13. Arbitration Clause in Deed of Partnership. And the said A. B. and the said C. D. do each of them, for himself, his executors and administrators, covenant, promise, and agree to and with the other of them, his executors and administrators, that if at any time or times during the co-partnership, or at or after any determination thereof, any dis- pute, or difference shall arise or happen between the said parties or either of them, their executors or administrators, touching the said partnership or the accounts or transactions thereof, or the dissolution or winding up thereof, or any covenant, agreement, clause, matter, or thing herein contained, or the construction or effect hereof, or in anywise relating hereto ; then every such dispute or difference shall be referred to, and be determined by, two fit and indifferent persons, to be elected and chosen one by each of the said partners, with power to the arbitrators to elect an umpire in case of disagreement ; SUBMISSIONS 605 and that each of the said partners, his executors and administrators, shall abide by, perform, and keep the award and determination of the arbitrators, or of their umpire. 14. Agreement for Reference of Dififerences in a Cause. An agreement made the day of 19 , between A. B., of, &c., of the one part and C. D., of, &c., of the other part. Whereas an action entitled v. is now pending in the Division of the High Court of Justice wherein the said A. B. is plaintiff and the said C. D. is defendant. And whereas the parties hereto are desirous of referring the differences and disputes arising in the said action to arbitration and of staying the proceedings in the said action. Now it is hereby agreed as follows : — 1. All the claims and demands in the said action shall be referred to the arbitration and award of X. Y., of, &c. 2. All proceedings in the said action shall forthwith be stayed [or shall be stayed until the day of 19 > when, if no award shall be made, and the time for making the same shall not be enlarged, each of the parties shall be at liberty to proceed as they or either of them shall be advised]. 3. The costs of the said action and of the reference and award shall be in the discretion of the arbitrator. 4. The said reference shall be deemed to be a submission to arbitration within the meaning of the Arbitration Act, 1889, and shall be subject to the provisions of that Act as to references by consent out of Court. In witness, &c. (Note. — Where the only matters to be referred are the disptites and differences in an action, an order of the Court should not be taken referring the cause, if it is desired that the reference should be a reference to arbitration and that the person to whom the disputes are referred should be an arbitrator and not an officer of the Court, because, if an order of reference is taken it may be construed as a reference for trial under s. 14 of the Arbitration Act. Where, hotvever, it is desired to refer an action and all matters in difference, an order of the Court may be taken, and does not come within the provisions of s. 14 of the Act. The reference under such an order is a submission to arbitration by consent out of Court, and the person named is an arbitrator- and not an officer of the Court. (See ante, pp. 496-498)). 15. Agreement for Reference of a Cause and All Matters in Difference. An agreement made the day of 19 j between A. B., of, &c., of the one part and C. D., of, &c., of the other part. Whereas a cause entitled v. is now pending in the Division of the High Court of Justice wherein the said A. B. is plaintiff ^06 APPENDIX OF FORMS and the said C. D. is defendant. And whereas the parties hereto are desirous of referring the said cause and all matters in difference to arbitration. Now it is hereby agreed as follows : — 1. The said cause and all matters in difference between the parties shall be referred to the arbitration and award of X. Y., of, &c. 2. The arbitrator shall have all the powers of amending of a judge of the High Court of Justice. 3. The costs of the cause [or of the cause and of the special jury] shall abide the event of the award as to the cause, and the costs of the reference and award shall be in the discretion of the arbitrator, who may direct to and by whom and in what manner the same or any part thereof shall be paid. 4. The arbitrator may find generally for the plaintiff or for the defendant by his award in respect of the said cause and need not find any specific issues arising in such cause unless required to do so. The costs of any such specific issues (if found) shall abide the event. 5. Unless and except in so far as a contrary intention is expressed herein, the provisions of the First Schedule to the Arbitration Act, 1889, shall be included in this submission. 6. The parties shall apply to the Court for an order referring the said cause and all matters in difference to arbitration upon and subject to the foregoing terms. In witness, &c. 16. Order of Reference of a Cause and All Matters in Difference. In the High Court of Justice. 19 , No. . King's Bench Division. Between A. B., Plaintiff, and C. D., Defendant. Upon hearing and by consent : It is ordered as follows : — 1. This action and all matters in difference between the parties shall be referred to the award of (Follow the last Form or set out the terms upon which the cause and all matters in difference are referred.) STAY OF PEOCEEDINGS. 17. Affidavit in Support of Summons to Stay Proceedings in an Action. In the High Court of Justice. 19 , No. . Chancery Division. Mr. Justice Between A. B., Plaintiff, and C. D., Defendant. I, C. D., of, &c., make oath and say as follows : — 1. The matters in dispute in this action arise solely out of an agreement dated the day of 19 , now shown to me and marked — 2. The said agreement contains in clause thereof a provision that all disputes and differences between the parties thereto arising out of or in connection with the said agreement shall be referred, &c. [set oiit the provisions]. 3. I have entered an appearance to the writ in this action and have a good defence thereto. 4. I was at the time these proceedings were commenced, and still am, ready and willing to do all things necessary for the proper conduct of the arbitration, in accordance with the provisions of the said agreement. Sworn, &c. 18. Order to Stay Action under s. 4 of the Arbitration Act, 1889. [Title of action, as in preceding Foi'm.] Upon hearing and upon reading the affidavit of , filed the day of 19 . It is ordered that all further proceedings in this action be stayed pursuant to s. 4 of the Arbitration Act, 1889, and that the plaintiff do pay to the defendant his costs of and occasioned by this action (including the costs of this application) to be taxed. Dated the day of 19 . {E. S. C, J pp. K, No. 31a.) 607 Recital of articles of partner.sliip. That dis- putes have arisen. Appoint- ment of arbitrator. APPOINTMENTS AND NOTICES TO APPOINT AEBITEATOR AND UMPIRE. 19. Appointment of an Arbitrator in Pursuance of an Arbitration Clause in Articles of Partnership. Whereas by articles of partnership, dated, &c., and made, &c., amongst other things, it was agreed that in case any dispute or question should arise between the said parties relative to the construction of the said articles, or to all or any of the matters or things therein contained, the same should be referred to the arbitration of two indifferent persons, one to be named by each of the parties, with power for such arbitrators to appoint an umpire- in case of their disagreement ; and that the award of the said arbitrators or umpire should be final and conclusive : and whereas disputes have arisen between the said parties relating to their partnership [and also relating to several other matters and things], and they have, in pursuance of the said covenant, agreed to refer the same accordingly. Now, therefore, I, A. B., hereby nominate and appoint X. Y., of, &c., an arbitrator for me and on my behalf, to hear and determine the disputes aforesaid, in accordance with the- provisions of the said articles of partnership. Dated the day of 19 . Witness, J. K. A. B. 20. Appointment of Arbitrator in Place of One who Refuses to Act, or has Died, or become Incapable of Acting. Whereas we, the undersigned A. B., of, &c., and C. T)., of, &c., by an instrument in writing under our hands, dated the day of 19 j. appointed X. Y., of, &c., to be sole arbitrator in the matter of certain disputes which have arisen between us. And whereas the said X. Y. has since the date of such appointment died [w refused to act or become incapable of acting]. Now we hereby appoint U. V., of, &e., to be the arbitrator in the matter of the said disputes in the place of the said X. Y. As witness our hands this day of 19 . A. B. C. D. 21. Appointment of Arbitrator to Act as Sole Arbitrator where Opponent Fails to Appoint an Arbitrator. To X. Y. Whereas by a notice dated the day of 19 , I appointed you to be the arbitrator on my behalf to settle certain matters in diff'erence between me and C. D. And whereas the said C. D. has failed for seven eo8 NOTICES TO APPOINT ARBITRATOR AND UMPIRE 609 clear days, after notice given by me in accordance with s. 6 (b) of the Arbitration Act, 1889, to appoint an arbitrator to act on his behalf in the said matters in difference. Now, pursuant to the power conferred on me by the said section of the said Act, I hereby appoint you to act as sole arbitrator in the reference. As witness my hand this day of 19 . A. B. 22. Appointment of Umpire by Arbitrators Indorsed on Submission. We, the within-named U. V. and X. Y., do hereby nominate and appoint Q. R., of, &c., to be the umpire, pursuant to the within-contained provisions. As witness our hands this day of 19 . Witness, U. V. 0. P. X. Y. 23. Appointment of an Umpire by Arbitrators. Pursuant to the powers given to us [by an agreement of reference], made on the day of 19 , by A. B., of, &c., and C. D., of, &c., respectively, we, the thereby appointed arbitrators, do by these presents nominate and appoint Q. B., of, &c., to be the umpire, according to the provisions of the above-mentioned [agreement of reference]. As witness our hands this day of 19 . Witness, U. V. 0. P. X. Y. 24. Notice to Concur in Appointment of a Single Arbitrator. To C. D. Take notice that I, the undersigned A. B., of, &c., require you, in accord- ance with the provisions of clause of the agreement between us, dated the day of 19 , to concur with me in the appointment of an arbitrator for the settlement of the disputes which have arisen between us under the said agreement, [and that in default of your so doing within seven clear days after the service of this notice upon you I intend without further notice to apply to the Court or a judge to appoint an arbitrator]. Dated the day of 19 . A. B. 25. Notice to Appoint an Arbitrator. To C. D. Take notice that in respect of the disputes and differences which have arisen between us under the agreement dated the day of 19 , I have this day appointed X. Y., of, &c., to be the arbitrator on my behalf. And that I call upon you within seven clear days after the service of this notice on you to appoint an arbitrator to act on your behalf in the matter of the said disputes and differences [and that in default of your so doing the said X. Y. will be appointed by me to act as sole arbitrator in the reference]. Dated this day of 19 . A. B. 39 610 APPENDIX OF FORMS 26. Notice to Appoint an Arbitrator in Place of an Arbitrator who Refuses to Act, or has Died, or become Incapable of Acting. To C. D. Take notice that I I'equire you to appoint an arbitrator for the settlement of the disputes and differences which have arisen between us under the terms of an indenture dated the day of 19 to act in the place of X. Y., who refuses to act [or who has become incapable of acting or who has died]. And, further, if the appointment is not made within seven clear days after the service of this notice upon you I shall proceed to appoint U. V. (referred to in my notice to you of the day of 19 ) to act as sole arbitrator in the reference. Dated the day of 19 . A. B. 27. Notice Requiring Arbitrators to Appoint an Umpire or Third Arbitrator in the Place of One who Refuses to Act, or is Incapable of Acting, or has Died. To U. V. and X. Y. Take notice that I, the undersigned A. B., of, &c., require you within seven clear days after the service of this notice to appoint an umpire [or third arbitrator] to act in the arbitration between me and C. D., of, &c., in the place of J. K., who refuses to act [or is incapable of acting w has died]. Dated this day of 19 . 28. Summons for Appointment of an Arbitrator or Umpire. In the High Court of Justice. Chancery Division. Mr. Justice In the Matter of an Arbitration between A. B. and C. D. And in the Matter of the Arbitration Act, 1889. Let A. B., of, &c., attend at the chambers of Mr. Justice , at the time specified in the margin hereof on the day of 19 , on the hearing of an application on the part of C. D., of, &c., pursuant to s. 5 of the Arbitration Act, 1889, that X. Y., of, &c., may be appointed to act as arbitrator [or umpire] in the place of U. V. who has died, [oi- who has refused to act, or who is incapable of acting] under the submission to arbitration contained in an agreement dated the day of 19 » and made between the said A. B. of the one part and the said C. D. of the other part. (Note. — It will not be necessary for you to enter an appearance in the Central Office, hut if you do not attend either in person or by your solicitoi- at the time and place above mentioned [or at the time mentioned in the indorsemeni hereon^ such order will be made and proceedings taken as the judge may think just and expedient.) (E. S. a, App. K, No. ((?).) NOTICES TO APPOINT ARBITRATOR AND UMPIRE 611 29. Summons to Set Aside Appointment of a Party's Arbitrator as Sole Arbitrator. [Commence the summons as in the preceding Form,, and contiime] — that the appointment by the said A. B. of X. Y. as sole arbitrator in the above- mentioned arbitration may be set aside, [and that the costs of this application he paid by the said A. B.]. [Add Note as in preceding Form.] [The summons should he supported by affidavit.] 30. Master's Order Appointing Umpire under the Arbitration Act, 1889. In the High Court of Justice. King's Bench Division. Master in Chambers. In the Matter of an Arbitration between J. L., appellant, and The Churchwardens and Overseers of the Poor of the parish of S., in the county of L., and J. T., coal pro- prietor, and R. F., coal proprietor, and L. D., flour dealer, respondents. Upon hearing counsel for the appellant and for the respondents [except J. T. and E. F.] ; and upon reading the affidavits of the appellant and the affidavits of A. B., of C. D., and of E. F. ; I do order that T. T., Esq., barrister-at-law, be appointed the umpire herein, pursuant to the Arbitration Act, 1889. Dated the day of 19 . J. T. C. I PEOCEEDINGS DUEING THE EEFERENCK 31. Appointment for a Meeting in the Reference. B. plaintiff, V. D. defendant. Or In the Matter of the Arbitration between A. B. and C. D. I appoint [Monday], the [fiflK] day of [September] next, for proceeding in this reference {or enquiry directed by the order of reference dated the day of 19 ), at the hour of [eleven] o'clock [in the forenoon], at [the Guildhall Coffee House, King Street, Cheapside]. The day of 19 . X. Y., Arbitrator. To Messrs. E, and F., solicitors for A. B., and to Mr. G. H., solicitor for C. D. [o7' to the party, if appearing in person]. {See ante, p. 395.) 32. Appointment with Notice, Arbitrator will Proceed ex parte. B. V. D. I appoint [Monday], the [third] day of [January] next, for proceeding in this reference, at the hour of [eleven o'clock in the forenoon], at [the Guildlmll Coffee House, King Street, Cheapside]: and I give notice that in case "either party " [if one party only be delaying, say, " you, A. B."] fail to attend without having previously shown to me good and sufficient cause " for his absenting himself" [or "for your absenting yourself"], I shall, at the request of "the other party" [or "C. D."] if present, go on with the reference ex parte. The day of 19 . X. Y. To Messrs. A. B. and C. D. [or to Mr. A. B.] and to all other persons whom it may concern. {See ante, p. 396.) 33. Oath to be Administered by the Arbitrator. I swear by Almighty God that the evidence I shall give touching the matters in difference in this reference shall be the truth, the whole truth, and nothing but the truth. PROCEEDINGS DURING THE REFERENCE 613 The person taking the oath is to hold the New Testament, or, in the case of a Jew, ' the Old Testament, in his uplifted hand, and say or repeat after the arbitrator the words of the oath. The arbitrator should {unless the person about to take the oath voluntarily objects thereto, or is physically incapable of so taking the oath) administer the oath in this form without question. See the Oaths Act, 1909 (9 Edw. VII. c. 39), ss. 2, 3. 34. Another Form of Oath. You shall true answers make to all such questions as shall be asked of you touching the matters in difference in this reference ; so help you God. 35. Form of Affirmation. I, A. B., being [or "having been"] one of the people called Quakers [or ^^one of the united brethren called Moravians," or "being a Separatist"], do solemnly, sincerely, and truly affirm and declare, that the evidence which I shall give before you, the arbitrator, touching the matters in difference in this reference, shall be the truth, the whole truth, and nothing but the truth. 36. Another Form of Affirmation. I solemnly, sincerely, and truly affirm and declare that I will true answers make to all such questions as shall be asked of me touching the matters in difference in this reference. 37. Notice by an Arbitrator to Produce Documents. In the Matter of an Arbitration between A. B. and C. D. To A. B., Esq. Pursuant to the powers given to me by the submission between the above-named parties, and every other power me hereunto enabling, I hereby require you to produce before me on next, at , the several books of account, deeds, writings, and other documents specified in the Schedule hereto annexed, and all other documents relating to the matters referred to me in the above-named arbitration. Dated the day of 19 . X. Y., Arbitrator. The Schedule above referred to. 38. Notice by a Solicitor of one of the Parties to Produce Documents. In the Matter of an Arbitration between A. B. and C. D. To Messrs. , Solicitors. This is to give you notice to produce before J. K. and L. M., the arbitrators to whom all matters in difference between the above-named parties have been referred, to-morrow, at o'clock, at , all books, deeds, writings, vouchers, and other documents whatsoever relating to the 614 APPENDIX OF FORMS matters in difference between the parties so referred as aforesaid, now in your possession, custody, or control, and particularly [describe the document Arbitrators. To Q. E., Esq., umpire. 41. Enlargement of Time by Arbitrator. I enlarge the time for making my award respecting the matters referred to me by the {if the enlargement of time is to be indorsed on the submission, say, " within order of reference " [or other submission], if it is to be written at the foot of the submission, say, " above order of reference " [or other submission]), until the day of 19 . The day of 19 . X. Y. 42. Enlargement of Time by the Parties. [Enlargement indorsed on the submission.] — We, the within-named A. B. and C. D., do hereby agree to give and allow to the within-named arbitrator a further time for making his award, namely, until the day of 19 ; and we further declare and agree that all the provisions of the within- PROCEEDINGS DURING THE REFERENCE 615 contained submission shall continue of full force and effect ; except that the same shall be construed and read as if the day hereby given and allowed had been given and allowed for the making of the award by the within- contained submission. In witness whereof we have hereunto set " our hands " [if the submission be by bond or deed, say, "our hands and seals"] this day of 19 , Witness, A. B. 0. P. C. D. {See ante, pp. 342-345.) 43. Summons for Enlargement of Time. In the High Court of Justice. King's Bench Division. Master in Chambers. In the Matter of an Arbitration between A. B. and C. D. And in the Matter of the Arbitration Act, 1889. Let A. B., of, &c., attend the Master in chambers at the Central Office, Royal Courts of Justice, Strand, London, on the day of 19 , at of the clock in the "forenoon" [or "afternoon"] on the hearing of an application on the part of C. D., of, &c.,* that the time limited for the arbitrator's making his award between the parties should be enlarged until the day of 19 . Dated the day of 19 . This summons was taken out by , of , solicitor for To [Add Note as in Form 28.] {See ante, pp. 152-159.) 44. Summons for Leave to Revoke. [Commence the summons as in Fm-m 43, as far as the asterisk, and continue'] — that the said C. D. should be at liberty to revoke and make void the power and authority of the arbitrator to make his award in the reference herein. [Conclude as in the Form 43.] {See ante, p. 49 et seq.) 45. Revocation of Submission by Party. Know all men by these presents, that I, A. B., of, &c., have revoked, annulled, and made void, and by these presents do revoke, annul, and make void, all the power and authority which by [recite the submission, for instance], a certain agreement of reference in writing, made the day of 19 , between me, the said A. B., and C. I)., of, &c., were conferred upon X. Y., of, &c., the arbitrator thereby appointed to award and determine on certain matters in difference between me and the said C. D. ; and I do hereby discharge and prohibit the said X. Y. from making any award, or from any further proceeding in the said arbitration. €16 APPENDIX OF FORMS As witness my "hand" [if the submission he by boiul or deed, say "hand and seal "], this day of 19 . Witness, A. B. \ifhy deed, L. SI] 0. P. {See ante, p. 46 et seq.) 46. Notice of Revocation to Arbitrator. Sir, I hereby give you notice that by a writing under my hand \and seal], dated the day of 19 , I have revoked, annulled, and made void your authority as arbitrator ; and I hereby discharge and prohibit you from further proceeding in the matters of the arbitration between me and C. D. Dated the day of 19 . A. B. To X. Y., Esq. 47. Summons for Order Directing Arbitrator to State a Case. In the High Court of Justice. King's Bench Division. Master in Chambers. In the Matter of an Arbitration between A. B. and C. D. And in the Matter of the Arbitration Act, 1889. Let all parties concerned attend the Master in chambers at the Central Office, Royal Courts of Justice, Strand, London, on the day of 19 , at of the clock in the forenoon [or afternoon] on the hearing of an application on the part of A. B., of, &c., that X. Y., the arbitrator [or umpire] in the reference herein, be directed to state in the form of a special case for the opinion of the Court the following question [or questions] of law arising in the course of the said reference [here set out tlie question or questions of law]. And that the said do pay the costs of this application [or that the costs of this application be costs in the arbitration]. Dated this day of 19 . This summons was taken out by of , solicitor for To [the other ])arty and his solicitor, and the arbitrator or umpire]. 48. Special Case under s. 19 of the Arbitration Act. In the High Court of Justice. Division. In the Matter of an Arbitration between A. B. and C. D. And in the Matter of the Arbitration Act, 1889. This is a special case stated for the opinion of the Court pursuant to s. 19 of the above-mentioned Act [or pursuant to the order of Master dated the day of 19 ]. 1. By an agreement in writing dated the day of 19 » and PROCEEDINGS DURING THE REFERENCE 617 made between the said A. B. of the one part and the said C. D. of the other part, it was amongst other things provided that [state material provisions]. 2. A dispute having arisen between the said parties as to whether the said A. B. is entitled to compensation in respect of under clause of the said agreement, such dispute has been referred to me for determination as sole arbitrator. 3. It was contended before me on behalf of the said A. B. that in determining whether the said C. D. is liable to pay compensation to the said A. B. as aforesaid I ought to have regard to certain correspondence which took place between the said parties prior to the date of the said agreement, but I declined to admit such correspondence as evidence. The question for the opinion of the Court is : — Whether or not I ought to admit in evidence correspondence which took place between the parties prior to the date of the said agreement. X. Y. 49. Notice to Parties of Award made. Gentlemen, I hereby give you notice that I have made and published my award in writing respecting the matters in difference between Mr. A. B. and Mr. C. D. referred to me, and that it lies at " my chambers " [or other place specified] ready to be delivered. The charges amount to £ Yours truly, X. Y. The day of 19 . To Mr. A. B., and Mr. G. H., solicitor for Mr. A. B., and to Mr. C. D., and Mr. I. K., solicitor for Mr. C. D. {See ante, p. 436 et se'j.) AWAUDS. 50. Award between Partners under Submission of Parties and Order of Reference by Master. Whereas by articles of partnership dated 19 , and made between- A. B., of , in the county of , of the one part, and C. D., of , in the county of , of the other part, it was agreed that the said A. B. and the said C. D. should become partners in the business of wholesale butchers from the said date during the term of years, unless previously determined, upon the terms, conditions, and stipulations expressed in the said articles. And whereas the said A. B. and C. D. became partners as aforesaid, and carried on the business of wholesale butchers as aforesaid under the said articles of partnership. And whereas by article 15 of the said articles of partnership it was provided that if at any time during the continuance of the said partnership or after the dissolution or determina- tion thereof, any dispute, difference, or question should arise between the said A. B. and C. D. or their representatives touching the said partnership or the accounts or transactions thereof, or the dissolution or winding-up thereof, or the construction, meaning, or effect of the articles of partnership or anything therein contained, or the rights or liabilities of the partners or their representatives under the said articles of partnership or otherwise in relation to the premises therein contained, then every such dispute, difference, or question should be referred to arbitration pursuant to the Arbitration Act, 1889, or any statutory modification or re-enactment thereof for the time being in force. And whereas disputes, differences, and questions have arisen between the said A. B. and the said C. D. within the meaning of the said article. And whereas by an order dated the day of 19 , and made by Master , one of the Masters of the Supreme Court, it was ordered that all disputes, differences, and questions which had arisen as aforesaid between the said A. B. and the said C. D. under the articles of partnership should be referred to me, E. M., Esquire, barrister-at-law, of &c., and that the costs of the application to the said Master for the said order and of the reference and of my award should be in the discretion of me the said arbitrator : — Now I, the said E. M., having taken upon myself the burden of the said reference, and having heard and duly considered all the allegations and evidence of the said A. B. and the said C. D. respectively of and concerning the said disputes, differences, and questions so referred to me as aforesaid, do hereby make and publish this my award in writing as to all the said disputes, differences, and questions so referred to me as aforesaid, and I do hereby certify and award that the said partnership between the said A. B. and the said C. D. has been duly dissolved and determined, and that upon such dissolution and determination of the said partnership as AWARDS 619 aforesaid there is due from the said, A. B. to the said C. D. the sum of Sum due £ . And I do hereby award and direct that the said A. B. do pay the partner to said sum of £ to the said C. D. And I do further award and direct ^^!^°J'^^' Directing that the said A. B. do pay to the said C. D. his costs to be taxed of the said payment of apphcation to the Master and of the said reference before me and of this my direction as award, and in ease the said C. D. shall pay such last-mentioned costs, then I *° costs. award and direct that the said A. B. do forthwith repay to the said C. D. the amount which he shall so pay. In witness whereof I have hereunto set my hand this day of 19 . E. M. Signed and published, &c. 51. Another Award between Partners. Whereas by an agreement dated the day of 19 , and made Agreement between T. S. J., of, &c., doctor of medicine, of the one part, and E. C. F., of, &c., ° ^^ erence. physician and surgeon, of the other part, after reciting that the said T. S. J. and E. C. F. recently carried on the business of physicians and surgeons in partnership on the terms of a certain deed of partnership dated the day of 19, and that a certain letter of guarantee bearing even date with the said deed of partnership was given by the said T. S. J. to the said E. C. F., and that differences had arisen between the said T. S. J. and the said E. C. F. as to the accounts under the said partnership deed and as to the true construction to be placed on the said letter of guarantee, and that it was thereby agreed by and between the said parties thereto that all matters in dispute between the parties should be referred, and the said parties did thereby refer the same to the award of me, E. J., barrister-at-law. And whereas it was pro- vided by the said agreemeiit that I, the said arbitrator, should make and publish this my award in writing of and concerning the matters referred ready to be delivered to the parties in difference, or such of them as required the same (or their respective personal representatives if either of the said parties should die before the making of the said award), on or before the Date of day of 19 , and that the costs of the preparation and execution of award. of the said agreement and the costs of the reference and award should be in Agreement the discretion of me, the said E. J. And whereas the said parties appeared " before me, and upon their so appearing it was further agreed between them that I should not in my award deal with or give directions as to the distribu- Special tion of the assets of the said partnership other than the balance standing in assets.' the name of the said parties at the Bank, but that I should direct that F. S. S., chartered accountant, of, &c., and C. J. S., chartered accountant, of. Arbitrator &c., should divide the assets of the said partnership other than the said ,iir?it?onsa.s. balance at the said bank between the said T. S. J. and the said E. C. F., in ^" '^'"^'■■^'^• such shares as they, the said F. S. S. and C. J. S., should in their judgment consider to be equal : — Now I, the said E. J., having taken upon myself the burthen of the said reference, and having duly weighed and considered the evidence and matters laid and produced before me, do make and publish this my award in writing of and concerning the said matters so referred to me in manner following, that is to say : I award and adjudge that the said E. C. F. 620 APPENDIX OF FORMS Award of payment into bank. Directions as to lia- bilities. Direction as to division of assets. Direction as to costs. Finding no other matters in dispute. do forthwith pay into the joint account of J. and F. at the Bank the sum of £44, Is. lOd., and that upon payment of the said sum into the said bank the sum of £199, lis. lOd. be drawn out of the said account at the said bank and paid to the said T. S. J. And I further award, adjudge, and direct that all the outstanding liabilities of the said partnership be paid, satisfied, and discharged out of the balance remaining at the said bank after payment of the said sum of £199, lis. lOd., and that in the event of the balance so remaining being insufficient to satisfy and discharge the said outstanding liabilities, the said T. S. J. and the said E. C. F. shall contribute in equal shares whatever sum may be necessary to satisfy and discharge the same, and that the residue of the said balance, if any, after satisfaction and dis- charge of the said liabilities be divided equally between the said T. S. J. and the said E. C. F. And I further award and direct that the said F. S. S. and C. J. S. do divide the assets of the said partnership other than those which I have already dealt with in my award between the said T. S. J. and the said E. C. F., in such shares as they the said F. S. S. and C. J. S. shall in their judgment consider to be equal. And I further award and direct that one moiety of the costs of the preparation and execution of the agreement of reference and of this my award be borne and paid by the said T. S. J., and that the other moiety of the said costs be borne and paid by the said E. C. F. ; and that each party do bear and pay his own costs of the reference. And lastly I find that there are no other matters in dispute between the respective parties other than the matters aforesaid by me awarded upon. In witness whereof, &c. Signed and published, &c. Recital of intestacy. Of questions having arisen. Of action having been commenced. 52. Award between Children of an Intestate. To all to whom these presents shall come I, X. Y., of, &c., send greeting. Whereas A. B., late of, &c., died on the day of 19 , intestate, leaving three sons, C. B., D. B., and E. B., and no other children him surviving, and on the day of 119 , letters of administration of the estate and effects of the said A. B. were duly granted to the said D. B. and E. B. And whereas the said A. B. was at the date of his death indebted to his son the said C. B., and questions arose between the said C. B. and D. B. and E. B. as to the amount of the said debt to the said C. B., and as to the share of the said A. B.'s estate to which he was entitled. And whereas the said C. B. instituted in the Chancery Division of the High Court of Justice an action against the said D. B. and E. B. for the adminis- tration of the estate of the said A. B. And whereas it has been agreed by and between the said C. B., D. B., and E. B. that all the said questions should be referred to me as arbitrator. Now know ye that I, the said X. Y., having taken upon me the burden of the said award, and having been attended by the said parties and their respective solicitors [or counsel], and having heard and considered the allegations and evidence of both the said parties and their witnesses concerning the premises, do make this my award as follows, that is to say : — AWARDS 621 1. I award and declare that the said A. B. was, at the time of his death, Award that indebted to the said C. B. in the sum of £130, 10s. '^y^^f^}"' debted.to 2. I further award and declare that the said C. B., as one of the children Tiiat c'. b. of the said A. B., is entitled to receive the sum of £1500 as his share of the to^r°ce/ve clear residue of the personal estate and effects of the said A. B., left after ^l^'^^ ^^ payment of all the debts of the said A. B., including the said sum of ^^^ residue.. £130, 10s. 3. I further award and direct that the said action shall be stayed, and xiiat action no further prosecuted. And that the said D. B. and E. B., as such adminis- fuyed.^ trators as aforesaid, shall, on or before the day of 19 . pay to xiiatthe the said C. B. the said debt or sum of £130, 10s., and also the said sum of tratorfshaii £1.500, together with interest for the same respectively, at the rate of £5 ^^^Ith^nfei,. per centum per annum, as from the day of 19 . And I further *^^'^- award and direct that upon paj'ment of the said sums, with such interest as payment, aforesaid, the said C. B. shall, if thereto required, execute to the said D. B. be'executed and E. B., at their costs and charges, a general release of all claims and demands upon or in respect of the personal estate of the said A. B. 4. I further award that the costs of the reference, including the costs of Tiiat costs the preparation and execution of the said agreement of reference and of this bo?ne^^ award, shall be borne and paid as to one moiety thereof by the said C. B., ®'i"^">'- and as to the other moiety by the said I). B. and E. B. in equal shares. In witness, &c. 53. Award by Umpire on Claim under Policy of Insurance against Fire. Whereas on the day of 19 , J. E., of B Mill, effected Terms or with the B. L. F. Insurance Company a policy of insurance. No. 000, for the p"'''^^- sum of £ , on millwright's work and all standing and going gear and on machinery of every description and all fixed utensils in the assured's mill, situate and known as B Mill aforesaid, the said mill being described in the said policy as being amongst other things worked by water-power only, and as being more fully described in office surveyor's plan and report, dated the 30th of 19 , and it was further stated in the said policy that there was a semi-portable steam-engine in shed marked No. 2 on plan, but it was warranted that the said engine was not used for warranty working any of the machinery in the said mill. And whereas the said policy of enlinef^ was effected subject to certain conditions at the back thereof which were to Conditions be taken as part of the said policy, and amongst the said conditions were policy. ° the following, viz. : 2. " If after the risk has been undertaken by the company anything whereby the risk is increased be done to property hereby increase of insured, or to, upon, or in any building in which property hereby insured is "**'^" contained, or if any property hereby insured be removed from the building or place in which it is herein described as being contained, without in each and every of such cases the assent or sanction of the company signified by indorsement hereon, the insurance as to the property affected thereby ceases 622 APPENDIX OF FORMS Any (lilltT- ence to bu referred to arbitration. to attach." 15. "If any difference shall at any time arise between the company and the insured, or any claimant under this policy, as to the liability of the company hereunder, or the amount of any loss or damage by fire, or as to the fulfilment or non-fulfilment of any of the conditions herein set forth, or as to any question, matter, or thing concerning or arising out of this insurance, every such difference as and when the same shall arise shall at the request of the company be referred to the arbitration and decision of two indifferent persons, one to be chosen by the party claiming and the other by the company, and in case of disagreement between the arbitrators then of an umpire, who shall have been chosen by the arbitrators before entering on the reference, and the cost of the reference and award shall be in the discretion of the arbitrators or umpire as the case may be, who shall award by whom and in what manner the same shall be paid." And whereas on the of 19 , a fire occurred on the premises in the said policy mentioned, and a claim was thereupon made against the said insurance company by the said J. E. for his alleged loss and damage by the said fire. And whereas differences arose between the said parties as to the liability of the said insurance company under the said policy. And whereas the said J. E. duly appointed W. L. B., barrister-at-law, as his arbitrator, and the said insurance company duly appointed W. E. H., barrister-at-law, as their arbitrator. And whereas before entering upon the reference of the said differences between the said parties the said arbitrators duly appointed me, A. B., barrister-at-law, to be umpire in the said reference. And whereas the said arbitrators disagreed and gave me notice in writing that they were unable to agree as to their award herein : — Now I, the said A. B., having heard and duly weighed and considered the several allegations of the said parties and their evidence, do hereby make and publish this my award and umpirage of and concerning the matters so referred to me as aforesaid in manner following, that is to say : I award and adjudge that the said J. E. is not entitled to recover any sum in respect of his claim against the said B. L. F. Insurance Company under the said policy, and that the said insur- ance company is under no liability to the said J. E. under the said policy. And I further award and direct that the said J. E. do pay to the said B. L. F. Insurance Company their costs of the said reference, and that he do pay the costs of this my award and umpirage [which I hereby tax and settle at the sum of £ , that is to say, the sum of £ for the charges of each of the said arbitrators, and the sum of £ for my own charges as umpire]. In witness whereof, &e. Signed, &c. 54. Award on Fire Insurance Policy where Claim found to be Fraudulent. Whereas on the day of 19 , X. Y., of, &c., and J. S., of, &c., effected with the Assurance Company, hereinafter referred to as " the company," a policy of insurance, numbered , against loss or damage by fire on certain property therein mentioned, in the total sum of AWARDS 623 £ , subject to certain terms and conditions appearing upon the said policy. And whereas by a memorandum indorsed upon the said policy the or assign- interest in the said policy became and was vested in the said X. Y. as from ™®"'^' the day of 19 . And whereas, on the day of 19 , and while the said ot iire. policy was in force and binding upon the company, a fire occurred on the premises in the said policy mentioned. And whereas, on the day of 19 , the said X. Y. delivered Claim. to the company a claim for loss and damage, alleged by him to have been caused by the said fire, amounting to the sum of £ And whereas by the condition, appearing upon the said policy, condition it was provided that if the claim made under the said policy should be in fraudulent. any respect fraudulent, or if any fraudulent means or devices should be used by the assured, or any one acting on his behalf, to obtain any benefit under the said policy, all benefits under the said policy should be forfeited. And whereas by the condition, appearing upon the said policy, condition as it was provided that if any difference of any kind whatsoever should arise tton! ''^™ between the assured, or any claimant under the said policy, and the companj'' in respect of the said policy, or any claim thereunder, the same should be referred to two arbitrators, one to be appointed in writing by each of the parties, or, in case of the arbitrators disagreeing, to an umpire to be appointed by them, and it was further provided, that the arbitrators or umpire making the award should have power to award costs only as between party and party, and that the award of such arbitrators or umpire should be a condition precedent to any liability of the company, or any right of action against the company, in respect of any claim under the said policy. And whereas differences arose between the said X. Y. and the company Appoint- under the said policy, within the meaning of the said condition arbitrators recited as aforesaid, and the said X. Y. duly nominated and appointed in ^° empire. writing C. D., of, &c., barrister-at-law, as his arbitrator, and the company duly nominated and appointed in writing H. K., of, &c., accountant and valuer, as their arbitrator, pursuant to the said condition of the said policy. And whereas the said arbitrators took upon themselves the burthen of the said arbitration, and, before they entered into the matters so referred to them as aforesaid, nominated and appointed me, A. B., of, &c., barrister-at- law, as an umpire, pursuant to the said condition, and requested me to hear the evidence and contentions of the said X. Y. and the company in reference to the matters so referred as aforesaid. And whereas the said arbitrators differed and were unable to agree upon Disagree- their award in respect of the matters so referred to them as aforesaid, and "rwtrators. thereupon the said arbitrators gave me notice to proceed as umpire to Notice to consider and award upon the said matters so referred. proceed.'^'' Now I, the said A. B., having taken upon myself the burthen of the said reference and umpirage and having duly weighed and considered the several allegations of the said parties and their witnesses and the proofs, vouchers, and documents laid before me, do hereby make and publish this my award 624 APPENDIX OF FOEMS and umpirage of and concerning the matters so referred to me as aforesaid in manner following, that is to say : — Award claim I award and find that the claim of the said X. Y., for his alleged loss within con- and damage by the said fire, is fraudulent within the meaning of the said policy."* condition of the said policy, and that all benefit under the said policy pursuant to the said condition, is thereby forfeited, and that there is nothing due or owing from the company to the said X. Y. under the said policy in respect of his alleged loss and damage. Award as to And I do further award and direct that the said X. Y. do pay to the *^°'' ''■ company their costs of the reference to be taxed as between party and party^ and the costs of this my award. In witness whereof I have hereunto set my hand this day of 19 . Signed and published, the day of 19 , in the presence of E. F. A. B. Recital of policy. 55. Award on Policy of Insurance for Honesty of Clerk. Whereas on the of 19 J. L. & Co., of, &c., leather merchants, eff'ected with the C. A. Insurance Company, Limited, a policy of insurance. No. X 54, whereby the said insurance company agreed to make good and reimburse to the said J. L. & Co. to the extent of the sum of £200 all moneys which T. W. N., a clerk and cashier in the employment of the said J. L. & Co., might during the period in the said policy described fraudulently convert to his own use. And whereas it was also provided by the said policy that if any difference should arise as to whether the said insurance company was liable thereunder, or as to the amount of its liability, if any, the same should, before any proceedings were taken, be referred to the arbitration of two neutral persons, one to be chosen by each party, who might appoint an umpire in the usual way, with power to them to call witnesses, hear parties, and fully determine the matters in dispute, and to give expenses or costs in his or their discretion, and that the award of such arbitrators or umpire should be binding. And whereas a claim was made by the said J. L. & Co. against the said insurance company under the said policy, and differences arose between the said parties as to whether the said insurance company was liable thereunder. And whereas the said J. L. & Co. appointed G. F. F., of, &c., accountant, as their arbitrator, and the said insurance company appointed C. L., of, &e., accountant, as its arbitrator. And whereas before entering upon the reference of the said differences between the said parties the said arbitrators appointed me, E. J., barrister- at-law, as umpire in relation to the said differences. And whereas before the commencement of the said reference it was agreed between the said parties that the said arbitrators should be withdrawn, and that I should act between the said parties as sole arbitrator : — Now I, the said E. J., having heard and duly weighed and considered the several allegations of the said parties and their evidence, do hereby make and publish this my award of and concerning the matters so referred to me as aforesaid in manner follow- ing, that is to say : I award and adjudge that the said J. L. & Co. are not AWARDS 625 entitled to recover any sum in respect of their claim against the said C. A. Award that Insurance Company under the said policy, and that the said insurance no™iiabfe, company is under no liability to the said J. L. & Co. under the said policy. And I further award and direct that the said J. L. & Co. do pay to the said Direction as insurance company its costs of the reference, and that the said J. L. & Co. do pay the costs of this my award, amounting to the sum of £ , including the sum of £ for the fees of the said arbitrators. In witness whereof, &c. Signed and published, &c. 56. Award by Majority of Three Arbitrators. To all to whom these presents shall come, we, J. K., of, &c., and X. Y., of, &c., send greeting. Whereas certain differences have arisen between A. B., of, &c., and C. D., of, &c., in respect of . And whereas by an agreement in writing dated the day of 19 , and made between the said A. B. of the one part, and the said C. D. of the other part, the said parties agreed to refer such differences to the determination of U. V., of, &c., and the said X. Y., and a third arbitrator to be appointed by the said U. V. and the said X. Y., before proceeding in the reference, or a majority of them in the event of their being unable unanimously to agree upon an award. And whereas by an instrument in writing under the hands of the said U. V. and the said X. Y., the said J. K. was duly appointed a third arbitrator in accordance with the provisions aforesaid. And whereas the said J. K. and the said X. Y. have agreed upon the award hereinafter contained, and have submitted the same for acceptance to the said U. V., who after full discussion and consideration of the same has declared his dissent therefrom. Now we, the said J. K. and the said X. Y., having taken upon ourselves the burden of the said reference, and having heard and considered the allegations and claims of both the said parties, and the evidence submitted in support thereof, do hereby make and publish this our award of and concerning the premises in manner following, that is to say : — 1. We award and adjudge, &c., &c. 57. Award stated in the Form of a Special Case for the Opinion of the Court in an Arbitration under a Policy of Assurance. 1. Differences having arisen between the claimant and the respondents statement as to the liability of the respondents in respect of a claim made against ences under them by the claimant as administrator of the estate of under a policy p^^'^^- of assurance dated the , such differences were referred to me, E. J., by a memorandum of agreement dated the 2. On the the respondents issued a policy. No. , upon the Terms of life of , for the sum of £ , upon the considerations therein ^°"^^' stated, and amongst others, in consideration of a monthly premium of £ , agreed to be paid to the respondents by the assured on the first day of every month during the life of the assured, and the respondents thereby agreed that they would, upon proof of death and of title, to be 40 G26 APPENDIX OF FORMS produced at the chief office of the respondents, pay the said sum of £ , either to a trustee, as thereinafter provided, or to the executors, administrators, or assigns of the assured. Subject to 3. The policy referred to in the last preceding paragraph was made set out?"'' subject to, amongst others, the following conditions : — 3. That should any one premium, payable under this policy, remain unpaid for a period exceeding one calendar month after the same has become payable, or such further time as the directors of the company may in writing allow, the liability of the said company under such policy shall thenceforth cease, and all premiums paid in respect thereof shall be forfeited to the company. 5. That this policy of assurance shall be delivered to the company, and probate of the will, or letters of administration to the estate of the assured, shall (if required by the company) be produced at the chief office of the company before anj' payment is made by them in respect of this policy. Facts as to 4. After the said policy was issued, the premiums payable in respect preniiu"ms° thereof Were paid with more or less regularity, and as the premiums were paid they were entered in a book kept by the assured. The book in which the entries were so made down to was lost, and in a new book was provided by the respondents in which was entered the total of the subscriptions and premiums paid by the assured from to inclusive, and the entries in the new book subsequent to show the dates when the j^ayments were made, the month in respect of which each payment was made, the amount of each monthly payment, and the initials or signature of the person receiving the premiums. xotieegiven 5. In the mouth of the premiums due under the said policy were as to pre-" three months in arrear, and on the a notice (headed "Final Notice," mmms. ^^^ which was in fact the only notice sent with reference to the premiums therein mentioned) was sent to the assured. The said notice was in print, with the exception of the reference number, the date, the name of the assured, and the policy number, and was in the following terms, omitting the heading : — " It appears by the books of the company that the premiums upon the above-mentioned policy are now three months in arrears, and I beg to give you notice that such policy will be finally lapsed at the expiration of days from this date, unless the amount is previously sent by you by cheque or P.0.0. to the chief office direct. The agent has already been instructed to take the policy off his collecting book, and is at present not authorised to receive any further payments in respect of the same, but if the amount now due is forwarded to chief office direct within the time above stated, the agent will afterwards be instructed again to collect the premiums as heretofore. Should this notice not correspond with the entries in your receipt book, please communicate at once with AWARDS 627 me to above address, marking your letter ' private,' and enclosing your receipt book, so that I may be in a position personally to investigate the matter. "Yours faithfully, " Managing Director. " F.S. — The company will not be responsible for any payment made on . this policy after this date, unless made in accordance with the terms of this notice. The agent is not authorised to receive the particular payment to which this notice refers." 6. After the receipt of the notice referred to in the last preceding payment of paragraph, the claimant, on the , went to the chief office of the |jy'^""su"ed respondents, and paid in cash to a clerk of the respondents in the office the :^tter notice. sum of £ , in respect of the premiums due for the months of and , leaving the premium due for the month of still unpaid. The payments of the premiums for and were duly entered in the receipt book referred to in paragraph 4 of this case. At the time when no question these payments were made no question was asked of the claimant as to the sure°d\s' state of health of the assured, nor was any such question asked at the time ''^^'^'>- of payment of any premium. 7. Subsequently to the of no further payment was made in respect of any premium due under the said policy until the , as hereinafter mentioned, and no further notice was sent to the assured as to any premium being in arrear until the 8. On the a notice identical with the one set out in paragraph 5 of this case, except as to the date, was sent to the assured. 9. On the the assured gave birth to a child prematurely, and from lUnessof that time until her death, which occurred on the evening of the , the ^''''^"^® • assured was very seriously ill. I iind, as a fact, that on the [date when the Finding of premium mentioned in the next paragraph was paid], the claimant had every state^of'^ reason to believe and did believe, as the fact was, that there was no hope of assired"^ the assured's recovery. 10. On the at about , the claimant went to the chief office payment of of the respondents, taking with him his receipt book and the sum of £ aft^'r mness in money. The clerk to the respondents, who was in the office, looked at °' "ssiTed. the book and asked the claimant if he wanted to pay the whole five months, to which the claimant said "Yes." Thereupon the clerk looked at the money to see if it corresponded with the amount appearing to be due by the receipt book, and, finding that the money was correct, he took the money, made the five entries which appear in the receipt book under the date of the , put on the receipt stamp opposite the entries and cancelled it by writing the date and his name across the stamp. The clerk asked no question with regard to the assured, nor did the claimant make any statement as to her condition. I find as a fact that the clerk had authority to receive the five premiums, Finding of face as to 628 APPENDIX OF FORMS authority to and that the money so paid by the claimant was received by the respondents premium, and was retained by them. Death of 11. After making the payment mentioned in the last preceding paragraph, assured. ^-^^ claimant returned home and the assured died at about 6.45 on the evening of that same day. Question for The question for the opinion of the Court is — Court" °^ Whether, upon the facts herein stated, the respondents are liable to pay the sum insured by the said policy 1 Alternative If the Court should be of opinion in the affirmative, then I find and award a\\ara. ^-^^^ ^-^^ claimant is entitled to recover against the respondents the sum of £ , being the sum now remaining due under the said policy, after giving credit for the sum of £ already received by the claimant, and I award and direct that the respondents do pay to the claimant his costs of the reference and also the costs of this my award. If the Court should be of opinion in the negative, then I find and award that the claimant is not entitled to recover anything against the respondents, and I award and direct that the claimant do pay to the respondents their costs of the reference and also the costs of this my award. Appendix of Appendix. documents. i i t i i r The following documents are appended to, and are to be taken as part of, this case : — Dated the day of 19 . E. J. 58. Award in Form of Special Case in an Arbitration between a Contractor and a Building Owner where Several Claims are made. In the Matter of an Arbitration between A. B. [Contractor] and C. D. [Building 0^vner]. And in the Matter of the Arbitration Act, 1889. This is an award stated in the form of a special case at the request of thfr above-named C. D. (hereinafter referred to as the employers) by me the undersigned X. Y., of, &c., the arbitrator appointed in writing on the day of 19 , in pursuance of the provisions contained or referred to in a contract (hereinafter referred to as "the contract") dated the day of 19 , and made between the employers of the one part and the above- named A. B. (hereinafter referred to as "the contractor") of the other part for the [here set out generally the nature of the work, the contract amount, and that it was subject to additions and deductions, tfr.]. Recital of Whercas certain disputes and diflferences have arisen under the contract disputes. between the contractor and the employers as in the following case more particularly mentioned and described, ofreference And whcrcas the Said disputes and differences have been referred to my tion^'"'^'^^ award and final determination in pursuance of the contract. And whereas I have duly taken upon myself the burthen of the reference, and have heard and duly considered all the allegations and evidence of the AWARDS 629 contractor and the employers respectively, of and concerning the said disputes and differences so referred to me as aforesaid. And whereas I have by writing under my hand extended the time f or of eniarse- making my award to the day of 19 . time. Now I, the said X. Y., do hereby award and determine and make and publish this my award in writing as in the following case set forth, subject to the opinion of the Court upon the questions of law hereinafter mentioned. Case. 1. A list of all the claims to be considered by me, together with an List of claims amount in respect of each claim, was on the day of 19 sent to referred. the employers by the contractor. Copies of the said list of claims are set out in Appendix hereto. [// such list was amended refer to the amendments.] 2. Disputes arose between the contractor and the employers [here refer to the date, if material, when they arose]. Such disputes (excepting claims Kos. ) arose wholly [or mainly] [or partly] out of [here set out the causes of causes generally of the dispxites]. 3. The terms and provisions of the contract and of the specification Material , . . !i 1 1 1 i-i. • piovisions (hereinafter referred to as "the specification ) and other documents therein of contract. referred to, in so far as they are material, are set out in Appendices and . Either party is at liberty to refer to the said contract and other documents herein referred to. The said terms and provisions, in so far as they appear material in respect of claims Nos. in particular, are set out in Appendix , and in so far as they appear material in respect of claims Nos. , in Appendix 4. 1 find in respect of the performance of the contract generally as Findings. follows : — 5. I find in particular in respect of claim [or claims] No. [or Nos.] as follows : — 6. I further find in respect of claims Nos. , in addition to the above findings, as follows : — 7. In respect of claim No. I find in addition as follows : — (a) 8. I award and determine (subject to the opinion of the Court upon the Award of questions of law hereinafter submitted) that the employers do forthwith pay contractor, to the contractor the sum of £ , being £ in respect of claim No. opinion o°f , £ in I'espect of claim No. ; [and so on], total, £ ; ^°"'^- such sum of £ being the amount payable by the employers to the contractor in discharge of the said claims [up to the day of 19 ]• And I do further award and determine that the contractor has no claim 630 APPENDIX OF FORMS certofn"^°" against the employers [up to the said day of 19 ] in respect of any of items. the other claims made by him in the said list of claims. Direction as And I direct (subject to my directions hereinafter made in the events (a) and {b) in paragraph 11 hereof) that the employers do pay to the contractor the costs of [here deal tvitji costs]. And I further direct that if the contractor shall, in the first instance, pay the costs of this my award or any part thereof, the employers shall repay the same to him. Conten- 9. On the day of 19 , at the hearing before me, it was employers. Contended by counsel for the employers as follows : — [Here set out the contentions] [or on the day of 19 , at the hearing before me, various con- tentions were raised by the employers, which, in so far as the same relate to the claims in respect of which I have awarded more or less in favour of the contractor, are set out in Appendices ]. 10. Under the circumstances hereinbefore set forth, I have not given effect to the said contentions, except in so far as appears herein. Question for H. The question for the opinion of the Court is whether, in respect of Court" ° the said contentions, I have come to a right determination in point of law. Alternative If the Court should bc of Opinion that (except in so far as I have done award. so) I ought to have given effect to the said contentions, or either or any of them, then I award and determine according to the opinion and judgment of the Court, and I direct such payment (if any) to be made by the employers to the contractor in respect of the said claims Nos. , or either or any of them as the Court shall direct. As to costs. And further as to the costs : (a) If the Court shall be of opinion that I ought not to have awarded any sum to be paid by the employers to the contractor in respect of any of the said claims then I direct . . . (b) If the Court shall be of opinion that I have awarded in favour of the contractor in respect of claims Nos. when I ought not to have done so [or more than I ought to have done], then I direct . . . Made and published by me this day of 19 . Witness, P. Q. • X. Y., [Arbitrator]. Appendices. 59. Award on an Indictment directing Prostration of Nuisance. To all to whom these presents shall come, J, X. Y., of, &c., barrister-at- law, send greeting. Recital of Whereas by a certain oi'der of Court, made at the assizes holden at Ni^^Ri-iv.!:. Maidstone, in and for the county of Kent, on Mondaj^ the day of 19 , before Mr. Justice A. B., one of the justices of the High Court of Justice, in a certain indictment then pending in the said Court, wherein the King, on the prosecution of A. B., C. D., and E. F., was the AWARDS 631 prosecutor, and Sir R. D., Knight, G. H., and I. K., were defendants; after reciting that the said defendants had consented to a verdict of guilty against verdict of them, upon condition that the prosecutors of the said indictment should feci to''"^' enter into and be bound by the said order; it was ordered by the said "''^^'''""^®- Court, with the consent of the said prosecutors and the said defendants, Power to that I, the said X. Y., should be empowered, and I was thereby empowered, to''order°^ to direct and order the prostration of the whole or any part of the embank- of thJ'^''"" ment in the said indictment mentioned, which I should think fit ; such mpnt"^; directions and orders to be conditional upon, and subject to the opinion of '''".'^,'''^ ^^^ '^ the King's Bench Division of the High Court of Justice, with respect to any subject to point or points of law that might arise to be stated as therein and herein- ofthJicings after mentioned : so as I, the said arbitrator, should make and publish my '?«°ch oivi- ' tr J sion on any award in writing concerning the matters referred, ready to be delivered to point of uw the said parties, or to either of them ; or if they or either of them should be dead before the making of the said award, to their respective personal repre- sentatives who should require the same ; on or before the fourth day of the then and now next Michaelmas Sitting, or on or before any other day to which I should by any writing under my hand, to be endorsed thereon, from time to time enlarge the time for making my said award ; and that I, the said arbitrator, should state for the opinion of the King's Bench Division, at Arbitrator the request of the said prosecutors or defendants, or of either of them, any points of point or points of law that might be raised before me touching the matters renuested. referred to me by the said order. And it was thereby also ordered that the costs of the said reference and award, to be taxed, should be in the dis- costs in eretion of me, the said arbitrator, who might direct and award to and by of arbi- whom, and in what manner the same should be paid ; and that I, the said arbitrator, should have the same power to amend the record and to certify, Power to 1 • • TiT ■ r. ■ 111 11 ■ } e ^1 -J amend tlie as a judge sitting at Atst Frms would have had upon a trial oi the said record and indictment. And it v/as thereby also ordered, by and with such consent as °^'''^- aforesaid, that it should be in the judgment of me, the said arbitrator, to examine the said prosecutors and the said defendants, or any or either of them, who, together with their respective witnesses, should be examined upoi-i oath. And whereas by a certain other order afterwards made in this indictment Kecitai or . . . ^^. TLT ■ , ri- 1 iu(lge'sor., dcc.is. or his heirs, all deeds and other writings in the custody, possession, or control of the said C. D., relating to, or in any way affecting, the said freehold house, with the appurtenances, known by the name of 23. And I further award and direct that the said C. 1). shall, within one Awju.iDf . coiiveyaiici; calendar month from the date hereof, convey, by a good and surncient con-<>rfee. veyance, the freehold house, with the appurtenances, known by the name of , [or describe the premises pariicnlarly as in the intended conveyance], unto the said A. B., in fee simple; and that the said A. B. shall, at his own cost, costs of prepare and tender for execution by the said C. D. the said conveyance. dlS.'^""^ {See ante, p. 454.) PROCEEDINGS ON THE AWAED. 63. Affidavit of Execution of an Award. In the High Court of Justice. [Year, letter, and number, if any. 1 King's Bench Division. Between A. B., Plaintiff, and C. D., Defendant, [JFhen there is no cause in Court, say — " In the Matter of the Arbitration between A. B. and C. D. And in the Matter of the Arbitration Act, 1889."] I, 0. P., of, &c., make oath and say : — 1. I, this deponent, did, on the day of 19 > see X. Y. "sign and publish" [w "sign, seal, and publish," a^' //ie case may be], "the award in writing hereto annexed " [or " his award in writing between A. B.,, of, &c., and C. D., of, &c.,"] bearing date the day and year aforesaid. 2. The name X. Y. set and subscribed in the said award as the party executing the same is of the proper handwriting of the said X. Y. 3. The name O. P., set and subscribed thereto as witness attesting the- execution of the said award, is of the proper handwriting of me, this deponent.. 0. P. Sworn, &c. This affidavit is filed on behalf of (•S'ee ante, p. 293, as to verifying award.) 64. Affidavit verifying- Copy of Award on Motion to set aside Award. In the High Court of Justice. [Year, letter; and number.] King's Bench [or Chancery] Division. Between W. B., Plaintiff, and The C. D. Eailway Company, Defendants. I, W. H., of, &c., solicitor for the above W. B., make oath and say : — 1. I, on the day of 19 , received from M. T., the solicitor for the above-named company, a copy of the award made by M. P. in the matter above mentioned, which said copy of the said award is hereunto annexed, and which said award was taken up, and is now in the possession PROCEEDINGS ON THE AWARD 641 of the said M. T. as such solicitor as aforesaid, or of the said company, as I, this deponent, verily believe. Sworn, &c. \Y jj This affidavit is filed on behalf of {See ante, p. 244.) 65. Affidavit of Enlargement of Time and of Publication of Award. [Commence as in the preceding FormsJ] 2. The time for making the said award was on the day of 19 duly enlarged to the day of 19 , by the writing under the hand of the said X. Y., indorsed on the said bond [or other submission as the case may be'\. 3. The name of the said X. Y. set and subscribed to the said indorse- ment is of the proper handwriting of the said X. Y. 4. The said award was made and published on the day of 19 , and within the enlarged time for making and publishing the same. Sworn, &c. This affidavit is filed on behalf of (See ante, p. 293.) 66. Power of Attorney to Demand Money and Costs Awarded. Know all men by these presents, that I, A. B., of, &c., for divers good causes and considerations me hereunto moving, have made, ordained, authorised, constituted, and appointed, and by these presents do make, ordain, authorise, constitute, and appoint, E. F., of, &c., gentleman, my true and lawful attorney, for me, and in my name, and to my use, to ask, demand, and receive, of and from C. D., of, &c., the sum of £ , awarded to be paid to me by the award of X. Y., made under the submission between me and the said C. D., dated the day of 19 j and also the sum of £ , for costs, allowed to me by the allocatur of the Master, pursuant to the said award, and under and by virtue of an order of the King's Bench Division of the High Court of Justice, bearing date the day of 19 , and on payment thereof, acquittances, or other sufficient discharges for the same for me, and in my name, to make and deliver, and to do all other lawful acts and things whatsoever concerning the premises, as fully in every respect as I myself might or could do, if I were personally piesent. And I hereby ratify, confirm, and allow all and whatsoever my said attorney shall in my name lawfully do, in and about the said premises, by virtue of these presents. In witness whereof I have hereunto set my hand and seal this day of 19 . A. B. (I..S.) Sealed, signed, and delivered in the presence of O. P. 642 APPENDIX OF FORMS 67. Notice of Motion to set aside Award. In the High Court of Justice. Division. In the Matter of an Arbitration between A. B. and C. D. Take notice that the Court will be moved on Tuesday the day of 19 , at 10.30 o'clock in the forenoon, or so soon after as counsel can be heard by on behalf of A. B., that the award made between the parties by X. Y. may be set aside on the following grounds : — 1st [here state the grounds, e.g. (1) that the arbitrator misconducted himself in that no proper judicial investigation of the matters in dispute was held by him in the presence of the parties ; (2) that no evidence was taken by the arbitrator, nor any opportunity given to the applicant of calling witnesses or cross-examining the said C. D. or his witnesses, although the applicant was anxious to do sol. And take notice that the said A. B. will in support of such motion read the following affidavits filed in this matter, namely, the affidavit of W. K. sworn on the day of 19 , and filed on the same day, the affidavit of C F. sworn on the day of 19 , and filed on the day of , copies of which affidavits are served herewith. Dated this day of 19 . Solicitors to A. B. To the above C. D. {See ante, pp. 240-243.) 68. Order Remitting Award to Arbitrator. In the High Court of Justice. [Year, letter, and number of cause. Division. if any.] [If there be a cause, say, "Between A. B., Plaintiff, and C. D., Defendant." If the reference be not in a cause, say, " In the Matter of the Arbitration between A. B. and C. D. And in the Matter of the Arbitration Act, 1889."] Upon reading the affidavit of L. M. and the affidavit of X. 0., filed in this matter [and the affidavits in anstver, if a7iy], and upon hearing Mr. , of counsel for "the said A. B." and Mr. , of counsel for "the said C. D.," it is ordered, that " the matters of the said award " [or some special matter'] be referred back and remitted to the said arbitrator for his recon- sideration [if the avsard needs ameiidment say, instead, " that the award of the said arbitrator be referred back to the said arbitrator, to reconsider the same if he shall think fit"]. 69. Summons to Enforce Award as a Judgment. In the High Court of Justice. King's Bench Division. In the Matter of an Arbitration between A. B. and C. D. And in the Matter of the Arbitration Act, 1889. Let all parties concerned, within eight days after service of this summons upon them, inclusive of the day of such service, attend the Master in PROCEEDINGS ON THE AWARD 643 Chambers, Central Office, Royal Courts of Justice, Strand, London, on the day of [naming a date eight days after service], on the hearing of an application on the part of A. B. for an order for leave to enforce the award dated the day of 19 j in the above arbitration, in the same manner as a judgment on order to the same eflfect. And that the said C. D. do pay the costs of this application to be taxed. Dated the day of 19 . This summons was taken out by , of , solicitor for the above-named A. B. Note. — If the said C. D. [^include all parties served tvith the summons'] does not attend within the time and at the place above mentioned, such order will be made and proceedings taken as the Master may think just and expedient. {See ante, p. 263.) 70. Statement of Claim indorsed on Writ in an Action on an Award. In the High Court of Justice. 19 . No. . King's Bench Division. Writ issued the day of 19 . Between A. B., Plaintiff, and C. D., Defendant. Statement of Claim. The plaintiff's claim is for the sum of £ , due to the plaintiff under the award of X, Y., dated the day of 19 , made pursuant to the submission of the plaintiff and the defendant, dated the day of 19 . Particulars of^sums awarded by the said X. Y., under the said award to be due from the defendant to the plaintiff: Principal sum . . . £ Interest thereon . ... Costs .... £ REFERENCES BY ORDER OF COURT. 71. Summons for Reference under s. 13 of the Arbitration Act, 1889. In the High Court of Justice. 19 . No. _ King's Bench Division. Master , Master in Chambers. Between A. B., Plaintiff, and C. D., Defendant. A. V. B. Let the [" plaintiff's " or " defendant's "] solicitor or agent attend me at my chambers in the Royal Courts of Justice on next, at of the clock in the noon, to show cause why the question or questions arising in this action [or "the question whether {state the question)"] should not be referred to an official referee [or "to Mr. X. Y. as special referee," or " to a special referee to be agreed on by the parties," cr " named by the Master"] for enquiry or report, pursuant to the Arbitration Act, 1889, s. 13, and that \ail(l any special terms as to adjournment of the cause (see Order XXXVI., r. 54) and as to any particular duties to be p)6rformed by the referee {see Order XXXVI., r. 52)] and that the costs of this application be Dated the day of 19 . (Note. — Under s. 13 questions may be referred fen' enquiry w report to a special referee without the consent of the parties, whereas under s. 14 the consent of the parties is necessary for a reference to a special referee, who must be agreed upon by them). 72. Summons for Reference under s. 14 of the Arbitration Act, 1889. [Commence as in the preceding form] — to show cause why the whole of this cause [or matter] [m' " the following question or issue of fact, viz." {setting forth the question)], arising in this cause [or "matter"], should not be ordered to be tried before an official referee [or "before Mr. X. Y. as special referee," or "before a special referee or arbitrator to be agreed upon by the parties,"] pursuant to s. 14 of the Arbitration Act, 1889. [Add any requisite terms.] And that the costs of this application be Dated the day of 19 . {See ante, p. 529.) REFERENCES BY ORDER OF COURT 645 73. Notice of Motion to have Accounts taken before Referee under s. 14 of the Arbitration Act, 1889. In the High Court of Justice. Chancery Division. [Name of Judge.] [Or " In the Court of Appeal."] [Title of action and matter and reference to the record.] Take notice that this Honourable Court will be moved before his Lordship, Mr. Justice [or before ] [if the motion is to be made except in the usual Court, state iohere], on the day of 19 , at eleven o'clock of the forenoon, or as soon after as counsel can be heard, by Mr. A. B., counsel on the part of the above-named plaintiff [or "defendant"], that, pursuant to the Arbitration Act, 1889, s. 14, it may be referred to an official referee [or "Mr. X. Y. of K., as special referee"], to take the following accounts [here specify the accounts], and that in taking the said accounts no settled account may be disturbed [if the taking of the accounts will dispose of the actiov, add] and that the referee shall direct judgment to be entered for the amount which he shall find to be due from one party to the other and otherwise deal with the whole action pursuant to Order XXXVI. Dated this day of 19 . To the plaintiff [or " the defendant," or " Mr. A. B., solicitor for the plaintiff," or " defendant," or " petitioner," or " respondent "]. (See Annual Practice; notes to Order XXXIII., rr. 2, 3, and 4, and ante, p. 525.) 74. Order of Reference under s. 13 of the Arbitration Act, 1889. In the High Court of Justice. 19 . No. . Division. Between A. B., Plaintiff, and C. I)., Defendant. Upon hearing and upon reading the affidavit of , filed the day of 19 , and : It is ordered that the following question arising in this action, namely, , be referred for enquiry [or report] to an official referee [or to A. B., as special referee], under s. 13 of the Arbitration Act, 1889, and that the law [when a verdict of guilty lias been entered, add, " who is hereby empowered to order the verdict of guilty to be set aside, and a verdict of not guilty to be entered instead thereof on behalf of all or any of the defendants, and "], to whom all matters in difference between the prosecutors and the defendants^ or any or either of them, are hereby referred. It is also ordered, that the said arbitrator shall have all the powers of certifying and amending of a judge of the High Court Costs of of Justice. And it is also ordered that the costs of the prosecution and anTdefence. defence, and of the reference and award, shall be in the discretion of the said arbitrator. {R. S. C, App. K, No. 33a.) 80. Order of Reference from a Court of Quarter Sessions, pursuant to Statute 12 & 13 Vict. c. 45. At the General Quarter Sessions of the peace held by adjournment at Preston, in and for the county palatine of Lancaster, on the day of , in the year of our Lord one thousand nine hundred and , upon the appeal of J. L. against the rate or assessment made for the relief of the poor of the parish of S. in the said county at in the pound, on the day of last, and allowed on the day of last, in which appeal the church- wardens and overseers of the poor of the said parish were respondents, being brought before the Court, it is ordered by the Court, with the consent of the parties, that the matters of such appeal be referred to arbitration of J. F., of, &c., gentleman, appointed on behalf of the respondents, and to F. D., of, &c., land agent, appointed on behalf of the appellant, in the manner and on the terms following, that is to say, that before entering upon the reference the arbitrators shall appoint an umpire, and in case the said arbitrators cannot agree upon an award, then the matters shall be referred to the umpirage of such umpire, and that the costs of the appeal be in the discretion of the Court of Quarter Sessions, and the costs of the reference and award be in the discretion of the said arbitrators or umpire. And it is further ordered, by the like consent, that the parties, if examined, and the witnesses, shall be examined upon oath ; and that the said parties shall produce before the said arbitrators all books, deeds, papers and writings relating to the matters in difference between them, as the arbitrators shall require. X. Y., Clerk of the Peace. On the motion of Mr. H. {See ante, p. 539.) By the Court. REFERENCES BY ORDER OF COURT 649 81. Report of Official or Special Referee under s. 13 of the Arbitration Act. [Heading as in Form 74.] Beport. I, the undersigned, hereby humbly report to this Honourable Court as follows : — Whereas by an order dated the day of 19 , made by Master , the following questions arising in the said cause were referred to me for enquiry [or report], pursuant to s. 13 of the Arbitration Act, 1889:— [Here set out the questions referred.^ And whereas, in pursuance of the said order, I have held an enquiry and have heard and duly weighed and considered the evidence adduced before me by the said parties and their witnesses at the said enquiry. Now I find [here set out the findings of fact in paragraphs as shortly as circumstances permit upon each question referred]. In witness whereof I have set my hand this day of 19 . Witness to this^ , t- signature of j X. Y., of, &c. (See ante, pp. 509-512.) 82. Notice of Report of Referee made under s. 13 of the Arbitration Act, 1889. [Heading as in Form 74.] I, the undersigned, beg to give you notice that I have this day made my report to the Court upon the questions referred to me by the order of Master , dated the day of 19 . Dated the day of 19 . [Signature.] To the [plaintiff and defendant]. To he directed to the [address for service of each party]. (See ante, p. 512.) 83. Notice of Motion for Adoption and Enforcement of Report. [Commence the notice of motion as Form 84]— on the part of the plaintiff [or "defendant"], that the report, dated the day of 19 , of X. Y., Esq., the official referee [or "special referee"] in this action [or "matter"], may be adopted [if it is desired that part only of the report he adopted, continue, " so far as the same reports that the sum of £ is due from the defen- dant to the plaintiff," [or as the case may he], and that the defendant may be ordered to pay to the plaintiff the sum of £ mentioned in the said report, together with the plaintiff's costs of this action to be taxed. {See ante, p. 513.) 650 APPENDIX OF FORMS 84. Notice of Motion to refer back Report to the Referee. [Heading as in Fcniii 74.] Take notice that this Court will be moved on next, or so soon thereafter as counsel can be heard by counsel on the part of the plaintiff [or as the case may be], that the report dated the day of 19 , of X. Y., Esq., the official referee [or " Mr. A. B., the special referee "] in this action [or "matter"], may be set aside [if it he wished to set aside ])C''>'t only of the report, specify what part], and that the question by the order made in this action [or "matter"], and dated the day of 19 , referred to the official referee [or as in the order of reference] to enquire [or report] [or "directed to be tried before the official referee," "or before Mr. A. B., the special referee"], may be remitted to the said X. Y. [or "A. B."] for reconsideration. {See ante, p. -513.) 85. Order of Referee directing Judgment. In the High Court of Justice. 19 . No. . King's Bench Division. Between A. B., Plaintiff, and C. D., Defendant. In pursuance of the order dated the day of 19 , the whole of this cause [w as the case may he in accordance ivith the oi'der] has been tried before me, and I hereby direct that judgment be entered for the plaintiff for the sum of £ with costs [or for the defendant, with costs]. Dated the day of 19 . X. Y. {See ante, p. 564.) 86. Notice of Motion to set aside Judgment directed, and to enter other Judgment. In the High Court of Justice. 19 . No. . Division. Between A. B., Plaintiff', and C. D., Defendant. Take notice that this Court will be moved on next, or so soott thereafter as counsel can be heard by counsel for the plaintiff [or defendant],, that the judgment directed to be entered herein by the [official referee, special referee, or arbitrator, as the case may he] at the trial hereof before him on the day of 19 , [w that so much of the judgment directed to be entered herein by the {etc., as above) as directs that {stating the part sought to beset aside)] be set aside and that judgment be entered for REFERENCES BY ORDER OF COURT 651 the plaintiff [or defendant] for [stating the judgment sought] on the ground that the judgment directed to be entered is wrong by reason that upon the finding as entered the judgment so directed is wrong [or as the grounds maij he\ and that the costs of this application be paid by the to the Dated the day of 19 . [Signed.] To [the op])Osite jiartij and his solicitor], (See ante, |?. 567.) APPENDIX OF STATUTES AND RULES OF COURT. The Arbitration Act, 1889 (52 & 53 Vict. c. 49). The Supreme Coiirt of Judicature Act, 1873 (36 & 37 Vict. c. 66), ss. 45, 83. The Supreme Court of Judicature Act, 1884 (47 & 48 Vict. c. 61), s. 8. The Supreme Court of Judicature (Procedure) Act, 1894, s. 1 (1), (4), (5). Hules of the Supreme Court. Order XIV., rr. 1a, 7. Order XVIL, rr. 1-4. Order XXXVI., rr. 7a, 45-55d, 57, 58. Order XXXIX., rr. 1, 3, 4, 7. Order XL., rr. 2, 6, 6a, 7. Order XLII., r. 31a. Order LIL, rr. 1-5. Order LIV., rr. 4b, 4f, 5, 12a. Order LIX., r. 3. Order LXIII., r. 16. Order LXIV., rr. 14, 14a. Order LXV., rr. 1, 15. Order as to Supreme Court Fees (Fees of Official Referees). The County Courts Act, 1888 (51 & 52 Vict. c. 43), ss. 14, 104. County Court Rules. Order XX. The Stamp Act, 1891 (54 & 55 Vict. c. 39), ss. 1, 14, 15 (1). The Revenue Act, 1906 (6 Edw. VII. c. 20), s. 9. The Quarter Sessions Act, 1849 (12 & 13 Vict. c. 45), ss. 12-14. The Indian Arbitration Act, 1889 (Act Xo. IX. of 1899). 652 THE ARBITRATION ACT, 1889. 52 & 53 Vict. c. 49. ARRANGEMENT OF SECTIONS. References by Consent out of Court. Section. 1. Submission to be irrevocable, and to have effect as an order of Court. 2. Provisions implied in submissions. 3. Reference to official referee. 4. Power to stay proceedings where there is a submission. 5. Power for the Court in certain cases to appoint an arbitrator, umpire, or- third arbitrator. 6. Power for parties in certain cases to supply vacancy. 7. Powers of arbitrators. 8. Witnesses may be summoned by subpoena. 9. Power to enlarge time for making award. 10. Power to remit award. 11. Power to set aside award. 12. Enforcing award. References under Order of Court. 13. Reference for report. 14. Power to refer in certain cases. 15. Powers and remuneration of referees and arbitrators. 16. Court to have powers as in references by consent. 17. Court of Appeal to have powers of Court. General. 18. Power to compel attendance of witness in any part of the United Kingdom, and to order habeas corpus to issue. 19. Statement of case pending arbitration. 20. Costs. 21. Exercise of powers by Masters and other officers. 22. Penalty for perjury. 23. Crown to be bound. 24. Application of Act to references under statutory powers. 25. Saving for pending arbitrations. 26. Repeal. 27. Definitions. 28. Extent. 29. Commencement. 30. Short title. Schedules. An Act fm- amending and consolidating the Enactments relating to Arbitration. [2Q>th August 1S89.] Be it enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, as follows : 653 654 APPENDIX OF STATUTES References hy Consent out of Court. Submission 1. A submission, unless a contrary intention is expressed therein, shall cable, and to be irrevocable, except by leave of the Court or a judge, and shall have the as an order Same clTect iu all rcspects as if it had been made an order of Court. of Court. Provisions 2. A submission, unless a contrary intention is expressed therein, shall submissions, bc deemed to include the provisions set forth in the First Schedule to this Act, so far as they are applicable to the reference under the submission. Reference 3. Where a submission provides that the reference shall be to an refer^e!^^ official rcfcrec, any official referee to whom application is made shall, subject to any order of the Court or a judge as to transfer or otherwise, hear and determine the matters agreed to be referred. Power to 4. If any party to a submission, or any person claiming through or ceedings' Under him, commences any legal proceedings in any Court against any other is'a submis'^ party to the submission, or any person claiming through or under him, in sion. respect of any matter agreed to be referred, any party to such legal pro- ceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that Court to stay the proceedings, and that Court or a judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accord- ance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings. Power for 5. In any of the following cases : — «ertain"cases (^O Where a submissiou provides that the reference shall be to a *n Mb?-"^ single arbitrator, and all the parties do not after differences trator, havc arisen concur in the appointment of an arbitrator : umpire, or _ _ >■ ^ • • i i r third arbi- v^-) ^^-^ ^u appointed arbitrator refuses to act, or is incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be supplied, and the parties do not supply the vacancy : (c.) Where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him : {(I.) Where an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies, and the submission does not show that it Avas intended that the vacancy should not be supplied, and the parties or arbitrators do not supply the vacancy : any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, vimpire, or third arbitrator. If the appointment is not made within seven clear days after the service of the notice, the Court or a judge may, on application by the party who gave the notice, appoint an arbitrator, umpire, or third arbitrator, who shall have the like powers to act in the reference and make an award as if he had been appointed by consent of all parties. ARBITRATION ACT, 1889 655 6. Where a submission provides that the lefereiice shall be to two power for arbitrators, one to be appointed by each party, then, unless the submission Certain iLes expresses a contrary intention — to supply VtlCSUCV (a.) If either of the appointed arbitrators refuses to act, or is incapable of acting, or dies, the party who appointed him may appoint a new arbitrator in his place ; (b.) If, on such a reference, one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party, having appointed his arbitrator, has served the party making default with notice to make the appoint ment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent : Provided that the Court or a judge may set aside any appointment made in pursuance of this section. 7. The arbitrators or umpire acting under a submission shall, unless the Powers of submission expresses a contrary intention, have power — ^^ ' ^^ °^' ■ (a.) to administer oaths to or take the affirmations of the parties and witnesses appearing ; and (b.) to state an award as to the whole or part thereof in the form of a special case for the opinion of the Court ; and * (c.) to correct in an award any clerical mistake or error arising from any accidental slip or omission. 8. Any party to a submission may sue out a writ of suhpcena ad testi- witnesses Jicandum, or a writ of subjKena duces tecum, but no person shall be com- summoned pelled under any such writ to produce any document which he could not be ^ "" ^'""'' compelled to produce on the trial of an action. 9. The time for making an award may from time to time be enlarged Power to by order of the Court or a judge, whether the time for making the award formaking" 1 • 1 , award. has expired or not. 10. — (1.) In all cases of reference to arbitration the Court or a judge Power to • • • .1 ,, PI f ^1 ^ x^i remit award may from time to time remit the matters referred, or any ot them, to the reconsideration of the arbitrators or umpire. (2.) Where an award is remitted, the arbitrators or umpire shall, unless the order otherwise directs, make their award within three months after the date of the order. 11 — n\ Where an arbitrator or umpire has misconducted himself, the i'o\|pr to set ^ -^ _ "^ aside award. Court may remove him. (2.) Where an arbitrator or umpire has misconducted himself, or an ari)i- tration or award has been improperly procured, the Court may set the award aside. 12. An award on a submission may, by leave of the Court or a judge, Knioroin^' be enforced in the same manner as a judgment or order to the same eHect. 6oG APPENDIX OF STATUTES Keference for report. Power to refer In certain cases. References under Order of Court. 13. — (1.) Subject to rules of Court and to any right to have particular cases tried by a jury, the Court or a judge may refer any question arising in any cause or matter (other than a criminal proceeding by the Crown) for enquiry or report to any official or special referee. (2.) The report of an official or special referee may be adopted wholly or partially by the Court or a judge, and if so adopted may be enforced as a judgment or order to the same effect. 14. In any cause or matter (other than a criminal proceeding by the Crown), — (a.) If all the parties interested who are not under disability consent : or, (b.) If the cause or matter requires any prolonged examination of docu- ments or any scientific or local investigation which cannot in the opinion of the Court or a judge conveniently be made before a jury or conducted hy the Court through its other ordinary officers : or, (c.) If the question in dispute consists wholly or in part of matters of account ; the Court or a judge may at any time order the whole cause or matter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the Court. 15. — (1.) In all cases of reference to an official or special referee or arbitrator under an order of the Court or a judge in any cause or matter, the official or special referee or arbitrator shall be deemed to be an officer of the Court, and shall have such authority, and shall conduct the reference in such manner, as may be prescribed by rules of Court, and subject thereto as the Court or a judge may direct. (2.) The report or award of any official or special referee or arbitrator on any such reference shall, unless set aside by the Court or a judge, be equivalent to the verdict of a jury. (3.) The remuneration to be paid to any special referee or arbitrator to whom any matter is referred under order of the Court or a judge shall be determined by the Court or a judge. Courtto 16. The Court or a judge shall, as to references under order of the asm ?e°M"'' Court or a judge, have all the powers which are by this Act conferred on ences by ^-j^g Court Or a judge as to references by consent out of Court. consent. ^ J & J Court ot 17. Her Majesty's Court of Appeal shall have all the powers conferred ha^^?l'powers ^y this Act on the Court or a judge thereof under the provisions relating of Court. |.Q references under order of the Court. Powers and remunera- tion of referees and arbitrators. General. Power to 18. — (1.) The Court or a judge may order that a writ of siihpana ad wancfof testificandum or of siihjKena duces tecum shall issue to compel the attendance witness in ARBITRATION ACT, 1889 657 before an official or special referee, or before any arbitrator or umpire, of a any part of witness wherever he may be within the United Kingdom. Kin^dom'^ (2.) The Court or a judge may also order that a writ of habeas corpus ^^^ and to order bpa.< ad testificandum shall issue to bring up a prisoner for examination before an '^^^^ ^° official or special referee, or before any arbitrator or umpire. 19. Any referee, arbitrator, or umpire may at any stage of the pro statement ceedings under a reference, and shall, if so directed by the Court or a judge, In^'arb?-''"'^" state in the form of a special case for the opinion of the Court any question trution. of law arising in the course of the reference. 20. Any order made under this Act may be made on such terms as Costs. to costs, or otherwise, as the authority making the order thinks just. 21. Provision may from time to time be made by rules of Court for Exercise of conferring on any Master, or other officer of the Supi-erae Court, all or any Masters and of the jurisdiction conferred by this Act on the Court or a judge. officers. 22. Any person toko wilfully and corruptly gives false evidence hefore any Pemity/or referee, arbitrator, or umpire shall be guilty of perjury, as if the evidence had been ^^''•'"'^" given in open Court, and may be dealt with, prosecuted, and punished accordingly. (Repealed, Perjury Act, 1911 (1 & 2 Geo. V. c. 6), s. 67.) 23. This Act shall, except as in this Act expressly mentioned, apply Crown to be to any arbitration to which Her Majesty the Queen, either in right of the Crown, or of the Duchy of Lancaster or otherwise, or the Duke of Cornwall, is a party, but nothing in this Act shall empower the Court or a judge to order any proceedings to which Her Majesty or the Duke of Cornwall is a party, or any question or issue in any such proceedings, to be tried before any referee, arbitrator, or officer without the consent of Her Majesty or the Duke of Cornwall, as the case may be, or shall affect the law as to costs payable by the Crown. 24. This Act shall apply to every arbitration under any Act passed Application. before or after the commencement of this Act as if the arbitration were references .. . . T • A j^ • • 'i.!. -i-i- under statu- pursuant to a submission, except in so tar as this Act is inconsistent with tory powers. the Act regulating the arbitration or with any rules or procedure authorised or recognised by that Act. 25. ^^his Act shall not affect any arbitration p)ending at the commencement bavins for of this Act, but shall apply to any arbitration commenced after the commence- arbitrations. raent of this Act under any agreement or order made before the commence- ment of this Act. (Words in italics repealed, S. L. li. Act, 1908.) 26. — (1.) The enactments described in the Second Schedule to this Act are itepcui. hereby repealed to the eoient therein mentioned, but this repeal shall not affect any- thing done or suffered, or any right acquired or duty imposed or liability incurred, before the commencement of tliis Act, or the institution or prosecution to its termina- tion of any legal proceeding or other remedy for ascertaining or enforcing any such liability. (liepealed, S. L. K. Act, 1907.) 658 INDEX OF STATUTES (2.) Any enactment or instrument referring to any enactment repealed by this Act shall be construed as referring to this Act. 27. In this Act, unless the contrary intention appears, — '' Submission" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not. ''Court" means Her Majesty's High Court of Justice. "Judge" means a judge of Her Majesty's High Couit of Justice. " Kules of Court " means the rules of the Supreme Court made by the proper authority under the Judicature Acts. 28. This Act shall not extend to Scotland or Ireland. 29. This Ad shall commence and come into operation on the first day of January one thousand eight hundred and ninety. (Repealed, S. L. K Act, 1908.) 30. This Act may be cited as the Arbitration Act, 1889. Schedules. THE FIRST SCHEDULE. Provisions to be implied in Sltbmissions. a. If no other mode of reference is provided, the reference shall be to a single arbitrator. h. If the reference is to two arbitrators, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award. c. The arbitrators shall make their award in writing within three months after entering on the reference, or after having been called on to act by notice in writing from any party to the submission, or on or before any later day to which the arbitrators, by any writing signed by them, may from time to time enlarge the time for making the award. d. If the arbitrators have allowed their time or extended time to expire without making an award, or have delivered to any party to the submi-ssion, or to the umpire a notice in writing, stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators. e. The umpire shall make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired, or on or before any later day to which the umpire by any writing signed by him may from time to time enlarge the time for making his award. /. The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or affirmation, in relation to the matters JUDICATURE ACTS 659 in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire, all books, deeds, papers, accounts, writings, and documents within their possession or power respectively which may be required or called for, and do all other things which during the proceedings on the reference the arbitrators or umpire may require. g. The witnesses on the reference shall, if the arbitrators or umpire thinks fit, be examined on oath or affirmation. h. The award to be made by the arbitrators or umpire shall be final and binding on the parties and the persons claiming under them respectively. i. The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be paid or any part thereof, and may award costs to be paid as between solicitor and client. THE SECOND SCHEDULE. Enactments Repealed. Session and Chapter. Title or Short Title. Extent ofBepeal. 9 Will. 3, c. 15 . An Act for determining differences by arbitration. The whole Act. S (Jj Jf Will. 4, c. 42 . An Act for the further Sections thirty-nine to forty- amendment of the laiv one, both inclusive. and the better advance- ment of justice. 17 (£■ 18 Vict. c. 125 . The Common Laio Procedure Sections three to seventeen, both Act, 1854. inclusive. 36 d: 37 Vict. c. 66 . The Supreme Court of Judi- Sections fifty-six, from ^^ Sub- cature Act, 1873. ject to any Rules of Court " doivn to "as a judgment by the Court,'' both inclusive, and the icords ^'■special referees or." Sections fifty- seven to fifty - nine, both inclusive. 47 (£• 43 Vict. c. 61 . The Supreme Court of Judi- Sections nine to eleven, both cature Act, 188 4. inclusive. (Repealed, S. L. K. Act, 1908.) JUDICATURE ACTS. THE 8UPKEME COURT OF JUDICATURE ACT, 1873. 36 ^ 37 Vict. c. 66. Jn Ad for the constitution of a Supreme Court, and fw other purposes. \bth August 187 3. J S. 45, dealing with appeals from inferior Courts, provides that they may be heard and determined by Divisional Courts of the High Court of Justice 660 APPENDIX OF STATUTES Official referees to be appointed. " The determination of such appeals respectively by such Divisional Courts shall be tinal unless special leave to appeal from the same to the Court of Appeal shall be given by the Divisional Court by which any such appeal from an inferior Court shall have been heard." S. 83. There shall be attached to the Supreme Court permanent officers, to be called " official referees," for the trial of such questions as shall under the provisions of this Act be directed to be tried by such referees. The number and the qualifications of the persons to be so appointed from time to time, and the tenure of their offices, shall be determined by the Lord Chancellor, with the concurrence of the Presidents of the Divisions of the High Court, or a majority of them (of which majority the Lord Chief Justice of England shall be one), and with the .sanction of the Treasury. Such official referees shall perform the duties entrusted to them in such places, whether in London or in the country, as may from time to time be directed or authorised by any order of the said High Court or of the Court of Appeal ; and all proper and reasonable travelling expenses incurred by them in the discharge of their duties shall be paid by the Treasury out of the moneys to be provided by Parliament. THE SUPREME COURT OF JUDICATURE ACT, 1884. 47 •& 48 Vict. c. 61. Appeals S. 8. The provisions of s. 45 of the Supreme Court of Judicature Act, referees. 1873, as to certain appeals therein mentioned, shall extend and apply to all cfee.^' '^"^ appeals brought after the commencement of this Act from any award or certificate of a referee or arbitrator when there has been a compulsory reference to arbitration in any cause or matter in the Queen's Bench Division of the High Court. (As to compulsory references to arbitration,, see ante, p. 520.) THE SUPREME COURT OF JUDICATURE (PROCEDURE) ACT, 1894. 57 & 58 Vict. c. 16. An Act to amend the Supreme Court of Judicature Acts. [3rd July 1894.] Appeals. S. 1. — (1) No appeal shall lie — (a) From an order allowing an extension of time for appealing from a judgment or order ; nor (h) Without the leave of the judge, or of the Court of Appeal, from any interlocutory order or interlocutory judgment RULES OF THE SUPREME COURT 661 made or given by a judge, except in the following cases, namely : — (v.) Any order on a special case stated under the Arbitration Act, 1889. (4) In matters of practice and procedure every appeal from a judge «hall be to the Court of Appeal. (5) In all cases where there is a right of appeal to the High Court from any Court or person, the appeal shall be heard and determined by a Divisional Court constituted as may be prescribed by rules of Court ; and the determina- tion thereof by the Divisional Court shall be final, unless leave to appeal is given by that Court or by the Court of Appeal. RULES OF THE SUPREME COURT. Order XIV. R. 1 (a). Where the defendant appears to a writ of summons specially Judgment indorsed under Order III., r. 6, the plaintiff may, on affidavit made by specially himself, or by any other person who can swear positively to the facts, JJiiderOrder verifying the cause of action, and the amount claimed (if any), and stating !"•>''• 6. that in his belief there is no defence to the action, apply to a judge for liberty to enter final judgment for the amount so indorsed, together with interest, if any, or for recovery of the land (with or without rent or mesne profits), as the case may be, and costs. The judge may thereupon, unless the defendant by affidavit, by his own viva voce evidence, or otherwise shall satisfy him that he has a good defence to the action on the merits, or disclose such facts as may be deemed sufficient to entitle him to defend, make an order empowering the plaintiff to enter judgment accordingly. R. 7. Upon the hearing of the application, with the consent of the parties. Reference of an order may be made referring the action to a Master, or the action may be di^osaF finally disposed of without appeal in a summary manner. Order XVII. R. 1. A cause or matter shall not become abated by reason of the marriage. Action not ... , . . abatofi death, or bankruptcy of any of the parties if the cause of action survive or wiiem cause . ■, , ,, , 1 / ,• 1 ^1 • i. i.- of action continue, and shall not become defective by the assignment, creation, or coniinucs. devolution of any estate or title pendente lite ; and, whether the cause of action survives or not, there shall be no abatement by reason of the death of either party between the verdict or finding of the issues of fact and the judgment, but judgment may in such case be entered, notwithstanding the death. R. 2. In case of the marriage, death, or bankruptcy, or devolution of incise; of estate by operation of law, of any party to a cause or matter, the Court or a ordevoiu- judge may, if it be deemed necessary for the complete settlement of all the nstato, &c., questions involved, order that the husband, personal representative, trustee, onilfr ,"ic-^ or other successor in interest, if any, of such party be made a party, or be ;^;;Xa " ''^ 66'Z APPENDIX OF STATUTES party or served with notice. In case of assignment, &c., action may be con- tinued. Order to carry on proceedinc;:^ served with notice in such manner and form as hereinafter prescribed, and on such terms as the Court or judge shall think just, and shall make such order for the disposal of the cause or matter as may be just. R. 3. In case of an assignment, creation, or devolution of any estate or title pendente lite, the cause or matter may be continued by or against the person to or upon whom such estate or title has come or devolved. E. 4. Where by reason of marriage, death, or bankruptcy, or any other event occurring after the commencement of a cause or matter, and causing a change or transmission of interest or liability, or by reason of any person interested coming into existence after the commencement of the cause or matter, it becomes necessary or desirable that any person not already a party should be made a party, or that any person already a party should be made a party in another capacity, an order that the proceedings shall be carried on between the continuing parties, and such new party or parties, may b& obtained ex parte on application to the Court or a judge upon an allegation of such change, or transmission of interest or liability, or of any such person interested having come into existence. Modes of trial. Distribution of business among official referees. Production and in- dorsement of order for reference. Reference to particular referee. Quarterly return of pending business. Order XXXVI. E. 2. In every cause, matter, or issue, unless under the provisions of r. 6 of this Order a trial v>ath a jury is ordered, the mode of trial shall be by a judge without a jury ; provided that in any such case the Court or a judge may at any time order any cause, matter, or issue to be tried by a judge with a jury, or by a judge sitting with assessors, or by an official referee or special referee with or without assessors. E. 45. When an order is made referring any business to the official referees appointed under the piincipal Act, the order may refer such business to any one in particular of the referees ; but if no particular referee is named in the order the business shall be distributed among the oificial referees by the clerk to the senior official referee, in rotation or in such other manner as the Lord Chancellor may from time to time direct. (The distribution of business under this rule is now effected by the rota clerk to the senior official referee, Eoom 191, Eoyal Courts of Justice — E. S. C, Dec. 1888, r. 1.) E. 46. When an order shall have been made referring any business to the official referees, not naming any one of them in particular, the order, or a duplicate of it, shall be produced to the clerk in the last preceding rule mentioned, who shall indorse on the order the name of the official referee to whom that business is to be referred, in accordance with the last preceding rule, and the order so indorsed shall be sufficient authority for the official referee to proceed with the business so referred. E. 47. When an order shall have been made referring any business to any one in particular of the official referees, the clerk, in making the distribution of the business as by these rules directed, shall have regard to such reference. E. 47a. The senior official referee shall make a quarterly return to the Lord Chancellor of the state of the business pending before each referee, the first return to be made on the 11th dav of Januarv 1889. RULES OF THE SUPREME COURT 663 R. 47b. The Lord Chancellor and the Lord Chief Justice of England, Transfer or either of them, shall have power to order the transfer of any causes or See to matters from any one or more of the official referees to any other or others =*"o"ier. of them whenever in his opinion it shall be expedient so to do, having regard to the state of the business pending before the referees. R. 48. Where any cau.se or matter, or any question in any cause or matter, sittings of is referred to a referee, he may, subject to the order of the Court or a judge, '''"^'"■''^• bold the trial at or adjourn it to any place which he may deem most con- venient, and have any inspection or view, either by himself or with his inspection assessors (if any), which he may deem expedient for the better disposal of °'"'''®'''' the controversy before him. He shall, unless otherwise directed by the Court or a judge, proceed with the trial de die in diem, in a similar manner as in actions tried with a jury. R. 49. Subject to any order to be made by the Court or judge ordering Evidence at the same, evidence shall be taken at any trial before a referee, and the referee!^°'^ attendance of witnesses may be enforced by siihpmta, and every such trial •shall be conducted in the same manner, as nearly as circumstances will admit, as trials are conducted before a judge. R. 50. Subject to any such order as last aforesaid, the referee shall have Authority the same authority with respect to discovery and production of documents, °^"''^"*''- and in the conduct of any reference or trial, and the same power to direct that judgment be entered for any or either party, as a judge of the High Court. R. 51. Nothing in these I'ules contained shall authorise any referee touefercenot commit any person to prison or to enforce any order by attachment or orattS. otherwise. R. 52. The referee may, before the conclusion of any trial before him, or Referee by his report under the reference made to him, submit any question arising "ir^^stTon™ therein for the decision of the Court, or state any facts specially, with power ^^^' °^^^' to the Court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the Court may direct; and the Court shall have power to require any explanation or reasons Court may from the referee, and to remit the cause or matter, or any part thereof, for to'^efefeer re-trial or further consideration to the same or any other referee; or the °'''^^''"^'"^' Court may decide the question referred to anj' referee on the evidence taken before him either with or without additional evidence as the Court may direct. R. 52a. Rr. 49 to 52 of Order XXXVL shall apply where any Power as to cause or matter or any question or issue of fact is referred to an oilicial issues of . fact. referee. R. 53. Whenever a report shall be made by a referee, he shall on the Noticeof same day cause notice thereof to l)e given to all the parties to the trial or the i..i.ort. reference before him by prepaid jjost letter directed to the address for service of each party, who shall in due course of post be deemed to have notice of such report. R. 54. Where under s. 13 of the Arbitration Act, 1889, the report of Adoption or . , . , . . variation of the referee has been made in a cause or matter the further consideration ot reportoi which has been adjourned, it shall be lawful for any party, on the hearing where" 664 APPENDIX OF STATUTES urther con- sideration of cause has been adjourned. Same where further con- sideration of cause not adjourned. Ccsts in discretion of official referee. Arbitrator under an order to have the powers of an official referee. Fees of referee or Master may be ordered to be paid by solicitor. Ascertain- ment of damages where a matter of calculation. Ascertain- ment of damages by official referee. of such further consideration, without notice of motion or summons, to apply- to the Court or judge to adopt the report, or without leave of the Court or a judge to give not less than four days' notice of motion, to come on with the further consideration, to vary the report or to remit the cause or matter or any part thereof for re-hearing or further consideration to the same or any other referee. E. 55. Where under s. 13 of the Arbitration Act, 1889, the report of the referee has been made in a cause or matter, the further consideration of which has not been adjourned, it shall be lawful for any party, by an eight days' notice of motion to apply to the Court to adopt and carry into effect the report of the referee, or to vary the report, or to remit the cause or matter or any part thereof for re-hearing or further consideration to the same or any other referee. R. 55b. Where the whole of any cause or matter is referred to an official referee under an order of Court, he may, subject to any directions in the order, exercise the same discretion as to costs as the Court or a judge could have exercised. R. 55c. The provisions of rr. 48 to 55 of Order XXXVI. and of r. 55b shall apply where any cause or matter or any question or issue of fact therein is referred to an officer of the Court or to a special referee or arbi- trator. Provided that where the arbitrator is appointed otherwise than by an order of the Court the provisions of r. 48 as to sitting de die in diem shall not apply. R. 55d. In any proceeding before an official referee or Master in which the party by whom the fees prescribed by the orders as to Court fees are payable is represented by a solicitor, if the fees or any part of the fees pay- able under the said orders are not paid as therein prescribed, the Court or a judge may on the application of the official solicitor by summons, and upon a report signed by the official referee or Master stating the amount of the unpaid fees, order the said solicitor of the said party personally to pay the said amount in the manner prescribed by the said oi'ders, and to pay the costs of the official solicitor of the application. R. 57. In every action or proceeding in the King's Bench Division in which it shall appear to the Court or a judge that the amount of damages sought to be recovered is substantially a matter of calculation, it shall not be necessary to issue a writ of enquiry, but the Court or a judge may direct that the amount for which final judgment is to be entered shall be ascertained by an officer of the Court, and the attendance of witnesses and the produc- tion of documents before such an officer may be compelled by siibpcena, and such officer may adjourn the enquiry from time to time, and shall indorse upon the order for referring the amount of damages to him the amount found by him, and shall deliver the order with such indorsement to the person entitled to the damages, and such and the like proceedings may thereupon be had as to taxation of costs, entering judgment, and otherwise, as upon the finding of a jury upon a writ of enquiry. R. 57a. The direction in r. 57 mentioned may be made to any one of the official referees, or to the official referee in rotation : and in such case the powers given by the said rule to the officer of the Court therein mentioned RULES OF THE SUPREME COURT 665 shall be exercised by such official referee ; and the provisions of the rules as to the distribution of business among the official referees shall apply to directions given under r. 57. E. 58, Where damages are to be assessed in respect of any continuing Damages in cause of action, they shall be assessed down to the time of the assessment. continuing cause of Order XXXIX. ''^"°°- E. 1. Except as hereinafter provided every application for a new trial Application or to set aside a verdict, finding, or judgment where there has been a trial t?fa"tobe with or without a jury shall be made to the Court of Appeal. "•^^un, o°f E. 3. Every such application shall be made by notice of motion. The tFl^^\ notice of motion shall state whether the whole or part only, and if part only application what part, of the verdict, finding, or judgment is complained of, and where tnai. there has been a trial with a jury, shall also state the grounds of the application ; but where there has been a trial without a jury it shall not be necessary in the notice of motion to ask specifically for a new trial or to state the grounds of the application. E. 4. The notice of motion shall be a fourteen days' notice, and shall be Time for served within six weeks after the trial, or, where the trial has been adjourned notice of for further consideration, within six weeks after judgment has been given on ™° '°"' such further consideration. E. 7. A new trial may be ordered on any question without interfering New trial with the finding or decision upon any other question. Mdered on any one Order XL. ''""'""• E. 2. Every referee to whom a cause or matter shall be referred for trial Judgment •' to be entered shall direct how judgment shall be entered, and such judgment shall be by referee, entered accordingly by a Master or registrar as the case may be. E. 6. Where at a trial by a referee he has directed that any judgment be setungaside entered, any party may move to set aside such judgment, and to enter any directed to other judgment, on the ground that upon the finding as entered the judg- by referee. ment so directed is wrong : Provided that in the King's Bench Division such motion shall be made to a Divisional Court. E. 6a. Eules 2 and 6 of Order XL. shall apply to a reference to any nuiesJand officer of the Court or special referee or arbitrator under an order of the ' Court. E. 7. Where issues have been ordered to be tried, or issues or questions I^J^^Ung of fact to be determined in any manner, the plaintiff may set down a motion motion for . , , , . J J- judgment for judgment as soon as such issues or questions have been determined, n where issues be does not set down such a motion, and give notice thereof to the other dTn'cted and parties within ten days after his right so to do has arisen, then after the '^"'''^■ expiration of such ten days any defendant may set down a motion for judgment, and give notice thereof to the other parties. Order XLIL E. 3lA. An award may with the leave of the Court or a judge, and on E^fo^cing such terms as may be just, be enforced at any time though the time for ' ' moving to set it aside has not elapsed. 666 APPENDIX OF STATUTES Application l)v motion. Restriction on rules nisi and orders to show cause. ■\Vhero notice of motion to be ariven. When j^TOunds of notice of motion to be stated. LeiiL;tl) 111 notice of motion. Okder LII. R. 1. Where by these rules any application is authorised to be made to the Court or a judge, such application, if made to a Divisional Court or to a judge in Court, shall be m;ide by motion. K. 2. No motion or application for a rule nisi or order to show cause shall hereafter be made in any action, or (a) to set aside, remit, or enforce an award, or (b) for attachment, or (c) to answer the matters in an affidavit, or (d) to strike off the rolls, or (e) against a sheriff to pay money levied under an execution. K 3. Except where according to the practice existing at the time of the passing of the principal Act any order or rule might be made absolute ex parte in the first instance, and except where notwithstanding r. 2 a motion or application may be made for an order to show cause only, no motion shall be made without previous notice to the parties affected thereby. But the Court or a judge, if satisfied that the delay caused by proceeding in the ordinary way would or might entail irreparable or serious mischief, may make any order ex parte upon such terms as to costs or otherwise, and subject to such undertaking, if any, as the Court or judge may think just; and any party affected by such order may move to set it aside. K. 4. Every notice of motion to set aside, remit, or enforce ap award, or for attachment, or to strike off the rolls, shall state in general terms the grounds of the application ; and, where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion. li. 5. Unless the Court or a judge give special leave to the contrary there must be at least two clear days between the service of a notice of motion and the day named in the notice for hearing the motion ; . • . Form and issue of originatin. summons. Appear- ance to originatin,:: summons. Okder LIV. R. 4ii. An originating summons shall be in the Form No. 1a, or i;, .\ppendix K, or in the Forms G or H, Appendix K, to these rules, with such variations as circumstances may require. It shall be prepared by the applicant or his solicitor, and shall be sealed in the Central Office, or in probate matters in the Probate Registry, or in Admiralty matters in the Admiralty Registry, and when so sealed shall be deemed to be issued. The person obtaining the summons shall leave at the Central Office, Probate Registry, or Admiralty Registry, as the case may be, a copy thereof, which shall be filed and stamped in the manner required by law. In Probate and Admiralty matters the signature of the President shall be deemed to be equivalent to sealing. R. 4c. The parties served with an originating summons shall, except as hereinafter provided, before they are heard, enter appearances at the Central Office, Probate matters at the Probate Registry, or in Admiralty matters at the Admiralty Registry, and give notice thereof. A party so served may appear at any time before the hearing of the summons. If he appears at any time after the time limited by the summons for appearance RULES OF THE SUPREME COURT 667 be shnll not, unless the Court or a judge shall otherwise order, be entitled to any further time for any purpose, than if he bad appeared according to the summons. R. 4d. The day and hour for attendance under an originating summons Attendance to which an appeai'ance is required to be entered shall, after appearance, be origfuating fixed by notice, sealed with the seal of the Central Office in the ease of a •-""™°"*- summons issued in the King's Bench Division, or of the chambers of the judge to whom such summons is assigned in the case of a summons issued in the Chancery Division, or of the Probate Registry in the case of Probate matters, or of the Admiralty Registry in the ease of Admiralty matters. Such notice shall be in Form No. If, Appendix K. The notice shall be served on the defendant or' respondent by delivering a copy thereof at the address for service named in the memorandum of appearance of such defen- dant or respondent not less than four clear days before the return day. The day and hour for the hearing of an ex jiarte summons shall in the Chanceiy Division be fixed at the chambers of the judge to whom the matter is assigned on production of the originating summons. R. 4e. Every summons, not being an originating summons to which an service of <^ ^ '^ summonses appearance is required to be entered, shall be served two clear days before not being the return thereof, unless in any case it shall be otherwise ordered. Pro- su'inmonse's vided that in case of summonses for time only, the summons may be served appearance. on the day previous to the return thereof. R. 4r. A respondent to an originating summons — ... (3) under when ^ • ^ CD \ / appearance the Arbitration Act, 1889; . . . shall not be required to enter an not required. appearance. R. 5. Where any of the parties to a summons fail to attend, whether Proceeding upon the return of the summons, or at any time appointed for the con- where any sideration or further consideration of the matter, the judge may proceed t'o'attciuh ex parte, if, considering the nature of the case, he think it expedient so to do ; no affidavit of non-attendance shall be required or allowed, but the judge may require such evidence of service as he may think just. R. 12a. a Master of the Supreme Court may exercise all the jurisdic- Powers of • 1 1 u A 1 • • Masters tion and powers conferred upon the Court or a ludge by the Arbitration under '■ '■ 1 ^ Arbitration Act, 1889. Act, issii. Order LXIII. R. 16. The official referees shall sit at least from 10 A.M. to 4 I'.M. on sittings or every day during the Michaelmas, Hilary, Easter, and irimty Sittings of referees. the High Court of Justice, except on Saturdays during such sittings, when they shall sit at least from 10 a.m. to 1 I'.i^r. ; but nothing in this rule shall prevent their sitting on any other days. Order LXIV. R. 14. An application to set aside an award may Ije made at any time 'j^^^;;^.^^ before the last day of the sittings next after such award has been made and lo.^;;;:* asi.u* published to the parties. G68 APPENDIX OF STATUTES Enlarging R. 14a. Where the time for making an award is enlarged, the enlarge- awnrd. ment shall be deemed to be for one month unless a different time is specified in the order. Order LXV. Costs to be R. 1. Subject to the provisions of the Acts and these rules, the costs of discretion of and incident to all proceedings in the Supreme Court, including the adminis- t e curt, tra^ion Qf estates and trusts, shall be in the discretion of the Court or judge : Provided that nothing herein contained shall deprive an executor, adminis- trator, trustee, or mortgagee who has not unreasonably instituted or carried on or resisted any proceedings, of any right to costs out of a particular estate or fund to which he would be entitled according to the rules hitherto acted upon in the Chancery Division : Provided also that, where any action, cause, matter, or issue is tried with a jury, the costs shall follow the event, unless the judge by whom such action, cause, matter, or issue is tried, or the Court, shall, for good cause, otherwise order. Costs on an R. 1 5. Costs may be taxed on an award, notwithstanding the time for setting aside the award has not elapsed. ORDER AS TO SUPREME COURT FEES. Proceedings before an Official Referee. Fees of 88. On every reference on entering a case for trial referees. 89. In London or Middlesex, for every hour or part of an hour the referee is occupied, including examination of witnesses, if any ....... 90. On every reference (not in London or Middlesex) And for every hour or part of an hour the referee is occupied beyond two full days . . . . 10 91. On every sitting elsewhere than in London or Middlesex, a further fee for every night the referee shall be absent from London . . . . . . . 1 11 6 And for his clerk . . . . . . 15 The fee No. 88 shall be due and payable by the party entering the case for trial when the order of reference is entered with the official referee's clerk. If and when the case is tried credit shall be given against the hearing fees for the fee No. 88, but in no case shall such fee be repaid. All fees shall be payable in advance by the party having the conduct of the case from day to day as the case proceeds. In any case in which a party may have paid an amount in excess of the fees due the party so paying shall be entitled to the return of any amount so paid in excess upon the certificate in writing of the official referee indorsed upon the form provided for that purpose. £ s. 1 d. 10 5 THE STAMP ACT, 1891 669 THE COUNTY COURTS ACT, 1888. 51 & 52 Vict. c. 43. S. 14. No judge shall practise at the bar, or as a special pleader or equity Judges not draughtsman, or be directly or indirectly concerned as a conveyancer, notary ° P''®'^'^^''''- public, or solicitor, or act as arbitrator or referee for any remuneration to himself. S. 104. The judge may in any case, with the consent of both parties to Action may the action, order the same, with or without other matters within the juris- by arbitra- diction of the Court in dispute between such parties, to be referred to '^'°"' arbitration, to such person or persons and in such manner, and on such terms as he shall think reasonable and just ; and such reference shall not be revocable by either party, except by consent of the judge ; and the award of the arbitrator or arbitrators, or umpire, shall be entered as the judgment in the action, and shall be as binding and effectual to all intents as if given by the judge : provided that the judge may, if he think fit, on application to him at the first Court held after the expiration of one week after the entry of such award, set aside any such award so given as aforesaid, or may, with the consent of both parties aforesaid, revoke the reference, or order another reference to be made in the manner aforesaid. COUNTY COURT RULES, 1903. Order XX. At any time after an action is commenced the judge may, with the Arbitration consent of the parties, as well in cases within the ordinary jurisdiction of y'^°'^^^"- the Court as in cases of agreement under s. 64 of the Act make an order for a reference, under the provisions of s. 104 of the Act, and all the provisions in the last-mentioned section contained as to references shall apply to a reference proceeding under such an order : provided that the same fees shall be paid as would have been payable on entering judgment under a default summons, but when any reference is ordered to the registrar or other officer of the Court the same hearing fee shall be paid as if the action had been tried. [S. 64 deals with actions assigned to the King's Bench Division and to cases xvhere both parties agree that judge shall have the jurisdirJion to trig.] THE STAMP ACT, 1891. 54 & 55 Vict. c. 39. An Act to consolidate the Enactments granting and relating to the Stamp Duties upon InstrumerUs and certain other Enactments relating to Stamp Duties. [2lstJulg 1891.] S. 1. From and after the commencement of this Act the stamp duties to charge of be charged for the use of Her Majesty upon the several instruments specified scUeduTe. ' 670 APPENDIX OF STATUTES ill the First Schedule to this Act shall be the several duties in the said Schedule specified, which duties shall be in substitution for the duties theretofore chargeable under the enactments repealed by this Act, and shall be subject to the exemptions contained in this Act and in any other Act for the time being in force. Production of Instruments in Evidence. Terms upon S. 14. — (1) Upon the production of an instrument chargeable with any instruments duty as evidence in any Court of civil judicature in any part of the United stemped Kingdom, or before any arbitrator or referee, notice shall be taken by the i^ceived in J^^S^j arbitrator, or referee of any omission or insufficiency of the stamp evidence. thereon, and if the instrument is one which may legally be stamped after the execution thereof, it may, on payment to the officer of the Court whose duty it is to read the instrument, or to the arbitrator or referee, of the amount of the unpaid duty, and the penalty payable on stamping the same, and of a further sum of one pound, be, received in evidence, saving all just exceptions on other grounds. (2) The officer, or arbitrator, or referee receiving the duty and penalty shall give a receipt for the same, and make an entry in a book kept for that purpose of the payment and of the amount thereof, and shall communicate to the commissioners the name or title of the proceeding in which, and of the party from whom, he received the duty and penalty, and the date and description of the instrument, and shall pay over to such person as the commissioners may appoint the money received by him for the duty and penalty. (3) On production to the commissioners of any instrument in respect of which any duty or penalty has been paid, together with the receipt, the payment of the duty and penalty shall be denoted on the instrument. (4) Save as aforesaid, an instrument executed in any part of the United Kingdom, or relating, wheresoever executed, to any property situate, or to any matter or thing done or to be done, in any part of the United Kingdom, shall not, except in criminal proceedings, be given in evidence, or be avail- able for any purpose whatever, unless it is duly stamped in accordance with the law in force at the time when it was first executed. Stamping of Instruments after Execution. Penalty S. 15. — (1) Save where other express provision is in this Act made, any ilfg°instru-^' Unstamped or insufficiently stamped instrument may be stamped after the ^terexecu- exccution thereof, on payment of the unpaid duty and a penalty of ten '^'°"" pounds, and also by way of further penalty, where the unpaid duty exceeds ten pounds, of interest on such duty, at the rate of five pounds per centum per annum, from the day upon which the instrument was first executed up to the time when the amount of interest is equal to the unpaid duty. THE QUARTER SESSIONS ACT, 1849 671 THE FIRST SCHEDULE. AWARD in England or Ireland, and AWARD or DECREET ARBITRAL in Scotland. In amj case in loliich an amount or value is the matter in dispute — Where no amount is aivarded or the amount or value avjarded does not exceed £5. Where the amount or value awarded — Exceeds £o and does not exceed £10 10 20 SO JfO 50 100 200 „ 500 750 1000 In any other case 20 30 -kO 50 100 200 500 750 1000 £ s. d. .? 1 1 6 o o 6 5 10 15 1 1 5 1 15 1 15 THE REVENUE ACT, 1906. 6 Edw. VII. c. 20. S. 9. A uniform duty of ten shillings shall be substituted for the duties stamp duty chargeable under the Stamp Act, 1891, on an Award in England or Ireland, °" '''"''" and on an Award or Decreet Arbitral in Scotland, and specified under that heading in the First Schedule to that Act. THE QUARTER SESSIONS ACT, 1849. 12 & 13 Vict. c. 45. Ail Act io amend the procedure in Courts of General and Quarter Sessions of the Peace in England and Waks, and for the letter advancement of Justice iv Cases within the Jurisdiction of those Courts. [28///, July 1849.] S. 12. . . . At any time after notice given of appeal to any Court of General Refwencps or Quarter Sessions of the Peace against any order, rate, or other matter tton. (except a summary conviction, or an order in bastardy, or any proceeding under or by virtue of any of the statutes relating to Her Majesty's revenue of excise or customs, stamps, taxes, or post-office), for which the remedy is by such appeal, it shall be lawful for the parties, by themselves or their attorneys, and by order of a judge of Her Majesty's Court of Queen's Bench, 672 APPENDIX OF STATUTES Reference by order of Court of Sessions. Where refer- ence abor- tive, Queen's Bench may order Ses- sions to hear appeal. to submit the matter or matters of such appeal to the award or umpirage of any person or persons, . . . and every award or umpirage duly made under this Act shall be as binding and effectual to all intents as if the same had been a regular judgment of the said Court of General or Quarter Sessions, and shall and may, on the application of either party, be enrolled among the records of the said Court of Sessions. S. 13. And be it enacted, That it shall be lawful for any Court of General or Quarter Sessions of the Peace before which any appeal (except against a summary conviction, or an order in bastardy, or any proceeding under or by virtue of any of the statutes relating to Her Majesty's revenue of excise or customs, stamps, taxes, or post-office) shall be brought, to order, with consent of the parties or their attorneys, that the matter or matters of such appeal be referred to arbitration to such person or persons, and in such manner and on such terms as the said Court shall think reasonable and proper ; . . . and the award of the arbitrator or arbitratois, or umpirage of the umpire, may, on motion by either party at the sessions next or next but one after such award or umpirage shall have been finally made and published, or after the decision of the Court of Queen's Bench on any motion for setting aside the same, be entered as the judgment of the Court of General or Quarter Sessions in the appeal, and shall be as binding and effectual to all intents as if given by the said Court. . . . S. 14. And be it enacted, That if upon any reference to arbitration under this Act it shall be made to appear to the Court of Queen's Bench that, either from the death of the arbitrator or arbitrators or umpire, or from any other cause, it has become impossible that an award or umpirage can be made, it shall be lawful for the said Court to order the Court of General or Quarter Sessions of the Peace to enter continuances and hear the appeal. THE INDIAN ARBITEATION ACT, 1899. Act No. IX. of 1899. Passed by the Governor-General of India in Council. {Received the assent of the Governor-General on the 3rd March 1899.) A7i Act to amend the Laiv relating to Arbitration. Whereas it is expedient to amend the law relating to arbitration by agreement without the intervention of a Court of Justice ; It is hereby enacted as follows : — 1. (1) This Act may be called the Iridian Arbitration Act, 1899. (2) It extends to the whole of British India ; and (3) It shall come into force on the first day of July 1899. Application. 2. Subject to the provisions of s. 23, this Act shall apply only in cases where, if the subject-matter submitted to arbitration were the subject Short title, extent and commence- ment. THE INDIAN ARBITRATION ACT, 1899 673 of a suit, the suit could, whether with leave or otherwise, be instituted in a Presidency-town : Provided that the Local Government, with the previous sanction of the Governor-General in Council, may, by notification in the local official Gazette, declare this Act applicable in any other local area as if it were a Presidency- town. 3. The last thirty-seven woi-ds of s. 21 of the Specific Relief Act, Exclusion of 1877 (I. of 1877; XIV. of 1882), and ss. 52-.3 to 526 of the Code oi"^^,,,^ Civil Procedure shall not apply to any submission or arbitration to which case^where the provisions of this Act for the time being apply : Act applies. Provided that nothing in this Act shall affect any arbitration pending in a Presidency-town at the commencement of this Act or in any local area at the date of the application thereto of this Act as aforesaid, but shall apply to every arbitration commenced after the commencement of this Act or the date of the application thereof, as the case may be, under any agreement or order previously made : Provided, also, that nothing in this Act shall affect the provisions of the Indian Companies Act, 1882 (VI. of 1882), relating to arbitration. 4. In this Act, unless there is anything repugnant in the subject or Definitions. context, — (a) "the Court" means, in the Presidency-towns, the High Court, and, elsewhere, the Court of the District Judge ; and {h) "submission" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not. 5. A submission, unless a different intention is expressed therein, shall be submission irrevocable, except by leave of the Court. vocable except by 6. A submission, unless a different intention is expressed therein, shall be [^„™t°' deemed to include the provisions set forth in the First Schedule, in so far as Provisions .... iniiilieil iu they are applicable to the reference under submission. submis- 7. The parties to a submission may agree that the reference shall be to Reference to an arbitrator or arbitrators to be appointed by a person designated therein, bl'i] .pointed Such person may be designated either by name or as the holder for the p^iso,',''' time being of any office or appointment. Illustration. The parties tea submission may agree tliat any dispute arising Ijelween them in respect of the suljject-niatter of the submission shall be referred to an arbi- trator to be aiipointed by the Bengal Chamber of Commerce, or, as the case may be, to an arbitrator to be appointed by the President for the time being of the Bengal Chamber of Commerce. 8. (1) In any of the following cases : — rowor for • -11 1 r 1 11 1 llie Court (a) where a submission provides that the reterence shall he m eertain to a single arbitrator, and all the parties do not, after !;'pp,"j„t an differences have arisen, concur in the appointment of an "/^'.fo^^^ 1 ■, i third arbi- arbitrator ; trator. 4o 674 APPENDIX OF STATUTES (b) if an appointed arbitrator neglects or refuses to act, or is incapable of acting, or dies, or is removed, and the sub- mission does not show that it was intended that the vacancy should not be supplied, and the parties do not supply the vacancy ; (c) where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him ; (d) where an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies, or is removed, and the submission does not show that it was intended that the vacancy should not be supplied, and the parties or arbi- trators do not supply the vacancy ; any party may serve the other parties or the arbitrators, as the case may be, with a written notice to concur in appointing an arbitrator, umpire or third arbitrator. (2) If the appointment is not made within seven clear days after the service of the notice, the Court may, on application by the party who gave the notice, and after giving the other party an opportunity of being heard, appoint an arbitrator, umpire or third arbitrator, who 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. 9. Where a submission provides that the reference shall be to two arbi- trators, one to be appointed by each party, then, unless a different intention is expressed therein, — (a) if either of the appointed arbitrators refuses to act, or is incapable of acting, or dies, or is removed, the party who appointed him may appoint a new arbitrator in his place ; (b) if, on such a reference, one party fails to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other party, having appointed his arbitrator, has served the party making default with a written notice to make the appointment, the party who has appointed an arbitrator may appoint that arbitrator to act as sole arbitrator in the reference, and his award shall be binding on both parties as if he had been appointed by consent : Provided that the Court may set aside any appointment made in pur- suance of clause (b) of this section. 10. The arbitrators or umpire acting under a submission shall, unless a different intention is expressed therein, — (a) have power to administer oaths to the parties and witnesses appearing ; (b) have power to state a special case for the opinion of the Court on any question of law involved ; and (c) have power to correct in an award any clerical mistake or error arising from any accidental slip or omission. Award to bp H. (1) When the arbitrators or umpire have made their award, they signed and , , , . . i , , , • - , • c , i i • j • ■ filed. shall Sign it and shall give notice to the parties of the making and signing Powpr for parties in certain cases to supply vacancj". Powers of arliitratnr. THE INDIAN ARBITRATION ACT, 1899 675 thereof and of the amount of the fees and charges payable to the arbitrators or umpire in respect of the arbitration and award. (2) The arbitrators or umpire shall, at the request of any party to the submission or any person claiming under him, and upon payment of the fees and charges due in respect of the arbitration and award, and of the costs and charges of filing the award, cause the award, or a signed copy of it, to be filed in the Court ; and notice of the filing shall be given to the parties by the arbitrators or umpire. (3) Where the arbitrators or umpire state a special case under s. 10, clause (b), the Court shall deliver its opinion thereon ; and such opinion shall be added to, and shall form part of, the award. 12. The time for making an award may, from time to time, be enlarged rower for by order of the Court, whether the time for making the award has expired huge time , lor making or not. award. 13. (1) The Court may, from time to time, remit the award to theT'owerto . , . . , , . . i.'iuit award reconsideration of the arbitrators or umpire. (2) Where an award is remitted under sub-section (1), the arbitrators or umpire shall, unless the Court otherwise directs, make a fresh award within three months after the date of the order remitting the award. 14. Where an arbitrator or umpire has misconducted himself, or an power to set arbitration or award has been improperly procured, the Court may set aside the award. 15. (1) An award on a submission, on being filed in the Court in accord- Award when ance with the foregoing provisions, shall (unless the Court remits it to the enforceable reconsideration of the arbitrators or umpire, or sets it aside) be enforceable '^^ ^ ^^'^^ ' as if it were a decree of the Court. (2) An award may be conditional or in the alternative. Illustration. A dispute concerning the ownership of a diainoiul ring is referred to arbitra- tion. The award may direct that the party in possession shall pay the other party Bs. 1000, the said sum to be reduced to Ks. 5 if the ring is returned within fourteen days. 16. Where an arbitrator or umpire has misconducted himself, the Court Power to may remove him. tratoror \imi)ire. 17. Any order made by the Court under this Act may be made on such Costs. terms as to costs or otherwise as the Court thinks fit. 18. The forms set forth in the Second Schedule, or forms similar thereto, Konus. with such variations as the circumstances of each case require, may be used for the respective purposes there mentioned, aiul, if used, shall not be called in question. 19. Where any party to a submission to which this Act applies, or any rowerto person claiming under him, commences any legal proceedings against any ;;„',,din«.s other party to the submission, or any person claiming under him, in respect •!, !;'I,',',,„',',is'. of any matter agreed to be referred, any party to such legal proceedings """'■ (j76 appendix of statutes may, at any time after appearance and before filing a written statement or taking any other steps in the proceedings, apply to the Court to stay the proceedings; and the Court, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings. Power for 20. The High Court may make rules consistent with this Act as to — to'Tnake""^ («) the filing of awards and all proceedings consequent thereon or ™'®*' incidental thereto ; (b) the filing and hearing of special cases and all proceedings consequent thereon or incidental thereto ; (c) the transfer to Presidency Courts of Small Causes for execu- tion of awards filed, where the sum awarded does not exceed two thousand rupees ; (d) the staying of any suit or proceeding in contravention of a submission to arbitration ; and, (e) generally, all proceedings in Court under this Act. Amendment 21. In s. 21 of the Specific Relief Act, 1877, after the words "Code of Act 1^1877. Civil Procedure " the words and figures "and the Indian Arbitration Act, 1899," shall be inserted, and for the words "a controversy" the words "present or future differences" shall be substituted. 22. The provisions of this Act shall be binding on the Crown. 23. (1) This Act shall apply within the local limits of the ordinary civil jurisdiction of the Recorder of Rangoon in cases where, if the subject-matter submitted to arbitration were the subject of a suit, the suit could, whether with leave or otherwise, be instituted within those local limits. (2) For the purposes of this Act, the local limits aforesaid shall be deemed to be a Presidency-town and the Recorder of Rangoon shall have all the powers of a High Court. THE FIRST SCHEDULE. (See s. 6.) Provisions to be Implied in Submissions. I. If no other mode of reference is provided, the reference shall be to a single arbitrator. II. If the reference is to two arbitrators, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award. III. The arbitrators shall make their award in writing wathin three months after entering on the reference, or after having been called on to act by notice in writing from any party to the submission, or on or before any later day to which the arbitrators, by any writing signed by them, may, from time to time, enlarge the time for making the award. THE INDIAN ARBITRATION ACT, 1899 677 IV. If the arbitrators have allowed their time or extended time to expire without making an award, or have delivered to any party to the submission, or to the umpire, a notice in writing stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators. V. The umpire shall make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired, or on or before any later day to which the umpire, by any writing signed by him, may, from time to time, enlarge the time for making his award. VI. The parties to the reference, and all persons claiming through them respectively, shall, subject to the provisions of any law for the time being in force, submit to be examined by the arbitrators or umpire on oath or affirma- tion in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire, all books, deeds, papers, accounts, writings and documents within their possession or power respectively which may be required or called for, and do all other things which during the pro- ceedings on the reference the arbitrators or umpire may require. VII. The witnesses on the reference shall, if the arbitrators or umpire think fit, be examined on oath. VIII. The award to be made by the arbitrators or umpire shall be final and binding on the parties and the persons claiming under them respectively. IX. The costs of the reference and award shall be in the discretion of the arbitrators or umpire, who may direct to and by whom, and in what manner, those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client. THE SECOND SCHEDULE. {See s. 18.) Form I. Submission to single arbitrator. In the matter of the Indian Arbitration Act, 1899 : — Whereas differences have arisen and are still subsisting between A. B. o and C. D. of concerning ; Now we, the said A. B. and C. D., do hereby agree to refer the said matters in difference to the award of X. Y. (Signed) A. B. C. D. Dated the 189 . Form II. Submission of particular dispute to single arbitrator. In the matter of the Indian Arbitration Act, 1899 : — Whereas differences have arisen and are still subsisting between A. B. of and C. D. of concerning ; 678 APPENDIX OF STATUTES Now we, the said A. B. and C D., do hereby agree to refer the said matters in difference to the award of X, Y. (Signed) A. B. C. D. •Dated the 189 . Form III. Appointment of single arbitrator under agreement to refer future differences to arbitration. In the matter of the Indian Arbitration Act, 1899 : — Whereas, by an agreement in writing, dated the day of , 18 , and made between A. B. of and C. D. of , it is provided that differences arising between the parties thereto shall be referred to an arbitrator as therein mentioned ; And whereas differences within the meaning of the said provision have arisen and are still subsisting between the said parties concerning ; Now we, the said parties. A. B. and C. D., do hereby refer the said matters in diflference to the award of X. Y. (Sigmd) A. B. C. D. Dated the 189 . Form IV. Enlargement of time by arbitrator by endorsement on submission. In the matter of the Indian Arbitration Act, 1899, and an arbitration between A. B. of and C. D. of : — I hereby enlarge the time of making my award in respect of the matters in difference referred to me by the within (or above) submission until the day of 189 . (Signed) X. Y., Dated the 189 . Arbitrator. Form Y. Sp)ecial case. In the matter of the Indian Arbitration Act, 1899, and an arbitration between A. B. of and C. D. of : — The following special case is, pursuant to the provisions of s. 10, clause (i), of the said Act, stated for the opinion of the * Here * : — OMu'tf '^'"^ (Here state the facts concisely in numbered imragraphs.) The questions of law for the opinion of the said Court are : — First, whether^ Secondly, whether — (Signed) X. Y., Dated the 189 . Arbitrator, THE INDIAN ARBITRATION ACT, 1899 679 Form VI. Aimrd. In the matter of the Indian Arbitration Act, 1899, and an arbitration between A. B. of and C. D. of : — Whereas in pursuance of an agreement in writing dated the day of 189 , and made between A. B. of and C. D. of , the said A. B. and C. D. have referred to me, X. Y., the matters in difference between them concerning {or as the case may be) ; Now I, the said X. Y., having duly considered the matters submitted tO' me, do hereby make my award as follows : — I award — (1) that (2) that. {Signed) X. Y,, Dated the 189 . Arbitrator. INDEX. ABANDOXMEXT of claim, 76. ABANDONMENT OF RAILWAYS ACT, 1850, reference as to compensation under, 9. ABRIDGMENT of time for proceedings, 2.38. ABSENCE, arbitrator, of, when proceedings may be in. 410, 411. third, of, 420. party, of, adjournment on, 377. effect of, 389-392. enquiries permissible in, 393, 394. evidence taken in, 174, 359, 361, 394, 413, 417, 421. explanations given in, 394. power to proceed notwithstanding, 395-397, 421. witness, of, effect of, 398. ABSURDITY in award, 228. ACCIDENT, railway, reference to settle compensation for, 9. ACCIDENT INSURANCE, arlntration clause in policy of, stav of proceedings where, 90, 103. ACCORD AND SATISFACTION, award as, 475, 476. defence to action on award, as, 274. ACCOUNT, admission of items not in dispute, 377. books of, production of, 372. builder's, reference to Master of, 401. closing of, new evidence after, 383. examination by accountant of, 394, 401. incorrect, award based on, 465. reference of question of, 81, 511, 525. stated, award as evidence of, 477. ACCOUNTANT, arbitrator's power to refer to, 394, 401, 403. report to arbitrator by, 383. ACQUIESCENCE, party, by, acts showing, 251, 416. burden of proving, 415. estoppel by reason of, 230, 418-421. excess of authority by arbitrator, in, 417 irregularity, in, 394. time, enlargement of, in, 342-345. umpire's appointment, in, 332. solicitor or agent of party, by, 3.33. third party, by, 480. ACT, award directing performance of, 226-228, 233. 080 INDEX 681 ACT OF BANKRUPTCY, award, in relation to, 301. execution as, 261. ACT OF PAELIAMENT, private, ousting jurisdiction of Court, 109. submission under, 8, 365. ACTION, agreement of parties not to bring, 73, 74. arbitrator and party, pending between. 62. by, for fees, 196, 487. award-as bar to, 463-468, 474-477, 538, 539. on, 260, 262, 264-276, 297. accord and satisfaction as defence to, 274. attachment, after, 265, 266, 274, 287, 295. attorney under power, by, 27. counterclaim in, remission on, 183, 275. defences to, 268-276. limitation as defence to, 265, 273. statement of claim in, 267, 643. submission under judge's order, in case of, 533. undertaking by party not to proceed with, 297. bond of submission, on, 267. commencing proceedings, what is, 88. costs of reference, to recover, 267. discontinuance after attachment of, 287. failure of reference under order of Court, on, 541. foreign Court, power to restrain, 68. in rem, in Admiralty, on failure to perform award, 463. prohibition in submission against bringing, 236. projiertv in hands of arbitrator, to recover, 481, 482. reference of, 2, 5, 35, 94, 364, 605. infant party, when, 20, 21. meaning of, 77, 78, 81. solicitor, by, 29. reservation in submission of right of, 463. revocation of submission, in respect of, 46. right of party to reference to bring, 74. stay of. See Htay of Proceedings. step in proceedings, meaning of, 95. ADDITION of parties, in ref(;rence under order of Court, 538, 553. ADJOURNMENT, application for, 389. discretion as to, 376. instruction of counsel, for, 379. party unable to attend, where, 377. refusal of reasonable, effect of, 200, 389. statement of case, with a view to, 304, 307. ADMINISTRATOR, award as evidence of assets in hands of, 478. reference by, powers as to, 29. ADMIRALTY TRANSPORT ARBITRATION BOARD, r.lcience to, 305. ADMISSIBILITY of evidence. See Evidence. ADMISSION, arbitrator, by, after making award, 248. evidence as to, 276, 393. items, of, 377, 393. ADVANCE to party, by arbitrator, ell'ect of, 39. 682 INDEX ADVERTISE]\rENT, service of notice on party by, 128. AFFIDAVIT, arbitrator, of, as to award, 246, 385. attachment, in disproof of liability to, 285. with a view to, 284, 286, 292-294. attesting witness to award, of, 294. award, verifying, 244, 245, 293. documents, of, power to order, 369, 370. enforcement of award, with a view to, 263. examination of witness bj', 137. filing, whether a step in proceedings, 96. habeas corpuf, with a view to, 302. referee, with a view to reference to, 503. referee's report, with a view to setting aside, 569. remission, with a view to, 182. setting aside award, in answer to motion for, 246. with a view to, 231, 241, 243-246, 248, 252. statement of case, with a view to, 307. stay of proceedings, with a view to, 115, 607. subpoena, on application for, 302. AFFIRMATION, examination of witness on, 135, 356, 357, 371. form of, 613. AGENT, acquiescence on behalf of party by, 333. attendance of party by, 28, 379. authority to, form of, 27, 28. award directing ];iayment to, 459. demand for performance by, 289. indemnity of, 26. party to submission, when, 120. production of power of attorney by, 290, 294. signature of submission by, 316. submission by, 25-28. tender of performance by, 473. AGREEMENT, Court's jurisdiction, excluding, 304. figui-es, &c., as to, 377. finality of award, for, 203, 204, 305, 420. mutual, as to choice of arbitrator, 131. payment of less than sum awarded, for, 274. preventing dispute, M-hen not a submission, 318. statement of case, dispensing with, 304. See also Contract. AGREEMENT TO REFER, action impeaching, 67. Arbitration Act, 1889, in relation to, 52. arbitration clause as. See Arbitration Clause. binding nature of, 98, 99, 110. consent of Court, when necessary, 5. construction of, opinion of Court as to, 66. foreign Court, to, 321. form of, 314, 591-599, 605, 606. future or contingent claims, as to, 83, 84, 317. illegal, 67. indorsed on counsel's brief, 315. inspection of, on motion to set aside, 248. jurisdiction under, when arising, 317. limited to one part of United Kingdom, 322. INDEX 683 AGEEEMENT TO REFER— continued. matter outside. See Jurisdiction. meaning of, 312. out of Court, 282. pleading of, 267, 268. referring back, provision for, 163. release from, grounds for, 98, 101. repudiation by party of, 110. I'e vocation of, 49, 313. signature of, 315. specific performance of. See Specific Performance. submission, as a, 88, 152. distinguished from, 49, 313. time, provisions as to, 154, 155, 159. two or more agreements constituting, 72. valuation, for, 51. void, 67. written, what amounts to, 317. AGRICULTURAL HOLDINGS ACT, 1900, appointment of umpire under, 328. AGRICULTURAL HOLDINGS ACT, 1908, arbitration, provisions for, 17. arbitrator under, condemned in costs, 254, 255. award of County Court judge under, appeal from, 256. AGRICULTURAL HOLDINGS ACT, 1914, arbitration provisions of, 17. ALIGNMENT MARKS, reference to settle compensation for damage by reason of, 16. ALLOTMENT, subject-matter of reference, as, 8. title to, award vesting; 466, 467. ALLOTMENTS AND COTTAGE GARDENS (COMPENSATION FOR CROPS) ACT, 1887, arbitration provisions of, 17. ALTERATION, award, of, power of CJourt as to, 463. submission, of, powers as to, 374, 537. See also Amendment. ALTERNATIVE, award in, 169, 220, 227, 228, 286. AMBIGUITY, award, in, 165, 444. submission, in, 408. AMENDMENT, award, of, power of Court as to, 463. improper, of record, 166. pleading, of, jjower t(j allow, 374, 375. submission, of, by order of Court, 537. See also Mistake. AMOUNT, , , . awarded, agreement of parties to take less than, 2/4. attachment of, 274. certainty required as to, 143, 224. Court's power as to, 143. interest on, 267. lump sum, by way of, 216, 270. mistake in regard to, 149. set-off against, 297. specialty debt, when, 464. remuneration of arbitrator, of, 494. 684 IXDEX APPEAL, attachment order, against, 286. award, from, 35. committee of trade association, to, 34. Divisional Court, from, to Court of Appeal, 307, 308. enforcement of award, from order of Master as to, 264. judge, from, 66, 146. in Chambers, from, 307. Master's order, from, 66, 264, 307, 531. matter of, reference of, 5. notice of. See Notice. ousted by reference, how far, 5. referee, from, 530, 565-570. reference for trial, in case of, 530. to Master under Order XIV., 531. remission, as to, 186. setting aside, as to, 255, 256. special case, as to, 146-148. statement of case, as to, 307, 308. stay of proceedings, as to, 116. waiver of right of, 146. APPLICATION, adjournment, for, 389. appointment of arbitrator, for, 117, 127. attachment, for, 29 f, 293. County Court judge, to, to set aside award, 236. leave to enforce award, for, 263, 264. meaning of, 236. non-appointment of umpire, on, 329. reference before trial, for, 503. remission of award, for, 182-187. set aside award,"to, 236-256. County Court judge, to, 236. opposition to, 246, 248-252. second, 253. statement of case, with a view to, 307. stay of proceedings, for, 114. taxation of arbitrator's fees, for, 196. time, enlargement of, with a view to, 159. APPOINTMENT, arbitrator of, by Court, 116-128. distinguished from nomination, 121. duty to see that in order, 366. form of, 126, 608. joint, 126. lot, by. See Lot. mode of, 324, 325. mutual agreement, by, 131. necessity of, 133. new, 63, 129, 134. none named in submission, where, 364. notification of, 126, 133, 363-365. parol, 323. same subject-matter to be dealt with by lioth, 132. setting aside of, 129, 133, 134. several appointed, where, 325. stamp on, 325. two or more persons, by, 126. umpire, of, 124, 201, 325-334. APPORTIONMENT of costs, 575. INDEX 685- APPRAISEMENT, award distinguished from, 318, 320, 440. APPRENTICE, award with reference to, 446. ARBITRATION, appointment of arbitrator necessary to, 133. compulsory, revocation of, 69. condition precedent, as, ouster of jurisdiction of Court in case of, 110. corruption, procured by, 193. ditference necessary to, 133. judicial character of, 139, 358-361. jurisdiction of Court ousted by, 110. matter within Order XXXVII. , r. 5, whether, 138. nature of, 33, 56, 378. nothing to refer, interference of Court in case of, 68, 90. party incapable, objection on account of, 230. ready and willing to do all things necessary to conduct of meaning of 96. statutory, application of Arbitration Act, 1889, to, 69. revocation of, 69. setting aside award under, 235, 236. statement of case in, 306. stay of proceedings in favour of, 109. undue means, procured by, 193, 194. usual manner, in, meaning of, 81. valuation, distinguished from, 51. waiver of right to. See Waiver. what matters cannot be referred, 5. may be referred, 1. who may refer to, 18. See also Agreement to Refer ; Reference ; Suhmission. ARBITRATION ACT, 1889, agreement to refer need not expressly incorporate, 52. application of, 12, 52, 311. authority under, orders of, 309. chief feature of, 44. commission to talie evidence under, 138. Common Law Procedure Act, 1854, relationship to, 44. compulsory reference under, 163. conduct of reference, and, 356. construction of, generally, 44. enforcement of award under, 258-263. general scope of, 44, 310, 653-659. ipso facto application of, 52. limitation to application of, 311, 323. object of, 44, 56. orders made by authority under, 309. reference by order of Court outside, 531-533. repeal of enactments by, 311, 657. Scotland and Ireland, not applicable to, 323, 658. setting aside under, 194, 198-206. short title of, 324, 658. statutory arbitrations, application to, 69, 310, 311, 365. Supreme Court of Judicature Acts, 1873 and 1881, relationshii- to, 14. ARBITRATION CLAUSE, binding force of, 50. building contract, in 92. charter-party, in, 314. company's articles of association, in, 317. conflict of laws as to, 323. contract, in, 50, 52, 315, 364. form of, 604. incoriDoration in another instrument ol, cl4. 686 INDEX ARBITRATION CLAUSE— continued. lease, in, 315. partnership articles, in, 316. policy of insurance, in, 317. powers under, 75. submission by, 364. imfair terms in, 98. ARBITRATOR, acceptance of office by, 366. act done by, when fundus officio, 433. action by, for fees, 196. adopting opinion of another person as his own, 269. advancing sum to party, effect of, 39. appointment of, agreement to refer, in, 49. Companies Clauses Act, 1845, under, 48. Court's power as to, 100, 116-128. (hity to see that in order, 366. evidence of submission, as, 51. executor of deceased party, by, 31. failure of party as to, 100, 397, 407. Lands Clauses Act, 1845, under, 48. lot, by. See Lot. mode of, 324, 325. mutual a^a-eement, by, 131. new, on death, &c., 63, 129, 134. none named in submission, where, 364. notification of, 126, 133, 363-365. parol, 323. person in official position, by, 120. Railway Companies Arbitration Act, 1859, undei', 48. Railways Clauses Act, 1845, under, 48. reference out of Court, in, 424. refusal to nominate, procedure on, 51. third person, by, 121. " arbitrators " includes single arbitrator, 335. architect under building contract as, 37, 320, 408. assignment of claim to, effect of, 43. ■authority of, commencement of, 338. delegation of, 199, 221, 399-406, 409. excess of, 57, 59, 60, 67, 229, 233-235, 274, 289, 415-417. general, 2, 3, 33, 81, 135-151, 363,368. implied, 369. irrevocability of, 49, 324. limitation of, 63, 81. matters accruing before and after submission, as to, 83. submission defining, 76, 371. termination of, 38, 179, 232, 342, 368, 398. award as evidence for, 481, 482. barrister as, 11, 246. bias of. 8ee Bias ; Interest; Partiality. breach of contract by, 197. 1)ribery of, 248. " called on to act," meaning of, 336. calling witness on own account, 388. collusion of party with, 110. concealed interest, disqualified on account of, 37. condemned in costs, when, 254, 255. conduct of reference by. See Conduct of Reference. €onferring with party appointing him, 408. consultation of Court on question of law by, 55, 305. of third persons bj% 400-402. •contract of employment, acts under, 196. INDEX 687 ARBITUATOR— continued. corruption of, 68, 197, 204. costs, power over. See Costs. Court without power to appoint, jurisdiction of, 98 100 death of, 63, 333, 334, 397. debtor to party, effect of, 39, 68, 69. definition of, 33. delegation by, 199, 221, 399-406. to one another, 409. of duties of, 394. departing from judicial rules, 199, 362. difference of opinion among, deference to one in case of, 409. disagreement of, 348, 409. discretion of, 362, 375, 376. scrutiny of, 276. disqualification of, 33, 34, 57, 62. during proceedings, 62. ignorance of, 424. disregard of law by, 199, 362. •duty of, commencement of, 366. enlargement of time, as to, 157, 342, 368. evidence, as to, 57-59, 70, 377, 380-382. generally, 358-363, 400-402, 406, 407. employed by party in another capacity, 38, 205. engineer as, 38, 40-42. enlargement of time, duty as to, 157, 342, 368. evidence, duty as to, 377," 380-382. receiving inadmissible, 57-59, 70. excess of jurisdiction by, 57, 59, 60, 67, 229, 233-235, 274, 289, 415-417. excessive charge by, 196, 203. excluding person entitled to be present, 199. ex parte, proceeding, 199, 395. ex]:)lanations as to award by, 246. failure or neglect of, act, to, 63, 123. time for award, as to, 63, 353. fees of. See Fees ; Bernuneration. final decision by, stipulation for, 305. fluctuating body as, 34. foreign Court as, 36. fraud of, 165, 197. functus officio, acts done after, 433. remission to, after, 179. when, 179, 232, 342, 368, 398. ignorance of, as to contents of award, 245. impartiality required of, 37. implied powers and duties of, 358. improper receipt or rejection of evidence by, 199, 208. incapacity of, 63, 397. insulting conduct towards, 378. interested party as, 37, 42, 62, 414. joint actifni by, j:e((uired, 410. duties of, 406-411. separate action Ijy, 408, 409. judge as, 35, 206, 209, 212. compared with, 33. judicial cliaracter of functions of, 318, 358-360, 362, 406-408. ])rocedure, Ijound to follow, 380. jurisdiction of. See Jurmliction. law, question of, Y)0wer over, 53. lawyer as, consultation of other lawyers by, 404. lay, professional assistance to, 405. legal as distinguished from lay, 207, 209. liability for breach of conti'act by, 197. 688 INDEX ARBITRATOR— continued. lien of. See Lien. limited powers of, as a ground for refusal to stay proceedings, 98. majority to decide, provision for, 410. member of particular association as, 203. misconduct of. See Misconduct. misleading or deceiving, 204. mistake of. See Mistake. mutually agreed upon, as distinguished from separate choice, 131. negligence of. See Negligence. new, appointment of, 123, 129, 130, 134, 333, 334. remission of award to, 179, 180. non-appointment of, procedure on, 51. none named in submission, procedure in case of, 324, 364. . notes of, inspection of, 248. number usually appointed, 123. officer of Court, as, 366, 42.5. omission of, to deal witli matters brought to his attention, 269. to execute award at same time, 269 opinion of counsel, stating case for, 142. of Court, acting on, 55, 305. of third person, adopting, 269. parol appointment of, 323. partiality, guilty of. See Partiality. payment to, direction in award for, 459. personal action by, required, 408. powers and duties of, 135-151, 216, 400. implied, 358, 369. remitted award, in, 187-190. submission, defined in. 76. time, as to, 157, 342, 368. presence of all at hearing, recjuired, 410. privilege of, judicial, 275, 276. professional assistance to, 403-405. property of, benefiting by award, 41. Public Health Act, 1875, s. 150, jurisdiction under, 10. qualification for, 33. question submitted to, must deal with, 132, 216, 386. referee under order of Court, distinguished from, 365. refusal of, act, to, 57, 117, 118, 120, 121, 123, 125, 333, 334, 386, 411. appoint umpire, to, 328. concur in award, to, 411. hear evidence, to, 58, 59, 62, 398. relationship to party, effect of, 37, 202. removal of. See Removal. remuneration of. Sec Fees ; Remuneration. reservation by, on .stating special case, 148. revocation of authority of, 46, 57, 60. marriage of female party, on, 19. same subject-matter to be dealt with by each, 132. secretly informed by one side, 361. • several, all must concur where, 433. shareholder in interested company as, 38. signing at different time or place, 2T0. single, reference to, 117-119, 324, 335. sitting with umpire, 347, 412, 413. skill and knowledge required of, 105, 373. sole, appointment of, 51, 93, 130, 134, 407. award by, 129, 130. some only acting, effect of acts of, 341. special case, power to state, 53, 55, 302-308. referee, distinguished from, 425, 426. specially qualified, reference to, 105. INDEX 689- ARBITRATOR— conti7iued. stakeholder, as, 47. statement by, subsequent to award, 248. statutory. Common Law Procedure Act, 1854, s. 13, under, 51. discretion as to evidence of, 394. statutory declaration by, 367. steward of race as, 36. substitution of new, on death, &c., 333, 334, 397. taken by parties for better or for worse, 206, 209, 212. third, appointment of, by arbitrators, 408, 410. bv Court, 116, 118, 126, 127. by lot, 201. distinguished from umpire, as, 420. duties of, 125. ' refusal to act by, 125, 411. three, reference to, 123, 130, 408-410. treating, 205. trustee as, 38. two and a third, reference to, 131, 408, 410. same subject-matter to be dealt with by all, 132. umpire, sitting with, 347, 412, 413. unanimity of, required, 270. unfairness on part of, 199. usage giving latitude to, 361. valuer, distinguished from, 52, 318, 319, 360. view by, 373. who may act as, 33. witness, acting as, 41, 275, 276, ARCHITECT, arbitrator, as, 37, 320, 408. bias of, 202. fraud on part of, 197. negligence on part of, 196. ARREST, attachment, on, 295. privilege of parties and witnesses from, 139, 283. ASSAULT, reference of claim arising out of, 7. ASSESSOR, assistance of, 584. ASSIGNEE, reference by, 27. ASSIGNMENT, arbitrator, to, by party, 43. party, by, of contingent rights under award, 468. ASSOCIATION, selection of arbitrator from, 203. ATTACHMENT, action on award after, 265, 266, 274, 287, 295. appeal from order for, 286. application for, 291, 293. arbitrator, of, for refusing to hand award over, 196. collusive non -performance of award, in case of, 470. costs, payment of, enforced by, 440. relative to, 295, 296. cross motions for, 295. discharge from, 295. dismissal of proceedings for, 296. enforcement of award after proceedings for, 265, 266, 274, 287, 295. by, 5, 262, 281-296, 448. enlargement of time, after, 290, 293. 44 690 INDEX ATTACHMENT— conimwet^. grounds of opposition to, 284-289. party outside jurisdiction, in case of, 282. privileged from, 283, 285. performance, when not enforceable by, 408. personal representative, against, 65. jjractice in regard to, 291-296. public officer, of, 32. referee, by, 553. refusal of, does not decide validity of award, 286. in what cases justifiable, 282-289. revocation of submission made rule of Court, for 46. second application for, 293, 295. service of documents on motion for, 290, 291, 294. setting aside of, 295. special referee's jjowers as to, 428. specific performance, as a defence to action for, 278. ' statutory provisions as to, 281. stay of proceedings for, 295. submission not a rule of Court, where, 282 sum awarded, of, by third party, 274. ATTESTATION, award, of, 436. ATTORNEY. See Solicitor. ATTORNEY-GENERAL, reference by consent of, as to charity, 3. ATTORNEY, POWER OF. See Pov:er of Attorney. AUTHORITY, arbitrator, of. See Arbitrator. party's agent, of, to submit, 27. AUXILIARY RELIEF, power of Court to grant, 113. AWARD, absurd conclusion, containing, 228. acquiescence of party in, effect of, 251. act, directing performance of, 226, 227. action, as a bar to, 463-468, 472, 474-477. costs of, awarding, 226. to be abandoned, directing, 218. affidavit of execution of, 244. verifying, 293. affirmative or negative finding in, 142. agreement of parties not to impugn, effect of, 420. to take up in any event, 204. all arbitrators must join in, 433. alteration of, powers as to, 149, 150, 463. alternative, in, 169, 220, 227, 228, 286. ambiguity in, 165. amendment of, powers as to, 149, 150, 463. remi.«sion after, 179. amount due, ascertaining, but not the liability to pay, 261. not ascertaining, 225, 226. applicability of, scope of, 465. appraisement, distinguished from, 318, 320, 440. arbitrator, as evidence for, 481, 482. attestation of, 294, 436. bad direction in, effect of, 458. excess of jurisdiction, for, 76, 93. face, on, setting aside of, 210, 211. lump sum given in respect of distinct injuries, where, 270. INDEX 691 AAVARD — continued. had partly, bad part not separable, 222, 300. separable, 162, 232, 458. specific performance of, 280. procedure in case of, 164-168. balance found due, of, 219. bar to an action, as, 463-468, 472, 474-477. bill of costs, directing delivery of, 226. exchange, ascertaining property in, 225. binding character of, 432, 468, 477. bond, directing execution of, 227. breach of promise to perform, revocation as, 47. what constitutes, 471, 472. calculating amount, showing manner of, 226. case stated for opinion of counsel as, 142. certain amount, of, not a bar to defence of illegality in action on, 465. event, voidable on, 220. certainty required in, 143, 224, 226, 432, 456, 457. clerical mistake in. See Mistake. completeness of, presumption as to, 219. conclusive of law and fact, how far, 168, 169. concurrence of arbitrator in, 411. conditional, 219. conduct of parties, directing as to, 446-462. confusing penalty and stipulated damages, 229. consistent, must be, 228, 432. construction of, principles of, 468. contemporaneous document, partly in, 210. contingent claim, as to, 83, 84. right of party under, power to assign, 468. continuing damage, in case of, 456. contradictory, 228. conti'ary to evidence, reopening, 179. conveyance, operating as, 2, 466. co-ordinate with submission, must be, 214-216, 229, 230, 375, 432, 433. copy of, party, for, 436. service of, with a view to attachment, 290, 294. verification of, 244, 263, 640. costs, awarding, 226, 228. left unascertainable in, 218. of. See Costs. ■crime, directing commission of, 448. damages not sepai-ated in, 218. omitting to assess, 218. debt, finding sum claimed to be, 229. deciding matter before execution of submission by all parties, 338. deed, delivered as, 441. defect on face of, 210, 284, 285. defence, set up by way of, 269, 284, 285, definition of, 33. delegation of arbitrator's duties by, 402. delivery of, 437-439. of property, for, 227. denial of making of, as a defence, 268. discovery of fresh evidence after, 177. doubtful meaning, of, enforcement wliere, 285. validity, of, as defence to attachment, 286. enforcement where, 262. drawn by attorney, 403, 405, 435. effect of, generally, 462-468. employment of professional assistance in drawing, 403, 405, 435. enforcement of. See Enforccmmt of Awnrd. iinlargement of time for. See Enlargement of Time. 692 INDEX AWARD — continued. entirety of, necessitating dealing with all points of claim, 214, 218, 375. error in. See Mistake. estoppel by, 6. evidence, as, 477-483. impeachment of, 482. discovery of fresh, aftei-, 177. excess of jurisdiction, in. See Jurisdiction. execution of, formalities of, 410, 433, 436, 640. instrument, directing, 223. executor or administrator, how far binding on, 30, 31, 227. extension of time for. See Enlargement of Time. extortionate charge in, 240. facts found liy, how far disputable, 272. false recital in, 445. final, not, eftect of, 214, 218, 221, 222, 249-251. finality required in, 164, 170, 171, 209, 212, 272, 305, 432, 462. fixtures, directing replacement of, 229. foreign, action on, 266. form of, requisites as to, 219, 433-435, 444, 445, 618-639. fraud, impeachable for, 203. fresh or supplemental, 189. Friendly Society dispute, in, 13. future claim, as to, 83, 84. debt, as to, 230. haste, made in too great, 401. husband, in favour of, whether a reduction into possession, 19. illegal act, directing, 448. tran.saction, confirming, 233. illegality tainting, 4, 465. impeachment for fraud of, 203, impossible, 228. improperly procured, 192, 194, 203. inconsistent, 228. indemnity, of, 229, 453. infant, atiecting, 20. intelligible, must be, 228. interest, directing as to, 450, 451. interested party, arbitrator an, bad by reason of, 202. interlocutory, power to make, 397. Interpleader Act, 1831, order under, as, 35. invalid, becoming, after remission, 180. estoppel where, 6. invalidity of, pleading of, 269. irregular, 269. irrelevant matter in, eftect of, 233. joint and several performance of, 24, 83. execution of, 436. umpire and arbitrators, of, 433. judgment referred, Avhere, 463. to be entered simpliciter, deciding, 218. judicial act, delegating, 221, 222. authority, reserving, 221, 222. law and fact, how far conclusive of, 168, 169. question of, dealing with, 143. legally correct, should be, 363. lien on, for arbitrator's charges, 196, 439, 488. loss of, 294. lump sum, of, 216, 270. majority, of, provision for, 410. market price, to pay for machinery at, 225. matters not brought to arl)itrator's notice, whether aft'ected by, 215.. not decided by, whether a defence to attachment, 284. outside scope of reference, as to, 250, 299, 300. INDEX 693 AWARD — continued. miscarriage of justice by, 362. mistake in. See Mistake. mortgagee to reassign mortgaged premises, directing, 227. mutual releases, ordering, 216, 219, 224. negative finding in, 142. neglect of arbitrator to make, 63. new evidence discovered since making of, effect of, 231. non-performance of, remedy in case of, 276-280. not ascertaining amount due, &c., 225, 226. deciding every issue, 166, 173, 214, 218. directing how reference to be effectuated, 216. made and published modo et forma, 268. stating for whom the cause is decided, 218. taken up, privilege of arbitrator in case of, 276. taking note of new demand arising before submission, 217, 219. notice of, to parties, 268. nuisance, abatement of, directing, 227. objection to. See Objection. obligatory nature of, 432, 468, 477. omission in, rights in case of, 150, 166, 173, 214, 216, 218. omnia prcesumimtar rite esse acta, 207, 218, 359. one or several, power to make, 217. order of Court, made, effect of, 463. under Interpleader Act, 1831, as, 35. parol, validity of, 434. part of, enforcement of, 299, 300. remission of, 161, 162, 180. performance of, effect of, 280. l)artially bad, enforcement of, 162, 232, 458. particular instances of, 446-462, 618-639. partnership matters, as to, 23, 230. party to perform, should identify, 227, 228. payment of money, for, 282. to A. or B. in the alternative, directing, 228. to uncertain person, directing, 228. penalty and stipulated damages, confusing, 229. performance of, conditioned by bond, 72. directed to be at time already past, 228. what is sufficient, 468-474. performed as far as possible, as a defence, 285. periodical, e.g. assessing damages from time to time, 84, 339. personal representative bound l^y, when, 65. deliveral)le to, 65. undertaking by partner to perform, 24. pleading of, in bar of action, 538, 539. possible of performance, must be, 228, 432. precise, reasonably, should be, 227. premises, of and concerning, 214, 219. presumption in favour of, 207, 218, 359, 360. ^ professional assistance employed in drawing, 403, 405, 435, d84. property, disposal of, directing as to, 2, 227, 446-462. publication of, 237, 238, 436, 437, 641. ready to lie delivered, when, 64, 437^ reasonable time, not made within, 275. receiver, appointing, 230. recitals in, effect of, 290, 444, 445. rectification of, 171. referee, of, 557-564. referring back of. See Remission.. release, directing execution of, 216 219, 224, 227. remission of. See llemiifsion. reopening. See Reopening. 694 INDEX AWARD — continued. reputation, evidenced from, 481. reservation in. See Reservation. retention of, pending payment of costs, 196, 439, 488. revocation of subjnission, made after, 46, 230, 284. scheme of section relating to, 429-432. scope of applicability of, 465. second or supplemental, power to make, 150, 166, 189. separability of good and void parts of. See Scjutrahilitij. separate findings on different heads of claim in, 173. service of copy of, with a view to attachment, 290, 294. set-oft', failing to ascertain amount of, 218. setting aside. See Settinfi Aside. several arbitrators, by, 433. persons, against, 282. power to make, 217, 433. signature of, 270, 436. sole arbitrator, by, 129. solicitor, directing payment to, 228. special case, in form of, 53, 135, 140-149, 307. remission of, 180. specific performance of, 276-280. stamping of, 436, 440-443. when unnecessary, 319. Statute of Frauds, unenforceable by reason of, 280. statutory arbitration, in, 235, 236. declaration to be annexed to, 368. stranger, aft'ecting, 458-462. evidence for, 481. joining in, effect of, 433. submission, co-ordination with, 214-216, 229, 230, 375, 432, 433. revoked, after, 46, 230, 284. sum awarded by, agreement of parties to take less than, 274. attachment by third party of, 274. .supplemental, form of, 189. power to make, 150, 166. remission, after, 189. suspension of, on remission, 181. taxation of costs, directing, 229. temporary effect only, with, 463. time already past, to be performed at, 228. for making, 63, 366. enlargement of, 83, 152-159. umpire, by, 350-354. made after, 269, 275, 284, 353. effect of enlargement of time where, 156, 157, 417. title of estate, as to, 229. tort, directing commission of, 230. transfer of property, operative as, 2, 466. tre.spass, directing, 230. trust estate, directing apportionment of, 226. two out of three arbitrators, of, 124. ultra vires, 474. umpire, of, 158, 270, 433. time for, 350-354. void, when, 349. unanimity among arbitrators required for, 270. uncertainty, bad for, 165-167, 207, 218, 221, 224, 225. pleading of, 242. unreasonable, specific performance of, 278, 279. unsatisfactory reasons stated in, effect of, 209. validity of, impugning, 268-276. requisites to, 432. INDEX 695 AWARD — continued. valuation as distinguished from, 318, 320, 440. void, happening of certain event, on, 220. wholly or partially, 230. waiver of objection to, 230, 231. writing, when to be in, 335, 434 Avrongly deciding, relief in case of, 3, 465. remission in case of, 170. BALANCE, award of sum found due as, 219, 224. BANKRUPT, assignees of, motion to set aside by, 236. submission hy consent of, 421. submission to arbitration by, powers as to, 21. BANKRUPTCY, act of. See Act of Bunh-uptcy. arbitration proceedings, during, 301. Bankrupt Law Consolidation Act, 1849, reference under, 231. committee of inspection, submission by consent of, 32. enforcement of award after, 301. excuse for not pi'oceeding to set aside award, as, 240. party to reference, of, effect of, 65. petition in, founded on penalty in arbitration bond, 301. proof in, for amount on award, 301. revocation of submission on, 89. trustee in, person claiming through or under a bankrupt, whether a, 89. revocation of submission by, 65. submission by, 21, 32. BARRISTER- AT-LAAV, arbitrator who is, affidavit on motion to set aside of, 246. authority to refer of, 29, 534, 535. case submitted to, 142. should be shown to both parties, 406. consultatioli of, 223, 404. drawing np award, costs of, 488. professionally related to solicitor, effect of, 39. reference to, under Municipal Corporations Act, 1882, s. 153, 11. settlement of deed 1)y, award flirecting, 223, 224. submit or refer, authority of counsel to, 29, 534, 535. See also Counsel. BASTARDY, reference of matter relating to, 5. BEFORE, interpretation of the term with reference to time of award, 339. BIAS, affidavit as evidence of, 246. arbitrator should be free from, 199, 390. architect under building contract, on part of, 202. conference with party appointing arbitrator as suggestive of, 408. legal proceedings pending l)et\veen arlfitrator and party, inferred from, 62. liability of arbitrator for showing, 197. objection, submitted by way of, 271. refusal to stay proceedings, as ground for, 101, 106. setting aside award on account of arljitrator's, 165. test of, 206. See also Interest ; Partiality. BILL OF COSTS, direction in award for delivery of, 226. BILL OF EXCHANGE, property in, award settling, 225. 696 INDEX BILL OF LADING, incorporation of charter-party arbitration clause in, 314. reference of dispute under, 80. BLIND arbitrator, whether disqualified, 34. BOARD OF TRADE, Consolidation Act, 1896, nomination of arbitrator under, by, 12. Electric Lighting Acts, 1882 and 1888, nomination of arbitrator under, liy, 11. Light Railways Act, 1896, nomination of arbitrator under, by, 10. railway cases, nomination of arbitrator in, Ijy, 91. reference to arbitrator nominated by, 109, 1.35. Regulation of Railways Act, 1868, nomination of arbitrator under, by, 9. umpire, nomination of, by, 328. BOND, award directing execution of, 223, 227. conditioned by performance of award, 72. submission by, 72, 603. of, action on, 267. evidence as to, 267. penalty in, petition in bankruptcy based on, 301. BOOKS, award directing delivery of,. 227. BOUNDARY, reference to settle, 2, 4, 8. BREACH, award, of, wdiat constitutes, 47, 471, 472, contract, of, arbitrator, by, 197. reference to arbitration of, 1. promise, of, reference to arbitration of, 1, BRIBERY of arbitrator, effect of, 204, 248. BRIEF, submission indorsed on, 315. BRISTOL CORPORATION ACT, 1904, award in reference under, 144. BUILDING, reference as to line of, under Public Health Act, 1875, 10. specific performance involving operations of, 280. BUILDING CONTRACT, arbitration clause in, scope of, 92, 604. architect under, as arbitrator, 202, 320. certificate of, as condition precedent to action by contractor, 110. collusion with, on part of building owner, 110. duty of, 408. engineer under, duty of, 408. submission, when not a, 320. BUILDING SOCIETIES ACT, 1874, reference under, 14. BUILDING SOCIETIES ACT, 1894, reference under, 306. CALLED ON TO ACT, meaning of, 336. CANAL, reference with regard to interference with, 10. CASE STATED. See Special Case. CAUSE, reference of, meaning of, 77, 78. See also A ction ; Reference. CEMETERY, reference to settle compensation for lands used as, 9. INDEX G97 CENTRAL OFFICE, special case to be taken to Writ Department of, 145. CERTIFICATE, architect, of, as condition precedent to action, 110. cause lit to be tried, of, form of, 636. costs, for, 581. • CHAMBERS, application in, to stay proceedings, 114, 115. See also Judge; Master. CHANCERY DIVISION, application to enforce award in, 263. attachment in, 291, 292. CHARGE, arbitrator's. See Fees ; Remuneratio7i. CHARITY, reference of question affecting, 3, 454. CHARTER-PARTY, arbitration clause in, construction of, 104. incorporated in bill of lading, 314. reference of dispute arising under, 80. CHATTEL, reference of dispute concerning, 1. CHILD of intestate, award affecting, 620. CITY OF LONDON, custom as to women trading in, reference involving, 18. CLAIM, abandonment of, effect of, 76. arising after reference, position of, 83, 84, 465. future, jurisdiction of arbitrator over, 83, 84, 465. illusory, not a fit subject for reference, 90, 91. made in action, reference of, 94. particulars of, delivery of, 369, 373. points of, delivery of, 369, 373. striking out substantial ground of, 374. withdrawal of, 375. CLERICAL ERROR. See Mistake. CLERK, honesty of, award as to, 624. solicitor's, authority in reference of, 29. COAL MINES ACT, 1911, provisions for reference in, 17. COAL MINES REGULATION ACT, 1887, reference under, 328, 347. COLLUSION, arbitrator, on jtart of or with, 75, 110, 255. non-performance of award, in, 470. COMMENCEMENT of proceedings, what is, 88. COMMERCIAL ARBITRATION, procedure in case of, 392. COMMISSION TO TAKE EVIDENCE, abroad, 138, 550. reference under order of Court, in, 428, 550. COMMITTAL, referee's power as to, 428, 553. workmen's compensation, by way of enforcing ]>aym(;nt of, 260. See also Attachment. 698 INDEX COMMITTEE, inspection, of, consent to reference by, 32. lunatic, of, submission by, 21, 31. COMMON, compensation on extinguisliment of, reference to settle, 16. on inclosing of, reference to settle, 8. COMMON INTEREST, party having, how far bound by reference, 24. COMMON LAW PROCEDURE ACT, 1854, submission as a rule of Court under, 258. COMPANIES CLAUSES CONSOLIDATION ACT, 1845, appointment of arbitrator under, 48, 127, 134, 328. costs of reference under, 495. death not a revocation under, 65. examination of witness under, 138. ex parte, power of arbitrator to proceed, under, 397. new arbitrator, appointment of, under, 127. reference under, 8, 11. umpire, appointment of, under, 328. COMPANIES CONSOLIDATION ACT, 1908, reference under, 8. COMPANY, arbitration clause in articles of association of, 317. difference with member, reference of, 80. enforcement of award against, 298, 299. COMPENSATION, Abandonment of Railways Act, 1850, under, 9. appointment of arbitrator in reference with a view to, 134. Cemeteries Clauses Act, 1847, under, 9. Copyhold Act, 1894, under, 17. Crown Lands Act, 1866, under, 16. Defence Act, 1854, under, 16. Inclosure Acts, under, 467. Lands Clauses Acts, undei% 8, 262. Light Railways Act, 1896, under, 10. Metropolis Local Management Act, 1855, under, 11. * Military Lands Act, 1892, under, 16. Military Man(t'uvres Act, 1897, under, 16. Public Health Act, 1875, under, 10. Railways Clauses Act, 1845, under, 9. Kanges Act, 1891, under, 16. Eegulation of Railways Act, 1868, under, 9. severance damage not provided for, effect of, 217. statutes, references under various, 8-17. COMPLAINT, reference of, meaning of, 77. CONCEALMENT, fraudulent, effect of, 38, 204. ignorance of parties, effect of, 37. what interests should be disclosed, 38. CONCILIATION ACT, 1896, reference under, 12. CONDITION, conditional award, effect of, 219. CONDITION PRECEDENT, arbitration a, ouster of Court's jurisdiction where, 90, 110. jurisdiction of arbitrator, to, 93, 94. INDEX 69^ CONDITION PRECEDENT— continued. performance of award, to, act of stranger as, 460. condition to attachment, as, 294. pleading of, 268. to, non-performance as a defence, 285. statement of case, to, improperly im]iosed, 304. submission, to, performance of, 366. valuation as, to right of action, 113. CONDUCT of party, as a bar to proceedings to set aside award, 251, 252. CONDUCT OF REFERENCE, Arbitration Act, 1889, provisions of, 356. delivery of particulars, 369. departure from ordinary rules in, 359, 360, 362. discovery of documents, 369-372. discretion of arbitrator as to, 198, 379. generally, 356-429. judicial rules to be followed in, 359, 360, 362, 371. i-eference to referee, in case of, 549-554. scheme of subject-matter relating to, 354-356. special referee, before, 427, 428. statutory provisions as to, 356-358. CONFLICT OF LAWS, arbitration clause, with reference to, 323. foreign award, action on, 266. CONSENT, attorney, by, to enlargement of time, 29. Bankrupt Law Consolidation Act, 1849, under, 231. committee of inspection, by, 32. County Court judge, by, to revocation of submission, 48. Court, of, reference by, 5. delegation, to, 402. enlargement of time, to, 29, 342-345. lunacy matter, in, 32. married woman, by, 19. reference by, bankruptcy matter, in, 32, 231. order of Court, by, 519, 529, 533, 535-537, 585. revocation of submission, to, 49. CONSPIRACY, indictment for, when referable, 7. CONSTRUCTION of award, should be cm liberal lines, 468. See also Interpretation. CONTEMPORANEOUS DOCUMENT, containing reasons of arbitrator, effect of, 210. CONTEMPT OF COURT, attachment for, 283. disobedience to award as, 69, 258, 265, 266, 283, 288. non-performance of reference as, 60. revocation of submission as, 46. witness disobeying subpu'na, position of, 151. CONTINGENT, claim, jurisdiction of arbitrator over, 83. right under award, assignment of, 468. CONTINUING, damage, award in respect of, 456. reference to assess, 507. 700 INDEX CONTEACT, arbitration as a condition precedent by terms of, 111, 112. clause in, application of, 92, 364. difference outside, 91. form of, 604. incorporation hy reference of, 315. breach of, by arbitrator, 197. reference in respect of, 1. construction of, award conclusive as to, 464. case stated with respect to, 306. reference as to, 79, 104, 106, 107. deposit with arbitrator of, 364. dispute arising out of, reference of, 79. refer, to. See Agreement to Refer. See also Agreement. CONTRADICTION in award, effect of, 228. CONTROVERSY, reference to end, scope of, 77. CONVENIENCE, considerations of, with reference to hearing, 375. CONVEYANCE, award directing e.x^ecution of, 454, 466. operative as, how far, 2, 466, 467. CONVICT, capacity to refer of, 21. witness, as ground for setting aside, 231, 232. CONVICTION, reference whether barred by, 7. COPY, affidavit, of, with a view to remitter, 182. award, of, original lost, where, 294. originating summons to enforce, in support of, 263. party, for, 436. service of, with a view to attachment, 290. verification of, 244, 263, 640. power of attorney, of, service of, in proceedings for attachment, 290. COPYHOLD ACT, 1894, settlement by valuer of compensation for enfranchise- ment under, 17. CORNWALL, Duke of, as party to reference, 310. CORPORATION, acting by officer, reference by, 32. agreement to refer by, 315. attachment in case of, 283. submission to arbitration by, 25, 32, 315. CORRUPTION, arbitrator, on part of, 68, 164, 197. award procured b}', 204. submission procured by, 193. COSTS, acceptance of, acquiescence by rea.son of, 251. action for, under Lands Clauses Act, 1845, 298. of, award of, 226, 233. appeal from referee, of, 570. application to enforce award, of, 264. to state case, 308. apportionment of, 575. arbitrator condemned in, when, 197, 254, 255. of. See Fees; Remuneration. INDEX 701 COQTS—cotitinued. attachment, enforcement of payment by, 440. relative to, 295, 296. award directing as to, 71, 228, 267. arbitrator, of, 174, 175. discretion of arbitrator as to, 71, 115, 375, 493. stay of proceedings, after, 115, 254. taxation in case of, 48, 222. uncertainty in, 250. where submission silent on the subject, 7L witliout authority, 229. of, 228, 485. remitted, 186. set aside, where, 254, 493. bill of, award directing delivery of, 226. certificate for, 581. counsel, of, 583. County Court scale, on, 574. Crown, against, 310. demand for payment of, 289. disbursements as, 490. discretion of arbitrator as to, 71, 115, 375, 493. drawing up award, of, 488. each party to pay own, 491. enforcement of award, of, 264. enquiry, reference for, in case of, 517, 518. e.Kecutor's liability for, 65. fall with award, when, 76. improper award, of, 229. Lands Clauses Consolidation Act, 1845, under, 197, 298, mandamus to arl>itrator to assess, 197. Master's allocatur, service of, 290. mistake of arbitrator as to, 149, 218, 233. non-ascertainment by award of, 218, 234, 267, 300. order made by authority, of, 309. professional assistance in drawing award, of, 488. Quarter Sessions, of reference at, 575. reference, of, 483-495. consent, by, out of Court, .309, 425. demand for payment of, 289. discretion of arbitrator as to, 71, 115, 375, 493. enquiry, for, 517, 518. executor's liability for, 65. meaning of, 485. mistake as to, 149, 218, 2.33. order of Court, under, 571, 585. report, for, 517, 518. submission silent on subject, where, 71. trial, for, 540. remission, on, 186, 190. remuneration as, 490. report, reference for, in case of, 517-518. retention of award pending payment of, 488. rule to pay, under Lands Clauses Consolidation Act, 1845, 298. security for. See Security for Costs. separation of items of, 490. set-otf of, 582. setting aside award, on proceedings for, 253, 254, 493. shorthand notes, of, 377. solicitor and client, as between, 484, 492, 575. solicitor's fees as, 436. special case, of, 148, 571, 583. referee, before, 427, 429, 571. 702 INDEX €OSTS>— continued. statement of case, on proceedings for, 308. stay of proceedings, on, 115. successful party, against, 491, 575. taxation of. See Taxation of Costs. third party not impliedly bound to pay, 493. trial, reference for, in case of, 540. umpire's award, of, 486. unascertained by award, effect of, 218, 234, 267, 300. COUNSEL, audience, right of, 379, 583. authority to refer, of, 29, 534, 535. brief of, indorsement of submission on, 315. costs of, 583. opinion of, taking, 142, 223, 404. See also Barrister-at-Laiv. COUNTERCLAIM, action on award, in, 183. delivery of, as commencement of proceedings, 88. nature of, 88. particulars of, delivery of, 369. remission of award, for, 275. upon, 183. stay of, 88, 89. COUNTY COURT, appeal from, under Agricultural Holdings Act, 1908, 256. application to, for eirforcement of Friendly Society award, 13, 14. costs on scale of, 574. included in "Court," 89. judge of, consent to revocation of submission by, 48. jurisdiction as to award of, 236. submission out of, 48, 539, 669. interference of High Court in case of, 236. COURT, agreement to refer out of, 45-495, 585. enforcement of, 282. application to, leave to revoke submission, for, 66. non-appointment of umpire, on, 329. set aside award, to, 230, 240. appointment of arbitrator by, 116-128. new arbitrator, power to set aside, 129. umpire by, 329, 353. without power as to, 100. arbitrator, power to remove, 62, 129, 192, 194. attachment, proceedings for, in, 291, 292. auxiliary relief, grant of, 113. clause ousting jurisdiction of, effect of, 305. commission to take evidence abroad, issue of, 138. consent of, committee of lunatic, in reference by, 31. criminal matter, to reference of, 7, 8. infants' submission, in case of, 20. neglect of assignee of bankrupt to obtain, waiver of, 421. consultation of, on question of law, 55, 305, 404. control of arbitration proceedings by, 424-426. County Court, includes, 89. decision of, on question of law, 55) 200, 306. direction by, for statement of case, 302. discretion of, appointment of arbitrator, as to, 126. enlargement or abridgment of time, as to, 158, 238. order for reference, as to, 75. INDEX 703 COU RT — continued. discretion of, remission, as to, 163, 165, 185. rule for payment of amount awarded, as to, 296. stay of proceedings, as to, 74, 93, 97, 104, 107. enlargement of time by. See Enlargement of Time. foreign, reference to, 36, 321. Friendly Society arbitration, jurisdiction in, 13. habeas corpus, power to order writ of, 302. judicial notice by, of improper stamping of award, 443. jurisdiction of, clause ousting, effect of, 305. Friendlj' Society dispute, in, 13. official referee, in case of reference to, 85. ouster of, 73, 109, 305. subject-matter of reference, over, 5, 87. leave of, attacliment, to, 292. criminal matter, to reference of, 6-8. enforcement of award, for, 258, 260, 263, 264. reference of subject-matter of action, for, 364, 365. remission, appeal against, for, 186. revocation of submission, for, 46, 50, 53, 54, 57, 66, 424. Master's exercise of powers of, 62, 66. meaning of, 309, 312. opinion of, non-adoption bj^ arbitrator of, 200. under s. 19 of Arbitration Act, 1889, 55, 306. order of, award, as, 147. costs of, 309. discovery, for, 370. referring subject-matter of action, 5, 364, 365. submission, as, 46. power of, alter or amend award, to, 463. arbitrator's fees, as to, 195. costs of setting aside, as to, 253. discovery, to order, 370. enforcement of award, as to, 258, 260, 263, 264. refer, to, 5, 44, 87. remission, as to, 143, 186. removal of arbitrator, as to, 62, 129, 192, 194. review of arbitrator's discretion, as to, 198. setting aside award, as to, 192, 193, 230, 240. special referee, over, 427. stay of proceedings, as to, 93. reference out of, consent, by, 45-495, 585. enquiry and report, for, 365, 499. trial, for, 520-523, 526-529. remission by. See Tieniission. removal of arbitrator by, 62, 129, 192, 194. rule of, award of costs made, 48. submission made, 27, 47, 258, 259. setting aside award by. See Settinrj Aside. .special case for opinion of, 53, 306. referee, consulted by, 428. powers over, 427. stamping, improper, of award, notice of, 443, 670. stay of proceedings by. See Stay of Proceedings, suhpccna, power to order writ of, 301, 302. umpire, application on non-ap})ointment of, to, 329. apptjintment of, by, 353. COURT OF APPEAL, appeal to, referee's report, as tf), 570. remission, from order for, 186. setting aside of award, with reference to, 255. special case, from order for, 147, 307, 308. 704 ' INDEX COURT OF AF'P'EAh—cojitmned. appeal to, stay of proceedings, from order as to, 116. order of, costs of, 309. powers of, 586. COURT OF SUMMARY JURISDICTION, application to, to enforce Friendly Society award, 14. COVENANT for performance of award, 20, 265. CRIME, award directing commission of, 448. conviction for, whether a bar to a reference, 7. CRIMINAL MATTER, reference of, 6-8. CRIMINAL PROCEEDINGS, award, how far admissible as evidence in, 479. reference of, 6. CROPS, award purporting to transfer property in, position of, 466, 467. value of, away-going, determination of, 361. CROSS EXAMINATION, refusal to party of chance of, as an objection to award, 272. CROWN, consent to reference by, 310. costs against, 310. party to arbitration, as, 310. CROWN LANDS, reference of dispute affecting, 16. CROWN OFFICE, special case set down for hearing in, ] 44. CUSTOM, finding by arbitrator as to, 79, 432. DAMAGES, action for, arbitration as plea in, 1. revocation of submission, for, 46. award of, 218, 464. improper, 208. referee, by, 558. breach of arbitration clause, for, 50. failure to appoint arbitrator, for, 117. ineffective remedy, when an, 69. misapplication by arbitrator of rules of law as to, 1 69. non-separation in award of, 218. omission in award to assess, 218. penalty and stipulated, confusion in award between, 229. periodical assessment of, 84, 339. reference to ascertain amount of, 506. referee, award by, of, 558. duty of, limited to assessing, 80. report of, as to, 511. revocation of submission, for, 46, 50. stipulated, and penalty, award confusing, 229. submission as to, 2. unliquidated. See Zhiliquidated Damages. DEAF arbitrator, how far disqualified, 34. INDEX 705 DEATH, arbitrator, of, after award, remission to new arbitrator on, 180. appointment of new arbitrator on, 63, 129, 333, 334, 608, 610. failure to appoint successor on, 397. procedure on, 117, 118, 123, 180. party, of, before award, order on executor in case of, 31. before performance of award, 474. enforcement against executor in case of, 31, 283. enlargement of time after, 340. joint party to reference, in case of, 64. referee, in reference to, 556. revocation, as, 64. setting aside award after, 236. revocation on, none under Companies Clauses Act, 1845, Lands Clauses Act,, 1845, and Railways Clauses Act, 1845, 65. prevented Ijy clause in submission, 65. umpire, of, procedure on, 117, 353. DEBT, action for, reference of, 94. arbitrator indebted to party, whether disqualified, 39. award finding sum claimed to be, 229. future, as subject of award, 229, 230. I'eference of, 2, 77. DECEIT, misleading or deceiving arbitrator, effect of, 204. DECLARATION, statutory. See Statutory Declaration. DEED, appointment of arbitrator by, 325, 327. award delivered as, 441. directing execution of, 472-474. reference by, 28, 73, 315, 602. DEFENCE, action on award, to, 268-276. award set up by way of, 269. delivery of, 373, 614, hearing, available at, 380. particulars of, direction for delivery of, 614. DEFENCE ACT, 1854, reference to settle compensation on extinguishment of common under, 16. DEFENCE OF THE REALM (ACQUISITION OF LAND) ACT, 1916, provisions for arbitration of, 17. DEFENDANTS, several, stay of proceedings in case of, 94. DELAY, application with a view to, discretion of arbitrator in case of, 362, 389. arbitrator's liability for, 197. attachment, as a defence to, 286, 287. completing reference, in, 96, 97, 197. enlargement of time, in application for, 158. refused on account of, 181. motion to set aside award, in regard to, 239, 240, 245, 248, 251. objection to witness, in taking, 232. remission, in applying for, 184. request by party for, 362, 389. setting aside, in proceeding for, 239, 240, 245, 248, 251. specific performance, in claiming, 279. stay of proceedings, how far barred by, 96, 97. 45 706 INDEX DELEGATION, accountant, to, 394, 403. arbitrator, by, 221, 222, 399-406. award, in, 402. consent of parties, by, 402. drawing award, of, 403. duties of delegate in case of, 394. excessive, effect on award of, 457. improper, 199, 403. one another, to, 409. powers as to, 221, 399-406. independent surveyor, to, 401. judicial arbiter in Scotland, by, 403. law point, of, 409. ministerial act, of, 222, 399. submission, in pursuance of, 402, 403. DELIVERY, award, of, 437-439. particulars, of, form of direction for, 614. DEMAND, affidavit as to making, 293. performance, of, by whom to be made, 288, 289, 641. how far necessary, 267, 287-289. irregularity in connection with, 284. what to be demanded, 289. reference of, 2, 77. service of, with a view to attachment, 290. See also Claim. DEPOSIT with arbitrator, of submission, 364. DEPOSITION, taken without presence of party against whom used, 381. DIFFERENCE, all matters in, reference of, 76-78, 80, 82-84. appointment of single arbitrator, as to, 117, 118. arising after valid submission, appointment of arbitrator to settle, 118. hondjide and substantial, no stay where, 108. contract, upon or in relation to or in connection with, 92. Court's jurisdiction dependent upon, 119. definition in particulars, &c., of, 369. fresh, admission into submission of, 374, 375. future, agreement to refer, 317. matters not in, at time of reference, position of, 465. meaning of, 321. no real, stay where, 90, 91. notice of, arbitrator, to, 133. what is, 91. partly within submission, only, 106. reference of, 78-80. requisite to arbitration, how far, 133, 317, 318. statement by parties as to, utility of, 397. what within the submission, arbitrator's power to decide, 93, 94. See also Dispute. DILAPIDATIONS, valuation of, as condition precedent to right of action, 113. DIRECTION, award, in, bad, effect of, 458. certainty required of, 456. conduct of party or disposal of property, as to, 446-462. special nature, of, discretion as to, 455. valid, under what circumstances, 458. INDEX 707 DIBECTION— continued. particulars of claim and defence, for delivery of, 614. reference, to effectuate, omission of, 216. DISAGREEMENT, arbitrators, of, notice to umpire of, 614. Avhat is, 348. DISBURSEMENTS, charge for, 490. DISCOVERY, arbitrator how far protected from, 275, 276. power to order, 369, 370. documents, of, generally, 369-372. referee, before, 550. special referee, in reference to, 427, 428. DISCRETION, arbitrator, of, conduct of reference, as to, 198. costs, as to, 375, 484, 489, 491, 574. exclusion of, 493. Court's power to review, 198. evidence, as to, 136, 137, 381, 384. ex parte, whether to proceed, 395. generally, 362. hearing, as to place, &c., of, 376. judicial nature of, 376. oath or affirmation, as to, 136, 137. ousted by terms of submission, 137. properly exercised, no remission where, 174. reopening case, as to, 399. scrutiny of, 276. special directions in award, as to inserting, 455. statement of case, as to, 140, 303. unreasonable exercise of, 376. Court, of, appointment of arbitrator, as to, 126. costs of setting aside award, as to, 253. enlargement or abridgment of time, as to, 158, 238. payment of amount awarded, as to rule foi", 296. remission, as to, 163, 165, 185. stay of proceedings, as to, 97, 104, 107. trial, reference for, as to, 526-529. DISPUTE, Building Societies Act, 1884, under, 15. Friendly Societies Act, 1896, under, 13. Industrial and Provident Societies Act, 1893, under, 14. meaning of, 321. See also difference. DISQUALIFICATION, arbitrator, of, indel:)ted to party, where, 68, 69. interest, for, 37, 202. misconduct, through, 37. not a member of particular association, where, 203. proceedings, during, 62. relationship, for, 37, 202. revocation of submission on account of, 57, 62. DISTRESS, award of power of, 447. warrant of, to enforce award in building society dispute, 15. DISTRICT REGISTRAR, jurisdiction as to stay of proceedings of, 114. 708 INDEX DIVISIONAL COURT, appeal to, from Master, ill reference under Order XIV., 531 . with leave, from order as to statement of case, 307, 308. DOCK, reference to settle compensation for lands taken or used for, 9. under Public Health Act, 1875, respecting interference with, 10. DOCUMENT, award directing delivery up of, 227. discovery of. See Discovery. inspection of, 246, 372. other tlian contract referred, award based on, 387. prodviction of. See Production of Documents. prolonged examination of, reference in case of, 523. service of, on motion for attachment, 290, 291. stamp on, notice to be taken of, 388, 670. DRAINAGE, award as to maintenance of, 469. reference to settle compensation for land taken and damage caused, 9. DRUNKENNESS of arbitrator, remedy in case of, 194. DUKE OF CORNWALL. See Cornwall. DUMB arbitrator, how far disqualified, 34. EDUCATION ACT, 1902, arbitration under, 10. EITHER construed as every, 438. EJECTMENT, award of referee as to, 562. ELECTION, remedies, of, e.g. action and attachment, 287. ELECTRIC LIGHTING ACTS, 1882 and 1888, arbitration ijrovisions of, 11. ELECTRIC LIGHTING (CLAUSES) ACT, 1899, reference under Schedule of, 11. EMBARRASSING pleadings, 369. EMPLOYER, Conciliation Act, 1896, reference under, of dispute with workmen, 12. insured against accidents to workmen, stay of action on policy in case of, 90. EMPLOYMENT of arbitrator, in another caj^acity by party for reward, 205. ENFORCEMENT OF AWARD, action, by, 260, 262, 264-276, 642, 643. agent submitting, against, 28. Arbitration Act, 1889, s. 1, under, 49. attachment, by, 5, 281-296. attorney under power, by 27. bankruptcy of party, after, 301. building society arbitration, in, 15. company, against, 298, 299. doubtful validity, of, 262. Friendly Society dispute, in, 13. generally, 256-301. judgment, as a, 5, 258, 266. when it will not be, 261, 262. Lands Clauses Acts, under, 262. mandanms, by, 298, 299. originating summons with a view to, 263. parol svibmission, in, 322. INDEX 709 ENFORCEMENT OF AW AUB— continued. part of award, of, 299, 300. personal representative, against, 65. practice with regard to, 263-299. previous legislation as to, 258, 259. public officer of corporation, against, 32. Quarter Sessions, as a judgment of, 5. rule to pay amount awarded, by, 296-298. specific performance, by, 276-280. statutory provision for, 258-263. submission by consent out of Court, in, 258, 424. not a rule of Court, where, 282. third party, by, 282. time for, 264. ENGINEER, building contract, under, as arbitrator, 38, 40-42, 52, 408. Electric Lighting Acts, 1882 and 1888, reference under, to, II. refusal to certify of, reference on, 78. ENLARGEMENT OF TIME, agent's consent to, 29. agreement of parties, by, 83, 614, 615. arbitrator's powers and duty as to, 335, 341, 342, 368, 614. attornev, l)y, 29. consent of parties, by, 342-345, 614, 615. Court's powers as to, 152-159, 238, 353. umpire, for, 158, 353. death of party, after, 340. defective power of, how supplied, 340. delay in applying for, effect of, 158, 181. discretion of Court as to, 158. further, 337, 342. generally, 152-159, 340-345. how to be made, 335, 337, 341. judge's order for, 341. Lands Clauses Act, 1845, under, 342. limits to be observed in, 159, 337, 340. no implied power as to, where, 340. notice of, 290. parol consent to, 344. period of, 159, 340. powers of Court as to, 154, 157, 238, 353, 424. proper cases for, 154. refusal to appoint umpire, on, 329. remission, after, 189. reviver of jurisdiction by, 417. some of the ai-bitrators, by, 341. statutory reference, in, 155. summons for, form of, 615. time limit for award expired, after, 156, 157, 417. within which to be done, 159, 337, 340. umpire, by, 342, 351, 353. for, by Court, 158, 353. valuation, for, 153. writing, when to be in, 290. ENQUIRY, reference for, generally, 499-519. special case, in, 518. time for, 502. to whom, 507-509. what may be subject-matter of, 504-507. 710 INDEX ENTERTAINMENT, metropolitan place of, reference as to structural alterations on, 11. ERROR. See Mistake. ESTOPPEL, acquiescence, by, 41, 415, 418-421. award, by reason of, 6, 12. conduct, by, 41, 415, 418-421. conviction, whether reference barred by, 7. Electric Lighting (Clauses) Act, 1899, award under, by reason of, 12. enlargement of time, in case of, 342-345. invalid award, by, 6, 230. matters within reference, but not brought to arbitrator's notice, position of, 464. none, as to matters not referred, 463. objection to arbitrator, from, 39-42. to award, from, 41, 230, 251, 252. EVENT, award to be void on happening of, 220. meaning of, 578. EVIDENCE, abroad, commission to take, 138, 550. failure to obtain as ground for revocation, 63, 64. absence of parties, taken in, 174, 381, 413, 418. admission by party, as to, 276. all material, to be heard, 381. appointment of umpire, of, 270. arbitrator, of, admissibility of, 275, 276. presence of, at taking of, required, 410. award as, 477-483. arbitrator, for, 481, 482. stranger, for, 481. collateral matters, of, 388. commercial arbitration, in, 392. commission to take, abroad, 138, 550. consent not to take, 361. decision contrary to, reopening, 179. declining to adduce, 383. deposition taken in absence of party against whom used, 381. execution of bond of submission, of, 267. false, giving or procuring, 139, 232. fresh, on reconsideration after remission, 187-189. further, refusal of, 348. how to be taken, 356-359. impeachment of award, for, 384-386, 482. improper reception or rejection of, 199, 381, 384-386. inadmissible, reception of, 57-59, 70, 381, 387. matters not referred, as to, 388. referred, as to, 276. minutes of, duty to take, 378. misreception or misconception of, 57-59, 70, 178, 199, 381, 384-386. misunderstanding, &c., of, as ground for reopening award, 150. new, after accounts closed, 383. discovery of, 164, 177, 231. notes of, duty to make, 377. omissions in, effect of, 249, 250. o'ims of proof, arbitrator charged with partiality, where, 197. special case, in case of, 145. outside sources, obtained from, 361, 378, 379, 417. party to begin, 380. pleadings in cause referred as, 284. power to refuse to receive, 199, 372, 383. INDEX 711 EVIDE'NCE—contmiied. private examination of witness, effect of, 391. taking of, 378, 379. reception of, after closing of hearing,' 391. behind back of party, 361, 417. improper, 199. referee, before, 550. refusal of, arbitrator, by, 245, 381. further, 348. improper, 58, 59, 62, 199, 384-387. opportunity to test, 376. ^ permission to party to be present at, 417. powers as to, 372, 381, 383. refusal to decide issue submitted, as, 386. remedy in case of, 58, 59, 62. setting aside for, 245, 383-386. remission back to arbitrator, after, 187-189, 399. reopening decision contrary to, 179. rules of, binding on arbitrator, 380. separate examination of witness, 391. setting aside, with a view to, 252, 253. statutory arbitration, in, 394. submission, of, 268. tender of, required, 383. umpire, appointment of, of, 270. duty of, to hear, 411, 412. not rehearing, 422. witness called by arbitrator himself, 388. refusal to examine, 245. separate examination of, 391. EXAMINATION, affidavit, by, 137. affirmation, on, 136. commission abroad, by, 138, 550. oath, on, 137. vivd voce, necessity of, 137. witness, of, 135-139. EXCESS OF JURISDICTION. See Jurisdiction. EXCHANGE, submission of question relating to, 2. EXCLUSION, evidence, of. See Evidence. person entitled to be present at reference, of, 199, 378, 417. EXECUTION, amount awarded, in respect of, 259-261, 296. award, of, mode of, 268, 270. submission, of, by all parties, as a condition to arbitrator's authority, 338. EXECUTOR, agreement of reference by, form of, 598, 599. attachment against, by way of enforcing award, 283. award, enforcement of, against, 30, 31, 283. evidence of assets, as, 478. how far binding on, 30, 31, 227, 449. costs of reference, liability for, 65. reference by, capacity to enter into, 29. refusal to appoint arbitrator by, 119. setting aside at instance of, 236. EX PARTE, power of arbitrator to proceed, 199, 395, 396. EXPENSE, reference entailing, as ground for refusal to stay proceedings, 98, 100. 712 INDEX EXPLOSIVES ACT, 1875, appointment of umpire under, 328. EXTENSION of time. See Enlanjemmt of Time. FACT, award conclusive as to, how far, 168, 169, 272. mistake on part of arbitrator as to, 172, 206. mixed question of law and, reference of, 4. referee's finding as to, 565. FACTORY AND WORKSHOP ACTS, 1891, 1895, and 1901, appointment of umpire under, 328. reference as to use of machinery, precautions against fire, &c., 12. FAILURE, appointment of arbitrator, in regard to, 117, 118, 124, 129, 397. arbitrator of, to act, 117, 118, 120-122, 125, 132, 154, 197, 331, 333, 334. umpire, of, to act, 117, 121, 125, 353. FAIR, reference to settle compensation for land taken for, 9. FAIRNESS, expected of arbitrator, 37, 358. what is, 39. FALSE, evidence, giving or procuring, 139, 232. representation as to quality of goods, submission of, 101. FEES, arbitrator, of, control of Court over, 195. excessive, 196, 203. Lands Clauses Acts, under, 299. payment of, 196, 439. review of, 195. right to recover, 196, 439. taxation of. See Taxation of Costs. official referee, on submission to as arbitrator, 85. special case, on filing, 145. See also Remuneration. FELON, witness, as, setting aside on accovint of, 231, 232. FELONY, reference of matter involving, 6. FILING, order for leave to enforce award, of, 263, 264. special case, of, 145. FINALITY required of award, 212-215, 218, 221, 222, 272, 305. FINANCE (1909-10) ACT, 1910, remission of award in reference under, 181, 182. FIRE, means of escape from, reference as to, 12. FIRE INSURANCE, award by umpire on claim as to, 621-624. policy making arbitration a condition precedent, 111, 112. reference of dispute relating to, 91, 603. FIXTURES, award improperly directing replacement of, 229. FLUCTUATING BODY as arbitrator, 34. FLUE, future use of, power of arbitrator to decide as to, 4. INDEX 713 FOREIGN, award, action on, 266. Court, action in, restraint of, pending arbitration in this country, 68. evidence, commission to take, 138, 550. tribunal, reference to, 36, 98, 101, 321. FORESHORE, reference of dispute respecting, 15. FORM, afl&davit, of, attachment, with a view to, 293, 294. remission, with a view to, 182. stay of proceedings, with a view to, 115, 607. aflirmation, of, 613. agreement of reference, of, 591-599, 605, 606. appointment of arbitrator, of, 126, 608-611. arbitration clause, of, 604. award, of, 219, 433-436, 444, 445, 618-639. remission, after, 189. stating special case, 142. direction for particulars, of, 614. enlargement of time, relating to, 341, 614, 615. matter of mere, mistake in, 360. meeting, appointment of, of, 612. notice, appointment of arbitrator, with a view to, 125, 609, 610. award made, of, 617. disagreement of arbitrators, of, 614. motion for remission, of, 182, 185. production of documents, for, 613. oath, of, 612, 613. order of Court granting auxiliary relief, of, 113. referring cause, 606. of reference for enquiry or report, of, 504. proceedings during reference, relating to, 612-617. reference out of Court, relating to, 644-649. remission, relating to, 182, 185. report, of, in reference for report, 509-512. revocation of submission, relating to, 615, 616. statement of case, relating to, 616. statutory declaration by arbitrator, of, 367. stay of proceedings, relating to, 115, 607. submission, of, 363-365, 599-603. summons for ap])ointment of arbitrator, of, 610. to set aside appointment of sole arbitrator, of, 611. FRAUD, arbitrator, on part of, 165, 173, 197, 203. award with reference to, form of, 622-624. impeachment of award on account of, 203. reference of question involving, 3, 101-103, 112, 622-624. refusal of stay of proceedings on account of, 101. FRAUDS, STATUTE OF. See Statute of Frauds. FRIENDLY SOCIETY, enforcement of award against, 14. FRIENDLY SOCIETIES ACTS, 1875, 1896, and 1908, reference of dispute under, 13, 235, 306. setting aside award under, 235. FUTURE, act, award directing, 233. claim, arbitrator's jurisdiction with regard to, 83, 84, 317. damages, reference to assess, 407. debt, award as to, 230. dispute, agreement to refer, 317. use of property, reference as to, 4. 714 INDEX GAS WORKS CLAUSES ACT, 1871, reference under, 11. GOODS, dispute as to quality of, reference of, 78, 101. GROUND GAME, damage from, reference as to, 113. HABEAS CORPUS, prisoner witness, in case of, 301, 302, 424, 427. HARBOUR, reference to settle compensation for land taken for, 9. HAY, order for delivery up to landlord of, 2. HEARING, adjournment of, 376. all arbitrators to be present at, 410. attendance of counsel or solicitor at, 379. case closed, after, 391, 399. closed too hastily, effect of, 398, 401. de die in diem, rule as to, 425, 428. defences available at, 380. evidence received after closing of, 391, 399. inability of party to attend, 377. neglect of party to attend, procedure on, 395. ordinary course of procedure at, 380. l^ersons entitled to be present at, 378. place of, fixing of, 361, 364, 369, 375, 376. power to make arrangements as to, 364, 369, 375, 376. presence of arbitrators at, 410. of parties at, 389. referee, by, 551, 552. reference by consent out of Court, in case of, 425. shorthand notes at, power to order, 377. special case, fee on, 145. referee, before, 427, 428. time for, fixing, 361, 364, 369, 375, 376. umpire, before, 411-413. HEDGE, position of, power of arbitrator to decide, 4. HIGH COURT, jurisdiction of, to set a.side, 236. HIGHWAY, reference of indictment for non-repair of, 7. HOLDING OVER on expiration of lease, reference as to, 92. HORSE RACE, steward of, as arbitrator, 36. HOUSE, surrender of possession of, power of arbitrator to order, 2. HOUSING OF THE WORKING CLASSES ACTS, 1890 and 1909, provisions for arbitration of, 17. HUSBAND, award in favour of, when a reduction into possession, 19. separation from wife, reference as to terms of, 4. IDENTITY of property awarded, 227. IDIOT, arbitrator of disijualification 34. reference by, validity of, 21. IGNORANCE, arbitrator, of, as to making of award, 245. disqualification of arbitrator, as to, 424. INDEX 715 ILLEGAL ACT, award countenancing, 233, 448. ILLEGALITY, award tainted by, 3, 4, 230, 233, 465, 470, 47 L defence to action for amount awarded, as, 3, 465. reference of matter tainted by, 3. ILLNESS, excuse for not proceeding to set aside, as, 240. IMPARTIALITY, expected of arbitrator, 37, 358. what is, 39. IMPOSSIBILITY of performance of award, effect of, 228, 468, 470, 47L INCAPACITY, arbitrator, of, appointment of new arbitrator on, 63, 117, 118, 123, 129, 333', 334, 608, 610. failure to appoint successor on, 397. what included in, 122. party, of, objection on account of, 230. reference by person subject to, 18-32. umpire, of, 117, 353. INCLOSURE ACT, 1845, award as to title of allottee under, 467. INCLOSURE OF COMMON, reference effectuating, 8. INCONSISTENCY in award, effect of, 228. INDEMNITY, award of, 229, 453, 474. INDENTURE, award in form of, stipulation for, 434. INDIAN ARBITRATION ACT, 1899, appointment of new arbitrator under, 130, 674. provisions of, 672-679. INDICTMENT, award of costs of, 575. reference of, 6-8, 281, 536. INDUSTRIAL AND PROVIDENT SOCIETIES ACT, 1893, provisions for arbitration of, 17. INFANT, action by, reference of, 542. arbitrator, as, 34. award affecting, 20. capacity to submit of, 19. how far bound by submission made on behalf of, 420. objection to submission on account of party being, 21, 231. performance of award by, covenant to secure, 20. ratification of submission, &c., by, 20. INJUNCTION, auxiliary relief by way of, 113. interference by, generally, 66-69. not granted where damages the proper remedy, 69. INJURY, reference of, meaning of, 77. INQUIRY, Master, by, in attachment proceedings, 296. reference for. See Enquiry. INSPECTION, agreement of reference, of, in proceedings to set aside, 248. documents, of, 246, 372. 716 INDEX I^si^FECTIO:^— continued. property, &c., of, 361, 372, 373, 428. referee, by, of premises, 428, 553. See also Production of Documents ; Vieiv. INSTRUMENT, award directing execution of, 223. INSURANCE, accident, against. See Accident Insurance. arbitration clause in policy of, 90, 91, 317. fire, against. See Fire Insurance. honesty of clerk, of, form of award in case of, 624. premiums, allowance of, as ground for setting aside, 4. INTEREST, allowance by arbitrator of, 359, 450, 451. arbitrator, of, award set aside for, 202. how far a disqualification, 37-43, 62, 202, 204, 278. knowledge of parties of, effect of, 39. subsequent to appointment, arising, 42. what ought to be disclosed, 38. judgment debt, on, 259. sum awarded, on, 267. See also Bias; Partiality. INTERLOCUTORY PROCEEDINGS, step in proceedings, whether a, 95. INTERPLEADER, order in, held binding as an award, 35. INTERPRETATION, Arbitration Act, 1889, of, rules as to, 44. award, of, to be liberal, 468. charter-party, of, reference as to, 80. contract, of, reference as to, 79, 104, 106, 107. either, meaning every, 438. mining lease, of, reference as to, 80. " or otherwise," meaning of, 86. partnership articles, of, submission as to, 79. submission, of, 76. See also Construction. INVALIDITY of award, pleading of, 269, 270, 284. IRELAND, Arbitration Act, 1889, not applicable to, 323. party in, service on, 128. witness in, compelling attendance of, 302. IRREGULARITY, acquiescence in, effect of, 394. attachment proceedings, in connection with, 284, 295. a\\ard, in connection with, 269, 389. condonation by Court of, 292. defence to motion for attachment, as, 284. evidence, in connection with, 417, 418. parties not present, where, 389, 421. setting aside for, 376, 389. waiver by i^arty of, 415, 418-421. by agent, 28. IRRELEVANCY in award, effect of, 233. ITEMS, not in dispute, admission of, 377. INDEX 717 JOINT, application to stay proceedings, 94. appointment of arbitrator, 126. party, death of, 64. JOINT AND SEVERAL, parties to submission, 82. performance of award, 24, 83. reference, liability of parties in case of, 24. JOINT TENANT, partition, reference with a view to, 2. JUDGE, action, reference of, by, 536. adjudication by, by consent of parties, 322. attachment, application for, to, 291. leave for, by, 292. chambei'S, in, appeal to, 116, 307. application for attachment to, 291. Count)^ Court, jurisdiction as to award of, 236. submission ordered by, 48, 539. enquiry or report, reference for, by, 499. extraordinary course, adopting, 35. habeas corpus, power to order writ of, 302. jurisdiction of, generally, 309. leave of, appeal from order as to stay of proceedings, for, 116. in case of special case, for, 146, 307. enforcement of award, for, 258, 2C0, 263, 264. Master's exercise of powers of, 62, 66. meaning of, 309, 312. new arbitrator, review of appointment of, 129. official referee, jurisdiction in reference to, 85. order made by, costs of, 309. special referee, powers in regard to, 427. statement of case, jurisdiction in regard to, 146, 302, 307. stay of proceedings, jurisdiction in regard to, 116. subpoena, power to order writ of, 301, 302. time, enlargement of, powers as to, 154, 341, 353. trial, reference for, by, 520-523, 536. See also County Court ; Cotirt. JUDGMENT, award, as affected by, 463. enforced like, 258, 266. when it will not be, 261, 362. debt, interest on, 259. referee, by, 366, 564, 565. setting aside of, 567. reference as to, 5, 463. under order of Court, on, 540, 541. sjjecial referee, of, 428. JUDGMENTS ACT, 1838, enforcement of judgment under, 259. JURISDICTION, arbitrator, of, all actions, &c., under submission of, 77, 81. all debts, trespasses and injuries, under submission of, 77. all demands due and owing, under submission of, 77. all disjiutes, &c., under submi.ssion of, 76, 79. all matters in difference, &c., under sulnnission of, 76, 77, 82, 8.3.. all suits, controversies and demands, under submission of, 76, 81. arbitration clause, to decide whetlier matter witliin, 93. award, how affected by excess of, 76, 93, 166, 167, 179 229 233- 235, 262, 274, 415-417. cause, under submission of, 78. 718 INDEX JURISDICTION— continued. arbitrator, of, charter-party, in case of dispute under, 80. claim outside, whether a ground for revocation, 60. company and its members, in case of dispute between, 80. condition precedent to, fulfilment of, 93, 94. costs, as to. See Costs. custom, to decide as to, 79. dispute as to quality of goods, in case of, 78, 101. excess of, as affecting award, 76, 93, 166, 167, 179, 229, 233-235, 262, 274, 415-417. consent of parties to, 417. effect of, generally, 57, 59, 60, 76, 98, 151. performance of award in, 76, 262, 274, 289. power to correct error committed, 151. remedies in case of, 67, 98. waiver of, 415-417. exclusion by covenant in lease of, 493. extent of, 216, 363, 368. fviture or contingent claims, over, 83, 84. general, when, 81, 82. interest, as to. See Interest. limited, when, 81, 83, 98. mesne profits, as to, 84. mining lease, in submission as to, 80. partnership dispute, in submission as to, 79. periodical assessment of damages, as to, 84. reviver after lapse of time of, 417. set-ofl", in submission as to, 84. wool in process of wooling, in submission as to, 78. "Court, of, appointment of arbitrator, as to, 116-128. arbitrator's fees, as to, 195. auxiliary relief, as to, 113. difference necessary to, 119. enforcement of award, as to, 282. exclusion of, by agreement of parties, 113, 304. by statute, 109. general, 309. ouster of, 73, 75, 109, 113, 304. removal of arbitrator, as to, 194. separation deed, to settle, 91. setting aside award, as to, 193. subject-matter of reference, over, 87. trial, to refer for, 521-523. High Court, of, as to County Court reference, 236. judge, of, generally, 309. Master, of, generally, 309. official referee, of, 85. party beyond, attachment of, 282. service out of. See Service out of Jurisdiction. statutory, exercise of, 309. valuer, of, in submission as to non-repair of premises, 80. JUROR, withdrawal of, with a view to reference, 541. JUSTICE OF THE PEACE, application to, to enforce building society award, 15. Friendly Society award, 14. power to refer of, 5. statutory declaration by arbitrator before, 367. KING'S BENCH DIVISION, application to enforce award in, 263. attachment in, 291. INDEX 719 KING'S COUNSEL, arbitrator, as, remuneration of, 494. KNOWLEDGE, acquiescence implies, 333, 423. arbitrator interested, that, ett'ect of, 37, 39. of, matters not brought to, 215. incapacity of party, of, 230. irregularity, of, effect of, 418. matters not brought to arbitrator's, position of, 215. party, of, as to arbitrator being interested, 37, 39. as to incapacity of other party, 230. as to irregularity, 418. estoppel by reason of, 206. waiver, necessary to valid, 423. what interests ought to be disclosed, 38. LACHES, party, of, effect of, 362. specific performance of award, in claiming, 279. See also Delay ; Neglect. LAND, purchase of, reference of question arising out of, 1, 10. title to, award as evidence of, 416, 478. See also Property ; Real Property, LANDLORD AND TENANT, reference in case of dispute between, 2. LANDS CLAUSES CONSOLIDATION ACT, 1845, appointment of arbitrator under, 48, 118, 134, 328. award under, form of, 443. setting aside of, 235. compensation for land taken under, award of, 262. enforcement of payment of, 297. conduct of reference under, 357. costs awarded under, action for, 298. assessment by arbitrator of, 197. rule to pay, 298. taxation of, 400. death of arbitrator under, effect of, 118. of party under, effect of, 65. delay in proceeding with reference under, effect of, 159. enforcement of award under, 273, 274. enlargement of time under, 155, .342. examination of witness under, 138. excess of jurisdiction in award under, 166. ex parte, power of arbitrator to proceed, under, 397. fees on award under, 489. incapacity of ai'bitrator under, effect of, 118. mandamus, to take up award under, 299. misconduct as a misdemeanor under, 197. reference under, 8, 11. remission of award under, 166, 181, 185. revocation of authority of arl)itrator under, 48, 65. severance damage under, silence in award as to, 217. special case, power to state, under, 144. statutory declaration by arbitrator under, 367. umpire, appointment of, under, 328. waiver by Jjarty of provisions of, 423. witness, examination of, under, 138. LANDS CLAUSES ^TAXATION OF COSTS) ACT, 1895, reference of costs to be taxed under, 400. 720 INDEX LAW, aljsence of party, discussed in, 393. arbitration clause, by what law construed, 323. arbitrator's power to decide as to, 53, 199. award conclusive as to, how far, 168, 169. must comply with, 363. consultation of Court as to, 305, 306, 404. delegation of point of, 409. disregard by arbitrator of, 199. fact and, mixed question of, 4. mistake as to admission of evidence, effect of, 381. award, in, 3, 167-170, 173, 206, 386. revocation of submission, as ground for, 57-60, 404. professional assistance in deciding, power to employ, 404. reference of point of, 3. revocation of submission, arising on application for, 55, 59, 60. special case as to, 53, 55, 143, 302, 362. referee, arising in reference to, 427. stay of proceedings, as ground for refusal of, 101, 103-106. LAWYER, stipulation against employment of, 305. LAYMAN, stipulation for reference to, 305. LEASE, arbitration clause in, incorporation in supplementary contract of, 315. scope of, 93. award deciding title to, 466. covenant excluding jurisdiction of arbitrator in, 493. holding over, jurisdiction to decide matter arising during, 92. price to be paid by incoming tenant, fixing of, 318-320. LEAVE, Court, of. See Court. judge, of. See Judge. LEGAL PROCEEDINGS. See Action. LIABILITY, inability of arbitrator to decide as to, effect of, 90. LIEN, arbitrator, of, in respect of fees, 196, 439, 488, 489. solicitor, of, for costs, 582. sum awarded, on, 297. LIGHT RAILWAYS ACT, 1896, appointment of arbitrator by Board of Trade under, 10. award under, enforcement of, 299. remission of, 181. silent as to costs, 173. reference as to compensation under, 10. LIMITATION OF ACTIONS, action on award, as a defence to, 265, 273. pleading in reference of, 380. LLOYD'S, custom of, reference as to, 105. reference to member of, 105. salvage agreement, arbitration clause in, 26. LOCAL GOVERNMENT ACTS, 1888 and 1894, reference under, 10, 306. LOCAL GOVERNMENT BOARD, statement of case in reference under control of, 306. umpire, appointment of, by, 328. INDEX 721 LOCAL INVESTIGATION, reference of matter necessitating, 524. LONDON BUILDING ACT, 1894, reference of dispute under, 10. submission under s. 91 of, form of, 600-602. LORD CHANCELLOR, sanction in case of lunacy matter of, 32. LORDS JUSTICES, sitting in lunacy, sanction of, 32. LOSS of award, effect of, 294. LOT, selection of umpire or third arbitrator by, how far objectionable, 61, 69, 201, 329-332. LUMP SUM, award of indivisible, 270. LUNACY, consent of Lord Chancellor or Lords Justices in matter of, 32. LUNATIC, arbitrator, disqualification of, 34. committee of, submission by, 21, 31. reference by, 21. MACHINERY, award directing change of, 456. MAJORITY, award by, form of, 625. validity of, 124, 410. MANDAMUS, ajipointment of arbitrator in building society arbitration, with a view to, 15. assessment of costs by arbitrator, to compel, 197. corporation, to, ordering performance of award, 32. enforcement of award by, 298, 299. MANNER, usual, arbitration in, meaning of, 81. MAP as part of award, 635. MARKET, price, award fixing payment at, 225. reference to settle compensation for land taken for, 9. MARRIAGE, award of, power as to, 446. breach of promise of, reference of, 1, revocation of arbitrator's authority on female party's, 19. MARRIED WOMAN, award directing payment to, 450. submission by, 18, 231. See also JFife. MASTER, appeal from. See Appeal. ap[)lication to, appointment of arbitrator, for, 127. award, to enforce, 263. to remit, 182. charity reference, with a view to, 3. habeax corpus or xubjjmna, with a view to, 302. statement of case, to direct, 307. attachment, jurisdiction as to, of, 291, 296. builder's account, reference of, to, 401. charity, powers with regard to reference as to, 3. college or hospital, of, submission by, 25. Court or judge, exercise of powers of, by, 62, 66, 309. 46 722 INDEX. UAST'K'R—tmitimied. enforcement of award by, 263. enlargement of time by, 159. enquiry before, in attachment proceedings, 296. habeas corpus, application for writ of, to, 302. jurisdiction of, extent of, 62, 66, 309, 667. order of, appeal from. See Appeal. appointing umpire, 611. reference by order of, 536. to. Order XIV., under, 531, 647. to settle form of release, 224, 402. referring back award by, 182. release directed by award to be settled by, 224, 402. removal of arlntrator by, 194. shijj, of, submission by, 26. special referee, powers with regard to, 427. statement of case, power to direct, 307. stay of proceedings, power to order, 114. suhpxena, application for writ of, to, 302. taxation of arbitrator's charges by, 196. of costs by, 493, 494. transfer of reference to official referee by, 86. umpire, appointment of, by, 611. variation, &c., of report by, 516. See also Court; Judge. MATRIMONIAL CAUSE, reference of, 4. separation deed, whether within arbitration clause as to differences, 91. MATTER, agreed to be referred, submission limited to, 90. arbitration whether a, within Order XXXVIL, r. 5, 138. cause, in the, reference of, 77. difference, in, meaning of, 76-78, 80, 82-84. outside scope of submission, position of, 90-93, 465. parties, between the, reference of, 77. MEASUREMENT, award directing, finality of, 223. MEETING, appointment of, form of, 612. arrangements for, duty to make, 361, 364, 369, 375, 376. discretion of arbitrator as to, 376. notice of, failure to give, 376. preliminary, business of, 368. MESNE PROFITS, jurisdiction of arbitrator as to, 84. METALLIFEROUS MINES REGULATION ACT, 1872, provisions for arbitra- tion of, 17. METROPOLIS LOCAL MANAGEMENT ACT, 1855, reference to settle compen- sation under, s. 225 of, 11. METROPOLIS MANAGEMENT AND BUILDING ACTS AMEND]\IENT ACT, 1878, reference under s. 11 of, as to place of public entertainment, 11. MILITARY LANDS ACT, 1892, reference to settle compensation for land taken, &c., under, 16. MILITARY MANCEUVRES ACT, 1897, reference to settle compensation for damage under, 16. MILITARY PURPOSES, reference to settle compensation for land taken or damage done in connection with, 16. INDEX 723 MINING LEASE, arbitration clause in, scoiDe of, 94. reference of question touching, 80, MINISTERIAL ACT, delegation of, 222, 399. reservation in award as to, 222. MISCARRIAGE of justice, as ground for revoking submission, 56, 59. MISCONDUCT, arbitrator, of, adjournment, in refusing, 200, 389. affidavit in answer to allegation of, 246. appointment of insolvent receiver as, 198. carelessness as, 385. condemnation in costs on account of, 255. defence, pleaded by way of, 271, 284. effect of, 37. evidence, in relation to, 174, 175, 384, 386-388. excessive remuneration, in charging, 203, 489. injunction on, 68. legal, meaning of, 387. misdemeanor, when a, 197, 368. not following opinion of Court as, 200. particulars of, on motion to set aside, 245. period during which must arise, 198. reference, before the, 198. during the, 198. refusal to adjourn as, 200, 389. to examine witness as, 200. to state case as, 200. remedy in case of, 68, 164. remitting award for, 173-175. removal on account of, 62, 192. revocation of submission on ground of, 57, 60. setting aside on ground of, 192, 194, 198-206, 245. special case, improper condition to statement of, as, 304. refusal to state as, 200. stay of proceedings on ground of, 101, 106. waiver of, 61. what amounts to, 174, 194, 195, 198-206, 362. party, of, no excuse for misconduct on part of other party, 422. MISDEMEANOR, compromise of, effect of, 7. misconduct of arbitrator as, 197, 368. reference of, 6. MISTAKE, accidental, arbitrator's power to correct, 170. admission of arbitrator that he has made, 164, 170, 173, 213. affidavit, in, 294. arbitrator, of, general effect of, 362. misconduct, as, .385. attachment, as defence to, 286. award, in, clerical, 135, 149-151, 286. correction of, 135, 168, 410. defence, as a, 271, 286. effect of, 362. incurable, 234. law, in, 3, 167-170, 173. name of party, as to, 166, 286. not appearing on face of award, 168. objecting party, in favour of, 249. 724 INDEX MISTAKE— continued. award, in, on face of award, 209-214. procedure on, 165, 166, 170-173, 209-214. recitals, in, 445. what will be remedied, 171, 172. careless, 385. correction of, 135, 149-151, 168, 170, 212, 410. remitting award with a view to, 170, 188. counsel's opinion on case stated, in, 142. defence, pleaded by way of, 271, 286. evidence, in regard to admission of, 58, 59, 62, 384. excess of jurisdiction as a, 151. fact, of, rights in case of, 172, 206. form, mere matter of, in, 360. law, in, rights in case of, 3, 55, 57, 167-170, 173, 206, 381, 404. name of party, as to, 166, 286. of umpire, as to, 294. parties bound by, how far, 383, 384. l^leading, in, 375. proceeding after discovery of, 420. remitting award on account of, 150, 164-170, 172, 173, 188. revocation of submission on account of, 57. .setting aside award for, 209-214, 245, 271, 272, 303, 385. MONTH, meaning of, 336, 339. MORTGAGE, partner, by, arbitration clause in partnership deed as a ground for staying proceedings by mortgagee, 89. reassignment of mortgaged premises, award directing, 227. MOTION, attachment, with a view to, 291, 292, 295. cross, attachment, for, 295. setting aside, for, 295. enlargement of time, for, 159. notice of. See Notice. remission of award, for, 182, 185. report, &c., of referee, with reference to, 566-569. setting aside award, with a view to, appeal from, 255, 256. costs of. See Costs. cross, 295. filing fresh affidavit on, 252. hearing of, 248. opposition to, 246, 248-252. procedure on, 145, 236-256. remission on, 183. result of, 252. second, 253. special case, turned into, 247. who may move, 236. stay of proceedings, with a view to, 115. MUNICIPAL CORPORATIONS ACT, 1882, reference under s. 153 of, 11. MUNITIONS OF WAR ACTS, 1915 and 1916, provisions for arbitration t)f, 17.. MUTUAL INSURANCE ASSOCIATION, reference under rules of, 270. NAME, mistake in award as to, 166, 286. NECESSARIES, infant, for, reference with respect to, 20. lunatic, for, reference with respect to, 21. INDEX 725 NEGLECT, arbitrator, of, act, to. See Refusal. award, to make, 63. party, of, effect of, 279, 362. See also Failure ; Laches. NEGLIGENCE on part of arbitrator, 196, 385. NOMINATION, arbitrator, of, meaning of, 121, 126. refusal of party to nominate, rights on, 51. NON- APPOINTMENT of arbitrator, 117, 118, 129. NOTES, arbitrator's duty to take liis own, 377. inspection of, 248. NOTICE, absence of party, of intention to proceed in, 396. advertisement, by, 128. appeal, of, Court of Appeal, to, 116, 307. Divisional Court, to, 307. judge in chambers, from, 116, 307. Master's order, from, 116. appointment of arbitrator, of, 126, 133, 363-365. third ]mrty's intention to make, 122. with a view to, 117, 118, 125, 129, 133, 609, 610. arbitrator, by, to umpire of disagreement, 614. to, act, to, 335, 363-36.'). revocation of his authority, of, 616. attachment, on proceedings for, 290, 292. award, of, to party, 237, 268, 617. claim for compensation, of, under Military Manoeuvres Act, 1897, 16. counsel, of intention to appear by, 379. dispute not deemed to have arisen until after, 91. duty of arbitrator to inform opponent of communication from a party, 395. enlargement of time, in case of, 159, 290. hearing, of, 364, 376. failure to give, 376, 391. judicial, of improper stamping of award, 443. meeting, of, after party's withdrawal from the reference, 396. where disputes not considered, 393. objection, of, what is sufficient, 417. party, by, unable to attend, 377. to, to attend, failure to give, 376, 391. peremptory, marked, 396. l)erformance of award, with a view to, 469, 470. third party, to, 470. production of documents, with a view to, 246. recital in award as, 290. remission of award, proceedings for, on, 182, 185. reconsideration by arbitrator after, of, 188. report by referee, of, 512. .setting aside, proceedings for, of, 236, 240, 241. sole ai'bitrator, to concur in appointment of, 609. statement of case, on appeal as to, 307. stay of proceedings, on appeal as to, 116. step in pi'oceedings, how far a, 96. third party, to, to perform award, 470. party's intention to appoint arbitrator, of, 122. umpire, appointment of, with a view to, 117, 118, 610. to, of disagreement of arbitrators, 614. 726 INDEX NUISANCE, direction in award as to abatement, &c., of, 227, 455. form of award with reference to, 630-632. NUMBER of arbitrators, usually appointed, 123. OATH, arbitrator's power to administer, 135-138, 371. dispensation with, 138. examination of witness on, 137, 356, 357, 389. form of, 612, 613. OBJECTION, admission of public to hearing, to, 378. attachment proceedings, in, 284-289, 296. award, to, award to be brought before Court on, 244, 245. delay in making, effect of, 232. insufficiently set forth, effect of, 243. right to have decision on, 297. trifling character, of, 232. various causes for, 268-276. waiver of, 230, 231, 251, 252. estoppel by conduct after taking, 415. extrinsic to matter referred, 465. how to be taken, 415. incapacity of party, on account of, 230. legality of arbitrator's proceedings, to, 396. neglect to take, effect of, 136, 232, 418-421. non-examination of witness on oath, failure to take on, 136. notice of, what is sufficient, 417. party continuing to attend proceedings after taking, effect of, 417. power to proceed with reference notwithstanding, 396. setting aside proceedings, how to be stated in, 241-243. time to take, 230, 362. umpire, to selection of, 331. waiver of, 230, 231, 251, 252, 409, 415, 465. OFFICE COPY of special case, 145. OFFICER OF COURT, arbitrator as, 425. official referee as, 545, 548. special referee as, 426, 545. OFFICIAL, person in official position, appointment of arbitrator by, 120, 121. OFFICIAL REFEREE, appeal from, 565-570, 660. appointment and position of, 85, 660. award of, 557-564. conduct of reference by, 549-554, 667. costs, power as to, 572, 576-585. judgment, entry of, by, 564. naming in submission of, 85. officer of Court, as, 86, 545, 548, 660. powers of, 545. reference to, 84, 508, 529. application for, 503, 666. fees on, 85, 668. procedure on, 85, 529, 666-668. remuneration of, 545, 549. report of, 545-548, 565. rules of Court applicable to reference to, 86, 662-668. statement of case by, 554-556. subject to any order of the Court or a judge, 86. INDEX 727 OMISSION, arbitrator, of, award, in regard to his, 166, 173, 214, 216, 284. award, in, defence to attachment, as, 284. power to supply, 150. matter in difference, of, through deeming it not within submission, 465. party, of, affecting the finality of the award, 249-251. not bringing matters in difference forward, in, 249-251, 464, 465. not raising objection during proceedings, in, 303. See also Laches ; Mistake ; Neglect. OPINION, adoption by arbitrator of third person's, 269. counsel, of, taking, 142, 223, 404. Court, of, action by arbitrator in accordance with, 55, 305. ORDER, authority under Arbitration Act, 1889, of, costs of, 309. Court, of, attachment proceedings, in, 292. auxiliary relief, granting, 113. award made, effect of, 258, 463. with a view to enforcement of, 258, 264. appeal from, 264. costs of, 264. reference under, by consent, 496, 531-535. for enquiry or report, 496, 499-519. for trial, 519, 522, 529, 530. general remarks on, 496-498. out of Court, 425, 426, 496, 531-535, 606. outside Arbitration Act, 1889, 531-533. revocation of submission, giving leave for, 54. service on arbitrator of, 363, 365. special case, on, 147. stay of proceedings, for, 114, 607. appeal from, 116. discharge or variation of, 114. submission as, 46, 50. not to have effect of, 52, 282. judge, of, appeal, on, 66. enlargement of time, for, 341. Interpleader Act, 1831, under, 35. stay of proceedings, for, 116. Master, of, appeal from, 66, 264, 307, 531. appointing umpire, 611. Quarter Sessions, of, reference under, 5. ORDER XIV., reference to Master under, 531. ORDNANCE BOARD TRANSFER ACT, 1855, reference as to rights of common under, 16. ORIGINATING SUMMONS, enforcement of award, with a view to, 263. enlargement of time, with a view to, 159. remission of award, with a view to, 182. statement of case, with a view to, 307. OUTLAW as arbitrator, 34. PARDON, award that one party should beg the other party's, 222, 447.- PARISH, reference by minister and parishioners, effect of, 24. PARLIAMENT, authority of, for reference as to public and ])rivate rights, 8. 728 INDEX PAROL, alteration of submission by, 322. appointment of arbitrator by, 323. award, validity of, 434. consent to enlargement of time, 344. submission, Arbitration Act, 1889, not witliin, 50. effect of, 26, 27, 47, 50, 261, 265, 280, 282, 322. proof of, 276. revocation of, 51. rule of Court, as, 27. written agreement, in pursuance of, 51, PART of award, enforcement of, 299, 300. PART PERFORMANCE, award, of, efl'ect of, 280. pleading by way of defence of, 285. PARTIALITY, arbitrator, of, 197, 199, 390, 407. conference with party appointing liim as evidence of, 408. defence, pleaded by way of, 271, 284. umpire, of, 413. PARTICULARS, direction by arbitrator for delivery of, 369, 373. form of, 614. motion to set aside award, to be set out on, 242, 245. PARTITION, joint tenants, between, arbitrator's jurisdiction to order, 2. tenants in common, between, effect of award directing, 2, 466. PARTNER, acquiescence in unauthorised submission by, 23. award in dispute with, form of, 618-620, 636-638. liability of, in case of submission, 23, 24, 28. mortgagor, stay of action against, 89. non-authorisation of reference by, effect of, 286, 297. personal undertaking to perform award by, 24. power to refer of, 22. reference of dispute with, 28, 79, 81, 113, 114. submission by, upon condition that all concur, 23. PARTNERSHIP, articles, application of arbitration clause in, 92, 93, 316, 604. appointment of arbitrator under, form of, 608. auxiliary relief in case of reference as to, 113, 114. form of arbitration clause in, 604. reference as to construction of, 79, 106. award based on incorrect account, effect of, 465. containing directions as to, 23, 106, 230, 451, 452, 618-620, 636-638. continuation after appointed term of, application of arbitration clause in case of, 92, 93. dissolution of, award on, 99, 451, 452, 637. ground for refusal to stay proceedings, as, 98, 99. fraud in connection with, whether a question for arbitration, 102. stock of, award as to, 230. PARTY, absence of. See Ahence. acquiescence by. See Acquiescence. addition of, in reference under order of Court, 538, 553. admission by, evidence of, 276, 393. agent as, 120. INDEX 729 F ARTY— continued. arbitrator's refusal to hear, 271, 272, 398. assent of, appointment of umpire, to, 331. reference to special referee, to, 522, 529, 533. submission, to, proof of, 276. assignment by, of contingent right under award, 468. attachment of. See Attachment. attendance of, necessity of, 361, 395, 396. bankruptcy of. See Bankruptcy. bound by award, 468, 477. Chancery suit, to, reference of difference with, 82. collusion with arbitrator of, 75. common interest, having, position of, 24. consent of, to enlargement of time, 342-345. consultation of Court on legal point by, 305. continuing proceedings after taking objection, &c., 415, 418. convicted felon, a, 231, 232. death of. See Death. different country, in, attachment of, 282. rights and duties under arbitration clause of, 323. service on, 128. disappearance of, notice by advertisement in case of, 128. distributively construed, 82. either, when meaning " every,'' 438, 439. enlargement of time by, powers as to, 342. estoppel by conduct of, 251, 415, 418. examination as witness of, 135, 231, 232, 356-358, 380, 389. absence of other party, in, 359, 361. reconsideration after remission, on, 189. executor or administrator of, how far a, 119. fraudulent concealment by, 204. hearing of, on reconsideration after remission, 189. inability to attend meeting of, notification of, 377. incapacity of. See Incapacity. inspection of property, &c., by, 372. joinder of, 538, 553. joint and several, 82. death of, 64. keeping out of the way, service on, 291. laches of, 362, 395, 396. liberty of, power of arbitrator to control in award, 446. marriage of female, revocation of arbitrator's authority on, 19. mistake of arbitrator, how far bound Ijy, 383. neglect to attend of, procedure on, 395, 396. non-concurrence in appointment of arbitrator by, 117, 119. not heard by arbitrator, objection on ground of, 271, 272, 398. not injured by award, proceedings by, 248. not ready and willing, effect of, 96. objection by, estoppel of, 415. to, waiver of, 230. pay, directed to, duty of, 471. perform, to, award should identify, 227, 228. performance of award, duty as to, 469. perjury on part of. See Perjimj. person claiming through or under, who is, 89. personal character of, charge against, 101, 103. publication of award to, meaning of, 238. reference of all suits "between them two," meaning of, 81. refusal of arbitrator to hear, 271 , 272, 398. to become, to reference, 63. .separate communication from, duty of arbitrator as to, 395. service on, 128, 236, 243, 264, 291-294. several, award against, 282. execution of submis.sion l)y, 73. 730 INDEX PARTY— continued. signature of submission by, 316, 317. taxation of costs as between, 494. third. See Third Person. waiver b}'. See Waiver. withdrawal from proceedings of, 396. PATENT, action disputing validity of, award as a bar to, 463. award as to existing or future, 460. PAYMENT, amount awarded, of, rule for, 296-298. arbiti-atoi^'s remuneration, of, 299, 487. award for, A. or B. in the alternative, to, 228. enforcement of, 282. person unable to make, by, 228. stranger's funds in hands of party, of, 462. house, at, 461. third person, to, 456, 458, 459. uncertain person, to, 228. costs, of, 289, 484. demand for, 267, 289. duty of person directed to make, 471. necessity of directing in award as to, 448-450. PENALTY, arbitration bond, in, bankruptcy proceedings based on, 301. award directing payment of, 449. improper stamping, for, receipt by arbitrator of, 388. stipulated damages and, confusion in award as to, 229. PERFORMANCE, award, of, generally, 468-474. ultra vires of arbitrator's authority, 289, 474. breach of, 471, 472. collusive or illusory, 470. condition precedent to, 268, 285, 294, 460. conflict of laws with regard to, 323. continuing duty as to, 288. defence, pleaded by way of, 285. demand of, how far necessary, 267, 287-289, 472. excused, when, 468, 474. illegality, involving, 470, 471. illusory, 470-472. impossiljility of, 468, 470, 471. joint and several, 24, 83. non-performance, affidavit as to, 293. not purged by imprisonment, 295. party rendering impossible, 285. sufficiency of, 468-474. time for, 228, 288, 469. ultra vires parts of award, of, 289, 474. PERIODICAL assessments, &c., limits as to time for, 84, 339. PERJURY, award as evidence of, 479. charge of, as ground for refusal to enforce award, 296. indictment for, reference of, 7. witness, of, 139, 232. PERSONAL CHARACTER, charges affecting, as ground for refusal of stay of proceedings, 101, 103. INDEX 731 PERSONAL PROPERTY, hns)>and possessed in right of his wife of, reference where, 19. reference respecting, 1. transfer of, operation of award as a, 2, 466. PERSONAL REPRESENTATIVE, attachment of, 283. award deliverable to, when, 65. evidence of assets, as, 30, 478. bound by award, when, 30, 65, 227, 449, 474. compelling appearance before arbitrator of, 65. enforcement of award against, 30, 31, 283. by, 236. liability for costs of reference of, 65. refusal to appoint arbitrator by, 119. setting aside award at instance of, 236. PERSONAL WRONG, reference of dispute concerning, 1. PIER, reference to settle compensation for land taken for, 9. PLACE, hearing, of, hxing of, 361, 364, 369, 375, 376. trial, of, in reference to special referee, 427, 428. PLAINTIFF as arbitrator, 34. PLEADING, action on award, in, 267-270. amendment of, 374. cause referred, in, as evidence, 284. delivery of, 373. stay of proceedings after, 95. embarrassing, 369. mistake in, 375. reference, of, as a bar to action, 1, 236. POLICY, arbitration a condition in, 110-112. clause in, scope of, 92, 317. award in dispute under, form of, 621-628. submission under, form of, 603. See also Insurance. POSSESSION, surrender of, power of arbitrator to order, 2. POST OFFICE, reference of matter relating to, 5. POWER, arbitrator, of, generally, 359. implied, 358, 369, 372, 374. Court, of. See Court. judge, of. See Judge. POWER OF ATTORNEY, authorising submission, 27. demand amount of award, to, 641. service of copy of, in attachment proceedings, 290. PRACTICE AND PROCEDURE, abridgment of time, with reference to, 238. absence of parties, in case of, 389. adjournment, with reference to. See Adjournment. amendment of pleading, with reference to, 374. aj^peal, as to. See A'ppeal. appointment by Court of arbitrator, on, 127. 732 INDEX PRACTICE AND PROCEDURE— co?ifz««ed attachment, with reference to, 291-296. closing proceedings, as to, 397. commercial arbitration, in, 392. defence, admission of, as to, 380. delivei'y of, as to, 373. delivery of pleadings, as to, 95, 373. emljarrassing pleadings, with reference to, 369. enforcement of award, with reference to, 263-301, 642, 643. enlargement of time, with reference to, 159, 238, 641. examination of sick or infirm person, as to, 389. forms relating to procedure, 640-65]. hearing, with reference to, 380. mistake in jaleading, in case of, 375. opening of case, as to, 380. ordinary course to be followed, 380. particulars, as to. See Particulars. preliminary meeting, with reference to, 368. remission of award, on, 182-187, 642. revocation of submission, with reference to, 66. rule to pay, as to, 298. setting aside award, with reference to, 236-256, 642. statement of case by arbitrator, as to, 307. stay of proceedings, with reference to, 114. summing up of case, with reference to, 380. See also Conduct of Reference ; Pleading. PRECISIOX in award, requirement of, 227. PREMISES, award of and concerning the, 214, 219. non-repair of, reference as to, 80. PRESIDENT OF INSTITUTE OF CIVIL ENGINEERS, appointment of arbitrator by, 119, 121. PRESUMPTION in favour of award, 207, 218, 359, 360. PRICE, market, award fixing payment at, 225. property, of, determination by third person of, 318-320. purchase, of property, reference as to, 1. PRISON ACT, 1877, reference under, 12. PRISONER, examination as witness of, 302, 424, 427. PRIVATE RIGHT, reference under Act of Parliament of, 8. PRIVILEGE, arbitrator, of, 275, 276. arrest, from, 283. attachment, from, 285. PROBATE DIVISION, attachment in, 291. PROCEDURE. See Practice and Procedure. PROCEEDINGS, action, by way of. See Action. preliminary meeting, at, 368. reference, in, 363-429. stay of. See Stay of Proceedings. See also Conduct of Reference ; Practice and Procedure. INDEX 733^ PRODUCTION OF DOCUMENTS, party, by, 356, 357. notice by arbitrator with a view to, 613. reference to judge as to, 35. setting aside, on motion with a view to, 245-248. special referee, to, 427, 428. PROFESSIONAL ASSISTANCE, arbitrator's power to employ, 403. award, in drawing up, 405, 435, 584. costs of, 488. special referee's power to employ, 426. PROLONGED EXAMINATION of documents, reference in case of, 523. PROPERTY, arbitrator, in hands of, action to recover, 481, 482. arbitrator's power to bind by award, 446, 447, 455. award directing as to disposal of, 227, 446-462. operative to transfer, how far, 2, 466. determination by third person of price of, 318-320. future, jurisdiction of arbitrator over, 83. use of, reference as to, 4. inspection of, 361, 372, 373, 428. personal. See Chattel ; Personal Property. purchase price of, reference relating to, 1. real. See Real Property. restrained from anticipation, whether award can bind, 19. PROSECUTION, agreement to forbear from, 7. arbitration stifling, 6. reference after verdict of acquittal, 7 PROTEST, attendance of party under, 416, 417. neglect to make, eft'ect of, 418. sufficient, what is, 417. See also Objection. PROTHONOTARY, reference as to costs of, 35. PUBLIC, right of, to be present at hearing, 378. PUBLIC HEALTH ACT, 1875, award under, finality of, 464. setting aside, 235. time for, 353. building line, reference with regard to, under, 10. canal, interference with, reference as to, under, 10. compensation for injury to land, award of, under, 261. costs of reference under, 495. enforcement of award under, 298. enlargement of time under, 156, 3.53. jurisdiction of arbitrator under s. 150 of, 10. misconduct of arbitrator as a misdemeanor under, 198. parol axjpointment of arbitrator under, 323. reference of question arising under, 10. remission of award under, 181. sewers expenses, award as to, under, 262, 263. statutory declaration by arlntrator under, 367. umpire, appointment of, under, 328. 734 INDEX PUBLIC OFFICER, appointment of arbitrator by, 37, 120, 121. attachment of, 283. corporation, of, reference by, 32. PUBLIC POLICY, submission contrary to, position of, 67, 73. PUBLIC RIGHTS, reference as to, 8. PUBLICATION, award, of, 237, 238, 436, 437. notice of, 238. PUMP, ownership and user of, power of arbitrator to decide as to, 4. PURCHASE, submission of dispute arising out of, 1, 599, 600. QUARTER SESSIONS, abortive reference by, effect of, 544. award enforced as judgment of, 5. civil proceedings at, reference of, 5, 539. costs of reference out of, 575. submission by order of, 5, 539, 540, 648. RACE, boat race referee, jurisdiction of, 338. steward of, as arbitrator, 36. RAILWAY, abandonment of. See Abandonment of Railicays Act, 1850. accident, reference to settle compensation for, 9. arbitrator nominated by Board of Trade in case concerning, 91. charge by company for services rendered to trader, reference as to, 91. regulation of. See Regulation of Raihvays Act, 1868. RAILWAY COMPANIES ARBITRATION ACT, 1859, arbitrator under, appointment of, 49, 135. unfitness, &c., of, 334. award under, form of, 444. several, 218. temporary effect, with only, 463. conduct of reference under, 357, 358. costs of reference under, 495. examination of witness under, 138. proceedings in absence of company und-er, 397. reference of difference under, 8, 9. umpire, appointment of, under, 328. RAILWAY PASSENGERS ASSURANCE COMPANY'S ACT, 1864, award in form of special case under, 144. RAILWAYS CLAUSES CONSOLIDATION ACT, 1845, arbitrator under, apjtointment of, 48, 134. award under, form of, 443. compensation for land taken or injuriously affected, reference to settle, under, 9. conduct of reference under, 357. costs of reference under, 495. death, effect of, in reference imder, 65, 118. examination of witness under, 138. ex parte^ power to proceed, under, 397. incapacity of arVjitrator under, procedure on, 118. miscondiict of arbitrator under, as a misdemeanor, 198. statutory declaration by arbitrator under, 367. umpire, appointment of, under, 328. RANGES ACT, 1891, settlement of compensation by arbitration undei', 16. INDEX 735 RATE, reference of dispute as to, 5. EATIFICATION, infant, by, of submission, 20. partner, by, of submission by partner, 22, 23. READY AND WILLING to do all things necessary to the conduct of the arbitration, 96. REAL PROPERTY, award how far operative as transfer of, 466. reference to arbitration of question affecting, 2. title to, reference as to, 2. RECEIVER, appointment of, as auxiliary relief, 113. award appointing, 230. insolvent, appointment of, 198. RECITAL, award, in, false, 445. notice, as, 290. unnecessary, 444. useful, when, 444, 445. submission, in, effect of, 81. RECONSIDERATION, redetermination and, distinguished, 162. RECTIFICATION, agreement to refer, of, stay of other proceedings pending, 90. award, of, 171. REDETERMINATION, reconsideration as distinguished from, 162. REFEREE, accountant as, 383, 394, 401, 403. arbitrator and, distinguished, 365. assessor as, 584. attachment by, 553. boat race, of, commencement of jurisdiction of, 338. committal by, power as to, 428, 553. judge and, compared, 33. judgment of, 366, 564, 565, 650. setting aside of, 567, 650. officer of Court, as, 365. official. See Official Referee. report of, setting aside, 569. special. See Special Referee. statutory, 365. valuer and, distinguished, 318. REFERENCE, accident, compensation for, to settle, 9. account, matter of, as to, 81, 511, 525. action, of, 2, 5, 35, 77, 78, 81, 94, 364, 605. adding party to, 538, 553. adjournment, practice as to. See Adjournment. administrator, by, 29. affidavit on, to referee, 50.3. agent, by, 26-29, 120, 316. agreement to refer and, 44, 88, 152. allotment, as to, 8, 466, 467. appointment of arbitrator necessary in, 133. apprentice, as to, 446. Arljitration Act, 1889, under. See Arbitration Act, 1889. arbitration, to. See Arbitration ; Submission. 736 INDEX REFERENCE— co7itimied. arbitrator's discretion as to conduct of, 198 assault, claim arising out of, as to, 7. assignee of contract, by, 27. award in. See Award. bankrupt, by, 21. Bankrupt Law Consolidation Act, 1849, under, 2.31. bankruptcy of party in course of, 65, 301. bastardy matter, of, 5. beginning of proceedings, what is, 336. bill of lading, under, 80. Board of Trade, under control of, 9-12, 91, 109, 135. boundary, to settle, 2, 4, 8. building contract, in pursuance of, 320. line, as to, 10. Building Societies Acts, 1874 and 1894, under, 14, 15, 306. canal, interference with, as to, 10. case closed, consideration of new matter after, 344, 399. cause, of, meaning of, 77, 78. cemetery lands, as to, 9. charity matter, as to, 3, 454. charter-party, under, 80. civil matter, of, 1. connnercial nature, of, 392. connnon, rights of, as to, 8, 16. Companies ClaiLses Consolidation Act, 1845, under, 8, 11. Companies Consolidation Act, 1908, under, 8. compensation, to settle. See Compensation. complaint, of, meaning of, 77. compulsory, powers as to, 69, 163. Conciliation Act, 1896, under, 12. conduct of. See Conduct of Beference. conflict of laws with regard to, 323. consent, by, order of Court, by, 5, 6, 364, 365, 519, 529, 533, 535-537, 585. out of Court, 45-495, 585. contract, construction of, as to, 79, 104, 106, 107. controversy, to end, 77. convict, by, 21. conviction, effect of, on, 7. Copyholds Act, 1894, under, 17. corporation, by, 25, 32, 315. corruption, procured by, 193. costs of. See Costs. counsel, by, powers as to, 29, 534, 535. County Court, order of, under, 48, 236, 539, 669. Court, order of, under. See Beference under Order of Court. criminal matter, of, 6-8. Crown as party to, 310. lands, as to, 16. damages, as to, 506. debt, as to, 2, 77. delay in completing, effect of, 96, 97, 197. demand, as to, 2, 77. difference, matters in, of, 76-78, 80, 82-84, 133, 321, 465. dock, in connection with, 9, 10. drainage, in connection with, 9, 469. Education Act, 1902, under, 10. Electric Lighting Acts, 1882, 1888, and 1899, under, 11. enquiry or report, for. See Eiiquiry ; Beport. entering ujaon, 336, 346. evidence at. See Evidence. exclusion of person entitled to be present at, 199, 378, 417. executor or administrator, by, 29-31. INDEX . 737 HEFERY.NCE— continued. expensive character, of, 98, 100. Factory, &c., Acts, 1891, 1895, and 1901, under, 12, 328. felony, matter involving, of, 6. foreign tribunal, to, 36, 98, 101, 321. fraud, question involving, of, 3, 101-103, 112, 622-624. Friendly Society di-pute, of, 13, 14, 235, 306. futile, injunction to stop, 67. future use of property, as to, 4. Gas Works Clauses Act, 1871, under, 11. goods, quality of, as to, 78, 101. ground game, damage from, as to, 113. harbour matter, as to, 9. hearing, practice as to. See Hearing. highway, non-repair of, as to, 7. holding of, meaning of, 339. over by tenant, as to, 92. idiot, by, 21. illegality, tainted with, 3. indictment, of, 6-8, 281, 536, 648. infant, by, 19, 420. injunction, interference by, in, 66-69. injury, of, 77. insurance matter, of, 91, 603, 624. joint, 64, 126. and several, 24, 82, 83. judgment, as to, 5, 463. judicial conduct of, required, 139, 358-361, 371. enquiry not involved in, effect of, 318. justices' power to refer, 5. land, purchase of, as to, 1, 10. title to, as to, 416, 478. landlord and tenant dispute, of, 2. Lands Clauses Consolidation Act, 1845, under, 8, 11, 357. law, question of, of, 3. layman, to, 305. Light Railways Act, 1896, under, 10. limitation of actions in connection with, 265, 273, 380. Lloyd's, member of, to, 105. Local Government Acts, 1888 and 1894, under, 10, 306. local investigation, matter necessitating, of, 524. London Building Act, 1894, under, 10, 600-602. lunatic, by, 21. market or fair, as to, 9. married woman, by, 18, 231. Master, to, under Order XIV., 531. matrimonial cause, of, 4. matters not considered at, position with regard to, 215. not referable, 5, 6, 90-93, 465. referable, 1-17. Metropolis Management, &c.. Act, 1878, under, 11. mining matter, as to, 80, 328, 347. Municipal Corporations Act, 1882, under, 11. mutual insurance association, under rules of, 270. necessaries for infant or lunatic, as to, 20, 21. not completed within time, jiosition of, 271. nuisance, as to, 227, 455, 630-632. official referee, to. See Official Referee. Order XIV., under, to Master, 531, 647. order of Court, under. See Reference under Order of Court. ouster of jurisdiction of Court by, 73-76, 110. parish minister and parishioners, by, 24. parliamentary authority for, 8. 47 738 INDEX REFERENCE— coniinwef^. parol, by, 26, 27, 47, 50, 261, 265, 276, 280, 282, 322. partition, as to, 2, 466. partner, by, 22, 23. partnership matter, as to, 28, 79, 81, 99, 106, 113, 114, 451, 452, 618-620, 636-638. party having common interest, by, 24. several, 73. suits between them two, of, 81. patent, as to, 460. penal matter, as to, 5-8. personal chattels or personal wrongs, concerning, 1. pier, in connection with, 9. plaintitt" in action, to, 34. pleading of, in bar of action, 1, 236. policy, in pursuance of, 92, 110-112, 317, 603, 621-628. post office matter, of, 5. practice and procedure with regard to. See Practice and Procedure. preliminary meeting, business of, 368. premises, non-repair of, as to, 80. price, as to, 1, 225, 318-320. Prison Act, 1877, under, 12. private right, of, under Act of Parliament, 8. proceedings in, 363-429. prolonged examination of documents, in case of, 523. prothonotary's costs, as to, 35. Public Health Act, 1875, under, 10. public officer, by, 32, 37, 120, 121. policy, against, 6, 73. right of, to be present at, 378. rights as to, 8. purchase, dispute arising out of, of, 1, 599, 600. Quarter Sessions, by order of, 5, 539, 540, 648, 671, 672. Railway Companies Arbitration Act, 1859, under, 8, 9. rating dispute, of, 5. real property, concerning, 2, 466. referee, position of. See Referee, refusal of arbitrator to complete, 197. reopening of, 399. service on arbitrator of order of, 363. single arbitrator, to, 117-119. solicitor on record, by, 29. special referee, to. See Special Referee. "stage," any, of, meaning of, 302, 303. statement of case pending, 302-308. statute, under, 8, 69, 109, 155, 306. submission to. See Submission. suit, of, 2, 76, 81. taxation of costs, for, 223, 493, 494. tenant's rights, as to, 318-320. trial, before, 503. for. See Reference binder Order of Court. trustee, by, 31. in bankruptcy, by, 32. two arliitrators and a third, to, 408. umpire's entry upon, 346. usage, incorporation of, 392. valuer, to, 318. verdict of acquittal, after, 7. will, construction of, as to, 3. written statement of subject-matter of, utility of, 397. REFERENCE UNDER ORDER OF COURT, action, of, 2, 5, 35, 94, 364, 496, 531, 538, 606. Arbitration Act, 1889, applicability of, 496, 531-533. INDEX 759 REFERENCE UNDER ORDER OF COVET— continued. consent, by, 364, 365, 531, control by Court of, 86, 424, 425, 531. importance of terms of order for, 425. order of Court for, 364, 365, 425, 498, 531, 535. rules of Court for conduct of, 86, 425, Court of Appeal, powers of, 586. enquiry or report, for, 499-519. conduct of, 549-554. distinction between reference for trial and, 500. judicial enquiry meant by, 500-502. order for, 502-509, 645. previous legislation as to, 499, report in, 509-518. statement of case by referee in, 518, subject-matter of, 504-507. time for, 502, whom, to, 507-509. general remarks on, 496-498. powers of Court Avith respect to, 496-498, 585. trial, before, application for, 503. for, 519-542. adding parties in, 538. amendment of, 537, 538. appeal from order for, 530. conduct of, 549-554. consent to, 531-535. costs of. See Costs. County Court, out of, 539. discretion of Court to grant, 526-529. failure of, 541, 542. judgment in case of, 540, 541. jurisdiction to ordei', 521-52.3. order of Court for, 535, 536, 645-647. previous legislation as to, 520, 521. Quarter Sessions, by order of, 539, 540, 648, 671, 672. reference to Master under Order XIV., 531. summons with a view to, 529. usual terms, on, 536, 537. what cases, in, 519, 523-526. REFERRING BACK of award. See Remission. REFUSAL, arbitrator, of, act, to, 117, 118, 120, 121, 125, 331, 333, 334. failure to appoint successor on, 397. one of two arbitrators, by, 122, 129. what is, 122, 132. allow presence of party at taking of evidence, to, 417. appoint umpire, to, 124. consider matters submitted, to, 174, 465. examine witness on oath, to, 137. fulfil duties within time, to, 154, 197, hear party, to, 398, state case, to, 140, 175-177. party, of, effect of, 279, 362. inform other jiarty of nature of dispute, to, 133. pay arbitrator's fees, to, 196. umpire, of, act, to, 117, 121, 125, .353. rehear evidence, to, 423. REGISTRAR, Friendly Societies, of, reference to, 13. Probate Division, of, jurisdiction as to attachment of, 291. 740 INDEX REGULATION OF RAILWAYS ACT, 1868, reference to settle compensation for injury under, 9. RELATIONSHIP of arbitrator to party, how far a discjualifieation, 37, 202. RELEASE, award directing execution of, 223, 224, 227, 473, 639. mutual, award of, 216, 219, 224, 639. settling form of, delegation of duty of, 402. RELIEF, auxiliary. See Auxiliary Belief. REMISSION (or Referring Back), amendment of award, after, 179. appeal from order on application for, 147, 186. application with a view to, 182-187. arbitrator /M?iry consent of, 48. Court's discretion as to, 53, 56-58, 424. general refusal of leave for, 56, 58, 59, 304. damages for, 46, 50. deatli of party as, 64, 65. clause in suomission preventing, 65. evidence improperly received, where, 57. not procurable, where, 63, 64. exceptional cases, in, 63. form of, 615. generally, 46, 49, 50, 424. grounds for, 50, 57. irrevocable, submission usually is, 46, 285, 313, 324. judge's discretion to grant leave for, 53, 56-58, 424. justification of, 47. Lands Clauses Act, 1845, undei', 48, 65. law, error in regard to, for, 303, 381. marriage as, 19. miscarriage of justice, to prevent, 56. notice to arbitrator of, 616. parol submission, in case of, 51, 322. powers as to, 46, 49, 313. previous legislation as to, 47. Railway Companies Arbitration Act, 1859, under, 48. Railways Clauses Act, 1845, under, 48, 65. refusal of party to suit to become party to reference, on, 63. reservation of power of, 52. statement of case with a view to, 59. submission not within ss. 5 and 6, where, 63. summons with a view to lea-»e for, form of, 615. valuer, authority of, of, 52. RIGHT-OF-WAY, award of, 457. INDEX . 743 RIVER, interference with, reference under Public Health Act, 1875, with regard to, 10. ROAD, setting out public, reference with regard to, 8. RULE OF COURT, amount awarded, to pay, 296-298. award of costs made, 48. cause, referring, 364, 425, 498, 531, 535. eifectual as. a judgment, 259. meaning of, 312. official referee, with reference to, 86. powers conferred on Master by, 309. reference out of Court, controlling, 86, 358. scope of application of, 358. submission as, 27, 47, 50, 52, 258, 259. not to have effect of, 52, 282. RULES OF SUPREME COURT, application of, to reference by consent out of Court, 425. Orders XIV., XVII., XXXVL, XXXIX., XL., XLIL, LIL, LIV., LXIIL- LXV., text of, 661-668. special referee, binding on, 426. SALE OF GOODS, reference of dispute arising out of, 78, 101. settlement of price by third person, position of, 318. SALE OF LAND, settlement of price by third person, position of, 318, 320. SCIENTIFIC INVESTIGATION, reference of matter involving, 523, 524. SCOTLAND, Arbitration Act, 1889, not applicable to, 323. judicial arbiter in, delegation by, 403. witness in, compelling attendance of, 302. SCOTS LAW, death of arbiter, effect of, 64. reference of cause, &c., meaning of, 78. SEAL, award under, stamp duty in case of, 441. stipulation for, 433. SECRETARY OF STATE, nomination of arbitrator by, statutory provisions for, 11, 12. powers of Secretary of State for War under Defence Act, 1854, with reference to rights of common, 16. SECURITY, award directing giving of, 226, 227. SECURITY FOR COSTS, power to require, 375. SEPARABILITY, good and bad parts of award, of, 229, 232-234, 280, 299, 458. in.separability of bad part, effect of, 222, 300. lump sum awarded for (li.stinct injuries, effect of, 270. matters in dispute, of, 107, 113, 161. specific performance of award bad in part, 280. SEPARATION DEED, Court's jurisdiction to .settle, notwithstanding arbitration clause as to differences, 91. reference to arbitration of terms of, 4. 744 INDEX SERVICE, affidavit, of, attachment proceedings, in, 292-294. notice of motion to set aside, on, 243. arbitrator, on, of order of reference, 363. award, of, irregularity as to, 284. documents, of, motion for attachment, on, 290-294, sufficiency of, 290-292. irregularity in regard to, of rule or award, 284. Master's allocatur as to taxed costs, of, 290. notice of motion for attachment, of, 292. to set aside award, on, 236, 243. order of reference, of, on arbitrator, 363. originating summons with a view to enforcement of award, of, 264. out of jurisdiction. See Service out of the Jurudiction. personal, Avhen unnecessary, 291. rule or award, of, irregularity in regard to, 284. substituted, when allowed, 291. sufficiency of, 290-292. See also Notice. SERVICE OUT OF THE JURISDICTION, notice of motion to set aside award, of, 243. summons to enforce award, in case of, 264. with a view to appointment of arbitrator, umpire, &c., of, 128. SET-OFF, amount awarded, to, when allowed, 297. award of balance after, 634. costs, of, 582. failure of award to ascertain amount of, 218. reference as to, scope of, 84. SETTING ASIDE, appointment of arbitrator, of. See Removal. attachment, 295. awai'd, acquiescence of party as a bar to, 251. affidavit in answer to motion for, 246. with a view to, 231, 241, 243-248, 252. Agricultural Holdings Act, 1908, under, 256. appeal in case of, 255, 256. application for, 184, 236, 256, 667. second, 253. Arbitration Act, 1889, prior to, 193. under, 194, 198-206. arbitrator, appearance bv, 254. appointed by lot, where, 61, 69, 201, 329-332. condemned in costs of, when, 254, 255. misled or deceived, where, 204. bankruptcy of party, made after, 301. bankrupt's assignee, at instance of, 236. bribery of arbitrator, on account of, 204, 248. condition precedent not performed, where, 366. corruption, arbitration procured by, where, 193. costs of, arbitrator condemned in, when, 254, 255. reference after, 493. County Court, in reference ordered by, 236. Court's jurisdiction as to, 193, 206-231, 240. cross motion for, 295. delegation of authority, on account of, 401. departure from judicial rules, on account of, 362 discovery of new evidence, on, 231. documents, production of, on motion for, 244, 245. evidence, discovery of new, on, 231. false, on account of, 232. INDEX 745 SETTING ASIDE— continued. award, evidence, non-discovery of, on, 231. wrongful reception or rejection of, on account of, 382-388. excess of authority, on account of, 229, 415-417. exclusion of party, &c., on account of, 378. executor or administrator of party, at instance of, 236. fraud, on account of, 165, 173, 174, 203, 204. generally, 145, 192, 198-256. grounds for, 4, 192, 198, 231, 232, 402. illegality, on account of, 4, 230. improperly procured, 192, 194, 203. injustice, on account of, 402. insufficient grounds for, 231, 232. hearing, on account of, 272. interest on -p-Art of arbitrator, on account of, 202, 414. irregularity, on account of, 376, 389. judgment to be entered simfliciter, for directing, 218. « law, error in, for, 303. matters not considered by arbitrators, on account of, 249-251, 269. misconduct of arbitrator, on account of, 192, 194, 198-206, 245, 271, 272. misleading or deceiving of arbitrator, on account of, 204. mistake on part of arbitrator, on account of, 209-214, 245, 271, 272, 303, 385. motion with a view to, affidavit on, 231, 241, 243-248, 252. cross, 295. practice on, 236-256. non-ascertainment of amount, on account of, 225, 226. non-decision as to question submitted, on account of, 216-218. non-finality, on account of, 214. non-performance during proceedings, on account of, 288. omission of dii'ections effectuating the reference, on account of, 216. partial, 232-235, 299, 300. party moving not injured, where, 248, 249. perjury of witness, on account of, 232. permitting other party to act on award as a bar to, 252. production of documents on motion for, 244, 245. question submitted not decided, where, 216-218. referee's report, in case of, 566. reference after, costs of, 493. by consent out of Court, in case of, 192, 424. improperly ])rocured, in case of, 203. under order of Court, in case of, 540, 542. refusal to hear party, on account of, 398. remission as alternative remedy to, 183. reopening and. See lieopenimi. revocation of submission, made after, 230. rule of Court, made by, 376. second application for, 253. statement made by arbitrator subsequent to award, on account of, 248. statutory arbitration, in, 235, 236. surprise, on account of, 231. time for, 184, 238-240, 667. made after, 230, 238-240. treating of arl)itrator, on account of, 205, umpire a])pointed by lot, where, 201. interested party, where, 414. uncertainty, on account of, 225-227, 457. undue means, where reference ]:)rocured by, 193. unreasonable custom, based on, 432. unsatisfactory reasons given for tlecision, where, 209. whole, as a, 232, 234. witness, incomjietent, on account of, 231, 232. non-exannnation of, on account of, 271. not examined on oath, on account of, 136. 746 INDEX SETTING ASIDE— continued. award, wituess, perjury of, on account of, 232. report of referee, 566. submission. See Submission. SEVERABILITY. See SeparahiHhj. SEVERAL, appointment of arbitrator, etfect of, 126. awards, power to make, 217, 433. parties, award against, 282. SEVERANCE DAMAGE, award silent on suliject of, 217. SEWER, reference under Public Health Act, 1875, as to, 10, 262, 263. SHAREHOLDER, arbitrator who is, in company interested in reference, position of, 38. SHERIFF, arrest on attachment by officer of, 295. SHIP, requisitioned, reference as to hire of, 305. SHORTHAND NOTES, costs of, 584. power to order, 377. SIGNATURE, agreement to refei", of, 315-317. award, of, 270, 436. SKILL, arbitrator, on part of, duty in regard to, 373, 383, 405. liability for failure in regard to, 196. power of arbitrator possessed of, 400. reliance on arbitrator's, to exclusion of third person's, 405. SLANDER, reference to arbitration of complaint based on, 1. SMALL HOLDINGS AND ALLOTMENTS ACTS, 1908 and 1910, provisions for arbitration of, 17. SOLICITOR, acquiescence by, of party, 333. and client, award between, 638. costs as between, 484, 492, 575. attendance at hearing of, 376, 379. authority to refer of,"28, 317, 533-536. clerk of, authority to act in submission of, 29. consultation of, 404, 405, 435. costs of, 435, 436, 488, 582, 584. demand of performance by, 289, 363, 364. drawing up award, costs of, 488, 584. duty of, having conduct of reference, 375, 376, 664. employment by arbitrator of, 405, 435, 436, 488, 584. lien of, for costs, 582. payment to, award directing, 228. production of documents at office of, 372. reference by, powers as to, 28, 317, 533-536. request for performance by, 289, 363, 364. reservation in award of power to nominate, for purpose of settling deed, 223, 224. service on, in case of attachment proceedings, 292. signature of submission by, how far valid, 317. uncertificated, charges of, 490. undertaking to procure client to refer, liability of, 29. INDEX 747 SPECIAL CASE, agreement not to api)ly for, effect of, 73, 304. appeal from order as to, 148, 307, 308. application for .statement of, 307, 308. arbitrator's powers, effect of stating on, 146. award as, 53, 135, 140-149, 307. form of, 142, 307, 625-630. burden of proof on hearing of, 145. Chancery Division, in, 145. costs of, 148, 149, 308, 583. Court, for opinion of, 53, 302, 306. Court's power as to, 302, 424, 518. entering for hearing of, 145. fact, question of, limited to, 35. tiling of, 145. form and contents of, 306, 307, 616, 617. King's Bench Division, in, 144. law, question of, on, 143, 302, 362. Mastei*, application to, 307. misreception, &c., of evidence, on, 178. office copy of, 1 45. omission to ask for, 177. part only of matters in dispute, as to, 147. practice with regard to, 144, 307. referee, statement by, of, 302, 518, 554-556, 663. reference by consent out of Court, in, 302, 424. under order of Court, in, 518, 554-556. refusal to state, effect of, 175-177, 200, 303. remission of award on statement of, 175-177, 180. remitted case, decision on, as, 187. setting aside award, as alternative to, 247. down for hearing of, 145. special referee, statement by, of, 302, 427, 428. .stated in course of reference as distinguished from award in form of, 307. statement by arbitrator of, powers as to, 53, 55, 135, 140-149, 302-308. by special referee of, 302, 427, 428. of, in spite of .stipulation for finality of arbitrator's decision, 305 statutory arbitration, in case of, 306. summons for order directing statement of, form of, 616. umpire, statement by, of, 302. SPECIAL REFEREE, agreement of parties to, 507, 522, 529. ajjpeal from, 565-570. application for reference to, 503. arbitrator as distinguislied from, 425, 426. award by, 428, 557-564. conduct of refeience by, 549-554, 662. costs of reference, power as to, 572, 576-585. Court's power over, 427. duties of, 428, 662. employment of professional assistance by, 426. fact, reference as to (piestion of, to, 426, 565. judgment of, 428, 557-564, 665. entry of, 564, 665. officer of Court, as, 426, 545. powers of, 428, 545, 663. % reference to, when ])ernii.ssible, 426, 507. remission of award for reconsideration to, 427. remuneration of, 427, 429, 545, 554. report of, effect of, 545-548, 565, 649. Rules of Supreme Court binding on, 426. .statement of case by, 427, 428, 554-556. 748 INDEX SPECIAL REFEREE- continued. witness, attendance of, before, 427. See also Referee. SPECIFIC PERFORMANCE, agreement contained in submission, of, 2. to compromise matrimonial suit, of, 5. to refer, of, 75, 87, 279. award, of, attachment as a defence to, 278. laches in claiming, 279. right to, 276-280. unreasonable award, in case of, 278, 279. submission, of, 279. STAGE of proceedings, meaning of, 302, 303. STAKEHOLDER, arbitrator who is, position of, 47. bound by award, notice to perform to, 470. sta:\ip, arbitrator's appointment, on, 32.5. duty in case of improper, 388. award, on, 436," 440-442, 67 L amount of, 442. judicial notice of want of, 443. one sufficient, 442. time for, 442, 670. unnecessary, when, 319. document, on, to be taken note of, 388. official referee's appointment, on, 85. submission, on, 72, 73. umpire's appointment, on, 327. STAMP ACT, 1891, penalties under, arbitrator's duty as to, 388. STATEMENT OF CASE. See Special Case. STATEMENT OF CLAIM in action on award, 267. STATUS QUO, Court's interference in favour of, 68. STATUTE, compliance with, required, 363, 365. jurisdiction conferred l:)y, rule with regard to, 309. ouster of Court's jurisdiction where reference required by, 109. submission under. See Statutory Arbitration. waiver of provisions of, 423. STATUTE OF FRAUDS, award rendered unenforceable by reason of, 280. written on parol submission, effect of, 322. submission within, form of, 316. STATUTES OF LIMITATION, ^qq Limitation of Actions. STATUTORY ARBITRATION, application of Arbitration Act, 1889, to, 69, 310, 311, 365. appointment of arbitrator in, 365. award in, as operative to transfer property, 466. compliance with statute required in, 363, 365. compulsory nature of, 69. enlargement of time in case of, 155. notification of appointment of arbiti'ator in, 365. ouster of Court's jurisdiction in case of, 109. INDEX 74i> STATUTORY ARBITRATION— con^mMed remission of award in case of, 181. revocation of, power as to, 69. submission to, when the approjjriate remedy, 8-17. STATUTORY DECLARATION, acting contrary to, a misdemeanor, 368. annexation to award of, 368. dispensation with, 368. requirement as to, 367. STAY OF PROCEEDINGS, action subject to, 87, 88, 90, 95, 101, 322, 472. affidavit in support of ap]ili cation for, 115, 607. appeal from order as to, 116. application with a view to, 94, 98, 114, 115, 607. arbitration a condition precedent, where, 110-113. clause unfair, where, 98. arbitrator interested party, where, 101, 106. not appointed until after action brought, where, 15. only entitled to decide as to amount and not as to liability, where, 90. attachment, for, 295. auxiliary relief in case of, 113, 114. bankruptcy laws affected, Avhere, 89. burden of proof on application for, 98, 115. conditions for, 88-97, 100. costs of, 115, 116. County Court, by, 89. Court withoiit power to appoint arbitrator, notwithstanding, 100. Court's discretion in granting, 74, 88, 89, 97, 104. delay in proceeding with reference as a bar to, 96, 97. delivery of pleadings, after, 95. expensive reference as a ground for, 100. foreign tribunal, reference to, where, 101. forms in connection with, 607. law, question of, alone involved, where, 101, 103-106. matters in respect of which stay Mall be granted, 89-94. in respect of which stay will not be granted, 89-94, 101. motion in Court for, 115. no difference between the parties, where, 90, 91. one only out of many questions within the arbitrator's jurisdiction, where, 107.. order for. See Order. part only of claim within submission, where, 90, 106-109. personal character assailed, where, 101. practice and procedure in case of, 114-116. previous legislation as to, 87. ready and willing to do all things necessary, &c., where applicant is, 96. rectification claimed of contract containing arbitration clause, where, 90. refusal of, grounds for, 89-94, 101, 109. insufficient grounds for, 98. relief claimed beyond arbitrator's powers, where, 98. same subject-matter as award, where action has reference to, 472. several defendants, Avhere, 94. small part only of claim outside submission, where, 90. statutory powers as to, 312. requirement of arbitration, where, 109. step in proceedings, after taking, 88, 95. substantial and bond fide dispute, where, 108. part of claim not within submission, where, 90. time for referring expired, where, 90. STEP IN PROCEEDINGS, meaning of, 95. stay of proceedings after, 95. 750 INDEX STEWARD of race, as arbitrator, 36. STRANGER, acquiescence bj', effect of, 480. act of, as condition precedent to performance of award, 460. award affecting, 458-462. property of, 461, 462. directing payment at house of, 461. to, 282, 299, 456. evidence against, as, 479. for, as, 481. not binding on, 481. pleaded as defence by, 477. bound by award, when, 468, 470, 480. joining in award, efl'ect of, 43.3. power to enforce award of, 282. right to attend hearing of, 378. submission to award by, 461, 493. See also Third Person. STREET, reference under Public Health Act, 1875, as to paving, &c., of, 10. STRIKING OUT substantial ground of claim, power as to, 374. SUB-COXTRACT, incoi'poration of arbitration claiise by reference in, 315. SUBJECT-MATTER, award, of, bar of action in respect of same, 472. non-correspondence with submission of, 214-216, 229,230, 375,432, 433. reference, of, accruing after submission, position of, 83. arbitrator's jurisdiction to decide what matter within, 93, 94. construction of contract as, 104. duty to inform other party of, 133. identical for both arbitrators, must be, 132. kept out of consideration, effect of, 215, 465. new demand arising before submission, when included as, 219. not included in reference, position of, 83, 465. remission of, 161. what may be, 1-17, 76, 93, 94. SUBMISSION, A. and B. of one part and C. of the other part, by, scope of, 82. Act of Parliament, under, 8, 365. action, stipulation against bringing, in, 236. actions, suits, debts, trespasses, &c., of, 2, 76, 81. agreement, contained in, specific performance of, 2. for. See Agreement to Refer. to refer as, 88. compared with, 49, 313. alteration of terms of, power as to, 374, 537. ambiguous, duty of arbitrator in case of, 408. appointment of arbitrator, complete on, 51, 363. Arbitration Act, 1889, under, 44, 51, 71, 285. arbitration clause in contract, by. See Arbitration Clause. arbitrator not named in, procedure on, 364. arbitrator's jurisdiction to decide what matter within, 93. 94. powers under, 2, 76, 363, 368, 371. remuneration provided for, by, 487 . arising, how, 51, 363-365. assent to, evidence of, 268. award after revocation of, position of, 46, 230, 284. must be co-extensive with subject-matter of, 214-216, 229, 230, 375, 432, 433. on matter not within, 229. bankrupt, by or on behalf of, 21, 421. INDEX 751 SUBMISSION- cowimwed bond, by, 72, 603. building contract, in, 320. work, as to, 600-602. compliance by arbitrator with, required, 363, 368. condition precedent to, performance of, 366. construction of contract, as to, 104. contents of, 73, 599-603. costs arising out of. See Costs. Court's power of control over, 68, 73, 282, 424, 425. death, effect of. See Death. deed, by, 28, 73, 315, 602. delegation, provision for, in, 402. denial of entry into, as a defence, 268. deposit with arbitrator of, 363. difference arising after, position of, 118. essential to, how far, 133, 317. exclusion of statutory provisions from, 71. executor or administrator, binding on, 227. by, 29, 598, 599. fire insurance matter, as to, 91, 603, foreign tril;)unal, to, 321. form of, 71-73, 314-317, 599-603. fraud, question of, as to, 3, 101-103, 112, 622-624. generally, 70-73. implied provisions in, under Arbitration Act, 1889, 44, 71, 324. incapable person, by, 230. interpretation of, 76-84. irrevocable, how far, 46-48, 285, 313, 324. ita quod fiat de ■prannissis, 214. joint and several, liability of parties to, 24. jurisdiction of arbitrator under, 2, 76, 363, 368. limited to matters agreed to be referred, 90. matters accruing before and after, jurisdiction as to, 83. outside, stay of action as to, 90, 91. meaning of the term, 49, 51, 88, 144, 152, 312, 313, 321, 324. new demand arising before, when within, 83, 219. what amounts to, 72, 83. nothing to refer, where, Court's interference to stoi"), 68. notice of claim under statute as, 16. to arbitrator to act in, 335. official referee, to. See Official Referee, order of Court, as, 46, 50. not an, Court's jurisdiction in case of, 282. parol, effect of, 261, 265, 280, 282, 322, 417, previous legislation, under, 47. proof of, 276. part of dis]jute only within, 106. pleading of, in action on award, 268. power of attorney, by, 27. provisions in. Arbitration Act, 1889, under, 44, 71. implied, 71, 324. ]iublic policy, contrary to, 7.3. jnirchase, difference arising out of, as to, 78, 101, 599, 600. recitals, effect of, 81. reservation of rights of party in, 463. revocation of. See Revocation. right of, who possesses, 18. rule of Court, made, 27, 47, 50, 52, 258, 259. not to have effect of, 52, 282. Rules of Supreme Court, applicability of, to, 151, 425, 661-668. separate decision as to separate matter, effect of, on, 338. document, in, 363, 752 INDEX SUBMISSION— conhmtef?. several parties, execution by, 73. signature of, 315-317. special referee, to. See Special Referee. specific, issues, of, evidence of, 276. performance of, 279. of agreement contained in, 2. stamp duty on, 72, 73. Statute of Frauds, with reference to, 316. statutory, notice of claim in case of, 16. provisions, exclusion b)^ parties of, 71. subject-matter of. See Suhject-Matter. termination by lapse of time of, 155. two arbitrators and a third, to, 408. to, 132. unreasonable, specific performance in case of, 279. valuation, as distinguished from, 119. variations from statutory form, reconciliation of, 71. view, providing for, 366. what matters may be included in. See Suhject-Matter. who may refer by, 18. writing, how far necessary to, 51, 314. in, parol alteration of, 322. written statement of points of dispute, prudence of, 397. See also Reference. SUBPCENA, power of Court or judge to order writ of, 301, 302, 424. special referee, witness before, in case of, 428. submission l)y consent out of Court, in case of, 151, 152, 301, 313, 424. SUIT, reference of, meaning of, 2, 76, 81. SUMMARY CONVICTION, reference of matter of, 5. SUMMONS, appointment of arbitrator, for, 610. to set aside, 611. of umpire, for, 127. attachment, with a view to, 291. enlargement of time, with a view to, 615. inspection of documents, with a view to, 370. reference for trial, with a view to, 529, 644, 666, 667. to referee, with a view to, 503, 644, 666, 667. revocation of submission, with a view to, 66, 615. statement of case, with a view to, 616. stay of proceedings, with a view to, 114, 115. witness, to. See Subpcena ; Witness. SUNDAY, award directing payment on, 449. SURETY, award against principal debtor, when bound by, 25. SURPRISE, setting aside on ground of, 231. unexpected case set up as, 231. SURVEYOR, arbitrator, as, 400. delegation to, 401. SUSPENSION of delivery, award as to, 387. INDEX 753 TAXATION OF COSTS, action referred, of, 582. arbitrator's fees, taxation of, 196, 489, 490. powers with regard to, 484, 489, 491, 492. award containing directions for, 222, 229, 484. awarded costs, in case of, 48, 267, 491. delegation, by, 222, 399. expiration of time for setting aside, before, 493. generally, 484, 489, 490, 492-494. ■ Master, by, 493, 494. officer of Court, by, 223. one not an officer of Court, by, 222. parties, as between, 494. review of Master's, 494. solicitor and client, as between, 229, 484, 492. time for, 492, 493. TELEGEAPH ACTS, 1863, 1868, 1869, 1878, 1908, and 1909, provisions for arbitration of, 17. TENANT, incoming, determination of price of fixtures, &c., payable by, 318-320. TENANT IN COMMON, reference with a view to partition between, 2. TENDER, conveyance awarded, of, 472. duty of party directed to pay to make, 471. THEATRE, reference under Metropolis Management Acts affecting, 11. THIRD PERSON, adding as Jjarty to the reference of, 538. appointment of arbitrator by, 121, 122. bound by award by agreement, 461, 493. claiming through party to the submission, 468. consultation by arbitrator of, 400, 404. costs of reference, liability for, of, 493. delegation to, 402. joining in award, effect of, 433. settlement of price by, asdi.stinguished from a reference to, 318. valuation, &c., by, 318-320. See also Stranger. TIME, appeal from order on special case, for, 147. from referee, for, 566. application for, for purposes of delay, 389, 398. leave to revoke submission, for, 54, 66. remission, for, 161, 184, 185. for hearing, 182. setting aside award, for, 145, 184, 236, 264. stay of proceeding.s, for, 87, 95. to arbitrator, for making, 398, 399. appointment of arbitrator, for, 117, 118. of umpire, for, 124, 327-329, 345. ai'bitrator proceeding after, efl'ect of, 415. arbitrator's authority endures for how long, 63, 81, 398. in case of remitted matter, 162. attachment after enlargement of, 290, 293. award directing performance on day already past, effect of, 228. for making, 63, 154, 275, 334-315, 366. remi.ssion, after, 160, 189. statutory powers excluded, where, 338. submission fixing limit, in case of, 338. not fixing any limit, 338. 48 754 INDEX TIME— continued. award, for making, umpire, in case of, 350-354. made after, effect of, 230, 269, 275, 284, 35 . not made within reasonable, effect of, 275. computation of, mode of, 336, 338, 339. delivery of j^leadings, &c., for, 369, 374. enforcement of award, for, 264. enlargement of. See Enlargement of Tinu. enquiry, order for, for, 502. essence of agreement to refer, a?;, 155, 159, 339. expiration of, arbitrator jiroceeding after, 415. stay of proceedings after, 90. submission terminated on, 155. bearing, of, fixing, 361, 364, 369, 375, 376. refusal to change, 376. limitation of actions by. See Limitation of Actions. matters accruing before and after submission, position of, 83, 107. objection, for taking, 230, 362, 418-421. pai-ticulars, for delivery of, 369. party not giving other party time to complete his case, effect of, 271. performance of award, for, 228, 288, 469. periodical assessments, &c., in case of, 339. pleadings, for delivery of, 374. proceeding after expiration of, 339, 415. question arising after limit fixed, position of, 107. referee, trial before, of, 551. remission of award, for, 161. arljitrator's consideration after, 160, 162, 189. report, for, in reference for report, 509. request by party for, 389, 398. revocation of submission, proceedings for, for, 54, 66. setting aside award made after, 230. proceedings for, for, 145, 184, 236, 239, 240, 245, 248, 264. specific performance of award, for claiming, 279, 280. stamping award, for, 442. stay of proceedings after expiration of, 90. " for application for, 87, 95. submission fixing limit of, 338. terminated by lapse of, 155. taxation of costs, for, 492, 493. umpire, appointment of, for, 124, 327-329, 345. award of, for, 350-354. vacancy in office of arbitrator, for filling, 129. TITHES, award directing payment of sum in lieu of, 447. extinguishing, 467. reference relating to, 1, 8, 25. TITLE, affidavit, of, on attachment proceedings, 293. awai-d deciding as to, 229, 466. evidence of, as, 478. reference of question relating to, 2. summons to enforce award, of, 263. TOLL, reference of matter relating to, 1. TORT, award directing commission of, effect of, 230. joint tort feasor with party to award, how far affected by award, 477. reference of dispute involving, 1. TOWNS IMPROVEMENT CLAUSES ACT, 1847, reference to settle compensa- tion under, 9. INDEX 755 TRADE ASSOCIATION, submission to committee of, 34, 124. TRADE Ul^ION dispute, number of arbitrators in submission of, 123. TRADER, submission by partnei" in trading firm, validity of, 22. woman, under custom of City of London, submission by, 18. TRAMWAYS ACT, 1870, ouster of Court's jurisdiction by, 109. provisions for arbitration of, 17. remission of award under, 181, 182. TRANSFER, property, of, how far award is operative to effect, 2, 466. reference, of, to official referee, 84, 86, 663. TREASURY, consent of, in friendly society reference, 13. TREATING arbitrator, effect of, 205. TRESPASS, award involving, effect of, 230, 448, 468. reference as to, 1, 2, 77. TRIAL, arbitrator, before. See Hearing. new, on failure of submission under order of Court, 541. reference for. See Refererice under Order of Court. TRUST estate, apportionment by award of, 226. TRUSTEE, arbitrator, as, 38. bankrupt, of, whether a person claiming throiTgh or under, 89. bankruptcy, in, revocation of submission by, 65. submission by, 21, 32. submission by, power of and liability in case of, 31. TRUSTEE ACT, 1893, executor or administrator, submission by, under, 29, 30. trustee's power to submit under, 31. UMPIRE, acceptance of duties by, 331, 332. acquiescence in ap])ointment of, effect of, 331, 332. appeal committee of trade association as, 34, 124. appointment of, acquiescence in, effect of, 332. ajqn'oval of party to, 331. arbitrators, by, 326, 328, 609. Board of Trade, by, 328. Court, by, 116, 127,353. failure as to, 117, 329. generally, 325-334, 346. later than time stipulated for, effect of, 429. lot, by, 61, 69, 201, 420, 424. Master, by, 61 1. no power to ap]:)oint, where, 419. notice with a view to, 117, 118, 610. objection to, 61, 331. proof of, 270. separate, 285. statute, under, 328. substitution, in, 331, 333, 334, 353. .summons with a view to, 610. , time for, 124, 327-329, 345. 756 INDEX UMPIRE — continued. arbitrators resuming their duties, effect of, 349, 353. sitting with, 347, 412, 413. award of, 158, 270,433. joint with arbitrators, 286, 433. time for, 350-354. void, when, 349. choice of, judicial nature of, 407. commencement of authority of, 331, 332, 345-349. costs of, 486. . death of, 353. decision of, nature of, 158, 433. dui'ation of authority of, 350. duties of, generally, 411-414. enlargement of time by, 158, 342, 351. 352. entry on reference by ,"'331, 332, 346, 349. evidence, duties in regard to, of, 411, 412, 422, 423. not rehearing, effect of, 422, 423. failure to act of, 117, 121, 125, 331, 33.3, 334, 353, 354. appoint, procedure on, 117, 329. impartiality required of, 413. incapacity of, 353. interested party as, 414. jurisdiction of, 135, 346, 350. misnomer in affidavit of, 294. no power to appoint, appointment notwithstanding of, 419. non-appointment of, procedure on, 117, 329. non-joinder in award by, 286. notice to, of disagreement of arbitrators, 346, 614. with a view to appointment of, 117, 118, 610. objection to choice of, 61, 331. reference to, arljitrators proceeding after, effect of, 349, 353. refusal to act of, procedure on, 117, 121, 125, 331, 33-3, 334, 353, 354, to appoint, effect of, 117, 328. to rehear evidence by, 423. rehearing of evidence by, 4il, 422, 423. removal of, 192, 424. remuneration of, 484, 490. resumption by arbitrators of their duties, effect of, 349, 353. separate appointment of, 285. setting aside award of, 198. sitting with arbitrators, jjower as to, 347, 412, 413. special case stated by, 302. statute, appointed under, 328. statutory declaration by, 367. substitution, appointed in, 331, 333, 334, 353. summons for appointment of, 610. third arbitrator, compared with, 123, 408, 410. erroneously appointed as, 420. time for appointment of, 124, 327-329, 345, 349. trade association committee as, 34, 124. vacancy in office of, 331, 333, 353. who may be, 34, 124. UNANIMITY on part of arbitrators required, 270. UNCERTAINTY, alternative in award, as to, 221. award bad for, 218, 221, 224-228. costs, as to, 250. procedure in case of, 165-167, 242. showing mode of calculation does not amount to, 226, 250. UNDERTAKING, not to proceed by action on award, 297. INDEX 757 UNDUE MEANS, award procured by, position of, 193, 194, 204. UNFAIKNESS of arbitrator, review on account of, 199. UNLIQUIDATED DAMAGES, when within arbitration clause, 94. UNTIL, interpretation of the term, 338, 340. USAGE, finding of arbitrator as to, 432. latitude allowed to arbitrator by, 36L merchants, of, incorporated into the reference, 392. USUAL TERMS, reference on, meaning of, 536, 537. VACANC% arbitrator, in office of, filling of, 117, 118, 121, 128-135, 333,334. stipulation in submission against filling of, 129. umpire, in office of, 353. VALIDITY, attachment, refusal of, not decisive as to, 286. award of doubtful, attachment precluded in case of, 285, 286. enforcement of, 262, 268-270, 297. of, evidence impugning, 268-276. presumption in favour of, 218. questioning, 269, 284, 299. requisites to, 432. VALUATION, arbitration as distinguished from, 51, 119. arbitrator, made by, 391, 400. award as distinguished from, 318, 320, 440. condition precedent to right of action, as, 113. limitation of time for, 339. separate, by each arbitrator, 391. time for, 153, 339. A^ALUER, arbitrator as distinguished from, 52, 360. reference to, 80, 318, 319. revocation of authority of, 52. VIEW, absence of parties at, 382. arbitrator, by or by order of, 366, 372, 373. decision on or after, 361. party, asked for by, 372, 553. referee, by or by order of, 552, 553, 663. special referee's powers as to, 428, 663. submission providing for, 366. time for, 367. AVAIVER, action, right to prevent bringing of, of, 75. agent conducting reference, by, 28. appeal, right of, of, 146, 147. appointment of umpire or third arbitrator, objection to, of, 201, 409. arbitration, right to, of, 110. arbitrator, right to object to, of, 206. award, disputed part of, of, 300. objection to badness of, of, 230, 231, 251, 252. Inirden of proving, 415. conduct, evidenced by, 230, 251, 252, 418-423. / 8 INDEX ^VA1YER— continued. continning to attend proceedings as, 415, 417. enlargement of time, objection to, of, 230, 343. evidence received in absence, objection to, of, 417. irregularly, objection to, of, 136, 421. examination as witness notwithstanding irregularity, by, 419. excess of authority by arbitrator, objection to, of, 415, 416. incapacity, objection on score of, of, 230. irregularity, olijection to, of, 418-421. knowledge of facts requisite to, 418-421, 423. meaning of, 414, 415. misconduct of arbitrator, objection to, of, 61. objection extrinsic to matter referred, in case of, 465. reference of amount of demand as, in relation to objection to pay, 465. statutory provisions, of, 423. third arbitrator, objection to, of, 201, 409. three arbitrators, where reference to, objection to less number acting, of, 409. umpire not rehearing evidence, in case of, 422. objection to, of, 201, 409. WARRANT for arrest, on attachment, 295. WASTE, a^vard directing committing of, 230, 462. refei'ence of tjuestion relating to, 2. WATER, award regulating use of, 4, 456, 457. reference under Public Health Act, 1875, with regard to, 10. WATERCOURSE, built upon, reference as to, 4. WATERSPOUT, diversion of, reference as to, 4. WATERWORKS, reference to settle compensation for land taken for, 9. WAY, right of, award of, 457. setting out by arbitrator of, 4. WIFE, reference as to terms of separation between husband and, 4, 91. See also Married TVoman. WILL, jDroviso in, referring diiterences, 3. reference as to construction of, 3. WITHDRAWAL, claim or portion of claim, of, 375. party, of, proceeding after, 396. WITHIX, interpretation of the term, 336, 338. WITNESS, abroad, commission to examine, 138, 428, 550. absence of party, examined in, 174, 359, 361, 418. power to proceed in, 398. arbitrator as, 41, 275. called by, himself, 388. employed as expert in another enquiry, position of, 205. refusal of, to examine, 200, 245, 271, 381, 583. arrest, privilege from, of, 139. attendance of, compelling, 151, 152, 301, 302,* 424. attesting of award by, 294, 436. commission to examine, 138, 428, 550. INDEX 759 WITl^ESS— continued. compelling attendance of, 151, 152, 301, 302, 424. convict as, 231, 232. costs of, allowance of, 583. cross-examination of, refusal of chance of, effect of, 272. examination of, 135-139, 356-358. absence of parties at, 174, 359, 361, 418. not on oath, 136, 137. private, 379, 391, 421. referee, before, 550. refusal of arbitrator to take, 200, 245, 271, 381, 583. false, evidence of, effect of, 232. habeas corpus Avith a view to attendance of, 301, 302, 424, 427. improperlj' called, effect of, 376. incompetent, evidence of, 231, 232. non-examination of, as an objection to award, 271. oath, examined on. See Oath. party as, 356-358, 389. perjury of, effect of, 232. place of residence of, importance of, 375. prisoner as, 302, 424, 427. private examination of, 379, 391, 421. reconsideration after remission, heard on, 187. referee, before, 301, 550. reference under order of Coiirt, at, 571. sick or infirm person as, 389. special referee, before, 301, 427, 428. summoning by suhpoina of, 151, 152, 301, 302. See also Evidence. WOMAN trading under custom of City of London, submission by, 18. WOOL, reference as to comi^ensation for loss by fire of, 78. WORKMEN'S COMPENSATION ACT, 1897, enforcement of memorandum of compensation under, 260. WORKMEN'S COMPENSATION ACT, 1906, provisions for arbitration of, 17. WRITING, agreement to refer in, what amounts to, 317. appointment of arbitrator in, 324. award, when to be in, 335, 434. enlargement of time by, 290, 337, 342. matters in dis]jute should be put in, 397. submission to be in, 27, 314. i-RINTKD BT GREEN AND SOS EDINBURGH UC SOUTHERN REGIONAL LIBRARY FACILITY AA 000 857 050 9