sff.i>awvA»v»w,%» REDRISS BY ARBITRATION H. FOL'LKS LYNCH Cornell University Library KD 7645.L98 1902 Redress by arbitration :a digest of the 3 1924 021 721 398 BOUGHT WITH THE INCOME FROM THE SAGE ENDOWMENT FUND THE GIFT OF 1891 Kn^:i.^s. J.;i^|i|iM^. 30S1 Digitized by Microsoft® the date shows when this volume was taken. (Snrnfll ICatu ^rlynnl Kibtata Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® REDRESS BY ARBITRATION ; RELATING TO ARBITRATIONS AND AWARDS. INCOEPORATING THE ARBITEATION ACT OF 1889, AND THE DECISIONS OP THE COURTS THEREON. BY H. FOULKS LYNCH, FOURTH EDITION. BBVISED BY D. F. DE l'HOSTE banking, M.A., LL.D., Author of " The Bights and Duties of Liquidators, Trustees and Receivers" ; " T?ie Law of Contract " ; " Bills of Exchange " ; " The Law of Agency and Bailments " ; " Partnership Articles Epitomised and Explained ' ' ; Joint AutJior of " Executorship Law and Accounts." LONDON : EFFINGHAM WILSON,— 11, EoYAL Exchange, E.G. 1902. Digitized by Microsoft® ^hi,. Digitized by Microsoft® PREFACE. XN editing a Fourth Edition of the late Mr. Lynch's " Kedress by Arbitration," I have endeavoured, vphile retaining the original form and divisions of the Work, to bring it as far as possible up to date, by incor- porating the most recent legal decisions bearing on the subject. D. F. DE L'HOSTE BANKING. ■ October, 1902. Digitized by Microsoft® Digitized by Microsoft® PREFACE TO THE FIRST EDITION. rriHE growing disinclination of commercial men to -^ submit their differences to the decision of the Courts was recently commented upon by Mr. Justice Manisty in the following terms : — " He observed with '■' infinite regret the damaging effect upon the business " of litigation of the offensive system of interroga- " tories, and deemed it his duty to warn the Bar " that the inquisitorial and offensive system of vexing " suitors, especially those of the best class, the great " commercial houses in the City, by interrogating im- " pertinently (in every sense of the word) into every " circumstance of their concerns and career, would, if " persisted in, drive away the best business from the " Courts. Such persons as he had described, whose " time was valuable and who would not tolerate this " objectionable invasion of their privacy, commonly " resorted to private lay arbitration rather than submit " to this abuse of legal process."* Apart, however, from any abuse of the process of the Courts, there are good and sufficient reasons for seeking redress by arbitration rather than by action ; the by-laws of the Chambers of Commerce usually provide for arbitration in commercial cases, and an arbitration clause is generally found in contracts. Rogers v. WhiteUy, reported in The Times, 15th June, 1887. Digitized by Microsoft® ^a. PBBFACB. When acting as arbitrator the Author has experi- enced the want of a handy -book which he might consult pending the proceedings, in which the law on the subject would be clearly and orderly set forth, reference made to larger works for consultation at leisure, and where forms might be found for use in ordinary cases. This is one motive which induced him to attempt a digest of the law relating to Arbi- tration and Awards ; another is the fact that an elementary text-book on the subject appeared to him to be required for the use of law students. The Author's object has been to provide such a book for the Arbitrator and the student. H. F. L. Easter, 1888. Digitized by Microsoft® TABLE OF CONTENTS. CHAPTEE I.— The Submission Section i. — The Parties ii. — The Subject Matter iii. — The Manner iv. — The Revocation CHAPTEE II. — The Aetjiteatoes and Umpire Section i. — Their appointment ii. — Their authority . . . iii. — Their remuneration iv. — Their proceedings CHAPTEE III.— The Award ... Section i. — Its Requisites ... ii. — Eeferring it back iii. — Setting it aside . . . iv. — Enforcing it CHAPTEE IV.— Incidental Matters Section i.— Costs ii. — Witnesses iii. — Orders ... iv. — Eeferees ... 8—29 8 11 14 25 .30-46 30 35 39 42 .47—68 47 58 62 65 .69—74 69 71 72 73 APPENDIX. Forms Affirmation Amended Award ... Appointment to proceed ... Arbitrator's demand of documents Arbitrator's request for written statement of matters dispute Award .75—82 77 80 76 77 m 77 79 Digitized by Microsoft® VIU. CONTENTS. Enlargement of time by Arbitrator Enlargement of time by parties . . . Notice of publication of award . . . Notice to arbitrator of revocation Notice to umpire of disagreement Oath Order of reference, common form Peremptory appointment to proceed Eevocation of submission Short form of submission Submission Aebiteation Act, 1889 INDEX PAGE 78 78 79 79 78 77 81 76 78 76 75 83 .94—98 Digitized by Microsoft® ALPHABETICAL LIST OP CASES CITED. Adams v. Cattley, 66 L. T. 687 Allen V. Greenslade, 33 L. T. Q. B. D. 567 Anglo-Italian Bank v. Davies, 9 Ch. D. 285 Anning v. Hartley, 27 L. J. Ex. 145 ... B. Badger, In re, 2 B. & A. 691 Baker v. Stephens, L. E. 2 Q B. 523 Baker v. Townsend, 1 Moore, 120 Baker v. Yorks Fire and Life Insurance Co. . . . Banks v. Banks, 1 Gale, 46 Banner v. Charlton, 5 East, 189 Banner v. Liddell, 1 B. & B. 80 Barnes v. Hayward, 1 H. & N. 742 Bates V. Cooke, 9 B. & C. 407 Beddow c Beddow, 5 H. L. C. 89 ; 9 Ch. D. 89 Bedwell v. Wood, L. E. 2 Q. B. D. 627 Belfield v. Bourne (1894), 1 Ch. 521 ; 63 L. J., Ch. 104 Booth V. Davies, 4 N. & M. 788 ; 3 A. & E. 200 H. & W. 420 Booth V. Garnett, 1 Stra. 1082 Bottomley v. Ambler, 38 L. J. 545 ; 26 W. E. 566 Braunstein v. Accidental Death Insurance Co., 81 L Q. B. 17 Bright V. Durnell, 4 Dow. 756 ... Brook, Ire r«, 33 L. J. C. P. 246 Brophy «. Holmes, 2 MoUoy, 1 ... Brown v. Somerset and Dorset Eailway, 34 L. J. Ex. 152 Buccleugh V. Metropolitan Board of Works, 39 L Ex.130 Burnard v. Wainwright, 19 L. J. Q. B. 423 ... Burt V. Wigley, 1 Scott, 610 Digitized by Microsoft® ABTIOLE PAGE 29 . .. 19 112 ., 61 122 .. .. 67 Ill ,. ,. 59 ... 79 ... 43 ... 60 ... 36 ... 36 ... 23 2 ... 8 ... 62 ... 87 ... 22, 34 14, 22 ... 94 ... 51 ... 69 ... 40 53 ... 35 ... 47 ... 30 ... 124 ... 70 L04 30 ... 21 1 ... 104 ... 57 ... 97 ... 52 ...68,83 39,44 J. ... 31 ... 22 ... 53 ... 35 ... 68 ... 39 ... 82 ... 42 52 108 T ... 58 ,.. 74 ... 42 ... 112 ... 60 ,.. 95 ... 51 X. CASES CITED. c. Caerleon Tinplate Co. v. Hughes, 65 L. T. 115 Caledonian Insurance Co. i'. Gilmour (1893), A. C. Caledonian Eailway v. Lockhart, 3 Macq. 808 Campbell r. Twemlow, 1 Price, 81 Carus-Wilson and Greene (1887), 18 Q. B. D. 7 C. Caswell V. Groucott, 31 L. J. Ex. 361 Clegg V. Clegg, re Carlisle, L. E. 44, Ch. D. 200 Clout V. Metropolitan Eailway, 46 L. T. Q. B. 8 Collier t'. Hicks, 2 B. & Ad. 572 Collins V. Collins, 36 Beav. ; 28 L. J. Ch. 184 Cooke V. W. Horwood, 2 Saund. 337 Coombs, In re, 4 Exch. 839 Cooper V. Johnson, 2 B. & A. 394 Cooper V. Shuttleworth, 25 L. J. Ex. 114 Couvella <■. Volkart {The Times, 18 Jan., 1888) Coxhead v. Mullis, 3 C. P. D. 439 Crampton and Holt r. Eidley & Co., 20 Q. B. D. 48 Cuddee «;. Butter, 1 L. C. Eq. 640 Cudliff )■. Walters, 2 M. & E. 232 Curtis V. Potts, 3 M. & S. 145 Curzey ;;. Aitcheson, 2 B & C. 170 AETICr,!! PAGE 2 3 85 31 ... 22 ... 83 ... 44 ... 80 ... 43 A. 4 5 ... 112 ... 59 ... 29 ... 18 ... 47 ... 30 ... 79 ... 43 ... 3,4 ... 4,5 ... 97 ... 52 ... 70 ... 41 46 ... 29 ... 45 ... 28 ... 120 ... 65 ... 13 ... 9 ...69, 71 40, 41 ... 122 ... 68 ...53, 63 35, 38 ... 58 ... 36 ... 125 ... 70 D. Darlington Wagon Compy. v. Harding Pier Compy, 1 Q. B. 246 Dare Valley Eailway Company v. Ehys, L. E. 4, Ch. Dobson «;. Groves, 6 Q. B. 637 Doddington t. Bailward, 8 L. J. C. P. 331 ... Drew V. Drew, 25 L. J. 282 .. 22 . . 15 54 118 . . 62 .. 18 . . 11 ..63,65 . . 38 .. 47 . . 30 Earl V. Stocker, 2 Vern. 251 Ebbett's Case, 5 L. E. Ch. 202 Eccles V. Blackburn, 30 L. J. Ex. 358... Edgell r. Dalimore, 11 Moore, 541 Ellison I-. Ackroyd, 20 L. J. Q. B. 193 Ellison V. Bray, 9 L. T. N. S. 730 Esdaile v. Visser, L. E. 13 Ch. D. 421... Eyre v. Corporation of Leicester, 8 Times, L. E. 136 46 ... 28 18 ... 9 128 ... 71 97 ... 62 67,73 39, 42 52 ... 34 122 ... 67 50 33 Digitized by Microsoft® CASES CITED. Fallowes r. Taylor, 7 T. E. 475 Farrar i;. Cooper, 6 Times L. R. 241 ; L.E. 44, Ch. D. 323 Faviell v. Eastern Counties Eailway, 2 Ex. 350 Fearon )), Flinn, L. E. 5 C. P. 34 Firth V. Eobinson, 1 B. & C. 277 Fitzgerald t). Graves, 5 Taunt 342 Flag Lane Chapel v. Mayor of Sunderland, 5 Jur. N. S. 894 Flynn i>. Robertson, 38 L. J. C. P. 240 ITICLE PAGE 18 .. 11 115 .. 63 45 .. 28 125 .. 70 124 .. 70 69 .. 40 67 .. 89 112 .. 61 Gallop and Central Queensland Meat Export Company 89L. T. 137 Gibbs V. Knightley, 26 L. J. Ex. 294 Goddard, In re, 19 L. J. Q. B. 205 Goodman ?;. Sayers, 2 J. & W. 261 Goodson *'. Brook, 4 Camp. 163 Gray, Laurier & Co. v. Boustead & Co. Green and Balfour, 63 L. T. E. 325 Grenfell v. Edgcombe, 7 Q. B. 661 H. Haigh's Estate, In re, 3, De G. F. & J. 157 ... Hall V. Brand, 53 L. J. Q. B. 19 Hall 1-. Hinds, 2 M. & G. 847 Hammond and Waterton, 62 L. T. 808 Hagger i: Baker, 14 M. & W. 9 Harding v. Watts, 15 East, 556 Hare, In re, 8 Scott, 367 Harrison v. Creswick, 16 Jur. 815 Hart V. Duke, 32 L. J. Q. B. 55 Harvey v. Shelton, 7 Beav. 455 ; 13 L. J. Ch.' 466 Hayward v. Mutual Reserve Association, 65 L. T. 491 Henfree r. Bromley, 3 East, 309 Hewlett V. Laycock, 2 C. & P. 574 Hill V. Slocombe, 9 Dow. 339 Hoch I'. Boor, 43 L. T. 425 Hoggings V. Gordon, 11 L. J. Q. B. 286 Holdsworth v. Wilson, 82 L. J. Q. B. 289 ... Hooper v. Balfour, 62 L. T. N. S. 646 Hopper, Ire re, L. E. Q. B. 867 Horton v. Sayer, 4 H & N. 643 ; 7 W. E. 785 ... 116 . .. 63 ... .42 . .. 25 ... 95 . .. 52 ... 49 . .. 31 8 . .. 8 ... 86 . .. 46 ... 112 . .. 61 ... 126 . .. 71 ... 79 . .. 43 ... 34 . .. 22 ... 122 . ., 66 4 . .. 5 ... 80 . .. 44 ... 54 . .. 85 ... 46 . .. 29 ... 98 . .. 53 ...45,80 28, 43 ... 120 . .. 65 1 180 . .. '72 ... 90 . .. 48 ... 79 . .. 48 ... 98 . .. 49 6 . .. 7 ... 71 . .. 41 ... 127 . .. 71 ... 109 . .. 58 ...49,120 81,65 ... 30 . .. 20 Digitized by Micrdsoft® Xll. CASES CITED. Hutchinson v. Whitfield, Hayes (Ir. Ex.), 78 ... Hyde v. Beardsley, 18 Q. B. D. 244 ABTICLE PAGE 26 ... 17 123 ... 70 James v. James & Bendall, L. E. 23 Q. B. Div. 12 C. A. 43 ... 25 Jenkins, ire re, 6 Dow. N. S. 276; 11 L. J. Q. B. 71... 67 ... 39 Johnson v. Collie, 24 L. J. Q. B. 63 54, 66 35, 39 Johnson v. Latham, 2 L. M. & P. ; 20 L. J. Q. B. 236. ..88, 101 48, 55 Johnstone I'. Cheape, 5 Dow. H. L. 247 82,83 ... 44 K. Kennettr. TranmereLocalBoard, 24L. J. Q. B. 87... 65 ... 38 Kenworthy v. Queen Insurance Company, 8 Times L. E. 211 31 ... 21 Kirk V. Bast and West India Docks, 12 L. E. H. L. 738 (1887) 45,80 28,43 Knight !'. The Tabernacle Permanent Building Society, 2 Q. B. 63 86 ... 45 Knowles & Son, Limited, v. Corporation of Bolton, xvi. T. L. 283 61 ... 37 Lang !■. Brown, 25 L. T. (H. L.) 297 Lees V. Burrows, 12 East, 1 Lewis V. Eossiter, 44 L. J. Ex. W. E. 832 Lloyd V. Mansell, 19 L. J. Q. B. Look V. Vulliamy, 2 N. M. 336 ; London Fire Insurance Company v Association, 54 L. J. Q. B. 302 Lord V. Lord, 26 L. J. Q. B. 34 136 ; 33 L. T. 260 ; 23 192 5B, & Ad. 600 British American 23 4 104 27 87 136 49 15 4 57 18 47 74 31 M. Macarthur v. Campbell, 6 B. & Ad. Malmesbury Eailway Company v. D. 113 Marsh v. Bulteel, 5 B. & A. 507 Marsh v. Wood, 9 B. & C. 659 ... Marsack v. Webber, 6 H. & N. 1 Maule V. Maule, 4 Dow, 363 ... Matson v. Trower, E. & M. 17 .. Maunder, In re, 49 L. J. 535 ... 518 Budd, L. E. 2 Ch 90 47 45 45 70 48 68 68 48 30 28 27 41 31 39 39 Digitized by Microsoft® CASES CITED. Xlll. ABTICLE McEae v. Maclean, 2 E. & B. 946 113 Metropolitan District Eailway v. Sharpe, L. K. 5, App Cas. 425 MiUs V. Bayley, 32 L. J., Ex. 179 Milnes v. Robinson, 24 L. J. C. P. 29 Mordue v. Palmer, L. R. 6 Ch. App. 22 Morris v. Morris, 6 E. & B. 383 Moseley v. Simpson, 16 Eq. 226 Mundy v. Black, 80 L. J. C. P. 193 PAGE 62 127 ... 71 44 ... 27 9 8 91, 110,128 49,59,71 109, 112 58, 59 117 79 63 43 N. Nichels v. Hancock, 7 de G. W. M. & G. 300 102 ... 55 Nicholls ('. Jones, 30 L. J. Ex. 275 99 ... 53 Northampton Gas Company 1'. Parnell, 15 C. B. 630... 44 ... 27 Nuttall ('. Mayor, &c., of Manchester, 8 Times L. R. 513 29 ... 19 O. OHver v. Collings, 11 East, 607 Oswald 0. Gray, 24 L. J. Q. B. 60 .55,56 . 79 35 43 Palmer v. Metropolitan Board of Works, 31Tj. J. Q. B. 259 60 Pappa v. Rose, 41 L. J. C. P. 187 72 Park V. Winteringham, 21 L. J. Q. B. 123 4 Parker v. Burroughs. Colles Pari. Cas. 257 45 Perring v. Keymer, 3 A. & E. 245 49 Perkins f. Potts, 2 Chitt. 399 4 Peterson v. Ayre, 14 C. B. 665 49, 85, 111, 31 Phipps ?'. Ingram, 3 Dow. 669 82 Piercey v. Young, L. R. 14 Ch. D. 200 38 Pini V. Roncoroni (1892), 1 Ch. 633, 61 L. J., Ch. 218 29 Portland District Council and Tilley, re 45 Prebble v. Robinson, re (1892), 2 Q. B. 602, 67 L. T. 267 123 37 41 5 28 31 4 45,59 44 24 19 27 69 R. Rainforth v. Hamer, 25 L. T. 246 Reg. V. Shillibeer, 2 Doul. 238 ... Reynolds v. Gray, 12 Mod.'120.,. 24 . . 16 18 . . 11 55 . . 35 Digitized by Microsoft® XIV. CASES CITED. Eiders, In re, 1 Jur. 406 Roberts r. Corbett, 20 L. T. 66 Roberts v. Eberhardt, 28 L. J. C. P. 74 Ronnd r. Hatton, 12 L. J. Ex. 7 Roweliffe ;■. Devon and Somerset Railway, 21 W. R. 433 ARTICLE PAGE 98 . . 58 74 .. . 42 70 .. . 41 96 .. . 52 126 .. . 71 Sadler v. Smith, 29 L. J. Q. B. 17 ; L. R. 5 Q. B. 40 . 4 Salter r. Yeates, 5 Dowl. 291 58 Samuel i. Cooper, 2 A. & E. 752 82 Scott 1). Avery, 5 H. L. C. 811 31 Scott V. Van Sandau, 6 Q. B. 237 80,84 Scougall «;. Campbell, 1 Chitty, 283 70 Seton r. Slade 122 Shaw & Ronaldson, re (1892), 1 Q. B. 91 130 Simmonds r. Swain, 1 Taunt. 549 ... ... ... 101 Smith c. Johnson, 15 East, 213 39 Smith and Nelson, 25 Q. B. D. 545 6, 50 South Wales Railway Company v. Wythes 5 De G. M. &G. 880 28 Spain c Cadell, 8 M. & W. 129 124 Spence r. Eastern Counties Railway, 7 Dow. 697 ... 79 Stevens, Smith & Co. and Liverpool London Globe Insurance Co., r^, 36^ol. Jour. 464 69 Stevenson r. Watson, L. R. 4 C. P. D. 148 72 Stiff r. Andrews, 2 Madd. 6 18 Strauss r. J'rancis, L. R. Q. B. 379 17 Swinfen v. Swinfen, 25 L. J. C. P. 29 17 Swinford, In re, 6 M. & S. 226 65, 88 5 36 44 21 44, 45 . 40 . 68 . 72 . 54 . 24 .6.32 . 18 . 70 . 43 . 39 . 41 . 11 . 11 . 11 38, 48 Talbot V, Earl of Shrewsbury, L. R. 16 Eq, 26 Thames Ironworks and Ship-building Company v. Reg, lOB. &S. 33 Thomas D. Atherton, 10 Ch. D. 185 Tompsett !■. Bowyer, 30 L. J. C. P. 1 Threlfall r. Fanshawe, 19 L. J. Q. B. 334 Thirsby v. Helbot, 3 Mod. 272 ; Russell 6th Ed. 340 ToUitt V. Saunders, 9 Price 612 Tomlin v. Fordwick, 6 N. & M. 594 ; 5 A. & E. 147 . Trainor v. Phoenix Fire Company, 8 Times L. R. 31 . Trippel i\ Eyre, 3 Ley, 263 23 '. 94 ... 51 16 ... 10 41 ... 25 .70,83 40, 44 103 ... 56 . 64 ... 38 . 103 ... 56 31 ... 21 . 55 ... 34 Digitized by Microsoft® CASES CITED. XV. Tryer v. Shaw, 27 L. J. Ex, 320 Tullis V. Jackson (1892), 8 Ch. 441 Turner v. Goulden, L. E. 9, C. P. 57 Turner v. Swainson, 2 Gale. 118 ; 1 M. & W. 572 Turnook c. Sartoris, L. E. 48 Ch. Div. 150 ... Tyerman i'. Smith, 6 E. & B. 719 V, Vanderbyl v. McKenna, L. E. 8 C. P. 252 Vawdrey v. Simpson (1896), 1 Ch. 166 Vynior's Case, 8 Eep. 82 N W. Wade ^. Bowling, 4 E. & B. 44 Wadswortht). Smith, 6L.R.Q.B. 322; 40L. J.Q.B.118 Waller D. Eing, 9 Mod. 63 Walmsley v. White, 40 W. E. 675 Walters v. Morgan, 2 Cox, 369 Warburton v. Haslingdean Local Board, 48 L. J. C. P. 451 Ward ■!;. Dean, 3 B. & Ad. 284 Watford Eailway v. London & North Western Rail- way, 38 L. J. Ch. 449 ; L. E. 8 Eq. 231 Westwood V. Eiley, 25 Ch. D. 413 Wharton I'. King, 2 B. & Ad. 528 Whatley v. Morland, 2 Dow. 249 Whiteley and Eoberts, 1 Ch. 558 Whitmore I'. Smith, 7 H. & N. 509 Wicks I'. Cox, 11 Jur. 542 Williams r. Lewis, 7 E. & B. 928 Williams v. Stepney, 66 L. T. E. 208 Wilson & Son and Eastern Counties Navigation Co., re Wimhurst v. Barrow Ship-building Company, L.E.Q.B.D. 888 Winter f. White, 2 Moore, 728 Winteringham v. Eobertson, 27 L. J. Ex. 301 Wright V. Howson {TJie Times, 10 March, 1888) Wrighton v. Bywater, 3 M. & W. 206 Wykes v. Shipton, 2 N. & M. 240 ARTICLE PAGE 84 ., ,. 45 29 ., ,. 20 4 . .. 4 104 ., ,. 57 29 . .. 19 60 . .. 37 41 . .. 25 30 . .. 21 46 . .. 28 89 . .. 48 4 . 4 84 . .. 45 80 . .. 21 24 . .. 16 110 , ... 59 91 .. 49 82 , .. 22 122 . .. 67 101 . .. 54 79 , .. 43 119 . ,.. 64 52 . ... 84 64 . ... 38 84 ... 22 25, 123 16,69 50 , .. 32 123 , ... 69 100 . ... 54 53 . ... 35 120 , ... 65 102 ... 55 107 ... 58 Digitized by Microsoft® Digitized by Microsoft® REDRESS BY ARBITRATION ; A DIGEST OP THE LAW BELATING TO ARBITRATIONS AND AWARDS. The Arbitration Act of 1889, while effecting consider- able alteration in the law as it previously existed, is chiefly a statute of practice and does not otherwise affect the rules of law applicable to arbitrations and awards. Its aim is to furnish a more simple code of procedure applicable to all submissions. The Act provides a common form of submission ; it abolishes the necessity of making a submission a rule of Court ; it simplifies the procedure in applications to the Court, since applications of every description, except those under § 11, may be made to the " Court or a Judge." The Act repeals all the general statutes as to arbitration ; but the repealed statutes, except so far as they are amended or rendered obsolete by the alteration in procedure, are re-enacted in substance : any parts of the repealed statutes which are re-enacted in the same terms are to be construed in accordance with the interpretation put upon the previous Acts ; but where larger words are used in the Amending Act, the Courts will assume that the intention was to give to the altered language a wider meaning. [Redman's Arbitrations, 3rd edition, p. 37.] This Act is, it is true, a consolidating statute, but, unlike the Partnership Act, 1890, consolidates only B Digitized by Microsoft® Z REDRESS BY ARBITRATION. the Acts of Parliament relating to arbitration, leaving a large portion of the subject to be found in the common law and in judicial decisions. The principal alterations which the Act of 1889 has made are — (a) the submission must be in writing and is irrevocable except by leave of the Court or a Judge (unless a contrary intention therein appears) ; (b) the submission need not be made a rule of Court, it has the same effect as though it were an order of Court and can be enforced only by leave of the Court or a Judge ; (c) the attendance of witnesses can be com- pelled by subpoena ad test or duces tecum ; (W) certain provisions contained in the First Schedule to the Act are taken to be inserted in every submission unless a contrary intention is expressed therein; (e) an arbi- trator may be ordered by the Court or a Judge to state his award in the form of a special case. The Arbitration Act, 1889 [25] , does not affect any arbitration pending at its commencement (1st January, 1890), but applies to any arbitration commenced after that date under any agreement or order made before that date ; and this refers not only to the process of arbitration, but also to the submission even if made before the commencement of the Act, provided only the arbitration commenced after that date. Submission. ARTICLE 1. The agreement to refer matters in difference to arbitration is called the submission. Note. —When an Act of Parliament compels a party to submit to arbitration, the submission cannot strictly be called the agreement of the parties. [Ritssell, 3.] 2. By the Arbitration Act, 1889, " Submission " means a written agreement to submit present or Digitized by Microsoft® BEDRESS BY ABBITEATION. 6 future differences to arbitration, whether an arbitrator is named therein or not. [27-1 A submission to arbitration within the meaning of the Act must be not only in writing, but, unless embodied in a distinct contract which has been affirmed by the subsequent contract of the party who is not a signatory, must also be signed by l)oth of the parties thereto. Illustrations. (1) The C. T. Co. sell goods to H. through a firm' of brokers. H. sends a bought note, duly signed by him to the brokers, containing a clause that any dispute arising on the contract should be settled by arbitration in Liverpool. On the same day the brokers sign a sold note containing no provision for arbitration, but otherwise similar. The C. T. Co. not having signed the agreement, there is no submission within the meaning of the Act. [Caerleon Tinplate Co. v. Hughes and another, 60 L. J., Q. B. 640.] (2) A. sues the Y. Assurance Co. on a fire insurance policy. The policy contains a clause that any differences under it shall be referred to arbitration. A., by suing, affirms the policy to be his contract, and the clause constitutes a submission, though the policy is not signed by A. A. cannot disaffirm a part of the very contract on which he is suing. The Court has therefore power to stay proceedings under sect. 4. [Baker v. Yorks Fire d' Life Assurance Co. (1892), 1 Q. B. D. 144.] 3. The person to whom the matters are referred is Arbitrator. called the arbitrator. If the reference be to two or more having power to Umpire. B 2 Digitized by Microsoft® KBDRBSS BY AEBITRATION. Award. • Umpirage. appoint another to decide in case of their disagree- ment, such other is called the umpire. The decision of arbitrators is an award. The decision of an umpire is an umpirage. Matters in dispute. Distinctions between valu- ation and arbitration. 4. The arbitration must be to settle matters in dispute ; thus an appraisement or valuation is not an arbitration ; neither is the engineer or architect whose certificate is required before the contractor is entitled to be paid, an arbitrator. [Wadsworth v. Smith, 6 L. E. Q. B. 322.] The practical distinctions are : — (a) The Court has no jurisdiction to enforce an appraisement as such under the statutes applicable to arbitrations. [Collins v. Collins, 36 Beav. ; Wadsworth v. Smith, 28 L. J. Ch. 184.] (b) An action for negligence would in a proper case lie against a valuer, but not against an arbitrator. [Turner v. Goulden, L. E. 9, C. P. 57. (c) A valuation must be stamped as an appraise- ment, an award as an award. [Lees v. Burrows, 12 East, 1 ; Perkins v. Potts, 2 Chitt. 399. The main point which distinguishes a valuation from an arbitration is that in the former the person appointed has simply to put a value on something which the parties have already agreed shall be paid for, and thus by the use of his skill prevents differ- ences from arising. " If, however, it appears from the terms of the agreement by which the matter is Digitized by Microsoft® BEDEBSS BY ARBITRATION. 5 submitted to the person's decision that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquiry, and hear the respec- tive cases of the parties, and decide upon evidence laid before him, then the case is one of an arbitra- tion. [Re Carus-Wilson and Greene, per Esher, M.R. (1887), 18 Q. B. D. 7 C. A.] Illustrations. An agreement was made with a market gardener to pay him compensation for giving up Ms tenancy before the expiration of his lease ; amount of com- pensation to be determined by two named arbitra- tors. The arbitrators differed, and the amount of compensation was assessed by an umpire appointed by them. This was a valuation and not an award, and leave to issue execution under the Arbitration Act, 1889, was refused. [Hammond and Waterton (1890), 62 L. T. 808.] A vendor and purchaser entered into an agree- ment for the sale of property at a price to be fixed by two valuers, and, as to matters in difference between the valuers, by an umpire to be appointed by them before they entered upon the valuation. This was not an arbitration. {Collins- v. Collins, 86 Beav. ; 28 L. J. Ch. 184.] Stewards of a horse-race are not arbitrators ; a referee appointed by the parties in a boat-race is an arbitrator. [Park v. Winterimgham, 21 L. J. Q. B. 123 ; Sadler v. Smith, L. E. 5 Q. B. 40.] On the sale of land one of the conditions of sale was that the purchaser should pay for the timber on the land at a valuation, and it was provided for the purpose of such valuation that each party should appoint a valuer, and the valuers thus appointed Digitized by Microsoft® D EEDEESS liY AEBITEATION. should, before they proceed to act, appoint an umpire, and that the two valuers, or, if they dis- agree, their umpire, should make the valuation. The two valuers appointed being unable to agree, the umpire made the valuation. , Held, affirming the judgment of the Q. B. D., that such valuation was not in the nature of an award on an arbitration, and therefore an application to set it aside must be refused. [In re Carus-Wilson and Greene (1887), 18 Q. B. D. 7 C. A.] Joint arbi- 5. One arbitrator is better than two, because one desirable. IS more likely to act judicially, and when there are two the appointment of an umpire frequently becomes necessary, because each arbitrator has a tendency to consider himself as the advocate of the party appoint- ing him, which is improper. The Act does not contemplate a reference to three arbitrators, and in the case of a mere agreement to refer which does not appoint the arbitrators and pro- vides for a reference to three arbitrators, one to be appointed by each party, and the third by the two so appointed, as distinguished from two arbitrators and an umpire, the Act does not enable the Court to compel one of the parties to appoint an arbitrator. [Re Smith and Nelson's Arhitration, 25 Q. B. D. 5, 45.] Eefbeences undee Oedeb of Couet. Reference for 6. Subject to Eules of Court and to any right to report. 'hs.Ye 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 inquiry or report to any official or special referee. Digitized by Microsoft® BBDEBS8 BY ARBITEATION. 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. [Arb. Act, 1889, 13 (1) (2). J As the power to refer under § 13 is " subject to any right to have particular cases tried by a jury," where such a right exists the order cannot be made until the time has passed for requiring a jury. An appeal from a compulsory order of reference made by a Judge sitting at nisi prius or assizes must be brought direct to the Court of Appeal. An appeal from a like order made by a Judge in Chambers is to the Divisional Court. [Hoch v. Boor, 43, L. T., 425.] Digitized by Microsoft® EEDEESS BY AEBITEATION. Who may submit to arbitration. Agent. CHAPTEE I. THE SUBMISSION. Section I. — The Paeties. 7. Any person who can enter into a contract can submit to arbitration ; others cannot. All persons whose interests may be affected by the award should be made parties to the submission. 8. An agent may bind his principal by submission to arbitration if duly authorised by him so to do, and should make the submission in the name of his prin- cipal, otherwise he may personally be bound. The authority of an agent to refer to arbitration may arise by implication. Illustration. If a person allows his agfent to underwrite and settle losses for him he gives him an implied autho- rity to refer a dispute about a loss to arbitration, and is bound by such act of the agent. [Qoodson v. Brooke, 4 Camp., 163.] Bankrupt. 9. A bankrupt cannot refer to arbitration, but his trustee with the consent of the Committee of in- spection can do so ; and by the submission the trustee will admit assets unless the contrary is expressed, that is to say he will be personally bound to per- form the award. A bankrupt may, however, make a submission binding on himself but not on his estate. [Bankruptcy Act, 1883, sec. 57 (6) ; Milnes v. Robinson, 24 L. J. C. P. 29.] Digitized by Microsoft® THE SUBMISSION. 9 10. A corporation sole or aggregate may refer to Corporation. arbitration in the same manner as that in which it can enter into a binding contract. 11. An executor or trustee may refer to arbitration ; Executor and as regards trustees, only so far as no contrary inten- tion is expressed in the instrument creating the trust and subject to the terms and provisions of that instrument. An executor should stipulate against a submission being taken as an admission of assets ; and a sub- mission by any person in a fiduciary position should expressly negative any personal liability. 12. A father or guardian may bind himself for an father or 1 TT 1 n 1 guardian. infant's performance of an award. Here the father or guardian is bound and not the infant. 13. By the express terms of the Infant's Relief infant. Act, 1874, all contracts by infants other than for necessaries, are absolutely void and incapable of ratification by him after he is of full age [37 and 38 infant and Vict. c. 62.] If an adult join with an infant in a ^^""• submission to arbitration, the adult is bound, but not the infant ; and an adult may bind himself by acqui- Acquiescence, escence in a contract made by him during infancy; and may bind himself by a new and independent contract for value after majority. [Coxhead v. Mullis, 3 C. P. D. 439.] 14. The committee of a lunatic may, with the Lunatic, consent of the Court, submit to arbitration. 15. By the IMarried Women's Property Act, 1882, Married , ■ I i_ i. 1 • J- women. a married woman may enter into a contract bmding her separate property. Digitized by Microsoft® 10 BBDKBSS BY AKBITEATION. Partner. 16. A partner cannot submit to arbitration so as to bind the firm, because to do so is not within the scope of the partnership agency. But upon such a submission parties may be bound by acquiescence. [Lindley, 265.1 Illustration. The managing partner of a colliery worked beyond the boundaries of the colliery without proper enqui- ries as to such boundaries, and after notice from the adjoining owner that he was committing a trespass, recklessly continued such working without consulting his co-partners, under the hond-fide belief that the adjoining owner had no title to the dis- puted area ; an action against him by the adjoining owner for trespass and damages was referred to arbitration. The co-partners had no knowledge of the action until after the reference had been agreed to. They, however, attended the reference and did not object to it. The arbitrator found that a trespass had been committed, and assessed the damages at £6,000. The co-partners refusing to contribute, the managing partner brought an action against them, claiming a declaration that the £6,000 was a partnership debt, and that the defendants were bound to contribute rateably towards it. It was held that the co-partners had acquiesced in the arbitration, and were bound by the award. [Thomas v. Atherton, 10 Ch. D. 185.] Solicitor and 17. A solicitor in an action may bind his clients by reference to arbitration even in defiance of his clients' instructions ; he may, however, by doiirg so Digitized by Microsoft® THE SUBMISSION. 11 render himself liable for an action at the suit of his client. Counsel also may do so, and are not liable to an action, although they refer against their clients' will. [Swinfen v. Swinfen, 25 L. J. C. P. 303 ; Strauss V. Francis, L. R. Q. B. 379.] Section II. — The Subject Mattbe. 18. Whatever may be the subject of civil litigation Matters may be referred to arbitration. be referred. In particular the following matters may be : — 1. Future differences, though none at present exist. 2. The construction of a will or any bare ques- tion of law or fact. [Stiff v. Andrews, 2 Madd. 6.] 3. Criminal matters as to which the injured party has a remedy by action as well as by indict- ment. Examples. An indictment for conspiracy to prevent persons running omnibuses. [Reg. v. Shillibeer, 2 Doul. 238.] An Assault. [1 Chittt/s Statutes, 23 N, b. to 9 & 10 Will, III. c. 15.] A public or private nuisance. [Dobson v. Groves, 6 Q. B. 637 ; Fallowes v. Taylor, 7 T. E. 475.] The following matters may not be referred to arbi- Matters which may tration : — not be 1. A suit for divorce ; although the question whether or not grounds for separation exist may be referred, and husband and wife may bind themselves to abide by the terms of the separation awarded. Digitized by Microsoft® referred. 12 EBDKESS BY AEBITEATION. References under particular statutes. 2. Perjury or felony. 19. Statutory provision is made for reference to arbitration of certain particular matters by the follow- ing Statutes among others : — Agricultural Holdings Act, 1883, 46 & 47 Vict. e. 61. Appeals at Quarter Sessions, 12 & 13 Vict. c. 45, ss. 12, 13, 14. Artisans' and Labourers' Dwellings Acts, 1868, 31 & 32 Vict. c. 130, and 1879, 42 & 43 Vict. c. 64. Artisans' and Labourers' Dwellings Improvement Acts, 1875 ; 38 & 39 Viet. c. 36 ; 42 & 43 Vict. c. 63, ss. 2, 3, & Sch. ; 45 & 46 Vict. c. 54, Sch. Board of Trade Arbitrations, &c.. Act, 1874, 37 & 38 Viet. c. 40, s. 6. Building Societies Act, 1874, 37 & 38 Vict. c. 42, ss. 16, 34, 36. Companies Act, 1862, 25 & 26 Vict. c. 89, s. 161. Lands Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 108. Masters and Workmen 5 Geo. IV. c. 96 ; 1 Vict. c. 67, ss. 1, 2, 3 ; 8 & 9 Vict. c. 128, s. 3 ; 30 & 31 Vict. c. 105 ; 35 & 36 Vict. c. 46. Metropolitan Gas Act, 1860, 23 & 24 Vict. c. 125. Metropolis Local Management Act, 1855, 18 & 19 Vict. c. 120. Metropohs Water Act, 1871, 34 & 35 Vict. c. 125. Metropolitan Building Act, 1855, 18 & 19, Vict. c. 122. Public Health Act, 1875, 38 & 39 Vict. c. 55, s. 308. Eailway Clauses Consolidation Act, 1845, 8 & 9 Vict. c. 20, s. 44. Railway Companies Arbitration Act, 1859, 22 & 23 Vict. c. 69, s. 2. Digitized by Microsoft® THE SUBMISSION. 13 Kegulation of Eailways Act, 1873, 36 & 37 Vict. c. 48, s. 8. Savings Banks, 26 & 27 Vict. c. 87, s. 48 ; 39 & 40 Vict. c. 52, s. 12. Tramways Act, 1870, 38 & 34 Vict. c. 78, s. 33. Workmen's Compensation Act, 1898. Some Acts passed since the Arbitration Act, 1889, and containing pro%asions for arbitration, enact that the Arbitration Act, 1889, shall' apply — e.g., the Light Eailways Act, 1896 ; some that the Act shall not apply, as in the case of the Conciliation Act, 1896 (59 & 60 Vict. c. 80, s. 3) ; some that certain pro- visions of the Act shall not apply, as in the ease of the Building Societies Act, 1894, and the Priendly Societies Act, 1896, which provide that arbitrators shall not be compelled to state a case on a point of law. 20. The Arbitration Act, 1889, applies to every Application arbitration under any Act passed before or after the to references commencement of the Act (including those mentioned Y^^^^ statu- ^ o tory powers. above) as if the arbitration were pursuant to a sub- mission, except in so far as the Act of 1889 is incon- sistent with the Act regulating the arbitration or with any rules or procedure authorised or recognised by that Act. [24.] 21. Arbitration may also be held under Acts of Eefereneeby •^ ... special Act of Parliament passed for the special arbitration. Parliament. Examples. The London, Chatham, and Dover Eailway (Arbitration) Act, 1869 ; under which the Marquis of Salisbury and Lord Cairns were the Arbitrators : the Albert Life Assurance Company Arbitration Act, Digitized by Microsoft® 14 REDRESS BY ARBITRATION. 1871 ; under which Lord Cairns was the Arbitrator : and the European Arbitration Act, 1872 ; under which Lord Westbury was the Arbitrator ; the Port- sea Island Building Society's Arbitration Act, 1893. Section III. — The Manner. Modes of 22. The following are the different modes by which a submission to arbitration may be made : — i. By Agreement of the parties where no action is pending — either (1) by parol or word of mouth ; this would not be a submission within the meaning of the Arbitration Act, 1889, or (2) by writing not under seal, or (3) by writing under seal, i.e., by deed, or (4) by mutual bonds. Reference Note. — In these cases the reference may either referee. ^6 to Arbitrators chosen by the parties, or to the Official Eeferee, and where a submission provides that the reference shall be to an Official Eeferee, 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. [3.] ii. By the Agreement of parties when an ACTION IS pending, by order of the Court, if all parties interested who are not under disability consent. [14 (a).] Note. — Persons not parties to the action may be parties to such reference. [Banner v. Charlton, 5 East, 139.] iii. By compulsory order op the Court in any cause or matter (other than a criminal proceeding by the Crown) — Digitized by Microsoft® THE SUBMISSION. 15 If the cause or matter requires any prolonged exami- nation of documents, 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 by the Court through its other ordinary officers ; or. If the question in dispute consists wholly or in part of matters of account ; the whole cause or matter, or any question or issue of fact arising therein, may be tried before a Special Eeferee or Arbitrator respectively agreed on by the parties, or before an Official Eeferee or Officer of the Court. [14 (b) (c).] Note. — This does not apply to references which include disputes outside the cause or matter. [Darlington Wagon Company v. Harding Pier • Company (1891), 1 Q. B. 245.] iv. By order of a County Court, hy the consent of the partiea in a County Court action. [51 & 52 Viet. 43, s. 104.] V. By Particular Statutes ; e.g., the Lands Clauses Consolidation Act, 1845. vi. By Act of Parliament in particular cases, e.g., the Albert and the European Life Assurance Companies' Arbitration Acts. 23. A submission to arbitration is a contract Submission I. 1 • 1 f n , ^ contract. between the parties oi which some oi the terms are left to be supplied by the arbitrator ; the submission and the award together constituting a complete con- tract, the character of which {i.e., whether simple or special) is determined by the nature of the submission. [Per Lord Cranworth, Lang v. Brown, 25 L. T. (H. L.) 297 ; 'I'albot v. The Earl of Shrewsbury, L. E. 16 Eq. 26.] Digitized by Microsoft® 16 EEDEESS BY ARBITRATION. ^''™'- 24. Therefore if the submission be by parol it would be void as a contract in cases where the Statute of Frauds requires writing, and an award upon such submission could not be enforced. [Walters V. Morgan, 2 Cox, 869 ; Rainforth v. Hamer, 25 L. T. 246.] Provisions 25. The following provisions are implied in sub- implied m . . submission, missions, unless a contrary intention is expressed therein, and so far as they are applicable to the reference under the submission [2] ; not only in submissions made on or after 1st January, 1890, but also in submissions made before, if the arbitration was entered upon after that date. [Williams v. Stepney (1891), 65 L. T. R. 208.1 (a) If no other mode of reference is provided, the reference shall be to a single arbitrator. (b) 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 ex- tended 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. Digitized by Microsoft® THE SUBMISSION. 17 (e) The umpire shall make his award within one month after the original or extended time appointed for making the award of ihe 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 claim- ing through them respectively, shall, subject to any legal objection, submit to be examined by the arbitrators or umpire, on oath or afSrmation, 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 to 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 arbi- ^ trators or umpire thinks fit, be examined on oath or aflBrmation. (/t) 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 so paid or any part thereof, and may award costs to be paid as between solicitor and client. [Arbi- tration Act, 1889, 1st Schedule.] 26. If the reference involve differences relative to By deed. an act to be perfected by deed, then the submission must be under seal. [Hutchinson v. Whitfield (Ir. Ex.), 78.] c Digitized by Microsoft® 18 EEDEBSS BY ARBITRATION. Stamp. 27. The submission need not be stamped unless the subject be £5 or more in value, and then a 6d. stamp is sufficient if it be by writing not under seal ; 10s. if it be by deed; and a bond stamp if by bond. [54 & 55 Vict. c. 38 ; Lloyd v. Mansell, 19 L. J. Q. B. 192.] Specific performance. 28. An agreement to refer to arbitration will not be specifically enforced [South Wales Railway Com- pany V. Wythes, 5 De G., M. & G. 880] , but when an action is brought in the face of such an agreement the Court has power to stay proceedings in the action and so indirectly enforce specifically the agreement to refer. staying proceedings in action. 29. The Arbitration Act, 1889, provides that any party to such action may, after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to the Court to stay the proceedings, and the Court or a Judge thereof if satisfied that (1) there is no sufficient reason why the matter should not be referred in accordance with the submission, and (2) 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 [4j . The Court has a discretion whether to stay proceed- ings or not, and will not exercise that discretion by staying proceedings in a case where the only question is one of law, which, if sent to the arbitrator, ought to be referred back by him to the Court, under Section 19 of the Arbitration Act, 1889. 'Re Carlisle, Clegg v. Clegg (1890), L. R. 44, Ch. D. 200.] Digitized by Microsoft® THE SUBMISSION. 19 If the action be in respect of matters not covered by the submission, the Court will not stay proceedings in the action. {Turnock v. Sartoris (1890) L. E. 43, Ch. D. 150.1 An application for security for costs is a step in the proceedings within the meaning of sec. 4 of the Act, and disentitles the defendant to apply to the Court to stay the action. [Adams v. Cattley (1892), L. T. 83 ; S. J. 525 ; L. J. 95.] The fact that the person named as arbitrator in a submission is interested in the result of an arbitration, is sufi&cient reason why the matter should not h^ referred, on the application of the defendant, wjifere one of the parties has commenced legal proceoidings. [Nuttall V. Mayor, dec, of Manchester {im-2i), T. E. 513.] The jurisdiction of the Court to appoint a reedver is not ousted by an arbitration cl^se, and the Court can, when appointing a receiverr'stay all proceedings in the action, except for the >urpose of carrying out the order for a receiver. /Pini v. Roncoroni (1892) 1 C. A. 633.] A clause in a subr/^on that an award shall not be set aside by rea^'^^^ ^^7 ^aud on the part of the arbitrator is r "cu|pd vaHd. |-jjitB-i 1 hough there was no express reference to fit^i' J-iion in this case, the clauses of the con- tract ■c^'^W seem to amount to a submission.] Illustbation. A clause in a building contract provides that the rchitect's certificate shall be final and binding on both parties, and shall not be set aside by reason of any charge of fraud. The plaintiffs, the contrac- c 2 Digitized by Microsoft® 20 REDRESS BY ARBITRATION. tors, sue for payment of the balance of a sum alleged to be due to them, but for which the archi- tect has not certified. The plaintiffs allege that he has not bond fide certified for the amount due to them, but has knowingly certified for a smaller sum, in order to leave a large sum available for payment "* of a sum claimed by the architect. The clause is not invalid on the ground of public policy, and must pe^ be complied with. [Tullis v., Jackson, 8 T. R. 691 ; "^ 41 W. E. 11.] / Arbitration ^,^ 30. The arbitration clause in a partnership agree- olause m _ _ .... partnership irel^ will not deprive the Court of jurisdiction over the^totters referred, nor will the addition of a cove- nant St to sue in respect of such matters prevent either pa:*-,y from bringing them into Court. \. i Illustration. A. grantb? a lease of a coal mine to B. for a term of years at a ^<)yalty, and B. covenanted to raise at least 4,000 tJ(s, and it was agreed between the parties that an^ difference or question arising between them touchi. t any covenant or matter expressed in the deed o^its meaning should be settled by two arbitrators t!^ nominated within two months after the differen^&tepse, with mutual covenants to obey and performVtla^ -;ard, and not to bring any action or suit withtf^it^^st submitting all matters to arbitration. The &\^'g^eni not to sue was void for that purpose as ousL^jj^the juris- diction of the Court. [Horton v. Saye,.^ ^.jj. & N. 643.] ^\, Note. — The specific performance of awa.;[ „ jjg properly within the equitable jurisdiction i, ,j\ High Court, and is beyond the scope of this digv Digitized by Microsoft® THE SUBMISSION. 21 Note. — Under a general submission by partners of all matters in difference between them, the arbitrator may (1) order one partner to pay or give security for the payment of a certain sum to another ; (2) apportion the assets between them ; (3) order conveyances to be executed ; (4) direct one partner to sue in the name of himself and others and give them a bond of indemnity ; (5) restrain one part- ner from carrying on business without certain limits ; and (6) direct mutual releases. He cannot appoint a receiver to collect partner- ship assets and credits, nor direct that a sum of money be paid to himself (the arbitrator) to apply in payment of certain specified debts. [Partnership Articles Epitomised and Explained, 8.] It is clear from recent authorities that under the ordinary arbitration clause in partnership deeds the arbitrator has power to award a dissolution [Walmsley V. White, 40 W. R. 675 ; Vawdrey v. Simpson (1896), 1 Ch. 166] , and also the proper terms of such a disso- lution, including, if necessary, the return of a j)re- mium [BelfieU v. Bourne (1894), 1 Ch. 521.] 31. An agreement to refer to arbitration is one When which (independently of the Arbitration Act, 1889) defence to cannot be effectually set up as a defence to any action relative to a matter agreed to be referred; unless indeed the reference has been expressly made a con- dition precedent to the right to sue. [Scott v. Avery, 52 L. C. 811 ; Trainer v. Phoenix Fire Compav.a (1891), 8 Times, L. R. 31; Kenworthy v. '. P. or Insurance Company, 8 Times, L. E. 211.] within the Though an agreement not to sue ^ .i-erred to in the void, the s's '-■ result is atta;'- -aken as relating to Digitized by Microsoft® action. 22 EEDEBSS BY AKBITEATION. When juris- diction of Court ousted Submission by Bond. Hatters in- ■ 'ad when « pend- v.. agreeing that the award of an arbitrator shall be a condition precedent to the right to sue. This may be done by a stipulation that no right of action shall arise until matters in dispute have been referred to and ascertained by arbitration [Caledonian Insurance Company v. Gilmour (1S93), A. C. 85] , or by a contract to pay such a sum only as shall in case of difference be ascertained by an arbitrator. [Braunstein v. Accidental Death Insurance Company, 31 L. J. Q. B. 17.] 32. Under some Acts of Parliament provision is made for arbitration which will oust the Court from its jurisdiction. Example. The Eailway Companies Arbitration Act, 1869, [22 & 23 Vict. c. 26 ; Watford liaihoay Company v. L. £ N. W. Railway, 88 L. J. Ch. 449.] 33. When the submission is by bond each party executes a bond to the other in a certain penalty, subject to the condition of his abiding by and per- forming the award of the person named as arbitrator. The penalty in the bond does not limit the amount the arbitrator may award, although if he exceed that limit no larger sum than the penalty can be recovered by action on the bond. 34. If an action is pending, matters dehors the action may be included, and persons who are not parties to the action may be bound. [Banner v. ^harlton, 5 East, 139 ; Hall v. Brand, 53 L. J. Q. B. 19 ; ms V. Lewis, 7 E. & B. 928.] NoTigi'ence pending an action be made by properly Wilfil terms," these terms are those High Court, and is"l)b_ Digitized by Microsoft® THE SUBMISSION. 23 contained in a printed form used by the Court, a ^copy of which will be found in Appendix. 36. The expression " all inatters in difference (or "^'^\^^^- ■■^ ^ ters m in dispute) between the parties " will include and difference." empower the arbitrator to adjudicate upon all disputes affecting their civil rights. [Baker v. Toivnshend, Moore, 120.] 37. A reference of all " matters in dispute between " Matters in dispute m the parties in an action " or " all actions " will include action." only what is actually in litigation between the parties, but " actions and complaints " would extend to causes of action in respect of which proceedings have not actually taken place. 38. General words may be controlled by the con- General •' ■' words. text ; as by previous articles in a partnership deed, but not by specific recitals. Illustration. D. S. and M. enter into a partnership agreement for the construction of a railway in Sardinia ; P. afterwards joins the firm pursuant to the provisions of the partnership deed ; S. goes into liquidation under the Bankruptcy Act, 1869, and Y. is appointed the trustee of his estate. The partnership articles contain a clause that any difference or dispute shall be referred to arbi- tration. Question arises whether the shares of the partners D. and M. were purchased by Y. and P. or by Y. alone. This question was not within the submission, since the differences referred to in the arbitration clause must he taken as relating to Digitized by Microsoft® 24 REDBESS BY ABBITKATION. Former reference. matters the subject of the previous articles in the partnership agreement. [Piercy v. Young, L. R. 14 Oh. D. 200.] 39. Matters included in a former reference are not included in a subsequent reference. [Smith v. Johnson, 15 East, 213.] Differences after submission. 40. Matters of difference arising after the sub- mission may be included by agreement of the parties or by necessary implication. Illustration. Reference to arbitration to decide price to be paid for certain land. Price awarded subsequent action for mesne profits. Mesne profits were within the award, and therefore adjudicated upon. Alteration of submission. 41. The arbitrator cannot, neither can the Court, alter the submission, except that the Court may alter it where there is some manifest error or omission by the officer of the Court in drawing up the order. The terms of a submission to arbitration may be altered, before the award is made, by the consent or further agreement of the parties, but the alteration should be by an instrument of as high a nature as the submission, for, after the alteration, the instru- ment affecting the alteration becomes the submission, incorporating all the unaltered terms of the original submission. The arbitrators have no power to alter the submis- sion, nor can the Court alter an order of reference by consent, though it may be varied by the parties ; but the Court may amend an order where there is some Digitized by Microsoft® THE SUBMISSION. 25 manifest error or omission by the officer of the Court in drawing up the order. Illustration. Eeference of all matters in difference in a cause between V. and K. by order by consent without power to the arbitrator to amend. Court had no power to amend by inserting power to amend. [Vanderbyl v. McKenna, L. E. 8, C. P. 252 ; • and see Thomsett v. Bowyer, 30 L. J. C. P. 1.] , where cause referred on " usual terms " the Court inserted a power to amend which had been omitted in drawing up the order.] 42. A compulsory order of reference may be altered Alteration of c 0H113 ul S r V or amended by the Court. [Gihhs v. Knightley, 26 reference. L. J. Ex. 294.] Section IV. — The Revocation. 43. A submission, unless a contrary intention is Submission , , , ... , , ,11 » to be irrevo- expressed therein, is irrevocable, except by leave of cable and to the Court or a Judge, and has the same effect in all an^^dCTof ^^ respects as if it had been made an order of Court. [1.] Court. Leave to revoke will not be given merely because the arbitrator is making a mistake in law in a matter within his jurisdiction ; the power to revoke is a matter of discretion, the exercise of which must depend upon the circumstances of each case. [James v. James and Bendall (1889), L. R. 23 Q. B. Div. 12 C. A.] It is necessary to distinguish between the revoca- tion of an agreement to refer, and the revocation of the appointment of a particular person as arbitrator. The language of the new Act is not so exact as that of the old (3 & 4 Will. IV. e. 42, § 39). Its meaning. Digitized by Microsoft® 26 EEDKESS BY AEBITEATION. however, is that when an arbitrator is appointed, his authority cannot be revoked by either of the parties except by leave. Even in cases in which a party may be able to revoke the authority of the arbitrates, he cannot re- voke the instrument of submission, but will remain liable to an action on such instrument. The remedy for revocation of a submission when not under seal is by action for breach of agreement ; when the sub- mission is by deed, the revoking party is liable to an action on the covenant. [Redman's Arbitration, did Edition, p. 101.] Revocation if 44. If the agreement is in fact not a reference to ment. arbitration, and the award is an appraisement merely, there is no power of revocation. Illusteations. By a deed between P. and the plaintiff, and the defendant P. covenanted with the plaintiff that he would commence and forthwith build and finish a gas- holder tank, and that the work should be completed on or before the 80th June, 1853, or in default P. should forfeit £50, and 20s. for every day the com- pletion should be delayed beyond the tirne appointed ; and the defendant, as P.'s surety, covenanted with the plaintiff that P. should perform the covenant on his part which should be subsisting, and in default that he, the defendant, should pay to the plaintiff such sums as B., or other the engineer for the time being of the plaintiff, should adjudge to be proper to be paid for such default. Ill an action for not finishing the work on the 30th June, and for not paying the amount which E. had adjudged proper to be paid to the plaintiff for Digitized by Microsoft® THE SUBMISSION. 27 the default, it was held that the adjudication of E. was not in the nature of an award, and that there- fore his power to adjudicate could not be revoked by any of the parties to the deed. [Northampton Gas Light Gompanij v. Parnell, 15 C. B. 630.] A plaintiff agreed with the defendant to empty a mill-pool for fivepence per cubic yard of mud. The admeasurement of the mud removed to be settled by N., and if any dispute arose, the dispute to be referred to N. Held that although the former part of the agreement was not revocable, the latter was. [Mills v. Bayley, 32 L. J. Ex. 179 ; and see supra Article 4, Hammond v. Waterton, 62 L. T. 808.] 45. Application for leave to revoke the submission Time for application must be made to a Judge before the award is made, for leave to Sufficient ground must be shown for the Court to give leave. The application for leave to revoke will be at Chambers, by summons, and will not be granted ex •parte. An appeal from a Judge at Chambers, giving or refusing leave to revoke a submission, lies to the Court of Appeal, and not to a Divisional Court. [Ee Port- land District Council and Tilley (1896), 65 L. J. Q. B. 527.] Illustrations. The following would be sufficient ground upon which the Court would grant leave to revoke the submission : — Bankruptcy of one party where all the bankrupt's interest in the matter in dispute vests in the trustee of his estate. [2Iarsh v. Wood, 9 B. & C. 659.] Digitized by Microsoft® revoke. 28 EBDEESS BY ABBITKATION. Corruption in the arbitrator — as, if he have any secret interest in the subject of the arbitration, or have any bad feehng towards either disputant. [Parker v. Burroughs, CoUes, Pari. Gas. 257 ; Earl V. Stocleer, 2 Vern. 251.] If the arbitrator be about to exceed his authority, as where the plaintiff's claim in an action was referred to arbitration, and the arbitrator decided on other claims, the defendant in the action not objecting. [Faviel v. Tlie Eastern Counties Railway, 2 Ex. 350.] Where the arbitrator will not act. [Cooper v. Shuttleworth, 25 L. J. Ex. 114.] Where the arbitrator wrongly admits or rejects evidence, unless he will obey the directions of the Court. [Hart v. Duke, 82 L. J. Q. B. 55 ; and see Kirk V. The East West India Dock Company, 12 L. E. H. L. 738 (1887), in which case the arbi- trator admitted evidence which one of the parties thought should not be admitted, and therefore applied to the Court for leave to revoke the sub- mission. The House of Lords gave leave to revoke the submission, unless the arbitrator would state as part of, and on the face of, his award all the pur- poses for which he received, and the effect, if any, which he gave to certain classes of evidence, and make his award in the form of a Special Case.] Notice of Notice of the revocation must be given to the revocation. arbitrator. [Marsh v. Bulteel, 5 B. & A. 507.] Revocation 46. The submission will be revoked by operation of law— of law by the death of either party when there are death. ^^^y two parties ; but it is doubtful whether the death of one of several parties will revoke the submission Digitized by Microsoft® THE SUBMISSION. 29 ipso facto. I Cooper v. Johnson ; re Hare, 2 B. & A. 394.] Note. — Provision may be made in the submission that the death of either or any of several parties shall not operate as a revocation. [Olarke v. Crofts, 12 Moore, 349.] The marriage of a female would formerly operate Marriage, as a revocation, but this is probably not so since the Married Women's Property Act, 1882. Bankruptcy is not ipso facto a revocation, but is Bankruptcy. ground upon which the Court may give leave to revoke. Digitized by Microsoft® 30 EEDEESS BY AEBITEATION. CHAPTEE II. THE AEBITRATORS AND UMPIRE. Section I. — Their Appointment. Who may be appointed. Objection to arbitrator. 47. Any person may be appointed arbitrator, even interested persons, infants, lunatics, married women, and such like. Where, however, the arbitrator is not indifferent between the parties he may be objected to. [Beddow v. Beddow, 5 H. L. C. 89 ; Drew v. Drew, 25 L. J. 282.] Note. — The party proceeding with knowledge of any objection to the arbitrator will thereby waive the objection. [Clout v. Metropolitan Railway, 46 L. T. Q. B. 8.] The objection should be insisted upon, either by applying for leave to revoke the submission or for an injunction to restrain the arbitrator from acting. [Beddow v. Beddow, 5 H. L. C. 89 ; Malmesbwy Rail- way V. Budd, L. R. 2, Ch. D. 113.] Judicial impartiality. 48. Arbitrators exercise judicial functions, and should therefore have judicial impartiality and avoid even the appearance of evil, as by accepting the hospitality of the parties ; and this is so equally with joint as with sole arbitrators. When joint arbitrators are appointed there is often a tendency to consider each as the advocate of the Digitized by Microsoft® THE AKBITEATORS AND UMPIRE. 31 party appointing him and the umpire as the judge : this is wrong. [Maule v. Maule, 4 Dow, 363.] 49. If several arbitrators be appointed, the ap- Completion . . of appoint- pomtment will not be complete until each party ment. has given notice of his appointment; and (in the absence of special agreement in the submission) each and all the arbitrators must act together, they having power only to act jointly. Note, — All proceedings must be before all the arbitrators. [Peterson v. Ayre, 14 C. B. 665.] The award must be signed by all at the same time and place and in the presence of each other. The appointment of an umpire should be signed by both arbitrators at the same time and in the presence of each other unless they have previously agreed upon the umpire. [Ee Hopper, L. E. Q. B. 367 ; Lord v. Lord, 26 L. J. Q. B. 34.] The submission may, however, enable a majority to act. [Perring v. Eeymer, 3 A. & E. 245.] Where the reference is to three arbitrators, enabling them, or any two of them, to hear the case and make an award, although two have jurisdiction over the case, they must, that their award shall be valid, have given the third notice of the meetings, that he might have attended had he chosen. [Goodman v. Sayers, 2 J. & W. 261.] Where there is no positive refusal, two cannot act without first taking the opinion of the third. If, after discussion, he refuse to concur with them in the award, they may execute it, and it will be good. Digitized by Microsoft® 32 EBDEBSS BY ARBITEATION. Power for the Court in certain cases to appoint an arbitrator, umpire, or third arbi- trator. 50. In any of the following cases : — (a) Where a submission provides that the reference shall be to a single arbitrator, and all the parties do not after differences have arisen, concur in the appointment of an arbitrator : (b) If an 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 umjDire or third arbitrator and do not appoint him : (J) 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 was 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, umpire, 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. — [5.] Note. — The Court has no power to make an order calling upon one of the parties, who has been served with notice to appoint and neglects to do so, to appoint an arbitrator within seven days. [Smith and Nelson (1891), 25 Q. B. D. 545.] Where Digitized by Microsoft® THE ARBITEATOES AND UMPIEB. 38 the parties fail to concur iii an appointment the Court has no discretion in the matter, but must appoint an arbitrator. [Eyir v. Corporation of Leicester (1891), 8 Times L. E. 136.] Where a submission provides for the naming of a person to act as arbitrator, failing the standing referee, and such person objects to act unless ap- pointed by a Judge's order, the Court has no power to appoint him arbitrator under sect. 5, sub-sects, (a), (b). Semble, the true meaning of sect. 5, sub-sects, (a) and (b), is that where the parties will not appoint an arbitrator, or an appointed arbitrator refuses to act, or is incapable of acting, or dies, and there is no ma- chinery in the submission whereby an appointment can be obtained, the Judge may appoint an arbitrator. Illusteation. W. & Son contract with the E. C. N. Co. to execute certain works. The contract provides that diilerences shall be referred to M., who shall be standing referee, or failing him to a person to be named by X., the president of the I. C. E. It is subsequently agreed that the arbitration shall be conducted according to the Arbitration Act, 1889. A difference arises, and M. makes an award. He then goes abroad. Fresh differences arise, and the E. C. N. Co. apply (without the consent of W. & Son) to X. to appoint a new arbitrator. He appoints S. S. objects to act unless appointed by a Judge's order. The Court has no power to appoint S. The proper course is to apply to X. to name some other person, and (semble) S. cannot be considered as re- fusing to act. [Re Wilson S Son and Eastern Counties Navigation dc, Co. (1892), 1 Q. B. D. 81.] D Digitized by Microsoft® 34 EEDEESS BY ARBITRATION. Joint arbitra- tor may act as sole. Powers for gj^ Where a Submission ijrovides that the reference parties m ■*■ certain cases shall be to two arbitrators, one to be appointed by to supply vacancy. each party, then, unless the submission exj)resses 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 ; (h) 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 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 apj)ointed by consent : But the Court or a .Judge may set aside any such appointment. — [6] . 52. Arbitrators may not delegate their judicial functions ; they may take the opinion of others, but must form their own judgment, treating the opinion as evidence with which their own minds are satisfied. [Whitmore v. Smith, 7 H. & N. 509 ; Ellison v. Bray, 9 L. T. N. S. 730.] Cannot dele- gate. Choice of umpire. 53. An umpire may be chosen where two arbitra- tors are appointed, and nothing to the contrary appears in the submission ; usually the appointment of an umpire is provided for, and then the nomination may be by the parties themselves at the time of Digitized by Microsoft® THE AEBITEATORS AND UMPIRE. 35 submission, or may be left to the arbitrators. [Bright V. Durnell, 4 Dow, 756 ; Gudliff v. Walters, 2 M. & R. 232.] The umpire may be appointed before entering on Time of ^ the reference, although the submission give power appointment. only to appoint in case of disagreement. [Bates v. Cooke, 9 B. & C. 407 ; Winteringham v. Robertson, 27 L. J. Ex. 301.1 54. Where no time is limited, the umpire may be Wlien no time limited. appomted at any time before or after the time limited for making the award, provided it is within the time allowed for making the umpirage. [Harding v. Watts, 15 East, 556 ; Johnson v. Collie, 24 L. J. Q. B. 63.] Where the appointment of an umpire is to be made by the arbitrators, they must exercise the power within the time limit for making the award. 55. The umpire should accept the office, and if he Umpire I . 1 • 1 • 1 1 f should accept do not, another may be appointed m his place ; but after office, his acceptance the appointment cannot be revoked. [Trippel v. Eyre, 3 Ley, 263 ; Reynolds v. Gray, 12 Mod. 120 ; Oliver v. Callings, 11 East, 607.] 56. In the absence of particular statutory directions, ^°ds "^ arbitrator's or of directions in the submission, there is no parti- appointment. cular mode in which the appointment of arbitrator must be made ; parol is sufficient, but writing is of course better in order to avoid misunderstanding. [Oliver v. Collings, 11 East, 607.] Section II. — Thbie Authority. 57. The submission alone invests the arbitrator Authority— -,.,-,„ -, whence with authority, defines his duties, and is the tounda- derived. tion of all his proceedings. n 2 Digitized by Microsoft® 36 EEDRESS BY AEBITEATION. When exercised. Enlargement of time. 58. The arbitrator's authority must be exercised within the time limited for making the award. The time may be enlarged (1) by the arbitrators, by writ- ing signed by them, (2) by the parties), (3) by the Court, (4) by implication. If in the submission there be no limitation of time for making the award, the arbitrator may (in the absence of express statutory enactment) make his award within any time. [Curtis v. Potts, 3 M & S. 145 ; Salter v. Yeates, 5 Dowl.^1.] 59. By clause (c) of the 1st Sched^ile to the Arbi- tration Act, 1889, the arbitrator must make his 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 parW"i,t/ thfe submission, or on or before anyJater dayTo which tie arbitrator, by any writing signed by him, may from time to time enlarge the time for making" the award. Explanation. An arbitrator enters on a reference, ^ot when he accepts the office or takes upon himself the func- tions of an arbitrator by giving notice on his inten- tion to proceed, but when he enters into me matter of the reference either with both parties before him or under a peremptory appointment enabling him to proceed ex parte. 60. The parties may by consent in writing enlarge the time for making the award ; if no period be stated at such consent, it is deemed to be for one month. [Baker v. Stephens, L. R. 2 Q. B. 628.] If the parties proceed as if a consent to enlarge the Digitized by Microsoft® XHB AEBITEATOES AND UMPIKB. 37 time had been given, they will be estopped from say- ing it was not in writing. [Tyerman v. Smith 6 E. & B. 719.] And such consent expressed by attendance or any other act requiring the continuance of the arbitrator's authority waives the want of a written acknowledg- ment and amounts in effect to a new parol submission. [Palmer v. Metropolitan Board of Works, 31 L. J. Q. B. 259.] 61. The time for making an award may from time Power to enlarge time to time be enlarged by order of the Court or a Judge, for making whether the time for making the award has expired '^^^ or not. [9.] § 180, Public Health Act, 1875, does not restrict the power of the Court to enlarge the time for making an award. [Knowles d; Son, Limited, v. Cor- poration of Bolton, xvi. T. L. 283.] "Where the time is enlarged the enlargement shall be deemed to be for one month unless a different time is specified in the order. [Rules Supreme Court, Dec, 1889 (12).] 62. An arbitrator may administer an oath for the '^^^^ ^^^ •> affirmations. purpose of taking evidence when the submission autho- rises him to do so ; and such authority is included in every submission unless expressly excluded, and if the arbitrator thinks fit, the witness may affirm. [2 : \st Sch. if) (g) 7.] Where the submission required the witnesses to be examined on oath, and the arbitrator received some affidavits, the Court set aside the award, holding that the deponents should have been examined vivd voce. [Banks v. Banks ; 1 Gale 46.] Digitized by Microsoft® 38 EEDEESS BY AEBITEATION. When umpire 63. If the arbitrators have allowed theu" 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. [Is J Sch. (d).] Explanation. The word " disagreement " must in general be taken to mean " non-agreement," as (1) when the arbitrators intimate to the umpire that there is no probability of their making an award [Doddington v. Bailward, 8 L. J. C. P. 331] , or (2) when one of them, after several meetings, declines to proceed further with the ease, or insists upon further evidence being produced, which the other refuses to allow. [Cudlifv. Walters, 2 M. & E. 282.] Umpire's 64. The umpire must decide between the parties, and not between the arbitrators ; there may, however, be power in the submission for him to decide particular points upon which the arbitrators differ. [Tollit v. Saunders, 9 Price, 612 ; Wicks v. Cox, 11 Jur. 542.] Time for 65. The umpire must 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. [Isi Sch. («).] It is no objection to his umpirage that he enlarged the time (having power to do so) before the arbitrators disagreed. [Ee Swinford, 6 M. & S. 226 ; re Dodding- ton and Bailward, 8 L. J. C. P. 331 ; Kennett v. Tran- mere Local Board, 24 L. J. Q. B. 87.] Digitized by Microsoft® THE ARBITRATORS AND UMPIRE. iV.) 66. The Court may enlarge the time for making Enlargement the umpirage at any time. [Ee Johnson and Collie, °**™^- 24 L. J. Q. B. 68.] 67. The umpire should rehear the case from the Rehearing of beginning, and take all the evidence tendered ; unless, indeed, he has sat throughout with the arbitrators ; except by consent of the parties, expressed or implied. [Flag Lane Chapel v. Mayor of Sunderland, 5 Jur. N.s. 894 ; re Jenkins, 6 Dow. n.s. 276 : Ellison v. Ackroyd, 20 L. J. Q. B. 193.] 68. No mercantile usage can justify the arbitrators Mercantile in departmg from the legal course of adjudication upon evidence given by both sides in the presence of each other, except when the reference is to an expert, when he may decide without hearing evidence. [Re Brook, 33 L. J. C. P. 246 ; Matson v. Trower, R. & M. 17 ; Bottomley v. Ambler, 38 L. J. 645 ; re Maunder, 49 L. J. 535.] Section III. — Their Remuneration. 69. An arbitrator can, in an award, fix the amount Arbitrator's of his own fees, unless precluded by express provision ° "8^^- in the submission. [Re Stephens, Smith dt Co., and the Liverpool and London Globe Insurance Company, 86 Sol. Jour. 464.] He may fix his own charges, and the practice which is recognised by the Court is for him, when he gives notice to the parties that the award is ready, to state the amount of his charges, and that upon payment thereof the award will be delivered up. If these charges are excessive they must be paid, but the party Digitized by Microsoft® 40 KEDEBSS BY AKBITEATION. paying may recover the excess beyond what is a reasonable charge in an action against the arbitrator. The parties in a mercantile dispute agreed to refer their differences to arbitrators (who were not in the legal profession) , and in case of disagreement to their umpire. The arbitrators disagreed, and appointed an umpire who made his award. [Semhle, per A. L. Smith, J., that there was an implied contract by the parties jointly to pay the arbitrators and umpire reasonable remuneration for their ser- ^dces. [Grampton d Holt y. Ridley d Co. (1888), 20 Q. B. D. 48. If one of the parties has paid an excessive claim for the arbitrator's charges on taking up the award, and he is entitled to the costs of the award, he is not entitled to recover from the opposite party more than a reasonable sum for the arbitrator's fee, and the master on taxation between party and party may tax off the excess. [Fitzgerald v. Graves, 5 Taunt. 342.] In such a case the party must resort to his remedy by action against the arbitrator to recover the difference between the amount paid and the amount allowed on taxation. \Barnes v. Ilayward, 1 H. & N. 742.] 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 is determined by the Court or Judge. [15 (3).] Lien therefor. 70. He has a lien upon the submission and award, but not upon documents used in evidence before him. His notes are his own, and he cannot be compelled . even to show them. [Threlfall v. Fanshawe, 19 L. J. Q. B. 334 ; Scougall v. Campbell, 1 Chitty 283 ; Digitized by Microsoft® THE AEBITEATOES AND UMPIRE. 41 Roberts v. Eberhardt, 28 L. J. C. P. 74 ; re Coombs, 4 Exch. 839.J If each party be ordered to pay a moiety of the arbitrator's charges, one of them may pay the entire sum in order to get the 'award from the arbitrator, and may afterwards have the same remedy against the other, if he refuse to pay his moiety, as he would have for the non-performance of any other part of the award. [^Marsack v. Webber, 6 H & N. l.J 71. If the parties have agreed to pay the arbitrator Agreement . a certain sum, he may sue them, but not otherwise. *°]i,^tJator {Hoggins v. Gordon, 11 L. J. Q. B. 286.] Unless there be an express promise by the parties to the reference to pay, a legal arbitrator cannot recover his charges by action {Hoggins v. Gordon, 11 L. J. Q. B. 286) ; but it was held in a reference of a mercantile dispute to lay arbitrators and their umpire that there is an implied contract to pay reasonable remuneration for their services. [Crampton v. Ridley, 20 Q. B. D. 48.J 72. An arbitrator, as distinguished from a valuer. Arbitrator is not liable to an action for negligence or unskilful- distinguished ness, and there appears to be no instance of an action against an arbitrator for negligence. [Pappa v. Rose, 41 L. J. C. P. 187; Stevenson v. Watson, L. E. 4 C. P. D. 148.] 73. When an umpire awards, he may make the Arbitration arbitrator's charges part of the costs of the umpirage, umpirage. and if he do not do so, the party who has paid the arbitrator's fee will, nevertheless, be entitled to the Digitized by Microsoft® 42 REDRESS BY ARBITRATION. amount as part of the costs of the reference. V. Ackroyd, 20 L. J. Q. B. 193.] [Ellison Arbitrator a witness. 74. An arbitrator may be called as a witness to give evidence of facts which occurred during the reference, or to show in respect of what matters he adjudicated, but not as to his reasons for adjudicating, nor to show that he had mistaken the law, or decided against the weight of evidence. [Roberts v. Corbett, 20 L. T. 66 ; Buccleugh v. Metropolitan Board of Works, 39 L. J. Ex. 130.1 Before entering on reference. Section IV. — Their Proceedings. 75. The submission should be left with the arbi- trator, and an appointment obtained from him to proceed with the reference ; notice of which appoint- ment must be served on all parties. If the submission does not clearly define the matters in difference upon which he is to adjudicate, he should ask each party to state in writing the particular matters for his decision, and in default he should put into writing the points upon which he considers him- self called to arbitrate. Arbitrator's discretion. 76. The conduct of proceedings before the arbi- trator are entirely in his discretion ; he is not bound by the rules of practice, but the mode of proceeding adopted at nisi priiis will generally be found most convenient. He can refuse to hear advocates, counsel, or solici- tors, but should not exclude the parties, although he may exclude witnesses or their advocates if represented Digitized by Microsoft® THE AEBITBATOBS AND UMPIRE. 43 by counsel or solicitor. If counsel is employed on one side, notice must be given to the other side. 77. Notice of every meetine; should be served upon Notice of . . meeting. all parties, the arbitrator being able to appoint any reasonable time for meeting. 78. In all cases of reference to an official or special Powers and '■ remuneration referee or arbitrator under an order of the Court or of referees -r 1 . ii J 1 /v • 1 • 1 and arbitra- a Judge m any cause or matter, the oincial or special tors. referee or arbitrator is deemed to be an of&cer of the Court, and has such authority, and conducts the reference in snch manner, as may be prescribed by Eules of Court, and subject thereto as the Court or a Judge may direct. [15 (1).J 79. The arbitrator may inspect premises or may inspecting refuse to do so, at his discretion. TEe Haigh's Estate, 3 De G. F. & J. 157 ; Oswald v. Grey, 24 L. J. Q. B. 60 ; Whatley v. Morland, 2 Dow. 249 ; Collier v. Hicks, 2 B. & Ad. 572 ; re Badger, 2 B. & A. 691 ; Spence v. Eastern Counties Railway, 7 Dow. 697 ; Mundy v. Black, 30 L. J. C. P. 193 ; Hewlett v. Laycock, 2 C. & P. 574.] 80. Arbitrators are bound by the same rules of Rules of . . evidence. evidence as the Courts, but a mistake in the law of evidence will not invalidate an award ; application should be made to the Court pending the reference for leave to revoke the submission on the ground that the arbitrator is mistaken as to the law of evidence. [Campbell v. Twemlow, 1 Price, 81 ; Kirk v. The East and West India Dock Company, 12 L. R. H. L. 738 (1887) ; Hart v. Duke, 32 L. J. Q. B. 55.i Digitized by Microsoft® 44 KBDBESS BY AKBITEATION. If he receive evidence of an incompetent or reject that of a competent witness, the Court will not set aside the award unless substantial injustice has been done. [Scott v. Van Sandau, 6 Q. B. 237 ; Hagger v. Baker, 14 M. & W. 9.] Stamps on 81. An instrument chargeable with stamp duty is documents. ,...., not admissible m evidence, unless properly stamjDed ; but if it be one which may be stamped after execution, the party producing it may use it in evidence, upon paying to the arbitrator the amount of duty and the amount of penalty and £1. It is the duty of the arbitrator to take notice of any omission or insuffi- ciency of stamp. [54 & 55 Vict. c. 38, s. 14 (l).] Materiality of 82. The arbitrator is not judge of the materiality evidence. » . i tt i t ,■ of evidence. He has no discretion as to the amount of evidence ; neither should he reject evidence which may appear to him foreign to the subject of reference, except with great caution. [Johnstone v. Cheape, 5 Dow. H. L. 247; Samuel v. Cooper, 2 A. & E. 752; Brophy v. Holmes, 2 Molloy, 1 ; Phipps v. Ingram, 3 Dow. 669.] Refusal to 83. If the reference be in terms to a person to denoe. decide from his special knowledge of the subject, he may refuse to hear evidence ; and if appointed because an expert, may decide from personal inspection ; and a lay arbitrator is entitled to have a legal adviser to sit with him during the reference. [Johnstone v. Cheape, 5 Dow. H. L. 247 ; Bottomley v. Ambler, 38 L. J. 545 ; Caledonian Railway v. Lockhart, 3 Macq. 808^ Threlfall v. Fanshawe, 19 L. J. Q. B. 334.] Digitized by Microsoft® 84. THE AEBITEATOES AND TJMPIKB. 45 An arbitrator cannot proceed ex ■parte except Proceeding ex ])arU. under special circumstances ; as (1) where a party keeps back his evidence in order to delay proceedings, or (2) will not attend. \Kyd on Awards, 100 ; Waller V. King, 9 Mod. 63.] Where it is intended to proceed ex parte, the arbi- trator must give peremptory notice of his intention to do so. [Tryer v. Shaw, 27 L. J. Ex. 320; Scott v. Van Sandau, 6 Q. B. 237.] 85. When the case is closed, all parties should be Close of case. informed by the arbitrator. [Peterson v. Ayre, 14 C. B. 665.] 86. Any referee, arbitrator, or umpire may at any statement of stage of the proceedings under a reference, and shall, arbitration!^ 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. [19.] No appeal lies from the decision of a Divisional Court on a case directed to be stated under sec. 19 of the Act ; though it is otherwise where an award is voluntarily stated as a special case under sect. 7. [Knight v. Tabernacle Building Society, 8 T. K. 783 ; W. N. 139 ; L. T. 357 (1892).] Under the Building Societies Act, 1894, and the Friendly Societies Act, 1896, the arbitrator cannot be forced to state a case upon a point of law. Where by special rules regulating a submission, it is provided that every question arising out of or relating to the construction of a contract shall be left to arbitration, the Court cannot direct a question of law to be stated in the form of a special case where Digitized by Microsoft® 46 EEDEBSS BY AEBITKATION. such question of law is a question of construction, unless the arbitrators are going beyond their juris- diction, or about to act contrary to law. Illusthation. G. & Co. enter into a contract with B. & Co. for the purchase of tapioca-flour upon the terms of the printed rules of the G. P. B. Association of London. These rules provide for arbitration in all cases of dispute ; the award of the umpire to be final, subject to an appeal to the council of appeal. A dispute arises, arbitration ensues, the award is given, and an appeal made to the council of appeal. G. & Co. then desire the council to state a case on a point of law. The council refuse, and application is made to the Court to direct them to do so. The point of law being a question of construction of the contract, and the said rules providing for such questions being left to arbitration, the Court cannot direct a case to be stated. [Gray, Laurier d Co., and Boustead S Co., 8 T. E. 703 ; L. T. 272 ; S. J. 666.] Digitized by Microsoft® THE AWARD. 47 CHAPTER III. THE AWARD. Section I. — Its Requisites. 87. No particular form of words, nor the use of Technical technical language, is necessary to a valid award ; it is decision, sufficient if it show clearly that the arbitrator has finally decided upon the matters submitted to him. It may, and, if the Court so orders, it must be in the form of a special case. [7 (b) ; 19.] Illustbation. A dispute between an architect and his ulerk as to wages was referred to an arbitrator who proposed the architect should pay the olerk dElO. This was held to be not good as an award, being a mere suggestion and not a final decision. [Lock v. Vulliamy, 5 B. & Ad. 600.] 88. The award must be made within the time Time. limited for that purpose. " Until " a certain time includes that day. Within a certain time "after" matters are referred excludes the day of reference. " Month " means lunar month, unless the reference be under a statute, when calendar month will be meant. [13 & 14 Vict. c. 21, s. 4.] Illustbation. By deed of arbitration dated 1st June, the arbi- trators were to make their award on or before the 1st October, with power in case they should not agree in making their award within the time to appoint an umpire, and his award to be binding bo Digitized by Microsoft® 48 BEDBESS BY AEBITKATION. Incorporation of map. as it be made six months after the date of his appointment. The arbitrators appointed an umpire within the time allowed to them, who made his award within six calendar months, but not within six lunar months of his appointment. The umpirage was bad. [In re Swinford, 6 M. & S. 226.] Note. — A map and words of explanation thereon, an indenture, or other writing, may be incorporated with the award by reference. Illustration. A plan was made part of an award. There were figures in the plan which referred to written descriptions at the foot of the plan delineating certain places. Without these descriptions the plan was unintelligible. They were part of the plan and incorporated with the award. [Johnson V. Latham,, 2 L. M. & P.] Necessary formalities. 89. Any formalities required by the submission must be observed in making the award. It must be signed by the arbitrator, and if more than one, by all at the same time and place, and in the presence of each other, because otherwise it is not what the parties stipulated for — viz., the joint judgment of the two or more. \lVade v. Dowling, 4 E. & B. 44.] Publication of award. 90. An award is published when executed, although no notice has been given to the parties ; but the time for setting an award aside will run only from the day on which it is published to the parties, that is, from the day notice of it is given to the parties. Henfree v. Bromley, 3 East, 309 ; Macarthur v. Camp- bell, 5 B. & Ad. 518.] Digitized by Microsoft® THE AWARD. 49 91. Formerly, when the award was made, the arbi- ^iteration •^ _ 01 award, trator was functus officis, and could not of his own authority remedy any mistake or blunder that he had made in executing it. Illustbations. Words were omitted in the engrossment which were in the draft of an award. The arbitrator executed the erroneous engrossment. Before the time for making his award had expired he executed a fresh award. The first instrument was the award of the arbitrator. [Mordue v. Palmer, L. E. 6 Ch. App. 22.] An arbitrator directed that the cost of the reference and award should be paid by the defendant when he meant to say the •plaintiff. He had executed his award with the wrong word, and could not rectify it. [Ward. v. Dean, 3 B. & Ad. 234.] 92. Now, unless the contrary is expressed in the Clerical error. submission, the arbitrators or umpire have power to correct in an award any clerical mistake or error arising from any accidental slip or omission — [7 (c).] 93. An award must be stamped, otherwise it Stamp duty, cannot be enforced. [Hill v. Slocombe, 9 Dow, 339.] The following are the stamps which must be impressed on the award in any case in which an amount or value is the matter in dispute, under the Stamp Act, 1891, 54 & 55 Vict. c. 39. Digitized by Microsoft® 50 EEDRESS BY ARBITEATION. Where no amount is awarded or the amount or value awarded does not exceed £5 Exceeds £5, but does not exceed 10 10 20 30 40 50 100 200 500 750 In any other case ... 20 30 40 50 100 200 500 750 1,000 £0 3 6 1 1 6 2 2 6 5 10 15 1 1 5 1 15 Exceeding powers. 94. An award must not exceed the power given by the submission in the particular case ; if it extend to matters not within the scope of the submission it will be void as to the excess ; but the arbitrator may go into matters dehors the matters referred if it be neces- sary in order to adjudicate upon the matters referred. It is not, however, necessary that the matters should be expressly named in the submission ; it is sufficient if they be in the contemplation of the parties ; and the award will be good if both the arbitrator and the parties are under a common misapprehension that the matters adjudicated upon are within his jurisdiction. Illustrations. A ship-building company entered into a contract to do certain work for the Government. The con- tract contained an arbitration clause authorising the reference to arbitration of certain specified matters. Differences arose, and an arbitrator was appointed. The parties mistaking the extent of his authority Digitized by Microsoft® THE AWARD. 51 submitted other matters to him for his determina- tion, as to which he made his award. The award was good. [Thames Ironwork and Shipbuilding Company v. Reg., 10 B. & S. 33.] In an agreement for a lease for a term of years ' from the 1st May, 1801, the lessee was to be allowed three years from that date for running a colliery without payment of any rent. An arbitrator being authorised to give such directions for a lease as he might think fit, directed a lease for years from the 1st May, 1804. He thereby exceeded his authority. Banner v. Uddell, 1 B. & B. 80.] 95. Such directions may be given (not illegal or to Directions, be performed by strangers) as may be necessary to decide the point submitted, but in the absence of ex- press power, or implication from the nature of the reference, the arbitrator cannot, as a rule, give par- ticular directions respecting the property in dispute. Illustkations. An arbitrator having, authority to decide upon what terms a partnership agreement should be cancelled, directed that the agreement should be cancelled ; that one of the parties should have all the debts due to the firm, and should, if necessary, sue for them in the name of his late partner. In authorising one of his partners to sue in the name of the other the arbitrator did not exceed his autho- rity. [Burt V. Wigley, 1 Scott, 610.] M. built a ship for G., and purchased stores for the ship on his own credit. On a reference of all matters in dispute between M. and G., G. took upon himself the payment of the bills, and requested the umpire to fix the liability in respect of them upon B 2 Digitized by Microsoft® 52 REDRESS BY AEBITEATION. Directions him. The umpire directed G. to pay to M. the balance which he found due to the latter after giv- ing G. credit for the amount of the bills ; he then awarded that G. should be solely liable in respect of the bills, and should execute a bond to indemnify M. against them ; and ordered that, after G. had paid the balance and the bills, the parties should execute mutual releases of all claims and demands whatsoever ; and the form of release should be settled by P. in case of dispute. The delegation to P. of authority to settle the releases was void. [In re Goddard, 19 L. J. Q. B. 205.] 96. If there be express power to give directions and that power be exceeded, the award is bad. Direction of payinent. Illustration. An action for injury to houses and land was referred to an arbitrator, who was to settle at what price and upon what terms the defendant should purchase the plaintiff's property. He fixed the sum and awarded that the defendant might use the plaintiff's name to enforce certain rights and reme- dies. The award did not exceed the authority. [Round V. Hatton, 12 L. J. Ex. 7.] 97. If the arbitrator find a sum of money to be due, he should direct payment of it ; he may also appoint time and place of payment, or payment at a future date, and promissory notes or bonds (without sureties) to be given for payment. He may, when circumstances require it, direct indemnity to be given, and may award an aggregate sum for distinct claims. [Edgell v. Dalimore, 11 Moore, 541 ; Booth v. Garnett, 1 Stra. 1082 ; Cooke v. Whorwood, 2 Saund. 337.] Digitized by Microsoft® THE AWARD. 53 98. As an award must not exceed the submission, On all mat- ters referred, so on the other hand it must extend to all matters referred, and if the arbitrator omit to decide upon any one of several distinct matters referred, the whole award is bad. Silence may be a decision when the nature of a claim does not require an affirmative decision. Illustrations. A submission empowered an arbitrator to settle and judge of alleged defects in a house and to determine what was necessary to put it in a perfect condition, and to settle certain claims for extra work by one of the parties, and the costs of the arbitration were to abide the result of the award. The award ordered a sum to be paid by one party to and received by the other in satisfaction of all the matters in difference referred. Award bad be- cause it did not decide upon the various matters referred. [In re Riders, 1 Jur. 406.] A cause and all matters in difference were referred. A cross-claim was urged on the part of the defendant before the arbitrator. The arbitrator directed the defendant to pay the plaintiff a gross sum, appor- tioned the costs and directed the plaintiff to execute and delivered to the defendant a general release, but said nothing in respect of cross-claim. Award good, for it must be intended from the silence of the arbi- trator upon the subject that he had negatived the cross-claim. [Harrison v. Cresivick, 16 Jur. 315.] 99. When the submission is eenerally on all Award on . . . matters of matters in difference without particularly specifying wMoli notice them, an award is good if it comprise all matters of S^'^®'^- which the arbitrator had notice. [NichoUs v. Jones, 30 L. J. Ex. 275.J Digitized by Microsoft® 54 EEDEBSS BY ARBITRATION. Power only. If a power Only is given to the arbitrator to award upon any matter, he is not bound to award as to that, and the defective .part of the award thereon will be rejected, but the award itself will not be bad. [Nicholls V. Jones, 30 L. J. Ex. 275.] Award between all parties. 100. The award must adjudicate as between all parties to the reference. Illustbation. By an order all matters in difference in a cause between A. and B. were referred, and by a subsequent ■ order it was directed that all matters in difference between A. B. and C. should be referred to the same arbitrator, and that the costs of the action should abide the event of the award. The arbitrator made two awards — in the one of which he awarded that A. at the date thereof was indebted to B. without mentioning C, that in the other that A. was indebted . to C, without mentioning B. Both awards were bad, as the arbitrator had not decided all the matters in difference between all the parties. [Winter v. White, 2 Moore, 723.] Certain. 101. The award must be certain in order that the parties may know what to do, and the Court decide whether the award is- within the submission ; but it is sufficient if it can be reduced to a certainty — id certum est quod certum reddi potest : — an award that a person shall do one of two things, either being capable of being performed, is not uncertain. [Simmonds v. Swaine, 1 Taunt. 549 ; Wharton v. King, 2 B. & Ad, 528.] Digitized by Microsoft® THE AWARD. 55 Illustration. An arbitrator had to decide upon the depth at which a defendant was entitled to keep a weir which penned back the water of a river so as to interfere with the plaintiff's mill higher up the stream, and to determine all manner of rights of water between the parties ; he awarded that the defendant was entitled to maintain his weir to the depth of fourteen inches and no more ; and added that he had caused marks to be placed, which marks pointed out the depth the defendant was to keep his weir, and that a plan annexed to the award correctly defined and described the depth of the weir and the marks. The award sufficiently pointed out the depth of the weir, and was sufficiently precise, although it made no provision for floods or for regulating the depth of the paddle in the defendant's weir by which the water could be let off. [Johnson v. Latham, 2 L. M. & P.] 102. The award must be the final determination of Pinal. all matters in the submission requiring decision. Several awards may be made if there is power in the submission to do so [Wrighton v. Bywater, 3 M. & W. 206.] Illusteation. An arbitrator awarded that certain deeds should be set aside " if and so far as the same are in force, and if and ,so far as I have jurisdiction to set them aside, and if I have no jurisdiction to set them aside, I declare that the rest of my award is yet to stand." The award was not final. [McJtek v. Hancock, 7 De G. W. M. & G. 300.] Digitized by Microsoft® 56 KEDEESS BY AEBITEATION. Part good, 103. If an award be partly good and partly bad, part 0810.. . 1 T 1 1 then if the good be separable from the bad, and be in itself a final determination of all matters submitted, that part which is good can be enforced. Illustrations. Arbitrators were empowered to decide on what terms a building lease held by an individual under a corporation should be renewed. They awarded that the corporation should put the premises in " good tenantable repair," to the satisfaction of M., a builder. The direction to the corporation to repair was good, but the reference of the repairs to the judgment of M. was bad. The bad could not be separated from the good, therefore the whole award was bad [Tomlin v. Fordwick, 6 N. & M. 594.] An award directed a defendant to execute a bond for the payment of money to the plaintiff ivith sureties, and that thereupon plaintiff should execute a release. The direction as to the sureties was bad, that as to the defendant good ; the bad was separable from the good. [Thirnby v. Helhot, 3 Mod. 272.] Possible, 104. Negatively, the award must not be impos- consistent,' sible, Unreasonable, inconsistent, or illegal. legal. Illustbations. An arbitrator, by his award, directed that a party to the award should forthwith repair a weir and the eastern bank of a river, so as to divert the waters of the river to the mill in the other party's occu- pation. The eastern bank of the river belonged to sombody else. Award bad, inasmuch as the arbi- trator had no power to award an illegal act — i.e., a Digitized by Microsoft® XHE AWARD. 57 trespass upon the eastern bank of the river. [Leicis V. Rossiter, 44 L. J. Ex. 136.] An award declared that a yard and pump were the sole property of the plaintiff, except that the defendant had a right to take water from the pump and to have ingress and egress to and from the yard in which it stood for that purpose. The direction as to future enjoyment by the defendant was not inconsistent with the former part of the award. [Booth V. Davis, 14 N. & M. 788.] An action respecting a right of way was referred by order of nisi prius to an arbitrator, who was to direct what should be done between the parties. He ordered the plaintiff to put up a stile on a piece of land belonging to C, who was not a party to the submission. Award bad. \Tumer v. Swainson, 2 Gale, 113.J 105. No action can be maintained for any matter Action in in difference within the scope of the submission. matters referred. 106. The award will not operate as a transfer of Transfer of land, nor as a partition. The arbitrator must direct the parties to execute conveyances. Exceptions. Under the Enclosure Act, 41 Geo. III. c. 109, the legal title to land will pass by the award ; and so under the Artisans' Dwellings Act, 38 & 39 Vict. e. 36. 107. If an action be referred before verdict, the Reference , ,•■,,. ,1 T ■ ,-rc r n bcf Ore vcrdict arbitrator need not find for the plamtin or for the Digitized by Microsoft® 58 BBDBBSS BY AEBITEATION. defendant, but must substantially decide the matter in dispute. [Wykes v. Shipton, 2 N. & M. 240.] After verdict. 108. If an action be referred after verdict, the arbi- trator must assess the damages. [Brown v. Somerset and Dorset Railway, 34 L. J. Ex. 152.] Power to remit award. Appeal from compulsory reference. Section II. — Repekeing it Back. 109. In all cases of reference to arbitration, the Court or a Judge may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire. 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. [10 (1) 2.] This applies to compulsory references and also to references by consent when the submission may be made an order of Court ; but as to the former (com- pulsory reference) a right of appeal is also given by the Rules of the Supreme Court, lix. 3. \Mm-ris v. Morris, 6 E. & B. 383.] It is doubtful if this rule has any application since the repeal of the C. L. P. 1854. A compulsory reference to referees is not a reference to " arbitration." [Muniay v. Norton, 61 L. J. Q. B. 456.] The reference back may be to the Arbitrators and Umpire. [Hooper v. Balfour, 62 L. T. N. S. 646.] Limit of time 110. Although there is no limit as to time, and the Tot* T'PTPT'PTIPP back. Court would have power to refer back even after the time limited for setting aside the award, yet the application must be made within a reasonable time. Digitized by Microsoft® THE AWAED. 59 [Warburton v. Haslindean Local Board, 48 L. J. C. P. 451 ; Mordue v. Palmer, L. R. 6 Ch. App. 22.] 111. The application to refer back must be made Application- . . • how made. by motion, statmg m general terms the grounds of the application, and a copy of the affidavit in support must be served with the notice of motion. Two clear days' notice must be given. [LII. 4, 5.j The motion may be in the alternative either to set aside or refer back. [Anning v. Hartley, 27 L. J. Ex. 145 ; Petersen v. Ayre, 14 C. B. 665.] 112. Generally any ground sufficient to set aside Grounds of an award will be sufficient to refer it back to the arbitrator, particularly : — i. A defect patent in the award. [Morris v. Morris, 6 E. & B. 383.] ii. Omission through inadvertence. Illustbation. An arbitrator to whom an action for a claim above £20 was referred, awarded 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. A further certificate was necessary to give the plaintiff bis costs. The arbitrator stated that he intended, by the certificate which he had given, to give the plaintiff his costs. Award referred back to the arbit;i:ator. [Caswell v. Groiicott, 31 L. J. Ex. 861.] iii. Formal defect. Illustbation. When an award has been executed by one of several arbitrators at a different time and place Digitized by Microsoft® 60 EBDEBSS BY AEBITEATION. from the others, or when any similar error has occurred involving no misconduct on the part of the arbitrators or substantial injustice to the parties. the award will not be set aside, but will be sent back to the same arbitrators to be re-executed or corrected. [Annini/ v. Hartley, 27 L. J. Ex. 145.] iv. Discovery of new evidence. Illustration. After an award in favour of B. against W. on a submission which contained a clause empowering the Court to remit the matters to the reconsideration of the arbitrator, 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 had such a letter in the handwriting of B. been produced at the reference, their decision would have been materially affected. B. in answer swore that the letter was not in his handwriting, but was an absolute forgery. The Court remitted the case to the arbitrators to say if the letter was in B.'s handwriting, and if they found that it was, then for them to reconsider the matters in difference. [Burnard v. Wamwright, 19 L. J. Q. B. 423.] V. Mistake : When the mistake is admitted by the arbitrator, and it is not merely a mistake of law or error of judgment, but such a mistake the effect of which is that the arbitrator has not exercised his judicial functions. Digitized by Microsoft® THE AWARD. 61 Illustbations. An action and all matters in difference having been referred, the arbitrator made, by mistake, an award in favour of the defendant. The mistake arose from his omitting to take account of an advance by the plaintiff to the defendant which had been duly proved before him, but which at the time of making his award he overlooked. The mistake was admitted by both parties, and the arbitrator stated to the Court the circumstances under which it arose. The Court had power to refer the award back to the arbitrator. [Flynn v. Robertson, 38 L. J. C. P. 240.] An action for the balance of an account was referred to two local engineers. The arbitrators believing that they had power over costs, awarded the plaintiff the full amount claimed, and adjudged that each party should pay his own costs. When they discovered that costs followed the event, they concurred in an affidavit to the effect that they would have awarded the plaintiff a less sum if they had thought that the whole costs would fall upon the defendant. The mistake of the arbitrators was no ground for referring back the award. [Allen v. Greenslade, 33 L. T. Q. B. D. 567.] vi. Excess of jurisdiction by the arbitrator in dealing with a question not submitted to him. [Green and Balfour (1890) , 63 L. T. R. 825.] 113. Where the award is referred back to the Reference back — arbitrator, all his original powers revive, and the arbitrator's powers. Digitized by Microsoft® 62 EEDEBSS BY ARBITRATION. Setting aside award on appeal. award remitted becomes altogether void unless it be remitted for a specific alteration. [McRae v. McLean, 2 E. &B. 946 ; re Morris and Dare ; Dare Valley Rail- way Company v. Ii.hys, L. E. 4, Ch. 554.J 114. If the award be made on a compulsory refer- ence, a right of appeal to a Divisional Court upon any question of law is given by LIX. 3, and upon the hearing of the appeal the Court may set aside the award upon any ground on which the verdict of a jury might be set aside ; and the Court has power to remit the matter in dispute. Grounds for setting aside. Section III. — Setting it aside. 115. The grounds upon which an award can be set aside are (1) that any of the requisites of a valid award are wanting, or (2) that any reasons exist for which the Court would refer the award back to the arbitrator. But the Court will not grant an injunction restrain- ing a defendant from continuing an arbitration where the proceedings are irregular and the award will be unenforceable, for it will not bind the plaintiff, and no injustice will follow. Illustkation. Eeference of partnership disputes under arbitra- tion clause in partnership articles. Two partners appointed referees and called upon the third partner to appoint his. He objected there was no point in dispute, and took action to restrain his partner from proceeding with the arbitration. If there was no point in dispute, the award would be merely Digitized by Microsoft® THE AWAED. 63 futile, and that is no ground for restraining the proceedings. [Farrar v. Cooper, 6 Times, L. E. 241.] 116. The motion to set aside an. award must be Time for made before the end of the sittings next following the publication of the award. [LXIV. 14.] It is sufficient if notice of motion is given before the last day of such sittings. [Gallop and Central Queensland Meat Export Company (1890), 89 L. T. 137.] 117. The application to set aside the award is Notice of made by giving two clear days' notice of motion (stating in general terms the ground of the appli- cation) to the parties, but not to the arbitrator. A copy of any affidavit to be used in support must be served with the notice of motion. [Moseley v. Simpson, 42 L. J. Ch. 739, Order LII. r. 4, 5.] Note. — Formerly there was a distinction between the grounds upon which an award might be set aside at law and in equity, and the practice differed, but this appears to be no longer so since the passing of the Judicature Acts, 1878-75, and the Eules of the Supreme Court, 1883. 118. If an action is referred, and judgment in that Setting aside action entered up pursuant to the award, the judg- purfuaiS to menfwill only be set aside for defects on the face of ^'"^^^■ the award, or for irregularity in entering judgment. 119. The Court can set aside an award on motion Misconduct. where an arbitrator or umpire has misconducted himself, or an arbitration or award has been im- properly procured [11 (2).] The misconduct must Digitized by Microsoft® 64 KEDRBSS BY ARBITRATION. be strictly proved. [Whiteley and Roberts (1891), 1 Ch. 558.] There is an appeal from the decision of the arbitrator in a compulsory reference. [LIX. 3.] But see § 109 supra. 120. There may be misconduct in a legal sense, though there is not corruption. Illustrations. Pending an arbitration, but after the last meet- ing bad been held, the two arbitrators, the umpire and the attorney of W., one of the parties, dined with W. at bis invitation. The umpire afterwards made bis award in favour of W. This was an im- proper proceeding, but not sufficient ground to set aside the award or refuse to enforce it, because there appeared no intention to corrupt or influence the umpire, or that he bad been influenced. [Ee Hopper, L. E. Q. B. 367.] A submission was entered into between A. and B. of all matters in difference between them. The arbitrator gave notice to the parties of his intention to hold a meeting, which was held and attended by one of the parties and the solicitor of the other party. The parties met on the following day before the arbitrator, who after hearing the parties and with their consent took with him all the books for examination by an accountant. Shortly after- wards, and before making his award, the arbitrator was apprised by the accountant of a supposed error in the accounts as to a sum of money. Upon which the arbitrator summoned A., who was more conversant with the accounts than B., to appear before him and the accountant, when the supposed error was set right to the arbitrator's satisfaction. Digitized by Microsoft® THE AWAKD. 65 About a month afterwards the accountant again discovered what he supposed an error as to another sum of money, which was explained by A. in like manner as before, to the satisfaction of the arbi- trator, but in ■ neither case was notice given to the other party of A.'s intended attendance on the arbitrator, who shortly after made his award. The award was bad, and was set aside. Harvey V. SJielton, 7 Beav. 455.] If two arbitrators appoint an umpire by lot, the umpirage will be set aside, because the appointment must be the act of the will and judgment of the two ; but not if two arbitrators each name an umpire, and not being able to agree which of the nominees should be appointed, they decide the choice by lot. [Ee Hopper, L. E. Q. B. 367. By the terms of a submission to arbitration it was specifically provided what should be the course and conduct of the arbitrators who were required to compare samples of a cargo of wheat with a certain standard sample with which they did not compare it. This was misconduct on their part sufficient to justify the setting aside of their award. [In re Couvella and Volkart (1888), "The Times," 18th Jan. ; and see Wright v. Hoiuson (1888), " The Times," 10th March.] Section IV. — Enfobcing it. 121. An award on a submission may, by leave of Enforcing T . ,, award. the Court or a judge, be eniorced in the same manner as a judgment or order to the same effect ; and this although the time for moving to set it aside has not , elapsed. [12 : Rules of Supreme Court, Dec, 1889, 7.] p Digitized by Microsoft® 66 EBDEESS BY ARBITRATION. 122. The modes by which an award may be enforced are : — (i). By Summons under Arbitration Act, 1889. — This appUes only to submissions in writing out of Court. An appheation for leave to enforce an award under this section is made by an originating summons before a Master in Chambers. The applicant must produce before the Master the original award, or a duplicate thereof, together with a copy, both to be verified by affidavit. The respondent may move to have the award set aside. When the order is made and drawn up, it will be enforced in the same manner as a judgment or order to the same effect. ii. By action of a money claim. Modes of Note. — This is the only remedy when the sub- en orcmg. mission cannot be made an order of Court, and no statute provides for a special mode of enforcement, and when the vahdity of an award is doubtful the Court will leave the parties to their action, the objections to the award being such as can be raised by action. [In re Hall and Hinds, 2 M. & G. 847.] iii. By writ of execution under 1 & 2 Vict. c. 110, sec. 8. Note. — The principal writs of execution are the writ of fieri facias and the writ of elegit, both directed to the Sheriff ; where the interest to be taken is an equitable interest, or in the opinion of Digitized by Microsoft® THE AWARD. 67 the Court it is just or convenient, a receiver will be appointed by the way of equitable execution. [Judi- cature Act, 1873, sec. 25 ; Anglo-Italian Bank v. Davic'x, 9 Ch. D. 285 ; Weatwood v. Riley, 25 Ch. D. 413.] Where an action is referred to an arbitrator for trial, the common order of reference enables the party in whose favour the award is made, sometimes, at the expiration of a given time after service of the award, to sign final judgment in accordance with the award. No demand of performance of the award is necessary before signing judgment. The original award or a duplicate must be produced. The order of reference and a copy of the pleadings are to be filed, as also an affidavit of service of the award. Judgment being entered up, the writ of execution will issue forthwith. iv. By attachment. Note. — The writ of attachment is directed to the Sheriff, and under it he arrests the person against whom it is issued. This writ will only lie to enforce obedience to an award directing an act to be done other than the payment of money ; e.g., wilful refusal or neglect to execute a deed directed by the award to be executed ; or to deliver up property in the possession of the party directed to deliver it up. [Esdaile v. Visser, L. E. 13, Ch. D. 421 ; Order XLII. 6 ; XLII. 7.] Apparent Exceptions. — If the award direct the payment of money or costs in cases within the 6th section of the Debtors Act, 1869, then the award may be enforced by an order for the imprisonment F 2 Digitized by Microsoft® 68 RBDEESS BY AEBITEATION. of the disobedient party. The following are the cases : — Default in payment of a sum of money (1) In the nature of a penalty not arising out of contract : (2) Eecoverable summarily before a Justice of the Peace : 1 3) Due from trustees and ordered by the Court to be paid : (4) Due from solicitors as such and ordered by the Court to be paid : (5) Ordered by the Court to be set aside out of the salary or income of a debtor : and (6) Ordered by the High or County Court to be paid upon proof of the debtor's means to pay. In oases 1 to 5 the imprisonment cannot be for more than one year, and in 6 it cannot be for more than six months. V. By action in the Chancery Division for specific performance. Note. — A judgment for specific performance of the terms of the award will only be given when a plaintiff is willing to perform his part of the award, and damages would not be a sufiicient compen- sation to him for the non-compliance of the defendant. [Cuddee v. Rvtter, 1 L. C. Eq. 640 ; Seton V. Blade.'] Digitized by Microsoft® INCIDENTAL MATTERS. 69 CHAPTEE IV. INCIDENTAL MATTERS. Section I. — Costs. 123. An arbitrator has no power to award costs if Power to the submission does not authorise him to do so, or if ^"^^^ ""^ ^' the costs are to abide the event of the award ; but by the Arbitration Act, 1889, such power is included in the submission unless expressly excluded. [1st Sch. (i.)j [Wimhurst v. Barrow Ship-building Company, L. E. Q. B. D. 333.] Even where the submission was made before 1st January, 1890, and the award is made after, the arbitrator has power to award costs unless the sub- mission expressly deprives him of such power. [Williams v. Stepney (1891), 65 L. T. R. 208.] This enables the arbitrators and umpire to settle .finally the amount of costs to be paid to them, but for this purpose the amount must be stated in, and as part of, the award. If fixed in the award, and the charges are extravagant, possibly the award might be set aside for misconduct. ' If not fixed in the award, the arbitrator's charges are liable to taxation. [In re Prebble v. Robinson (1892), 2 Q. B. 602.] It is not an advisable course for the arbitrator to fix his own fee by the award ; the proper way is to direct which party is to pay the costs of the award without naming any sum, then for the arbitrator to notify to the parties the amount of his charges, and refuse to give up the award till the amount is paid. Digitized by Microsoft® 70 EBDEBSS BY AEBITEATION. Illustbation. When an action of contract has been referred to arbitration under an order by consent, providing that the costs of the action shall abide the event and the sum awarded to the Plaintiff does not ex- ceed £50, a Judge at Chambers has power, under LXV. 12, to order that the costs shall be taxed, upon the scale applicable to actions of contract where the sum recovered exceeds £50. [Hyde v. Beardsley (1887), 18 Q. B. D. 244.] Costs of action — reference Common form order of reference. 124. If after action commenced the action is re- ferred, then, in the absence of special directions, the arbitrator has authority to direct payment of the costs of the action, because they (the costs), are matters in difference between the parties. [Firth v. Robinson, 1 B. & C. 277.] In the common form order of reference of an action to arbitration, the arbitrator is given all the powers of a Judge as to certifying : these powers he must exercise in his award, as having made his award he is functus officio. [BedweLl v. Wood, L. E. 2 Q. B. D. 627 ; Spain v. Cadell, 8 M. & W. 129.] Discretion. 125. If the submission give the arbitrator a dis- cretion as to costs, he may order either party to pay the costs, or each to pay half, or otherwise as in his discretion appears just ; he may even direct the successful party to pay them. [Curzey v. Aitcheson, 2 B. & C. 170 ; re Fearon and Flinn, L. E. 5 C. P. 34.] Fixing costs. 126. If the submission direct that the arbitrator shall ascertain the costs, then he must determine the Digitized by Microsoft® INCIDENTAL MATTBBS. 71 amount of them and may fix a lump sum, and the •Court will not interfere unless the amount is grossly- excessive. [Grenfell v. Edgcombe, 1 Q. B. 661 ; Rowcliffe V. Devon and Som.erset Railway, 21 W. R. 433.] 127. The arbitrator may leave the costs to be taxed Taxing costs. by the proper officer of the Court where there is no direction in the submission that he shall ascertain them, and if he award costs generally to either of the parties, they may be taxed without any express direction to that effect. [Holdsworth v. Wilson, 82 L. J. Q. B. 289 ; Metropolitan District Railway v. Sharpe, L. E. 5, App. Cas. 425.] 128. The arbitrator may direct the costs to be Party and taxed either as between party and party or as between Solicitor and solicitor and chent. [Eecles v. Blackburn, 80 L. J. °^^^^*' °°'''- Ex. 358 ; Mordue v. Palmer, L. R. 6, Ch. App. 22.] 129. The costs may be taxed before the expiration of the time for applying to set the award aside. [LXV. 15.] Section II. — Witnesses. 130. Any party to a submission may sue out a writ Compelling of subpoena ad testificandum, or a writ of subpoena duces tecum, but no person shall be compelled under any such writ to produce any document which he could not be compelled to produce on the trial of an action. [8.] The writs issue as of course, and may be obtained at the writ department of the central office without Digitized by Microsoft® 72 EEDEBSS BY AEBITEATION. Power to compel at- tendance of witness in any part of the United Kingdom and to order habeas corpus to issue. an order. The jurisdiction to order discovery of documents is in the hands of the arbitrator, and application should not be made to the Court. The Court or a Judge may order that a writ of subpoena ad testificandum or of subpoena duces tecum shall issue to compel the attendance before an official or special referee, or before any arbitrator or umpire, of a witness wherever he may be within the United Kingdom. Formerly there was no power to compel the attendance before an arbitrator of a witness in Ireland or Scotland. 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 official or special referee, or before any arbitrator or umpire. [18.] The Court has no power to order a commission to issue to examine witnesses abroad in aid of an arbitrator. [Re Shaw v. Ronaldson, 1892, 1 Q. B. 91.j In a compulsory reference from the Court, an official referee has power to make an order granting a commission to examine witnesses abroad, and an appeal lies from his decision to the Judge in Chambers. [Hay ward v. Mutual Reserve Association, 1891, 65 L. T. 491.1 Moravians and Quaker. 131. A Moravian or Quaker may make an affirma- tion instead of taking an oath. Order of Court necessary. Section III. — Oedees. 132. By the first section of the Arbitration Act, 1889, it is provided that a submission shall have the same effect in all respects as if it had been made an Digitized by Microsoft® INCIDENTAL MATTERS. 73 order of Court : it is therefore no longer necessary to make either submission or award rules or orders of Court. An order of the Court or a Judge is necessary for the following purposes : (1) to revoke a submission (unless a contrary intention is expressed therein) : (2) to issue a subpoena to compel the attendance, and to bring up a prisoner under writ of habeas corpus ad testificandum for examination before an official or special referee or before any arbitrator : (3) to enforce an award : (4) to set aside or remit an award. [1, 18, 12, 10, and ll.J Section IV. — Eeferbbs. 133. There are attached to the Supreme Court Official Government officers, called Official Keferees, for the trial of such questions as may be referred to them by the Court. The number and qualifications of such persons are determined by the Lord Chancellor with the concurrence of the Presidents of the Divisions of the High Court, and with the sanction of the Treasury. They perform in London and the Provinces as directed, and are paid their travelling expenses. [Judicature Act, 1873, s. 88.] 134. The Eeport or Award of the Official or Special Eeferee or Arbitrator in a reference in any cause or matter is (unless set aside) equivalent to the verdict of a jury. [15 (1) (2).] 135. The followmg are the fees payable on refer- B'ees. ence to an Official Eeferee : — Digitized by Microsoft® 74 REDEBSS BY AEBITEATION. On every reference ... ... £5 And for every hour or part of an hour he is occupied heyond two full days 10 On every sitting elsewhere than in London a further fee for every night he shall be absent from London £1 11 6 And for his clerk ... ... ... 15 Consent necessary for reference to special referee. 136. Questions may be referred to a special referee appointed by the parties. The Court has no power to refer a cause or matter to a special referee without the consent of the parties. [Judicature Act, 1873, s. 57 ; London Fire Insurance Company v. Britifsh American Association, 54 L. J. Q. B. 302.] Appeal from award or certificate of referee. 137. Appeals from arbitrator's award or referee's certificate upon a compulsory reference in an action lie to a Divisional Court, whose decision is final, unless that Divisional Court give leave to appeal to the Court of Appeal. [Judicature Act, 1884, s. 87. J But see § 109 supra. Digitized by Microsoft® APPENDIX. 75 APPENDIX. FOEMS, Memorandum of Agreement made the day Submission. of 19 Between of and of and of Whereas differences exist between the above-mentioned parties : It is hereby agreed to refer all disputes and matters in difference between them to the award and final determination of , so as his award be made and published in writing ready to be delivered to the parties [or to the legal personal representatives of those (if any) who may be dead] who shall require the same on or before the day next, or on or before any other day to which the arbitrator shall, by any writing signed by him endorsed on this submission, from time to time enlarge the time for making his award ; And it is further agreed that the costs of and incidental to these presents, and the costs of the reference and award, shall be in the discretion of the arbitrator, who may direct to whom, by whom, and in what manner the same or any part thereof shall be paid. And it is further agreed as to the conduct of the reference as follows : — i. The arbitrator may order what he shall think fit to be done by the parties hereto or any of them. ii. Witnesses shall be examined upon oath. iii. The arbitrator may proceed ex -parte if any party, after reasonable notice, do not attend, unless such party Digitized by Microsoft® 76 REDRESS BY ARBITRATION. Short form. Appointment to proceed. previously satisfies the arbitrator that he had good and sufficient cause for not attending. iv. The parties shall produce, before the arbitrator, all books, deeds, papers, accounts, vouchers, writings, and documents within their possession or control which the arbitrator may require and call for. And it is further agreed that no action shall be brought against the arbitrator or any of the parties hereto concern- ing the matters referred. And it is further agreed that, if motion be made to set aside or otherwise respecting the award, the Court may, whether the award be insufficient in law or not, remit the award from time to time to the reconsideration and redetermination of the arbitrator. In witness whereof the said parties hereto have hereunto set their hands the day and year above written. Witness, [Signed by both parties.] Note. — Baoli party to tlie reference should have a duplicate of the submission. The following form of submission would be sufficient under the Arbitration Act, 1889 : — We, A. B., of agree to refer all arbitration. Dated and C. D., of matters in difference hereby between us to [Signed by both parties.] In the matter of an arbitration between I appoint the day of 19 for proceeding noon, at [my in this reference, at offices Street Dated this day of o'clock in the ]• 19 A. B. Arbitrator. To Peremptory appointment I appoint to proceed. In the matter of an arbitration between the day of 19 peremptorily Digitized by Microsoft® APPENDIX. 77 for proceeding in this reference, and in case fail to attend without having previously shown to my satisfaction good and sufficient cause for absenting I shall proceed with the reference ex parte. Dated this day of 19 A. B., To Arbitrator. You shall true answer make to all such questions as Oath. shall be asked of you touching the matters in difference in this reference : so help you God. I solemnly, sincerely, and truly affirm and declare that Affirmation. I will true answer make to all such questions as shall be asked of me touching the matters in difference in this reference. Iti tlie matter of an arbitration between I require you to produce before me on the Arbitrator's day of 19 at o'clock in the noon at the Remand for ■' dociiments. following documents relating to the matters in this refer- ence, that is to say : — and also all other books, deeds, papers, and writings concerning the matters in differenee referred to my decision. Dated this day of 19 A.-B., Arbitrator. To Gentlemen, In order that in framing my award I may not omit Arbitrator's duly to estimate every matter which is deemed of import- i^eq^iest for •' . •' _ \ written ance, and to decide upon all matters in difference submitted statement of to me, I request you respectively to furnish me with a aifferenoe! statement in writing of the particular matters which you Digitized by Microsoft® 78 EBDBBSS BY AKBITRATION. desire me to take into my consideration as matters of difference in this reference. Dated this day of 19 A. B., Arbitrator. Notice to tunpire of ment. Enlargement of time by the parties. In tlie matter of an arbitration between We hereby give you notice that we cannot, and shall not be able to, agree in making an award, but have finally dis- agreed about the same. Dated this day of 19 A. B., To E. F., Witnexx, Arbitrators. We, the within-named do hereby give and allow to the within-named arbitrator further time, namely, Enlargement of time by arbitrator. until make his award. Dated this Witness, Revocation of submission. the day of 19 to day of 19 G. H., I. J., K. L., the within-named parties. I hereby enlarge the time for making my award respect- ing the matters referred to me by the within submission until the day of 19 Dated this day of 19 A. B., Witness, Arbitrator. Know all men by these presents that pursuant to the order of the Hon. Mr. Justice dated the day of 19 [or as the case may be] I Digitized by Microsoft® APPENDIX. 79 of do hereby revoke all the power and authority which by an agreement dated the day of 19 and made between me the said and and were conferred upon the arbitrator therein named. Dated this day of 19 G. H. Witness, Sir, I hereby give you notice that pursuant to the order Notice to ■> '^ •' J^ arbitrator of of the Hon. Mr. Justice dated the day of revocation. 19 [or as the case may be] I have by a writing under my hand dated the day of 19 revoked your authority as arbitrator named in an agreement dated the day of and made between me and G. H. Witness, Gentlemen, Notice of I hereby give you notice that I have made and of'award"" published my award in writing respecting the matters in difference between and and referred to me, and that my award lies at ready to be delivered. The charges amount to £ Yours truly, A. B., Arbitrator. To Whereas by a certain agreement in writing, dated the Award. day of 19 and made between and and it was agreed that all matters in difference between the said and and should be referred to the award and final determination of me of Digitized by Microsoft® 80 EEDEESS BY AEBITKATION. Now I, the said arbitrator, do award and finally determine as follows : — i. That the said is indebted to the said in the sum of which said sum I hereby direct the said to pay to the said ii. That the said shall pay to the said the costs of and incidental to the said submission and of the reference. Signed and published the day of 19 A. B., Arbitrator. Witness, Amended Whereas by an order of the King's Bench Division of rrference t^® ^^S^ ^o^'^* °^ Justice, made the day of 19 back. it •was ordered that my award should be referred back to me to reconsider and redetermine. Now I, the within- named arbitrator having reconsidered this my award, do hereby redetermine, declare, and award as follows : — Signed and published this day of 19 A. B., Arbitrator. Witness, Digitized by Microsoft® APPENDIX. 81 Cormnon Form Order of Reference. In the High Court of Justice. 19 . , No. King's Bench Division. Master in Chambers. Between Plaintiff, and Defendant. Upon hearing and by consent, It is ordered S*^*^ matters to be referred, as follows : — shall be referred to the award of 2. The arbitrator shall have all the powers as to certify- Power to ing and amending of a Judge of the High Court of Justice, amend. 3. The arbitrator shall make and publish his award in Publication writing of and concerning the matters referred, ready to be delivered to the parties in difference, or such of them as require the same (or their respective personal represen- tatives, if either of the said parties die before the making of the award) on or before the next, or on or before such further day as the arbitrator may from time to time appoint and signify in writing signed by him and endorsed on this order. 4. The said parties shall in all things abide by and obey Parties to the awa,rd so to be made. award. 5. The costs of the said cause and the costs of the Costs. reference and award shall be. 6. The arbitrator may (if he thinks fit) examine the Power to said parties to this cause, and their respective witnesses oath!^'^'^ '^'"^°° upon oath or affirmation. Digitized by Microsoft® 82 REDRESS BY ARBITRATION. Parties to produce books and documents. No action against arbi- trator. Cost of delay. Power to refer to arbitrator on application to set aside award. Appointment of new arbi- trator. Judgment to be signed in accordance with award. 7. The said parties shall produce before the arbitrator all books, deeds, papers, and writings in their or either of their custody or power relating to the matters in difference. 8. Neither the plaintiff nor the defendant shall bring or prosecute any action against the arbitrator of or concern- ing the matters so to be referred. 9. If either party, by affected delay or otherwise, wilfully prevent the said arbitrator from making an award, he or they shall pay such costs to the other as may think reasonable and just. 10. In the event of either of the said parties disputing the validity of the said award, or moving the to set it aside, the said shall have power to remit the matters hereby referred, or any or either of them, to the reconsideration of the arbitrator. 11. In the event of the arbitrator declining to act or dying before he has made his award, the said parties may, or if they cannot agree, the Master may, on application by either side, appoint a new arbitrator. 12. Unless restrained by any order of the Court, or a Judge, the party or parties in whose favour the award shall be made shall be at liberty days after service of a copy of the award on the solicitor or agent of the other party, to sign final judgment in accordance with the award, and for all costs that he or they may be entitled to under this order, and under the award, together with the costs of the said judgment. Dated the day of 19 Digitized by Microsoft® APPENDIX. 83 AKBITRATION ACT, 1889. Chapter 49. An Act for amending and consolidating the Enact- ments relating to Arbitration.* [26th Aug., 1899.] 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 : References by Consent out of Court. 1. A submission, unless a contrary intention is expressed Submissionto nA ITT'A'VOPfl nip therein, shall be irrevocable, except by leave of the Court and to have or a iudge, and shall have the same effect in all respects "^^f^* ^^ ^^ . ■' ° ^ order of court. as if it had been made an order of Court. (43, 132.) 2. A submission, unless a contrary intention is expressed Provisions rniplied m therein, shall be deemed to include the provisions set forth submissions. in the First Schedule to this Act, so far as they are appli- ' ' cable to the reference under submission. 3. Where a submission provides that the reference shall Reference tg be to an official referee, any official referee to whom appli- ■ m.) cation 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. 4. If any party to a submission, or any person claiming Power to stay- through or under him, commences any legal proceedings where there is in any court against any other party to the submission, or ^ submission, 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 * The numerals in the margin refer to the Articles in the book. G 2 Digitized by Microsoft® 84 EBDEESS BY ARBITRATION. Power for the court in cer- tain oases to appoint an arbitrator, umpire, or third arbitra- tor (50). 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 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 neces- sary to the proper conduct of the arbitration, may make an order staying the proceedings. 5. In any of the following cases : — (a) Where a submission provides that the reference shall be to a single arbitrator, and all the parties do not after differences have arisen concur in the appointment of an arbitrator : (6) If an 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 : ((/) 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 was 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, umpire, 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. Digitized by Microsoft® APPENDIX. 85 6. Where the submission provides that the reference Power for shall be to two arbitrators, one to be appointed by each tain cases to party, then, unless the submission expresses a contrary can'^^^^sii 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) If, on such a reference, one party fails to appoint an arbitrator, either originally or by way of substi- tution 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 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 Powers of shall, unless the submission expresses a contrary intention, have power — (a) to administer oaths or to take the affirmations of (62.) the parties and witnesses appearing ; and (b) to state an award as to the whole or part thereof (ig.) in the form of a special case for the opinion of the Court ; and c) to correct in an award any clerical mistake or (92.) error arising from any accidental slip or omission. 8. Any party to a submission may sue out a writ of Witnesses subpcma ad testificandum, or a writ of suhpmna duces tecum, mone^ w but no person shall be compelled under any such writ to subpoena. produce any document which he could not be compelled to produce on the trial of an action. Digitized by Microsoft® 86 EEDEBSS BY ARBITRATION. Power to enlarge time for making award. (61.) Power to remit award. (109, 132.) (109.; Power to set aside award. (132.) (115.) Enforcing award. (121, 132.) Reference for report. (6.) Power to refer in certain cases. (22.) 9. The time for making an award may from time to time be enlarged by order of the Court or a judge, whether the time for making the award has expired or not. 10. — (1) In all cases of reference to arbitration the Court or a judge may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire. (2) Where an award is remitted, the arbitrators or um- pire shall, unless the order otherwise directs, make their award within three months after the date of the order. 11. — (1) Where an arbitrator or umpire has miscon- ducted 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. 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. References under Order of Court. 13. — (1) Subject to Eules 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 inquiry 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, [h) If the cause or matter requires any prolonged examination of documents or any scientific or local Digitized by Microsoft® APPENDIX. 87 investigation which cannot in the opinion of the Court or a judge conveniently be made before a jury 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 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 Powers and remtmeration referee or arbitrator under an order of the Court or a judge of referees in any cause or matter, the official or special referee or ^^^^ ^Lg ^^" arbitrator shall be deemed to be an officer of the Court, and shall have such authority, and shall conduct the refer- ence in such manner, as may be prescribed by Eules of Court, and subject thereto as the Court or a judge may direct. (2) The report or award of any official or special referee (IS*-) 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 (69.) 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. 16. The Court or a judge shall, as to references under Court to have . n ,1 1-1 powers as in order of the Court or a judge, have all the powers which references by are by this Act conferred on the Court or a judge as to consent. references by consent out of Court. 17 Her Majesty's Court of Appeal shall have all the Court of Ap- ■> ■< '■'■ peal to have powers conferred by this Act on the Court or a judge powers of thereof under the provisions relating to references under °°^'^'- order of the Court. Digitized by Microsoft® BEDBBSS BY ARBITRATION. Power to compel at- tendance of witness in any part of the United King- dom, and to order habeas corpus to issue. (130, 132.) Statement of case pending arbitration. (86.) Costs. Exercise of powers by masters and otter officers. Penalty for perjury. Crown to be bound. General. 18. — (1) The Court or a judge may order that a writ of subpoena ad testijicandum or of subpcena duces tecum shall issue to compel the attendance before an official or special referee, or before any arbitrator or umpire, of a witness wherever he may be within the United Kingdom. (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 official or special referee, or before any arbitrator or umpire.. 19. 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. 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. 21. Provision may from time to time be made by Eules of Court for conferring 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. 22. Any person who wilfully and corruptly gives false evidence before any 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. 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, Digitized by Microsoft® APPENDIX. 89 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 Application Act passed before or after the commencement of this Act references as if the arbitration were pursuant to a submission, except ^^^^^^ statu- tory powers. m so far as this Act is inconsistent with the Act regulating (20.) the arbitration or with any rules or procedure authorised or recognised by that Act. 25. This Act shall not affect any arbitration pending Saving for at the commencement of this Act, but shall apply to any irbitrations. arbitration commenced after the commencement of this (Pi^efaoe, 25.) Act under any agreement or order made before the com- mencement of this Act. 26. — (1) The enactments described in the Second Repeal. Schedule to this Act are hereby repealed to the extent therein mentioned, but this repeal shall not affect anything done or suffered, or any right acquired or duty imposed or liability incurred, before the commencement of this Act, or the institution or prosecution to its termination of any legal proceeding or other remedy for ascertaining or enforcing any such liability. (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, — Definitions. " 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. "Eules of Court" means the Eules of the Supreme Court made by the proper authority under the Judi- cature Acts. Digitized by Microsoft® 90 REDRESS BY ARBITRATION. Extent. Commence- ment. Short title. 28. This Act shall not extend to Scotland or Ireland. 29. This Act shall commence and come into operation on the first day of January one thousand eight hundred and ninety. 30. This Act may he cited as the Arbitration Act, 1889. Digitized by Microsoft® APPENDIX. 91 SCHEDULES. THE FIRST SCHEDULES. Provisions to be implied in Submissions. a. If no other mode of reference is provided, the refer- (25, 59, 63, ence shall be to a single arbitrator. ' '' b. If the reference is to two arbitrators, the two arbi- trators 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 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. 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 Digitized by Microsoft® 92 KEDEBSS BY ARBITRATION. 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. ij. The witnesses on the reference shall, if the arbitrators or umpire think 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 so paid or any part thereof, and may award costs to be paid as between solicitor and client. Digitized by Microsoft® APPENDIX. 93 THE SECOND SCHEDULE. Enactments Eepealed. Session and Chapter. 9 "Will. 3. c. 16 Title or Short Title. An Act for determining differences by arbi- tration. 3 & 4 Will. 4. c. 42... An Act for the further amendment of the law and the better ad- vancement of justice 17 & 18 Vict. c. 125...! The Common Law Pro- j cedure Act, 1854. 36 & 37 Vict. c. 66 ...|The Supreme Court of Judicature Act, 1873. Extent of Repeal. 47 & 48 Viet. c. 61 ... The Supreme Court of i Judicature Act, 1884. The whole Act. Sections thirty-nine to forty-one, both inclu- Sections three to seven- teen, both inclusive. Section fifty six, from " Subject to any Eules " of Court " down to " as a j udgment by the " Court," both inclu- sive, and the words " special referees or," Sections fifty-seven to fifty-nine, both inclu- sive. Sections nine to eleven, both inclusive. Digitized by Microsoft® 94 INDEX. The figures refer to the Articles. Acceptance of office by umpire, 55. Acquiescence, 13. Acts of Parliament, 19. Action, 122. costs of, 124. in respect of matter referred, 105. matters in dispute in, 37. pending, matters included. 84. Adult, 13. "After," 88. Affirmation, 62. Agent, 8. Agreement, to pay arbitrator, 71. " All Matters in difference," 36, 98. Alteration of submission, 41. of compulsory reference, 42. Appeal from compulsory reference, 109, 119. from award or certificate of reference, 137. setting aside award on, 114. Appointment, time of umpire's, 58. Appraisement, revocation of, 44. Arbitrator, 8, 51. appointment of, by Court or a Judge, 50. authority of, 57, 58. cannot delegate, 52. charges of, 69, 70, 71, 78. completion of appointment, 49. corruption of, 119. discretion of, 76. duties of, 75. joint, may act as sole, 51. judicial impartiality of, 48. mode of appointment, 56. objection to, 47. power to appoint umpire, 50. power on reference back, 118. who may be appointed, 47. and valuer, distinction between, 4, 72. official referee may be selected as, 22. Arbitration, who may submit to, 7. Arbitration clause in partner- ship articles, 80. Attachment, 122. Attendance of witnesses com- pelled, 130. Award, 3. alteration in, 91, 92. between all parties, 100. certain, 101. Digitized by Microsoft® INDEX. 95 Award (contd.) enforcing, 121, 122. final, 102. in form of Special Case, 87. how and when made, 87 88. legal, 104. on all matters, 99. part good and part bad, 103. possible, reasonable, con- sistent, 104. publication of, 90. requisites of valid, 87-104. Stamp duty on, 93. Bankrupt, 9. Bankruptcy, 46. Bond, submission by, 22, 33. Cases cited, ix.-xv. Charges, arbitrator's, 69. referee's, 78. Choice of umpire, 47. Client, 17. Clerical error, 92. Close of case, 85. Compulsory Eeference, pendente lite, 22. alteration of, 42. appeal from, 109. Condition precedent, 81. Conduct of proceedings, 76. Consent, 22. Contract, 28. * Corporation, 10. Correction of error, 92. Counsel, 17. County Court, 22. Court, appointment of arbitrator by, 50. Court (contd,) appointment of umpire by, 50. may refer back, 109. jurisdiction of ousted, 32. Corporation, 10. Corruption of arbitrator, 119. Costs, discretion as to, 125. of action, 124. power to award, 128, 126. of reference, pendente lite, 124. party and party, 128. solicitor and client, 128. taxing, 127, 129. Death, 46. Decision, final, 87. Deed, submission by, 22, 26. Defect, formal, 112. patent, 112. Dehors, consideration of mat- ters, 84. Delegate, arbitrator cannot, 52. Differences after submission, 40. Direction of payment, 97. Directions, 95. exceeded, 96. Discovery of new evidence, 112. Discretion, 76. as to costs, 123. Dispute, matters in, in action, 4. Dissolution of partnership, 81. Distinctions between valuation and arbitration, 4. Documents, stamps on, 81. Duties, 32. Digitized by Microsoft® 96 INDEX. Duty of umpire, 64, 67. Enfokcing Award, 52. Enlargement of time, 61. Error, clerical, 92. Evidence, materiality of, 82. refusal to hear, 83. rules of, 80. Exceeding, directions, 96. powers, 94. Executor, 11. Ex PARTE, proceeding, 84. Father, 12. Fees of official referee, 135. Final Decision, 87. Fixing Costs, 126. Formal Defect, 112. Formalities, 87. Former Reference, matters in- cluded in, 39. Forms, appendix, p. 60 and Table of Contents. General Words, 38. Guardian, 12. Implied provisions in submis- sion, 26. Infant, IB. Inspection op Premises, 79. Joint Arbitrators, 5. Judge, appointment of arbitrator by, 50. umpire, 50. Judicial impartiality of arbi- trator, 48. Judgment, pursuant to award, setting aside, 118. Jurisdiction of Court ousted, 32. Land, transfer of, 106. Law, revocation by operation, 46. Leave to revoke, 44, 46. Lien, 70. Lunatic, 14. Map, incorporation of, 88. Marriage, 46. Married Women, 16. Materiality op Evidence, 82. Matter included when action pending, 34. Matters, in dispute, 4, 87. not referable, 18. referable, 18. Meeting, notice of, 77. Mercantile Arbitrator, 69. Mercantile Usage, 68. Misconduct, 119. Mistake, 112. Modes op Submission, 22. Month, 88. Moravian, 131. Motion to set aside, 116, 117. New Evidence, discovery of, 112. Notice of meeting, 77. of revocation, 46. Oaths, 62. Objection to Arbitrator, 47. Official Referees, 183. Digitized by Microsoft® INDEX. 97 Official Eefekees (contd.) fees of, 135. may be chosen arbitrator, 22. reference to, 22. Omission thbough Inadtektence, 111. Operation op Law, revocation by, 46. Oedees, 132. Oedee of Refeeence, 124. references under, 6. Paeol Submission, 22, 24. Paeticulae Statutes, 19. Pasties, award must be between aU, 100. Paetneh, 16. Paetneeship, arbitration clause in, articles, 30. Party and Paety Costs, 128. Patent, defect, 112. Pendente lite, costs of reference, 124. Peefoemance, specific, 122. POWEE, to award costs, 123, to remit, 109. to stay proceedings, 29. only, 99. Powers, exceeding, 94. of arbitrator on reference back, 113. of umpire, when they arise, 63. Pebmises, inspection of, 79. Peoceeding, ex parte, 84. Peoceedings, conduct of, 75, 76. Peovisions implied in submis- sion, 25. Publication of Award, 90. Quakers, 131. Eeferbe, reference to, 78, 133, 134. Eeference after verdict, 108. alteration of, compulsory,42. at the trial, 107. back, power of the Court and of arbitrator on, 113. before verdict, 108. by special act, 21, 22. by deed, 26. common form of order of, 66. compulsory appeal on, 109, 119. for report, 6. under order of Court, 6. particular statutes, 19, 20, 22. to official referee, 22. Eefusal to hear evidence, 83. Eeheaeing Case, 67. Eequisites of valid award, 87-104. between all parties, 100. certain, 101. final, 102. part good, part bad, 108. on all matters of which notice given, 99. possible, reasonable, con- sistent, legal, 104. Eevocation, 43, 44. by bankruptcy, 46. by death, 46. by marriage, 46. by operation of law, 46. leave for, 45. notice of, 45. EuLES OF Evidence, 80. Setting aside Award motion for, 117. Digitized by Microsoft® 98 INDEX. Setting aside Awaed (contd.) grounds for, 115. on appeal, 114. notice of, 117. time for, 116. judgment pursuant to award, 118. Sole Aebiteatoe, 51. solicitob, 17. and client's costs, 128. Special Act of Parliament, 21. case, award in form of, 86. 87. referees, 136. Specific Peepoemance, 28. Stamp on award, 93. on documents, 81 on submission, 27. Statutoey Eefeeenges, 19. Staying Peoceedings, 29. Submission, 2, 23, 24. by bond, 22, 23, 33. by deed, 22, 26. by mutual bonds, 22. by parol, 22. by writing, 22. definition of, 1, 2. differences arising after, 40. modes of, 22. provisions implied, 25. revocation of, 43, 44. when affected by Act of 1889. when defence to action, 31. when jurisdiction of Court ousted, 32. Taxing Costs, 129. Technical Wokds, 87. Time, enlargement of, by Court, 61. enlargement of, by implica- tion, 60. enlargement of, by parties, 60. for motion, 116. for umpirage, 65. Teansfee of Land, 106. Teustee, 11. Umpiee, 3. appointment of, 53, 54, 56. duty of, 64, 67. should accept office, 65. when enter on reference, 63. when powers arise, 63. Umpieage, 3. arbitrator's charges in, 73. time for, 65, 66. " Until," 88. Usage, mercantile, 68. Usual teems, 35. Valuation, distinction between, and arbitration, 4. Veedict, reference after, 108. reference before, 107. Who may be appointed arbitra- tor, 47. may submit to arbitration, 7. Witness, 130. when arbitrator may be, 74. compulsory attendance of, 130. WoEDs, technical, 87. Digitized by Microsoft® The Author of " Redress by Arbitration " reads with Candidates for the Examinations of the Inns of Court, the Institute of Chartered Accountants, and the Incorporated Society of Accountants and Auditors. For particulars, references, and terms, address to the care of the Publishers, Messrs. Effingham Wilson, 11, Royal Exchange, London, E.C. Digitized by Microsoft® Digitized by Microsoft® PREMIER CODE USED— see back. Telegrams: "EFFINGERE, LONDON". NOVEMBER, 1904> CATALOGUE LEGAL, Commercial and otbcr lUork$ PUBLISHED AND SOLD BY EFFINGHAM WILSON, 54 THREADNEEDLE STREET, LONDON, E.C^ TO WHICH IS ADDED A LIST OF TELEGRAPH CODES. EFFINGHAM WILSON undertakes the printing and publishing of Pamphlets and Books of every description upon Commission. Estimates given, and Conditions of Publication may be had on application. Digitized by Microsoft® INDEX. Arbitrage— page Deutsch's Arbitrage in Bullion, etc. S Willdey's American Stocks . . z6 Arbitration — London Chamber of . . .24 Lynch, H. Foulks .... 19 Banking — Anecdotes . . . . 10 Arithmetic and Algebra Examina- tion Questions . . .20 Balance Sheets . . . .11 Bankers' Advances . . . .12 Banks and their Customers . . 26 Banks, Bankers and Banking. . 21 Bibliography (Bank of England) . 24 Easton s Banks and Banking . . 14 Easton's Work of a Bank . . 14 English and Foreign (Attfield) . 10 Howarth's Clearing Houses . . 17 Hutchison, J 17 Journal Institute of Bankers . . 18 Legal Decisions . . . . 2r Questions on Banking Practice 22 Scottish Banking . . .18 Smith's Banker and Customer . 24 Token Money, Bank of England . 21 Bankruptcy — Duckworth's Trustees ... 9 McEwen (Accounts) . . .19 Stewart (Law of) . . . .8 Bills of Exchange — Kblkenbeck (Stamp Duties on) . 18 Loyd's Lectures . . . .19 Smith (Law of Bills, etc.) . . 7 Watson's Law of Cheques . . 26 Bimetallism — List of Works . . 28, 29 Book-keeping — Cariss 12 Cummins' C. Stock Co. 's Accounts 13 Donald (Mining Accounts) . . 14 Harlow's Examination Questions . 17 Holah 9 Jackson 18 Johnson's Book-keeping and Accounts 4 Seebohm's (Theory) ... 9 Sheffield's Solicitors . . .24 Van de Linde . .... 25 Warner (Stock Exchange) . . s6 Clerks — Commercial Efficiency . Corn Trade . Counting-house Guide . First Years in Office Work Kennedy (Stockbrokers) Mercantile Practice (Johnson) Merchant's School to Office Solicitor's Part n. . Correspondence (Commercial) — Martin (Stockbrokers) Coumbe .... Counting-house- Cordingley Pearce County Court — County Court Practice . Jones Currency and Finance — Aldenham (Lord) . Beaure Th^orie et Pratique de la Monnaie Barclay (Robert) . Burton's Crises Clare's Money Market Primer Cobb's Threadneedle Street Cuthbertson . Del Mar's History . Del Mar's Science of Money Ellis (Market Fluctuations) Gibbs, Hon. H., Bimetallic Primer Haupt .... Indian Coinage and Currency Norman's Money's Worth Poor (H. V.) The Money Question. Dictionaries — Cordingley's Stock Exchange Terms M^liot's French and Enghsh . Milford's Mining Directors — Pulbrook (Liabilities and Duties) . Exchanges- Brazilian Exchange Clare's Money Market Primer Goschen Norman's Universal Cambist Tate's Modem Cambist . PAGE 6 23 13 13 8 rS 9 9 18 18 13 13 9 13 18 12 13 13 13 14 14 15 IS 17 22 13 20 26 13 16 25 Digitized by Microsoft® Effingham Wilson, 54 Threadneedle Street, London, B.C. 3 Exchange Tables — page American Exchange Rates . . lo Dollar (Eastern) . . . . i8 Garratt (South American) . . 15 Lecoffre (Austria and Holland) . 19 (French) . . . .19 ,, (German) . . . .19 ,, (United States) . . "19 Merces (Indian) Schultz (American) . Schultz (German) . Insurance — Bourne's Publications How and Where to Insure Principles of Fire Insurance Short-Term Table . Interest Tables — Bosanquet Crosbie and Law (Products) Cummins (2! "/o) . Gilbert's Interest and Contango Gumersall Ham (Panton) Universal Indian Interest (Merces) . Lecoffre's Universal Lewis (Time Tables) Rutter Schultz .... Wilhelm (Compound) . Investors (see also Stock Exchange Manuals) — Houses and Land .... How to Invest Money . How to Read the Money Article . Investment Ledger .... Investors' Tables .... Investment Profit Tables Profits V. Dividends Wright's Yield Tables . Joint-Stock Companies — Chart for Ready Reference . Companies Acts, 1862-1900 . 15, Company Frauds Abolition . Company Promoters (Law of) Cummins' Formation of Accounts . Common Company Forms Emery's Treatise on Company Law Haycraft (Directors) Pulbrook's Handy Book on Com- pany Law . . . . .22 Pulbrook's Responsibilities of Directors 22 Simonson's Companies Act, 1900 . 24 Simonson's Debentures and Deben. tare Stock (Law of) . . . 24 Simonson's Reconstruction and Amalgamation . . . .24 Smith (Law of Joint Stock Companies) 7 Law (Various Subjects) — A Pr&is of the Law Relating to Landlord and Tenant . . 5 Accidents to Workmen . . .23 Charter Parties . . . .14 Compulsory Taking of Land . . S Constable's (A) Duty . . .20 Law (Various Subjects) (continued) — page Copyright Law . . . .12 District and Parish Councils (Lithiby) 19 Factors (Law relating to) . . 11 First Elements of Legal Procedure . 10 Food and Drugs . . . .17 General Average . . . .14 High Court Practice . . ■ .22 Injuries to Workmen . . . g Licensing Acts . . . .18 Local Government Law (Provincial) 10 Marine Insurance . , . .14 Maritime Law . . . .23 The Master Mariner's Legal Guide . 5 Patent Law and Practice (Emery) . 15 Payment of Commission ... 6 Powers of Attorney . . 19 Property Law (Maude) . . .20 Railway Law 9 Solicitors' Forms (Charles Jones) . 18 Thames River Law . . .22 Workmen's Compensation Act 23 Legal and Useful Handy Books — List of . . . 7-9 Maps — Kalgoorlie 6 Rhodesia . ... 6 Witwatersrand . . . 6 Maritime Codes — German to Holland and Belgium . . .22 Italy 22 Spain and Portugal . . .2a Mining- Accounts of G. M. Cos. . . .14 Beeman's Australian Mining Manual 10 Charlton's Information for Gold- mining Investors . . . .27 Gabbott's How to Invest in Mines . 15 Goldmann (South African Mining) . i5 Tin Mining in Spain . . .11 Mining Laws British Columbia . 12 Milford's Pocket Dictionary . . 21 Wallach's West African Manual . 25 Wilson's South African Mines . 26 Miscellaneous— Author's Guide .... 26 On Compound Interest and Annuities 24 Constable's (A) Duty . . .20 Cotton Trade of Great Britain . 15 Dynamics of the Fiscal Problem 5 Gresham, Sir Thomas (Life of) . 12 Hall's Registered System Merchan- dise by "Rail . . . .16 Ham's Customs Year Book . i6 Ham's Inland Revenue Year Book 16 His Lordship's Whim . . .26 Kew Gardens (Illustrations) . . 26 Lawyers and their Clients . , 18 Macfee, K. N., Imperial Customs Union 19 My Lawyer 5 Public Man 25 Digitized by Microsoft® Effingham Wilson, Miscellaneous {continued) — page Public Meetings . . . -25 Red Palmer 25 Russian Commercial Handbook . 5 Workmen's Compensation . . 25 X Rays in Freemasonry . . .IS Money Market (see Currency and Finance). Options — Castelli's Theory . . 12 Put-and-Call 17 Pamphlets . 27-29 Prices — Ellis (Market Fluctuations) Mathieson (Stocks) Railways — American and British Investors Home Rails as Investments . Mathieson's Traffics Poor's Manual (American) Railroad Report (Anatomy of a] Railway Law 9 Seady Reckoners {see also Exchange Tables, Interest, etc.) — Buyers and Sellers' (Ferguson) Houghton's Weight Calculator Ingram (Yards) Kilogramme Table Merces (Indian) JNorman's Commission and Due Dates Robinson (Share) . Silver Tables (Bar Silver) Sinking Fund and Annuity Tables- Booth and Grainger (Diagram) Hughes Nash's Sinking Fund and Redemp- tion Tables .... IS 27 17 Speculation (see Investors and Stock Exchange). PAGE Stock Exchange Manuals, etc, Anecdotes ..... Contango Tables .... Cordingley's Guide and Dictionary Fenn on the Funds, English and Foreign Higgins, Leonard,The Put-and-Call Houston's Canadian Securities Investor's Ledger .... Investors' Tables, Permanent or Redeemable Stocks Key to the Rules of the Stock Ex- change Laws and Customs (Melsheimer) . Laws, English and Foreign Funds (Royle) Mathieson's Redeemable Invest- ment Tables .... Options (Castelli) .... Poor's American Railroad Manual Rapid Share Calculator . Redeemable Stocks (a Diagram) . Registration of Transfers Robinson (Share Tables) Rules and Usages (Stutfield) . Stock Exchange Values . United States Corporation Securities Willdey's American Stocks Tables (see Exchange Tables, Interest Tables, Ready Reckoners, and Sinking Fund and Annuity Tables, etc.). Telegraph Codes — Ager's (list of) .... Miscellaneous (list of) The Premier Code . 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Digitized by Microsoft® 54 Threadneedle Street, London, E.C. 31 MoNeill's Mining and General Telegraph Code. Arranged to meet the requirements of Mining, Metallurgical and Civil Engineers, Directors of Mining and Smelting Companies, Bankers, Brokers, Solicitors and others. Price 21s. net. Moreing and McCutcheon's Telegram Codes. Code I. "The General, Commercial and Mining Telegram Code," containing 274,000 Phrases and Sentences. Price £5 5s. net. Code 11. "The Multiform Combination Telegram Code," with 206,460 Cypher Words, with 960,045 Groups of Numbers. £8 8s. net. Code III. "The Catalogue Combination Telegram Code," consisting of 274,979 separate References to Catalogue Numbers. Prices, etc. Price £7 7s. net. Moreing and Neal's General and Mining Code. For the Use of Mining Companies, Mining Engineers, Stockbrokers Financial Agents, and Trust and Finance Companies. Price 21s. 0£9cial Vocabulary in Terminational Order. Price 40s. net. Scott's Shipowners' Telegraphic Code. 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M t> It ,, ji n Digitized by Microsoft® Medium 4to, 500 pp. Cloth, price 10s. 6d. net.. THE PREMIER CYPHER TELEGRAPHIC CODE Containing ciose upon 120,000 Words (from A to IM, speciaiiy seiected from the Berne Official Vocabulary) and Phrases. THE MOST COMPLETE AND MOST USEFUL GENERAL CODE YET PUBLISHED. COMPILED BY WILLIAM H. HAWKE. SOME OPINIONS OF THE PPBSS. " It is calculated to save expense by making one word do the duty of two to five words as compared with other codes, without trouble or loss of time. This result has been obtained by introducing novel and simple methods of tabulation. The- scope of the code is a very wide one, and makes it suitable to the traveller as well as- to the commercial man." — Telegraph. " Is distinguished among books of its kind by the unusual width of its range. For the rest it is a careful work, which keeps constantly in view the practical needs of men of business. ' ' — Scotsman. " The code is certainly a marvel of comprehensiveness, and at least the translation- of messages would appear to be easy, owing to the system of initial words and cross references embodied in it, and the conspicuous headings." — Manchester Guardian. " An extremely valuable cypher telegraphic code. The saving of expense is, of course, the primary object of a code ; but another consideration with Mr. Hawke has- been to arrange a code so that what is required to be transmitted can be sent with the least possible trouble and waste of time.". — Financial News. ' ' This compilation is excellent in choice of messages and simplicity of arrangement. Those who have had to deal vrith other codes will appreciate this point. Particularly- admirable are the joint tables for market reports, which can give quotations and tone- in one word. What with careful indexing to the matter and ingenious simplicity this code- is certainly one of the best we have yet seen."- — Shipping Telegraph, Liverpool. " An VoUstandigkeit diirfte es von anderen Werke gleicher Art kaum iibertroffen- werden." — Frankfurter Zeitung. " The systems of tabulation are simple, and the general appearance of the- volume seems to confirm the claim that this is by far the most complete code ever issued." — Tribune, Chicago, " Mr. Hawke's long experience as an expert in telegraphic code systems is a fuW guarantee of the excellence of the ' Premier Code'." — Liverpool Courier. Now Heady. Medium 4to. Cloth, price los. 6d. net. 100,000 WORD SUPPLEMENT TO THE PREMIER CODE. Words specially selected from the Berne Official Vocabulary, remainder of alphabet from M to Z. COMPILED BY WILLIAM H. HAWKE. For special Tables for Offers, Buying, Selling, etc., the Five Figure System, worked in conjunction -with Keys of Words, numbered from 00,000' to 99,999, and 2440 Reserve Words for Indicating or Catch Words or Special or Temporary Tables, does not clash -with the Premier Code. These two volumes contain between them all the telegraphically good words of the Berne Official Vocabulary, as they have been selected with the greatest care. ^ LONDON : EFFINGHAM WILSON, 54 THREADNEEDLE STREET, E.G. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® '/^ rt-i 1 HI- ,'!•' i