requisitioned ship, that a rule providing that the award should be final and conclusive, and should not be subject to appeal or review, did not exclude the jurisdiction of the Court to order a case to be stated on a point of law.

In Gray, Laurier & Co. and Boustead & Co., In re (1892), 8 T. L. R. 703, the Court appears to have followed the same practice as had been the practice of the Court in cases of revocation, and refused to direct a case to be stated on a question of the construction of the contract when every question arising out of, or relating to, the construction of the contract was agreed to be left to arbitration. The Court (Wright and Collins, JJ.) said: "The fact of there being a question of law to be decided was not sufficient ground for a case to be ordered unless there was some evidence that the arbitrators were going beyond their jurisdiction, or were about to act contrary to law."

Application of section to statutory arbitrations.

It is not infrequently provided in statutes that, notwithstanding anything contained in the Arbitration Act, 1889, the arbitrator shall not be compelled to state a special case on any question of law arising in the case, but may do so on the request of either party, e.g. the Building Societies Act, 1894 (57 & 58 Vict. c. 47), s. 20, and Friendly Societies Act, 1896 (59 & 60 Vict. c. 25), s. 68 (7).

Where the Local Government Board are appointed by a private Act to decide disputes between local authorities, and are thereby made judges and not arbitrators by consent, they cannot state a case (Bexley Local Board v. West Kent Main Sewerage Board (1882), 9 Q. B. D. 518 ; 51 L. J. Q. B. 456). But an arbitrator appointed by the Local Government Board, in a case where that Board is required to determine differences under s. 63 of the Local Government Act, 1888 (51 & 52 Vict. c. 41), may state a special case for the opinion of the Court. pending the reference, and if he refuses, may be directed to do so under s. 19 of the Arbitration Act (In re Kent County Council and Sandgate Local Board, [1895] 2 Q. B. 43; 64 L. J. Q. B. 502).

Statement of case.

In stating a case the arbitrator should find the facts material for the decision of the point or points of law on which the opinion of the Court is to be given. The Court will not decide the method for ascertaining a fact, and will only decide questions of law upon facts found by the arbitrator. "The Courts have from time to time given decisions as to what are and what are not proper considerations in arriving at a conclusion on that subject when the facts are found before them. But the case as stated in each of the alternative propositions suggests to your Lordships for decision questions of fact, and even suggests the question

which of two alternative methods is the best for arriving at the conclusion of fact. My Lords, no Court has ever given directions in such a case (per Lord Halsbury, L.C., in North & South Western Junction Rail. Co. v. Assessment Committee of the Brentford Union (1888), 13 App. Cas. 592; 58 L. J. M. C. 95).

Procedure.

When a party wishes to have a special case stated under the section he must formulate the question of law upon which he wishes the case to be stated and request the arbitrator to state it. If the arbitrator refuses to state a case the party should request him to adjourn the proceedings to enable him to apply to the Court, unless it can be arranged that the hearing of some other matter comprised in the submission can be proceeded with.

The party should then make an application in chambers by originating summons before a Master, supported by an affidavit or affidavits, for an order that the arbitrator be directed to state a case. Such an application can be made, notwithstanding that the arbitrator has expressed no opinion adverse to the party making the application (In re Spillers & Baker, Ltd. and Leetham & Sons, [1897]1 Q. B. 312; 66 L. J. Q. B. 326).

Appeal.

An appeal lies to the judge in chambers from a decision of the Master directing, or refusing to direct, the arbitrator to state a case. The order of the judge in chambers not being a "matter of practice and procedure" in a cause or matter in the High Court within the meaning of s. 1. (4) of the Judicature Act, 1894, no appeal lies from such an order to the Court of Appeal (In re Frere and Staveley, Taylor & Co. and North Shore Mill Co., [1905] 1 K. B. 366; 74 L. J. K. B. 208), but an appeal lies, with leave, to a Divisional Court and thence to the Court of Appeal. The order being interlocutory (see In re Croasdell and Cammell, Laird & Co., [1906] 2 K. B. 569; 75 L. J. K. B. 769), the appeal must be by four days' notice, and must be brought within fourteen days (Order LVIII., rr. 3, 15).

No appeal lies from the decision of the High Court on the special case when stated, the functions of the Court being consultative only (In re Knight and the Tabernacle, &c., Building Society Arbitration, [1892] 2 Q. B. 613; 62 L. J. Q. B. 33). In this respect there is a distinction between an award stated in the form of a special case under 8. 7, and a special case stated in the course of the reference under 8. 19 (ibid. See ante, p. 141). In In re Holland Steamship Co. and Bristol Steam Navigation Co. (1906), 95 L. T. 769, an award which purported to be made in the form of a special case under s. 7 stated as the question for the opinion of the Court, "Whether our construc

If

If

tion of the contracts upon the two points above stated is correct. both points are correctly decided, this, our award, is to stand. either or both points is or are wrongly decided, the matter is to be remitted to us to give effect to the true construction of the contract in our interim and final awards." It was held that the special case must be deemed to have been stated under s. 19, and that therefore no appeal lay to the Court of Appeal.

Though no appeal lies from the decision of the Court on a special case stated under s. 19, it is competent for the Court of Appeal and the House of Lords to review such decision when it is incorporated in the award of the arbitrator, if the validity of the award is subsequently questioned on the ground that it is erroneous in law on the face of it.

Illustration.

An arbitrator consulted the Court by a special case stated under s. 19 of the Arbitration Act, 1889. The case was argued before a Divisional Court and judgment was given. The arbitrator then made his award, reciting the opinion of the Divisional Court. The unsuccessful party then moved to set aside the award on the ground that it contained an error in law on the face of it. Held, that though the judgment of the Divisional Court on the special case could not be appealed against, the opinion of the Divisional Court, if wrong, when recited in the award, was an error on the face of the award, and the award was sent back to the arbitrator (British Westinghouse Electric Co. v. Underground Electric Rail. Co., [1912] A. C. 673).

Costs.

By virtue of s. 20 of the Act an order directing an arbitrator to state a case may be made on such terms as to costs or otherwise as the Court thinks just. But if the arbitrator states a special case, whether, in the first instance, at the request of a party or by the order of the Court, the Court's jurisdiction on the hearing of the case is consultative only, and it has no power to make any order as to the costs of stating the case or the arguments thereon, except where the case has been stated by the order of the Court, and the Court in that order reserved the question of costs (In re Knight and the Tabernacle Building Society Arbitration, [1892] 2 Q. B. 613). Except in so far as they are dealt with in the order of the Court directing a case to be stated, the costs of the special case are in the discretion of the arbitrator, who ought to deal with them by his award and should be requested to do so. Such costs are part of the costs of the reference and award within the meaning of clause (i) of the First Schedule.. They are, however, also "costs incidental to the arbitration" within the meaning of s. 34 of the Lands Clauses Act, 1845 (Sidney v. North Eastern Rail. Co., [1916] 2 K. B. 760).

EXERCISE OF POWERS BY MASTERS AND OTHER OFFICERS 309

SECTION 20.

COSTS OF ORDERS UNDER THE ACT.

20. Any order made under this Act may be made on such terms as to costs, or otherwise, as the authority making the order thinks just.

This must refer to orders which the Court has power to make under the various sections of the Act. The authorities referred to are "the Court" and "the Court or a judge," and also, in the case of references under order of the Court, the Court of Appeal (s. 17). "Court," by s. 27, means the High Court of Justice, and "judge" means a judge of the High Court of Justice.

"The general rule with regard to jurisdiction acquired by statute is stated in Smeeton v. Collier (1847), 1 Ex. 457, to be that where a statute in general terms and without any special limitation, either express or to be inferred from its terms, gives any power to one of the superior Courts, that power may be exercised by a judge at chambers as the delegate of the Court, and it is only in cases of special limitation, or where the statute contains expressions from which it may be inferred that the application was intended to be made in open Court, that the judge in chambers has no jurdisdiction. This rule of construction is still applied" (Archibald and Vizard's Practice, p. 1).

The words "the Court" mean the judge or judges sitting in open Court, and the words "a judge" mean a judge sitting in chambers (see the cases cited in the Annual Practice, Pt. IV. Div. 1, Construction of Judicature Acts and Rules), and by virtue of s. 21 of the Arbitration Act and Order LIV., r. 12A, a Master of the Supreme Court may exercise all the jurisdiction and powers conferred on a judge by the Act.

SECTION 21.

EXERCISE OF POWERS BY MASTERS AND OTHER
OFFICERS.

21. Provision may from time to time be made by rules 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.

The only rule which appears to have been made under this section is Order LIV., r. 12A, which provides that "A Master of the Supreme Court may exercise all the jurisdiction and powers conferred upon the Court or a judge by the Arbitration Act, 1889."

SECTION 22.

This section was repealed by the Perjury Act, 1911 (1 & 2 Geo. V. c. 6), s. 17, and its provisions replaced by s. 1 of that Act (see ante, p. 139).

SECTION 23.

CROWN TO BE BOUND.

23. This Act shall, except as in this Act expressly mentioned, apply to any arbitration to which Her Majesty the Queen, either in right of the Crown, or of the Duchy of Lancaster or otherwise, or the Duke of Cornwall, is a party, but nothing in this Act shall empower the Court or a judge to order any proceedings to which Her Majesty or the Duke of Cornwall is a party, or any question or issue in any such proceedings, to be tried before any referee, arbitrator, or officer without the consent of Her Majesty or the Duke of Cornwall, as the case may be, or shall affect the law as to costs payable by the Crown.

SECTION 24.

APPLICATION OF ACT TO STATUTORY ARBITRATIONS.

24. This Act shall apply to every arbitration under any Act passed before or after the commencement of this Act as if the arbitration were pursuant to a submission, except in so far as this Act is inconsistent with the Act regulating the arbitration or with any rules or procedure authorised or recognised by that Act.

The effect of this section is to apply the provisions of the Act to arbitrations under any other Acts, except in so far as the provisions of those Acts are inconsistent with the provisions of the Arbitration Act. The effect is not to introduce into arbitrations under the Arbitration Act any of the provisions as to arbitration contained in any other Act (Zelma Gold Mining Co. v. Hoskins, [1895] A. C. 100; 64 L. J. P. C. 45). "This Act" means the whole Act, including the First Schedule (In re Williams and Stepney, [1891] 2 Q. B. 257; 60 L. J. Q. B. 636).

"In my opinion the Arbitration Act, 1889, was intended to introduce a code for the regulation of all arbitrations, and its operation is only excluded where its provisions are absolutely inconsistent with the Act under which the arbitrators were appointed" (per Fry, LJ.,