submission, unless a contrary intention is expressed therein, is Arbi. to be deemed to include the provisions set forth in the first Schedule to the Act, so far as they are applicable to the reference under the submission (1). The provisions in the first Schedule which are to be thus implied in all submissions, in the absence of provision to the contrary, are as follows: (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 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. (f.) 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 in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire, all books, deeds, papers, accounts, writings, and documents within their possession or power respectively which may be required or called for, and do all other things which during the proceedings on the reference the arbitrators or umpire may require. (g.) The witnesses on the reference shall, if the arbitrators or umpire 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. (') The Act does not apply to arbitrations then pending (sect. 25). tration Act, 1889. Power to stay proceedings where there is a (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. If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission, or any person claimsubmission. ing 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 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 necessary to the proper conduct of the arbitration, may make an order staying the proceedings. The Court has also power in certain cases to appoint an arbitrator, umpire, or third arbitrator. The Act provides that in any of the following cases (a.) Where a submission provides that the reference shall be (b.) If an appointed arbitrator refuses to act, or is incapable (d.) 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 applica tion Act, 1889. tion by the party who gave the notice, appoint an arbitrator, Arbitraumpire, 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 (1). The Act next deals with references under order of the Court, and enables the Court in any cause or matter other than a criminal proceeding by the Crown in certain cases to refer the whole matter, or any question to be tried before a special referee or arbitrator, or an official referee or officer of the Court, whose report, unless set aside by the Court, is to be equivalent to the verdict of a jury. The Act provides powers for summoning witnesses, &c., and for stating special cases for the opinion of the Court on questions of law. There is also a very important section as to costs, providing that 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. Among the other provisions of the Act (2) may be noticed one which renders false evidence before a referee, arbitrator, or umpire punishable as perjury in the same way as if the evidence had been given in open Court. Another section provides that the Act, except as is expressly mentioned, shall apply to the Crown, but also provides that 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 (3). (1) 52 & 53 Vict. c. 49, s. 5. Sect. 6 enables the parties, unless the submission expresses a contrary intention, to supply vacancies, but any appointment made under this section may be set aside by (2) 52 & 53 Vict. c. 49, s. 20. "the Cases in which interpleader arises. CHAPTER X. INTERPLEADER. Among the many intricacies which arise in the conduct of human affairs there occasionally emerges the peculiar complication that a man finds himself in the possession of money or goods wherein he himself has no interest, but to which claim is made by different persons who are bringing or likely to bring an action or actions against him. The remedy of the man so situated is to "interplead," but before the Judicature Acts the practice was different in equity and at law. Now all proceedings are governed by the rules contained in Order LVII. (1). Relief by way of interpleader arises in two classes of case1. Where the person seeking relief, "the applicant," as he is styled in the rules, is under liability for any debt, money, goods, or chattels, for or in respect of which he is, or expects to be, sued by two or more parties (called the claimants), making adverse claims thereto : 2. Where the applicant is a sheriff or other officer charged with the execution of process by or under the authority of the High Court, and claim is made to any money, goods, or chattels taken or intended to be taken in execution under any process, or to the proceeds or value of any such goods or chattels by any person other than the person against whom the process issued (2). "The applicant" must satisfy the Court by affidavit or otherwise of three things 1. That he claims no interest in the subject-matter in dispute, other than for charges or costs; 2. That he does not collude with any of the claimants; 3. That he is willing to pay or transfer the subject-matter into Court or to dispose of it as the Court may direct. (1) See Judicature Act, 1873, s. 25, sub-s. 6, ante, p. 693. (2) When a "stakeholder" expects to be sued he may apply before action by originating summons: see Annual Practice, R. S. C., Order LVII. r. 1; Thompson v. Wright, 13 Q. B. D. 632; Reading v. School Board of London, 16 Q. B. D. 686; and see as to the necessity of a solicitor obtaining special instructions: James v. Ricknell, 20 Q. B. D. 164. A few of the principal rules on the subject of interpleader Rules as may now be briefly noticed. An applicant is not to be disentitled to relief by reason only that the titles of the claimants have not a common origin, but are adverse to and independent of one another. And when he is a defendant, he may apply for relief at any time after service of the writ of summons, and the Court has power to stay all further proceedings in the action. The Court may, with the consent of both claimants, or at the request of any, if it seems desirable, having regard to the value of the subject-matter in dispute, decide the matter in a summary way, and in this case there is no appeal. The general rule is not to do so when the value is over £50. The Court may, in or for the purposes of any interpleader proceedings, make all orders as to costs and all other matters as may be just and reasonable (1). A master or district registrar has in interpleader matters the same jurisdiction as a judge at chambers (2). The 17th section of the Judicature Act, 1884, enables the Court to transfer interpleader proceedings to a County Court in cases in which the amount or value of the matter in dispute does not exceed the sum of £500, if the Court is of opinion that the matter can be more conveniently tried and determined in a County Court than in the High Court (3). (1) E.g., a receiver may be appointed Howell v. Dawson, 13 Q. B. D. 67. (2) Where a master summarily decides an interpleader matter under Order LVII., r. 8, and gives leave to appeal, a judge at chambers has jurisdiction to entertain such appeal by virtue of the provisions of Order LVII. r. 11: Webb v. Shaw, 16 Q. B. D. 658; see as to appeals from County Court, Lumb v. Teal 22 Q. B. D. 675. No appeal lies from decisions of Master to Court of Appeal on an interpleader summons, Order LVII. r. 8, but semble, there is an appeal to the Judge at Chambers: Bryant v. (3) The County Court Rules, 1889, to interpleader. 3 E VOL. II |