be taxed by the taxing master; And this Court held the demurrer of the Secretary of State for India in Council to be insufficient as being out of time; And, therefore, Let the same be overruled; And Let the Secretary of State for India in Council pay to the said K. his costs of the said demurrer to be taxed by the taxing master, costs to be set off. -Kinlock v. The Queen, Kay, J., 27 November, 1882, A. 2257.

For order allowing demurrer, and for suppliant to pay costs of demurrer and petition, see Re Tufnell, 15 June, 1876, B. 1093.

NOTES.

As to petitions of right, before and independently of the Petition of Right Act, 1860, see Dan. 1538; 3 Steph. Com. 11th ed. 680; Clode on Petition of Right; Clayton v. A. G., 1 C. P. D. 97; Taylor v. A. G., 8 Sim. 413; Monckton v. A. G., 2 Mac. & G. 402; Re Von Frantzius, 2 D. & J. 126; Re Rolt, 4 D. & J. 44; and see the practice explained by Wickens, V.-C., in Kirk v. The Queen, 14 Eq. 563.

That Act (23 & 24 V. c. 34) provides that a petition of right may be instituted in any of the Superior Courts of Law or Equity, and by the following sections the fiat of her Majesty that right be done being obtained through the Home Secretary (see s. 2), the proceedings are assimilated to those in an ordinary suit or action between subjects (see Gen. Ord. 1 Feb. 1862; Dan. 1540; Clode, 192); and are to be prosecuted in the Court in which the petition is entitled, or such other Court as the L. C. may direct.

By ss. 11, 12, costs may be given to (Re Brain, 18 Eq. 389) and against (James v. The Queen, sup. Form 1, and S. C. on demurrer, 17 Eq. 502) the Crown and other parties.

By s. 18, suppliants may still proceed as if the Act had not passed.

The Crown may, notwithstanding the Act, plead and demur without leave Tobin v. The Queen, 14 C. B. N.S. 505; 11 W. R. 701; and see S. C., Ib. 915.

It seems doubtful whether any person can be joined with the Crown as respondent to the petition. If not, another suit may be commenced against the Sovereign and others after the fiat has been given: Kirk v. The Queen, 14 Eq. 558; and as to joining a Secretary of State, see S. C.

A petition of right will lie:-For unliquidated damages for breach of contract: Thomas v. The Queen, L. R. 10 Q. B. 31; Windsor and Annapolis Rail. Co. v. Reg., 11 App. Ca. 607, P. C.; or otherwise in respect of matters of contract: Macbeath v. Haldimand, 1 T. R. 176; Oldham v. The Lords of the Treasury, cited 6 Sim. 220; or to enforce an agreement for a lease: James v. The Queen, 17 Eq. 502; Davis v. Adams, W. N. (76) 202; and, semble, the Crown's advisers cannot capriciously refuse to allow investigation: Ryves v. D. of Wellington, 9 Beav. 579; Clode, 164. But not for unliquidated damages for a trespass: Tobin v. Reg., 16 C. B. N.S. 310; 12 W. R. 838; Canterbury v. A. G., 1 Ph. 306. Nor for compensation for a wrongful act done by a servant of the Crown in the supposed performance of his duty: Tobin v. Reg., sup. Nor as to lands in a colony: Holmes v. The Queen, 10 W. R. 39. And a suppliant, or intending suppliant, is not entitled to discovery, nor to production of documents as against the Crown: Thomas v. The Queen, L. R. 10 Q. B. 44; Reiner v. M. of Salisbury, 2 Ch. D. 378, 386; though the Crown, by the combined effect of 23 & 24 V. c. 34, and O. XXXI. 12, is entitled to discovery from the suppliant: Tomline v. The Queen, 4 Ex. Div. 225.

The Crown cannot be made to account for money paid by a foreign government as compensation to English subjects: Rustomjee v. The Queen, 2 Q. B. Div. 69.

Relief against a forfeiture of a Crown lease or gale for nonpayment of rent was refused after six months in Re Brain, 18 Eq. 389.

Demurrer was allowed to a petition of right by an army doctor, who, having been forced to retire, claimed that the office was tenable for life: Re Tufnell, 3 Ch. D. 164; also to a petition of right for an increase of a super

annuation allowance, such an allowance being, under 4 & 5 Will. 4, c. 24, s. 30, and the Superannuation Act, 1859, ss. 2, 18, a mere bounty: Cooper v. The Queen, V.-C. M., 25 W. R. 611; and as to contracts by the Crown being conditional on the funds being voted by Parliament, see Re Tufnell, sup., and Churchward v. The Queen, L. R. 1 Q. B. 173.

The Statutes of Limitation have no application as between the Crown and a subject, and should not be pleaded by the Crown, but the fiat may be refused: Rustomjee v. The Queen, 2 Q. B. Div. 69.

And the Crown not being named in the Prescription Act, 1832, s. 3, is not bound by that section: Perry v. Eames, (1891) 1 Ch. 658.

No mention of petitions of right is made in the Judicature Acts or Rules, but the Gen. Ord. of 1st Feb. 1562, is not annulled, and the prerogative of the Crown to intervene in actions affecting its rights is not affected by Jud. Act, 1873, s. 24(5): A. G. v. Constable, 4 Ex. D. 172; and, notwithstanding those Acts and O. xxv. 1, a demurrer may be put in by the A. G.: Northam Bridge Co. v. The Queen, 23 November, 1886, B. 1373; Clode, 178.

And for Forms, and as to the practice generally, see Clode, passim.

CHAPTER XXVI.

ARBITRATIONS AND REFERENCES.

SECTION I.-ARBITRATIONS.

1. Usual Reference to one Arbitrator.

By consent,-Let all matters in difference in this action between the parties be referred to the arbitrament, final end, and determination of A. of &c., who is to make his award in writing on or before the day of, or such further day as the said A. shall appoint; And by the like consent, Let all deeds, books, and papers in the custody or power of either of the parties relating to the matters in question be produced before the said arbitrator as he shall direct, to be ascertained by the oaths of the respective parties producing the same; And the parties and their witnesses, being first sworn, are to be examined as the said arbitrator shall direct; And by the like consent the costs of this cause [or action], and of this application and of this reference, are to be in the discretion of the said arbitrator; And by the like consent, no action is to be brought by either of the parties against the said A. for any matter or thing he shall do in, about, or touching any of the matters hereby referred to him; And by the like consent, the said arbitrator is to have power from time to time to enlarge the time for making his award as he shall think fit.

2. Same-to two Arbitrators, or their Umpire.

LET all matters in difference in these actions, between the Plt X., as exor of A., deceased, and the Deft, be referred to the arbitrament &c. of B., of &c., a person for this purpose nominated by the Plt, and of C., of &c., a person for this purpose nominated by the Deft, or, in case of their not agreeing to an award, then to the arbitrament &c. of such umpire as shall be appointed by them, the said B. and C., in the manner hereinafter mentioned; And such arbitrators are to make their award in writing on or before the day of or on or before such further day as they, the said arbitrators, shall from time to time by any writing under their hands appoint; And in case of the said arbitrators not agreeing in an award, the said umpire is to make his award in writing within the period hereinafter mentioned, that is to

say, within three mouths after the time during which it is within the power of the arbitrators to make an award shall have ceased; or within such extended time, after the expiration of the said period of three months, as the said umpire shall from time to time by any writing under his hand appoint; And Let all deeds &c. [Form 1]; And the costs of these actions and of this application are to be in the discretion of the said arbitrators and umpire, or of such of them as shall award upon the matters in difference; And no action &c. [Form 1]; And before such arbitrators shall enter upon the matters referred to them they are, by writing under their hands, to appoint some person approved of by them to be such umpire as aforesaid and such umpire shall, by writing under his hand, signify his acceptance of such appointment.-Liberty to apply.-Edwards v. E., V.-C. S., 28 July, 1856, A. 1589.

For like order to refer all matters in question in the suit (including the question whether the alleged partnership was or was not constituted, and also including all questions between the parties relating to the Plt's annuity, and to the distress levied by him, and to the Deft's proceedings in replevin, and also who is to have possession of the farm in the pleadings mentioned, and upon what terms as to payment of moneys or otherwise), see Oslar v. O., V.-C. B., 11 Nov. 1875, B. 3194.

3. To enlarge Time to make Award—52 & 53 V. c. 49, s. 9. WHEREAS by an order dated &c. [Recite order of reference concisely, but particularly as to time when arbitrator is to make his award], Now upon motion &c., by counsel for -, and upon hearing counsel for —, and upon reading &c., This Court doth order that the time for the said arbitrators to make their award be enlarged until the

This order may also be obtained at Chambers.

day of -.

4. To appoint new Arbitrator and Umpire in place of one who refuses to act or is incapable of acting—s. 5.

WHEREAS by an order dated &c. [Recite order of reference, and death of arbitrator and umpire], It is, by consent, ordered that P. be appointed in the place of B., deceased, to act as arbitrator with L., the surviving arbitrator under the said order, together with such third person as the said P. and L. shall nominate in writing previously to their entering upon the said reference, with such powers and directions as are contained in and given by the said order dated &c. : And it is ordered, that the award of the said arbitrators be made on or before the - day of —, or such further time as they may appoint.-See Gouthwaite v. G., V.-C., 23 Mar. 1842, A. 683.

NOTES.

All arbitrations, whether by consent out of Court or by reference under order of Court, are now governed by the provisions of the Arbitration Act, 1889 (52 & 53 V. c. 49), which repeals the Acts 9 Will. 3, c. 15; 3 & 4 Will. 4,

c. 42, ss. 39-41; the C. L. P. Act, 1854, ss. 3-17; the Jud. Act, 1873, s. 56 (except the portion relating to assessors), and ss. 57-59; and the Jud. Act, 1884, ss. 9-11.

Sects. 1-12 of the new Act relate more particularly to references by consent out of Court; ss. 13-17 to references under order of Court; and the remaining sections are of general application.

SUBMISSION TO ARBITRATION.

By the interpretation clause, s. 27,"submission' means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not." As to the ambiguous use of the expression" submission" previously to the Act, see Re Smith and Service and Nelson, 25 Q. B. Div. 545.

In order to constitute an "arbitration " there must be some dispute which requires a judicial determination: Re Dawdy, 15 Q. B. Div. 426, 430; and a mere agreement for a sale at a price to be fixed by a valuer is not an arbitration, but a valuation: Collins v. C., 26 Beav. 306; and see Bos v. Helsham, L. R. 2 Ex. 72; Re Dawdy, sup. ; and so where a purchaser agrees to take timber at a valuation, such valuation is not in the nature of an award: Re Carus-Wilson and Greene, 18 Q. B. Div. 7; and the assessment under contract of compensation to tenant giving up land to a purchaser is a valuation Re Hammond and Waterton, 62 L. T. N.S. 808; but if it is necessary to hold a judicial inquiry, and to decide a point of law or right arising out of the facts (Vickers v. V., 4 Eq. 536; Re Hopper, 8 B. & S. 100), or settle a dispute (In re Evans, Davies and Caddick, 18 W. R. 723), there is an arbitration.

As to when the architect, &c. is made an arbitrator by a building contract, see Kimberley v. Dick, 13 Eq. 1; Wadsworth v. Smith, L. R. 6 Q. B. 332; Jones v. St. John's Coll., L. R. 6 Q. B. 115; Sharpe v. San Paulo Ry., 8 Ch. 597; Walker v. L. & N. W. Ry., 1 C. P. D. 518.

Where it is intended that the parties should be deprived of any legal right, the submission should so state: see Re Green and Balfour, 63 L. T. N.S. 97. As to the meaning of the expression "differences,' see Randegger v. Holmes, 1 C. P. 679; Re Carlisle, Clegg v. C., 44 Ch. D. 200.

By s. 1, "a submission, unless a contrary intention is expressed therein, shall be irrevocable, except by leave of the Court or a Judge, and shall have the same effect in all respects as if it had been made an order of the Court."

Formerly, unless the submission was made or agreed to be made a rule of Court, the appointment of the arbitrator was revocable until an award had actually been made: Randell v. Thompson, 1 Q. B. Div. 748; Thomson v. Anderson, 9 Eq. 523; Re Rouse and Meier, L. R. 6 C. P. 212; Mills v. Bayley, 2 H. & C. 36; Fraser v. Ehrensperger, 12 Q. B. Div. 310; Deutsche, &c. Gesellschaft v. Brisac, 20 Q. B. D. 177; but the general agreement to refer could not be revoked, and an action lay for breach of it: Re Smith and Service and Nelson, 25 Q. B. Div. 545, 550, 553; Piercy v. Young, 14 Ch. Div. 200; Christie v. Noble, 14 Ch. D. 203, n.

A stipulation in a contract, that the provisions of the C. L. P. Act, 1854 with regard to arbitration should apply, was held to be equivalent to an agreement that the submission should be made a rule of Court, and thus to render it irrevocable under the provision to that effect in 3 & 4 Will. 4, c. 42, 8. 39; Re Mitchell and Izard, 21 Q. B. Div. 408.

Leave to revoke a submission on the ground that an arbitrator is making a mistake of law in a matter within his jurisdiction will only be granted under exceptional circumstances: James v. J., 23 Q. B. Div. 12; S. C., 22 Q. B. D. 673; ex. gr., where the arbitrator was receiving evidence which was objected to as tending to vary the contract: E. & W. India Docks Co. v. Kirk and Randall, 12 App. Cas. 738.

The meaning of the last clause of the section is that the submission, whether it be a general agreement to refer or not, is to have the same effect as would have been given to it before the statute by an act of the parties making it a rule of Court: Re Smith and Service and Nelson, 25 Q. B. Div. 545, 554. The clause in effect supersedes the provisions of 9 & 10 Will. 3, c. 15, s. 1, whereby any agreement for reference might be made a rule of Court, and

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