or in part, be referred to an arbitrator appointed by the parties,-or to an officer of the Court,—or, in country causes, to the judge of any county court, upon such terms as to costs and otherwise as such Court or judge shall think reasonable; and the decision or order of such Court or judge, or the award or certificate of such referee, shall be enforceable by the same process as the finding of a jury upon the matter referred (a). Where a part only of the matters in dispute consists of matter of account, the Court or a judge may order the whole matters in dispute, or a part only, to be referred to arbitration (b). And where a case was referred to the master, under this clause of the Act, it was holden that he was bound to proceed as in an ordinary arbitration, and had no right to refuse to inquire into a question of fraud raised before him as to a part of the accounts in dispute (c). Also, where a plaintiff assented to an order being made under this section of the statute, it was holden that he could not, after some delay, apply to rescind the order, on the ground of its not being matter of mere account (d).

Where an order refers a cause to a county court, under the above section, it is compulsory upon the judge of the court, and he cannot decline the reference; if he be desirous of having the propriety of referring the cause to him questioned, his proper course is to apply to set aside the order (e). Where a cause has been refused under the above

(a) 17 & 18 Vict. c. 125, s. 3.

(b) Brown v. Emerson, 25 Law J. 104, cp.

(c) Howell v. Morgan, 27 L. J. 75, cp.

(d) Rogers v. Kearns, 29 Law J. 328, ex.

(e) Cummins v. Birkett, 27 Law J. 216, ex.

section, the Court have power, at any time before the award, to amend the particulars of the plaintiff's demand (a).

And if it shall appear to the Court or a judge that the allowance or disallowance of any particular item or items in such account depends upon a question of law fit to be decided by the Court, or upon a question of fact fit to be decided by a jury, or by a judge upon the consent of both parties as hereinbefore provided, it shall be lawful for such Court or judge to direct a case to be stated, or an issue or issues to be tried; and the decision of the Court upon such case, and the finding of the jury or judge upon such issue or issues, shall be taken and acted upon by the arbitrator as conclusive (b).

at nisi prius.

By stat. 17 & 18 Vict. c. 125, s. 6, if upon the Byla judge trial of any issue of fact by a judge under this Act it shall appear to the judge, that the questions arising thereon involve matter of account which cannot conveniently be tried before him, it shall be lawful for him, at his discretion, to order that such matter of account be referred to an arbitrator appointed by the parties, or to an officer of the court,— or, in country causes, to a judge of any county court,—upon such terms as to costs, and otherwise, as such judge shall think reasonable; and the award or certificate of such referee shall have the same effect as herein before provided as to the award or certificate of a referee before trial; and it shall be competent for the judge to proceed

-

(a) Gibbs v. Knightley, 26 Law J. (b) 17 & 18 Vict. c. 125, s. 4. 294, ex.

Stay of proceedings.

to try and dispose of any other matters in question not referred, in like manner as if no reference had been made (a).

And the proceedings upon any such arbitration as aforesaid shall, except otherwise directed hereby or by the submission or document authorising the reference, be conducted in like manner, and subject to the same rules and enactments, as to the power of the arbitrator and of the Court, the attendance of witnesses, the production of documents, enforcing or setting aside the award, and otherwise, as upon a reference made by consent under a rule of court or judge's order (b).

Action after agreeing to refer.

By stat. 17 & 18 Vict. c. 125, s. 11, whenever the parties to any deed or instrument in writing to be hereafter made or executed, or any of them, shall agree that any then existing or future differences between them or any of them shall be referred to arbitration, and any one or more of the parties so agreeing, or any person or persons claiming through or under him or them, shall nevertheless commence any action at law or suit in equity against the other party or parties, or any of them, or against any person or persons claiming through or under him or them, in respect of the matters so agreed to be referred, or any of them, it shall be lawful for the Court in which such action or suit is brought, or a judge thereof, on application by the defendant or defendants, or any of them, after appearance and

(a) 17 & 18 Vict. c. 125, s. 6.

(b) Id. s. 7.

before plea or answer, upon being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to arbitration according to such agreement as aforesaid, and that the defendant was at the time of the bringing of such action or suit and still is ready and willing to join and concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceedings in such action or suit, on such terms as to costs and otherwise as to such Court or judge may seem fit provided always, that any such rule or order may at any time afterwards be discharged or varied as justice may require (a). This applies, not only to cases where an action is brought, pending a reference, but to cases where persons bind themselves by deed, &c., to refer to arbitration all disputes which may thereafter arise between them (b).

(a) 17 & 18 Vict. c. 125, s. 11.
(b) See Wickam v. Harding, 28

Law J. 215, ex. And see Horton v.
Sayer, 29 Law J. 28, ex. antè, p. 7.

PART II.

THE HEARING.

Proceedings before the Arbitrator, p. 22.

Generally, p. 22.

Witnesses, p. 23.

Examination of the Parties, p. 25.

Umpire and Umpirage, p. 26.

Appointed under the Submission, p. 26.
Appointed under the Statute, p. 28.
His Proceedings, p. 30.

Generally.

Proceedings before the Arbitrator.

After having obtained the submission, and ascertained that the arbitrator will undertake the reference, get a written appointment from the arbitrator, and serve a copy of it on the opposite party. Make out a short statement of your case, and leave it with the arbitrator; or if the cause have been referred at nisi prius, leave him one of the briefs. Then attend at the time appointed with your witnesses, and have them called in before the arbitrator, in the order in which you wish them to