under this 88 8, 9. section only applies after a claim for compensation has been duly made. Compensation payable under an agreement made in pursuance of this section would seem to be " compensation under section and this Act," and not "compensation substituted for compensation under the Act," and may be recovered under sect. 24. agreements under previous sections. Appoint ment of referee or referees and umpire. See Form 22. 9. Where there is a reference under this Act, a referee, or two referees and an umpire, shall be appointed as follows: (1.) If the parties concur, there may be a single referee appointed by them jointly: (2.) If before award the single referee dies or becomes incapable of acting, or for seven days after notice from the parties, or either of them, requiring him to act, fails to act, the proceedings shall begin afresh, as if no referee had been appointed: (3.) If the parties do not concur in the appointment of a single referee, each of them shall appoint a referee : (4.) If before award one of two referees dies or becomes incapable of acting, or for seven days after notice from either party requiring him. to act, fails to act, the party appointing him shall appoint another referee : (5.) Notice of every appointment of a referee by either party shall be given to the other party: (6.) If for fourteen days after notice by one party to the other to appoint a referee, or another referee, the other party fails to do so, then, on the application of the party giving notice, the county court 2 shall within fourteen days. appoint a competent and impartial person to be a referee : (7.) Where two referees are appointed, then (subject to the provisions of this Act) they shall before they enter on the reference appoint an umpire : (8.) If before award an umpire dies or becomes in- §§ 9, 10. capable of acting, the referees shall appoint another umpire: (9.) If for seven days after request from either party the referees fail to appoint an umpire, or another umpire, then, on the application of either party, the county court shall within fourteen days appoint a competent and impartial person to be the umpire. (10.) Every appointment, notice, and request under this section shall be in writing. (1) The referee appointed should not be one who has any Who may secret interest in the matter referred, or be affected by any cir- be referee. cumstance likely to bias his mind unknown to one or both of the parties: Earl v. Stocker (a), Kimberley v. Dick (b). If however the interest of the arbitrator is well known to both parties, they will be taken to have waived it: Johnston v. Cheape (c), Re Elliot and South Devon Railway Company (d). As the pro tion to the County Court. (2) By the County Court Rules, 1875, Order XXXIV., a Applicaspecial form of procedure was laid down for proceedings under the Agricultural Holdings (England) Act, 1875. cedure sections in that Act were practically the same as those in the present Act, it is presumed that they will be re-enacted. Under Order XXXIV. rule 7, "Every application for the appointment of a referee or umpire shall be by summons sealed with the seal of the Court, and returnable not less than seven days from the date thereof, except by consent. Such summons shall be taken out by the party applying, and shall be addressed to the other party, and shall direct the party summoned to attend at the Judge's or registrar's chambers (as the case may be) on the return-day thereof, for the purpose of proceeding with the appointment asked for. Such summons shall be personally served by the applicant's solicitor. The appointment may be made by indorsement on the summons." See Forms 23, 24, 25, 26, 27, 28, 34. tion for ap pointment 10. Provided that, where two referees are appointed, Requisian umpire may be appointed as follows: (1.) If either party, on appointing a referee, requires, by notice in writing to the other, that the umpire shall be appointed by the Land Com of umpire by Land Commis sioners, &c. (a) 2 Vern. 251. (b) L. R. 13 Eq. 1. (c) 5 Dow. 247. 88 10, 11. 12, 13. Exercise of powers of county court. Mode of submission to reference. Power for referee, &c., to require production of documents, administer missioners for England, then the umpire, and any successor to him, shall be appointed, on the application of either party, by those commissioners. (2.) In every other case, if either party on appointing a referee requires, by notice in writing to the other, that the umpire shall be appointed by the county court, then, unless the other party dissents by notice in writing therefrom, the umpire, and any successor to him, shall on the application of either party be so appointed, and in case of such dissent the umpire, and any successor to him, shall be appointed, on the application of either party, by the Land Commissioners for England. (1) See sect. 9, note (2). See Forms 29 and 30. 1 11. The powers of the county court under this Act relative to the appointment of a referee or umpire shall be exerciseable by the judge of the court having jurisdiction, whether he is without or within his district, and may, by consent of the parties, be exercised by the registrar of the court. 12. The delivery to a referee of his appointment shall be deemed a submission to a reference by the party delivering it; and neither party shall have power to revoke a submission, or the appointment of a referee, without the consent of the other. 13. The referee or referees or umpire may call for the production of any sample, or voucher, or other document, or other evidence 1 which is in the possession or power of either party, or which either party can produce, and which to the referee or referees or umpire seems necesoaths, &c. sary for determination of the matters referred, and may take the examination of the parties and witnesses on oath, and may administer oaths and take affirmations; and if any person so sworn or affirming wilfully and corruptly gives false evidence he shall be guilty of §§ 13,14, perjury. (1) There is no penalty laid down for the non-production of documents or other evidence; but a refusal to produce would probably tell against the party refusing. 15, 16. absence. proceed in 14. The referee or referees or umpire may proceed Power to in the absence of either party where the same appears to him or them expedient, after notice given to the parties. See Form 31. 15. The award shall be in writing, signed by the Form of referee or referees or umpire. award. Under the Stamp Act, 1870 (a), awards must be stamped Stamp according to the following scale : When the amount or value of the matter in dispute does not duty on awards. And when it exceeds £1000, and in any other case not above provided for, £1 158. See Form 32. 16. A single referee shall make his award ready for Time for delivery within twenty-eight days after his appoint- award of ment. Two referees shall make their award ready for delivery within twenty-eight days after the appointment of the last appointed of them, or within such extended time (if any) as they from time to time jointly fix by writing under their hands, so that they make their (a) 33 & 34 Vict. c. 97.! referees. §§ 16, 17. award ready for delivery within a time not exceeding in the whole forty-nine days after the appointment of the last appointed of them.1 Award in respect of compensa ss. 3, 4, and 5. (1) If the referee or referees fail to make their award ready for delivery within the time hereby limited, the duty devolves under sect. 18 on the umpire. The referees or umpire will probably refuse actually to deliver the award until their costs have been paid. See Form 33. 17. In any case provided for by sections three, four, or five, if compensation is claimed under this Act,1 such tion under compensation as under any of those sections is to be deemed to be substituted for compensation under this Act, if and so far as the same can, consistently with the terms of the agreement, if any, be ascertained by the referees or the umpire, shall be awarded in respect of any improvements thereby provided for, and the award shall, when necessary, distinguish such improvements and the amount awarded in respect thereof; and an award given under this section shall be subject to the appeal provided by this Act. "If compensation is claimed under this Act." "Consistently with the terms of the agree ment." (1) It would seem that the operation of this section is restricted to cases, where a claim has been made in the first place for compensation under the Act; and that it does not admit of an award being made by the referees of compensation substituted under sects. 3, 4, and 5, unless such a general claim in respect of the improvement in question has first been made. The referees apparently have the power when a claim is made for compensation, to decide that compensation is not payable under the Act, but under an agreement, or custom, or the Act of 1875, if such compensation is ascertainable by them, and of awarding the substituted compensation instead of compensation under the Act. They do not appear to have the power of considering whether an agreement providing substituted compensation is "fair and reasonable." (2) The referees or umpire can only estimate compensation under this section in the case of an agreement, if it is compensation which is under the agreement ascertainable on a reference. Under an agreement for the payment of a specific sum, or which provided some other means than a reference for the settlement of the amount to be paid, there would be nothing to be ascertained. |