3 & 4 WILL. IV. c. 42. Submission to arbitration by rule of court, &c., not to be revocable without leave of the court. Power to compel the attendance of witnesses. Power for the AMENDMENT OF THE LAW. [Repealed by the Arbitration Act, 1889.] 3 & 4 WILL. IV. c. 42. An Act for the further amendment of the Law, and the better advance- [S. 39. And whereas it is expedient to render references to arbitration more effectual; be it further enacted, That the power and authority of any arbitrator or umpire appointed by or in pursuance of any rule of court, or judge's order, or order of Nisi Prius, in any action now brought, or which shall be hereafter brought, or by or in pursuance of any submission to reference containing an agreement that such submission shall be made a rule of any of his Majesty's courts of record, shall not be revocable by any party to such reference without the leave of the court by which such rule or order shall be made, or which shall be mentioned in such submission, or by leave of a judge; and the arbitrator or umpire shall and may and is hereby required to proceed with the reference notwithstanding any such revocation, and to make such award, although the person making such revocation shall not afterwards attend the reference; and that the court, or any judge thereof, may from time to time enlarge the time for any such arbitrator making his award. [S. 40. And be it further enacted, That when any reference shall have been made by any such rule or order as aforesaid, or by any submission containing such agreement as aforesaid, it shall be lawful for the court by which such rule or order shall be made, or which shall be mentioned in such agreement, or for any judge, by rule or order to be made for that purpose, to command the attendance and examination of any person to be named, or the production of any documents to be mentioned in such rule or order; and the disobedience to any such rule or order shall be deemed a contempt of court, if, in addition to the service of such rule or order, an appointment of the time and place of attendance in obedience thereto, signed by one at least of the arbitrators, or by the umpire, before whom the attendance is required, shall also be served either together with or after the service of such rule or order: provided always, that every person whose attendance shall be so required shall be entitled to the like conduct money, and payment of expenses and for loss of time, as for and upon attendance at any trial: provided also, that the application made to such court or judge for such rule or order shall set forth the county where such witness is residing at the time, or satisfy such court or judge that such person cannot be found: provided also, that no person shall be compelled to produce under any such rule or order any writing or other document that he would not be compelled to produce at a trial, or to attend at more than two consecutive days to be named in such order. [S. 41. And be it further enacted, That when in any rule or order of reference, or in any submission to arbitration containing an agreement that the submission shall be made a rule of court, it shall be ordered or agreed that the witnesses upon such reference shall be examined upon oath, it shall be lawful for the arbitrators or umpire, or any one arbitrator, and he or they are hereby authorised and required, to administer an oath to such witnesses, or to take their affirmation in cases where affirmation is allowed by law instead of oath; and if upon such oath or affirmation any person making the same shall wilfully and corruptly give any false evidence, every person so offending shall be deemed and taken to be guilty of perjury, and shall be prosecuted and punished accordingly.] (a) The Irish Act (the 3 & 4 Vict. c. 105) has sections 63, 64, and 65, corre. sponding to sections 39, 40, and 41 of the 3 & 4 Will. IV. c. 42. COMMON LAW PROCEDURE. [Repealed by the Arbitration Act, 1889.] 17 & 18 VICT. c. 125. c. 125. An Act for the further amendment of the process, practice, and mode of 17 & 18 VIOT. [The Common Law Procedure Act, 1854.] [12th August, 1854.] S. 3. If it be made appear at any time after the issuing of the writ, to the Power to court satisfaction of the court or a judge, upon the application of either party, that or judge to the matter in dispute consists wholly or in part of matters of mere account direct arbitrawhich cannot conveniently be tried in the ordinary way, it shall be lawful for tion before such court or judge, upon such application, if they or he think fit, to decide trial. such matter in a summary manner, or to order that such matter, either wholly 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 (a), 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. [S. 4. If it shall appear to the court or judge that the allowance or disallowance of any particular item 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 herein before 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. Special case may be stated, and question of fact tried. [S. 5. It shall be lawful for the arbitrator, upon any compulsory reference Arbitrator under this Act, or upon any reference by consent of parties where the sub- may state mission is or may be made a rule or order of any of the superior courts of law special case. or equity at Westminster, if he shall think fit, and if it is not provided to the contrary, to state his award, as to the whole or any part thereof, in the form of a special case for the opinion of the court, and when an action is referred, judgment, if so ordered, may be entered according to the opinion of the court. [S. 6. If, upon the trial of any issue of fact by a judge under this Act, it Power to shall appear to the judge that the questions arising thereon involve matter of judge to direct account which cannot conveniently be tried before him, it shall be lawful for arbitration at him, at his discretion, to order that such matter of account be referred to an time of trial arbitrator appointed by the parties, or to an officer of the court, or, in when issues of country causes, to a judge of any county court (a), upon such terms as to fact left to his 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 to try and dispose of any other matters in question not referred, in like manner as if no reference had been made. decision. [S. 7. The proceedings upon any such arbitration as aforesaid shall, except Proceedings otherwise directed hereby or by the submission or document authorising the before and reference, be conducted in like manner and subject to the same rules and power of such enactments, as to the power of the arbitrator and of the court, the attendance arbitrator. 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). [S. 8. In any case where reference shall be made to arbitration as aforesaid, Power to (a) Repealed as to county court judges by the stat. 21 & 22 Vict. c. 74, s. 5. (b) Hogg v. Burgess, 3 H. & N. 293, S. C. 27 L. J. Ex. 318. c. 125. 17 & 18 VICT. the court or a judge shall have power at any time, and from time to time, to remit the matters referred, or any or either of them, to the re-consideration and re-determination of the said arbitrator, upon such terms, as to costs and otherwise, as to the said court or judge may seem proper (a). send back to arbitrator. Application to set aside the award. Enforcing of awards within period for setting them aside. If action commenced by one party after all have agreed to arbitration, court or judge may stay proceedings. On failure of parties or arbitrators, judge may appoint single arbitrator or umpire. When refe rence is to two arbitrators and one party fail to appoint, other party [S. 9. All applications to set aside any award made on a compulsory reference under this Act shall and may be made within the first seven days of the term next following the publication of the award to the parties, whether made in vacation or term; and if no such application is made, or if no rule is granted thereon, or if any rule granted thereon is afterwards discharged, such award shall be final between the parties. [S. 10. Any award made on a compulsory reference under this Act may, by authority of a judge, on such terms as to him may seem reasonable, be enforced at any time after seven days from the time of publication, notwithstanding that the time for moving to set it aside has not elapsed. [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 the action or suit is brought, or a judge thereof, on application by the defendant or defendants, or any of them, after appearance, and 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. [S. 12. If in any case of arbitration the document authorising the reference provide that the reference shall be to a single arbitrator, and all the parties do not, after differences have arisen, concur in the appointment of an arbitrator; or if any appointed arbitrator refuse to act, or become incapable of acting, or die, and the terms of such document do not show that it was intended that such vacancy should not be supplied, and the parties do not concur in appointing a new one; or if, where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator, such parties or arbitrators do not appoint an umpire or third arbitrator; or if any appointed umpire or third arbitrator refuse to act, or become incapable of acting, or die, and the terms of the document authorising the reference do not show that it was intended such a vacancy should not be supplied, and the parties or arbitrators respectively do not appoint a new one: then in every such instance any party may serve the remaining parties or the arbitrators, as the case may be, with a written notice to appoint an arbitrator, umpire, or third arbitrator respectively; and if within seven clear days after such notice shall have been served no arbitrator, umpire, or third arbitrator be appointed, it shall be lawful for any judge of any of the superior courts of law or equity at Westminster, upon summonses to be taken out by the party having served such notice as aforesaid, to appoint an arbitrator, umpire, or third arbitrator, as the case may be, and such arbitrator, umpire, and third arbitrator respectively shall have the like power to act in the reference and make an award as if he had been appointed by consent of all parties. [S. 13. When the reference is or is intended to be to two arbitrators, one appointed by each party, it shall be lawful for either party, in the case of the death, refusal to act, or incapacity of any arbitrator appointed by him, to substitute a new arbitrator, unless the document authorising the reference, show that it was intended that the vacancy should not be supplied; and if on such a reference one party fail to appoint an arbitrator, either originally (a) Morris v. Morris, 6 E. & B. 383, S. C. 25 L. J. Q. B. 261. c. 125. or by way of substitution as aforesaid, for seven clear days after the other 17 & 18 VICT. party shall have appointed an arbitrator, and shall have served the party so failing to appoint with notice in writing to make the appointment, the party who has appointed an arbitrator may appoint such arbitrator to act as sole arbitrator in the reference, and an award made by him shall be binding on both parties, as if the appointment had been by consent; provided, however, that the court or a judge may revoke such appointment on such terms as shall seem just. may appoint arbitrator to act alone. [S. 14. When the reference is to two arbitrators, and the terms of the Two arbitradocument authorising it do not show that it was intended that there should tors may apnot be an umpire, or provide otherwise for the appointment of an umpire, the point umpire. two arbitrators may appoint an umpire at any time within the period during which they have power to make an award, unless they be called upon by notice as aforesaid to make the appointment sooner. [S. 15. The arbitrator acting under any such document or compulsory Award to be order of reference as aforesaid, or under any order referring the award back, made in three shall make his award under his hand, and (unless such document or order months, unless respectively shall contain a different limit of time) within three months after parties or court he shall have been appointed, and shall have entered on the reference, or enlarge time. shall have been called upon to act by a notice in writing from any party; but the parties may by consent in writing enlarge the term for making the award; and it shall be lawful for the superior court of which such submission, document, or order is or may be made a rule or order, or for any judge thereof, for good cause to be stated in the rule or order for enlargement, from time to time to enlarge the term for making the award; and if no period be stated for the enlargement in such consent or order for enlargement, it shall be deemed to be an enlargement for one month; and in any case where an umpire shall have been appointed it shall be lawful for him to enter on the reference in lieu of the arbitrators, if the latter shall have allowed their time or their extended time to expire without making an award, or shall have delivered to any party or to the umpire a notice in writing stating that they cannot agree. [S. 16. When any award made on any such submission, document, or order Rule to deliver of reference as aforesaid directs that possession of any lands or tenements possession of capable of being the subject of an action of ejectment shall be delivered to land pursuant any party either forthwith or at any future time, or that any such party is to award to be entitled to the possession of any such lands or tenements, it shall be lawful enforced as a for the court of which the document authorising the reference is or is made a judgment in ejectment. rule or order, to order any party to the reference who shall be in possession of any such lands or tenements, or any person in possession of the same claiming under or put in possession by him since the making of the document authorising the reference, to deliver possession of the same to the party entitled thereto, pursuant to the award, and such rule or order to deliver possession shall have the effect of a judgment in ejectment against every such party or person named in it, and execution may issue, and possession shall be delivered by the sheriff as on a judgment in ejectment. [S. 17. Every agreement or submission to arbitration by consent, whether Agreement or by deed or instrument in writing not under seal, may be made a rule of any submission in one of the superior courts of law or equity at Westminster, on the applica- writing may tion of any party thereto, unless such agreement or submission contain words be made rule purporting that the parties intend that it should not be made a rule of court; of court, unless and if in any such agreement or submission it is provided that the same shall a contrary intention appear. or may be made a rule of one in particular of such superior courts, it may be made a rule of that court only; and if, when there is no such provision, a case be stated in the award for the opinion of one of the superior courts, and such court be specified in the award, and the document authorising the reference have not, before the publication of the award to the parties, been made a rule of court, such document may be made a rule only of the court specified in the award; and when in any case the document authorising the reference is or has been made a rule or order of any one of such superior courts, no other of such courts shall have any jurisdiction to entertain any motion respecting the arbitration or award.] 36 & 37 VICT. c. 66. References and assessors. Power to direct trials before referees. Powers of referees and effect of their findings. Powers of court with respect to proceedings before referees. Official referees to be appointed. THE JUDICATURE ACTS. [Parts in brackets repealed by Arbitration Act, 1889.] 36 & 37 VICT. c. 66. An Act for the constitution of a Supreme Court, and for other purposes. [5th August, 1873.] S. 45, dealing with appeals from inferior courts, provides that they may be heard and determined by divisional courts of the High Court of Justice. "The determination of such appeals respectively by such divisional courts shall be final, unless special leave to appeal from the same to the Court of Appeal shall be given by the divisional court by which any such appeal from an inferior court shall have been heard." PART. IV. Trial and Procedure. S. 56. [Subject to any rules of court and to such right as may now exist to have particular cases submitted to the verdict of a jury, any question arising in any cause or matter (other than a criminal proceeding by the Crown) before the High Court of Justice, or before the Court of Appeal, may be referred by the court, or by any divisional court or judge before whom such cause or matter may be pending, for inquiry and report to any official or special referee, and the report of any such referee may be adopted wholly or partially by the court, and may (if so adopted) be enforced as a judgment by the court.] The High Court or the Court of Appeal may also, in any such cause or matter as aforesaid in which it may think it expedient so to do, call in the aid of one or more assessors specially qualified, and try and hear such cause or matter wholly or partially with the assistance of such assessors. The remuneration, if any, to be paid to such [special referees or] assessors shall be determined by the court. [S. 57. In any cause or matter (other than a criminal proceeding by the Crown) before the said High Court in which all parties interested who are under no disability consent thereto, and also without such consent in any such cause or matter requiring any prolonged examination of documents or accounts, or any scientific or local investigation which cannot in the opinion of the court or a judge conveniently be made before a jury, or conducted by the court through its ordinary officers, the court or a judge may, at any time, on such terms as may be thought proper, order any question or issue of fact or any question of account arising thereon to be tried either before an official referee, to be appointed as hereinafter provided, or before a special referee to be agreed on between the parties: and any such special referee so agreed on shall have the same powers and duties and proceed in the same manner as an official referee. All such trials before referees shall be conducted in such manner as may be prescribed by rules of court, and subject thereto in such manner as the court) or judge ordering the same shall direct.] [S. 58. In all cases of any reference to or trial by referees under this Act, the referees shall be deemed to be officers of the court, and shall have such authority for the purpose of such reference or trial as shall be prescribed by rules of court, or (subject to such rules) by the court or judge ordering such reference or trial; and the report of any referee upon any question of fact on any such trial shall (unless set aside by the court) be equivalent to the verdict of a jury.] [S. 59. With respect to all such proceedings before referees and their reports, the court or such judge as aforesaid shall have, in addition to any other powers, the same or the like powers as are given to any court whose jurisdiction is hereby transferred to the said High Court with respect to references to arbitration and proceedings before arbitrators and their awards respectively by the Common Law Procedure Act, 1854.] S. 83. There shall be attached to the Supreme Court permanent officers to be called official referees, for the trial of such questions as shall, under the provisions of this Act, be directed to be tried by such referees. The number |