Special case may be stated, and

fact tried.

4. If it shall appear to the court or a judge that the allowance or disallowance of any partiquestion of cular 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 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.

Arbitrator

This section relates only to cases where the matter in dispute is a matter of mere account, and where the disputed items may be conveniently decided in the mode proposed; e.g., where the disputed item is a claim for interest, as in Mowatt v. Lord Londesborough, 23 L. J. 177, Q. B., the question being whether there was a sufficient demand of interest by letter within the 4 Will. 4, c. 42, s. 28; or whether, from the nature of the debt, interest was payable at all: in such cases, the only question being whether interest is recoverable, and the amount of interest, if recoverable, not being disputed, it is proper to state a case for the opinion of the court. Where, again, the disputed items of account are money expended by an agent in the business of his principal, or claims by him for services which the agent considers the extent of his authority justifies him in doing, and the right to recover these items and not the amount of them is disputed, these are questions fit to be decided by a jury unless the parties prefer to have them decided by the court or a judge, under sect. 1. From the last part of this section it would seem that sect. 4 is confined to cases of disputed account submitted to arbitration under sect. 3, and quære whether there must not have been a submission to arbitration before this section can be acted upon. The words are, "The decision of the court upon such case, and the finding, &c., upon such issue, shall be taken and acted upon by the arbitrator as conclusive;" the words referring to an arbitrator as already appointed.

5. It shall be lawful for the arbitrator upon

any compulsory reference under this act, or upon may state any reference by consent of parties where the special case, submission is or may be made a rule or order of any of the Superior Courts of Law 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.

judge to

tration at

of fact left to

6. If upon the trial of any issue of fact by a Power to judge under this act it shall appear to the judge direct arbithat the questions arising thereon involve matter time of trial, of account which cannot conveniently be tried when issues before him, it shall be lawful for him, at his dis- his decision. cretion, 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 hereinbefore 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.

This section refers to the trial of issues of fact by a judge under sect. 1 of this act, and there is no section which empowers a judge compulsorily to refer mere matters of account when they come before a jury at Nisi Prius. The effect of the award or certificate is the same as under sect. 3; but, as the judge is to proceed to try and dispose of any other matters in question not referred, the verdict must be taken in a special form subject to the award or certificate, so as to admit of such an indorsement on the postea as will authorise the signing of judgment and issuing execution.

7. The proceedings upon any such arbitration Proceedings

before and

power of such arbi

trator.

Power to send back to arbitrator.

Application to set aside the award.

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.

When there is no cause in court, see post, s. 17. See also for the practice, Chit. Arch. Pr. 1461, 8th ed.

8. In any case where reference shall be made to arbitration as aforesaid, 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 reconsideration and redetermination of the said arbitrator, upon such terms, as to costs and otherwise, as to the said court or judge may seem proper.

This is a very beneficial alteration of the law. It had become the practice in a submission of reference to insert a clause empowering the court to remit the matter referred to the reconsideration and determination of the arbitrator. It was doubted, however, whether that gave power to remit the matter back to the arbitrator a second time, where the words "from time to time" were not inserted: (Nickalls v. Warren, 6 Q. B. 615, Ex parte Huntley, 22 L. J. 277, Q. B.) This section does away with the necessity of such a clause in the submission where the reference is under any of the preceding sections, removes the above objection, and also enables the court to limit the remittal to any one or more of the matters in difference. As to the time within which the application to remit should be made, see Doe v. Cannell, 22 L. J. 321, Q. B.; Doe v. Holmes, 12 Q. B. 951; and Brown v. Collyer, 20 L. J. 426, Q. B.

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.

awards with

aside.

10. Any award made on a compulsory refer- Enforcing of ence under this act may, by authority of a judge, in period for on such terms as to him may seem reasonable, be setting them 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.

These two sections apply to compulsory references only. A question may arise upon the term compulsory: does it mean compulsory as against one party only, as where the reference is upon the application of one party under sect. 3, or does it mean compulsory as against both, where the judge under sect. 6 refers at his own discretion? In one sense both cases are compulsory, and that is the sense which the act seems to convey, for in sect. 5 the language is, "Upon any compulsory reference under this act, or upon any reference by consent," the term "compulsory" being used to mean other than by consent of the parties, i.e., of both parties.

The court has the power of enforcing the performance of an award by attachment, or if the award be for payment of money, by rule of court, under 1 & 2 Vict. 110, s. 18, ordering the party to pay it forthwith. The court, however, will not lend its aid to enforce performance of the award (by attachment or rule under 1 & 2 Vict. c. 110, s. 18) unless the duty to be performed or the money to be paid be distinctly ascertained by the award, but will leave the party to his remedy by action upon the award: (Graham v. Darcey, 6 C. B. 537.) In all cases in which the court refuses to enforce the performance of the award, and leaves the party to his remedy by action, the defendant in the action may defeat the award by any of the usual defences. For although a party cannot apply to set aside the award after the specified time in sect. 9, the act only says that, after the lapse of that time or the discharge of a rule to set aside the award, it shall be final between the parties; not that it shall be unimpeachable, but that such as it is, valeat quantum, it shall be final; not that it shall be binding upon the parties conclusively, but that it shall not be set aside upon motion. Upon motions to enforce the performance of awards.

If action

by one party

agreed to arbitration, court or

judge may stay proceedings.

difficulties were often started as to whether the time for moving to set aside the award had elapsed (Hare v. Fleay, 11 C. B. 472; 22 L. J. 249, C. P.), and to remove such objections, the last part of sect. 10 was introduced.

11. Whenever the parties to any deed or incommenced strument in writing to be hereafter made or after all have 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 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.

One effect of this section will be to defeat the breaches of faith, and the injustice often occasioned by the rule that the Superior Courts were not ousted of their jurisdiction by agreement of the parties, an agreement to refer being no bar to an