I, A. B., of

SCHEDULE C. (e)

Form of Transfer of Mortgage.

in consideration of the sum of

paid to me by C. Ú., of do hereby transfer to the said C. D., his executors, administrators, and assigns, a certain mortgage [or, if the deed be granted in Scotland, a certain assignation in security], number made by "The Commis

sioners for executing the [here name the special Act]", to bearing date

and

day of

for securing the sum of interest [or, if such transfer be by endorsement, the within security], and all my right, estate, and interest in and to the money thereby secured, and in and to the rates, rents, profits, or other moneys thereby assigned. In witness whereof I have hereunto set my hand and seal [or, if the deed be granted in Scotland, insert the testing clause required by the law of Scotland] this day of one thousand eight

hundred and

COMMON LAW PROCEDURE ACT, 1854.

17 & 18 VICT. c. 125 (ƒ).

AN ACT FOR THE FURTHER AMENDMENT OF THE PROCESS, PRACTICE, AND MODE OF PLEADING IN AND ENLARGING THE JURISDICTION OF THE SUPERIOR COURTS OF COMMON LAW AT WESTMINSTER, AND OF THE SUPERIOR COURTS OF COMMON LAW OF THE COUNTIES PALATINE OF Lancaster and DURHAM. [12TH August, 1854.]

Power to Court or Judge to direct Arbitration before Trial.

III. If it be made to appear, at any time after the issuing of the writ, to the satisfaction of the court or a judge, upon the application of either party, that the matter in dispute consists wholly or in part of matters of mere account, which cannot conveniently be tried in the ordinary way, it shall be lawful for such court or judge, upon such application, if they or he think fit, to decide such matter in a summary manner, or to order that such matter, either wholly

(e) See s. 77, ante, p. 288; also 27 & 28 Vict. c. 101, s. 50, ante, p. 171.

(f) See 27 & 28 Vict. c. 101, s. 41, ante. p. 162.

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 (g)], 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.

Special Case may be stated, and Question of Fact tried.

IV. 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 herein before provided, (h) 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 may state Special Case.

V. It shall be lawful for the arbitrator upon any compulsory reference under this Act, or upon any reference by consent of parties where the 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.

Power to Judge to direct Arbitration at time of Trial, when
issues of fact left to his Decision.

VI. If upon the 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, (g)] upon such terms as to costs, and otherwise, as such judge shall think reasonable; and the award or certificate

(9) 21 & 22 Vict. c. 74, s. 5, repeals so much of this Act as enables the judge to refer a cause to a county court judge.

(h) See s. 1 of the Act.

of such referee shall have the same effect as herein before provided as to the award or certificate of a referee before trial; (i) 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.

Proceedings before and Power of such Arbitrator.

VII. The proceedings upon any such arbitration as aforesaid shall, except otherwise directed hereby or by the submission or document authorizing 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.

Power to send back to Arbitrator.

VIII. 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 re-consideration and re-determination of the said arbibitrator, upon such terms, as to costs and otherwise, as to the said court or judge may seem proper.

Application to set aside the Award.

IX. 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.

Enforcing of Awards within Period for setting them aside.

X. 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.

XI. If action commenced by one party after all have agreed to arbitration, court or judge may stay proceedings.

XII. On failure of parties or arbitrators, judge may appoint single arbitrator or umpire.

(i) See s. 3, supra.

1

XIII. When reference is to two arbitrators, and one party fail to appoint, the other party may appoint arbitrator to act alone. XIV. Two arbitrators may appoint umpire.

Award to be made in Three Months, unless Parties or Court enlarge time.

XV. The arbitrator acting under any such document or compulsory order of reference as aforesaid, or under any order referring the award back, shall make his award under his hand, and (unless such document or order respectively shall contain a different limit of time) within three months after he shall have been appointed and shall have entered on the reference, or 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.

XVI. Rule to deliver possession of land pursuant to award to be enforced as a judgment in ejectment.

XVII. Agreement or submission in writing may be made rule of court, unless a contrary intention appear.

APPENDIX B.

CONSTRUCTION AND REPAIR OF ROADS.

WILLIAM NETHERSOLE, ESQ., M.I.C.E., has kindly contributed the following paper on the subject of road construction:

In the engineering sense of the term, a road is a surface of a certain width capable of being traversed by wheel vehicles, and differs from a railway or tramway in allowing passage over all its parts and in any direction.

In the preparation of the roadway, and the selection of its route, the object sought is economy of the motive power used in transport; and this object is promoted by easy inclines and a hard and smooth surface. To attain the minimum expenditure of motive power in transport between two points, the route of the road ought to be a straight line in a plane passing through the two given points. Since, however, to carry the road on one plane would cause too great an outlay in the construction of the works except in cases where the contour of the ground is very favourable, a road usually undulates or is carried over a series of planes inclined to suit within certain limits the natural undulations. The general rate of inclination of these planes is called the ruling gradient, and its maximum is determined by the nature of the road surface.

It is of great importance that the ruling gradient should be sufficiently flat, so as not to allow of a vehicle rolling down by its own gravity. When the amount of the resistance of vehicles to traction along a level part of the road is found, the limit of the gradient of stability is easily determined, and is that angle whose tangent is the resistance on the level divided by the weight of the vehicle. According to Telford, of the average of vehicles drawn over broken stone roads, this resistance is about one-thirtieth of the weight, and it is upon this assumption that the ruling gradient is usually restricted to one in thirty. Where the surface of the road is made harder and smoother than ordinary to ensure stability, the ruling gradient may be less. Mahan recommends that gradients, as a rule, should be kept as low as one in thirty-three. M. Dumas recommends one in fifty as a maximum. M. Dupuit gives for metalled roads one in thirty-three, and for pavements one in fifty. Sir John McNeil gives one in forty as a maximum slope; and this