depth dug, with a view to a variation in the price to be charged. There were likewise other matters as to which similar evidence was admitted; but it was submitted to their lordships that all this was beyond the power of the arbitrator, and that according to the contract the different kinds of works were to be executed at specified prices, in accordance with the quantity of the work done. Rule granted.

CHAPTER IX.

MAKING SUBMISSION A RULE OF COURT.

Ir will naturally be supposed that as arbitration came more generally into practice as a means of settling disputes, the parties to a reference were not always quite so willing to take up the award, as they were to enter on the reference. As the remedy of the arbitrator in cases of that kind was to withhold his award until his charges were paid, he might, if the parties were so disposed, hold it for ever, and likewise wait that length of time for his fees. Under these circumstances, and in consequence of them, a custom rose in the reign of Charles II. of making the submission to arbitration a rule of Court. We have previously spoken a good deal about making this submission a rule of Court, without either explaining what it means, or why it was

originally called into action. Making a submission a rule of Court, means putting all the matters referred by the submission, under the power and jurisdiction of any of Her Majesty's Superior Courts of Justice. The object originally was, to render any misconduct under the reference, or any refusal of the parties to obey the award, a contempt of Court, so that in either of those cases the Court had power and jurisdiction over both the parties to the reference, and also over the subject-matter of the award. This custom, like all others, grew in proportion as the necessity for it was appreciated, and so finally, as the outcome of it, we have the various statutes bearing upon this subject that have from time to time been passed by the legislature. It has been said that the Courts have no power over the award until the submission has been made a rule of Court; they can neither enforce the award, set it aside, nor refer it back. The exception to this powerlessness of the Court is under Common where the reference is compulsory under the Common Law Procedure Law Procedure Act, 1854, in which case the Court Act, 1854.

Compulsory reference

Verbal sub

mission cannot be made rule of Court.

has power to deal with the award under the statute, and the Judge's order to refer need not be made a Rule of Court (Bennett v. Watson, 29 L. J. Ex. 357). A verbal submission to arbitration cannot be made a rule of Court, owing to the impossibility of correctly ascertaining the exact agreement between the parties to the reference. A submission can be made a rule of Court by either of the parties, and at any time either before or after the award has been published, and whether the object of the application is to enforce it or set it aside; and it is no objection

to the application that the party making it has not got the award in his possession. The submission should not, however, be made a rule of Court until necessity for taking that step arises, otherwise the costs incurred will not be allowed on taxation, and if there is no actual necessity for the order at the time of application, it may be dismissed with costs (Carter v. Burial Board of Tonge, 5 H. & N. 523). The mode of application may be by motion, and the motion must be made on the original submission: if that is lost, or the arbitrator refuses to give it up without payment of an exorbitant fee, the Court will allow a copy of it, verified by affidavit, to be put in, and will make that a rule of Court (Parker v. Bach, 17 C. B. 512). The application may be made at any time, and it is not necessary for it to be made in term time; but a vacation Judge can grant the order, which will be drawn up by the proper officer, in chambers, on production of the motion paper signed by counsel, together with the other necessary documents (2 Archb. Pr. 14th ed. 1598). If the opposite party have the submission in his possession, the Court will grant a rule calling on him to produce it, in order that it may be made a rule of Court. If the time for making the award has been enlarged, and the award has been made within such enlarged time, the enlargement-or all of them, if more than one must be made a rule of Court, along with the submission, in all cases where it is intended to make application to enforce the award, although this practice is not necessary where it is only desired to set it aside (Gripe v. Wilkie, 20 W. R. 112). It is

necessary for the submission to be properly stamped before making application for it to be made a rule of Court, otherwise no order will be made on it, neither will it be received by the officers appointed for the purpose. If the submission is silent as to which of the Divisions of the High Court it is intended to make it a rule, it may be made a rule of either; but if the submission provides that it shall be made a rule of a particular Division, the proceedings consequent on such direction must take place in that particular Division and no other.

PART II.-THE ARBITRATOR AND

UMPIRE.

CHAPTER X.

THE ARBITRATOR.

arbitrator.

It may be stated as a general principle of law, that Who may be any person who can enter into a binding contract may be appointed an arbitrator. In some of the old law books such as "Bacon's Abridgment, Arb. D," it is laid down that lunatics and idiots could be appointed to act in that capacity, and it appears that people labouring under these disadvantages would even now be eligible to act as arbitrators, but only in cases where the submission is by consent, and the parties to the appointment act with a full knowledge of the facts of the case. The appointment of arbi- How trator may be made in any way that testifies to the appointed. intention of the parties, and need not necessarily be

in writing. The consent of the arbitrator to act is Must consent. necessary to the validity of the appointment (Ring

land v. Knowles, 33 L. J. C. P. 25). An arbitrator Should have no personal should have no personal interest in the matter in interest. dispute; but if he have such interest, and the other party consent to his appointment, with a full knowledge of the fact, the award will be valid (Johnson v. Cheape, 5 Dowl. 247). An award will not be set aside on the ground that the arbitrator is a party to