ARBITRATION.

The following are some of the effects and consequences of a submission framed as above :

In case of the death, refusal to act or incapacity of any arbitrator appointed by either party, such party will be entitled to substitute a new arbitrator.-Section 13 of the Common Law Procedure Act, 1854 (in this note referred to as "the Act ").

If one party fail to appoint an arbitrator, either originally or by way of substitution as aforesaid, for seven clear days after the other 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 by him will be

binding on both parties as if the appointment had been by consent. However the Court or a judge may revoke such appointment, on such terms as shall seem just.-Section 13 of the Act; and see Gillett v. Thornton, 19 Eq. 599.

If the arbitrators do not appoint an umpire, then either party may serve the arbitrators with a written notice to appoint an umpire; and if, within seven clear days after such notice shall have been served, no umpire be appointed, any judge of the High Court, upon summons to be taken out by the party having served such notice, may appoint an umpire. Such umpire will have the like power to act in the reference, and make an award as if he had been appointed by consent of all parties. -Section 12 of the Act.

The two arbitrators may appoint an umpire at any time within the period during which they have power to make the award, unless they are called upon by notice as above mentioned to make the appointment sooner.-Section 14 of the Act.

The arbitrator acting under such a submission as above must make his award under his hand 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 either party, but the parties may consent in writing to enlarge the term for making the award; and the Court or any judge thereof, for good cause to be stated in the rule or order for enlargement, may from time to time enlarge the time for making the award.-Sec. 15 of the Act. See L. R. 2 Q. B. 523. The Court has jurisdiction to enlarge the term, notwithstanding that the time for making the award has elapsed, and has in some cases exercised it. In re Warner and Powell's Arbitration, 3 Eq. 261; Lord v. Lee, 37 L. J. Q. B. 121; Watson v. Beavan, 8 W. R. 612.

In any case where an umpire shall have been appointed, he may enter upon 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 that they cannot agree.-Section 15 of the Act.

The arbitrator may state his award as to the whole or any part of it in the form of a special case for the opinion of the Court.-Section 5 of the Act. The authority of an arbitrator appointed under an agreement as above, providing that the submission shall be made a rule of Court, is irrevocable, except by leave of the Court; and the arbitrator is bound to proceed with the reference, notwithstanding any such revocation, and to make

D

Prec. II.

Prec. II.

his award, although the person making the revocation does not afterwards attend the reference.-3 & 4 Will. IV., c. 42, s. 39.

Hence the importance of expressly providing that the submission shall be made a rule of Court. In the absence of such a provision, the submission may be revoked, notwithstanding Section 17 of the Act, which is as follows: "Every agreement or submission to arbitration by consent, whether by deed or instrument in writing not under seal, may be made a rule of any one of the Superior Courts of Law or Equity at Westminster, on the application of any party thereto, unless such agreement or submission contain words purporting that the parties intend that it should not be made a rule of Court, &c."--Mills v. Bayley, 2 H. & C. 36; Thompson v. Anderson, 9 Eq. 523; Re Rouse v. Meier, L. R. 6 C. P. 212. See also Randall v. Thompson, 1 Q. B. Div. 748; and Russell on Arbitration, 145.

"The application to make a submission a rule of Court is by motion, which must be on notice unless the submission provides that either party may make it an order of the Court without notice to the other party; and the execution of the submission must be proved, unless the application is consented to."-Daniel Ch. Pr. 1902.

The object of inserting the words, "and such party may instruct counsel to consent thereto for the other parties" in Clause 17, supra, p. 32, is to avoid the necessity of having to prove the execution of the submission, and give notice to the other party of the application to the Court.

It is expedient to give the arbitrator power to award costs, for in the absence of express authority he has no power to adjudicate respecting them (Russell on Arbitration, 354); and each party must bear his own expenses of the reference, and is liable to half the costs of the award; nor in the absence of express authority can the arbitrator order the costs to be taxed as between solicitor and client. — Ibid. 360.

The Court or a judge may at any time and from time to time remit the matters referred or any of them to the reconsideration and redetermination of the arbitrator upon such terms as to costs and otherwise as to the Court or judge may seem proper.-Section 8 of the Act. Warner and Powell's Arbitration, 3 Eq. 261. See also Dan. Ch. Pr. 1905. An arbitrator who has signed his award is functus officio, and cannot even correct a clerical error. Hence the value of the above

section.

The proceedings upon any such arbitration shall 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.-Section 7 of the Act. It was at one time doubted whether this section applied in case of an arbitration upon a submission in writing, but there seems now no doubt that it does.- Rouse v. Meier, L. R. 6 C. P. 221. See also Russell on Arbitration, 170. Under this section, coupled with Section 40 of 3 & 4 Will. IV., c. 42, the attendance of witnesses and the production of documents can be compelled. -In re Ackary, 3 Ch. Div. 125.

By Lord Brougham's Act of 1851, to amend the Law of Evidence, it is provided that " Every judge, officer, commissioner, arbitrator, or other person now or hereafter, having by law or by consent of parties authority to hear, receive and examine evidence, is hereby empowered to ad

minister an oath to all such witnesses as are legally called before them respectively." 14 & 15 Vict. c. 99, s. 16.

By Section 11 of the Act, it is provided that "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, 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 is brought or any judge thereof, on application by the defendant or defendants, 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 the agreement; and that the defendant was at the time of bringing 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, to make a rule or order staying all proceedings in such action on such terms as to costs or otherwise, as to such Court or judge may seem fit. Provided always that such rule or order may at any time afterwards be discharged or varied as justice may require.' See the cases of Willesford v. Watson, 8 Ch. 473; Gillett v. Thornton, 19 Eq. 599; Randall v. Thompson, 1 Q. B. Div. 748.

By Section 72 of the Companies Act, 1862, it is provided that "Any company under this Act may from time to time, by writing under its common seal, agree to refer, and may refer to arbitration, in accordance with The Railway Companies Arbitration Act, 1859,' any existing or future difference, question, or other matter whatsoever, in dispute between itself and any other company or person; and the companies parties to the arbitration may delegate to the person or persons to whom the reference is made, power to settle any terms, or to determine any matters capable of being lawfully settled or determined by the companies themselves, or by the directors or other managing body of such companies."

And by Section 73 of the same Act, it is provided that " All the provisions of The Railway Companies Arbitration Act, 1859,' shall be deemed to apply to arbitrations between companies and persons in pursuance of this Act; and in the construction of such provisions, 'the companies' shall be deemed to include companies authorised by this Act to refer disputes to arbitration."

The power given by these sections is but seldom exercised. The submission must, it will be observed, be under seal. A reference in accordance with "The Railway Companies Arbitration Act, 1859," has this advantage, namely, that it ousts the jurisdiction of the Courts. See Watford, &c., Ry. Co. v. London & N. W. Ry. Co., 8 Eq. 231.

The Act of 1859 contains a simple and complete code of regulations as to references so made. It will be found at full length in Russell on Arbitration, p. 860, and in Lathom Brown, 434. It does not, however, enable the arbitrator to award costs as between solicitor and client; and though the submission can be made an order of Court on the application of any party interested, yet there is no provision dispensing with notice to the other parties. It is well, therefore, to provide for these matters in the submission. The above clause (p. 32) can readily be altered, so as to apply to a submission in accordance with "The Rail

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way Companies Arbitration Act, 1859." A submission may be so framed that no action can be brought until after there has been a reference. See Scott v. Avery, 5 H. L. Cas. 811; 25 L. J. Ex. 308; Edwards v. Aberavon, Sc., Society, 1 Q. B. Div. 563; Dawson v. Fitzgerald, 1 Ex. Div. 237.

PRECEDENT III.

Prec. III. AGREEMENT FOR SALE to COMPANY of FOREIGN MINES. Premises to be inspected on behalf of Company. Consideration : Cash, Shares, and Debentures. Vendor to guarantee 10 per cent. on Capital for three Years. Vendor to pay Preliminary Expenses.

Parties.

A., of

Recitals.

Agreement

for sale.

Inspection to be made on behalf of the company.

--

AN AGREEMENT made the
day of between
(hereinafter called the vendor), of the first part,
Company, Limited (hereinafter called the com-

and the
pany), of the other part.

is

WHEREAS the nominal capital of the company 200,000., divided into 20,000 shares of 107. each; AND WHEREAS the company has been formed, among other things, for the purpose of acquiring the property hereinafter described:

Now IT IS HEREBY AGREED AS FOLLOWS:

1. The vendor shall sell and the company shall purchase : All and singular the lands, mills, orehouses, mines, and mining rights, hereditaments and privileges specified in the first schedule hereto: And also all the plant, machinery, stock, implements, and effects in or belonging to the said mines, mills, and premises :

2. The said premises shall be forthwith inspected by some competent person to be appointed by the company, and unless such inspection shall have been made and the result thereof be declared satisfactory by the directors of the company before the next, this agreement shall as from that day become void, and in such case no claim for costs, damages or otherwise shall, save as hereinafter provided, accrue either to the vendor or to the company in respect thereof (a).

day of

(a) This is a clause which, with more or less modification, is very commonly adopted. Compare with the clause in agreement of The Western of Canada Oil, &c., Co., Carling's Case, 1 Ch. Div. 116.

3. The vendor shall make out to the satisfaction of the Prec. III. company or its agent a good title, free from incumbrances, Title of according to the laws in force in the state of

in the vendor. United States of America, to the said premises; And, before Transfer. the day of next, shall transfer the same premises

or procure the same to be transferred to the company or its

nominee or nominees.

4. The consideration for the said sale shall be the sum of Consideration:

and deben

100,0007., whereof 50,000l. shall be paid and satisfied by the shares, cash, allotment to the vendor or his nominees (b) on the

day of tures.

next, of 6,250 shares in the company of 107. each, upon each of which the sum of 81. shall be credited on the books of the company as having been paid-up. The said 5,000 shares shall be numbered in the books of the company with the numbers to inclusive (c).

(b) See supra, p. 11.

(c) As to giving the number, see supra, p. 10.

;

sum of 100,000l.,
day of

As to payment

next,

of cash and issue of debentures.

5. 20,0007., further part of the said shall be paid to the vendor on the in cash and the residue of the said sum of 100,0007., namely, 30,0007., shall be satisfied on that day by the issue to the vendor of 600 debentures (d) for 50l. apiece, such debentures to be in the form set forth in the schedule hereto.

(d) A vendor is generally desirous that the debentures should be "to bearer;" they are more saleable. For forms of debentures, &c., see Index, under "Debentures." The form selected may be with or without provisions for drawings on redemption.

profits, and

outgoings.

6. Possession of the said premises shall be given to the Possession, company on the day of next, and the vendor shall, in the meantime, keep the same in good repair and condition, and shall work the said mines, mills, and premises in as full and effectual a manner as the same has been hitherto worked. As from the 1st day of last the said premises, and the produce of the said mines and mills, shall be deemed to have belonged to the company, and as from that day all the expenses of and incident to the working thereof shall be borne. and paid by the company. The vendor shall pay all expenses and outgoings in respect of the said premises and the working