C.L.P. Act, Section 67. 17 Vic. No. 21, Sched. B. Goods sold. Work and Money received. Account stated. For an estate sold. For goodwill. For the use of a THIRD SCHEDULE. STATEMENTS OF CAUSES OF ACTION. On contracts. 1. Money payable by the defendant to the plaintiff for [these words money payable, &c., should precede money counts like 1 to 13 but need only be inserted in the first] goods bargained and sold by the plaintiff to the defendant. request. 2. Work done and materials provided by the plaintiff for the defendant at his 3. Money lent by the plaintiff to the defendant. 4. Money paid by the plaintiff for the defendant at his request. 5. Money received by the defendant for the use of the plaintiff. 6. Money found to be due from the defendant to the plaintiff on accounts stated between them. 7. A messuage and lands sold and conveyed by the plaintiff to the defendant. 8. The goodwill of a business of the plaintiff sold and given up by the plaintiff to the defendant. 9. The defendant's use by the plaintiff's permission of messuages and lands house and land. of the plaintiff. For the use of a fishery. For hire of goods, &c. For freight. For demurrage. Payee against maker of note. dant. 10. The defendant's use by the plaintiff's permission of a fishery of the plaintiff. 11. The hire of [as the case may be] by the plaintiff let to hire to the defen 12. Freight for the conveyance by the plaintiff for the defendant at his request of goods in ships. dant. 13. The demurrage of a ship of the plaintiff kept on demurrage by the defen- 14. That the defendant on the Indorsee against 15. That one A. on &c. [date] by his promissory note now overdue promised [two] months after date, and the defendant indorsed the same to the plaintiff, and the said note was duly presented for payment and was dishonoured, whereof the defendant had due notice but did not pay the same. Drawee against 16. That the plaintiff on &c. [date] by his bill of exchange now overdue directed acceptor of bill. to the defendant required the defendant to pay to the plaintiff £ [two] months after date, and the defendant accepted the said bill but did not pay the Payee against drawer. Breach of pro sa me. 17. That the defendant on &c. [date], by his bill of exchange directed to A., required A. to pay to the plaintiff £ [two] months after date, and the said bill was duly presented for acceptance and was dishonoured, of which the defendant had due notice but did not pay the same. 18. That the plaintiff and defendant agreed to marry one another and a reasonmise of marriage able time for such marriage has elapsed, and the plaintiff has always been ready and willing to marry the [defendant yet the defendant has neglected and refused to marry the plaintiff. Breach of promise of marriage. Warranty of a horse. For not loading pursuant to charter-party. 19. That the plaintiff and defendant agreed to marry one another on a day now elapsed, and the plaintiff was ready and willing to marry the defendant on that day, yet the defendant neglected and refused to marry the plaintiff. 20. That the defendant by warranting a horse to be then sound and quiet to ride sold the said horse to the plaintiff yet the said horse was not then sound and quiet to ride. 21. That the plaintiff and the defendant agreed by charter-party that the ant should be allowed ten days for loading and ten for discharge and ten days for necessary on his part to entitle him to have the agreed cargo loaded on board the C.L.P. Act, said ship at R., and that the time for so doing has elapsed, yet the defendant made Sch. 3. default in loading the agreed cargo. 22. That the plaintiff let to the defendant a house, No. 40, George-street, Upon a lease for Sydney, for seven years to hold from the £ day of A.D. at rent. quarters are due and unpaid. a year payable quarterly of which rent 23. That the plaintiff by deed let to the defendant a house, No. 40, George- Upon a covestreet, Sydney, to hold for seven years from the day of A.D. and the defendant by the said deed covenanted with the plaintiff well and substantially to repair the said house during the said term [according to the covenant] yet the said house was during the said term out of good and substantial repair. For wrongs independent of contract. nant to repair. 24. That the defendant broke and entered certain land of the plaintiff called Trespass to land. the Big Field and depastured the same with cattle. Assault battery 25. That the defendant assaulted and beat the plaintiff gave him into custody Asse to a policeman and caused him to be imprisoned in a Police Office. imprisonment. 26. That the defendant converted to his own use, or wrongfully deprived the Wrongful conplaintiff of the use and possession of the plaintiff's goods, that is to say, iron, hops, version of goods. household furniture [or as the case may be]. Wrongful deten 27. That the defendant detained from the plaintiff his title deeds of land called tion of property, Belmont in the county of that is to say [describe the deeds]. &c. 28. That the plaintiff was possessed of a mill, and by reason thereof was entitled Diverting water to the flow of a stream for working the same, and the defendant by cutting the bank from a mill. of the said stream diverted the water thereof away from the said mill. 29. That the plaintiff was the first inventor of a certain new manufacture that Infringement of is to say of certain improvements in the manufacture of sulphuric acid" for which he a patent. obtained letters patent for the term of fourteen years from the day of A.D. subject to a condition that the plaintiff should within six calendar months cause to be enrolled an instrument in writing particularly describing the nature of his said invention, and the plaintiff did within the time prescribed fulfil the said condition, and the defendant during the said term did infringe the said patent right. 30. That the defendant falsely and maliciously spoke and published of the Defamation plaintiff the words following, that is to say," he is a thief," character. [if there be any special damage here state it with such reasonable particularity as (a) Slander. to give notice to the defendant of the particular injury complained for instance] whereby the plaintiff lost his situation as overseer in the employ of A. 31. That the defendant falsely and maliciously printed and published of the (b) Libel. plaintiff in a newspaper called " the words following, that is to say, he is a regular prover under bankruptcies," the defendant meaning thereby that the plaintiff had proved, and was in the habit of proving fictitious debts against the estates of bankrupts with the knowledge that such debts were fictitious. PLEAS. Pleas in action on contracts. 32. That he was never indebted as alleged. [This plea is applicable to declarations like those numbered 1 to 13.] 33. That he did not promise as alleged. Denial of debt. Denial of con [This plea is applicable to other declarations on simple contracts not on bills tract. and notes such as those numbered 18 to 21. It would be unobjectionable to use " did not warrant or any other appropriate denial.] 34. That the alleged deed is not his deed. of Denial of deed. 35. That the alleged cause of action did not accrue within six years [state Statute of the period of limitation applicable to the case] before this suit. Limitations. 36. That before action he satisfied and discharged the plaintiff's claim by Payment. payment. 37. That the plaintiff at the commencement of this suit was and still is indebted Set-off. to the defendant in an amount equal to the plaintiff's claim for [here state the cause of set-off, as in a declaration, see forms, ante], which amount the defendant is willing to set off against the plaintiff's claim. 38. That after the alleged claim accrued, and before this suit, the plaintiff by Release. deed released the defendant therefrom. Pleas in actions for wrongs independent of contract. 39. That he is not guilty. 40. That he did what is complained of by the plaintiff's leave. 41. That the plaintiff first assaulted the defendant, who thereupon necessarily committed the alleged assault in his own defence. 42. That the defendant, at the time of the alleged trespass, was possessed of land the occupiers whereof for twenty years before this suit enjoyed, as of right and without interruption, a way on foot and with cattle from a public highway over the said land of the plaintiff to the said land of the defendant, and from the said land of the defendant over the said land of the plaintiff to the said public highway at all times of the year, for the more convenient occupation of the said land of the defendant, and that the alleged trespass was a use by the defendant of the said way. 43. That the defendant, at the time of the alleged trespass, was possessed of land the occupiers whereof for thirty years before this suit enjoyed, as of right and without interruption, common of pasture over the said land of the plaintiff for all their cattle, levant and couchant, upon the said land of the defendant at all times of the year as to the said land of the defendant appertaining, and that the alleged trespass was a use by the defendant of the said right of common. REPLICATIONS. 44. The plaintiff joins issue upon the defendant's 1st, 2nd, &c., pleas. 45. The plaintiff as to the second plea, says [here state the answer of the plea as in the following forms]. 46. That the alleged release is not the plaintiff's deed. 47. That the alleged release was procured by the fraud of the defendant. 48. That the alleged set-off did not accrue within six years before this suit. 49. That the plaintiff was possessed of land whereon the defendant was trespassing and doing damage, whereupon the plaintiff requested the defendant to leave the said land, which the defendant refused to do, and thereupon the plaintiff gently laid his hands on the defendant, in order to remove him, doing no more than was necessary for that purpose, which is the alleged first assault by the plaintiff. 50. That the occupiers of the said land did not for twenty years before this suit enjoy, as of right and without interruption, the alleged way. NEW ASSIGNMENT. 51. The plaintiff, as to the and pleas, says that he sues, not for the trespasses therein admitted, but for trespasses committed by the defendant in excess of the alleged rights, and also in other parts of the said land, and on other occasions and for other purposes than those referred to in the said pleas. [If the plaintiff replies and new assigns, the new assignment may be as follows] 52. And the plaintiff, as to the sues, not only for the trespasses in those pleas admitted, but also for, &c. 53. And the plaintiff, as to the sues, not for the trespasses in the and pleas, further says that he pleas [the pleas not replied to] admitted, but for the trespasses, in the pleas [the pleas replied to] admitted, and also for, &c. S. 1. ARBITRATION ACT 1902. TABLE. Showing how the sections of Acts consolidated have been dealt with. An Act to consolidate the enactments relating to BE E it enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Legislative Council and Legislative Assembly of New South Wales in Parliament assembled, and by the authority of the same, as follows :- 1. This Act may be cited as the " Arbitration Act, 1902." Short title. 2. The Acts mentioned in the First Schedule are, to the Repeal. extent therein expressed, hereby repealed. 3. In this Act, unless the context or subject-matter other- Interpretation. wise indicates or requires,— 44 Court" means the Supreme Court or a Judge thereof. Judge " means a Judge of the Supreme Court. "Rules of Court "m: ns rules made as hereinafter provided. "Submission" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not. A submission to arbitration is distinguished from a mere reference to a valuer to fix a price: see Re John Fenwick v. Port Jackson S.S. Co., (1897) 18 N.S.W.R. 405; 14 W.N. 85. 55 Vic. No. 32, s. 27. S. 4. Effect of submission. References by consent out of Court. 4. A submission, unless a contrary intention is expressed therein, shall be irrevocable, except by leave of the Court or a 55 Vic. No. 32, Judge, and shall have the same effect in all respects as if it had s. 1. Provisions implied in submissions: Ibid. s. 2. Power to stay proceedings submission. Ibid. s. 3. been made an order of Court. Submission. Is a written agreement as defined: s. 3, supra. Irrevocable.-See as to this re Smith and Nelson's Arbitration, 25 Q.B.D. 545. Leave to revoke.-See James v. Attwood, 7 Scott, 841; Clarke v. Stocken, 3 Scott 90; Scott v. Vansandau, 1 Q.B. 102; Hart v. Duke, 32 L.J.Q.B. 55. Where circumstances have made the arbitrator an interested party, leave to revoke may be given: Re Baring Bros., 61 L. J.Q.B. 704 ; see Re Donkin and Leeds Canal Co., 9 Times R. 192. But that is where the agreement was to refer to a particular arbitrator named. 5. A subinission, unless a contrary intention is expressed therein, shall be deemed to include the provisions set forth in the Second Schedule to this Act, so far as they are applicable to the reference under the submission. Submission means submission whether made before or after the Act: Re Williams and Stepney Arbitration, [1891] 2 Q.B. 257 ; Abbott v. Lion Fire Insurance Co., (1894) 11 W.N. 3. 6. If any party to a submission, or any person claiming where there is a through or under him, commences any legal proceedings in any Court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that Court to stay the proceedings, and that Court or a Judge if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings. The application to stay will usually be by summons before a judge. * * * any step.-Applying for security for costs is a step: Adams v. Cattley, 66 L.T. 687; so is issuing a summons for discovery: Chappell v. North, (1891) 2 Q.B. 252. The affidavit in support of the summons must follow the terms of the section and shew defendant's readiness and willingness to arbitrate. Costs are in the discretion of the judge: s. 24 (post). Discretion of the Court.-Prima facie the Court will act upon the agreement; the plaintiff must show reasons against the reference: Hodgson v. Railway Passengers Assurance Co., 9 Q.B.D. 188. But the Court has a discretion and must exercise it : Re Carlisle, 44 Ch. D. 200; Lyon v. Johnson, 40 Ch. D. 579. Staying proceedings.—A clause in a policy of insurance making arbitration a condition precedent to liability is valid, and an action will be stayed: Trainor v. Phænix Fire Co., 65 L.T. 825. Such a clause if pleaded is an answer to the action : Tait & Co. v. City Mutual Insurance Co., (1900) 21 N.S.W.R. 317; 17 W.N. 196. The Court may stay an action by a person refusing to appoint an arbitrator: Manchester Ship Canal v. Pearson, 48 W.R. 689. There must be a valid subsisting submission, or a stay will not be granted: Deutsche Springtoff, &c. v. Briscoe, 20 Q.B.D. 177. And the dispute must be within the arbitration clause: L. & N. W. & G. W. Railways v. Billington, (1899) A.C. 79. See also Hewitt v. Municipality of Broken Hill, (1893) 10 W.N. 85. The fact that a named arbitrator is an interested party may be ground for refusing a stay: Nuttall |