Revised Statutes, 1859, CAP. XLII., p. 460. 93. AN ACT respecting WRITTEN PROMISES and ACKNOWLEDGMENTS of LIABILITY. Her Majesty, by and with the advice and consent of the Legislative Council and Assembly of Canada, enacts as follows: the 1st Janua (1.) This act shall operate and apply retrospectively to Act to apply the first day of January, one thousand eight hundred on and from and fifty-two, as well as prospectively, and shall be ry, 1852. construed as if it had been passed on the said first day of January, one thousand eight hundred and fifty-two. 13, 14 V., c. 61, s. 8. case out of (2.) In all actions: 1. Of account, and upon the case Written memother than such accounts as concern the trade of mer- orandum rechandise between merchant and merchant, their fac-quired to take tors or servants. 2. In all actions on simple contract, statute. or of debt grounded upon any lending or contract without specialty, and in all actions of debt for arrearages of rent, no acknowledgment or promise by words only shall be deemed sufficient evidence of a new or continuing contract whereby to take any case out of the operation of the act, passed in England in the twenty-first year of the reign of King James the First, respecting such actions as aforesaid, or to deprive any party of the benefit thereof, unless such acknowledgment or promise be made or contained by or in some writing to be signed by the party chargeable thereby. 13, 14 V., c. 61, s. 1. Case of two or tractors. (3.) Where there are two or more joint contractors, or executors or administrators of any contractor, no such more joint conjoint contractor, executor, or administrator shall lose the benefit of the said act, so as to be chargeable in respect or by reason only of any written acknowledgment or promise, made and signed by any other or others of them, or by reason of any payment of any principal or interest made by any other or others of them. 13, 14 V., c. 61, s. 1. (4.) In actions commenced against two or more such Where plainjoint contractors, executors, or administrators, if it ap- bir maasto tiff be pears at the trial, or otherwise, that the plaintiff, though one or more barred by the said act of King James the First, defendants but or by this act, as to one or more of such joint con- not as to all. tractors, or executors, or administrators, is nevertheless entitled to recover against any other or others of the defendants, by virtue of a new acknowledgment, prom Indorsement, the payee not ise, or payment, as aforesaid, judgment shall be given and costs allowed for the plaintiff, as to such defendant or defendants against whom he may recover, and for the other defendant or defendants against the plaintiff. 13, 14 V., c. 61, s. 1. (7.) No indorsement or memorandum of any payment, &c., made by written or made upon any promissory note, bill of exto take a note, change, or other writing, by or on behalf of the party &c., out of the to whom such payment has been made, shall be deemed sufficient proof of such payment, so as to take the case out of the operation of the said statute of King James. 13, 14 V., c. 61, s. 3. statute. Statute to apply to set-off. As to ratifica tion of promise made during non-age. As to representation regarding the character, credit, &c., of a third party. Statute of (8.) The said act of King James and this act shall apply to the case of any debt on simple contract, or of the nature herein before mentioned, alleged by way of set-off on the part of any defendant, either by plea, notice, or otherwise. 13, 14 V., c. 61, s. 4. (9.) No action shall be maintained whereby to charge any person upon any promise, made after full age, to pay any debt contracted during infancy, or upon any ratification, after full age, of any promise or simple contract made during infancy, unless such promise or ratification be made by some writing, signed by the party to be charged therewith. 13, 14 V., c. 61, s. 5. (10.) No action shall be brought whereby to charge any person upon or by reason of any representation or assurance made or given concerning or relating to the character, conduct, credit, ability, trade, or dealings of any other person, to the intent or purpose that such other person may obtain money, goods, or credit thereupon, unless such representation or assurance be made in writing, signed by the party to be charged therewith. 13, 14 V., c. 61, s. 6. (11.) The seventeenth section of an act passed in Engfrauds extend- land, in the twenty-ninth year of the reign of King ed to contracts Charles the Second, intituled, An act for the prevention for goods to be delivered at a of frauds and perjuries, shall extend to all contracts future time. for the sale of goods of the value of ten pounds currency and upwards, notwithstanding the goods may be intended to be delivered at some future time, or may not at the time of such contract be actually made, procured, or provided, or fit or ready for delivery, or although some act may be requisite for the making or completing thereof, or rendering the same fit for delivery. 13, 14 V., c. 61, s. 7. CHAPTER II. ARBITRATION. NOTES. 94. As a general rule, any matters in difference may be referred to arbitration which do not involve a criminal charge. If an action is pending, the cause may be referred, by consent of the parties, any time before trial by a judge's order or rule of court, and at the trial by an order of nisi prius. Sometimes also the matter in dispute on a rule may be referred. An attorney has an implied power to refer his client's cause to arbitration, unless expressly prohibited; but the client has a remedy against him if he acts in an improvident manner. Some doubt has, however, been lately cast upon this power of attorney. A barrister also has power to bind his client in the same way. [Though the decision in Swinfen v. Swinfen, where counsel compounded a cause at the trial, without consent of his client, which composition was overruled, may raise a question as to the right to refer without such consent.] Care should be taken to reserve to the arbitrator the powers of a judge at nisi prius as to costs, amendment, &c. A parol agreement to refer cannot be made a rule of court and enforced, though an action may lie for not agreeing to refer. One partner has no power to bind another by a deed of submission. Differences between A on one side and B and C on the other mean "jointly and severally." A clause may be inserted that the death of either party shall not revoke the submission. The effect of submission or agreement to refer may be to oust the jurisdiction of courts of law, and it is quite legal for parties to do so, and in many cases the court will stay proceedings if an action is brought. A submission may be made a rule of court, though the proceedings under it have been void. An order of reference made by a judge may be made a rule of court; but neither a submission nor a judge's order of reference is usually made a rule of court until it becomes necessary to enforce or set aside the award. An arbitrator has no power to alter the terms of the submission; but the parties may, by consent, revoke or alter it before it is made a rule of court. 95. If there is a default of an arbitrator, either party may apply to a judge to appoint one. Revocation is express or implied. Application to rescind is too late after the award is made. The authority of any arbitrator or umpire, appointed by or in pursuance of a rule of court or judges, or order of nisi prius, in any action brought-or, in pursuance of any submission to reference containing an agreement that such submission shall be made, a rule of any court of record-is not revocable, except by leave of the court by which such rule or order may or shall be made, or by leave of a judge; and the arbitrator or umpire may proceed, notwithstanding any revocation otherwise made. Death of either party before award made is an implied revocation, though a verdict were taken subject to the award; but a special clause may prevent this consequence, as said above. Marriage before award made is also a revocation; but not bankruptcy or insolvency. The proceedings are usually similar to those in a trial at nisi prius; but the arbitrator has a large discretion. All the arbitrators must attend and hear the evidence, and one cannot delegate his authority to another. If one side only be heard, the award will be set aside. An arbitrator has an implied power to take evidence on oath, or receive affirmations, as at nisi prius, and if he does so the witness is indictable for perjury; but he is not bound to examine on oath, unless by express terms of the submission or order of reference. If a witness will not attend voluntarily, he may be compelled by the court of which the submission is, or is to be made, a rule, and the order is absolute in the first instance. The arbitrator cannot enlarge the time for making the award if a time is expressly limited, and no power of enlargement given; but, if the parties know that an enlargement has been irregularly made and still go on, neither of them can afterward set aside the award on that ground. The arbitrator is functus officiio when he has made his award within the time limited. 96. An umpire may be appointed, under a power to the arbitrators, any time after the time limited for the award and before the time limited for the umpirage to be made; but the appointment of an umpire by chance is in general bad, and the umpirage and award may be set aside, unless the parties, with full knowledge of the circumstances, consent to it. A slight disagreement between the arbitrators will warrant the appointment of an umpire. An umpire entirely supersedes the arbitrators as judges of the matter, and in general they cannot decide half the case and refer the other half to an umpire, unless expressly so empowered. If one umpire refuses to act, another may be appointed. The umpire must re-examine the witnesses; for, if he do not, his award will be set aside, unless both parties agree to waive such reexamination. An umpire may enlarge the time, as arbitrators do. 97. The award must be in strict pursuance of the submission; and it cannot be made after the arbitrator's functions are at an end. A parol award is not bad; but the award is better, and more usually made in writing. An award that "A. or B. shall not do an act" is bad. So an award "that the costs of making the submission a rule of court shall be paid by the party disobeying it" is bad. To award payment at a future day certain is good; but not "to find a surety," and the award must bear on the face of it that all the matters in difference have been decided. When the submission may be made a rule of court, the award, or any part thereof, may be in the form of a special case for the opinion of the court. The arbitrator cannot order payment of costs without express power in the submission; but, if a cause is referred, he has power as to costs of the cause, though not of the reference, unless such costs are to abide the event, in which case each must pay his own costs, without every thing is decided in favor of one party; and, though he ought not to fix his own fee by the award, he has a lien upon it for a reasonable sum, which may be examined on taxation. The award is generally signed by the arbitrator, in presence of attesting witnesses; and all the arbitrators should sign in presence of each other, without express power be given to a less number to make the award. An award is published when it is executed and notice given to the parties by the arbitrator that they may have the award on payment of the expenses. After publication, the arbitrator cannot alter any material part of the award without consent of the parties. A mistake in point of law, unless apparent on the face of an award, will not vitiate it, especially if it may be implied that the parties intended to refer both law and fact. Where the submission cannot be made a rule of court, the court has no power to set aside the award. The only remedy in this case is by action. The essence of arbitration is that it is voluntary; and therefore no court or judge can force parties to adopt it, unless litigation has begun by issuing a writ of summons, in which case the court or judge may direct an arbitration and also may remit the matters referred, or any of them, to the reconsideration of the arbitrator. For the law and practice of arbitration see Revised Statutes, 1859, Cap. XIX., p. 163, §§ 109 to 113; Cap. XXII., pp. 227 to 234, §§ 162 to 186. |