(i) The costs of the reference and award shall be in the 55 Vict. No. 32. discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client. "All matters in dispute between the parties' will include all disputes affecting their civil rights. [Baker v. Townsend.] A submission in addition to foregoing implied conditions may with advantage contain some of the following: 1. A recital of the differences referred. 2. That death, marriage, or bankruptcy, shall not be a revocation. 3. A power to proceed ex parte at discretion of the arbitrator. [Rule 3.] 4. A power to arbitrator to incur any necessary costs and expenses in the drafting or completing of the award. 5. That evidence taken by one arbitrator may be acted on by both or by umpire. 6. That umpire need not re-hear case quested. 7. That the award may be made within and that it can be enforced within by either party. unless re months, 8. That the arbitrator shall have power to employ an accountant to assist him, and in case of costs 55 Vict. No. 32. 9 A provision for death of the arbitrator before award. See Rules 1, 2, 3, 4, 8 and 15. Power to stay proceedings a submission. ARBITRATION. 3. If any party (1) to a submission, or any person where there is claiming 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 (2), and before delivering any pleadings or taking any other steps in the proceedings (3), apply to that Court to stay the proceedings, and that Court or a Judge thereof 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. (1) Instead of adopting this course a party may plead in bar the agreement to refer. In Dawson v. Fitzgerald, Jessel, M.R., says: "I take the law as settled by the highest authority-the House of Lords. There are two cases where such a plea as the present is successful-first, where the action can only be brought for the sum named by the arbitrator; secondly, where it is agreed that no action shall be brought until there has been an arbitration, or that arbitration shall be a condition precedent to a right 55 Vict. No. 32. of action. [See Collins v. Locke; Vigney v. Bignold.] (2) The application is after an appearance has been entered in the Court in which the proceedings are pending, and to that Court; the affidavit of applicant must show that he was at all times ready and willing to do all things necessary to the proper conduct of the proceedings and his readiness and willingness to refer. [Gillett v. Thornton.] (3) Before plea or any other step. [West London Dairy Co. v. Abbott; Chappell v. North (1891).] The Court will inquire if any action of the party applying (in case it should not amount to the entry of a plea or answer), is a step prima facie inconsistent with willingness to adopt the submission. [West London Dairy Co., Limited v. Abbott.] What is a step? [See Musgrave v. Stevens, W.N. (1881) p. 163; Mulkern v. Doerks, 53 L.J.Q.B. 526.1 The nomination of an arbitrator or application to the other side for extension of time to plead not a step. [Stephen, J., in Chambers, on 25th Nov., 1892, in Greta Collieries v. Wyndham.] If an application had been made to a Judge for extension of time to plead, would it not be a step in the proceedings? Practice similar to that under s. 2 of 31 Vict. No. 15 now repealed. The agreement to refer disputes to a foreign tribunal is within the section. [Law v. Garrett.] The onus lies on plaintiff in the legal proceedings to satisfy the Court that there is sufficient reason 55 Vict. No. 32. for continuing the proceedings. [Cook v. Catchpole; Jessel, M.R., in Hodgson v. Passenger Ry.Co.; Plews v. Baker.] It is not necessary for all the parties to join in the application to stay proceedings. [Willesford v. Watson.] The question whether the matters in dispute are within the agreement or submission is one which the Court will decide and will not leave to the arbitrator. [Piercy v. Young; Turnock v. Sartoris (1890).] Where a question of law arises, and it is clear such a question was never intended to be submitted to a lay arbitrator, proceedings in equity will not be stayed. [Alexander v. Campbell.] Where a question of law may be raised by defence, power of Court to order application to stand over until defence filed. [In re Carlisle; Clegg v. Clegg.] Where the arbitration clause did not cover the whole subject matter of the action, and it would be necessary to split up the dispute, application was refused. [Turnock v. Sartoris.] In cases coming under the following headings the Court has declined to interfere. (a) Where the applicant has no equity. [Sturgis & Another v. Lord Curzon; Murray v. Cohen.] (b) Where the submission is non-existing (i.e., incapable of being carried into effect) and inoperative. [Randell v. Thompson; D.S.G. v. Briscoe.] (c) If the Court be satisfied that the circumstances are so altered that justice cannot be done by carrying out the original submission. [Hirsh v. Irm Thirn; Davis v. Starr; Campbell v. Vickery; Port Jackson Steamship Co. v. Newcastle Steam- 55 Vict. No. 32. ship Co.] (d) Where a question of fraud arises more fit for [Wallis v. Hirsh; determination by a jury. The Birmingham and Staffordshire Gas Co. v. (e) Where the person charged with the fraud desires In addition to granting a stay of the proceedings the Court may make any other necessary order. [The Compagnie du Senegal v. Woods & Company.] In addition, a receiver may be appointed by the Court on the hearing of the application. 4. In any of the following cases : Power for the Court in certain cases (a) Where a submission provides that the refer- to appoint an arbitrator, ence shall be to a single arbitrator, and all umpire, or third the parties do not after differences have arbitrator. arisen concur in the appointment of an arbitrator: (b) If an appointed arbitrator refuses to act, or is incapable of acting, or dies, and the sub- (c) Where the parties or two arbitrators are at |