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Power of Court

to set aside


can amend

They also agree that if the arbitrator dies, or refuses to act, and the parties to the submission cannot agree, the Court shall appoint a new arbitrator. These are a few of the clauses contained in "the usual terms.' Although the submission of a cause is made by the Court or Judge, the Court does not thereby lose its jurisdiction over the proceedings of the reference or the award. It can set aside the submission if it has been obtained by fraud, or drawn up by mistake. If When Court the parties consent, the Court can also amend the submission. submission made in a cause, although without that consent it would not be able to interfere, the Court of itself having no power to alter the agreement entered into by the parties. In order to give the Court jurisdiction over the proceedings, the order should be made a rule of Court; the Judge then has power not only to alter the submission, but to amend it, and also to enforce the performance of the award.

An order of a County Court Judge may be made by consent of the parties, to refer any action before him to arbitration. The award of the arbitrator under such circumstances would have the effect of, and be entered as, a judgment of the Court (9 & 10 Vict. c. 95, s. 77).

Order of
Court judge-

effect of.


Law Procedure





THE Common Law Procedure Act gives power to under Common the Court, if it is thought advisable, to refer to arbitration any dispute consisting of matters of mere account, which can be more conveniently settled by that form of procedure. The clauses conferring this power on the Court are as follows:

Sect. 3. "If it be made to appear at any time after the issuing of the writ, to the satisfaction of the Court or Judge, upon the application of either party, that the matter in dispute consists wholly or in part of matters of mere account which cannot conveniently be tried in the ordinary way, it shall be lawful for such Court or Judge, upon such application, if they or he think fit, to decide such matter in a summary manner, or to order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties, or to an officer of the Court, or in country causes, to the Judge of any County Court upon such terms as to costs and otherwise as such Court or Judge shall think reasonable; and the decision or order of such Court or Judge, or the award or certificate of such referee, shall be enforceable by the same process as the finding of a jury upon the matter referred."

It will be seen that this section only mentions cases

in which the necessity for arbitration shall "appear before issuing of the writ," i.e., before the commencement of the action, but sect. 6 goes further, and gives a Judge power to refer "upon the trial of any issue." The section is as follows:

Sect. 6. "If upon the trial of any issue of fact by a Judge under this Act, it shall appear to the Judge that questions arising thereon involve matter of account which cannot conveniently be tried before him, it shall be lawful for him, at his discretion, to order that such matter of account be referred to an arbitrator appointed by the parties, or to an officer of the Court, or in country causes to a Judge of any County Court,* upon such terms as to costs, and otherwise, as such Judge shall think reasonable; and the award or certificate of such referee shall have the same effect as hereinbefore provided as to the award or certificate of a referee before trial; and it shall be competent for the Judge to proceed to try and dispose of any other matters in question not referred, in like manner as if no reference had been made." Under this section questions have arisen as to the power of a Judge to refer "all the other issues in an action," as well as matters of account," to an arbitrator; and it has been held that the Judge had power to refer matters of account only, and must try any other issue in the case in the ordinary way (Clow v. Harper, 3 Ex. Div. 198). But the same Court subsequently held that in any case in which the Court has jurisdiction to refer compulsorily a


* Reference to County Court Judge now taken away by 21 & 22 Vict. c. 74, s. 5.

Order of reference before trial.

Costs of reference

question of account to an official referee under sect. 57 of the Judicature Act, it has also power to refer all the other issues in the action-that is, of course, so long as they do not involve questions of law" (Ward v. Pilley, 5 Q. B. Div. 427).

Matters are now frequently referred under these clauses (on the application of the parties to an action) by the Judge, who either himself appoints the arbitrator, or confirms the appointment of one chosen by the parties themselves. In such cases the award of the arbitrator is of the same force as a judgment of the Court, it receives the official approval by being embodied in the form of an order of the Court, and the costs are at the discretion of the Judge, who alone can award them, as unless it is specified in the submission that the arbitrator can award costs, he has no power to do so.

Reference under the Judicature


Official and special referees.



THE fourth method of submission to arbitration is set forth in the Judicature Act of 1873. By the sections of this Act, which we give below, it will be seen that officials are appointed, and indeed were created by it, called official or special referees, according as the matter they are called upon to consider, is general or particular in its character.

These officials have not the same power of dealing
with a
case as an arbitrator, for they can only
enquire and report to the Court the result of their
investigations; whereas, as we shall see, an arbi-
trator can make an award which has the same force
as a judgment of the Court, and which can be
enforced in various ways.


The sections of the Act that more particularly refer to the duties of a referee are as follows:Sect. 56. Subject to any rules of Court, and to such right as may now exist to have particular cases submitted to the verdict of a jury, any question arising in any cause or matter (other than a criminal proceeding by the Crown) before the High Court of Justice or before the Court of Appeal, may be referred by the Court or by any Divisional Court or Judge before whom such cause or matter may be pending for enquiry and report, to any official or special referee, and the report of any such referee may be adopted wholly or partially by the Court, and may (if so adopted) be enforced as a judgment by the Court. The High Court or Court of Appeal may also, in any such cause or matter as aforesaid in which it may think it expedient to do so, call in the aid of one or more assessors specially qualified, and try and hear such cause or matter wholly or partially with the assistance of such assessors. The remuneration, if any, to be paid to such assessors or special referees shall be determined by the Court."

Sect. 57.-"In any cause or matter (other than a criminal proceeding by the Crown) before the said High Court, in which all parties interested who are


under Judica

ture Act, 1873.

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