INDEX

TO THIRD PART.

ABATEMENT,

amendment of law as respects nonjoinder, 51, 2.

plea of nonjoinder must aver omitted party resides in England, 52.

affidavit of that fact also required, ib.

may reply that omitted party is discharged by bankrupt or insolvent act, ib.
in second action, may have verdict against such as are proved liable, ib.

ACQUITTAL. See Justices of the Peace.

form of acquittal upon an information, 194, note (q).

ADJOURNMENT.

when justice should adjourn, 178, 184.

may adjourn, 185, 192.

care to be observed before adjourning, 184.
postponement of justice's decision, when, 192.

ADJUDICATION. See Justices of the Peace.

form of, in conviction prescribed by statute 3 Geo. 4, c. 23, 198, in notes.
and requisites of, in general, 202 to 208.

should appear that a judgment was pronounced, 203.

must be precise and certain, ib.

ADVERTISEMENTS.

expediency of, to ascertain who to be a plaintiff or defendant, 47, 48.
should avoid libellous expressions, 48.

AFFIDAVIT. See Oath.

form of, in swearing to service of notice of motion for certiorari, 223.
in support of motion for certiorari, ib.

what it should state, ib.

AFFIRMANCE OF CONVICTION. See Justices of the Peace.

conviction if affirmed, party to pay costs of appeal, 226.
execution to enforce, ib.

AGENTS.

cannot consent to a reference without an exprees power to do so, 77.
AGREEMENT TO REFER.

action may be supported for breach of, 80.

court of equity, will not in general compel specific performance of, ib.
may be revoked before award made, 79.

unless it has been made a rule of court, ib.

should be in writing, 86.

or not within the act, ib.

affidavit of execution of, may be made at any time, 91.

form of affidavit of, 92.

AMICABLE ADJUSTMENT. See Compromise.

duty of atto.ney in negociation of, 23.

when there should be no concealment in negociation for, 24.

duties of parties and attorney relating to, 57, 58.

enforced in equity, 58; Attwood v.

Sayers, 2 Jac. & Walk. 249.

ANGLING. See Justices of the Peace.
penalty for, 136.

5 Russell Rep. 149; Goodman v.

duty of attorney, to afford opportunities for, ib.

APPEAL. See Justices of the Peace.

against conviction by one justice, when not if by two, 138, 9, 142.

no appeal unless expressly given, 215.

proceedings on appeal, 138, 9, 142.

when may be made, 214, 5.

justice's duty in respect of, 215.

party appealing must enter into recognizances, 215.
and give notice of appeal, 216.

notice must explicitly state all the objections, 217.
on whom must be served, 217.

APPEARANCE. See Justices of the Peace.

in default of, when arbitrator may proceed ex parte, 82.
justice may proceed ex parte, 134, 137.

when it cures defect in information, 170.

summons, 176.

statement of in conviction, 199.

APPOINTMENTS.

of meetings before arbitrator, 93, 4, 5.
form of, 93.

ARBITRATION, References to. See Award, Submission.

General Points.

the least hostile mode of proceeding, 70, 71.

is sometimes compulsory, 70.

but generally optional, ib.

First, Preliminary Observations upon References to Arbitration, 73.
when and under what circumstances they are expedient, ib.

trial by jury the most satisfactory tribunal, ib.

arbitrator should have had a professional education, 74.
attempts to force arbitration hitherto unsuccessful, ib.
principal instances of successful attempts to compel, ib.
in the Friendly Society Act, ib.

Saving Bank Act, ib.

Labourers and Servants in certain Trades, ib.

in disputes respecting seamen's wages, ib.

in certain claims for salvage, ib.

reasons why arbitration is compelled in those cases, ib.

When a reference is proper, 75.

in cases of long and intricate accounts, ib.

or where necessary to refer to numerous documents, ib.

or make or explain calculations, ib.

where difficult to collect all witnesses together on a particular day, ib.
between neighbours respecting nuisances, ancient lights, way or water-
courses, ib.

or upon title to land where claim small, ib.

in investigating subjects of delicacy between relations, ib.

unless injury to character has been sustained, ib.

When a reference is improper, 75.

in cases of calumny, ib.

or cases of criminal conversation, 75, 6.

unless husband has no intention to seek a divorce, 76.

in criminal matters, unless by consent of Court, 75.

other cases, ib.

not when a defence is stricti juris, unless under qualified terms, ib.

caution necessary in terms of reference, ib.

Secondly, Who may refer, 77.

an infant or married woman cannot, ib.

& partner may, but not to bind co-partners, ib.

agents must have express power to refer, ib.

but at law counsel or attorney may bind client by referring at Nisi Prius, ib.

and party cannot avoid the reference, ib.

even upon oath of his express prohibition, ib,

in equity, solicitor cannot, unless by express authority, ib.

when executors, &c. should refer, ib.

should not without the consent of creditors, &c., ib.
when defendants should guard against personal liabilities, ib.
assignees should obtain consent of major part of creditors, ib.
and guard against making themselves personally liable, 78.

ARBITRATION, References to-(continued).

Thirdly, Utility of reference to find facts for the opinion of Court, 78.
by having facts concisely stated by arbitrator, ib.

recent acts enable parties to do this, ib.

but not until after issue joined, ib.

but it may be effected by consent without action, ib.

formerly this could not be done without the expense of a trial, ib.

when submission has been made a rule of Court, award may find facts
specially subject to opinion of Court, ib.

who will, after argument, determine on same, ib.

form of such a reference, 90, 91.

and of award thereon, 112, 113.

Fourthly, Distinctions between references at common law, and under the

statutes, 79.

at common law may be either verbal, ib.

or in writing not under seal, ib.

or by specialty, either bond or covenant, ib.

or by rule or order of a judge of Court in which action depending, ib.
and award made before revocation is equally binding, ib.

parties may countermand before award, ib.

unless submission has been made a rule of Court, ib.

but action sustainable for breach of agreement to refer, 80.

though in general a Court of Equity will not compel specific performance
of such an agreement, ib.

obligation and effect of an arbitration in pursuance of 9 & 10 W. 3, c. 15,
and 3 & 4 W. 4, c. 42, s. 39, 40, 41, ib.

statement of 9 & 10 W. 3, c. 15, ib.

statement of 3 & 4 W. 4, c. 42, s. 39, 40, 41, 82.

Fifthly, Who may be an arbitrator, arbitrators or umpire, 83.

should be free from interest or bias, ib.

not a relative, ib.

why preferable to refer to a barrister, 84.

precautionary provisions for securing another arbitrator, ib.

how to act if arbitrator refuse to proceed, ib.

must proceed in action as if no reference had taken place, 85.
Court of Chancery has refused to compel arbitrator to proceed, ib.

Sixthly, The Practice and Law, 86.

1st. The terms of submission, ib.

care required in framing, ib.

stipulation that submission shall be made a rule of Court, 86.
agreement to refer should be in writing, ib.

otherwise not within the act, ib.

and if not, might be revoked, 87.

submission by agent or trustee, how to be framed, ib.

submission by executors, assignees, &c., ib.

of limiting power of arbitrator, ib.

to prevent him making a general award, ib.

or to require him to state facts or point of law, ib.

other suggested terms, 88.

forms of submissions, ib. See tit. Forms.

when reference by rule or order of Court, it may be amended, 89.
otherwise not, ib.

as to insertion of omitted matters, 89.

but not to substitute arbitrator, 90.

2dly. The affidavit of execution of submission, 91.

may be made at any time after, ib.

and the making of it enforced, ib.

prudent to obtain same immediately instrument has been signed, 92.
form of affidavit, ib.

3dly. Of making submission a rule of Court, 92.

may be made before or after award, ib.

in vacation as well as term, ib.

when by agreement or deed advisable to make it a rule of Court shortly
after, ib.

4thly. Appointment of Umpire, 93.

when arbitrators have power, may appoint one before disagreement, ib.
better to do so, ib.

on refusal of one umpire to accept appointment, arbitrator may appoint
another, ib.

ARBITRATION, References to―(continued.)

umpire may make award after arbitrators have refused to proceed, 93.
but in general not before, ib.

how umpire should be appointed, ib.

form of arbitration, appointment of one, ib.

5thly. The Meetings and securing attendance of Witnesses, 94.

difficulty of securing punctual attendance, ib.

necessity or expediency of written appointments of meetings, ib.
and of appointing two consecutive days, ib.

duplicate of appointments should be signed by arbitrator, ib.
form of appointment of first or other meeting, ib.

a peremptory and final meeting, and of intention to proceed
ex parte, ib.

hearing and production of evidence at the first meeting, ib.

should be principally of documentary evidence, ib.

as admissions may be made to save attendance of expensive witnesses,
95.

attornies should evince candour before arbitrator, ib.

meetings should be actually effective, ib.

sufficient witnesses should be in attendance, ib.

or attorney be prepared with documentary evidence, ib.

his duty in this respect to avoid expense, ib.

attendance of witnesses enforced by 3 & 4 W. 4, c. 42, s. 40, ib.'

regulation to be attended to to enforce attendance, ib.

must be a tender of expenses, ib.

judge's order can only direct attendance for two named consecutive
days, ib.

notice of appointed meetings, ib.

written appointment should be obtained from arbitrator, 96.

and duly served on opponent's attorney, ib.

and formal notice served where meeting intended to be final, 96.
prudent to leave copy at chambers of respective counsel, ib.
otherwise award might be set aside, ib.

6thly. Of Enlargement of the time, 96.

in general arbitrator has power to enlarge, ib.

enlargement should be duly made according to terms of order, ib.

or award would be void, ib.

power to enlarge in general discretionary, ib.

when award would be set aside for not allowing sufficient time, 96, 118.
when Court will order enlargement, 97.

for what time enlargement should be made, ib.

form of enlargement, ib.

7thly. The proceedings and hearing before arbitrator, ib.

arbitrator may proceed according to law and equity, ib.

and make award according to equity and conscience, ib.

without regard to strict rules of law, ib.

though not expedient to do so, ib.

proceedings should be conducted as in a Court of Law, 98.
how to be conducted, ib.

arbitrator may require a reciprocal statement, ib.

and declaration of what facts, &c. admitted, &c. ib.

8thly. Of enforcing attendance of Witnesses, production of Documents, and
swearing Witnesses before arbitrator, 98.

formerly no mode of compelling attendance of a witness, ib.

even when he had engaged to attend, ib.

doubted whether he could be indicted for false swearing, ib.

but now attendance enforced by 3 & 4 W. 4, c. 42, s. 40, ib.
production of document enforced, ib.

by application to a Judge or the Court, ib.

must be a tender of reasonable expenses, ib.

may be indicted for perjury, ib.

form of affidavit to obtain order or rule, 99.

judge's order, ib.

suggestions as to witnesses, 100.

submission should be made a rule of Court, ib.

though not necessary, ib.

appointment of meeting need not precede order for attendance of wit-
nesses, ib.

most convenient at meeting to state to arbitrator known unwilling wit-
nesses, ib.

ARBITRATION, References to—(continued.)

and get appointment for two consecutive days, 100.
9thly. Of the arbitrator's swearing the witnesses, 100.
usual to swear them at Nisi Prius, ib.

when omitted may be sworn before a judge, ib.

and jurats produced before arbitrator, ib.

when arbitrator may swear them, ib.

and in case of false swearing may be indicted for perjury, ib.
mode of swearing, 100, 101.

form of oath, 101.

20thly. Examination of parties, witnesses and evidence, 101.

in general order provides that arbitrator shall be at liberty to examine

the parties themselves, 101.

sometimes advisable to insist on such a provision, ib.

arbitrators generally reluctant to exercise the power, ib.

discretionary to do so, ib.

where the parties had been examined by consent, Court refused to
disturb award, ib.

though defendant a felon convict, 102.

11thly. Mode of taking down the evidence, 102.

should be carefully taken down, in questions and answers, ib.

when concluded, read over to witness, ib.

and if further questions and answers arise, they should be added, ib.
witness may sign the same, ib.

attornies may take copy, ib.

original kept by arbitrator, ib.

12thly. Of Revocations in fact or law, 102.

provisions preventing revocations in 3 & 4 W. 4, c. 42, s. 39, ib.
when agreement of reference within statute, revocation void, ib.
arbitrator may proceed ex parte, ib.

and award would be valid, ib.

when award void after notice of revocation, ib.

when party revoking may be proceeded against, ib.

revocation not absolutely prohibited, ib.

sanction of judge or court requisite, ib.

sometimes perhaps otherwise, where arbitrator acts partially or im-
properly, 103.

though proper course to apply for summons for leave to revoke, ib.

when marriage of woman pending reference a revocation, ib.

death at law an implied revocation, ib.

unless provided otherwise, ib.

as when award to be delivered to parties or executors, &c. ib.
provisions in case of death, ib.

decision of privy council, ib.

when surety liable for fulfilment of award made after death, 104.

when executor would be personally liable, ib.

death of Arbitrator determines power to proceed, ib.

unless provided otherwise, ib.

bankruptcy, its effects, ib.

not necessarily a revocation, ib.

when award not conclusive against assignees, ib.

when assignees would be bound by award, 105.

when may refer, ib.

certificate of bankrupt when not a discharge, ib.

advisable that submission should provide for revocation in case of bank-
ruptcy, ib.

13thly, of the award, 105.

must conform to the authority in submission, ib.

will be void for even slight informality, ib.

instances, ib.

when power of arbitrator limited, he cannot go beyond it, 106.

must in terms or substance decide on all claims referred, ib.

and notice same in award, ib.

when award void for omission, 107.

award to do an impossible or illegal act, when valid, ib.

must be final, and when deemed so, 107, 8.

when not final or defective, because it does not order payment, 108.
attachment refused for omission, ib.

legal arbitrator may decide contrary to strict rules of evidence or law, ib.
VOL. II.

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