OF REFERENCES TION, &c. CHAP. III. insolvent debtor are expressly prohibited from referring to arbitration, unless with the consent of the major part in value of creditors present at a duly convened meeting, or of the commissioners testified in writing, in case less than one-third in value of the creditors should neglect to attend; (a) and there is a provision nearly to the same effect in the General Insolvent Act. (b) But Assignees and Trustees should, in their submission to reference, expressly guard against personal liability, the same as executors, or they may be personally liable. (c) Thirdly, sug gested utility of a reference to find facts for the opinion of the Court. In aid of an object recently declared by the Legislature to be conducive to SPEEDY justice and diminution of expense, arbitrations may with propriety be greatly extended in practice, viz. by having the facts stated concisely by the arbitrator, and then obtaining the opinion of the Court thereon without the expense of pleadings or trial. The recent acts for the further amendment of the law enable parties to any action or information, but not until after issue joined, by consent and by order of any of the Judges of the superior Courts, to state the facts of the case in the form of a SPECIAL CASE for the opinion of the Court, (but without the power of feigning a special verdict) and to agree that a judgment shall be entered for the plaintiff or defendant by confession or of nolle prosequi immediately after the decision of the case, or otherwise, as the Court might think fit. (d) Before that enactment, no such special case could be stated until after the expense of a trial had been incurred, and it was considered culpable in any practitioner even to attempt to obtain the opinion of the Court by a pretended special case. (e) But at all times since the statute 9 & 10 W. 3, c. 15, or when a submission has been made a rule of Court, an award may find facts specially, subject to the opinion of the Court, and who will, after argument, determine upon the same; (f) and consequently, before issue joined, and before even the commencement of an action, parties may, by any memorandum in writing, submit their differences to arbitration, with an express clause that such submission shall be made a rule of Court, and that the arbitrator shall by his award find the facts, and state any objection or point of law arising upon the evidence (a) 6 Geo. 4, c. 16, s. 88; and 1 & 2 W. 4. c. 56, s. 43. (b) 7 Geo. 4, c. 57, s. 24. (c) Robson v.—————— 2 Rose's Bank- 91; (f) Aubert v. Maze, Bos. & Pul. 372, where the Court approved of the course taken to state the facts for the opinion of the Court; and see the form presently stated; see also Ames v. Milward, 8 Taunt. 637; 2 J. B. Moore, 713, S.C.; In re Webb, 8 Taunt, 443 i 2 J. B. Moore, 500, S. C. OF REFERENCES TION, &C. specially, and make his award, so that the opinion of the Court CHAP. III. may be thereupon obtained without the expense of any process TO ARBITRAor pleadings; and such a proceeding is strongly recommended to parties, who may justly repose confidence in a barrister's faithfully stating the facts with his opinion, subject to the decision of the four Judges, although they might not choose to be bound by the opinion of any single individual. distinctions between refer Fourthly, agreements to refer to arbitration are either at Fourthly, common law or under the statutes 9 & 10 W. 3, c. 15, and 1 & 2 W. 4, c. 42, s. 39, 40 & 41. Those at common law may ences at Combe either verbal, or in writing not under seal, or by specialty, under the stamon Law, and either bond or covenant, or by a rule or order of a Judge of tutes. the Court in which an action is depending, and which was not unfrequent even before the above first enactment. An award, when made before revocation, was equally binding upon the parties at common law, whether it were made under verbal or written authority. And it has been recently decided, that an award so far changes the nature of an original claim, when for unliquidated damages, that it precludes a party previously entitled to sue for the same from afterwards so doing, and compels him to confine his remedy to an action for the non-observance of the award; and therefore it was held, that in an action for unliquidated damages, or in trespass for damages, a plea of a reference and award is a valid answer, without averring performance of the award; but that in an action of indebitatus assumpsit for tolls or any other debt, a plea of a reference and umpirage to pay 137. is insufficient, unless it aver performance by payment of the sum awarded; for in the latter case the original demand being for a debt, the award only fixed the amount, and the plaintiff was at liberty to sue either for the original debt or upon the award; and in the former case, to treat the debt as still for tolls, and produce the award in evidence of the just amount of his claim. (g) But it is settled at common law, that unless the parties be bound by submission made a rule of Court, they may, if no arbitrators have been named, refuse to appoint them, although they have expressly covenanted to refer to arbitration; (h) or may at any time before an award has been made, countermand the arbitrator's authority, so as to render a subsequent award OF REFERENCES CHAP. III. after notice of the revocation a nullity; (i) and the agreement to refer is no bar to an action at law or suit in equity; (k) and although an action may certainly be supported for the breach of the agreement to refer, (k) yet the damages therein might be merely nominal, and not equivalent to the sum that might have been awarded, unless indeed there has been a very explicit agreement, as is advisable, to pay a named sum equal to the sum claimed as stipulated damages, and not as à penalty;(7) and we have seen that in general a Court of Equity will not compel specific performance of a covenant to refer. (m) The obligation and effect of an arbitration, in pursuance of the statutes 9 42. 8. 39, 40, 41. Hence when parties considered it probable that an arbitration would turn out unfavourable, they refused to appoint arbitrators; or when appointed, revoked their authority. To remedy & 10 W. 3, and these defects, the statutes now to be considered were passed, 3 & 4 W. 4, c. which, especially the recent act, take of revopower away the cation where the reference has been by submission to be made a rule of Court, or under a rule of Court or Judge's order, or order of Nisi Prius, in the first instance, and requires the arbitrator to proceed ex parte, and compels the attendance of witnesses, and subjects them to an indictment for perjury if they swear falsely. (n) But still, where the deed or agreement, as frequently has occurred in partnership deeds, does not contain any stipulation that the covenant to refer shall be made a rule of Court, there is no perfect mode of enforcing the covenant,—a defect which should be guarded against in future stipulations of that nature. When, however, a proceeding by arbitration and award is enjoined by a public act, then it may be enforced by mandumus; (0) and if an act direct that a claim shall be adjusted only by reference and award, the party proceeding by action would fail.(p) The enact The statute 9 & 10 W. 3, c. 15, intituled "An Act for deter10 W. 3, c. 15." mining Differences by Arbitration," recites that " it has been ments in 9 & (i) Marsh v. Bulteel, 5 B. & Ald. 507 ; 2 Chitty's R. 316; Aston v. George, 2 B. & Ald. 395; 2 Saund. 133, d. (k) In Tattersal v. Groote, 2 Bos. & Pul. 131, it seems to have been doubted whether an action could be supported for refusing to refer according to covenant, unless it appeared that there was a fair subject of arbitration; but undoubtedly such an action might be sustained, and sometimes efficiently, so as to recover an equivalent in damages to the full extent of what it can be shewn would have been awarded; and see 2 Keb. 10, 20, 24; Charnley v. Winstanley, 5 East, 266; see suggestions of Parke, J. in 10 B. & Cres. 484; 5 Taunt. 453; Tidd, 9th ed. 824. Suppose a surety joined in the covenant to refer, and his principal refused to proceed, there can be no doubt that the surety would be liable to pay to the full extent of the sum which it can be shewn would, or ought to have been awarded in case the arbitrators had proceeded. (1) As to stipulated damages, ante, 872, see the suggested form in note (9), post, 92. (m) Ante, 1 Vol. 851, 2, 829 to 831. (n) 3 & 4 W. 4, c. 42, s. 39, 40, 41. (9) Ante, 1 Vol. 792; Re Washbrooke, 7 Dowl. & R. 221. (p) Crisp v. Bunbury, 8 Bing. 394. "found by experience that references made by rule of Court The second section enacts, "That any arbitration or umpirage procured by corruption or undue means shall be judged and CHAP. III. OF REFERENCES TO ARBITRA- The enact ments in 3 & 4 W. 4, c. 42. s. 39, 40, 41. 66 esteemed void and of none effect, and accordingly be set aside by any Court of Law or Equity, so as complaint of such corruption or undue practice be made in the Court where the "rule is made for submission to such arbitration or umpirage "before the last day of the next term after such arbitration or "umpirage made and published to the parties." The 3 & 4 W. 4, c. 42, s. 39, after reciting "that it is expedient to render references to arbitration more effectual," enacts, that the power and authority" of any arbitrator or umpire appointed by or in pursuance of any rule of Court, or judge's "order, or order of Nisi Prius, in any action now brought, or "which shall be hereafter brought, or by or in pursuance of 66 any submission to reference containing an agreement that "such submission shall be made a rule of any of his Majesty's "Courts of Record, shall not be revocable by any party to such "reference, without the leave of the Court, by which such rule "or order shall be made, or which shall be mentioned in such "submission, or by leave of a Judge; and the arbitrator or "umpire shall and may, and is hereby required to proceed with "the reference, notwithstanding any such revocation, and to "make such award, although the person making such revocation "shall not afterwards attend the reference; and that the Court "or any Judge thereof, may, from time to time, enlarge the "term for any such arbitrator making his award.” Section 40 enacts, "that when any reference shall have been "made by any such rule or order as aforesaid, or by any sub"mission containing such agreement as aforesaid, it shall be "lawful for the Court by which such rule or order shall be "made, or which shall be mentioned in such agreement; or for any Judge, by rule or order to be made for that purpose, to "command the attendance and examination of any person to "be named, or the production of any documents to be men❝tioned in such rule or order; and the disobedience to any "such rule or order shall be deemed a contempt of Court, if in "addition to the service of such rule or order, an appointment "of the time and place of attendance in obedience thereto, 66 signed by one at least of the arbitrators, or by the umpire "before whom the attendance is required, shall also be served, "either together with or after the service of such rule or order; "provided always, that every person whose attendance shall be "so required, shall be entitled to the like conduct money and payment of expenses, and for loss of time, as for and upon "attendance at any trial: Provided also, that the application "made to such Court or Judge, for such rule or order, shall set |