CH. XLIV. § 3. Court of Chancery, the time for making the award may from time to time be enlarged by an order of the Court or of a Judge at Chambers; the order should state the cause for the enlargement, enlarge time and if no period is stated, it will be deemed to be for one month.1 Court may for making award. Section 16. Where award directs delivery up of The application is made on notice; 2 and the order may, it seems, be made after the expiration of the time for making the award.3 "Where any award made on any such submission, document, or order of reference as aforesaid, directs that possession of any lands or tenements capable of being the subject of an action of ejectpossession, it ment shall be delivered to any party, either forthwith or at any may be enforced as future time, or that any such party is entitled to the possession of judgment in ejectment. any such lands or tenements, it shall be lawful for the Court of which the document authorizing the reference is, or is made a rule or order, to order any party to the reference who shall be in possession of any such lands or tenements, or any person in possession of the same claiming under or put in possession by him since the making of the document authorizing the reference, to deliver possession of the same to the party entitled thereto, pursuant to the award; and such rule or order to deliver possession shall have the effect of a judgment in ejectment against every such party or person named in it, and execution may issue, and possession shall be delivered by the sheriff as in a judgment in ejectment." 4 Section 8. Court may remit award. Circum which this is The Court or Judge may, from time to time, and on such terms as may seem fit, remit the matters referred, or any of them, to the re-consideration and re-determination of the arbitrator. The obstances under ject of this provision is, to enable the Court, where any error, formal or otherwise, has occurred which would vitiate the award,. to send it back to the arbitrators to correct such errors, instead of setting the award wholly aside. Where the award was in part conclusive, but in another part imperfect, it was remitted to be reconsidered and amended." done. By consent, matters in question in suit referred. Form of order. The Court, by consent of the parties, will order the matters in question in a suit to be referred to arbitration.8 In this case, the order should reserve liberty to apply, but not further consideration, unless only some of the matters in dispute are referred." The Court will not give directions as to the mode of carrying out Award to be the reference,10 and if it fails, the suit will proceed as if it had not been directed." The award is made an order of Court on made an order of Court; 1 17 & 18 Vic. c. 125, § 15. 2 For form of order, see Seton, 1126, No. 2; and for forms of notice of motion and summons, see Vol. III. 8 Watson v. Bennett, 6 Jur. N. S. 637; 8 W. R. 612, Ex. 4 17 & 18 Vic. c. 125, § 16. 5 lb. 8; see Re Tidswell, 33 Beav. 213; 10 Jur. N. S. 143. 6 Mills v. Bowyers' Co., 3 K. & J. 60. 7 Re Aitken, 3 Jur. N. S. 1296; 6 W. R. 145, V. C. W. 8 For form of order, see Seton, 1122. 9 Seton, 1126. 10 Houghton v. Bankart, 3 De G., F. & J. 16; 7 Jur. N. S. 57. 11 Crawshay v. Collins, 3 Swanst. 90. motion with notice, in the same way as a submission,1 and must be filed in the Report office before the order is passed; 2 and proceedings may then be taken upon it. In a suit affecting a charity, the reference will not be made, or the award acted upon, unless the Attorney-General or the Court considers that it will be beneficial to the charity. We have already seen that, in certain cases, the awards of the Charity Commissioners may be made rules of the Court.5 "Whenever the parties to any deed or instrument in writing to be hereafter made or executed, or any of them, shall agree that any then existing or future differences between them or any of them shall be referred to arbitration, and any one or more of the parties so agreeing, or any person or persons claiming through or under him or them, shall nevertheless commence any action at Law or suit in Equity against the other party or parties, or any of them, or against any person or persons claiming through or under him or them in respect of the matters so agreed to be referred, or any of them, it shall be lawful for the Court in which action or suit is brought, or a Judge thereof, on application by the defendant or defendants, or any of them, after appearance and before plea or answer, upon being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to arbitration according to such agreement as aforesaid, and that the defendant was at the time of the bringing of such action or suit and still is ready and willing to join and concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceedings in such action or suit, on such terms as to costs and otherwise as to such Court or Judge may seem fit: Provided always, that any such rule or order may at any time afterwards be discharged or varied as justice may require." " The onus of showing that no adequate relief can be obtained by proceeding under the agreement to refer to arbitration lies upon the plaintiff. The proceedings will be stayed wherever the application is made bonâ fide by a party who has always been ready to refer, and there are matters in dispute within the meaning of the agreement. The proceedings will not be stayed where an arbitra 7 Cook v. Catchpole, 10 Jur. N. S. 1068; 13 W. R. 42, 43, V. C. W. 8 Russell v. Pellegrini, 6 El. & Bl. 1020, 3 Jur. N. S. 183, 185; and see Hirsch v. Im Thurn, 4 C. B. N. S. 569; 4 Jur. N. S. 587; Wickham v. Hardy, 5 Jur. N. S. 871, Ex.; but see Lury v. Pearson, 1 C. B. N. S. 639; Wheatley v. Westminster Brymbo Colliery Co., 2 Dr. & Sm. 347; 11 Jur. N. S. 232. CH. XLIV. § 3. and must be filed in ReConsent of AttorneyGeneral in port office. charity cases. Awards of Charity Com- missioners. after all have agreed to arbitration, Court or Judge may stay proceedings. Under what action or suit stayed. circumstances CH. XLIV. § 4. Application notice. tion, unless agreement to refer. tor would not have power to deal completely with the case,1 or the case is one of fraud;2 or where, in consequence of some of the contemplated parties not having entered into the agreement, it would be contrary to the intention of the parties to refer the matters in dispute to arbitration.3 The application for the order is made by motion on notice, and should be made after appearance, but before plea or answer.* The Court has no jurisdiction to stay the proceedings, unless the instrument on which the action is brought contains an agreement to refer differences to arbitration: .even though the parties have in writing agreed to do so after the differences have arisen." 2 & 3 Vic. Sections 2, 3. Application: how made. SECTION IV. - Infant Custody Acts. By the 2 & 3 Vic. c. 54, the Court is enabled, upon the petition of the mother of an infant which is in the sole custody or control of the father thereof, or of any person by his authority, or of any guardian after his death, to make such order for the access of the petitioner to such infant, at such times and subject to such regulations as the Court shall deem convenient and just; and if such infant shall be within the age of seven years, the Court may order such infant to be delivered into the hands of the petitioner until such age, subject to such regulations as the Court shall deem convenient and just. Applications under this Act may be made either to the Master of the Rolls, or to any of the Vice-Chancellors." 8 Upon the hearing of the petition, affidavits on either side are admissible; and orders made under the Act may be enforced by the usual process of contempt. No mother against whom adultery has been established by the sentence of the Divorce Court is entitled to the benefit of the Act.10 The petition may be presented without a next friend; " and, by 1 Cook v. Catchpole, ubi sup. 2 Wallis v. Hirsch, 1 C. B. N. S. 316; 3 Mason v. Haddon, 6 C. B. N. S. 526. 5 Blyth v. Lafone, 1 El. & El. 485; 5 62 & 3 Vic. 54, § 1. As to this Act, see Chambers on Infants, 93, 100; Macpherson on Infants, 164; Seton, 713; and see Swift v. Swift, 11 Jur. N. S. 148; 13 W. R. 378, M. R.; 11 Jur. N. S. 458; 13 W. R. 731, L. JJ.; 34 Beav. 266; Austin v. Austin, 11 Jur. N. S. 101; 13 W. R. 332, M. R.; 11 Jur. N. S. 536; 13 W. R. 761, L. C.; 34 Beav. 257; Re Newbery, 1 Law Rep. 431; 12 Jur. N. S. 12, V. C. S.; 1 Law Rep. Ch. Ap. 263; 12 Jur. N. S. 154, L. JJ. For forms of orders, see Seton, 713, 714; and for form of petition, see Vol. III. 7 Re Taylor, 10 Sim. 291. 8 2 & 3 Vic. c. 54, § 2. For the practice on petitions, see ante, p. 1603 et seq. 9 lb. § 3. 10 Ib. 4; and see 20 & 21 Vic. c. 85, § 35. 11 Re Groom, 7 Hare, 38. leave of the Court, in formâ pauperis. If rendered necessary CH. XLIV. § 4. by the circumstances of the case, it seems that an order under the Act may be made ex parte. The mother is not entitled to an Where Court order as a matter of course, but the Court will exercise its discre- interferes. all the circumstances of the case. tion upon 5 6 The object of the Act is to protect mothers from the tyranny of Object of Act. husbands who ill use them; and it gives the Court the power of interfering, when the Court sees that the maternal feelings are tortured for the purpose of obtaining any thing like an unjust advantage over the mother. The Act does not, as a condition for the interference of the Court, require that the wife should have obtained or be entitled to obtain a decree for a judicial separation; and it gives the Court an absolute discretion as against the father or testamentary guardian; but the Court will not interfere where the mother has deserted her husband without reasonable cause; or where her conduct, although she has not been guilty of any moral delinquency, has not been such as to entitle her to its favorable consideration. And if the conduct of the father has been free from impropriety or bad motive, the Court has no right to have any opinion as to whether the father is judicious or not in the particular training he may direct the child to undergo." 8 Where Court will not inter fere. It has been held, that the Act does not enable the mother to Where chilresist an application of her husband for the custody of his children in custody of dren, to which, by law, he is entitled: even though upon her mother. application the Court may be bound to order them to be delivered back to her; 10 or apply where the children are not in the custody of the father." Where, however, the children were living with the mother, the Court, on a petition intituled in the Act, made an order continuing the custody of them to her; but it would seem that the order was made under the general jurisdiction of the Court.12 c. 90. Court may By the 3 & 4 Vic. c. 90, the Court is empowered, upon the 3 & 4 Vic. application of any person willing to take charge of any infant who has been convicted of felony, and to provide for his mainte- assign care of nance and education, to assign the custody of such infant to such person, and to rescind or vary the terms of any such assignment; 1 Ex parte Hakewill, 3 De G., M. & G. 116; 17 Jur. 334. As to suing in formâ pauperis, see ante, p. 37 et seq. 2 Re Taylor, 11 Sim. 178, 180. 3 Re Taylor. 11 Sim. 178, 200; Re Halliday, 17 Jur. 56, V. C. T.; Re Winscom, 11 Jur. N. S. 297; 13 W. R. 452, V. C. W.; 2 H. & M. 540. 4 Per Lord Cottenham, in Warde v. Warde, 2 Phil. 787, 788; and see Re Winscom, ubi sup. 5 Ex parte Bartlett, 2 Coll. 661, 662. 6 Shillito r. Collett, 8. W. R. 683, V. C. K.; affirmed, ib. 696, L. JJ. 7 Re Taylor, ubi sup. 8 Shillito v. Collett, ubi sup. 10 Corsellis v. Corsellis, 1 Dr. & War. 11 Re Fynn, 2 De G. & S. 457, 475; 12 Jur. 713. 12 Re Tomlinson, 3 De G. & S. 371. infant felons. CH. XLIV. § 5. and, if it shall think fit, to award costs against any applicant: such costs to be payable to any parent or other natural or testamentary guardian who shall oppose such application. The infant is not to be sent out of the jurisdiction of the Court; and the execution of the sentence passed upon the infant is not to be interfered with.* 25 & 26 Vic. Section 1. claiming to be entitled to land may pe tition the Court for a SECTION V. The Declaration of Title Act, 1862. By this Act, which relates to England only, and came into operation on the 1st January, 1863,5 "every person claiming to be entitled to land in possession for an estate in fee-simple, either absolutely or subject to any incumbrances, estates, rights, or interests, vested or contingent, or claiming to have a power of disposing of land for his own benefit for an estate in fee-simple in declaration of possession, either absolutely or subject to any incumbrances, estates, rights, or interests vested or contingent, and every person entitled to apply for the registration of an indefeasible title to the Registrar appointed under any Act which may be passed in the present session for the Registration of Real Estates and the Title thereto, may apply to the Court of Chancery by petition in a summary way for a declaration of title under this Act."7 title. Schedule, r. 1. Petition to contain de scription of the lands. Section 2. 6 "Every petition for a declaration of title shall contain an exact description in their actual state of the lands as to which the declaration is sought: stating particularly the boundaries thereof, and the lands on which the same and every part thereof abut, and, so far as conveniently may be, the names and descriptions of the owners and occupiers of such last-mentioned lands." 8 "Every such petition shall state what incumbrances, estates, Petition to set rights, and interests, if any, the petitioner admits to affect his forth particulars affecting title, and subject to which he seeks to have his title declared, and shall be in such form as the Court shall by general order direct." title. Section 3. Two persons interested may jointly petition. "Any two or more persons claiming to have together such estate or interest in land as would have enabled any one person 1 3 & 4 Vic. c. 90, § 1. No fee is to be 2 3 & 4 Vic. c. 90, § 2. 4 25 & 26 Vic. c. 67. The short title is |