without consent As the depositions on interrogatories, however, are only taken Restriction, as to the reading of de bene esse, it is enacted by the above statute, that " no exexaminations or "amination or deposition, to be taken by virtue of that act, depositions, "shall be read in evidence at any trial, without the consent of the party. "of the party against whom the same may be offered, unless "it shall appear to the satisfaction of the judge, that the "examinant, or deponent, is beyond the jurisdiction of the court, or dead, or unable, from permanent sickness, or other permanent infirmity, to attend the trial; in all or any of which cases, the "examinations and depositions, certified under the hand of the "commissioners, master, prothonotary, or other person taking the same, shall and may, without proof of the signature to such certificate, be received and read in evidence, saving all just excep"tions." 66 66 By the late act for the further amendment of the law, &c. reciting that it is expedient to lessen the expence of the proof of written or printed documents, or copies thereof, on the trial of causes; it is enacted, that "it shall and may be lawful for the judges of the su"perior courts of common law at Westminster, or any eight or more of them, of whom the chief of each of the said courts "shall be three, at any time within five years after that act shall "take effect, to make regulations, by general rules or orders, "from time to time, in term or in vacation, touching the voluntary 66 66 admission, upon an application for that purpose, at a reasonable "time before the trial, of one party to the other, of all such written "or printed documents, or copies of documents, as are intended. "to be offered in evidence on the said trial, by the party requiring "such admission, and touching the inspection thereof before such "admission is made, and touching the costs which may be incurred "by the proof of such documents or copies on the trial of the "cause, in case of the omitting to apply for such admission, or the 66 66 not producing of such document or copies, for the purpose of obtaining admission thereof, or of the refusal to make such ad Stat. 1 W. IV. c. 22. § 10.; and as to giving depositions in evidence, see Tidd Prac. 9 Ed. 811, &c. 3 & 4 W. IV. c. 42. § 15. and see 2 Rep. C. L. Com. 17. 67. And as to written evidence, of a public or private Power of judges tions, as to the to make regulaadmission of written or printed documents, &c. CH. XXXV. Witnesses in. terested solely on account of verdict. to be admissible. Direction to indorse name of witness on the record. 66 mission, as the case may be, and as to the said judges shall seem "meet; and all such rules and orders shall be binding and obligatory, in all courts of common law, and of the like force, as if the "provisions therein contained, had been expressly enacted by "parliament." In order to render the rejection of witnesses, on the ground of interest, less frequent, it is further enacted by the 3 & 4 W. IV. c. 42, that if any witness shall be objected to as incompetent,. "on the ground that the verdict or judgment, in the action in "which it shall be proposed to examine him, would be admissible " in evidence for or against him, such witness shall nevertheless "be examined; but, in that case, a verdict or judgment in that "action, in favour of the party on whose behalf he shall have been "examined, shall not be admissible in evidence for him, or any 66 one claiming under him; nor shall a verdict or judgment, against "the party on whose behalf he shall have been examined, be ad"missible in evidence against him, or any one claiming under "him." And that "the name of every witness objected to as incompetent, on the ground that such verdict or judgment would be admis"sible in evidence for or against him, shall, at the trial, be indorsed 66 on the record or document on which the trial shall be had, together "with the name of the party on whose behalf he was examined, by some officer of the court, at the request of either party; and "shall be afterwards entered on the record of the judgment: And "such indorsement or entry shall be sufficient evidence that "such witness was examined, in any subsequent proceeding in "which the verdict or judgment shall be offered in evidence." CHAP. XXXVI. Of ARBITRATION. trators formerly revocable by the parties. Cannot now be revoked, without leave of court. IT was formerly holden, that the power of arbitrators might Power of arbibe determined by the revocation of the parties; respecting which it was laid down, that although a man were bound in a bond to stand to the arbitrament of another, yet he might countermand or revoke the power of the arbitrator; for a man could not, by his own act, make an authority, power, or warrant, not countermandable, which by the law, and of its own nature, might be countermandeda. But now, by the late act for the further amendment of the law", &c. reciting that it is expedient to render references to arbitration more effectual; it is enacted, that "the power and authority of any arbi"trator 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 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 sub"mission, or by leave of a judge; and the arbitrator or umpire "shall and may, and is thereby 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 66 66 a Vynior's case, 8 Co. 82. and see Milne v. Gratrix, 7 East, 608. Oliver v. Collings, 11 East, 367. Curtis v. Potts, 3 Maule & S. 145. King v. Joseph, 5 Taunt. 452. Marsh v. Bulteel, 5 Barn. & Ald. 507. 2 Chit. Rep. 316. 1 Dowl. & R. 106. S. C. Green v. Pole, 4 Moore & P. 198. 6 Bing. 443. S. C. Skee v. Coxon, 10 Barn. & C. 483. Tidd Prac. 9 Ed. 823. b Stat. 3 & 4 W. IV. c. 42. § 39. and see 2 Rep. C. L. Com. 27. 79. As to submissions to arbitration in general, see Tidd Prac. 9 Ed. 819, &c.; and in what cases, and by what means, they might have been determined or revoked, with the consequences of revocation, previously to the above enactment, see id. 822, 3, 4. and 1st Supplement thereto, 142, 3. Power to compel attendance of witnesses. Power of arbitrators, under rule of court, &c. to administer oath. "judge thereof, may from time to time enlarge the term for any "such arbitrator making his award.” 66 66 any And it is thereby further enacted, that “when reference shall "have been made by any such rule or order as aforesaid, or by any "submission containing such agreement as aforesaid, it shall be "lawful for the court by which such rule or order shall be made, 66 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 mentioned 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, 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 66 66 money, and payment of expences, 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 "forth the county where such witness is residing at the time, or "satisfy such court or judge, that such person cannot be found: "Provided also, that no person shall be compelled to produce, "under any such rule or order, any writing or other document, "that he would not be compelled to produce at a trial, or to attend "at more than two consecutive days, to be named in such order." a And that "when, in any rule or order of reference, or in any "submission to arbitration, containing an agreement that the sub"mission shall be made a rule of court, it shall be ordered or 66 agreed that the witnesses upon such reference shall be examined upon oath, it shall be lawful for the arbitrator or umpire, or any "one arbitrator, and he or they are thereby authorized and required, "to administer an oath to such witnesses, or to take their affirmation, "in cases where affirmation is allowed by law instead of oath; and "if, upon such oath or affirmation, any person making the same "shall wilfully and corruptly give any false evidence, every person "so offending shall be deemed and taken to be guilty of perjury, "and shall be prosecuted and punished accordingly." b CHAP. XXXVII. Of INTEREST on DEBTS, &'c. interest was formerly re what not. It was formerly holden, that interest was payable on all liquidated In what cases sums, from the instant the principal became due: and accordingly, interest was allowed for money lent to, or paid for the de- coverable, and in fendant; or on an account stated. But it was not recoverable in an action for goods sold and delivered; or for work and labour: and it was afterwards settled, that interest was recoverable in four cases only 1st, where there was a contract in writing, for the payment of money on a certain day, as on bills of exchange, or promissory notes, &c.; 2dly, where there had been an express promise to pay interest; thirdly, where, from the course of dealing between the parties, such a promise might have been inferred; or fourthly, where it could be proved that the money had been used, and interest actually made of it: and therefore it was holden, that interest was not recoverable for money lent generally, without a contract for it, expressed, or to be implied from the usage of trade, or from special circumstances, or from written securities for payment of the principal money at a given time. So, interest 134. De Havilland v. Bowerbank, 1 Campb. 50.; and see Nichol v. Thompson, id. 52. n. Rogers v. Boehin, 2 Esp. Rep. 702. 704. Willis v. Commissioners of Appeal in Prize causes, 5 East, 22. 1 Smith R. 399. S. C. Hammel v. Abel, 4 Taunt. 298. Bruce v. Hunter, 3 Campb. 467. Goodchild v. Fenton, 3 Younge & J. 481. Foster v. Weston, 4 Moore & P. 589. 6 Bing. 709. S. C. h Calton v. Bragg, 15 East, 223. Page v. Newman, 9 Barn. & C. 378. 4 Man. & R. 305. S. C. |