126, s. 2. the said Lord Chief Justice, the Chief Justice of the Common 18 Vict. c. Pleas, or Lord Chief Baron, or any other Judge of the same Court, shall be sitting to try causes in Dublin, so that the trial of two causes may be proceeded with at the same time; and all jurors, witnesses, and other persons who may have been summoned or required to attend at or for the trial of any cause before the said Lord Chief Justice, the Chief Justice of the Common Pleas, or Lord Chief Baron, as the case may be, shall give their attendance at and for the trial thereof before such other Judge as may be sitting to try the same by virtue of this Act; and it shall be lawful for the registrars and other officers of the Lord Chief Justice, the Chief Justice of the Common Pleas, or Lord Chief Baron, as the case may be, to appoint from time to time fit and proper persons, to be approved by the said Lord Chief Justice, the Chief Justice of the Common Pleas, or Lord Chief Baron, to attend for them and on their behalf respectively before such Judge; and the trial of every cause which shall be so had by virtue of this Act shall, if necessary, be entered of record, as having been had before the Judge by whom such cause in fact was tried. he Power to registrars to persons to appoint fit attend the second Judge. Power to Judge, upon application, arbitration Court or direct before trial. c. 125, s.3. VI. If it be made appear, at any time after the issuing of the writ, to the satisfaction of the Court or a 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 17 & 18 Vict. for such Court or Judge, upon such application, if they or 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 the Master of the Court, or, in country causes, to the Assistant-Barrister of any county or riding, 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 (b). (b) This and the following sections relate to arbitrations. As to the nature of arbitrations in general and the changes introduced by the present Act, see sect. 14, post, note (h). references. The present section has introduced a very considerable change in the law Compulsory of arbitration. Formerly it was necessary in every case of arbitration that the submission should be by consent, and in no case could there be a compulsory reference. However, now the Court or Judge may direct a compulsory reference in all cases falling within the present section. The power cannot, strictly speaking, be exercised at Nisi Prius (Robson v. Lees. 6 H. & N. 258; Jefferyes v. Lovell, 19 W. R. 408); but in practice cases are referred at the trial, inasmuch as the Judge may adjourn the trial and make an order in camerá referring the cause (Murray v. Sunderland Dock Co., 1 F. & F. 179; Jones v. Beaumont, ib. 336); see however, Jefferyes v. Lovell, ubi supra. The statute, as will be observed, authorizes a compulsory reference whenever the matter in dispute consists wholly or in part of matter of mere account. The mere fact that some one item in the account between the parties may involve a charge of fraud does not oust the jurisdiction (Imhoff v. Sutton, L. R. 2 C. P. 406); and where in an action on an attorney's bill there was a dispute as to items, and also a defence on the ground of negligence, the Court refused to disturb an order made by a Judge referring the cause (Reece v. Chaffers, 11 W. R. 307). Where there was a set off to an attorney's bill and the question of retainer might arise on many of the items, it was held that the cause involved matter of account which could not be conveniently tried, and therefore that it should be referred (Goodred v. Seale, 2 F. & F. 382, and see Blakeney v. Palmer, 11 Ir. Jur. N. S. 135). So also an action for dilapidations may be referred (Angell v. Felgate, 7 H. & N. 396; Cummings v. Birkett, 3 H. & N. 156); and see further, Trickert v. Green, 1 H. & R. 63; Browne v. Emerson, 17 C. B. 361; Credin v. Credin, 3 Ir. Jur. N. S. 252; Clark v. Ware, 17 L. T. N. S. 144. On the other hand when the main question between the parties is one falling properly within the province of a jury, as for instance a question of liability or of fraud, it will be grounds for refusing a compulsory reference under this section; (Brown v. Girard, 19 L. T. N. S. 324; Prior v. Perry, 2 Ir. Jur. N. S. 422; M'Donnell v. Jameson, ib. 100; Orphan School v. Henley, 27 L. J. Ex. 426); and see Pellatt v. Markwick, 3 C. B. N. S. 760; Rushforth v. Midland Great Western Railway Company, 11 Ir. Jur. N. S. 245. When a reference is made to the Master he must proceed with the inquiry, although a question of fraud should incidentally arise before him (Insull v. Moojen, 3 C. B. N. S. 359). In such cases the course to be adopted by the party is to apply to the Court to rescind the order of reference (Clark v. Ware, 17 L. T. N. S. 144). The Master, if required by either of the parties, must make up a report as prescribed by the 159th G. O., 1854 (De Freyne v. French, Ir. R. 1 C. L. 311). When an action is compulsorily referred it still remains in the Court in which it was brought. The Court may therefore, if necessary, amend the particulars of demand before the making of the award (Gibbs v. Knightly, 2 H. & N. 34). So also it may set aside the award made by the referee when the circumstances warrant such a course (Watson v. Bennett, 5 H. & N. 831). As to sending the cause back to be reconsidered by the referee see Baggalay v. Borthwick, 10 C. B. N. S. 61; Wardell v. Hopkins, 11 Ir. Jur. N. S. 212. As to appealing against a ruling of the Master see De Freyne v. French, ubi supra. An arbitrator upon a compulsory reference has no power over the costs either of the cause, reference, or award, unless the rule or order appointing him gives it to him, and where the rule is silent the successful party is not entitled to costs (Bell v. Postlethwaite, 5 El. & Bl. 695); and see further as to the question of costs on such a reference, p. 297, post; and as to amending an inadvertent omission to provide for costs in the order of reference see Bell v. Postelthwaite, ubi supra. stated, and fact tried. c. 125, s. 4. 7. If it shall appear to the Court or a Judge that the Special cases allowance or disallowance of any particular item or items in my, such account depends upon a question of law fit to be decided question of by the Court, or upon a question of fact fit to be decided by 17 & 18 Vict. a jury, or by a Judge, upon the consent of both parties, as herein before provided, it shall be lawful for such Court or Judge to direct a case to be stated, or an issue or issues to be tried; and the decision of the Court upon such case, and the finding of the jury or Judge upon such issue or issues, shall be taken and acted upon by the arbitrator, master, or assistant-barrister, as the case may be, as conclusive. 8. It shall be lawful for the arbitrator, master, or assistantbarrister, upon any compulsory reference under this Act, or upon any reference by consent of parties where the submission is or may be made a rule or order of any of the superior Courts of Law or Equity at Dublin, if he shall think fit, and if it is not provided to the contrary, to state his award, as to the whole or any part thereof, in the form of a special case for the opinion of the Court, and when an action is referred, judgment, if so ordered, may be entered according to the opinion of the Court (c). Arbitrator may state special case. 17 & 18 Vict. c. 125, s. 5. direct arbi when issues to his deci (c) As to bringing error on a special case so stated, see sect. 38, post. Error. 9. If upon the trial of any issue of fact by a Judge under Power to this Act it shall appear to the Judge that the questions arising Judge to thereon involve matter of account which cannot conveniently tration at be tried before him, it shall be lawful for him, on the appli- time of trial, cation of either party, to order that such matter of account of fact left be referred to an arbitrator appointed by the parties, or to sion. 17 & 18 the master of the Court, or, in country causes, to the assis- Vict. c. 125, tant-barrister of any county, or riding, 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 herein-before 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 (cc). 8. 6. (cc) The powers conferred by this section cannot be exercised by a Judge Where sitting at Nisi Prius, (Jefferies v. Lovell, 19 W. R. 408). power exerciscable. Proceedings before and power of such arbitraViet. c. 125, tor. 17 & 18 s. 7. Witnesses. Power to Judge to send back matters for re-consider ation to ar bitrator. 18 Vict. c. 125, s. 8. Sending back case 17 10. The proceedings upon any such arbitration or reference as aforesaid shall, except otherwise directed hereby or by the submission or document authorizing the reference, be conducted in like manner, and subject to the same rules and enactments, as to the power of the arbitrator, master of the Court, or assistant-barrister, and of the Court, the attendance of witnesses, the production of documents, enforcing or setting aside the award, and otherwise, as upon a reference made by consent under a rule of Court or Judge's order (d). (d) As to compelling the attendance of witnesses before arbitrators, and administering oaths, see 3 & 4 Vict. c. 105, ss. 63, 64; and 14 & 15 Vict. c. 99, s. 16, post, in the Appendix. See as to the construction of this section (Re Rouse v. Meier, 19 W. R. 438). 11. In the case of any such arbitration or reference as aforesaid, the Court or a Judge shall have power at any time, and from time to time, to remit the matters referred, or any or either of them, to the re-consideration and re-determination of the said arbitrator or referee, upon such terms, as to costs and otherwise, as to the said Court or Judge may seem proper (e). (e) The power of the Court to remit a case to the arbitrator under this section is not confined to compulsory arbitration, but may be exercised in all to arbitrator. cases where the submission may be made a rule of Court. See sect. 8, ante, and Re Morris, 6 E. & B. 383. Award must be certain and final. The powers conferred by this section have introduced a very considerable change in the law of arbitration. Formerly the rule was, that when once the arbitrator had made his award he was functus officio, and if the award so made was bad, the arbitrator had no power to amend the defect, and in consequence the proceedings became abortive. However, now under the above section, the Court has power at any time to remit the matters referred to the arbitrator, provided the submission may be made a rule of Court (as to which, see sect. 20, post), and by that means an award which is defective in consequence of some omission or oversight may be amended. The Court, however, is not authorized under this section to send back an award for reconsideration on any ground, except such as before the Statute would have warranted it in setting it aside, or treating it as a nullity (Miller v. Bowyers, 3 K. & J. 66). In order that an award may be good, the arbitrator must pursue strictly the authority given to him. The award must therefore be certain and free from ambiguity, and it must also be conclusive, i. e. it must finally settle all the matters referred. Thus, an award directing that A. or B. shall do a particular act is bad for uncertainty (Lawrence v. Hodgson, 1 Y. & J. 16). Where an award directed that certain sums of money should be paid by one of the parties to the other, and that the former should secure the payment by his bond and warrant of attorney, and further that the warrant should be lodged with the arbitrators, and that judgment should not be entered without their consent, it was held that the award was not final and was therefore bad (Lindsay v. Lindsay, 11 Ir. C. L. R. 311); and see further as to when an award is final M'Cabe v. Grey, 13 Ir. L. R. 343; Greene v. Bracken, 2 Ir. C. L. R. 176. An award is not bad for not deciding several items separately, unless either they were referred separately in form, or it clearly appears from the reference that the parties intended that they should be separately decided (Whitworth v. Hulse, L. R. 1 Ex. 251); and see Richards v. Browne, 9 Ir. C. L. R. 199. An award will not be bad for want of finality if it directs the payment of a sum of money which has not been ascertained, but the amount of which is ascertainable (Gower v. Donovan, 1 Jebb & Sym. 364; Wilson v. Doolan, 5 Ir. Jur. O. S. 135). The arbitrator should not take upon himself to include in the award a matter not agreed to be referred. If, however, he does, the award will not be bad, provided the portion of it, in respect of which the arbitrator has exceeded his authority, may be rejected as surplusage (Wilson v. Doolan, 5 Ir. Jur. O. S. 135). Where, however, it cannot be so rejected, as for instance where the rejection of it would alter the meaning of the remaining parts of the award, the award will be bad (Hawkyard v. Stocks, 2 D. & L. 937; Lindsay v. Lindsay, 11 Ir. C. L. R. 311). decided In all such cases the Court has now got power under the present section Power to to remit the matter to the arbitrator for amendment, and the jurisdiction of remit cannot the Court may be exercised at any time, and cannot be ousted by inserting be ousted by a prohibitory clause in the consent (Coleman v. Cork and Youghal Railway agreement. Co., 13 Ir. C. L. R. 368). Where, therefore, the award is defective in consequence of some error involving no misconduct in the arbitrators or substantial injustice to the parties, it will as a general rule be sent back to the arbitrators (Anning v. Hartley, 27 L. J. Ex. 145; Davies v. Pratt, 17 C. B. 183). Where, however, the award is not void upon the face of it, it will Where arbinot be sent back upon affidavits showing that the arbitrator has wrongly trator has decided a point of law, or for an alleged mistake not manifest or apparent wrongly. upon the face of it, or admitted by any affidavit or statement of the arbitrator (Fuller v. Fenwick, 3 C. B. 705; Lockwood v. Smith, 10 W. R. 268; Cleary v. Cleary, 10 Ir. C. L. R. 329; Godfrey v. Broderick, 14 Ir. C. L. R. Ap. 33; Wardell v. Hopkins, 11 Ir. Jur. N. S. 212). Where, however, it is admitted by the parties, or by the arbitrator, or is otherwise evident that the arbitrator has committed a mistake, the Court will remit the award (Flynn v. Robertson, L. R. 4 C. P. 324; Mills v. Bowyers, 3 K. & J. 66; Burnard v. Wainwright, I L. M. & P. 455; and see Harland v. Corporation of Newcastle, L. R. 5 Q. B. 47; Re Dare Valley Railway Co., L. R. 6 Eq. 429). In all such cases it should be remembered that if the arbitrator has pursued his authority, and the award is regular upon the face of it, it may be enforced as it stands, but where it is defective upon the face of it, it is a nullity and cannot be enforced unless amended. 12. All applications to set aside any award made on a compulsory reference under this Act, shall and may be made within the first seven days of the term next following the publication of the award to the parties, whether made in vacation or term; and if no such application is made, or if no rule is granted thereon, or if any rule granted thereon is Applications to set aside the award. 17 & 18 Vict. c. 125, s. 9. |