Reference to arbitration. Revocation of reference. CHAPTER VI. ARBITRATION. Reference to Arbitration. Reference to Arbitration.]—The judge may, with the consent of both parties, order the suit, with or without other matters in difference (within the jurisdiction), to be referred to arbitration, to a person or persons, in such manner and on such terms as he thinks reasonable and just(a). Where a plaint is entered, the judge may, with the consent of the parties, in cases within the ordinary jurisdiction of the court, and also in cases of enlarged jurisdiction by consent under sect. 23 of the 19 & 20 Vict. c. 108, make an order for a reference before, upon or after the return-day of the summons, and all the provisions as to references apply to a proceeding under such an order, and the same fees must be paid on making the order as if it were made on the hearing of the cause (b). The judge has no power to refer a cause except by consent of the parties; therefore, in pleading such an order of reference, it is sufficient to state that the parties mutually agreed to refer, without mentioning that it was done by order of the judge(c). An order of reference, when once made, cannot be revoked by either party, except by consent of the judge (d). The act to amend the law of evidence (14 & 15 Vict. c. 99) provides, by sect. 16, that "every court, judge, justice, officer, commissioner, arbitrator or other person, now or hereafter having by law or by consent of parties authority to hear, receive and examine evidence, is hereby empowered to administer an oath to all such witnesses as are legally called before them respectively” (e). (a) 9 & 10 Vict. c. 95, s. 77, (b) Rule 222. Form 120, App. 621; S. C., 21 L. J., Exch. 28. (d) 9 & 10 Vict. c. 95, s. 77, p. 417. (e) Before this act, an arbitrator appointed by a county court had no power to administer an oath, and, consequently, a witness swearing CHAP. VI. Entry of Award.]—The award of the arbitrator, arbitrators, or umpire, when made, is entered as the judgment Entry of in the cause, and is as binding and effectual as if given by award. the judge; but, at the first court held after the expiration of one week after the entry of the award, the judge may set it aside, or, with the consent of both parties, may revoke the reference and order another (f). falsely before him could not be indicted for perjury. See R. v. Hallet, 20 L. J., Mag. Čas. 197. (f) 9 & 10 Vict. c. 95, s. 77, p. 417. P.N. CHAPTER VII. ACTIONS SENT FROM THE SUPERIOR COURTS. Actions of contract after issue joined. Actions of What Cases may be sent.]-By sect. 26 of 19 & 20 Vict. c. 108, when in any action of contract brought in a superior court the claim indorsed on the writ does not exceed fifty pounds, or where such claim, though it originally exceeded fifty pounds, is reduced by payment into court, payment, an admitted set-off, or otherwise, to a sum not exceeding fifty pounds, a judge of a superior court, on the application of either party, after issue joined, may in his discretion, and on such terms as he may think fit, order that the cause be tried in any county court which he shall name. By sect. 7 of 30 & 31 Vict. c. 142, in any such action contract before of contract as already described the defendant within eight issue joined. days from the day of the service of the writ, if the whole or part of the demand of the plaintiff be contested, may apply to a judge at chambers for a summons to the plaintiff to show cause why the action should not be tried in the county court or one of the county courts in which the action might have been commenced, and unless good cause be shown, the judge will order the action to be tried accordingly. Actions of tort. By sect. 10 of 30 & 31 Vict. c. 142, the defendant in any action of tort brought in a superior court, whatever be the amount claimed, may make an affidavit that the plaintiff has no visible means of paying the costs should a verdict not be found for him; and thereupon a judge of the court in which the action is brought may, if the plaintiff fail to give security for costs, or to satisfy the judge that he has a cause of action fit to be tried in the superior court, order the cause to be remitted for trial to a county court CHAP. VII. to be named. This section has been held to be retrospective and to apply to an action commenced before the passing of the act (a). Order when and how obtained.]—An order to transmit an action of contract to the county court under sect. 26 of 19 & 20 Vict. c. 108 can only be made after issue joined (b), but it may be made on the application of either party. Under sect. 7 of 30 & 31 Vict. c. 142, the application must be made within eight days after service of the writ, and can only be made by the defendant. An order to transmit an action of tort to the county court under sect. 10 of the same act may be made at any time, but it must be on the application of the defendant. Although in sect. 10 of 30 & 31 Vict. c. 142, the power of making the order is given to a judge of the court in which the action is brought, it has been held that a judge of any court sitting at chambers for all has power to make an order (c). Effect of Order.]-Where an action of contract is sent to the county court under sect. 26 of 19 & 20 Vict. c. 108, the trial only takes place in the county court, and the cause still remains a cause in the superior court, which retains full control over it (d). If an action of contract be sent before issue joined under sect. 7, or an action of tort under sect. 10 of 30 & 31 Vict. c. 142, the cause becomes for all practical purposes a county court cause just as if it had been commenced in the county court; and it would seem that the superior court loses all control over it except upon appeal (e). Proceedings in County Court.]-Where an action of Where cause contract has been ordered to be tried in a county court ordered by superior court after issue joined, the plaintiff must lodge with the regis- to be tried in a trar the order and issue. The judge must appoint a day county court. (a) Kimbray v. Draper, L. R., 3 Q. B. 160. (b) But where an order was made under this section on the application of the plaintiff before issue joined, both parties appearing to the summons and no objection being made upon this ground, and the case was tried, it was held that the defendant could not, after that, have the order (c) Owens v. Woosman, L. R., 3 (d) Wheatcroft v. Foster, E. B. & E. 737; S.C., 27 L. J., Q. B. 277. (e) 30 & 31 Vict. c. 142, ss. 7 & 10, p. 413. PART III. New trial of case sent from superior court. for hearing, notice of which must be sent by post or otherwise, by the registrar, to both parties or their attorneys (ƒ). The day must be so fixed as to secure a reasonable notice of trial, but not necessarily ten days' notice (g). After the hearing, the registrar must certify the result to the master's office (h). In accordance with the certificate, judgment will be signed in the superior court (i). Where, however, the order has been made before issue joined the plaintiff must lodge, with the original writ and the order, a statement of the name, address and description of himself and of the defendant, and, where the writ is not specially indorsed, of the particulars of his claim or cause of action (k). Where in any action of tort the cause has been remitted for trial in a county court the plaintiff must lodge, with the original writ and order, a statement of the name, address and description of himself and of the defendant, and of his cause of action, signed by himself or his attorney (1). After the lodgment of the order in an action of contract the proceedings are the same as if the action had been commenced in the county court; and in an action of tort the court to which the cause is remitted has the same powers and jurisdiction with respect to the cause as if it had been commenced in such court by agreement of parties, under sect. 23 of 19 & 20 Vict. c. 108, and all the proceedings are the same. In both cases as many copies of the statements are to be delivered as there are defendants, and upon the lodgment of the writ, order and statement, the registrar is to indorse upon the first the date of the lodgment and appoint a day for the hearing, which, unless otherwise ordered by the judge, is to be the day on which summonses are being made returnable on the day of lodgment. The registrar is to give notice of the day to both parties by post or otherwise ten clear days before such day and send to each defendant (m). New Trial.]-In the case of an action sent from a superior court to be tried in the county court under sect. (f) 19 & 20 Vict. c. 108, s. 26, p. 414. Form 45, App. (g) Ipswich Gas Company v. Norman, 7 B. & S. 847. (h) Form 65, App. (i) 19 & 20 Vict. c. 108, s. 26, p. 414. (k) 30 & 31 Vict. c. 142, s. 7, p. 413, Rule 68. (7) Ibid. s. 10, p. 413; Rule 70. (m) 30 & 31 Vict. c. 142, ss. 7, 10, p. 413; Rules 68 to 71. As to notice of special defences in the case of actions sent from the superior court, see ante, p. 95. |