Observation.

Where circumstances under which judge's order is obtained to hold to bail are concealed, defendant discharged. Where not discharged.

to this deponent to be regularly issued out of this honorable court, and returnable before his majesty's justices at Westminster, [or "before the king himself, or at Westminster" as the case may be,] under which said copy was written an English notice to the said defendant of the intent of such service, pursuant to the statute in that case made and provided.

on

Sworn, &c.

Stamp, 2s. 6d., oath, 1s.

T. S.

N. B. This affidavit may be sworn before the plaintiff's attorney, although a commissioner in C. P., but in K. B. it cannot be sworn before the plaintiff's attorney.

APPEARANCE, C. P. Discharge on Common. See tit. AFFIDAVIT, ante; titles ARREST, and the list of persons exempted therefrom subjoined thereto; and COMMON BAIL, post.

Some cases, not distinctly falling under either of the above or other titles, will be collected under this more obvious one.

If a defendant be holden to bail under a judge's order, a material fact being concealed from the judge, which would probably have induced him to refuse the order, the court will discharge the defendant on a common appearance, even though there were otherwise a sufficient affidavit of debt. Davis v. Chippendale, 2 B. &

P. 282.

The court will not discharge a defendant on a common appearance under statute 34 G. III. c. 9. s. 7. on the ground of the plaintiff's residence in Holland. Pieters and another v. Luytjes, 1 B. & P. 1.

A woman trader contracting a debt here in her husband's absence abroad, and arrested for the same, will not be discharged on a common appearance, on the ground of coverture, though that fact were known to the plaintiff. De Gaillon v. V. H. L'Aigle, 1B. & P. 8.

Infancy is no ground for a discharge on a common appearance. Maddox v. Eden, 1 B. & P. 480. It must be pleaded.

Nor is the certificate under bankruptcy, provided its validity be intended to be disputed. Stacey v. Federici, 2 B. & P. 390.

The court will not order a common appearance to be entered, on the ground that the plaintiff having proved his debt had been chosen assignee under a commission of bankrupt issued against the defendant. Hill v. Reeves, 1B. & P. 424.

Nor if the defendant be in custody at the suit of the petitioning creditor on the same debt on which the commission of bankruptcy founded. 3B. & P. 6.

APPEARANCE DAY. The first day in full term, and the last day of every term, are days of appearance. Where continuances, having reference to days of appearance, are to be entered of record, the first and last day of the term are those specified.

In an action on a bail bond, if the issue depend on the date of the appearance, the court will order the day of the appearance to be entered in the filazer's book, although before the application to the court issue has been already joined on the plea of comperuit ad diem. See titles RETURN OF WRIT, TERM, post.

APPOINTMENT by the master or prothonotary. R. G. H. 32 Geo. III. On every appointment to be made by the master the party on whom the same shall be served and required to attend, shall attend such appointment without waiting for a second; or in default thereof, the master shall proceed ex parte on the first appointment; but it is of course understood agreeably to former general rules, that no summons, appointment, &c. shall be made for any time during which the courts at Westminster shall be sitting. See titles ATTORNEY, BILL OF EXCHANGE, JURY, SPECIAL JURY, TAXING COSTS, post.

PRACTICAL DIRECTIONS.

On matters referred to the master or prothonotary for decision or report, an appointment is procured by application at their respective offices. The appointment being usually written upon the rule or order whereby the reference is made, serve the copy of such rule or order with the appointment thereon; but the appointment may be obtained after the service of the copy of the rule or order; if so, serve copy of the appointment itself, as made by the master or prothonotary.

ARBITRAMENT. May be pleaded in bar, or by way of discharge.

ARBITRATION. The agitation of a controversy before an arbi- What. trator mutually agreed on by the parties.

1. The arbitration under the statute hereafter mentioned, 2. By Observations. order of nisi prius, 3. By judge's order, 4. By bond or agreement, and by rule of court; being in their end the same, the whole subject will be treated under the above general title; and the less objectionably so, as much of the law applicable to either course of proceeding is applicable to the four divisions.

As this subject frequently engages the attorney's attention, the late and most important decisions relating to the practice on arbitration will be here collected; some notes of those also, as to the general law affecting the same, will incidentally be mentioned: but a work of this description will necessarily, and perhaps most usefully, be confined to the law, as it concerns practical points only.

By statute 9 & 10 W. III. c. 15. all merchants, traders, and Stat. 9 & 10 others desiring to end any controversy, suit or quarrel, for which W. III. c. 15. there is no other remedy but by personal action or suit in equity, by arbitration, may agree that their submission of their suit to the award or umpirage of any person or persons, shall be made a rule of any of his Majesty's courts of record, which the parties shall choose, and to insert such their agreement or promise in their submission or the condition of the bond, whereby they oblige themselves respectively to submit to the award or umpirage of any person or persons; which agreement being so made and inserted in their submission or promise, or condition of their respective bonds, shall or may, upon producing an affidavit thereof, made by witnesses thereunto, or any one of them, in the court in which the same is agreed to be made a rule, and reading and filing the same affidavit in court, be entered of record in such court, and a rule shall thereupon be made by the said court that the parties

Sect. 2.

To what cases the statute extends.

When submission may be revoked or not.

By death.

Arbitration limit

ed to the terms of the submission.

shall submit to and finally be concluded by the arbitration or umpirage which shall be made concerning them by the arbitrators or umpire pursuant to such submission; the parties neglecting to perform the arbitration or umpirage, or any part thereof, to be subject to the penalties of contemning a rule of court when he is a suitor or defendant in such court, and process for contempt may issue, and which shall not be stayed by the interference of any other court of law or equity, unless it shall appear on oath that such arbitrators or umpire misbehaved themselves, and that such award, arbitration, or umpirage, was procured by corruption or other undue means. And

By sect. 2. such arbitration or umpirage so procured shall be deemed void and be set aside, provided complaint thereof be made in the court where the same shall be made a rule for submission before the last day of the next term after such arbitration or umpirage shall have been made and published to the parties.

The statute seems to be confined to submissions by obligation. Anderson v. Coxeter, 1 Str. 301. And does not extend to make a parol agreement for submission a rule of court. Ansell v. Evans, 7 T. R. 1. Lucas er dimiss. Dr. Markham v. Dr. Wilson. And only civil suits or controversies are comprehended under it. Watson v. Cullum, 8 T. R. 520. But see Baker v. Townsend, 1 J. B. Moore, 120. S. C. 7 Taunt. 422.

But it is competent to either party formally to revoke his submission previously to the authority being executed, but not afterwards; and therefore, an award made after such formal revocation cannot be enforced. Milne and others, assignees, &c. v. Gratrix, 7 East, 608. Yet the arbitrators are right in afterwards proceeding to award, because the party continuing in submission is entitled to his action for damages on non-performance of the covenant to abide the award; and if bound in a penalty, the same is not avoided by the revocation. King v. Joseph, 5 Taunt. 452.

After a reference under an order of Nisi Prius, submission is not revocable. 1 Chit. R. 200. And it would be contempt to revoke submission after it has been made a rule of court. See Milne v. Gratrix, 7 East, 608. King v. Joseph, 5 Taunt. 452.

So the death of one of the parties at any time before the award made, is a revocation of the arbitrator's authority; and the court will set aside an award made subsequently to such death. Potts v. Ward, 1 Marsh. 366. Cooper v. Johnson, 1 Chit. R. 187. And it should seem that Bower v. Taylor, E. 56 G. III. K. B. cited Caldwell on Arbitration, page 30; and 7 Taunt. 574, 5. is now over-ruled. Also, where a verdict taken by consent, subject to an award, and defendant dies before award, ubi sup. 1 Marsh. 366. Toussaint v. Hartop, 7 Taunt. 571. 1J. B. Moore, 287, S. C. But see Turner v. Cowper, Bar. 210. cited 1 Marsh. 366, above.

And as to what count shall be good in an action for breach of covenant to obey, abide by, and perform an award, see Marsh, executor, &c. v. Bulteel, 5 B. & A. 507.

All matters in difference between the parties should be stated to be referred if it be so intended; if not, "all matters in difference in the cause." Smith v. Muller, 3 T. R. 624. as the arbitration will be extended or limited agreeably to the terms of the

submission. See Malcolm v. Fullarton, 2 T. R. 645. Upon a cause of action not submitted to an arbitrator, nor included in the reference, a suit will lie, though it shall appear that the terms of the reference were "all matters in difference." Ravee v. Farmer, 4 T. R. 146.

Where all actions, controversies, and also two distinct matters of difference are submitted by the terms of the agreement, and the award omit to decide one of such matters, the whole award is bad, and cannot be enforced by attachment. Randall v. Randall, 7 East, 81. George v. Lousley, 8 East, 13. but if it be not a condition of the submission that the award shall be made on all the points submitted, an award, determining some of the points only, is good, provided that the omission of the other do not destroy the equipoise of consideration. Simmonds v. Swaine,

1 Taunt: 549.

Where an action for breach of covenant was pending, and, with Where award all matters in difference, was referred to arbitration, the costs of held final. the suit to abide the event: Held, that an award that the plaintiff had no demand on the defendant, on account of any alleged breaches of covenant, or on any other account whatsoever, was final, although the suit was not in terms put an end to. Jackson v. Yabsley, 5 B. & A. 848.

So, where upon the trial of an action of tort, a verdict was found for the plaintiff, subject to a reference of all matters in difference. The defendant claimed before the arbitrator a sum of money due to him upon a balance of an account, which was admitted by the plaintiff to be due, the award, without stating that it was made, of and concerning the premises, directed a verdict to be entered for the plaintiff, with damages: Held, that this award was sufficient. Gray v. Gwennap, 1 B. & A. 106.

If an award order two things in favour of one party, one of which is uncertain, or the order respecting it cannot be enforced, he may waive this, and sue upon the breach of the order as to the other. 5 Id. 358,

And an award that two persons shall pay a debt in proportion to the shares which they held in a certain ship, the ratio of their shares not being a subject of dispute is sufficiently certain. Wohlenberg v. Lageman, 6 Taunt. 254.

submission a rule

It should seem that where it was left uncertain what court the As to making the submission should be made a rule of, it may be made of perior court. Soilleux v. Herbst, 2 B. & P. 444.

any su

Though the terms of the bond were to make the award instead of the submission a rule of court, the court was held to have jurisdiction under the statute. Pedley v. Westmacot, 3 East, 603, contrà Harrison v. Grundy, Str. 1178; and Powell v. Phillips. there cited by the master. E. So G. 111.

And such submission may be made a rule of court in vacation. In re Taylor and others, 5 B. & A. 217. Although, agreeably to the point ruled in this case, also above cited, the arbitrator may, notwithstanding revocation, make his award, yet after revocation, the submission ought not to be made a rule of court. King v. Joseph, 5 Taunt. 452. But see Aston v. George, 1 Chit. R. 200, where it was held, that after notice of revocation, an order

of court.

Where submission a stay of proceedings. Where arbitrator may award costs.

of Nisi Prius referring a cause to arbitration, might be made a rule of court, and such order cannot be revoked. 1Chit. R. 202, 3. A submission is no stay of proceedings, unless it be so mentioned. Ld. Raym. 789.

An arbitrator may award costs without any express authority for that purpose. Roe d. Wood v. Doe, 2 T. R. 644. But he cannot without authority charge a certain sum for his own expences. George v. Lousley, 8 East, 13. See also Fitzgerald v. Graves, 5 Taunt. 658. But it had previously been made a question, whether an award upon the reference of an action directing the payment of the costs of an award, without fixing the amount thereof, was bad in that point for uncertainty, or whether the amount may not be taxed by the officer of the court. Barrett v. Parry, 4 Taunt. 658.

But C. P. held that the general term "costs" in a rule of reference, did not include the costs in that reference. Bradley v. Tunstow, 1 B. & P. 34, and that an award of "costs sustained in the action," does not include the costs of the reference. Browne v. Marsden, 1 H. Bl. 223. And see Strutt v. Rogers, 7 Taunt. 213, and if they are demanded, an attachment will not lie. Id. ib.

Where, however, by the rule of reference "the costs were to abide the event of an award," that includes the costs of the reference as well as the costs of the cause. Wood v. O'Kelly, 9 East, 436.

So where a special jury having been obtained on the motion of the defendant the cause was referred, and by the order of reference the costs of the cause were to abide the event, and the costs of the reference, and the special jury, were left in the discretion of the arbitrator: Held, that the arbitrator cannot, after directing a verdict for the plaintiff, award that the latter should pay the costs of the special jury. Finlayson v. M'Leod, 1B. & A. 663.

Under a submission to arbitration of two assaults (for one of which the defendant had been convicted at the quarter sessions), and of all costs incident to the indictment, and subsequent proceedings thereon: Held, 1st, That the indictment and assaults might legally be referred. 2d, That the arbitrator did not thereby exceed his authority. Baker v. Townsend, 7 Taunt. 422. S. C. 1 J. B. Moore, 120.

A judge's order directed that a cause should be referred, and that either party wilfully preventing the arbitrator from making an award, by affecting delay or otherwise, should pay such costs as the court thought reasonable aud just: Held, that such order might be made a rule of court, after one of the parties had revoked the authority of the arbitrator. Aston v. George, 2 B. & A. 395. 1 Chit. R. 200.

But as one of the parties revoked the arbitrator's power because such party was not able to procure his witnesses, he was held not liable to costs. Aston v. George, Id.

Where an arbitrator awards damages without any mention of costs, and directs that execution shall not be taken out for the damages, but that they shall be set off against countermands of defendant, the plaintiff's attorney may take out execution for the costs, which, by the rule of reference, were to abide the award.