What agree statute. be made a rule, and reading and filing the said affidavit in Court, be entered of record in such Court, and a rule shall thereupon be made by the said Court, that the parties 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, and in case of disobedience to such arbitration or umpirage, the party neglecting or refusing to perform and execute the same, or any part thereof, shall be subject to all the penalties of contemning a rule of Court, when he is a suitor or defendant in such Court, and the Court, on motion, shall issue process accordingly, which process shall not be stopped or delayed in its execution by any order, rule, command or process of any other Court, either of law or equity, unless it shall be made appear on oath to such Court, that the arbitrators or umpire misbehaved themselves, and that such award, arbitration, or umpirage was procured by corruption or other undue means." Under the Act of William, it will be observed that a submission could not be made a rule of Court, except where the parties specially provided that it might; but under the present section, every submission may be made so. Care must, however, be taken to distinguish between an agreement to refer a matter in dispute to arbitration and a mere agreement, as to the manner ments within of valuation. The latter cannot be made a rule of Court. Where in an agreement for the sale of lands, it was provided that compensation should be given in case of any error in the description of the premises, and that the amount of such compensation should be settled by two referees, it was held that there was no agreement for arbitration (Boss v. Helsham, L. R. 2 Ex. 12); but where the lease of a farm contained a clause that if the premises should during the term be sold, the tenant should, if required by the landlord, quit, and the tenant and landlord should each appoint a valuer to 'estimate the compensation to be given to the tenant, it was held that the agreement was within the corresponding section of the English Common Law Procedure Act, 1854 (In re Hopper, L. R. 2 Q. B. 367); and see, further, Dinham v. Bradford, L. R. 5 Ch. 519; Richardson v. Smith, ib. 648, In re The Anglo-Italian Bank and De Rosaz, L. R. 2 Q. B. 452; Parkes v. Smith, 15 Q. B. 297, 309. See also Bradford v. Manningham, 3 F. & F. 88, in which it seems to have been doubted whether the present section is not confined to actions and suits in the superior courts which the parties have agreed to refer. Submission must be in writing. Must be signed. Who may In order that a submission may be made a rule of Court under this section, it must be in writing. Where two parties agreed by deed to refer all matters in dispute to two arbitrators, one to be appointed by each, and after disputes had arisen, each appointed an arbitrator by parol, it was held that the submission was a parol submission (In re Glaysher, 3 H. & C. 442). Compare, however, with this case Newton v. Hetherington, 19 C. B. N. S. 342, and In re Willcox, L. R. 1 C. P. 671, whence it would appear that in such a case the submission may be made a rule of Court, and see sect. 15, ante. In order that a submission may be made a rule of Court, it is further necessary that it should clearly appear that it has been signed by the party, or a duly authorized agent (Re Henshaw & Falk, 12 L. T. N. S. 638.) A agree to refer. married woman cannot be bound by a reference of disputes affecting freehold estate (Strachan v. Dougall, 7 Moore, P. C. C. 365); and see M'Can v. O'Farrell, 3 C. O. F. 30. In Henery v. Henery, Batty, 125, it was held that an infant may maintain an action upon an award, see Proudfoot v. Boyle, 15 M. & W. 198; Biddell v. Dowse, 6 1. & C. 255. One partner cannot bind his co-partner by an agreement to refer (Adams v. Bankart, 1 C. M. & R. 681; Stead v. Salt, 3 Bing. 101). referred. As a general rule, parties may refer to arbitration any matters in dispute What may be between them. Thus "all matters in difference" may be referred (see Smith v. Miller, 3 T. R. 624); and there is no objection to referring prospective differences (Parkes v. Smith, 15 Q. B. 297). A criminal charge cannot, however, be referred (R. v. Hardey, 14 Q. B. 529); but where a party has a remedy by action as well as by indictment, he may submit the adjustment of the reparation to arbitration (Buker v. Townsend, 7 Taunt. 422). As mentioned in the note to sect. 14, ante, p. 289, every submission to Revoking arbitration was revocable at common law. Where, however, the submission submission. is within 10 Wm. 3, c. 14, the parties are prevented from revoking it by 3 & 4 Vict. c. 105, s. 63, but if the submission can be made a rule of Court under the present section only, the provisions of the Act last mentioned do not apply, and the submission is revocable (Mills v. Bayley, 2 H. & C. 36; Thomson v. Anderson, L. R. 9 Eq. 523; Re Rouse v. Meier, 19 W. R. 438); in which latter case it was held that a submission to arbitration not containing a provision that it may be made a rule of Court, is revocable by either party, though it has been made a rule of Court under the action of the English Common Law Procedure Act, 1854, corresponding to the present one. It is therefore always desirable that a submission to arbitration should be drawn so as to fall within the provisions of the Act of William. Assuming that a submission to arbitration has been duly entered into, and has not been revoked, either party may make it a rule of Court under the present section. Where the consent to refer relates to the matters in a cause actually pending, it may be made a rule of Court by side bar order, 139th G. O. 1854. In other cases, the agreement to refer must be made a rule of Court, by motion upon notice. The submission should be produced, but where it appeared, in a case under the Land Clauses Consolidated Act, that the original was in the possession of the opposite party, who refused to produce it, the Court acted on a verified copy (Martin v. The Mayor of Belfast, 12 Ir. L. R. 338). How submission made a rule of Court. Submission should be produced. The execution of the submission should be properly verified, and in cases Proving where the submission is made a rule of Court under the Act of Wm. 3, an execution. affidavit of one of the witnesses is necessary; where, however, the witness refused to verify, the Court under the circumstances dispensed with the affidavit (Shortall v. Moran, 2 Ir. L. R. 87). See also, as to dispensing with an affidavit from the attesting witness, in cases where the submission is made a rule of Court under this section, In Re Newton v. Hetherington, 19 C. B. N. S. 342; and see as to compelling the witness to make an affidavit (Nugent v. Lowe, Bl. D. & Q. 220). tration. As to the several requirements necessary in order that the award may be binding upon the parties, see ante, p. 284; as to the manner of enforcing it, see ante, p. 287; and as to the manner of setting it aside, see ante, p. 285. As regards the costs of arbitration, the power of awarding them depends Costs of arbientirely upon the terms of the submission. Where a case was referred and it was agreed that the costs should abide the event, and the sum awarded (the demand being upon foot of a contract) was under £20, it was held that the parties had contracted themselves out of the provisions of sect. 243 of the Common Law Procedure Act, 1853, and the party succeeding was entitled to full costs (Owens v. Vanhomrigh, 14 Ir. C. L. R. 362), and see further, As to addresses of counsel to juries on trials of 18 Vict. c. 125, s. 18. Webb v. Saunderson, 8 L. T. N. S. 248; Robertson v. Sterne, 13 C. B. N. When the order referring a cause, provided that the costs should abide the event of the award, and the arbitrator awarded that each party had a claim against the other, and set off one against the other, and directed the balance to be paid to the party having the larger claim, it was held, although the claims on both sides were unliquidated, that the party recovering the balance was entitled to the costs (Dunhill v. Ford, L. R. 3 C. P. 36). Where the submission provides that the costs shall be in the discretion of the arbitrator, he may award costs, even where the action is one of contract, and the sum awarded is under £20 (Cleary v. Cleary, 10 Ir. C. L. R. 329); and if in such a case the award is silent as to costs, it will be bad (Richardson v. Worsley, 5 Ex. 613). Where in such a case the arbitrator directed the costs to be paid by the party to whom he found the balance to be due, the Court refused to interfere with his discretion (Fearon v. Flynn, L. R. 5 C. P. 34). Where the submission is silent as to costs, the arbitrator has no power over them (Taylor v. Gordon, 2 M. & Scott, 725; Wilson v. Doolan, 5 Ir. Jur. O. S. 135; West London Railway Co. v. Fulham, L. R. 5 Q. B. 361); if, however, the reference be of the matters in dispute in a cause, the arbitrator has power to adjudicate respecting the costs of the cause, but not of the reference or award; and each party must bear his own expenses of the reference, and is liable to half the costs of the award (Firth v. Robinson, 1 B. & C. 277; Taylor v. Gordon, 9 Bing. 570). As to sending back an award to an arbitrator that he may have an opportunity of certifying for costs, see Harland v. Mayor of Newcastle, L. R. 5 Q. B. 47; Fitzpatrick v. Moylan, 11 Ir. Jur. N. S. 292; and see as to the scale of taxation in reference to the attendance of counsel, the arbitrators' fees, &c., Sinclair v. Great Eastern Railway Co. L. R. 5 C. P. 135. 21. Upon the trial of any cause the addresses to the jury shall be regulated as follows:-The party who begins (p) or his counsel, shall be allowed, in the event of his opponent not causes. 17 & announcing at the close of the case of the party who begins his intention to adduce evidence, to address the jury a second time at the close of such case, for the purpose of summing up the evidence; and the party on the other side, or his counsel, shall be allowed to open the case, and also to sum up the evidence (if any); and the right to reply shall be the same as at present (9). Right to begin. (P) When a question as to the right to begin arises, the test to determine it is, "which side would be entitled to a verdict, supposing no evidence given on either side" (Leete v. Gresham Insurance Co., 15 Jur. 1161). Thus where in an action by the indorsee of a bill of exchange against the drawer, want of consideration was pleaded, it was held that inasmuch as consideration is to be presumed until the contrary is shown, the defendant should begin (Mills v. Barber, 1 M. & W. 425). Where in an action of trespass, the defendant pleaded a right to a watercourse and entry to remove obstructions, upon which plea the plaintiff took issue; it was held that the Judge might properly allow the defendant to begin, unless the plaintiff undertook to prove substantial damage (Chapman v. Rawson, 8 Q. B. 673). So, also, where in an action of covenant for the payment of money, the defendant pleaded that the deed was given to secure the payment of money lost at gambling, it was held that the defendant was entitled to begin (Hill v. Fox, 1 F. & F. 136). In an action upon the money counts, where the defendant pleaded affirmatively, it has been frequently held that the plaintiff must begin, for the Action on the claim being unliquidated, he must give evidence as to its amount (Morris v. counts. Loton, 1 M. & Rob. 233; but see Woodgate v. Potts, 2 C. & Kir. 458. In such cases, however, the defendant by admitting the amount will entitle himself to begin (Lacon v. Higgins, 3 Stark, 178). money mages There is an apparent exception to the rule stated above, in cases where Where unasdamages of an unascertained amount are sought to be recovered. In such certained dacases, if the defendant pleads affirmatively, the plaintiff in case no evidence claimed. were given by the defendant in support of his pleas would be entitled to a verdict for nominal damages at least, and the right to begin has consequently in such cases been frequently claimed by the defendant. As, however, the amount of damages in such cases is a substantial question as to which the plaintiff must give evidence, it has been determined that the plaintiff has the right to begin (Carter v. Jones, 1 M. & Rob. 281; Pim v. The Eastern Counties Railway Co., 2 F. & F. 133, in which latter case the action was for negligence, and the only plea accord and satisfaction), and the rule is the same where the action is one of contract and the damages sought are unliquidated, as for instance, in actions for breach of promise of marriage (Mercer v. Whall, 5 Q. B. 447). Where, however, the damages are of ascertained amount, as in replevin, or must be nominal, the defendant will be entitled to begin where his pleas are in the affirmative (Mercer v. Whall, ubi supra, 465; Lyons v. Fitzgerald, Sm. & Bat. 405). The defendant may, however, by admitting the amount in such cases entitle himself to begin (Bonfield v. Smith, 2 M. & Rob. 519; Tindall v. Baskett, 2 F. & F. 644). issues. Where the affirmative of any one material issue is on the plaintiff, and he Where undertakes to give evidence upon it, he has a right to begin as to all (Rawlins several v.Desborough, 2 M. & Rob. 328; with which compare Lyons v. Fitzgerald, ubi supra). Where, however, to an action on a bill and an account stated, the defendant pleaded payment to the first, and a traverse to the second count, he was held not to be entitled to begin unless he undertook to give some evidence of an account stated besides the bill (Smart v. Raynor, 6 C. & P. 721). In ejectment the rule is that if the defendant admits so much of the In actions of plaintiff's case as would entitle the latter to recover, if his title were not dis- ejectment. placed by the defendant, the defendant is entitled to begin (Bernard v. Clune, Ir. Cir. Rep. 826). Thus, if the plaintiff claims as heir, and defendant as devisee, the defendant by admitting plaintiff's pedigree and the dying seized entitles himself to begin (Doe v. Smart, 1 M. & Rob. 476; Goodtitle v. Braham, 4 T. R. 497). In order, however, to entitle himself to begin he must admit the whole without qualification, and where therefore the ejectment was brought by the heir against a person claiming under a conveyance from the ancestor, it was held that the defendant was not entitled to begin upon admitting the heirship of the plaintiff (Doe v. Tucker, M. & M. 536). So, also, where an ejectment is brought by a prior devisee against a subsequent one, the defendant is not entitled to begin upon admitting the execution of the will, under which the plaintiff claims (French v. French, 2 Ir. Jur. O. S. 21; Doe v. Bryan, 5 C. B. 655). Right of reply. Power to Court or Judge to adjourn trials. 17 & 18 Vict c. 125, s. 19. Adjourning trial. Affirmation instead of oath in certain cases. As to the right of a party to a new trial in consequence of an erroneous ruling of the Judge as to the right to begin, see Doe v. Brayne, ubi supra ; Ashby v. Bates, 15 M. & W. 589; Bradford v. Freeman, 5 Ex. 734; Lyons v. Fitzgerald, Sm. & Bat. 405. A new trial in such a case is not a matter of strict right, but it will be granted whenever it appears that the party was prejudiced by the erroneous ruling. (q) The party who begins is entitled to the reply if the opposite party calls witnesses. If the opposite party does not call witnesses the party beginning has in general no right to reply. If, however, the opposite party in stating his case puts forward a statement of facts material to the issue, not given in evidence when the statement is made, and which he declines to prove, it is in the discretion of the Judge to allow a reply (Arundell v. Hayes, 1 Huds. & B. 486; Naish v. Browne, 2 C. & K. 219; Crerar v.Sodo, M. & M. 85). Thus where defendant's counsel stated that several apologies had been offered which were all refused, but no witnesses were called for the defendant, plaintiff's counsel was allowed to reply (Reordan v. Sullivan, Ir. Cir. Rep. 346), and cf. Clarke v. White, ib. 523. Statements made, however, as matter of inference from the evidence previously given do not give a right of reply (Magrath v. Browne, Arm. Mac. & O. 8, 133). 22. It shall be lawful for the Court or Judge, at the trial of any cause, where they or he may deem it right for the purposes of justice, to order an adjournment for such time and subject to such terms and conditions as to costs, and othewise, as they or he may think fit (r). (r) Previous to the passing of the present statute a Judge might postpone the trial of a cause before the trial began, but after that he had no power to adjourn the hearing. Under the above section he may now adjourn the hearing whenever it is proper to do so for the purposes of justice. Where a material witness of the plaintiff was absent the cause was adjourned on the terms of the defendant's costs of the day being part of his costs in the cause (Bikker v. Beeston, 1 F. & F. 685, 686); and see also Cahill v. Dawson, 1 F. & F. 291, in which case the trial was adjourned, on the terms of the defendant paying the costs of the day, and the same jury being summoned; and on the adjourned hearing the Judge read to the jury the notes of the preceding sitting. In the statement of the case on the part of the plaintiff a document in the hands of a third party appearing to be material, and he having declined to produce it, an adjournment was allowed for the purpose of serving a subpœna duces tecum (Higginson v. Bank of England, 1 F. & F. 450). Where a party hesitatated to consent to a reference, the Judge intimated that unless a reference was consented to he would adjourn the trial until the next assizes ((Jones v. Beaumont. 1 F. & F. 336). 23. If any person called as a witness, or required or desiring to make an affidavit or deposition, shall refuse or be un17 18 Vict. Willing from alleged conscientious motives to be sworn, it shall be lawful for the Court or Judge or other presiding officer, or person qualified to take affidavits or depositions, c. 125, s. 20. |