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A reference cannot be rendered nugatory by Arbitration. the failure of one party to appoint one of the arbitrators; for now, when a reference is or is intended to be to two arbitrators, one to be appointed by each party, either party in case of the death, refusal to act, or incapacity of any arbitrator appointed by him, may substitute a new arbitrator, unless the document authorizing the reference show that it was intended that the vacancy should not be supplied (s. 13).

may act as

If on such a reference one party fails to appoint one of two an arbitrator for seven days after the other party arbitrators shall have appointed an arbitrator, and shall have referee. served the party failing to appoint with a notice in writing to make the appointment of his arbitrator, the party who has appointed may appoint such his arbitrator to act as sole arbitrator (s. 13). An award made by such sole arbitrator will be binding on both parties just as if the appointment had been by consent, but the court or a judge may revoke the appointment, on such terms as may seem just (s. 13).

an

Authority to appoint an umpire need no longer Appointment be given to arbitrators. An express provision to umpire. such effect must be made, if it be intended that the arbitrators shall not have power to do so; for when a reference is to two arbitrators, and the document authorizing it does not show that it was intended that there should not be an umpire, or provide otherwise for the appointment of an umpire, the two arbitrators may now appoint an umpire, at any time within the period during which they have power to make an award, unless they are called upon to make the appointment sooner (s. 14). They may be called upon to make the appointment, by a written notice from any of the parties to the reference, and the appointment must be made within seven days after the service of such notice, or the party giving notice may

Arbitration. have an umpire appointed on a summons at chambers (s. 12).

Award to be

months.

The Commissioners, we have seen, recommade in three mended that provisions should be made for securing, as far as practicable, a continuous process to the end of an arbitration, and an abolition of the frequent adjournments which have hitherto been the bane of that mode of proceeding. It has accordingly been enacted that an arbitrator acting under any document authorizing a reference, or under any compulsory order of reference, or under any order referring the award back, shall make his award under his hand within three months* after he has been appointed, and has entered on the reference, or been called upon to act by a notice in writing from a party to the reference (s. 15). The parties may, however, by consent in writing, enlarge the term for making the award; and the court of which the document authorizing the reference, or any order of reference is or may be made a rule, or any judge thereof, may enlarge the term for making the award (s. 15). If no period be stated for the enlargement, it will be deemed to be an enlargement for one month (s. 15).

That delay may be avoided when arbitrators cannot agree, it is further provided that any umpire when appointed may enter on the reference in lieu of the arbitrators, if the latter have allowed their time or extended time to expire without making an award, or have delivered to any party, or to the umpire himself, a notice in writing stating that they cannot agree (s. 15).

The power of an arbitrator has been extended, by a provision, that upon any reference where the submission is or may be made a rule of court, the arbitrator may, as in the case of a compulsory

* Unless the agreement to refer or the order of reference contains a different limit of time.

reference, state his award in the form of a special Arbitration. case for the opinion of the court (s. 5). And an award directing the possession of lands to be delivered to a party, may now be enforced summarily, or when it directs that possession of any lands shall be delivered to any party, or that any party is entitled to the possession of any such lands, the court may order any party to the reference who is in possession, to deliver possession to the party entitled thereto, pursuant to the award (s. 16). Any such rule or order to deliver possession is to have the effect of a judgment in ejectment against every person named in it, and execution may issue, and possession be delivered, by the sheriff as on a judgment in ejectment (s. 16).

Proceedings on a Trial by Jury.

On the trial of issues of fact the party on whom lies the burden of making out the affirmative states the case to the jury, and then adduces evidence in support of it. The opposite party next addresses the jury, and if he has evidence to bring forward, produces it; after which the counsel for the party who commenced has the right of replying generally on the whole case. The party who begins has thus the first word and the last. He has also a further and greater advantage; for the party who comes second is only once heard, and that before his proofs have been produced. It often happens that the evidence does not turn out as was anticipated; new facts come out, or really unexceptionable witnesses are damaged in crossexamination. The case may be not less good, the witnesses not less entitled to credit, if an opportunity were afforded for explanation; but

the counsel's mouth is closed, while his oppo"nent, unchecked by the fear of a reply, takes

Addresses to the jury.

Trial by
Jury.

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advantage of every discrepancy between the "statement and the proof, of every ground for 66 assailing the character and veracity of the "witnesses, and frequently produces an impression inconsistent with the true justice of "the case, and which the observations of the judge, who is constrained to adopt a more mea"sured tone, do not always succeed in removing. "So great is the advantage of the reply felt to "be in practice, that, generally, one great object "of a counsel for a defendant is, if possible, to "avoid calling witnesses, even though conscious "that, otherwise, his witnesses would improve "his case. The exercise of a sound discretion on "this point is one of the most difficult parts of "the duty of an advocate; and many verdicts

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are doubtless lost, on the one hand, by exposing "the case to the danger of a reply, and on the "other, by the fear of it operating to the keep

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ing back of evidence which might have been "decisive with the jury."-(Second Report, p. 9.)

If the second party does not produce evidence, the position of the parties is simply reversed.

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"The inconvenience and injustice of this system "have long been felt and complained of," "but the practice has become the more grievous, "since, by the recent alteration of the law, the 66 parties to a suit have been made admissible, "and consequently, in practice, necessary witnesses. The motives for attacking and reflecting upon the adverse party in the cause are so "obvious that we cannot wonder that such a "result should very frequently occur; and the injustice of leaving a plaintiff or defendant

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exposed, first, to a severe cross-examination, "and then to hostile observations, without giving "his counsel an opportunity of vindicating his "conduct and character, has been very sensibly "felt."-(Second Report, p. 9.)

Jury.

But although the palpable injustice of the system Trial by has long been felt and complained of although, indeed, it was denounced by the former Common Law Commissioners-it is only now that an alteration has at length been effected. Henceforth, upon the trial of any cause, the addresses to the jury are to be regulated as follows: The party who begins, or his counsel, is to be allowed, in the event of his opponent not 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. The party on the other side, or his counsel, is to be allowed to open the case, and also to sum up the evidence (if any); and the right to reply is to be the same as at present (s. 18).

Adjournment of the Trial.

One of the drawbacks hitherto attendant on a trial by jury has been the necessity of proceeding with it till a verdict were given, although circumstances occurred which rendered an adjournment desirable. A party may be taken by surprise by his opponent's case, or a witness or document may become unexpectedly necessary, and not be forthcoming. The party has hitherto been obliged to submit to a nonsuit or a verdict against him, as the case might be, although a new trial would afterwards be granted. But unnecessary expense and delay were often thus incurred, because time would not be given to enable the deficient matter to be supplied. "If the tribunal "be a permanent one, an adjournment may "readily be made; but with a shifting tribunal, "the members of which are drawn together from "different and sometimes distant places, it is ob"viously difficult, if they are once allowed to

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