(4) PARTY PREVENTING ARBITRATION TO PAY COSTS.1

Form No. 2086.

And that if either party shall by affected delay, or otherwise, wilfully prevent the arbitrator from proceeding in the reference, or from making his award, he shall pay such costs to the other as the arbitrator shall think reasonable.

h. Powers of Arbitrators.

(1) TO CALL For Documents.

Form No. 2087.

And it is further agreed that the parties respectively shall produce before the arbitrator (or arbitrators) all books, deeds, papers, accounts, vouchers, writings, and documents within their possession or control, which the arbitrator (or arbitrators) may require and call for as in his (or their) judgment relating to the matters

referred.

(2) TO CAUSE MAPS AND PLANS to be Made.

Form No. 2088.

And it is further agreed that it shall be lawful for the said arbitrator (or said arbitrators or their umpire) to admeasure, or cause the said lands to be admeasured, and to make, or cause to be made, a plan or map, or plans or maps, of the said lands, and to do and execute all such further and other acts, matters, and things with respect to the same as he (or they) shall think necessary and proper for the purpose of this reference, and that the costs, charges, and expenses of preparing and executing such admeasurement, plans, and maps as aforesaid shall be borne and paid by and between the said John Doe and Richard Roe in equal shares and proportions (or shall be in the discretion of the said arbitrator, arbitrators, or umpire).

(3) TO EMPLOY AN ACCOUNTANT.

Form No. 2089.

And it is further agreed that the arbitrator (or arbitrators) if he (or they) shall think it necessary shall be at liberty, and is (or are) hereby authorized to appoint an accountant to assist him (or them) at the expense of the said parties, who shall be liable to such accountant for his reasonable remuneration, and that as between the said parties the expense of such accountant shall be borne and paid in equal moieties by the said parties (or shall be in the discretion of the arbitrator or arbitrators).

(4) TO PROCEED EX PARTe.

Form No. 2090.

And that the arbitrator (or arbitrators) shall be at liberty to

1. This clause may be added immediately after any of the preceding clauses relating to costs.

proceed ex parte in case* either party, after reasonable notice, shall at any time neglect or refuse to attend on the reference without having previously shown to the said arbitrator (or arbitrators) what the latter shall consider good and sufficient cause for omitting to attend.

Form No. 2091.

(Commencing as in Form No. 2090, and continuing down to *) of the non-attendance of either of the said parties, or of their witnesses, after ten clear days' previous notice in writing, under the hand of the said arbitrator, given to the said parties respectively, or left at his or their respective offices, or of their attorneys or agents, notifying them of the time and place of meeting to proceed with the said reference.

(5) TO STATE A CASE.

Form No. 2092.

And it is further agreed that the said arbitrator (or arbitrators), at the request of either party, shall [or shall be at liberty to]1 raise, by a sufficient statement of facts, any point of law on the face of his (or their) award for the opinion of the court.

(6) TO MAKE A PRELIMINARY AWARD RAISING A POINT

OF LAW.

Form No. 2093.

And it is further agreed that the arbitrator (or arbitrators) shall enter upon the reference and make a preliminary award stating the facts necessary to raise the question whether at law the defendants are concluded by the certificates given by Mr. Henry Smith, the resident engineer of the defendants, and produced in court, upon the trial of this cause (or state any other question) and that the opinion of the court be taken on that point before the said arbitrator (or arbitrators) proceeds (or proceed) with the rest of the reference.

(7) To Award a Discontinuance.

Form No. 2094.

And it is further agreed that the said arbitrator (or arbitrators) shall be at liberty to direct the said action to be discontinued.

(8) TO AWARD ENTRY OF JUDGMENT.
Form No. 2095.

And it is further agreed that the said arbitrator (or arbitrators) shall be at liberty to direct judgment to be entered for the plaintiff, or the defendant, in the said action (or to direct judgment by default to be entered against the defendants in the said action, or to order

1. The words enclosed in [ ] in the form are to be used when it is intended

that it shall not be obligatory on the arbitrator to state a case.

such judgments and proceedings to be had and taken in or about the said action and the matters in difference as to the said arbitrator (or arbitrators) shall seem fit).

(9) TO DIRECT Entry of Verdict.

Form No. 2096.

And it is further agreed that the said arbitrator (or arbitrators) shall be at liberty to direct a verdict to be entered in said cause for the plaintiff, or the defendant, as he (or they) shall think proper.

(10) TO ORDER WHAT shall be Done.
Form No. 2097.

And it is further agreed that the arbitrator (or arbitrators) shall be at liberty to order and determine what he (or they) shall think fit to be done by either of the parties respecting the matters referred.

(11) TO FIX FEES FOR WITNesses.

Form No. 2098.

And said arbitrator (or arbitrators) is (or are) hereby authorized to fix the amount of fees which shall be allowed or taxed in favor of witnesses that may come before him (or them) and he (or they) shall be allowed for his (or their) own services at the rate of three dollars per day, being the time he (or they) is (or are) actually employed in said arbitration, which costs and fees shall be allowed by him (or them) in said award.

i. Evidence.

(1) PARTIES AND WITNESSES to be Sworn.1

Form No. 2099.

And it is further agreed that the witnesses on the reference and the parties, if examined, shall be examined on oath.

(2) MAKING ADMISSIONS IN LIEU OF Evidence.

Form No. 2100.

And because the parties hereto on both sides are willing to make the admissions hereinafter mentioned, so as to save the expense of proving the several matters so admitted, therefore it is agreed (or by the like consent it is further ordered)2 that the following admissions be made, that is to say (here specify the admissions).

1. If a common-law submission contain no provision in relation to the rules of evidence that shall govern the referees, they are not restricted to the rules of common law, but may receive the statements of parties without re

quiring them to be first sworn. Sanborn v. Paul, 60 Me. 325.

2. The words enclosed in ( ) are to be used when the submission is made by an order of court.

(3) DISPENSING WITH REGULAR EVIDENCE.

Form No. 2101.

And it is further agreed that it shall be lawful for the arbitrator (or arbitrators, or the umpire) to obtain information upon, or in respect of the premises hereby referred, or any of them, either by the statements of the parties hereto, or of any of them, made either in private or in the presence of the other party, or parties, or by parol or written evidence, or by such other ways or means as he (or they) shall in his (or their) judgment think most advisable, and deem most applicable to the nature and circumstances of the case. (4) POWER TO ACT ON EVIDENCE TAKEN BY ONE ARBITRATOR. Form No. 2102.

And it is further agreed that the said Samuel Short shall be at liberty forthwith and alone to take evidence as he may think fit relating to the said causes, suits, and matters in difference, and that the said arbitrators and the umpire shall respectively be at liberty to proceed upon the evidence which shall be taken before the said arbitrators or before the said Samuel Short alone.

(5) UMPIRE NOT TO HEAR EVIDENCE UNLESS Requested.

Form No. 2103.

And it is further agreed that the said umpire shall be at liberty to act upon the evidence taken before the arbitrators, and, unless requested to hear evidence, to make his award without hearing any witnesses or receiving any fresh evidence: provided nevertheless that if either party request him to rehear the witnesses, or any of them, or tender any fresh evidence relative to the matters in difference, the said umpire shall rehear such witnesses and receive such evidence.

j. Miscellaneous Provisions.

(1) REFERENCE BY EXECUTOR NOT TO BE AN ADMISSION of ASSETS.1

Form No. 2104.

And it is further agreed that this submission to arbitration shall not be deemed or taken to be an admission by the said John Doe that he has assets of the said testator, * but that the said John Doe shall be at liberty to deny before the said arbitrator that at the date of this submission he had any assets in his hands lawfully liable to the demands of the said Richard Roe (or at any time before the case

1. The strict and technical rule, that a submission by an administrator to arbitration is not only a reference of the matter in dispute but also an admission by the administrator that he

2 E. of F. P.-4

49

has assets, cannot prevail over the clear intention of the parties as found upon the face of their submission. McKeen. Oliphant, 18 N. J. L. 442.

Volume II.

is closed, that he has, at the time of such denial, assets in his hands lawfully diable to the demands of the said Richard Roe); and if the said John Doe shall make such denial as aforesaid, that the said arbitrator, if requested by the said Richard Roe, shall inquire whether at the date of this submission the said John Doe had (or whether at the time of such inquiry the said John Doe has) assets of the said testator, lawfully liable to pay the whole or any part of the sums claimed by the said Richard Roe.

(2) REFERENCE BY EXECUTOR AS TO LIABILITY, BUT NOT AS TO ASSETS.

Form No. 2 105.

(Commencing as in Form No. 2104, and continuing down to *) and that the said arbitrator shall not consider or inquire whether the said John Doe had, or has, any assets of the said testator, nor shall his award conclude or be construed to conclude any questions as to assets, but shall leave the same entirely open. And it is further agreed that if the said arbitrator shall find any balance of money due to the said John Doe as such executor he shall direct the said Richard Roe to pay the same to the said John Doe, but if he shall find a balance in favor of the said Richard Roe he shall add a direction that the said John Doe shall pay the same to the said Richard Roe out of the assets, if any, which may be in his hands, or which may hereafter come to them, and that it shall not be lawful for the said arbitrator to direct the said John Doe to pay in any other manner.

(3) DIRECTION TO ARBITRATOR FINDING ASSETS.

Form No. 2106.

And if the said arbitrator shall on the balance find any money to be due to the said Richard Roe he shall, if he shall find that the said John Doe had, at the time to which the said inquiry referred, assets liable to the demands of the said Richard Roe, direct the said John Doe to pay to the said Richard Roe the balance, or so much thereof as the assets so found to be liable shall be sufficient to satisfy. (4) DIRECTION TO ARBITRATOR FINDING NO ASSETS.

Form No. 2107.

And if the said arbitrator shall find that the said John Doe had no such assets, or not enough of such assets to pay the whole amount so found due to the said Richard Roe, he shall be at liberty to award that the said John Doe shall pay to the said Richard Roc the said amount (or as much thereof as the assets in hand do not avail to satisfy as aforesaid) out of any assets which may have come into the hands of the said John Doe since the time to which the said inquiry respecting the assets refers, or which may hereafter come into them.