^, *i'a**„%^.^.,... i::3STM£i'' iwMgmaMM^ 'LAW OF ITRATIOX AND AWARDS. THIRD EDITION itMIK «lfeW|M 11. mIKi 1->^|,WII«--'. ^/ Yearly Legal Practices yOTE. — The Suhscnption List closes on September 15th, /row ivhich date the icor/tS are .y/ipji/in/ nt ri'ii'lm- pricrs. Forms for ANNUAL PREPAID SUBSCRIPTIONS sent post free on application to BUTTERWORTH & Co., 7. Fleet Street, E.C. (I) THE YE (Founded 2 vols. "^ County C Jurisdicti General J Pkactica] the Practi County C Barrister- (2) THE YE Beiug au Courts, ir ALL Cases Points oi Barrister- (3 THE Yl Vnth Or Guide Appendix Ewl., 77/ . late Clerk '• It h " A<<- UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW LIBRARY CE. ' Practices.) 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Post 8 vo Price lo/^,/ for Cash, i>ost free, 9», • j"" • ked:mans law AinUTUATIOXS AND AWAPiDS. \Tiinih KliITIoX.] CONCISE treatisp: OK (L\]t ItiUu OF AEBITEATIONS & AAVAEDS, W I 1 H A n A p p ni Ci i X OF PRECEDENTS AND STATUTES. r.v JOSEPH HAWORTH REDMAN, OF THK MIDDLE TEJtPLE, ESQUmE, BAHRISTKR-AT-LAW. Author of ^' A Trcatinc on the Law of RaUwaij Companies as Varriem,'' " The Law of Landlord and Tenant" ^r. THIRD EDITION. LONDON': BUTTEmVOllTII & CO., 7, FLEET STllEET. l:nlu ^ublisljcrs. 1897. T BKADBUBT, AGNEW, & CO. LD., PRIXTEBS, LOXDOK AND TOXBRIDGE. I '/a pju:face TO THE THIRD EDITION. Since the publication of the last Edition the Arbitration Act, 1889, has been passed. Beyond providing thai certain usual and common form stipulations shall be implied in every submission out of court, the Act is limited to practice and procedure. Nevertheless, the abolition of the necessitj- for "making a submission u rule of court, the simplification of the procedure in enforcing an award, the enlarged jurisdiction of a Master in Chambers to deal with matters arising in the course of a reference, and other alterations of a minor character effected by the Act, have rendered obsolete much of the old law, which has been omitted. The old law on the construction of statutory provisions, which are re-enacted in substance, is necessarily retained. Some of the old law with reference to provisions which are repealed and not re-enacted, but for which a substituted procedure is enacted, is, in a few instances, retained by way of argu- ment or illustration, pending aftirmative decisions under the new Act. In the general result, however, I have been enabled to incorporate the law up to date without increasing the l)ulk of the book. I am thus able to satisfy my original object — to keep it a portable work sufficiently full in VI PREFACE TO THE THIRD EDITION. its statement of principles, with illustrations from the decisions, to guide the professional man upon the various questions ^vhich arise in the course of a reference and afterwards. The general arrangement of the work has heen retained. The precedents and forms have necessarily undergone considera1)le alteration, excision and addition. J. H. EEDMAN. 2. New Court, Lincoln's Inn, Octohcv, 1897. PPiEFACE TO THE FIRST EDITION. TiiK aulhoi-'s aim in the present work has been to furnish, within the Hmits of a vtjhime of modest bulk, a concise but complete statement of all points of law and [traclice affecting Arbitrations, from the inception to the final determination of the fate of the award. The necessity for such a book is sufficiently evidenced by the constant complaint of professional men engaged in references, that they have no portable work on the subject. That the author has performed the task of condensation and selec- tion to the satisfaction of all he cannot hope, but he does trust that he has performed it in such a manner as to make the result generally useful. In the Appendix precedents have been given applicable to the most frequently recurring references ; at the same time considerable pains have been taken to frame them so as to be easily adapted to references, where the subject- matter, or the relation of the parties, is different. Seeing that the subjects of reference are as multifarious as the causes of civil litigation, it would have necessitated a volume more than double the size of the present to have given forms of awards applicable to all possible varieties of circumstances ; the forms contained herein will, how- ever, serve as guides where they caimot l)e exactly followed Vlll PREFACE TO THE FIRST EDITION. as precedents. "When the draftsman can find no prece- dent for the award he wishes to make, he should define clearly to himself what he wishes to direct, ascertain that it is within the limit of his authority, and then direct it to l)e done in such language as a man of ordinary common sense can understand, and with such exactness that a dishonest party cannot saj- that it leaves him any doubt as to the how, when, and where of performance. J. H. E. March, 1872. ('()xri':xTs I'AOK Cdmi'ARAtivk Tabi> xiv Table of Cases xv Table ok S iatitk^ xxxiii CHAI'TKi; I. INTKODUCTORY — DKKIMTIiiNS l-i;AMlNf; SLMIMISSION- 1 chapteu II. Will) may be I'AiniES TO A KKIKRKVCK 11 CHAPTKIl III. ■\VHAr MATTKHS MAY UK I;KKKKUE1) Tii AKBirUATKiN '21 CHAI'TKi; IV. the AUIJITIIA nnS ACT, 1SS9. Sect. 1. (ieiu-ial t-ilect of tlie A. t 37 '2. Operation of Act in j,'iviiig submission the eHVct of an order of com t 40 CHAI'TKR V. MOliE OK srilMLSsIOX. Sect. 1. Submission hy mutual ajtrpement 4r> 2. SubmisMDTi by order of reference by consent C;i 3. Compulsory nfi'ieinf G^ 4. Submission undii particular ^latut<•s 08 CHAl'TEK VI. What matters ai:e iNcLrnED i\ a st iimlssihv 73 X CONTENTS. CHAPTER VII. PAGE Al.TEUATION AND AMKNDMKNT oK TUT. >UB.MI.SSI0X 81 CHAPTER VIII. HUKATIOX OF THE AliBITIlATOK'.S AUTIIOIIITY UNDER THE SUBMISSION. Sect. ]. Enlargement of time by the ail)itiator or tlio parties 86 2. Enlar-^ement of time by the court 90 CHAPTER IX. Revocation 93 CHAPTER X. the AUBITKA'IOK.S AND UMPIRE. Sect. 1 . The arbitrators ] 03 2. Tlie uni])ire 116 3. Remuneration of aibitrators — their liability for misconduct . 125 4. ^Vhen an arbitrator may be called as a witness 129 CHAPTER XI. riiOCEEI)IN(;S liEKOKE THE AUBITUATOR. Sect. 1. Preliminaries 132 2. Witnesses 136 3. Evidence 140 CHAPTER XII. THE AWAUIi. Sect. 1. Form and general rei|iii.-ites of an awaid ir<2 2. An award must not exceed the submissinn 1(53 3 An award must extend to all matters referred 171 4. An award must be certain 176 fi. An award must be final 185 6. An award must not be imi>ossil.le, unreasonable, inconsistent or illegal Ifil 7. Award bad in pai t 193 CHAPTKi; XIII. AwAUDlNii ON AN ACTIov 200 CONTENTS. XI ciiAiTi-:!; -xiv. (MISTS. PAGE Sect. 1. Costs of the refeieiae -jl 1 2. Costs of tlic iiciion 218 ■i. Ailtitmtor's |.u\vir owa- ((jsts wiihiii tlr- siilimissioii 226 4. Taxation of costs 232 (•HAITI-:i; XV. rKKF.RUINi: l!\iK AN AW Vl;".) 237 CIIAITKI: XVI. Effect of an award 219 CIIAl'TKli XVII. sKn'IN<; ASIHE AN AWAKIt. Sect. 1. Grouiuls for sfttiiif,' .isidu an awar.l j.'iS '.'. Time limited for moviiifj Vt set a-. Power to arbitrator to emjiloy an accountant 331 It). Power to arbitrator to have maps, &c., made 332 17. Power to fix price of land and employ a surveyor — in a submission between a vendor and ])urcliaser 332 18. Power to make several awards 332 A2)pointiiient of Uuijjire mid otiier Proceedings after the Siibviission. 19. Appointment of a third arbitrator by the two others pursuant to the submission 333 20. Aiijiointment of an unipii e 333 21. Apjiointment of a meeting by arbitrator 333 22. Appointment of a meeting with notice; of intention to proceed u: parte 334 23. Notice requiiing a party to concur in ai)pointing a sole arbitrator 334 24. Originating summons for the appointment of an arbitrator 33r» 25. Originating summons for leave to revoke submission 335 26. Summons to stay action after agreement to refer 33t> 27. Subprena for attendance of witnesses before arbitrator 337 28. Snbp(jena duces tecum 337 29. Summons for enlargement of time for making award 337 30. Enlargement of time by arbitrator under a power in the submis- sion 338 31. Eidaigement of time by the parties 338 32. Notice to the parties of the award made 338 Aivards. 33. Awnnl by a single arbitrator determining cross claims and order- ing jiayment of a sum by one paity to the other 339 34. Award by three arbitratois, on a submission by several jiersons res)iecting claims under three wills 340 35. Award by two aibitrators of compensation for land taken under the Lands Clauses Consolidation Act, 1845 344 36. Award on a reference of an action by order of Q.B.D 345 37. Commencement of an award o)i a reference by an order of nisi prius made at the assizes 346 CONTENTS. XIU No. I'AOK 38. Coinnioncoincnt of nii uwnnl on a Kiilnnissioii hy onler of tlu- Cliniicerv Division •'! J7 39. Coiiinuiic't.'i)ii'nt of an awiiiil mi a .siil)iiii>sion liy mutual IjuikU .. 347 40. CoinniiMniiiuiit of an iiwaiil nmlcr a olaiisu in a Imililin;; contract for rffi-rrin;; lutiue ililfcri'iiccs 347 41. Coninu-ncenunt of an unipiia;^c 349 42. Recital of enlaif^fnicnt of tinif liy ftmscnt of the jiartii-H 3.10 43. Hccital of unlar^jiinent of time by several orders of court 350 44. Award on a fjencral reference by a mortgagor und mortgagee .... 3.10 45. Award of a ]iartner.sliip to be di.ssulvcil, \c 351 46. Award on a reference between landlord and tenunt, liuding that certain covenants have been broken, and ordering imymeiit of a sum in resjiect thereof 353 47. Award under tlie A'.,'rieiilturnl Holdings Act, 1883 353 48. Award that each party shall pay his own costs of reference and one-half the costs of the award 350 49. Awanl that costs of reference and awaid shall be paid in e<|ual moieties 356 50. Ceitificate for speiiai Jury. iS;c :i56 51. Awaid of mutual nlcases if icipiired 35G 52. Award that one party shall execute a release on payment of a sum of money 357 53. Awanl of a release at the cost of the party released 357 54. Award on the .several issues in an action 357 55. Award on a ]Ava of ufin est factum 35S 56. Award of venlict for the defendant 358 57. Award on action counterclaim and .set-olf 358 58. Award in ejectment 359 59. Award of a conveyance of freeholds 359 60. Award of an assignment of a lease 360 61. Award to deliver up a bond to be cancelb-d 360 62. Award of a wall to be built 361 63. Award of a wall to be i)ulled down 361 64. Awanl of manner in which a weir is to be maintained in future 361 65. .-\wanl that one party has no interest in the subject of reference. . 362 66. Award that the jmiperty in premises is in one party, subject to an easement of tin; other party 362 67. Certilicateof an arbitrator wlicn a verdict is taken subject to his certificate 363 68. Award on a former awanl being .sent back to the arliilrator lor his re-consideration 363 69. Summons for leave to enforce uwanl under sect. 12 of A. A. 1SS9 364 70. Notice of motion to set aside or remit an award 364 Jtrfrmurs (o Hcferccs. 71. Summons for reference to a referee 365 72. Order o( reference under sect. 13 of A. A. 1889 366 73. Onler of n-ference under .sect. 14 of A. A. 1889 367 74. Appointment by spcciiil referee of time and jdace of hearing .... 367 75. Report of s|iecial refeiee 368 76. Notice of motion to vary or remit re]M>rt on further consideration 368 77. Notice of motion to adopt report — further considenilion n<»t a.ljourned 369 78. Notice of motion Kir i emitting lepoii when cause tried 369 XIV CONTENTS. AITEXIJIX OF STATUTES. " - . PAGE S k 9 Vict. f. 18, ss. 23—37, Tlie LaiiJs Clauses Consolidation Act, 184.0 371 12 it 13 Vift. c. 4;"), ss. 12 — I.j. An Act to Amend the I'locediiie in Courts of General and (,)narter Ses.sions, 1849 37i> 17 & ] ^ Vict. c. 12fi, ss. 3 — 17, The Conmion Law Procedure Act, 1>^'4 377 22 & 23 Viit. c. oH, Raihvav Companies Arliitration Act, 1859 383- 38 & 39 Vict. c. 5.'., ss. U^*— 181, The Public Health Act, 187.'> 388 52 & 53 Vict. c. 49, The Arbitration Act, 1889 391 60 & 61 Vict. c. 37, W,,ikiiien"s Compensation Act. 1897 — Second Schedule 39^ 1m>kx 40S, CuMi'.\i:.vnvE 'Jaulk uk Seition.s *, 298 Aililisoii r. Cray liM, '22!» Agar V. ilarklew 48 Ahrl>eck.T r. Frost 201, 222 Aitclicson r. Carpt-v. . 17.'', lf>.'>, 22!> Aitk.Mi r. Hat.iu-l.ir 2, 212 Alier r. Sa\ ill sy, llt:j AMingtoi), JU- 14 Ah-xaiider v. L'aiii|)l>cll .... .'i2, 5i» r. Meiull 51 , 1)2 Allen ?•. Franci.s KJS r. , 268, 27:} Allies V. Jliiwanl 192 Amos r. Heme iJay, kc, Co.. 12y Aiiistt'll V. Ix'.'i.scr 292 AiuliTson r. Wallace 110, l-).""), 143 Aiidn-ws c. Harms 227 r. KatMii 91, 92 r. I'aliiier 101 Aii«usr. Kedlord .. 1»)9. 170, 209 r. Sinvthies 150 Aniiing v. Hartli-v.. 15.'), 2.'J8. 241, ' 245, 240 Anon (2 Cliilt. 44) 142 , (1 Cromp. 270) 287 (Dver. 242a) 100 (1 Salk. 71) 13:J (1 Vent. S7) 154 Ansell r. Kvaiis 40 Antraiii r. Cliuce .. 15, 45, 49, 251 IMOK Ail>u.-k!e V. I'ri. e 140 .Viili.rr. dwell 15:{, 19J, 197 Ariiiita;:e v. C^iates vq.j .Vniiiti c. jiivanic 177, 179 .\iiMs»riurKh Ga.sCo. . . 18S Haily r. CnrliiiK 177, 227. 284, 290 IJiikt'r r. Cotterill .. 149, 2(i2, 280 r. Hunter 246, 247 r. Ste|iheiiM 87 V. Tow iKsend 7'i r. Townslund 23 r. Wells 286 r. York.sliire Fin- and Life Avsuninee Co. 2 Uall r. Dunsterville 14 l^dtie Co. r. Sim|>s4)ii 312 llantill r. Li'igh 18, 77. 106 XVI TABLE OF CASES. PAGE Biuiksr. Banks 139 liaiifiave r. Atkins 180 Baring Biollu-rs and Doulton, /.V 97 Barker v. Tibson 227 Barnard v. Moss 225 liarnardiston v. Fowler . . 78, 166 Barnes r. Braithwaite 127 r. Hayward 127, 235 Bairy v. Grogan 21 V. Rush 16 Barton r. Ransom 274 V. Kanson 179, 188 Baspole's case 78 Bass V. .Alaitland 288 Batcnian r. Ross 21 Bates r. Cooke lilt. 12.'» V. Towniey 257 Bavlis V. Lintott 224 Beale V. lieale 180 Bean v. Newbury 12, 123 Beard v. Peiry 223 Bearup v. I'eacoek 205 Beaufort, Duke of, and Swansea Harbour Trustees, Jtr 173 Beaufort r. Ashburnliani .... 234 Duke off. Welch .. 175, 192 Beck, Jk 112 V. Sarf^ent 125 Beckett v. ilidland Kail. Co.. . 26 Bedam v. Clerksou 166, 182 Beddow r. Beddow 104, 107 Bedingtou r. Southall 14() Bedwell v. Wood 225 Beeley v. Winglield 23 lielfield v. liourne 60 Bell v. lielson 213 V. (Jipjis 179 r. Postlethwaite 85 Bennett v. Skardon 270 v. Watson 89 Benwell v. Hinxnian 89 Beaant v. Wood 22 Bexley Lotral Board )•. West Kent Sewerage Boanl 6 Bhear v. Harradine 174, 228 Bidden r. Dowse 19, 49 Bidder r. North Stafford Rail. Co 1, 72, 160 Biggs i: Hansell 139 Bignall r. (Jale 145, 151 liird V. liinl 165 c. Cooper 75, 164 v. Penricc 246 Birks V. Trippet 76, 173, 299 PAGE Birnunghani, Mayor of l\ Allen 311, 312 Blackett v. Bates 301 Blair v. Jones 218 Blake r. Appleyard 223 lilanehard r. Lilly 209 v. Sun Fire Office 105, 109, 265 Blennerhnsset v. Daj- 109 l^lock v. Palgrave 156 Blundell v. Brettargh 99, 157, 300 Blunt r. Cooke 84 Blyth and Tyne Rail. Co., Jie 121 Blythe v. Lafone 55 Boiuier r. Charlton.. 64, 207, 208 r. Liddell 170 Boodle r. Davies 22, 170, 273, 274, 363 Booth V. Garnett 171 Bos V. Helsliain 3. 4, 114 Bottomley r. Ambler .... 125, 142 V. Buckley 270 Bourke v. Lloyd 201 Bouttilier r. Thick 263 Bowen r. Boweu 280 r. Williams 92 P.ower, Jlc 289 Bowes r. Feniie 171, 176 P.owker r. Evans 99, 100 Bowyer v. Blorksidge 12 ]5oyd V. Enimersou 14, 159 Jioyes and Jiluck, Jlc 179 Bradbee v. Christ'.s Hospital 153, 273 Bradliy. Re 29 Ihaddick 1-. Thompson 298 Bradford Local lioard v. Hop- wood 29 Bradley v. Ibbetson 141 V. L. & N. W. Kail. Co 70 V. Phelps .. 175, 204, 208 V. Tunstow 213 15radshaw's case 120, 261 lirander r. Penleaze 289 Brandon ^i. Brandon . . 26, 76, 289 liraiidt and Pjoutcher, lie .... 240 ]>raunstein v. Accidental, &c., Insurance Co 51 lirazier r. Bryant 278 ]}razilian SubmarineTelegraph Co., J!c .' 114 P>rearey v. Kemp 280 lirierley Hill Local Board v. Pcarsall 29 Bright V. Duniell 'j6, 117 TAUL1-: OF CASKS, XVll UriKhton Maiiiic r.iliut! (iiiliy r. Hoi UK'S 130, 141 liinwii and Croydon Canal Co., Jir 77 Blown V. (Soodnian 81 V. }I(llal)y 243, 259 V. Nelson' 21 1), 263 V. Uvciliury ol I". Sonicr.sct ami Dorset Kail. Co 206 V. Tanner 102 V. Watson 77, 171 Browne v. Collyer 92 Bryant v. Herbert 223 Buceleuch, Dnke of /■. .Metro- politan Board of Works 41, 130, 131, l'.i4, 200, 299 Buckle r. Lordonny 34 l: Roach IS Biiilen r. King £13 liurdon, J:c 91 JJurges.s V. Xortliwi.li Local Board 29 Bnrnard r. Wainwriglit 244 I'.urraril r. Callislier 312 Bnrrmiglies v. Clarke 126 Bnrstall v. Boyfiis 129 Burt, y.V 268 Burton v. Kniglit 108, 110 r. Wigley 167 Bnstros c. Lenders (;2, 226 Butler, y^' 293 Byrne r. I'rown 307 C. Caiii.k c. Rogers 168 •Caerleon Tinplate Co. i: Hughes 2 Cahill c. Cahill 14, 22 Caledonian Insumncc Co. v. 'Jilnionr 51 Rail. Co. r. Lock- hart 71, 99, 147 Callard r. I'aterson 29.'i <,'alvert •:. Retlfcarn 288 A. I'ACiK Cani|>l>ell r. Twiinlow 140 Candler c. Fuller .. 194, 213, 235 Capell V. C. W. Kail. Co 230 Cardigan and Henderson, ViV 291 Ciirgey r. Aitchoson 177, 178, 179, 185, 226, 285 Carlisle, n,; Clegg c. Clegg . . 59 i\ Bailiir of .Morpeth 164 ( "arter r. Carter 78 Cartwriglit c. Last 312 ( 'anis- Wilson ami (Jreene, Jl'- 3, 4, 5 Case r. Willis •^0^, 316 Cassell, Ji<- 120 Caswell i: (Jiomutt 240 Catinur r. Knatchhull 286 Caucasian Trading Corporation, AV /laifr. .... 277, 280, 281 Cavemlisli r. 12 Ctyhill r. Fit/geiald 18 Caynie r. Watts 1 7.», 206 Chamberlain, Ji-: 294 Chambers v. Mason 19 Chapman c. Day 99 Chaii[)ell /'. North 55, 56 Charlton c. Spencer 74 Chainlev r. Winstaidev 101 Chatlield r. Sedgwick ." 223 Chicot r. Lcijuesne 108, 129 Ching r. Chiiig 22. 262 Chrisiii' r. Xortlicrn Counties, kc, liuilding Society 33 Churcher c. Stringer 234 Clapcott r. Davy 1S8 Clark c. .Sonnenschein 320 Clarke v. Crofts 88, 100 r. Owen 276 V. Stocken 96, 97 r. Westrope 50 Clenient.s v. L. & X. W. Kail. Co 11 Clout and Metropolitan Kail. Co., J!c 105, 107 Cock I'. Cent 276 Cockburn i: Newton litu, 219 Cock.son c. Ogle 182 Cole r. Firth.' 223 College of Christ and .Martin, y»V 269 Collier v. Chadwick 309 V. Hicks 133 Collins I". Collins 3. 4 r. Locke 52 I'. Baddiugton Vestry. . 160 f. South Stnlford Riiil. Co 69 Conipagnie du Senegal r. Smith 60, 62 XVlll TABLE OF CASES. PAGE Conolan v. Lcvlaiid 13, 82 Cook V. Catclipole 59, 61 Cooke V. Cooke 48 r. Newcastle, Q, 57, 59 Coppell V. Smitli 286 Corpe V. Glyn 287 Court r. Perrin 309 Cowilell, Ec 231 Cowell f. Amman Collierv Co. 222 V. Betteley \ 230 Coxlieail V. AInlli.'? 11 Craike, lie 290 Cramp v. S3-mon.s 193 Cram])ton r. Kidley 126 Craven v. Craven 141 Crawford v. London Dock Co. 164 Crawsluiw r. York and Nortli .Midland Kail. Co 205 Crawsbay v. Collins 152 Creswick r. Harrison .... 279, 295 Crisp v. Bunbury 35 Crofts V. Harris ' 188 Cromer v. Churt 295 Croom V. Core 147, 234 Crosbie v. Holmes 208 Cross V. Cross 240 V. Metcalfe 84 Crossley v. Clay 109 Cruikshank v. Floating Swim- ming Bath Co 311 Crump ),'. Adney 176 Cndlitf r. Walters 117, 122 Cummings v. Heard 250, 255, 256 Curtis V. Barclay 18 V. Potts.". 86 D. Dale v. Mottram 166 Balling v. Alatchett 111, 285 Darbey v. Wliitaker 49 Dare Valley Co., He . . 72, 91, 240 Kail. Co. V. Rhys 237, 247 Darlington Wagon Co. v. Hard- ing, ic , Co 68, 64, 210, 212, 249, 271 PACK Darnley, Earl of i-. L. C. & D. Kail. Co 50, 145 Daunt V. Lazanl 62 Davenport r. Vickery 144, 245 Davidson v. Gray 223- Davies r. Pratt 153, 241, 246, 278, 279, 285, 364 V. Price 107, 110, 146- • r. Kidge 17 V. Second Chatham, &c.. Building Soc 33 V. Soutli Stafford Rail. Co 135 Davis r. Galmnye 292 V. I'age 12 V. Starr 58. 60, 61 V. Yiiiin 8-', 288, 293 Davison r. Gauntlet 83 Dawdy, He 3, 4 Dawson v. Fitzgerald 52 Day V. Bonnin 175 V. Norris 230- Deere v. Kirkhouse 216 DelagoaBayCo. andTancred,iie 276 Dennehy r. Jolly 57 Denton v. Legge 58' r. Strong 88, 92: DeRosazr. Anglo-Italian Bank 28, 114 Deutsche Springstoff, &c. r. Briscoe 55, 94 Dick V. Milligan 64 Dickenson v. Allsop 279 Dickins r. Jarvis 177, 293 Dimes v. Grand Junction Canal 104 Dimmock v. Randall 317 Dimsdale v. Rolicrtson 48 Dinham v. Bradford 5(y Dinn v. Blake. .242, 24H, 244, 262, 263 Ditcham v. AVoirall 12 Dobson ?■. Groves 131, 144, 148 Dod r. Herring 251 Doddington and Bailward, Jie 88, 122. 194, 257, 284, 288- r. Hudson 146 Doe V. Amey 282 V. Brown 267 V. Cannell 91, 239 V. Evans 129 V. Holmes 239 V. Horner 172 V. Howell 290 V. Morgan 218 V. Powell 92 V. Preston 131, 248, 276 TAnLK OF CASES, XIX Doe d. Ho«ly v. Ci>x 19tJ d. Carlisle v. HailiU' ..f Morpeth Iti4 d. Morris v. Kosser 'J.')! d. Stnriiii^' r. Hilleii 201 d. WilliiiiMsr. Kiciianlsoii IGS, iyr> iJoiikiii iiiiil Leeds Canal, AV. . 97 Doiilau i: Brett 20.'), 284 Dossett r. Oin> Duckworth v. Harrison 20.'> Dudgeon !■. Thonisoii 249 Dudley V. Mallcry IrttJ Duncan v. Di.xuu 11 Dunhill r. Ford 21. *> Dunkirk Colliery Cd. r. Lever 304, 311, 313 Dunn V. Murray 252 V. Warlters \7i>, 274 V. "\V.'.st 2S0, 2S6 I)ui)ort r. Wildyoo.s.' 182 Durham Building .Society, Jic 46, 249 Dutton V. Morrison 15, 254 Dyke v. Cannell 319 E. Eads v. AVilliaiiis . . Ill, 115, 116, 143, 147, 15.'., 298, 299, 302 En^'le V. Charing Cross Rail. Co. 70 Eardley v. Ulley 266 r. .Steer 116,153,205,214 Earl V. Stocker 104, 151 Earl of Darn ley r. L. C. A: D. Rail Co 50, 145 .Shrewsbury v. Wirral Railway Committee 157 East and West India Dock Co. V. Kirk 98 Ea-steru Counties Rail. Co. r. Robertson 141, 146, 164 Union li'ail. Co. r. Eastern Counties Riiil. Co. 186 Eastham v. Tyler 133 Eeeles v. Blackburn 227 Eckerslew. Mersey Docks, ic, Boanh ■. .. 97. 106, 107 Kdgcouibe V. RoV 124 V. Rolnnson 21 2, 219 Fisher r. Finibley .. 78, 1G4, 297 Fitton's Estate, F.e 314 Fitzgerald r. Graves 127 Flag Lane Chajiel v. Maj'or of Sunderland 124 Fleming r. Manchester, &c.. Rail. Co 224 Flynn r. Kohertson 242, 264 Ford V. Joues 120 Ford's Hotel Co. v. Bartlett . . 56 Forrest I'. Todd 319 Forshaw r. De Wette 224 Fortescue, Ex parte 290 Forwood r. Watney 59 Foster v. Sheffield Corporation 230 Fox V. Railway Passengers' As- surance Co 58, 61 V. Smith. . , 180, 185 Frankenburg and Tlie Security Co., Jlc 97, 105 Fraser v. Ehrenspeig( r .... 93, 94 Freanie v. Pinneger 268 Freeman r. Bernard. .1. "it!. IS;), 255 Fryer v. Sturt '. 216 Fuller V. Fenwick 243, 261 Furgu.sson v. Davison 222 Furnival r. Bogle 19 Furser v. Prowd 188 G. Gaffnky v. Killen 92, 96 Galatti v. Wakefield 217, 224 Galloway v. Keyworth 149, 233, 235 Gascoyne v. Edwards 255 Gatliffe v. Dunn 154 Geeves v. Gorton 225 Genne v. Tinker 15 Genshani r. Germain 261 Geoige i: Lousley 153 Gerard, Lord, and L. & N. W. Rail. Co., Jte 97 Giblion (5. Parker 243 Gibbs V. Knightley 85 GiH'ord and Buiy Town Council, Jic 4.3, 71 GifFord v. ( Jitl'ord 293 PAGE Gill 1-. Pussell 12 Gillett V. Thornton 56, 57 Gillon and The Mersey, &c., Co., ^c ■ 175 Giniler v. Curtis 147 Gisborne v. Hart 172 Gladwin v. Chilcote 150, 218 Glasbrook r. Owen 271 Gla3'sher, Ex jmrtc 43, 46 Glover v. Barrie 190 God.lnrd i: Mansfield .. 168, 171, 190, 195, 197 Godfrey v. AVade 11, 46 Gollings and Tradesmen's Friendly Society, Re 39 Gonty and ilanchester, ShelHeld, &c., Rail. Co., Re 160, 216 Goodallr. Ray 216 Goode V. Waters 189 Goodman v. Sayers.. Ill, 132. 249 Goodson V. Brooke 18 ■ r. Forbes 47, 159 Goodwin v. Budden 316 Goodyear v. Simpson 5 Gore "v. Baker 204, 214, 240 Gourlay v. Duke of Somerset. . 49 Goutard v. Carr 201, 203, 219 liovett r. Richmond 251 Cower 1-. Tobitt 271, 319 Graniam v. Turnbull 242, 258 Graham v. D'Arcy . . 1&2, 279, 284 Gray and North Eastern Rail. Co., Re 230 r. Gray 182 V. Gwennap 175 V. Leaf 274 V. AVilson 148 Great Britain Assurance Co., Jlc 308 Western Pail. Co. v. Waterford, &c.. Rail. Co. .. 27, 79, 260, 279, 299 Green and Balfour, Re . .7, 75, 164, 166, 240 V. Pole 93 V. Waring 167 Green's Tiustee v. Barrett .... 315 Greene v. ]5racken 123 Greenwood, Re 120 r. l}rownhill..242, 263 V. Dyer 288 V. Titteringtoii . . 18 Gregory v. Howard 129 Gregson and Armstrong, //'■. . . 144 Greigf. Talbot 81 Grenfield v. Edgecombe 169 Grenl'cll v. Edgcome 228 TABLE OF CASES. XXI I'AfJK. Gribl)lo r. BiK-lianaii 214 Gritntlis c. Williams 18 Giimstone r. Bell 83 Grove r. Vox 213 Giuriily r. Wilson •JN3 Guntliaiio f. Hrowii 270 (hiillonl r. Mills 287 Gullop ami Ceutral (^tiueiisjainl, kc, Co., J:c 26S Gunini V. HuU.-tt 115 C;uniiv r. IJiilkT 225 H. Haukksiion r. Troby 129 Hack r. London Providiiit Building' Sociftv 34 Haj,'«tM- c. r.ak.>r ." 140 Hafij,'c-tt r. W.-lsli !':j Haij^h and L. .V N. W. KMil. Co., Jic mn Haigli's EstaU', Uc . 132, 134, 14."., 14(3 HaUsoweii Kail. Co. r. C. W. Kail. Co 27 Ilall'hidc V. FtMiiiinv,' 48 Hall and Hinds, 7.V..127, 243, 264 V. Brand 38, (i4 r. Hardy 300 V. Lawri'iuc 124 Hanier r. Giles 23(t Hamilton v. Bankin.. 18, 12H, 14G v. Jlerel:ants, &c., Co 315 Hundyn v. Bettelley 78 r. Talisker Distillery 6 Hammoml and Waterton, lie 3, 4, .'i Hanijideii r. Wallis 272 Hancoek r. Kecd 275 V. Keid 1>. 175 Hunnen r. .IuIjc 84 Hanson r. Boothman 257 V. Liverscdfjc. . . . 155, 180 HarLoint r. Kamsbottoni 104, 150 Harding, £.r jxirtr 254 r. J'orsliaw .... I'Jl, 205 v. "VVirkliam 100 Hare, lie !•".', lOo, 148 v. Fleay IGti, 2l»0 Harlandr. ilayorol Ncwtastlu 225, 241 Harlow v. Kead 154 Harper, £'x ]itirtt 120 Harries r. Thomas Iii4 Harris v. Mitchell 12'> FAOK Harris r. I'avnter J7ii V. Keynolds 48 Harrison r. Creswiek .... 172, 173 1'. Jaekson 18 v. Lav l«fi r. Wright 45 Hart r. Duke '.'«i. i>7, 141 r. Hart 21. 50 Hartley v. Barlow 2!»0 Harvey r. Siielton 108,134, 143, 144 Hatlersley r. Hatton 55 Hatton r. Kovle 15 llawke V. Brear 201, 214 Hawkins ?•. Coll lough 177 r. \l\iiU- 216, 234 Hawkyard r. StoVks 205, 275 Hawley and North Statlonl Kaih Co., J;c 69, 142 Hayllarr. Ellis 175, 178 Hayward r. Mutmil, .\.. ., As.so- eiation 307 r. Phillii-s .... •_>73, 275 llellyer i: Snook 276 Hemsworth v. Brian 101, 214, 269. 291 Henderson r. Williamson .... 154 HeiilVee v. Bromley l.''G. 158 Henley v. Soper IS Henning r. Barker 151 Henry c. Kirwan 253 Hetherington r. Kohinson 117, 156, 229, 285 Hetley r. Hetley 149 Hewitt and rortsnii>w.li W.iier work.s, AV 150 r. Hewitt 1S2 Hewlett r. Layeoek .... 134, 138 lleyworth r. Hutchinson .... 75 Hiik, lie 117, 144 Hicks r. Bichardson .... 126, 284 Hide r. i'ettit 3til Higgins V. Street 292 V. Willes 185, 286 Higham and Jesso|>, 7.' If 2 Hill V. SloeomLe 158 c. South Stallord Hail. Co 100 r. Thorn 103 r. Town.send 293 Hinton v. Meade 274 Hirseh r. Im Tliuru 61, 02 llol.l.s V. Feriars .. 133, 150, 270 Hobdell r. Miller .. 193. 232, 285 Hol.son r. Stewart 202 Hoch c. Buir 63, 67, 304. 3.s 49 Kiii^WL-ll 1-. Klliott 144 Kirk c. Uiiwiii 165 Kirkliiitliam Local Board, Rr ItJO Kitchen, Ji-' 251 ('. 'I'miibull t)2 Kitts V. Moore 79 Kiiitjlit anil Taliernacli-, &c.. Society aO, 161, 162, 215 r. Burton 184, 2ii0 r. Coales 304, 317 r. Stone 12 Knott V. Loii^' 2J9 Kno.v V. Siniiiiomls 152 V. Svinniomls 135 Kockill r."Witherell 171 L. LaiN(; c. 'loiUl 165, 279 Lanilic v. Jones 280 Lambert i'. Hutchinson 91 Laniprell v. Billericuy L'niou. . 53 l^aiicaster. The 320 Lang c. IjiDwn 46, 123 Larciiin v. Kllis 147 ]>arkiu r. Lloyd 314 Laugher v. Laiigher 2!'0, 293 Liuv r. Blnckburrow. .153, 181, 206 <•. tiarictt 56, 58, 60 J/awrence v. Bristol, Ac, Kail. Co 75 r. Hodgson 183 Lawijon v. Wallasey Local Board 52 Lee r. Klkins.. 164, 183, 191, 194 I". Hemingway 4 r. Lingani 295 »;. Bilge 48, 50 Leeds r. Burrows 4 lA-eining, V.V 209 Lees V. Hartley 285 J.eggett c. Finlay 88, 89 Leggo r. Young 244, 263 Leicester r. CIrazebrook 239 Water L'o. v. Barrow Union 24 I'AUE Leicester Water Co. r. Crop- stone Overseers 250 Leiiih, lU 307 r. Brooke 310, 317 Leslie r. llichurdson 91 Lewin r. Holbrook.. 100, 152, 286 Lewis r. I'urlewis 201 V. Harris 219 t". Kossiter 77, 164, 166, 185, 196, 229 Lievesley r. (iilniore 82 Lindsay v. Lindsay 189 Linegar v. I'earce 209 Liiiheld i: Feme 183 Lingiiod, Ej- parte 254 %\ Croucher l29 r. Eadc 75, 115, 168, 258, 298 Linneni r. Williamson 177 Lister, E.r jytrtr. 254 Little V. Newton Ill, 115 Livingston r. Balli 48, 49 Llam-JlvKail. r... v. L. A: N. W. Kail.'Co 63 Llovtl r. Archbowle 140 -^— V. Harris 288, 289 r. Lewis 295 V. Mansel 47 and Spittle, Jic 154 Lock V. Vulliamy 153 Lockwood V. Smith 243 lx)ndon and lilackwall Bail. Co. i\ Cross 79 London r. Lynn 287 i^c. , Insurance Co. r. British, &c., Co. .. 303 C. & D. Kail. Co. V. S. E. Kail. Co. . . 58, fi3 Dock Co. and Shat .. ;iell 270 Maekay, Jlc 16.*, 273 Mackenzie and Ascot (5as Ci>.. lie 91 V. Sligo and Shan- non Rail. Co 279, 287 Mackley v. Chillingwoitli .... 234 Miicijueen, Jl'; 133 3Iiilcolni r. Fidiarton 73 Malnieshury Kail. Co. r. ]]udd 104, 107 Malony v. Stoekley 192, 209 Alansell v. Hurredge 15 Manser r. Heaver .. 190, 197, 274 Mansfield v. Doolin 53 Jlafdin Sands, The, Jl-. 13r ^larder v. Cox 227 Marks r. JIarriutt Id 4, 253 lilarsack v. Webber 126 Marsh, /ic 111, 117, 141, 175 V. Bulteel 98 V. Wood 96, 101 Mar.shall and Dres.ser, Jic 179, 199 I^Iartin v. JJonlanger .... 250, 251 V. Fyf'e 305, 317 V. Leicester Watei- works CV> 71 r. Thornton 131,175 Mason v. Hadiion 55, 61 V. AVallis ,S9 V. Whitehousc 290 Mas.sv V. Anbry 182 Mathias r. Vetts 129 Mat-ion V. Trower .. 123, 125, 134, 145. 1.'.3 Matthew r. Ollerton 104 Maunder, Jic .. 109, 125, 143, 146, 151 Mauusell r. Midland Great Western Rnil. Co 23, 79 May V. Hareourt 92 JIayer v. Farmer 66 Mays V. Cannel 181 M'Arthur r. Canipbull 278 PAGE :M'Brvde, E.r parl< IIS M 'Caber. Grey 163 M'Can V. O'Ferrall 101 M'Dongal ?•. Robertson 100 j\I'Harg r. Universnl Stock Exchange 80 jM'Lean and ^larcus, llf 240 ]\I'Rae r. M" Lean 246 ]\Iedcalfe v. Ives 266, 298, Sol Mercierr. Pepjierell .... 238, 273 Metropolitan, &c., IJail. Co. r. Sharpe 228, 231 Miles V. Great Western Hail. Co 230 Milford Docks Co., Ur 254- iAIiller v. Blanklev 11 V. De Burgh. . 178, 179, 186 r. Billing 308, 320- i\Iills r. Bay ley 95 V. Bow vers' Society 14tj, 237, 242. Milne r. Gratrix 93, 102 Millies r. Geiy 49 and liobertson, lie .... 17 ]\liiiific V. Rail. Passenger.^^' Assurance Co 62 Mitchell and Governor of Ceylon, He 95 i: Staveley 175, 298 iloffat V. Cornelius 55, 94 Moore v. Bootli 140 r. Butliii 198, 272 V. Dai ley 269' V. Foster 128 V. AVatson 217 Morduer. Palmer 38, 157, 158, 227,, 239, 241 Moiel X. ]5ynie 83, 213. 217 Morgan v. ISoult Ill, 121 V. Mather .. 108, 262, 266 r. Miller 85 • V, Morgan 104 r. Smith 228 r. Tarte 84 V. Thomas 65 Morlev v. Newman 167 Morphett, Rr 77, 82, 90, 133, 152 Mom is ami Morris, lie . . 229, 237, 240, 246 V. Beynolds 108 Morse r. Merest 50 V. Snrv 73 Jlortin V. ihiVgc 183 Moseley r. Sim]is(jii 109, 111, 117, 238, 272 Mudy V. Osam 15 TAHLE OF CASES. XXV I'Afii: Mulkcrn r. Lord ;M Miuulav r. Norton. . 2-l)S, 303, 319 Mun.ly" r. lUiuk 136 Municiiuil lUiildiiif,' Sociutv v. Kent '. 32, 34 lluiltlin;^ Sdiictv r. Kiilianls ". . . 33 Wtissi'lbiouk c. Duiikiii 271 MyiTs 1-. Di'lri.'s 203, 219, 318 MvHoii' ^V^.•st Gold iMiiiiii^' Co., ■/.'- 28 N. Nealk r. Clark.' 223 V. Li'.kcr 121 r. I'o.stlethway tc 2^<2 Newall r. Elliot 2r.n Newboldand Mc'tn>i>()litim IJail. Co., J!> 26, 281 Isewtou and llellu'riiigton, Jir 43 V. Walker 28G Niuholls r. Jone.s .. 1(55, 1(59, 176, 196 Nichols r. Chalif 48 Nicliolson r. Sykcs 20.'), 233 Nirkalls )•. Wancn 246 ^'i^:kcl.s 1-. llaUL'ock 174, 296, 300, 301 Nolan r. Copeman 234 Nonis V. Daniel 2ul North and Soiitli Wu.stern Junction Rail. Co. c. ISniitlord Union .... 162 r.riti.sh liaii. Co., J!> .. 269 London Knil. Co. c. Great Northern Kail. Co. . . 79 Northanijitou Gas Lif,'lit Co. c. rarnell 9". Norton c. Counties, A;c., Uuild- iny Society 33 ?-. JIascall . ." 30u Noiwich's case 166 Nuttall r. JIayorot .Manchester 107 0. Oatks v. Uroinell I'tfi, ir»7 O^dander v. 15iistoii 13 OidHeld and Wilnier's ca.se . . 183 Oliver and Scott, J,'v 269 r. Collings 121,122 Onslow's Trusts, Jic 11 Onyons r. Cheese 164 TAGK Uriii" rod V. Toilnionliii Jlill Co 304, 315, 316 Orient Steam Co. r. Ocean Marine Co 234 Ornies r. Headil 14 Oswald r. t;r.'V lln, i:ia, 143, 145, 276 O'Toole r, I'ott 295 O.xenhani v. Lc inon 253 r. r.VI.I,IsKK r. Dale 3r» I'almer '". Hardwick 65 r. Aletrojiolitan Kail. Co S9, 90. 135 Pai>iia r. Kose 128, 152 rari)crv r. Newnhain 91 Parken" c. AVhithy 301 Parker v. Unrroughs 104 Parkes r. Smith 92, 250 Parkinson v. Smith 2ls Parr r. Winteringham 6 Pascoe r. Pascoe Iti7 Patten r. West of England Iron, &c., Co 217 Paull r. Panll .. 18, 19, 154, 286 Payne r. ..Massey 261 Peake r. Kinehley Local Hoard 231 Pearman v. Carter 84 Pearse i: Cameron 208 V. Pearse 20t> Pearson r. Archbold 201 r. Henrv 16 r. Overell 247 V. Kipiev 220 Pedlev r. Go.klard. . 189, 199, 269, 278 Penmdl r. Walker 57, 101 Penrice r. Willi. mis 61, 136 Peiiper r. Gorham 144, 151 Percival, 7A 113 Peringand Keynier, A' .. Ill, 112 Perkins c. I'otts 4 Perrimau v. Ste"gall 140 Perry r. Mitchell 1 7a, 178 V. Nichol.son 285 Pe.scod r. Pescod 121 Pelch r. Conlan 77 Petei-son r. Ayre 111, 117, 151,238 Petty V. Dainel 272 Pevtoe's case 255 Plulips r. Hurv 23 r. Kiiightlev 186 Phillii-N r. Higgins". . 193, 202, 204 Phii'i>s r. Ingnini 96, 141, 143, 146 XXVI TABLE OF CASES. PAGE Pickering v. Cape Town Kail. • Co 79 V. Watson 195 Piercy v. Young . . 55, 56, 57, 74, 75, 94 Pilraore r. Hood 267 Pinhorn i'. Tuckingtou '296 Pini V. Roncoroni 60 Pinkertou r. Caslon 175 Pinknv v Hullock 180 Piatt V. Hall 207 Piews r. Baker 59, 60 and Middleton, lie 111, 144, 145, 259 Plummer r. Lee 178, 180 Pompe IK Fuchs 53 Ponsford v. Swaine 126 Poutifex v. .Alidland Kail. Co. 224 Pope v. Brett 181, 198 Portland District Council and Tilley, Be 98 Potter V. Chambers 223 Potts V. Ward 99 Poyner v. Hatton . . 164. 2(i9, 291 Prebble and Robinson, Jie 211, 266 Prentice i: London 34 r. Reed 207 Preston r. Eastwcxjd 158 Price V. Mollis 22, 186 V. James 82 V. Pojikin 154, 167, 184, 196 V. Prii;e 249, 261 Pringle v. Gloag 230 Prior V. Henibrow IfiO Pristwick v. Poley 19 Proctor r. Williamson .. 149, 150 Pioudfoot V. Boyle 12, 226 V. Hart 320 Pullen and Corporation of Liverpool, 7.V 120 Purslow V. Bally 255, 296 R. K.UNFniiTii r. Hamer 47, 182 Randall v. Gnrnev 140 V. Randall .. 171, 172, 278 Randegger v. Holmes 59 Kandell v. Thompson 55, 94 Ranger v. Great Western Rail. Co 106 Rathven c. Elgin 103 Ravee v. Parmer 76, 131, 252 Rawling r. Wood 15."> Kawsth-n-n v. ArnoM 269, 274 PAGE Rawtree v. King 84, 85 Ravner, Ej: parte 29, 231 Keade v. Dutton 87, 90, 117 Rees r. Rees 284 r. Waters 1 75, 176 Reeves v. ^lacGregor 224 R. V. IWdell 23, 96 — i: Bingham 81 — V. Blakemore 23 — r. Cotton 256 — r. Crovdon and Norwood Tram. Co 28 — V. Fontaine iloreaii 257 — V. Great AVestern Rail. Co. . . 276 — V. Hardey 23. 64, 96 — V. Hemsworth 286, 296 — V. Hill 18, 19 — I'. Matfey 286 — r. Manchester, kc, Rail. Co 25 — V. Metropolitan Commis- sioners of Sewers .... 29 — V, Metropolitan Rail. Co. . . 173 — I'. Middlesex. J.J. of 232 — V. Midland Rail. Co 27 — v. St. Katherine Dock Co. . . 287 — V. Shillibeer 96 — V. South Devon Kail. Co. . . 126 — r. Vreones 140 — V. West Riding, J J. of . . 25, 232 V. Wheeler 258 Reid V. Frvatt 88 Kennie v. Mills 205 Renshaw v. t^)ueen Anne Man- sions Co 60, 61 Reynolds v. Askew 268, 269 r. Grav 121 r. Harris 219, 233 Rhodes r. Airedale Drainage Comnn-s 1, 72 V. Haigh 99 Rhys and Dare Valley Rail. Co., lie ■ 76, 130 Richards v. Cullerne 137 V. ]\Iay 51 Richardson r. Worsley .. 174, 228 Riclimond r. Parkinson.. 287, 289 Riddell v. Sutton 16 Kider, lie 174 Ridoatt'. Pve 138 Rigby V. Okell 229 Ruiger V. Joyce 147 Ringland t?. "Lowndes 89, 107, 108 Riplev V. Great Northern Rail. Co.' 51 TABLE OF CASKS. XXVll PAGE Risilcn i\ lufilct 1 75 J{ol)eits r. Hiny Comiuisnioiifi.s f)".' c. C.)ii..-tt 129 V. Eb.ilianlt 1-J(j, 127, 217, 2-^St, 2St8 r. .Mniii-tt •-'!, 7:i 1". Nfwliolll 12 r. Wiitkiiis 1 .').'( lldlit'itson c. Hiittoii l.'i, •JS7 K'llimsuii I-. Daviis S*S V. Davis ilia i: Kdliiiisoii 30(J Kobiiion V. Calwooil 15<> Kobson V. ItJ, 17 aiul Rnilston, J!c.. 7i), 171 Roclu'fuiicaiiKl r. Uoiistead . . 30/>, 311 Roe V. Doe -il'i, 219 Kopei-s r. Dalliinoie 270 V. StHiitou (54, 2St5 Rollaml r. Ciissidy 148 Roper r. Liiidon L5 V. Levy 298 Rose V. Uudf.-ni 217, 227 Ross V. IJoai.ls ]ti7, 187, 191 1-. Clil'toii 1(J9, IS J, 207 Rosse V. Hod;;(s 177 Rouml r. Hatton 22, 178 Rousi^ and Meir-r, J!e 93 lioutludge i: Tlioiiiton 122 Rowclillc r. Devon and Soiini- set Rail. Co. 149, 228 r. Leifjli .. 31(5, 317, 318 Rule r. Hiyde 171 Runisey v. King 19 Russell r. Harris 317 V. I'lllegrini 62 V. Ku^ssell 58, 60, 62 Rust r. Victoria Gravinj^ Dock Co 308 S. Saiker c. Ragozine 317 Sackctt I-. Owen 8.'>, 267 .Sadler r. Robins 23.') ?•. Sniitli 6, 16.'> Salkeld and .slater, Jli- 123. 124, 145 fallows r. Girling Ill Salni Kyrburg v. Posnanski . . 291 Salter v. Yatis 163 V. Yi-ates 86 Samuel c. Cooper.. 141, lii>, 176, 187 Saudbach Charity Trusts, Jic. . 231 I'AOB Savage c. Asliwin 207 Sa.\by r. Cloucester Wagon Co. 316 Scales r. Kast I-omlon Water Co 267 Scott V. Avery 5] (". Corporation of I^ivei- pool ..5, 22, 48. 51, 106 — — r. Mercantile, &c., Insur- ance Co 51 - r. Van Sandau 97, 141, 151 r. Williams 171 Srougull <•. Cami)bell 131 Seaward c. Howev 284 Seckham v. Habb" .. 192, 198, 227 Scirctary of State for Home Dep.irtnicntand Kli-trher. Jl- 31 Selby f. Russell 189 Seligniann r. Le iJoutillier. . . . 62 Serle v. Fardell 271, 319 Shannan v. Hell 261 Sharp V. Xawell 116 Sharpe v. Hi■ 229 r. Blake 2tj9 V. Huller 234 V. Edge 222 r. Festiniog Kail. Co. . . 207 r. Fielder lul v. Goff 139 r. Hailey 233 V. Hrtitle)' 153 r. Johii.son 72 \'ickers r. Vickcis 4, 49 (". V.yvc 'i;');} Vim-y r. r>i;<. l'>0 Ti.Kw.U, 7.V .. 14:i, 149, 1 >4, 21.^. Tili:iiii i: Copp I'-ii Tilh-tt /•. Chaiiiij,' Cros. Uiidge W. Co 49, fifl : Ti|ipin,i,' c. Siiiltli Iti9, 182 Wakdlk r. Dowmiiaii .. isl, 2i»l TittiiiMHi c. I'iMt IttS, 2.'>tj Wade i: Dowliiij^ .. 111. 15."», 298 Titiis V. IVikiiis 182 '■. Simeon tj4 Toby r. Lovibond . . I(i8, 209, 251 Wmle-Cery <•. Monison [<'>, (io, 254 Tollit V. Saundei-s 123 Wadswoith c. Smith 5 Tomes c. Hawkes It!:} Waketield >: Llanelly itail. Co. 1S9, Tondin c. .Mayor of Foidwi.li 17. 183 189, 194, 197 WMJkfr and H.-ikenham Local Tou.ssaint r. Haitop 99 lioard, 7.V. .2.'j4, 281, 296 Trainer r. Phaiii.x Fire Assnr- i and Mrown, y.V 217 nnce Co f.l r. Bnnkell a 13, .-520 Tredwen c. Holinan .')! v. Frobisher 144 Trej^onint: r. Attenborougii .. 216 I i\ General Mutnal, .See., Trew c. Burton ir.4, lf)8 | Buil.iing Society 33 Tribe and rpfierton, yiV 183 r. Karl CJrosvenor. . . . 2St; Trinangliam r. Trimingluim . . 76, Wallen r. Smitii 233 2.')3 Waller c. King l.'iO Trippet r. Evre 121 Wallis c. liirsrli 61 Trver v. Sliaw l.'.O r. Liehtield 3U9 Tullis r. .lacson 109, 2.")9 j r. Sayers 311 Tiinno and Bird, A'o 81, 112, 120. ' Walmsley v. White 59 121 Walters r. Morgan .. 47, 297, 302 Tnrneil c. Sanderson 59 Walton c. Swanage I'ierCo. .. 243 Turner c. (luulden 3, 4, 5, 12S Waltonshaw /•. .Marshall 123 r. K'ise 22S Wansborough. /iV- 17 f. Swainson 164,193 A\''arburton r. llaslingden Local r. Turner 172, 176, 190 l'.oard237, 238, 239 T^irnock c. Sartoris 55, 61 r. Storr 102 Turpiii r. I'ain, /'-Taylor 312, 313 \ Ward i: Dean 158, 273 Tur.|nan.l i: Fearoii 297 , c. Hall 196, 2ol, 219 Tycrman v. Smith 89 r. I'illey 304, 316. 317 Tyler c. Jones 88, 99 r, Secretnrv for War . . 92 Ward's case 108 I Ware, Jir 69 IT. I c. Regent's Canal Co. . , 276 ' Waring r. IVarman 219. 220 trNHKUWoon and 15e H'ord and Warner, Jir 12, 14 Cambri.lgr Rail. Co., /i'-; ..119 and Powell, 7.'- 92 United Kingdom, &e., A.s.socia- Warwick r. Cox 207 tion r. Houston .. Ill, 117, 155 Watford R;iil, Co. v. L. A: X. Uliton v. L'pton -53 W. Bail, Co 63 XXX TABLE OF CASES. PAGE AVatkiiis !-. Pliill|>otts 77, 154, 198 "Watmongli ;•. Holgate l.")4 "Watson v. Duko of Xortliuui- beilaiul 110 r. Watsuii 181 "Weall c. James 200 Webb r. Taylor 49, 140 V. "Wvatt 127 Weed V. Wanl 310 Wells r. Cooke 120 V. Mitchani Gas Co 234 Weiihaiii, Ex parte 19 Wfiil.xk V. Kiver Dee Co... 304, 306, 307, 310, 319 Wcnn.an r. !^[af•kellzil' 256 West lake v. Collavd 129 Weiit London Dairy Society v. Abbott 56 Rail. Co. r. Ful- liani Union 25, 232 Western Suburban, &c., Society r. Martin ". 33 Westwood, lie 235 V. Secretary of State for India 51 Wharton r. King 183, 191 Whatley v. .Morland 133 Wheatley r. AVestniinster, &c.. Coal Co 61 Wbitacre r. Pawlin 251 Whiter. Sharp Ill, 154,156 Whitehead v. Firth.. 219, 227, 291 r. Tattersall . . 153,256 Whiteley and IJoberts, Me 266 Wliitmore r. Smith. .116, 148, 298 Whitwharnand Wrexham Rail. Co., Ite 133 Whitworth and Hulse, lie 171 Wiikham r. Harding 58, 60 Wicks V. Cox 123 Wilco.x V. Wilcox 202 Wild r. Jlolt 209 AVilkins c. Mayor, &c., of Bir- niiiighani 32 Wilkinson v. I'age ]!iO Wilks r. Davis 49 Williox an (Laiida Clauses (Um- pire) Aft, issa) . 111», 373 c. 0'^ (Haiik- niptey Act, 188:5). s. 57. . 17 c. 61 (Agricul- tural Huia- ings Act, 1883) 35, 39 s. 1-2 1, 102 J 7 it IS \i,-t. c. 41 (lluildiiig Societies Act, 1884). .s. 2 . .33 c. 61 (Jiulica- ture Act, 1884). s. 8 . . 248 s. 9 . 38, 66 s. 10. 38, 66 s. II . .38 50 A: .'.1 Vi.t. c. -JO (AlL.t- iiu'iits ami Cot- tage (ianleiis Coin|pensatii»ii lor CroiLs .\ct, 1887). .s. 7 . . 36 c. 41 (Regula- tion of lijiil- ways Act, 1868). s. 63 . . 30 C.4S (Allotments Act, 1887) s. 3 . .30 c. 58 (Coal Mines K e g u 1 a - tion Act, 1887). .s 4-2 . . 30 8. 47. . 31 .'.1 & r.J Vict. e. 41 (Local Co- vernment Act, 1888) . . 6 s. 11 . .30 s. 63 . . 30 ! c. 43 (County Courts Act, I 18S8) 215, 224 s. 64 . . 66 8. 104 . 66 : •s. 116 221, 233 1 I'AUK 52 & 53 Vict. c. 49 (The Arbi- tration Act, 1889)2,4, 6, 7, 24, 37, 39, 42, 45, 46, •)4, 72, 81.86, 87, 112, 113, 122, 123, 1.3ii, i:t,s, l.'-,5, 159, 212, 217, 232, 254, 400 8. 1 37, 40, 42, 43. 69, 95, 2.'.8, 282 s. 2 . 7. J<. 37, lis. -211, 249 .s. 3 . 46, 306, 309 s. 4 48, 19, 53. •-'25 .s. 5 . 113. ll.'-,, lis s. t> . .114 s. 7 . 38, 138, l.'iS, 160, 241, 264 s. 8 . 38, 136 s. 9 . .90 s. 10 . 15S. 1(32, 237, 23.S, 247 s. 11 . :i7. 108, 258 s. 12 . 277, 2M, 283 .«. 13 . 66, 67, 303, 304, 310, 311 s. 14 63.66.67, 303, 304, 31.^., 317, 319, 320 s, 15 . 65, 210, 235. 249, 294, 303, 309, 313, 318 s. 16 . 6.'i, 237, 2r)8, 277 s. 18 . .ts, 137 s. 19. . 161 s. 20 160, 211, 21 S. 247, 276, 317 .«. 21 . . 37 s. 22. . 140 .s. 23 . .40 XXXVl TABLE OF STATUTES. PAGE f)2 & 53 Viet. c. 49 (The Arbi- tration Act, 1889). s. 24 . 39, 68. 114, 120 .s. 2.0 . . 8 s. 26 . . 38 s. 27 . 2 22, 43, 212, 258 c. 63 (Interpre- tation Act, 1889). •s. 1 . 8, 87 s. 3 . . 152 53 & 54 Viet. c. 5 (Lunacy Act, 18901 s. 244 '. 30 c. 39 (Partner- ship Act, 1890). s. 6 . .14 c. 70 (Hous- ing of the Working Classes Act, 1890). s. 41 . . 32 c. 71 (Bank- ruptc}'Act, 1890). s. 1 . . 281 55 Vict. c. 39 (Stamp Act, 1891). 47, 159 s. 14. . 142 57 Viet. c. 53 (Trustee Act, 1893). s. 21 . .16 0. 63 (Married Women's Pro- perty Act, 1893). s. 1 . .13 57 & 58 ^■i.■t. .■. 13 (Arbitra- tion (.Scot- land) Act, 1894) . 6 c. 16 (.Fudica- tnre Act, 1894). s. 1 . . 162 ■)8 Vict. c. 4 U & 5G k 58 k 59 Vict. 59 k 60 Vict PA GE Biiikling Societies Act, 1894). s. 20, 35,40, 161 . ccxiii. (Lon- don Buikliug Act, 1894). s. 91 . . ;31 s. 107 . 31 •. n (Lands; Cbxnses (Tax- ation ofCosts) Act, 1895). s. 1 . . 231 27 (Market Gardener.s' Compensa- tion Act, 1895) . . 36 c. 9 (Local Government (Determination of Differences) Act, 1896) . 6 s. 1 . . 30 c. 25 (Friendly Societies Act, 1896). s. 68 35. 40, 161 c. 30 (Concilia- tion Act, 1896). s. 3 . . 40 c. 43 (Coal Mines Regu- lation Act, 1896). s. 2 . . 31 ' c. 45 (Stan- naries Court Abolition Act, 1896). s. 4 . .39 c. 48 (Light Railways Act, 1896). s. 13 . 26, 40 60 & 61 Vict. c. 37 (Work- men's Compensation Act, 1897) . . 40 s. ] . . 36 s. 2 . . 36 s. 10 . 36 Till-: LAW OP AEBITPiATIOXS AND AWARDS. CHAPTER I. iNTTionrcTor.Y — definitions — framing submissions. At common law any agreement by wliie-h parties refer Ciiat. I. an existing or possible future matter in dispute between Definitions, them to the iudieial and linal determination of a tliird Suimussion at , . Loiiinion law. person, who is named, is called a submission ; the per- son to whom the reference is made, an arbitrator ; when the reference is made to more than one, and pro- vision is made that, in case they shall disagree, another shall decide, that other is called an umpire ; the judg- ment pronounced by an arbitrator or arbitrators, an award ; that by an umpire, an umpirage, or, less properly, an award. By statute, in particular cases, certain defined notices I'mler special and proceedings are made eijuivalent to a submission by ''^"^"^•^•''• agreement. Thus, section 25 of the L. C. C. Act, 184;") (8 tfc 9 Vict. c. 18), enacts that an appointment of an arbitrator thereunder " shall be deemed a submission to arbitration on the part of the party by whom the same shall be made." {UJiodes v. Airedale Drainafie Coiiunis- siouers, 1 C. P. D. 402; 45 L. J.. C. 1". 801 ; liid.ler- v. North Stqffhnhhire riailicai/ Ci>., 4 Q. B. D. 412; 48 L. J., Q. B. 248.) Under section 12 of The Agricultural A. B THE LAW OF ARBITRATIONS AND AWARDS. Chap I. Under tlie Arbitration Act, 18S9. "Written agreement." Agreement in form not contemplated by Act, References wliidi are not to arbitration. Holdings Act, 1883 (46 & 47 Vict. c. Gl), the delivery to a referee of his ai^pointment shall be deemed a submis- sion to a reference by the party delivering it. Similar provisions are contained in The Public Health Act, 1875 (38 & 39 Vict. c. 55, s. 180), and in other statutes. In the Arbitration Act, 1889 (52 & 53 Vict. c. 49), "submission" means a written agreement to submit present or future differences to arbitration, whether an arbitrator is named therein or not (s. 27). An agree- ment means the assent of both parties to the same set of terms ; and where the parties signed two separate docu- ments, one of which contained a clause for reference and the other did not, there was held to be no submission (Caerleou Tinplate Co. v. Hiifihcs, 60 L. J., Q. B. 640 ; 65 L. T. 118). It is not, however, necessary that the agreement should be signed by both parties, provided it is binding upon both. (Baker v. Yorkshire Fire and Life Assurance Co. [1892], 1 Q. B. 144; 61 L. J., Q. B. 838.) The indorsement on their briefs by counsel representing litigant parties, of an agreement to refer, is a written agreement within the section. (Aitken v. Batchelor, 62 L. J., Q. B. 193; 68 L. T. 530.) The Act does not contemplate a reference to three arbi- trators, and in the case of a mere agreement to refer which does not appoint the arbitrators and provides for a reference to three arbitrators, one to be appointed by each party and the third by the two so appointed, as distinguished from two arbitrators and an umpire, the Act does not enable the court to compel one of the parties to appoint an arbitra- tor. (Re Smith and Xrlson's A rhit ration, 25 Q. B. I). 545 ; 59 L. J., Q. B. 533.) The first element of a submission to arbitration is, that it should show an intention of the parties to be concluded by the decision of the arbitrator. But a mere agreement between two persons to be concluded by the decision of a third would not in itself constitute that rSTRODrCTORY — IM.FINI IIONS — FRAMIXfi SmMISSIONS. O third person an arbitrator. To give him that character Cnw. I. there must be a "difference" between tlie parties, or his duties must involve the performance of judicial functions. Thus, where it is left to a person to whom the matter Aii.itration , 1 , , , ,1 • 1 • 1 *i "'"l valuation 18 referred to put a value upon sometlnng ^vluch tlie .listinguisheJ. parties have already agreed shall be paid for, this is not an arbitration in the proper sense of the term, but an appraisement, which in reality prevents differences, and s v. Ifrhham, L. ]J., 2 Ex. 72; 30 L. J. Ex. 20; Turner v. Gnnhlen, 43 L. J., C. P. GO; L. R., I) C. P. 57). " If a man is, on account of his skill in such matters, appointed to make a valuation in such a manner that in making it he may, in accordance with the appointment, decide solely by the use of his eyes, his knowledge, and his skill, he is not acting judicially ; he is using the skill of a valuer, not of a judge. In the same way, if two persons are appointed for a similar purpose the}' are not arbitrators, but only valuers." (Re Dmnly, 15 Q. ]3. ]>. 420; 54 L. J., Q. B. bl\,j)er Esher, M.ll.) " If it appears from the terms of the agreement by which the matter is submitted to a person's decision that the intention of the parties was that he should hold an inquiry in the nature of a judicial inquir}-, and hear the respective cases of the parties, and decide upon evidence laid before him, then the case is one of an arbitration. The inten- tion in such cases is that there shall be a judicial in(]uiry worked out in a judicial manner. On the other hand, there are cases in which a person is appointed to ascertain some matter for the purpose of preventing differences from arising — not of settling them \,-hen they have arisen — and where the case is not one of arbitration, but of a mere valuation." (7iV Carus-Wilson and Greene, 18 Q. B. D. 7, per Esher, M.R. ; He JLunmond ami Waterton, 02 L. T. 808.) n 2 THE LAW OF ARBITRATIONS AND AWARDS. Chap. I. Examples of valuations. Incidents of a valuation. Reference to value when an arbitration, Accordiiigl_y it has been held that a person vahiing between a hmdlord or an incoming tenant and outgoing tenant {Leeds v. Biirroic^;, 12 East, 1 ; He Datvdij, supra ; lie Hammond and Waterton, supra), or between an incoming and outgoing incumbent {Jenkins v. Betliam, 24 L. J., C. P. 94; 15 C. B. 168), or between a vendor and a purchaser {Lee v. Hemingu-ay, 3 L. J., K. B. 124; Turner v. Gonlden, supra ; CuUins v. Collins, supra ; Be Carus-Wilson and Greene, supra), even under the ordinary condition of sale providing for compensation for errors in the particulars {Bos v. Helsham, supra), is not an arbitrator. The distinction between a mere valuation and an arbitration is important to be borne in mind. In the case of a valuation the courts have no jurisdiction to interfere between the parties, or enforce their agreement under the Arbitration Act, 1889. {Be Hammond and Waterton, 62 L. T. 808; Lee v. Hemingwaij, 3 L. J., K. B. 124 ; Collins v. Collins, 28 L. J., Ch. 184 ; Bos v, Helsham, L. R., 2 Ex. 72 ; 36 L. J., Ex. 20.) Moreover, an action for negligence would lie against a valuer, but not against an arbitrator. {Turner v. Gouldcn, L. E., 9 C. P. 57.) A valuation would only require to be stamped as an appraisement, not as an award {Leeds v. Burrows, 12 East, 1), even though in the form of an award. {Perkins v. Potts, 2 Chitt. 399.) But even a reference to determine the amount of com- pensation or value to l)e received by one of the parties, where it involved a judicial inquiry, and the parties were entitled to bring evidence before the arbitrators or umpire, was held to be an arbitration properly so called. {Be Hopper, 36 L. J., Q. B. 97 ; L. II., 2 Q. B. 367 ; Be Evans, 18 W. E. 723 ; 22 L. T. 501 ; and see Vickers v. Viekers, L. E., 4 Eq. 536.) Where, however, the matter is one of valuation, and two valuers are appointed, the mere fact that an umpire has to be had recourse to, does INTRODUCTORY — DEFINITIONS — FRAMING SUBMISSIONS. not necessarily constitute the umpire an arbitrator in the Chai-. I, proper le<^'al sense of the word, (llr C'dniH-U'ilson and Gnriir, 18 Q. Ji. ]). 7 ; 50 L. J., (,). B. 530 ; Re JIammund (ind ll'dtrrtnii, (52 L, T. K08 ; the dicta to the contrary in Tunirr V. (Joitldcii, L. II., I) C. P. 57, are overruled). If tlie third person is also an expert, to decide by the exer- cise of his skill and kno\vledf,'e, he is but a valuer ; if, however, a barrister is chosen, and he has to arrive at his decision by a judicial inquiry, he would probably be held to be in the position of an arbitrator. {lie Ilamnioiid dud Wntevton, supra, ju-r ^Villianls, J.) It was held in a case decided in 1821) that where a rtrson person was named to ascertahi and decide, by inspection aecoun^s. of accounts, a dispute as to whether anything was due from one person to another, he was an arbitrator {JeJil> v. McKicnimi, M. I'i: M. 340) ; but a person is not an arbitra- tor if he is merely to prepare a statement of accounts. {(loodi/car v. Siiitjisoii, 15 M. & W. IG.) Where by an agreement the rights and liabilities of Architect or the one party are made dependent upon the uncontrolled ^fing determination of a third person, that is not a submission certificate, to arbitration ; no dispute can arise, since everything depends upon the decision of tho individual named, as, where a building contract provides that no sum shall be due to the contractor until the amount thereof is certified by the enghieer or architect of the employer. OVadsirorth v. Smith, 40 L. J., Q. 13. 118 ; L. \i., G Q. 13. 832 ; Scott v. Curporatlon of Liverpool, 28 L. J., Ch. 230; 3 De G. it J. 334.) But where a contract for the sale of locomotives provided for payment upon the certificate of the purchaser's engineer that they were in perfect order, and contained another clause that "all disputes are to be settled by arbitration,"' and the engineer having refused his certificate the vendors proceeded under the arbitration clause, it was held that "a dispute"' had arisen within the clause, and that the award was THE LAW OF ARBITRATIONS AND AWARDS. Chat. I. Stewards of races. Local Government Board. Parties may attach incidents of arbitration by agreement. Contract for reference by what law- governed. enforceable as such. {lie Hohcnzollcrn. Acticn, i(-c., 54 L. T. 596). The stewards of a horse race are not in the position of arbitrators between the persons who have horses in the race, and the rules of law applicable to arbitrators do not apj)ly to them. {Parr v. Wiitteriiu/luon, 28 L. J., Q. B. 123.) But a referee appointed by the parties in a boat race would seem to be in the position of an arbitrator. {Sadler v. Smith, 39 L. J., Q. B. 17 ; L. E., 5 Q. B. 40.) Where, under the Local Government Act, 1888, dif- ferences between local authorities are to be decided by the Local Government Board, the Board are in the position of an arbitrator. {He Kent County Council and Sandgate Local Board [1895], 2 Q. B. 43 ; 64 L. J., Q. B. 502 ; but see 59 & 60 Yict. c. 9, passed in consequence ; and see Bexley Local Board v. West Kent Scicerarie Board, 9 Q. B. D. 518 ; 51 L. J., Q. B. 45G.) In any case the parties to an agreement of whatever description may attach to it all the incidents of an arbi- tration properly so called by a stipulation that "these presents shall be deemed to be a submission within the meaning of the Arbitration Act, 1889, and shall have all the incidents of such a submission." If a contract is entered into between parties residing in different countries, where different systems of law prevail, the question as to which law is to govern the contract is to be decided by the intention of the parties as gathered from the contract. Where, therefore, two contracting par- ties resided the one in Scotland the other in England, and the contract contained an arbitration clause good according to English law, but bad according to Scotch law, it was held that, the intention of the parties to refer being clear, the clause was governed by English law. {Ilandj/n v. Talisker Distillery [1894], A. C. 202 ; 71 L. T. 1.) The law of the two countries upon the particular point has since been assimilated. (57 & 58 Vict. c. 13.) INTRODUCTORY — DEFINITIONS — FIIVMINd sriOIISSIONS. 7 At the present day suhinissions are usually in writiiif,'. C'iiai". I. In franiinj^' a submission ^Tcat care and precision should Matt.-rs to he be observed, since an unskilful or loosely drawn instru- "''"'^'"■^''l '» ' _ ' Iraiiim;; the ment is often ineffectual to accomplish the purposes .sul.inission. for which it was intende.l, and is seldoMi unattended with expense or disappointment to some of the parties. The submission should be by an instrument of sufficiently high a nature to enable the arbitrator by his award to accomplish the objects of the reference. Where the re- ference is under the provisions of a statute, the directions of the statute should be strictly complied with. The submission should be a clear and specific guide to the arbitrator as to the duties he has to perform and the powers with wliirli he is invested. As to tli(,' parties, it should embrace all the persons wliose concurrence is necessary to make the award a complete determination of tlu' matters in dispute. As to the matters referred, it should, where possible, clearly define the subject- matter of the reference, so as to enable the arbitrator to make his award upon the precise matters submitted to him. {lie Green and Bulfoiir, G3 L. T. 117, 825.) Since the arbitrator derives his authority from the consent of the parties, the submission should invest him with all such extraordinary powers, both as to the conduct of the reference and the directions in the award, as from the peculiarity of the subject-matter, nature of the dispute, or relation of the parties, may be necessary or useful to enable him to fully investigate and finally determine. The Arbitration Act, lb8*J (52 A: 53 Vict. c. 4t>), has I'lovLsions considerably shortened submissions by incorporating by ."ub'|,I|!|sio,',8. implication most of the common provisions formerly con- tained in carefully drawn submissions. Section 2 of the Act provides tiiat "a submission, unless a contrary inten- tion is expressed therein, shall be deemed to include the provisions set forth in the lirst schedule to this Act so far as they are applicable to the reference under the submission." THE LAW OF ARBITRATIONS AND AWARDS. Chap. I. Apply to all arbitrations. A submission imiilies : — To a single aibitiatoi' — ■when To two arbitrators — an umpire. Time for award. Commence- ment of umpire's jpowers. Time f(jr umpirage. By force of section 25 of the Act section 2 is made retrospective, and applies to all arbitrations by consent out of court taking place after the commencement of the Act, though the submission was made before. (Re Williams and Strpnei/ [1891], 2 Q. B. 257; 60 L. J., Q. B. 235 ; and see lie IJllson and Eastern Counties Navigation, dr. Co. [1892], 1 Q.B. 81 ; 61 L. J., Q.B. 237.) The following are the provisions contained in the first schedule to the Act : — {a) If no other mode of reference is provided, the reference shall be to a single arbitrator. {b) If the reference is to two arbitrators, the two arbitrators may appoint an umpire at any time within the period during which they have power to make an award. (c) The arbitrators shall make their award in writing within three months after entering on the reference, or after having been called on to act by notice in writing from an}- party to the submission, or on or before any later day to which the arbitrators, by any writing signed by them, may from time to time enlarge the time for making the award. It will probably be held that the word " arbitrators " in this and the following clauses includes a single arbi- trator, though not so expressed. See Interpretation Act, 1889, 52 & 53 Vict. c. 63, s. l.j ((/) If the arbitrators have allowed their time or extended time to expire without making an award, or have delivered to any party to the submission or to the umpire a notice in writing stating that they cannot agree, tlie umpire may forthwith enter on the reference in lieu of the arbitrators. ('') The umpire shall make his award within one month after the original or extended time appointed for making the award of the arbitrators has expired, or on or before any later day to which the umpire by any INTRODUCTORY — DEFINITIONS — FRAMING SUBMISSIONS. writing sigiu'il Itv liini inav from liino to time enlarge the ^'hap. I. time for making his awanl. [Singularly, the award of the umpire is not required to be in writing, as in the case of arbitrators.] (/) Tlie parties to the reference, and all persons P.irti.'s to bo claiming through them respectively, shall, subject to any J„,„iuce legal objection, submit to be examined by the arbitrators eumeut«. or umpire, on oath or affirmation, in relation to the matters in dispute, and shall, subject as aforesaid, pro- duce before the arbitrators or umpire, all books, deeds, papers, accounts, writings, and documents within their possession or power respectively which may be required or called for, and do all other things which, during the proceedings on the reference, the arbitrators or umpire may require. (//) The witnesses on the reference shall, if the Witnesses arbitrators or umpire think fit, be examined on oath or I."^^,.,,'*' affirmation. (//) The award to be made by the arbitrators or .v ward to be umpire shall be final and binding on the parties and the persons claiming under them respectively. (j) The costs of the reference and award shall be in Power over the discretion of the arbitrators or umpire, who may direct to and by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid, or any part thereof, and may award costs to l)e paid as between solicitor and client. The only common form stipulations omitted from the above i)rovisions are, that which enables an arbitrator to proceed cxjxirte, and one providing against the death of a party operating as a revocation. Another matter of vital importance at the outset of a Tlu* choice of . • ,, , • r 1 ■ i 'iM 1 '"' urbitmtor. reference is the choice of an arbitrator, i hough, as we shall hereafter see, almost anyone may in ordinary cases be chosen as an arbitrator — so that if parties agree 10 THE LAW OF ARBITRATIONS AND AWARDS. Chap. I. to trust the decision of their disputes to the inexperience of a child or the vagaries of an idiot, such decision, when given, will ])e binding upon them (see Steff\. Andrews, 2 Madd. 6) — too great caution cannot be observed in selecting competent and disinterested persons ; for if an incomi^etent or interested person be chosen it will seldom happen that he will not, through some misconduct, error of judgment, or open display of bias, render his award impeachable. In every case w^here the parties can concur in the choice of one person a single arbitrator is most advisable. Nothing has brought more discredit upon the resort to arbitration than the practice of having two arbitrators, one chosen by each party ; for unless such arbitrators are members of the legal profession it is almost impossible to impress upon them that they are not to a greater or less extent expected to attend to the interests of their respective appointors. Besides, it so often happens that the two arbitrators are unable to agree, and have to leave the decision of matters to the umpire, that it practically amounts to the appointment of a single arbitrator. The nature of the reference will often determine the class of person to be selected as arbitrator, but usually the appointment of a person well versed in the law applicable to the cause of dispute will most satisfactorily attain the objects of the reference — namely, to get speedily, and at a comparatively small cost, such a decision as a court of competent jurisdiction would most probably have given. It does not follow, because the dispute involves questions of science, l)usi- ness, or skill, that acknowledged masters in the science, or persons of pre-eminence in the peculiar business or skill, should, or indeed could, advantageousl}- in all cases be chosen arbitrators. The assistance of such persons is always attainable by giving their evidence before the arbitrators in the waj' in which the evidence of scientific men and experts is usually given in our courts. ( 11 ) CHAPTER II. MHO MAY 15I-: I'AUTIKS TO A REFERENCE. Capacity to enter into a binding' sul)niission to arbitration Chap II. depends upon the same incidents as capacity to contract Of.apacity f,'enerallv. Every person capable of making a disi)osition *'' •''"''""t or release of a ri<,dit may subnnt that right to arbitration. (Com. Dig. " Arb." J). 2.) A person \vho cannot contract cannot submit to arbitration. (Bac. Ab. " Arb." C.) It has long been established at common law that an Infants, infant could make no binding contract e.xcept for neces- saries, or service or unless otherwise obviously for his benefit {Clements v. London and XortJi-]]\'stern liaihniy Co.[m)4], 2 Q. B. 482 ; 70 L. T. 89()) ; and a submission by an infant was not binding upon him unless he confirmed it when he came of age. (Roll. Ab. " Enfant," I). 5 ; Bac. Ab. "Arb." C. ; Godfreif v. ]r,id,\ (i Moore, 488; Don-ae v. Co.vr, 8 Bing. 20.) Now it is provided ])y the Infants' Relief Act, 1874 (87 & 88 Vict. c. 02), section 2, that " no action shall be l)rought whereby to charge any person upon any promise made after full age to pay any debt contracted during infancy, or upon any ratification made after full age of any promise or contract made during infancy, whether tliere shall or shall not l)e any new consideration for such promise or ratification after full age." E.vcept as to contracts beneficial to the infant {Fellon-s V. ll'ooil, 59 L. T. ')18), this section api)lies to all kinds of contracts. (Milhr v. Jilanhlri/, 88 L. T. r)27 ; Coxhead v. MuIUh, 47 L. J., C. V. 701 ; 3 C. P. D. 48l> ; Kx parte Kihble, 44 L. J., Bank. 08 ; L. R. 10 Ch. 878 ; lie Unsluw's Trnsts, 44 L. J., Ch. 028 ; but see Ihtnean v. Dixon, 44 Ch. D. 211 ; 5f v. Ilnttnn, Cro. Jac. 447 ; 1 Wms. on Exors. 833), they are entirely at the disposal of the husband after marriage, and he mav submit 14 THE LAW OF ARBITRATIONS AND AWARDS. Chap, II. disputes concerning the same to arbitration, and an award made in the hfetime of the husband will bind the wife after his death. (Com. Dig. " Arb." D. 2.) Matters touching the freehold property of the wife not limited to her separate use ma,j, by a joint reference of husband and wife, be submitted to arbitration. The sul)mission would not, however, be binding upon the wife unless made by an acknowledged deed. (See Cahill V. Cahill, 8 App. Cas. 420 ; 31 W. E. 861 ; Williams v. Walker, 9 Q. B. D. 576 ; 31 W. E. 120.) As in the case of an infant, so in that of a married woman, everyone must be presumed to be aware of her legal disal)ility, and a person who has knowingly entered into a submission with a married woman cannot move to set aside the award on the ground that she is not bound by it. {Re Warner, 2 D. & L. 148.) A married woman may be a part}^ to a submission respecting the adjustment of the terms of her separation from her husband. (See 2 Bright, Husband and Wife, 311.) Persons acting Though a Submission by a party acting under threats puMon.°™' *^^' imprisonment is generally void, yet if it is afterwards voluntarily acted upon by the part}-, he taking his chance of a favourable award, he cannot avoid it when the result has turned out to his disadvantage. (Oniic.s v. Beadcl, 30 L. J., Ch. 1.) Partners. Since a submission to arbitration is no part of the business of a trading concern, one partner cannot, with- out special authority, bind his co-partners by a sub- mission even of matters connected with or arising out of the business of the firm. {Stead v. Salt, 3 Bing. 101 ; Adawa v. lianhhart, 1 Cr., M. & E. 681 ; Boijd v. Emmer- son, 2 A. & E. 184; 7?e Aldinf/toii, 15 C. B., N. S. 375; and see Partnership Act, 1890 [53 & 54 Vict. c. 39], s. 6.) The authority need not be in writing, but must be actually given. {Ball v. Dunstcrville, 4 T. E. 313.) An authoriza- WHO MAY ItE TARTIKS TO A UKKKKKNCK. 15 tion for one partner to 8ue in the name of liiniself Chap. ll. and the other partner will not he sufficient to empower him, after having hrought an action on siieli authoriza- tion, to refer the action and all umtt'-rs in difi'vcncr so as to hind the other partner. (Hittttnt v. liniflc, 27 L. T., Ex. 4S(') ; ;{ H. A: X. 500; see also Rohertnou v. Uatton, '2r> L. .T., Iv\. 2!)8.) If, with knowledge of the suhmission, co-partners attend the reference, and do not ohject to it, they will he held to l)e hound hy acquiescence. {Thomas V. Athn-to,,, 4S L. J., Ch. 370 ; 10 Cli. D. 1S;k) If a man submit on l)elialf of himself and his partners he will himself he hound to perform the award. (Stniiui- J'iird V. (iireii, '2 Mod. 228.) ^Vll('^e, however, an indi- vidual partner executes a suhmission on the faith and understanding that it is to he executed hy his co-partners, it does not bind him unless the signatures of the rest be procured, as the suhmission is incomplete. {Ant ram v. Chare, 15 East, 201) ; see also Dntton v. Morriaon, 17 Yes. 193 ; John,son v. naker, 4 B. Sc Aid. 440.) When a person submits on behalf of himself and others Persons with ... . , -, • ,1 ii • T I 1 -111 joint interests. jomtly mterested m the matter ni dispute he will be bound, though the others will not. (MiKh/ v. Oaam, Litt. 30 : M'ond v. Thomson, lioll. Ab. " Arb." F. 11.) Where parties agree jointly and severally to refer disputes to arbitration, and bind tliemselves jointly and severally to perform the award, nltliougli tlicir interests are several, yet each is liable to the performance of the award, not only as to what is awarded to be jierformed by himself, but also bj' his companions. {Man.^rll v. Bnn-ahn', 7 T. K. 352 ; Gcnnr v. Tinl;n\ 3 Lev. 24; 2 Byth. (JOC). Corporations sole or aggregate may submit to arbitra- (•..ipniations. tion. (Roll. Ab. " Arb." 2, A. 3.) It is a general rule that a corporation, unless otherwise provided by statute, is not bound by any contract not under its connnon seal. Therefore a submission to reference l)v a cor- poration should eitliti- l)e under the common seal of the trustees. 16 THE LAW OF ARBITRATIONS AND AWARDS. Chap. II. corporation or be entered into in the form and manner directed by the statute which empowers the corporation to contract in some other wa}'. Executors and Bj the Trustee Act, 1893 (51 & 52 Vict. c. 59), s. 21, it is provided that an executor, or administrator, or two or more trustees acting together, or a sole acting trustee, where, by the instrument, if any, creating the trust, a sole trustee is authorized to execute the trusts and powers thereof, may, if and as he or they may think fit, submit to arbitration, or otherwise settle, any debt, account, claim, or thing whatever relatmg to the testator's or intes- tate's estate or to the trust, and for that purpose may enter into, give, execute, and do such agreements, instru- ments, releases, and other things as to him or them seem expedient, without being responsible for any loss occa- sioned by any act or thing so done by him or them in good faith. The power applies only if and so far as a contrary intention is not expressed in the instrument, if any, creating the trust, and shall have effect subject to the terms of that instrument, and to the provisions therein contained. The section applies to executorships, administratorships, and trusts constituted or created either before or after the commencement of the Act. A submission to arbitration of a debt alleged to be due to the deceased is not in itself an admission by the executor or administrator of assets {Pearson v. Henri/, ^ T. E. 6) ; though a submission of matters in difference between the deceased and another, without a protest against the reference being taken as an admission of assets, will amount to such an admission, and the executor will be bound to pay any sum awarded. {Bohsun v. , 2 Eose, 50; Barrtj v. Ilx.'^h, 1 T. E. 691; EiddcU v. Sutton, 5 Bing. 200.) He should therefore stipulate against the reference being taken as an admission of assets sufficient to pay what may be the amount of the award. {Wortldngton v. Barloic, 7 T. E. 453 ; Love v. Honey- WHO MAY UK PARTIKS TO A UEFKHKNCE. 17 hniinir, 4 1). «!v: 11. Hl4 ; Ilr J»H,-ph >iiid U'rhster, Chai-. II. 1 11. ct M. 41)0.) It has been held that trustees referring matters con- nected with their trust to arbitration do not thereby make themselves personally liable. {r>ari('s v. liidi/i', :3 Esp. 101; liristoir v. Biiinx, 3 D. v!c l\. 184.) The proposition is, however, too l)road, and the (|uestion of liability should be expressly excluded by the sub- mission. (See Ii(>l>soii V. , supra; lie Wanahorouiilt, 2 Chitt. 40.) The ciimmittee of the estate of a lunatic may, with the Lunatics, permission of the judge in lunac,y, refer the lunatic's interests to arbitration. A bankrupt cannot submit to arbitration so as to affect r.ankmpts. his estate, but his trustee, with the consent of the com- mittee of inspection, may. (40 & 47 Vict. c. 52, s. 57.) If the submission is made by the trustee without the necessary consent it will not bind the bankrupt's estate, but the trustee will be personally liable under the award. {Ex imrte Wtjhl, 30 L. J., Bank. 10 ; 2 De G., F. & J. 042.) And an agreement by the trustee to sul)mit to arbitration will be deemed an admission of assets to answer the result unless the contrary is expressly provided. {Uohaoii v. , 2 Rose, 50.) Though he cannot make a submission binding upon his estate, the submission of a bankrupt is not void, but it will be binding on him personally, and if costs are awarded against him, he may be made to pay them. {Re Milni's and liobeytsmi, 24 L. J., C. 1'. 211 : 1.") C. B. 451.) An agent duly authorized may l>ind his princi[)al by a..;. :ro. a submission. {Shelf v. Bailetj, Com. 183 ; Adams v. StatJunn, 2 Show. 01.) But the agent should make his submission in the name of the princii)al, otherwise he, and not the principal, will be bound, notwithstanding A. C 18 THE LAW OF ARBITRATIONS AND AWARDS. Assignee witli power of attorney. Chap. II. \iq ii;iay iiot have any interest in the matter in dispute. {Bacon v. Dnharnj, 1 Ld. Eaym. 246.) As the vahdity of a submission by an agent depends upon the suffi- ciency of his authorization, the latter should be care- fully attended to. If the submission is under seal, the authorization should be in the same manner. (Stciglitz v. Eriflintoji, 1 Holt, N. P. C. 141 ; Hanison v. Jackson, 7 T. E. 207.) Sometimes an authority to an agent to refer arises out of his employment, as in the case of an underwriter (Goodson V. Brooke, 4 Camp. 163), or of a consignee of goods. {Curtis v. Barclay, 5 B. & C. 141.) So in the case of an assignee of a contract to do certain works, with a power of attorney to take proceedings in the name of the assignor (Hancock v. Picid, 21 L. J., Q. B. 78) ; and of an assignee of debts with a power of attorney to receive and compound for the same. {Ban fill v. Leigh, 8 T. Pi. 571.) And a power of attorney to A. to act in the dissolution of a partnership, with authority to appoint any other person as he might see fit, was held to give A. power to submit accounts to arbitration. {Ilenlcii V. Soper, 8 B. & C. 16 ; 2 M. & R. 155.) An agent authorized to refer has the same powers in the conduct of the reference as his principal would have, and may bind his principal by waiving any objections to irregularities in the proceedings. {Hamilton v. Bankin, 19 L. J., Ch. 307 ; 3 De G. & S. 782 ; Backhouse v. Taylor, 20 L. J., Q. B. 233.) Solicitor.". The Solicitor in an action {Buckle v. Boadt, 1 Chitt. 193 ; Cayhill v. Fitzfierald, 1 Wils. 28, 58), or his town agent {Grijfiths v. Williams, 1 T. Pt. 710), but not his confidential clerk {Greenwood v. Titterington, 9 A. & E. 699), has power to refer, and can bind his client {Paullv. Paidl, 2 C. & M. 235 ; B. v. Hill, 7 Price, 636) without any express authorization {Thomas v. Hewes, 2 C. & M. 519 ; Adams v. Bankart, 1 C. M. & E. 681 ; Ex imrte WHO MAY r.i: PAirriKs to a reference. 19 U'.nhant, '1\ \\ . U. 101; I'risttrirk v. I'nhu, :U I.. J., Chap. II. €. P. IH!)), and even when the cHent has expressly desired liini not to refer {Filiufr v. Ih'lhrr, 3 Taunt. 48(5 ; Smith V. Trniip, 7 C. B. 757 ; 18 L. J., C. T. 20U) ; and if by referring the solicitor exceed his actual authority, the remedy of the client is against him, but he is still bound by the award. It has been held that a solicitor may also refer together with the cause all matters in difference. {Doicsi' v. C(>.v(', 3 Bing. 20.) He can also consent to an enlargement of time (li. v. Hill, 7 Price, 636), or to making an order a rule of court. {I'anU v. I-'auU, 2 Dow. 340.) If a solicitor appear for a corpora- tion with the knowledge of the directors he can bind tlie corporation by an agreement to refer without being authorized to appear by an}^ authority under seal. {Favidl V. Eastern Counties liail. Co., 2 Ex. 344; 17 L. J., Ex. 297.) A solicitor has no power by a reference to arbitration to bind infant parties suing by their next friend. {BiddiAl v. Dmcsc, 6 B. & C. 255.) Though the authority of counsel to refer is a point not Counsel. free from doubt, and the opinions of the judges have not always been concurrent, it seems that in general a reference Ijy the consent of counsel in a cause will be binding ujion the client. {Fiiniir(d v. Boi V. Kin;i, 33 L. T. 72s ; Unit V. ./-.s-.sv, 24 W. II. .s7I».) But he has no authority' over matters collateral to the action. {Strauss v. Francis, supra ; Swinfcn v. Lord Chelmsford, 29 L. J., Ex. 382.) Persons incapable of referring to arbitration at com- IVrsonsem- mon law are often enabled to do so by statute. The ['tatute. '^ most important of the enabling statutes is the L. C. C. 20 THE LAW OF ARBITRATIONS AND AWARDS. Chap. II. Act, 1845 (8 & 9 Yict. c. 18), by virtue of which persons under disabiUty, or possessing only limited interests in land affected by public undertakings, are empowered to submit to arbitration questions of compensation for the purchase in fee of, or for damage done to, such land. ( 21 ) CHAPTER III. WHAT MATTERS MAY BE REFERRED TO ARBITRATION. Whatever may be tlie sul)ject of civil litigation may be Chap. III. referred to arbitration. All disputes between parties, and civil matters all actions (Bac. Al). "Arb." A.), — even an action for iu dibimte. breach of trust in charity, but only with the consent of the Attorney-General {Att.-Gcn. v. Fca, 4 Madd. 274), — may be referred. And an action may be referred at any stage. The parties may even refer to arbitration the question whether a judf^ment has been properly obtained, whether it has been satisfied, whether it is void, or even whether it is erroneous, and an aw^ard might be made that such judgment should l)e released or satisfied. {Barry v. Grofjan, 10 W. 1\. I'll ; lioherts v. Marictt, 2 "\Vm. Saund. li)0.) A stranger to the action, but interested in the subject-matter, may be a party to an order referring the action, and be bound by it. {]ViUia))ts V. Letrii^, 7 E. l'c B. 9211.) A suit for divorce cannot be referred so as to enable Suits for the arbitrator by his award to annul a marriage. The ' '^'""'*'- power to do so is vested in the Probate, I)ivorce, and Admiralty Division of the High Court of Justice only, and no voluntary agreement of husband and wife could confer upon anyone else a like power. But a husband Ttrms of and wife may refer to arbitration the question whether «^'P"'^t'o"- a surticient cause for separation does or does not exist, instead of applying to the court ; and they may bind themselves to abide by the terms of separation awarded by the arbitrator. {Soilhii.v v. Ilm-hst, 2 B. ifc P. 444 ; Boh'inan v. linsfi, 1 Dow. 235 ; Hart v. Hart, 30 "\V. R. 8; 18 Ch. D. 070; 50 L. J., Ch. 0S) ; Init see 2 JKtli. (»27, n.) Disputants them- selves, lio\ve\'er, may refer to arbitration the construction of a will. {Strjf'x. Andrews, *2 ^ladd. G.) ^Vhere the subject-matter is clearly illegal {Stcmi v. Mntf.rs Ldshlcij, () T. l\. 01), or so purely criminal that it cannot l',„'r'^.'iy"i.',.i. under any circumstances he made the sul)ject of a civil '"i'l-'l "ot action (Bac. Ab. "Arli." A. ; //. v. liardll, 5 A. & E. '' ' 619; li. V. Hanhi/, 14 (^). J^. 'y'lU), or is an offence of a public nature for which no private person can recover com])ensation {K)ir v. Lchikih, (J i). B. 808 ; 18 L. J., Q. B. 351) ; Kihin>mJ>r v. Ilndd, 5 East, 2il4 ; /.'. v. Jilahr- inoir, 14 (}. B. r)44), it cannot ])e referred. But matters criminal, for whieh the injured party has Wli.itcriminnl a remedy by action as well as ijy indictment, may be "e'rcfem'Ir^ referred. {Bahcr v. 'rdinislictul, 1 Moore, 120 ; 7 Taunt. 422 ; Ktir v. Lmiuni, siijtra. prr Denman, C.J.) And they may be referred, before indictment, l)y the simple agreement of the parties ; but, after an indictment is pre- ferred, it seems the consent of the court in which the indictment is pending should first be obtained. (Watson on Awards, 59 ; Kyd on Awards, G4 ; 11. v. Jhirdell, 5 A. & E. G19.) The reference may be after as well as before conviction. (lieelcy v. ]Vin»iti^<_ " of it to arbitration is eiiually nlfni rin s. (Mdinixill v. MiilhonJ (it. U'ratrni Ildil. r..., 1 H. .V ^r. 180 ; 82 L. J.. Ch. 518.) There are many matters, not otherwise referable to Matters rcfer- arbitration, for which special provisions have been made l^l^^^^^^' by statute. By 12 iV 18 \'ict. c. 45, s. 12. all orders, rates, and Matters of other matters, in respect of which notice of a[)i)eal to the qljarier^los- general or quarter sessions of the peace shall have been sious. given, and for which the remedy is by such appeal (not 2-1 THE LAW OF ARBITRATIONS AND AWARDS. Chap. III. being a summary conviction or order of bastardy, or any proceedings mider the Acts relating to the excise, customs, Reference hy stamps, taxes, or post office), the parties, by an order of the parties. ^ judge of the Queeii's Bench Division, may refer to the arbitration or umpirage of any person or persons, and agree that such submission may be made a rule of court, and the provisions of 9 & 10 Will. 3, c. 15 [now the Arbi- tration Act, 1889, which has repealed and replaced the earlier statute], shall apply as to the enforcing or setting aside an award or umpirage under the Act, and every award and umpirage under the Act shall be as binding and effectual as if the same had been a regular judgment of the sessions, and may, on the application of either party, be enrolled among the records of the court. This section does not, like section 13, give an express power enabling the superior court to refer the case back again to the arbitrator. The section only applies where the reference is by judge's order, and not where it is by private agreement. {Leicester Waterworks Co. v. Barrow Union, 48 L. J., M. C. 41 ; 4 Q. B. D. 18.) By the court. By section 13 of the same Act, after such an appeal has been brought before a court of quarter sessions, such court, with the consent of the parties, may refer it on such terms as the court shall think reasonable. And the order of reference may be made a rule of the Queen's Bench Division, and the award of the arbitrator or the umpirage of the umpire may, on motion by either party at the sessions next or next but one after such award or umpirage shall have been finally made and published, or after the decision of the Queen's Bench Division on any motion for setting aside the same, be entered as the judgment of the court of general or quarter sessions in the appeal, and shall be as binding and effectual as if given by the court. The Queen's Bench Division may refer the matter back to the arbitrator, or set aside the award, and order the court of sessions to enter WHAT MATTERS MAY V.E REFERRED TO AninTIIATION. 25 continuances, and hear the api)eal. Under this section CHAr. III. the court of sessions mif,'ht make an order tliat the costs shouhl or sliould not abide the event of the award, or be in the discretion of the arbitrator. {West Loudon Ex- tension Ihnl. Co. V. FidJutni lltion, 39 L. J., (}. j>. ITS ; L. E., o Q. B. 301 ; 11^/. v. J J. ]V,st ltiiUn Cim. III. (2*2 \- 28 Vict. c. 51)), railway companies are empowered DiiRivncf.H to refer to arhitralion matters in which they are mutually '" t^*'^''" '•"'- -^ *' wav eoiii- interested, ami wliicli they mip^ht lawfully settle amon':jst luimf^. themselves (s. 2). And the Act contains detailed pro- visions as to the mode of carrying out the reference. By the Regulation of Railways Act, 1873 (30 I'i: 87 Vict. c. 48), where anv difference hetween railway and canal companies is, under the provisions of any general or special Act, required or authorized to be referred to arbitration, such difference shall, at the instance of any company party to the difference, and with the consent of the Railway Connuissii^ners, be referred to the Connnis- sioners for their decision instead of being referred to arbitration (s. 8), This does not ap[)ly where there is an agreement between the parties by which they stipulate for a particular mode of reference, but only where the arl)itration is imposed upon the parties by statute {Great ]]'< stern liail. ('<>. v. Wnttrford ami LimerieJ; Jlail. Co., 50 L. J., Ch. 513; 17 Ch. D. 4'.»3 ; Ilale.snicen Hail. Co. V. Great Western Hail. Co., 48 L. T. 710; 52 L. J., Q. B. 473) ; nor does it apply where there is an agree- ment to refer which is afterwards scheduled to a private Act and confirmed. {Ue;i. v. Midland Hail. Co., 1\) Q. J'. I ). 640 ; 50 L. J., Q. B. 585.) By the Board of Trade Arbi- tration, &C., Act, 1874 (37 cl' 38 Vict. c. 40), differences between railway and canal companies required or author- ized under the provisions of any general or special Act to be referred to the lioard of Trade, or some person appointed by the Board of Trade, may, by order under the hand of the president or one of the secretaries of the Board, be referred to the Railway Commissioners (s. 0). This does not apply to the appointment of an umpire under section 28 of the L. C. C. Act, 1845. By the Companies Act, 18G2 (25 & 2t; Vict. c. 89). The Com - companies governed by that Act are empowered to refer \l^^^2.^ ^^' 28 THE LAW OF ARBITRATIONS AND AWARDS. Chai'. hi. disputes with other companies or persons to arbitration, in accordance with the Railway Companies Arbitration Act, 1859 (ss. 72, 73). In the case of a vohmtary winding up of a company the liquidator may, with the sanction of a special resolution, transfer the business of the company to another company, in consideration of shares, &c., in such other company; but before carrying such resolution into effect the liquidator must purchase the interest of any dissentient member (s. 161), the price of such interest, in case the parties differ, to be settled by arbitration ; and for the purposes of such arbitration the provisions of the L. C. C. Act, 1845, shall apply (s. 162; lie Mysore West Gold Mining Co., 42 Ch. D. 535 ; 61 L. T. 453), unless the articles of association contain provisions for arbitration. {Dc llosaz v. Aiifjlo- Italian Bank, 38 L. J., Q. B. 161 ; L. E., 4 Q. B. 462.) The T.ai„. Under the Tramways Act, 1870 (33 & 34 Vict. c. 78), 1870. ' differences between the promoters or lessees of a tram- wa}', on the one hand, and any local authority or road authoritj', or any gas or water company, or any com- pany, body, or person to whom any sewer, drain, tube, wires, or apparatus for telegraphic or other purposes may belong, or any other company, on the other hand, with respect to any interference or control exercised or claimed to be exercised in relation to any tramway- or work, or the mode of executing any work, or the amount of compensation, or with respect to any other thing regulated l)y or comprised in the Act, shall (unless by the Act otherwise provided) l)e settled by a person nominated as referee by the Board of Trade, and the costs of the reference paid as the referee directs (s. 33 ; lief/. V. Croydon and Xorivood Tramicays Co., 18 Q. B. D. 89 ; 56 L. J., Q. B. 125 ; Bristol Trams and Carriaye Co. X. Mayor of Bristol, 25 Q. B. D. 427 ; 63 L. T. 177). ThcPui.lic The Public Health Act, 1875 (38 & 39 Yict. c. 55), 1875. ' ' provides by section 308 that, where any person sustains WHAT MATIKHS MAY l!E nKFKI'.HKD TO AUIMTUATION. 29 any damage by reason of the exercise of any of the Chap. III. powers of the Act {Bnrfiess v. Xortliuich Lm-nl lioanl, 50 L. J., C. P. 21!); (3 Q. B. D. 2G4; Lumley, Puhlic Health, 402) in rehition to any matter as to whicli he is not himself in default, full compensation shall he made to such person hy the local authority exercising such powers, and any dispute as to the fact of damage or amount of compensation shall he settled hy arbitration in manner provided by sections 179 — iHlofthe Act, unless the com- pensation claimed does not exceed 20/., when the same may, at the option of either party, be ascertained before a court of summary jurisdiction. This does not apply where land is taken com- pulsorily, in which case the compensation is to be settled according to the provisions of the L. C. C. Act, 1845 (s. 17G ; Ex parte Uayncr, 3 Q. B. D. 44G ; 47 L. J., Q. B. GGO). The arbitrator under this Act, like an arbitrator under the L. C. C. Act, 1845 {ante, p. 2G), can only settle the amount of compensation, and cannot determine the liability of the local authority. {The Queen v. Metro- ptditan Cinnmifisioners of Sewers, 22 L. J., Q. B. 234; 1 E. ct B. G94 ; Re Bradln/, 24 L. J., Q. B. 239.) But a person who claims compensation is entitled to have the amount determined by arbitration, notwithstanding the authority deny their liability, the determination of the question of liability not being a condition precedent to the arbitration ; the local authority must raise the ques- tion of liability in their defence to an action on the award. {Brirriif Hill Loral Hoard v. Pearsall, 9 App. Cas. 595 ; 54 L. J., Q. B. 25 ; Bradford Lmud Board v. Hopwood, G W. R. 818.) Under section 150 of the Act, it may be referred to arbitration to fix the proportion of paving expenses payable by an owner of premises to the local autho- rity. But the award is only enforceable by summary 30 THE LAAV OF ARBITRATIONS AND AWARDS. ClIAP. III. The Allot- ments Act, 1SS7. Local Goveru- lueiit Act, 1888. Luiiacy Act, 1890. Coal Mines Regulation Act, 1887. proceedings in the manner pointed out by that section. {Re WiUesden Local Board and Wrhjld [1896] 2 Q. B. 412 ; 41 W. R. 676.) The Allotments Act, 1887 (50 & 51 Vict. c. 48), enables sanitary authorities to acquire land for allotments, and provides that any question of disputed compensation shall be referred to a single arbitrator appointed by the parties, or, in case they do not agree, by the Local Government Board (s. 3, sub-s. 4). Under the Local Government Act, 1888 (51 & 52 Vict. c. 41), questions between a county council and an urban authority as to the annual sum to be paid by the former to the latter towards the maintenance of main roads, or be- tween a county council and a district council as to the sum to be paid for such maintenance (s. 11, sub-ss. 3, 4, 9), may be determined by the Local Government Board, either as arbitrators or otherwise, at the option of the Board (59 & 60 Vict. c. 9, s. 1) ; while other questions l)etween a county council and local authorities are to be decided by the Board as arbitrators pursuant to the provisions of the Piegulation of Eailways Act, 1868. (51 & 52 Vict, c. 41, s. 63 ; lie County Council of Kent and Sandijate Local Board [1895] 2 Q. B. 43.) The Lunacy Act, 1890 (53 Vict. c. 5), provides for arrangements between county councils and borough councils as to the cost of a county asylum being settled by arbitration under the Local Government Act, 1888 (s. 244). By section 42 of the Coal Mines Eegulation Act, 1887 (50 & 51 Vict. c. 58), if any inspector find a mine or any part thereof, or any matter, thing, or practice in or con- nected with such mine, to be dangerous or defective so as to threaten or tend to the bodily injury of any person, he may give notice thereof in writing to the owner, stating the particulars in respect of which he considers it defective, and requiring the same to be remedied. If WHAT MATTKRS MAY T.K RKFKRnKD TO ARIIITnATION. 81 the owner ohjects to remedy the matter he may send his Chap. III. objection in writin^^ to a Secretary of State, and tliere- upon the matter shall he determined by arbitration, as provided in section 47. (lie Secret (ir if i>f State for Howe Department and Fletcher, 18 Q. B. ]). 339; 5<; L. J., Q. B. 177.) A later Act makes provision for the work- men being represented at such arbitration. (59 & i\0 Vict. c. 43, s. 2.) Many of the Acts aiYecting only the Metropolis con- Tlic Metro- tain provisions as to arbitration. The Metropolis Local l'"''^'"*" '^•^^^''• Mana^^ement Act, 185;"5 (18 .^ 19 Vict. c. 120), provides that the amount of compensation to be made under that Act by the Metropolitan Board or any vestry or district board shall, if the compensation claimed exceed 50/., be settled by arbitration in accordance with the provisions of the L. C. C. Act, 1845 (s. 225). The London Buildinrr Act, 1894 (57 & 58 Vict. c. ccxiii.), provides that where disputes arise between a building owner and an adjoining owner as to the right to do and the time and manner of doing any work contemplated by the building owner, unless the parties concur in selecting one surveyor, they are each to appoint one, and those two appoint a third, and such one surveyor or three surveyors, or any two of them, shall settle the matter in dispute (s. 91). The Act also provides for reference of dilTerences between the County Council and the owner of a dangerous structure (s. 107). The Metropolis Gas Act, 18G0 (23 & 24 Vict. c. 125), provides for the settlement of disputes between a local authority and the gas company, as to the alteration in the test or the rate to be charged lor lighting an}* public lamp, by arbitration under the Companies Clauses Consolidation Act, 1845 (s. 38). The MetropoHs Water Act, 1871 (34 & 35 Vict. c. 113), enables disputes in relation to the execution of that Act to be determined by arl)itration under the Companies Clauses Consolidation Act, 1845 (s. 43). 32 THE LAW OF ARBITRATIONS AND AWARDS. Chap. III. Housiug of Working Classes Act, 1890. Biiildhig societies. The several Acts for providing better habitations for the working classes have been consolidated in the Housing of the Working Classes Act, 1890 (53 & 54 Vict. c. 70), which enables a local authority to prepare a scheme for the improvement of areas, including groups of streets and houses, and to purchase the land required for the scheme, the compensation to be paid for such land to be settled b}' an arbitrator to be appointed and removable by the Local Government Board (s. 41, schedule 2). An arbitrator under this Act can only assess the amount of compensation, and has no power to decide the question of the right to compensation. (JJllhins v. Mat/or, dc, of BirmhHiham, 25 Ch. D. 78 ; 32 W. E. 118 ; 49 L. T. 468; 53 L. J., Ch. 93.) The Building Societies Act, 1874 (37 & 38 Vict. c. 42), provides (s. 16) that the rules of each society shall set forth whether disputes between the society and any of its members shall be settled by reference to the county court, to the Eegistrar of Friendly Societies, or to arbi- tration, and enacts (s. 34) that where the rules of a society direct disputes to be referred to arbitration, arbitrators shall be named and elected in the manner such rules provide, or, if there be no such provision, at the first general meeting of the society, none of the said arlntrators being beneficially interested, directly or indirectly, in its funds ; of whom a certain numljer, not less than three, shall be chosen b}' Ijallot in each such case of dispute, the number of the said arbitrators and mode of ballot being determined by the rules of the society. (And see s. 36.) In the case of the Municipal Buildinr/ Socicti/ v. Kent (9 App. Cas. 260 ; 53 L. J., Q. B. 290) the House of Lords decided that "disputes" was not restricted to disputes between the society and a member in his capacity as member, but extended to disputes and claims between the society and a member in his capacity of mortgagor of WHAT MATTERS MAY I'.K RKFKRRFn TO ARltlTRATION. 33 the society, so that the society could not enforce their Chav. III. security against a mortgagor member by action on the covenant, but only l)y sale. In consequence the Building Societies Act, 1884 (47 & 48 Vict. c. 41), was passed, which, by section 2, enacted that " the word disputes in the ]Juilding Societies Acts, or in the rules of any society thereunder, shall be deemed to refer only to disputes be- tween the society and a member, or any representative of a member in his capacity of a meml)er of the society, unless by the rules for the time being it shall be other- wise expressly provided ; and, in the absence of such express provision, shall not apply to any dispute between any such society and any member thereof, or other person whatever, as to the construction or effect of any mortgage deed, or any contract contained in any docu- ment other than the rules of the society, and shall not prevent an}- society, or any member thereof, or any person claiming through or under him, from obtaining in the ordinary course of law any remedy in respect of any such mortgage or other contract to which he or the society would otherwise be by law entitled." {]]\'steni StthiiH)an, lOc. Jitdldiii;/ Socicti/ v. Martin, 17 Q. B. D. 609; 55 L. J., Q. B. 382.) A claim by a society against one of its olhcers, for misappropriating moneys, is not a dispute with him "in his capacity of a meml)er." {Midii- cipal Btiildiuff Society v. Ilicliards, 39 Ch. D. 372; 58 L. J., Ch. 8.) A member who has given notice of with- drawal remains a member for the purpose of a reference to arbitration. {Davies v. Second Cliatli 34 THE LAW OF ARBITRATIONS AND AWARDS. Chap. III. that disputes between the society and its members shall be settled by arbitration ousts the jurisdiction of the court with reference to such disputes. {Ih. ; Wrifiht v. Monarch Investment Building Society, 5 Ch. D. 726; 46 L. J., Ch. 649; Hack v. London Provident Building Society, 52 L. J., Ch. 541 ; 23 Ch. D. 103 ; Municipal Building Society v. Kent, 9 App. Cas. 260 ; Johnson v. Altrincham Building Society, 49 L. T. 568.) The Act of 1874 does not apply to societies established under the old Act (6 & 7 Will. 4, c. 32), and not having obtained a certificate of incorporation under the Act of 1874 {Mulkern V. Lord, 4 App. Cas. 182 ; 48 L. J., Ch. 745), and a rule of such a society for reference to arbitration does not apply to disputes involving the adjustment of rights created by a mortgage. {Ih. ; Buckle v. Lordonny, 56 L. J., Ch. 437; 56 L. T. 273.) In any case the arbitrators have only power to determine disputes between a society and its members, and they have no power to determine a disputed question as to whether or not a person is a member. {Prenticcw. London, 44 L. J., C. P. 353; L. E., 10 C. P. 679.) The High Court of Justice has no jurisdiction either to enforce or set aside the award. The Act (37 & 38 Vict. c. 42), provides that whatever award shall be made by the arl)itrators, or the major part of them, shall determine the dispute ; and should either of the parties to the dispute refuse or neglect to comply with or conform to such award within a time to be limited therein, the court (which means the county court of the district in which the chief office of the society is situate) (s. 4), upon proof of such award having been made, and of the refusal of the party to comply therewith, shall enforce compliance with the same upon the petition of any person concerned (s. 34). Every determination by arbi- trators of a dispute shall be binding and conclusive on all parties, and shall be final to all intents and WHAT MATTERS MAY UK REFERRED TO ARBITRATION. 85 purposes, and sliall not l)e subject to appeal, and sliall Chai-. III. not be removable into any court of law or restrained by injunction ; but the arbitrators may state a case for the opinion of tlie PIi}:;h Court on any question of hiw (s. 36) ; though under the Building Societies Act, 1894, it is not obligatory upon tliem to do so (57 Sc 58 Vict, c. 47, s. 20). I3y the Friendly Societies Act, 1896 (59 & 60 Vict. c. Friendly 25), which consolidates the previous Acts, disputes shall '^°*^'*^^^''^- l)e decided either (1) in the manner directed by the rules of the society, and the decision shall be binding and conclusive, and application for enforcement may be made to the county court (2) by consent, unless the rules forbid it, by the liegistrar of Friendly Societies, or (3), when the rules so direct, l)y justices, or, if the parties consent, b}- the county court (s. 6H ; and see Barhc v. JiiUiiu/ham 1894, 1 Q. B. 107 ; 63 L. J., M. C. 1). The Act does not apply to disputes as to the title of a person claiming to be a member of the society. {Willis v. ]]\'ll8 :i892] 2 Q. B. 225; 61 L. J., Q. B. 606; Pallisrr v. Dale [1897i 1 Q. B. 257.) By virtue of 26 & 27 Vict. c. 87, s. 48, and 39 & 40 Savings Vict. c. 52, s. 12, all disputes between the trustees and "' managers of any savhigs bank, on the one hand, and any e settled by arbitration, in accordance with the second schedule to the Act (s. 2, sub-s. 3). The second schedule is set out at length in the Appendix, Part II. A number of statutes of less general importance provide for the reference of special disputes, but these it is not proposed to notice in detail. ( 37 ) CIIAPTKn IV. THE ARRITRATION ACT, 188H. Skit. 1. — diiiira} Kfftct o/thi'Act. CoNsmKUAULi-: jvltoiation in thv law has boon elTootoil bv Chap. IV. the Arbitration Act, ISHi) (oi v'c i>\\ Vict. c. 11)^ rendorinj:; scoi>e of the obsolete a j^reat deal of the i)revious learning upon the •^'■^• subjeot. It is, howovor. a statute of praotioo, ami does not otherwise atToi't the rules of law applioablo to arbitrations or awards. Its aim was to furnish a more simple code of procedure applioablo to all submissitins. in the lust plaoe it provides a eommon form of sub- IVuuIm mission I'ontamnig most of tiie usual terms hitherto of submission, inserted in formal submissions i,s. 'D. an 1 whieh, in the absenee of eontrarv inlontion in the submission, are to be implied in all references taking place after tlie com- meiu'omont of the Act. (Antr, p. 8.'^ It abolishes the troublesome formalitv of making a Disinmscs I- If . ■ I'.i. with rules of submission a rule of court — a step hitherto necessary ^.^^j^^^^ before any api>lication could be made to set aside or enforce the awanl — and enacts that a submission shall have the same olYect as if it had been made an order of court (8. 1). It simplities the priK-oduro in applications to the court, siim^lifips Since applicatuuis lu every ilo.scnption, save one. may he t.. th,. o.urt, made to the " court or a judge." and, by virtue of section 21 of the Act and K. S. C. l>rder LIV. r. I'Ja. this jurisdic- tion may be exercised by a master upon a summons. The exception is section 11. whereby the powers to remove an 38 THE LAW OF AKBITRATIONS AND AWARDS. Chap. IV. Atteiidauce of witnesses. Correction of clerical error. Repeal. Consolidates and amends. Ajiplicable to all arbitra- tions. arbitrator or set aside an award can be excerised b}* the court alone, upon motion. It has substituted the summoning of witnesses by subpoena instead of h\ an order for attendance (s. 8), and enables the court or a judge to order a writ of subpoena to issue to compel the attendance of a witness wherever he may be within the United Kingdom (s. 18). This power only existed previously in the case of a re- ference of an action. {Hall v. Brand, 12 Q. B. D. 39.) It enables an arbitrator to correct a mere clerical error without the necessity of an application to the court (s. 7, sub-s. (c)), thus abrogating Mordue v. Palmer. (L.E., 6 Ch. 22 ; 40 L. J., Ch. 8.) It repeals (s. 26, and see second schedule) all the general statutes as to arbitration, that is to say : — 9 "Will. 3, c. 15 ; 3 & 4 Will. 4, c. 42, ss. 39—41 ; 17 & 18 Yict. c. 125 (C. L. P. Act, 1854), ss. 3—17 ; 36 & 37 Vict. c. 66, s. 56 in part and ss. 57 — 59 ; and 47 & 48 Vict. c. 61, ss. 9—11. Except so far as amended, or rendered obsolete by the alteration in procedure, the repealed statutes, particularlj- the three last, are re-enacted in substance. It is to be borne m mmd, however, that it is an amending, and not merely a consolidating, statute. (Hurlhatt v. Barnett, [1893] 1 Q. B. 77, 79 ; 62 L. J., Q. B. 1.) While, therefore, any jjart of the repealed statutes which are re-enacted in the same terms are to be construed in accordance with the mterpretation put upon the previous Acts {Re Kcifjhley Maxsted d- Co. and Durant [1893] 1 Q. B. 405, 409; 62 L. J., Q.B. 105), yet, where larger words are used in the amending Act, the courts will assume that the intention was to give to the altered language a wider meaning. {Hmihatt v. Barnett, supra.) Above all, the Act was intended to provide a uniform code of procedure applicable to arbitrations taking place after the 1st of January, 1890. {lie WiU'uuns and Stepney THK ARHITRATION ACT, 1880. 89 [1891] 2 Q. B. 207.) Accordingly, section 24 enacts that Chap. IV. " This Act shall apply to every arbitration under any Act passed before or after the commencement of this Act as if the arbitration were pursuant to a submission, except in so far as this Act is inconsistent with the Act regulating the arbitration, or with any rules or procedure authorized or recognized by that Act." The test of whether or not there is an inconsistency is whether the provisions of this Act can be read into the other Act regulathig the arbitration without any contiict between them. {Tahrniade Permanent BiiihUntj Society V. Kni;iht ,1892 A. C. 298, 30G ; 62 L. J., Q. B. 50 ; He Kniijht and Tahernaele Permanent Baildimj Soeiety 1891] 2 Q.' B. 63 ; 60 L. J., Q. B. 633.) The effect of the section is merely to apply the arbi- tration provisions of the Act to arbitrations under other Acts, and not to introduce any of the provisions for arbitration contained in the special Act into references made under the provisions of the Arbitration Act, and which might have been, but are not, made under the special Act. {Zelina Gold Minlnij Co. v. Hopkins 1895] A. C. 100, 103 ; 64 L. J., P. C. 45.) Nor does the Act give the court any jurisdiction in references under special statutes which it did not possess before. {Re Gollhujs and Tradesmen's Friendly Society, 64 L. T. 775.) Amongst the earlier important Acts to which the Arbitration Act, 1889, may be deemed to apply are the Lands Clauses Act, 1845, the Railways Clauses Act, 1845, the Public Health Act, 1875 (but not under s. 150, JRe Willcsden Local Board and Wrifjht ]1896] 2 Q. B. 412), and the Agricultural Holdings Act, 1883. Some Acts passed since the Arbitration Act, 1889, and containing provisions for arbitration, enact that the Arbitration Act, 1889, shall apply ; as, for example, the Stannaries Court Abolition Act, 1896 (59 i.^ 60 Vict. c. 45, 8. 4), and the Light Railways Act, 1896 (59 & 60 Vict. 40 THE LAW OF AKBITRATIONS AND AWARDS. Chap. IV. Crown bound by the Act. c. 48, s, 13) ; some that the Act shall not apply, as in the case of the Conciliation Act, 1896 (59 & 60 Vict. c. 30, s. 3), and the Workmen's Compensation Act, 1897 (60 & 61 Vict. c. 37, sched. 2, cl. (4) ) ; some that certain pro- visions of the Act shall not apply, as in the case of the Building Societies Act, 1894 (57 & 58 Vict. c. 47, s. 20), and the Friendly Societies Act, 1896 (59 & 60 Vict. c. 25, s. 68), which respectively provide that arbitrators shall not be compelled to state a special case ; while other Acts are silent, and thus incorporate the Act in its integrity. Another alteration made by the Act is to extend its provisions to the Crown. Section 23 enacts : — " This Act shall, except as in this Act expressly mentioned, apply to an arbitration to which Her Majesty the Queen, either in right of the Crown or of the Duchy of Lancaster, or otherwise, or the Duke of Cornwall, is a party, but nothing in this Act shall empower the court or a judge to order any proceedings to which Her Majesty or the Duke of Cornwall is a party, or any question or issue in any such proceedings, to be tried before any referee, arbitrator, or officer, without the consent of Her Majesty or the Duke of Cornwall, as the case may be, or shall affect the law as to costs payable by the Crown." Submission " same effect" as order of court. Previous law. Sect. 2. — Operation of Act in (jiving Suhmission the effect of an Order of Court. The most far-reaching alteration made l)y the Act is that effected by section 1, that a sul)mission " shall have the same effect in all respects as if it had been made an order of court." To understand clearly the simplification of the law introduced by this section it is necessary to state shortly the law as it existed before the Act. Originally an agreement to refer stood on no different basis to THE AIUtlTUATION ACT, 1880. 41 tlmt of liny other contract. Neither of the parties Chap. IV. could invoke tlie aid of the court to carry out the reference, or enforce or im})eacli the award, or (juestion the conduct of the arbitrator, otherwise than hy an Origin of action at law or suit in tMjuity. A practice arose lirst JIHssj",^' rUiJ in the time of Charles II. of makin<^ a sui)mission a "f court. rule of court, so as to render any misconduct under that suhmission, or any refusal to act on the award, a contempt of that court, and so give the particular court jurisdiction over the award and the parties to the sub- mission. {Duke of Bucclcnvli v. Metropolitan Board of Works, L. R., 5 Ex. 230; 39 L. J., Ex. 130; Kyd on Awards '21 ; "Watson on Awards Ai\.) This practice was only allowed in the Ih-st instance in cases in which a suit in court was referred. But experience having shown that the practice contributed to the determination of controversies, it was extended to submissions out of court by 9 I'v: 10 Will. 3, c. 15, 9 & 10 Will. 3, s. 1, which enacted that persons desiring to end any ^' '^'^' ' controversy, suit, or quarrel, for which there is no other remedy but l)y personal action or suit in equity, may by arbitration agree that their submission of their suit to the award or umpirage of any person shall be made a rule of any of His Majesty's courts of record, and insert the agreement in the submission, which may, on affidavit of the witnesses thereto, be made a rule of court and enforced by the usual means. Under this statute, and prior to the C. L. P. Act, 1854, it was necessary to insert in the submission the consent clause for making it a rule of court, otherwise it could not be so made, and the person refusing to perform the award could not be proceeded against by attachniL'nt. This was followed by the C. L. P. Act, 1854, s. 17, 17 k 18 Vict which provides as follows: "Every agreement or sub- *^ - > *• • mission to arbitration by consent, whether by deed or instrument in writing not under seal, may be made a 42 THE LAW OF ARBITRATIONS AND AWARDS. ^"^''- ^^ • rule of any one of the superior courts of law or equity at Westminster, on the application of any party thereto, un- less such agreement or submission contain words purport- ing that the parties intend that it should not be made a rule of court ; and if in any such agreement or sub- mission it is provided that the same shall or may be made a rule of one in particular of such superior courts it may be made a rule of that court only ; and if, when there is no such provision, a case be stated in the award for the opinion of one of the superior courts, and such court be specified in the award, and the document authorizing the reference have not before the publication of the award to the parties been made a rule of court, such document may be made a rule only of the court specified in the award; and when in any case the document authorizing the reference is or has been made a rule or order of any one of such superior courts no other of such courts shall have any juris- diction to entertain any motion respecting the arbitra- tion or award." Both these statutes are now repealed, and a submission can no longer be made a rule of court, except it is under a statute containing a special provision that the sub- mission may be made a rule of court, such as the Lands Clauses Act, 1845. But it is in no case necessary to make a submission a rule of court, for, under section 1 of the Arbitration Act, 1889, the submission having the effect of an order of court, the award, immediately upon being made, can be either summarily enforced or steps may be taken to set it aside. Under neither of the repealed Acts could a submission which was not in writing, be made a rule of court, and it is to be observed that the Arbitration Act, 1889, applies only to a "submission" defined as "a written agree- ment." {Ante, p. 2.) TIIK ARDITRATIOK ACT, 1881>. 48 In practice agreements to refer consist of two kinds, Chap. IV. namely, sul)missions of existing diflferences to named arbitrators, and general agreements to refer under which arbitrators are named when differences arise. An agree- ment to refer is not strictly a submission until the arbitrator is named, and under the repealed Acts both the agreement to refer and the appointment of arbitrator must have been in writing, otherwise the submission could not be made a rule of court. And, where two persons agreed by deed to refer all matters in dispute which should arise between them to two arbitrators, one to be chosen by each party, and on disputes arising arbi- trators were appointed by parol, it was held that the submission was by parol, and could not be made a rule of court. (A'.r parte Olaj/sJicr, 3 H. & C. 442; 34 L. J., Ex. 41.) IJut it was sufficient if the ar])itrators were appointed in writing after the dispute arose {lie WilU-ox and Storkej/, L. R., 1 C. P. 071), and where one of the parties to the deed had appointed an arbitrator in nritinrj, and, on the other party making default in appointing a second arbitrator, the arbitrator so appointed proceeded with the inquiry and made his award, the submission was allowed to be made a rule of court. {Xewton v. Ilethcnngton, 19 C. B., N. S. 342; 13 W. R. 803.) The combined operation of sections 1 and 27 of the Act of 1889, however, is to give the effect of an order of court to a written agreement to refer future differences whether an arbitrator is named or not. It would seem, therefore, that an award under a written submission and a parol appointment of arbitrators could be enforced as an order of court. But not in the case of a statute requiring the appointments to be in writing. {Ue (njjord and Bury Town Council, 20 Q. B. D. 308; 57 L. J., Q. B. 181.) Moreover, at law, and apart from the special definition of this Act, a complete submission includes the appointment of the arbitrator, and if the arbitrator is 44 THE LAW OF ARBITRATIONS AND AWARDS. Chap. IV. Meaning of ' ' same effect as an order of court." appointed by parol the submission is by parol, so far as it is to be treated as an ordinary contract between the parties. It is therefore inexpedient in any case to make a verbal appointment of arbitrators. The meaning of the words '* same effect in all respects as if it had been made an order of court " is that, whether the submission be a general agreement to refer or not, it is to have the same effect as would have been given to it before the statute by an act of the parties making it a rule of court and no more. (Re Smith and Xclsou, 25 Q. B. D. 554 ; 59 L. J., Q. B. 533.) Therefore, the court cannot grant an attachment because one of the parties to the submission refuses to nommate an arbi- trator. {Ih.) Neither is a submission a " proceeding in the court " so as to give jurisdiction to order the issue of a commission for the examination of witnesses abroad. {Re Shaw and Ronaldson [1892] 1 Q. B. 91 ; 61 L. J., Q. B. 141.) ( 45 ) CTIAPTER V. MODE OF SUBMISSION. A SUBMISSION to arbitration may be : — Chap. V. 1. By mutual agreement between the parties ; 2. By order of reference ])y consent ; 3. By compulsory order of reference ; or •1. In the manner prescribed by particular statutes. The Arbitration Act, 1889, distinguishes them as, references by consent out of court, and references under order of court. Sect. 1. — Submission hij Mutual Agreement. In all cases, whether an action be pending or not, In what cases parties may submit their disputes to arbitration by any af,^J^to^s\J)- agreement between themselves clearly expressing an in- mit. tention to make the decision of the arbitrator conclusive. Submissions by agreement may be either (1) ])y parol, Inwhatman- (2) by writing not under seal, (3) by mutual bonds con- ditioned for the performance of the award, or (4) by indenture ; and may be contained in a formal agreement of submission or in a clause collateral to the principal objects of an instrument. It is prudent that the sub- mission should be executed by all the parties {Antram v. Chace, 15 East, 209), though not in every case absolutely necessar}'. {Ante, p. 2.) If parties in court or in chambers consent to be l)0und To a. judge as by the decision of a judge his decision is good and linal as an award. {Ilarrisoii v. ]]'riiilit, 13 M. i^- ^^'. SKJ.) And where differences have arisen in a winding up 46 THE LA"\V OF ARBITRATIONS AND AWARDS. Chap. V. To an official referee. Submission and award constitute a contract ; character of which is de- termined by submission Parol sub- mission. bet^Yeen persons claiming a charge upon a company's estate and the official liquidator the parties agreed that their rights should be determined in a summary way by the judge acting in the matter of the wmding up, it was held that this was a submission to the judge personally as an arbitrator, and there was no appeal from his de- cision as an arbitrator. (Re Durham Bnildiufj Society, Ex parte Wilson, 41 L. J., Ch. 164; L. E., 7 Ch. 45 ; and see Elvin v. Drummond, 4 Bing. 416.) Parties may agree to refer to an official referee, and apparently select the one to deal with the reference. " Where a submission provides that the reference shall be to an official referee, any official referee to whom appli- cation is made shall, subject to any order of the court or a judge as to transfer or otherwise, hear and determme the matters agreed to be referred." (52 & 53 Vict. c. 49, s. 3.) A submission is merely a contract between the parties of which some of the terms are left to be supplied by the award. (See Lang v. Brown, 25 L. T. 297 [H. L.] , _?j^r Lord Cranworth.) The submission and award together constitute a complete contract. {Wood v. Griffith, 1 Swanst. 43.) The nature of the submission, not the award, deter- mines the character of the contract. Thus, a parol submission and a written award only constitute a parol contract, and a submission not under seal with an award under seal do not make a sum awarded a specialty debt. {Talbot V. Earl of Shreicshiiry, L. E., 16 Eq. 26 ; 21 W. E. 473.) A parol submission, though perfectly valid, is attended with many disadvantages, since the Arbitration Act, 1889, only applies to submissions in writing. {Ante, p. 42 ; An- sell V. Evans, 7 T. E. 1 ; Godfrey v. Wade, 6 Moore, 488 ; Ex parte Glaysher, 34 L. J., Ex. 41.) And, a^Dart from the difficulty of proving the terms of a verbal contract in case of dispute, it is often ineffectual to accomplish :moi)1-: of sihmission. 47 the objects of the reference, for if the subject-matter of ^"^''- ^- reference is any interest in land, an award founded on a parol submission cannot bo enforced, as there is no written contract to satisfy section 4 of the Statute of Frauds. {Walters v. Monjav, 2 Cox, 369; liainforth V. IJamer, 25 L. T. 247.) Where the reference involves differences relative to when a sub- an act to be perfected by deed the submission should Jj^j ^ ne^^es• be by deed. Thus, where it is agreed that a partnership sary. shall be dissolved by deed, a submission to arbitration respecting partnership differences should be under seal to make an award dissolving the partnership valid. {Hutchinson v. Whitjidd, Hayes (Ir. Ex.), 78.) It is no objection to a submission that one party is Submission bound by deed and the other by simple contract, as in om- party ^ a reference Ijetween a private individual and a corpora- executes and , . 1 • 1 1 ^""^ other onlj' tion, which the former only signs, but to which the seal signs. of the latter is affixed. {Tomlin v. Maj/nr of Fonlirich, 5 A. & E. 147.) No stamp is necessary on an agreement to refer, the stamps, subject-matter whereof is not of the value of i)l. (54 ifc 55 Vict. c. 31), schedule ; and see Lh>j/d v. Mansel, 1!) L. J., Q. B. 11)2.) But whenever the reference is of " all matters in difference " the agree- ment should be stamped, since it cannot be surely known that the matter will not be above the value of 5/. If a stamp is necessary, and the submission is by an agree- ment not under seal, it will require a 6(/. stamp ; if by bond, a bond stamp ; if by deed, a 10.?. stamp. Where several persons having separate interests in the same subject-matter enter into an agreement to refer that matter, the agreement and award reipiire each but one stamp. {Goodson v. Forbes, 6 Taunt. 171.) Any agreement by which the parties alter the submission (even if only to enlarge the time) must be stamped as a new agreement. (Stephejts v. Lotcc, 1) Bing. 32.) 48 THE LAW OF AEBITRATIONS AND AWARDS. Chap. Y. Arbitration no bar to legal proceedings. Proceedings stayed. Specific per- formance of an agreement to refer not en- forced. A submission to arbitration will not bar legal pro- ceedings, and even the commencement and actual pen- dency of an arbitration respecting a right of action is no answer, before an award is made, to an action in respect of the same matter {Harris v. Reynolds, 7 Q. B. 71 ; Livingston v. liaUi, 24 L. J., Q. B. 269), — not even upon equitable grounds. {Wood v. Copper Miners' Co., 17 C. B. 561 ; 25 L. J., C. P. 166 ; Nichols v. Chalie, 14 Yes. 265 ; Cooke v. Cooke, L. E., 4 Eq. 77 ; 36 L. J., Ch. 480.) The effect of a stipulation in a submission, in which the arbitrators are named, that no proceedings in law or equity shall be brought in respect of the matters agreed to be referred, is a point not free from doubt. Lord Kenyon and Lord St. Leonards have respectively {Half hide v. Fenning, 2 Bro. C. C. 336 ; Dimsdale v. Robertson, 2 J. & Lat. 58) allowed such an agreement as a bar to proceedings contrary thereto ; and though the latter decision has been adversely commented upon {Scott V. Corporation of Liverpool, 8 De G. & J. 334; 28 L. J., Ch. 230), it has not been expressly overruled, and was in some degree assented to by Wood, V.-C, in Cooke V. Coolie (L. E., 4 Eq. 77), who observed that the question remains in duhio. But it is not possible to reconcile the two former cases with the decision in Lee v. Page (30 L. J., Ch. 857), and until they are confirmed by some other court they must be regarded as very doubtful law. The point is now, however, one of very little importance, smce, even in the absence of a cove- nant not to sue, the court will generally, upon applica- tion stay any proceedings brought in respect of matters agreed to be referred. (52 & 53 Yict. c. 49, s. 4 ; j^ost, p. 53.) The court will not enforce specific performance of an agreement to refer present or future differences to arbi- tration. {Re Smith and Nelson, 25 Q. B. 545 ; 59 L. J., Q. B. 533 ; Agar v. Mackleu; 2 S. & S. 418 ; Street v. ^lOOK OF srit.MissioN. ID Ritlhy, fi Yes. 818 ; Gnmhiii v. Dnhc of Someisvt, V.) Yes. Chap. V. 421) ; Smith Wtdi'x Hail. C». v. U'l/fh,.^, o De G.. M. \- G. 880.) But tho siuiie result is usually attaiiuihle \>\ an order, under section 4 of llie Ail titration Act, 1881), for a stay of i)roceedin^s where an action is commenced in respect of matters a<];reed to be referred. {Potit, p. ;">:} ; Fry, 703.) A person will l)e liable to an action for breach of Action for contract if he refuse to enter into an arbitration af ler ,r.)ct to refer. having agreed to do so. {Liri'ipston v. lialli, 24 L. J., Q. B. 269; 5 E. ^r ]i. 132; Wrlib v. Taijlnr, 1 J). \- L. 676.) But if he appoint an arbitrator he will not be liable to an action, though the arbitrator refuse to act. {Cooper V. Slnittlcimrth, 25 L. J., Ex. 114.) And before a person can succeed in such an action he must show that he liad himself engaged to be bound by the award {Kinfistoit V. I'hi'lps, Peaks, 209), and that the submis- sion is binding on all the other parties to it. (See IVuhlell V. Ihmse, 6 13. A: C. 255 ; Aiitniiii v. Chacc, 15 East, 209.) When two or more parties enter into a contract Contract con- agreeing upon some of the terms, but leaving others to ai'i'luvaVa^'" be ascertained by arl>itration, and the terms to be so etlect of ascertained are an essential part of the contract, the refcieuce. court will not order payment, or direct specific per- formance, if from any cause the arbitrators fail to deter- mine the matter so left to their decision. {Tillett v. Charinp Cross ])ri(1(ir Co., 28 L. J., Ch. 863 ; 26 Beav. 419; Darbcy v. U'hitakrr, 4 Drew. 134; 5 W. B. 772 ; Fry, 152, 158.) Thus the price is an essential in- gredient in a contract for sale and purchase, and where the price is to be fixed by valuers who do not agree (.Mibu's V. Gery, 14 Yes. 400), or by valuers, one to be appointed by each party, and the one party refuses to make a proper appointment (JVilhs v. Dtivis, 3 Mer. 507), or, having appointed, instructs his valuer not to proceed {VicLrrs v. Vickcrs, 3(') L. J., Ch. '.tltl; L. K.. A. K 50 THE LAAV OF ARBITRATIONS AND AWARDS. Chap. \. 4 ^q^ 529), the contract cannot be enforced. So, where buiklmgs or works have been agreed to be done in such manner as a thh'd person should direct, and he has failed to give any direction, specific performance has been refused. {Earl of Darnley v, London, Chatham and Dover Hail. Co., 36 L. J., Ch. 404; L. R., 2 H. L. 43 ; Tillett V. Chariufi Cross Bridge Co., supra.) In the case of a valuation, however, if the valuer is willing to act, and the one party throw obstacles in his way, the court will order him to allow the valuer to enter on the premises for the purposes of the valuation. (Smith V. Peters, 44 L. J., Ch. 613; L. E., 20 Eq. 511 ; Morse v. Merest, 6 Madd. 26 ; and see Dinham v. Bradford, L. E., 5 Ch. 519.) And where the valuation fails by default of the valuers, but the purchaser retains the property, he is liable to an action for the value thereof on a quantum meruit. {Clarice v. Westrope, 25 L. J., C. P. 287; 18 C. B. 765; Thurnell v. Balhirnie, 2 M. & W. 786.) So, on the ground of part performance, the court may enforce an agreement some of the terms of which are left to be settled by arbitration, which has failed. {Hart v. Hart, 50 L. J., Ch. 697; 18 Ch. D. 670.) Agreemeuts It is a common practice to insert in partnership deeds, to refer future ■, i , p ^ t • 1? • i diiference.s. leases. Contracts tor works, policies 01 insurance, and other contracts, covenants or agreements providing that any dififerences or disputes thereafter arising between the parties shall be referred to arbitration. Agreements of this kind do not deprive the courts of jurisdiction over the matters agreed to be referred ; nor will the addition of a covenant not to sue in respect of such matters prevent either party from bringing them into court {Horton v. Sajier, 4 H. & N. 643 ; 7 AV. E. 735 ; Lee V. Page, 30 L. J., Ch. 857), for such a covenant is an agreement to oust the jurisdiction of the courts, and it is established that, on grounds of public policy, any MODE OF SUJ'.MISSION. 51 ap'eement to oust the jurisdiction of tlie courts is void. Chai-. v. (Broom. Com. 44 ; see Jlijihif v. (li-idt Xorthmi Hail. Co., :U L. T. bGO, per Jessel, M.li.) Though an agreement not to sue on a cnntract is Award uoii.li- void, the same result is attiunalde o.v the parties agree- t., ngiit i<. ing that the award of an arbitrator shall he a condition '*"<'• precedent to the right to sue. This may be done by a stipulation that no right of action shall arise until matters in dispute have been referred to and ascer- tained by arbitration {Scott v. Avery, 5 H. L. Ca. 812; 25 L. J., Ex. 308; Calcdditiaii Insiirdiicc Co. v. (lilinour [1893] A. C. 85; Broiiii v. Omloin/, 11 Ex. 715; Trcdircn v. Hnlmnii, 31 L. J., Ex. 3!)8 ; 1 H. .t C". 72 FAliiitt v. Hnjial K.irluuiiii- Axsiiniiicr Co., L, 11., 2 Ex. 237 ; 3(5 L. J., Ex. 121) ; AU-.romhr v. Maidl, 22 L. T., X. S, ()0i) ; Kdicitnls v. Ahrraj/ioii, lic. Iiinimntcf Co., 14 L. J., (,). J;. (m ; 1 (,). J5. J). r>{\'.\; Sluirjie v. San Paulo lidil. Co., L. li., 8 Ch. 5U7 ; Traiiior v. Pha'uix Fire As^iunuicc Co., <)5 L. T. .S25 ; Sei>ft v. ^lereantile, de. IiisKraiice Co., 66 L. T, Sll ; ]'ini;i v. Hiijinihl, 20 Q. B. I). 172; 57 L. J., (,). B. 82), or by a contract to pay such a sum only as shall in case of ditierence be ascertained by an arbitrator. {liraimsti in v. Aeeidental Ihath Iiisuranee Co., 31 L. J., (}. B. 17 ; 1 J>. .'c S. 782.) The principle of these cases is applicable to what are Aivhitci's often spoken of as, but are not in fact, arbitration |!|j',„iition f* clauses, viz., stipulations in building contracts and the i'a>iiicut. like, by which the contractor's right to payment is made conditional upon the contractor olitaining the certificate of the employer's architect or engineer. iSeott V. Corporation <>/ Liverpool, 28 L. J., Ch. 2:30 ; ;J De G. c^- J. 334 ; Wistivoml v. Seereturij of State fur India, 11 W. B. 2(;i ; Jliehards v. Mai/, 10 (,). B. D. 400; 52 L. J., {}. B. 272; London Trannvai/s Co. v. Ilaih ji, 37 L. T. 499.) 52 THE LAW OF ARBITRATIONS AND AWARDS. Chap. V. Reference not a condition precedent, but collateral stipulation. Award only condition pre- cedent as to matters witli- in express terms of con- tract. It is necessary to distinguish between cases where the stipulation for a reference is a condition precedent and where it is only a collateral agreement. {Vinei/ V. Bigitold, supra.) Thus, where there are two indepen- dent covenants, one to do a certain thing and if it is not done to pay damages, and the other, that if the parties cannot agree upon the amount of the damages, it shall be ascertained by arbitration, the latter stipulation is no bar to an action on the former. (Elliutt v. Royal Exchange Assurance Co., 36 L. J., Ex. 129 ; L. E. 2 Ex. 237, 2^er Bramwell, B.) It is often difficult to determine when there are two independent covenants. Thus, a covenant that in case of damage to crops by hares, " the defendant would jjay a fair and reasonable com- pensation for the same, the amount of such compensation in case of diflerence to be referred to arbitration," was held to be in reality two independent covenants, and the arbitration was not a condition precedent to a right to sue {DaicsoiL v. Fitz(jerald, 45 L. J., Ex. 893 ; 1 Ex. D. 257 ; and see Collins v. Loche, 48 L. J., P. C. 68 ; 4 App. Cas. 674) ; while an agreement to deliver up a furnished house and eli'ects in good order, " and in the event of any loss, damage, or breakage to make good or pay for the same ; the amount of such payment, if in dispute, to be referred," was held to make the reference a condition precedent. {Ikdihaije v. Coulhoiirn, 9 Q. B. D. 235 ; 52 L. J., Q. B. 50.) A stipulation making the award or certificate of a third person a condition precedent to the right to sue will not be held to extend to subject-matters not clearly contemplated by the parties, {lioherts v. Bury Commis- sioners, 39 L. J., C. P. 129 ; L. P., 5 C. P. 310 ; Collins v. Locke, 41 L. T. 292 ; Laicson v. Wallase]i Local Board, 48 L. T. 507 ; Alexandn- v. Camphrll, 41 L. J., Ch. 478.) "Where a building contract contained a clause that, in case of difference between the contractor and his MODK OF SUDMISSION. 58 employer, the award in writiiif,' of llie architect, in all ' mv;. v. matters connected with the works or their execution, or the value of extra work, or reductions, or the meaninj^ of the plans or specitications, should he a condition precedent to any proceeding whatever at law or in ecjuity in respect of any matter or tlung which could or might be the suhject of such award ; it was held that the architect's award was not a condition precedent to an action by the employer against the contractor for not completing the buildings and fur leaving them unlinished. {Maiisjirhl V. IfiHtliu, 4 Ir, U., C. L. 17 ; Lumjirrll v. BiUcricay Union, 3 Ex. 283; 18 L. J., Ex. 282.) A contract for the sale of goods contained a stipu- lation for a fair allowance for inferior quality, the amount to he ascertained by reference, but no claim to be entertained unless the reference was demanded within fourteen days of the landing of the goods. The fact that the reference was not so demanded was held a good defence to an action claiming in respect of inferior quality. {Pompc v. Fuchs, 34 L. T. 800.) Even where an agreement to refer contains no pro- Proceedings vision against the accrual of a right to sue until arbitra- agreena-nt'to'* tion has been resorted to, legal proceedings will seldom lefer stayed, be permitted to lie carried on now in respect of matters within the scope of such an agreement, for upon pro- ceedings being commenced l)y the one party the other may apply to the court for a stay of proceedings under section 4 of the Arbitration Act, lS8i), which provides as 52 & 53 VjcU follows : — "* " If any party to a submission, or any person ^ ■*''• ** ■*• Till' coiTcsiHmdinjr ]»rovisi(iii in the C. L. P. Act, 1S.">4, was 17 ^ is Vict section 11. which cniu-tod as foUows: — " ^^^^t•nt•vel• the imiiifs to >•. 1-5, s. 11. any deed or instninicnt in wiitinj; to Ix' lu'vciiftor made or fxt'cutttl, or any of tlieiii, shall a{i;;i"Co that any then cxistinf^f or future difforonces hetwoi-n thoni or any of them shall be rcf»'n"»Ml to arhitration, and any one or niori' of the ]taiii»'s so agi-»M'in;;. or any person or persons clainiini; thronj.'h or mider him or them, shall nevertheless touimence any action at law or suit in isniity against 54 THE LAW OF ARBITRATIONS AND AWARDS. ^^^^'- ^'- claiming through or under him, commences any legal proceedings in any court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that court to stay the proceedings, and that court or a judge thereof, if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the l^roper conduct of the arbitration, may make an order sta3'ing the proceedings." Counterclaim For the purposes of this section, a counterclaim has a commence- , -i n- j. i- t ^ n • nient of le^^ai ^'^^ same ertect as a cross action, and where there is proceedings, an agreement to refer the subject-matter of a counter- claim it may be stayed on the application of the plain- tiff. {Spartali v. Van Hoorn, 76 L. T. Journ. 259; 28 Sol. J. 270; Mathew, J., in chambers.) In such a case the delivery of the counterclaim is the commencement tte other imrty or parties, or any of them, or against any person or persons claiuiinf;' through or imder hiin or them in respect of the matters so agreed to be referix'd, or any of them, it shall be lawful for the court in which action or suit is brought, or a judge thereof, on ajijilication by the defendant or defendants, or any of them, after ap])earance and before plea or answer, ui)on being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to arbitration according to such agreement as afore- said, and that the defendant was at the time of the biinging of such action or siiit, and still is, ready and willing to join and concur in all acts necessary and projier for causing such matters so to be decided by arbitration, to make a rule or order staying all pi-o- ceedings in such action or suit, on such teims as to costs and otherwise as to such comt or judge may seem fit : provided alwaj-s, that any such rule or order may at anj' time afterwards be dis- charged or varied as justice may require." MODE 0" srr.Mi>^i. where partnership articles for a term contained an '"'''^^'"• arbitration clause, and after the expiration of the term 56 THE LAW OF ARBITRATIONS AND AWARDS. Chap. V. Ajjreemeut to refer to foreign tribunal. AiJjilication to stay, wlu'n made. " Step in the proceedings."' By whom. " Person claiming through or under" a jiarty. the parties, by verbal arrangement, continued in part- nership upon the terms of the old articles, it was held that there was an agreement in writing within the sec- tion. {Gillctt V. Thornton, 44 L. J., Ch. 398; L. R., 19 Eq. 599 ; CojJe v. Cope, 52 L. T. 607.) A partnership agreement between British subjects trading in a foreign country, providing for a reference of disputes to a foreign tribunal, is within the section. (Law V. Garrett, 8 Ch. D. 26 ; 38 L. T. 3.) The application to the court must be made not only before the delivery of a statement of defence (West London Dairy Society v. Ahhott, 44 L. T. 376 ; 29 W. R. 584), but before the defendant takes a " step in the proceed- ings." Application to the court for leave to administer interrogatories {Chappell v. North ^1891 2 Q. B. 253 ; 60 L. J., Q. B. 554), or for an extension of time to deliver defence {FonVs Hotel Co. v. Bartlett [1896] A. C. 1 ; 65 L. J., Q. B. 166), or for security for costs {Adams v. Catley, 66 L. T. 687), or any other application to the court for an order in the proceedings, is a *' step " within the meaning of the section. But a notice to the plaintiff requiring a statement of claim is not a step {Ices v. Willans [1894;, 2 Ch. 478 ; 63 L. J., Ch. 521), neither IS an application to the other side for extension of time, or any other application which is acceded to without going to the court. {Briyhton Marine Palace and Pier v. Woodhouse [1893] 2 Ch. 486 ; 62 L. J., Ch. 697.) Wliere there are more defendants than one, they need not all join in the application. {WillcsJ'ord v. Watson, 42 L. J., Ch. 447 ; L. R., 8 Ch. 473.) The better opinion seems to be that the trustee of a bankrupt is not a person claiming " through or under" one of the parties to a reference within the meaning of the Act, and it is doubtful whether such a trustee, who is a defendant, is a party entitled to make the application within the section {Picrcy v. Yoiuiy, 14 Ch. D. 200), and M<)1>E OF SUBMISSION. 5 it is ecjiially doubtfiil if the court has power to stay pro- Chap. v. ceedinj^s coimnenceil by the trustee in respect of matters nf^'reeil to be referred by the liankriipt. (Prmifll v. U'alhrr. '2i\ L. J., ('. 1'. !» ; IS C. \j. C",! ; and see ,S'/ /(/;-/ /.v V. ('iir:nu, 21 L. J., Ex. :5S.) The appHcation is made in eliambers, liy sunnnons, Mu'le of wliich may be dealt witli by a master or chief clerk. api-Heation. There must be an atlidavit by tlie applicant of his Kvi.U'nof in readiness and willingness to refer at the thne when the api'.ikation action was brought. {I'inri/ v. Yoniuj, 14 Ch. ]). 200; 28 W. R. 845.) And it must be shown that the matters in dispute are within the agreement to refer. (7/^ ; Wood V. lloJmm, 15 W. R. 75(5; Dcnnchy v. Jolhi, 22 \\ . R. 449 ; GiUctt v. Thornton, supra.) The court will generally decide whether the matters in "-Matter dispute are within the agreement for arbitration, and not ivfem-a." leave the point to be decided by the arbitrator {Pirrci/ What is— V. Yonnn. 14 Ch. P. 200), though persons can agree to Sa.urtand" refer to arbitration not merely disputes between them, but wl'<"i> for mbi- €ven the question whether the disputes between them are within the arbitration clause. {Ih. 208 ; JViUesfonl v. Watson, L. IL, 8 Ch. 473 ; 42 L. J., Ch. 447.) And where the dispute is one to which the arbitration clause applies the construction of the instrument and the extent to which its clauses apply in the particular case is for the arbitrator. (C'ojJc v. Cope, 52 L. T. 007.) But the ■arbitrator cannot read into a contract a non-existing custom, so as to give himself a jurisdiction he would not otherwise possess. {Hutchcson v. Katon, 18 Q. 13. \). 661 ; 51 L. T. 846.) The section in question does not take away the juris- staying pro- diction of the court to decide the disputes between the l,'i(^,,'"r*'of parties, but gives jjower to the court to stop an action in «lis(n-tion violation of an agreement to refer to arbitration, and to enforce the agreement between the parties, a power which did not exist before the passing of the lllh section 58 THE LAW OF ARBITRATIONS AND AWARDS. Chak V "When pro- ceedings will be stayed. "Ko sufficient reason " against a reference. Suggested bins of arliitrator. of the C. L. Procedure Act, 1854, which this section replaces. {Davis v. Starr, 41 Ch. D. 242 ; 58 L. J., Ch. 808; London, Chatham and Dover Rail. Co. v. South Eastern Rail. Co., 40 Ch. D. 100; 58 L. J., Ch. 75.) The exercise of the jurisdiction is a matter of discretion with the court {Wichham v. Hardin;/, 28 L. J., Ex. 215) — a discretion to be exercised judicially and according to well-known and ordinary principles. {Van-drey v. Simp- son [1896] 1 Ch. 166 ; 65 L. J., Ch. 369.) The inimd facie duty of the court is to act upon the agreement of the parties. {Wilh-sford v. Watson, 42 L. J., Ch. 447 ; L. E., 8 Ch. 473 ; Laiv v. Garntt, 8 Ch. D. 26 ; 38 L. T. 3.) And the cases are rare in which the court ought to refuse the order to stay proceedings {Russell v. Russell, 49 L. J., Ch. 268; 14 Ch. I). 471), the burden being upon the plaintiff to show some reason why the dispute should not be referred. {Yawdrey v. Simpson, supra ; Hodgson v. Railway Passengers' Assurance Co., 9 Q. B. D. 188 ; but see Fox v. Raihcay Passengers' Assurance Co., 54 L. J., Q. B. 505 ; 52 L. T. 672.) The court has to be satisfied according to the varying circumstances of each particular case " that there is no sufficient reason why the matter should not be referred in accordance with the submission." {Fox v. Railn-ay Passengers' Assura)iee Co., supra ; Vau'drey v. Simj^son, supra.) In Lyon v. Johnson (40 Ch. D. 579 ; 58 L. J., Ch. 626), Kay, J., notwithstanding the subject-matter of the action was within the arbitration clause, refused a stay, but assigned no reason for doing so. It is not suffi- cient reason against an order to stay, that, the particular matter cannot be conveniently decided bj- arbitration. {Denton v. Legge, 72 L. T. 627.) The court will not refuse to stay an action, where the matters in difference have been agreed to be referred to the engineer of one part_y, on the ground that the engineer is in substance a judge in his own cause, unless MODE OF SUBMISSION. 59 there is suttk-ient n-asou to suspect that he will act Chai-. V, uiifaiily. {[rr>iy. U'll'aNs ls!M 2 ("li. ITS ; C,:'.!.. •!., Ch. ;V21J If the matter in dispute is clearlv within the terms of When rju.-. the a;;reement to refer, the court will stay the pro- j;;!',;,;*.'. '""■ '" ceedings, even thouf:;h the question raised is one purely of law upon the construction of the aptreement {limi- (Jrmirr V. llohiuH, L. R.. 1 L\ V. C.T'.i ; ]rilh:^h>nl v. Watsitii, supra; Fonroixl \. Wntmii, 4i) L. J., (^>. 1>. 447; Pines v. Baker, L. K.. IC Ecj. 504; 4:5 L. J.. Ch. 212 ; Cope v. Cope, 52 L. T. 607), thouf^h, in one case, where an arhitration clause, under which a policy of insurance was issued, provided for the reference of all differences to average staters, Bacon, V.-C. luld tliat a point of law was not a " difterence " contemplated hy the agreement. {Alexander v. Caniphcll, 41 L. J., Ch. 47S.) And where it was admitted that the only question in dispute was one of law, which the court thought an arbi- trator would refer back to the court in the form of a special case, North, J., directed the summons to stand over until the question of law was decided, intimating that if any question of account remained, it could be re- ferred to an arbitrator to settle the figures, (lie Carlisle, Clefni V. Cleim, 44 Ch. D. 200 ; 51) L. .!., Ch. 520.) It appears, at one time, to have been thought that the Actiou^f-.r discretion to stay should not be exercised in a partner- pannrnshii-^ ship action which involved the question of dissolution, and a motion to stay such an action has in some instances been refused. (C<><>lv.Catelij>nlr,'iML.:j.,Ch. <)0: lO.Tur.. X. S. IOCS; .fnpliii V. I'ostlrthiraitr, C.l L. T. I'.-JH ; Tiniiell V. Saudi rst'ii, C4 L. T. (»54.) ]>ut it is rlrar, from recent authorities, that under the ordinary arbitra- tion clause in partnersliip deeds, the arbitrator has power to award a dissolution {ll'aliiialrii v. ]V}iit<\ 10 W. 1;. 075; VaHdreii v. Simpsi\ >i i;\iissi(in, (\] an at'tion. and not merely to settle a dispute which the Chai-, V, defendant desired to refer before the action was com- ~ menced (ir»7f v. Coironui, L. l\., H Cli. 470, n., explained 16 Eq. 571), or where there are several matters in dis- pute some only of which are within the agreement to refer {ll'licath-i/ v, ]]'cstiniit.stcr, i(r. Coal Co., 2 Dr. tV Sm. 347 ; Turnnck v. S,irtoris, 43 Cli. ]). 150 ; 38 W. \\. :i 10), and the matters not within the ap;reement are the main matters in dispute (Jrrs v. ]VillaiiH 181)4 2 Ch. 47.S ; 03 L. J.. (1). 521), or where the defendant was not ready before action to refer the whole dispute to arbitration, notwithstanding he withdraws his objection after the com- mencement of the action {DariH v, Starr, 41 Ch. D. 242 ; 58 L. J., Ch. 808, explained in IlcnHhair v. Queen Anne Mansions Co. 1897 1 Q- 13. 002), or where the court is not satisfied that the defendant was ready before action to concur in all necessary acts to have the matter de- cided by arbitration {Foxx. Uailicaij Passenf/ers' Assurance Co., 52 L. T. 072), or where the arbitrator would not have power completely to deal with the case {Cook v. Catrlipolr, 34 L. J., Ch. 00 ; 10 Jur., N. S. 1008), or the reference agreed upon is not adapted to the special cir- cumstances {Ilirsrli V. ///( Tliiirn, 4 C. h., X. S. 5(ill ; 27 L. J., C. P. 254), or where, in conse(]uence of some of the contemplated parties not having entered into the agree- ment, it would l)e contrary to the intention of the parties to refer the matter in dispute to arbitration. {Mason v. Jladihm, C. 13., N. S. 520.) Where a time was limited for referring disputes under partnership articles, and the time had l)een allowed to expire, excei)t as to one isolated dispute, the court refused to separate this matter from the other disputes and refer it to arbitration. {Vonn;! v. linekett, 51 L. J., Ch. 505 ; 40 L. T. 200.) It seems to have been formerly considered tiuit where Acti-.n .luug- an inquiry involved a charge of fraud the court should '"^' '^'"""'*- not stay proceedings. {M'allis v. Ilirsch, 1 C. 13., N. S. 62 THE LAW OF AEBITRATIONS AND AWARDS. Chap. V "Differ- ences '" — ad- mitted claim, but disputed counterclaim. Control of court over proceedings uotwitlistand- ing order to stay. Jurisdiction of courts ousted by statute. 316; 26 L. J., C. P. 72; KitcJien v. TurnbttU, 20 W. E. 253.) More recently {Russell v. Ihisscll, 49 L. .J., Ch. 268 ; 14 Ch. D. 471), Jessel, M.E., held that the mere fact that personal fraud was charged in an issue between two partners v.-as not of itself a sufficient reason for declining to stay an action ; though if the person charging fraud does not desire a reference the court may, on a primd facie case of fraud being shown, refuse to stay the proceedings ; but where the person charged with fraud desires an investigation before a public tribunal the court ought to refuse to refer the matters. (And see Munfic v. Railwaii Passenficrs' Assurance Co., 44 L. T. 552.) The alleged fraud must be relevant to the inquir}-. {Hirsch V. Im Thuni, 27 L. J., C. P. 254 ; 6 W. E. 605 ; Alexander v. Mendl, 22 L. T., N. S. 609.) If a plaintiff commence an action for a liquidated amount under a contract, and the defendant sets up a hond fide counterclaim under the same contract, there are " differences " under which he is entitled to a stay of proceedmgs. {Russell v. Pellegrini, 26 L. J., Q. B. 75 ; 6 E. & B. 1020.) Though this decision was disapproved in the Ex- chequer {Daunt V. Lazard, '21 L. .J., Ex. 399), it has smce been followed in the Common Pleas. {Seligmann V. Le nE OF snniissioN. (iii to refer undor section 2 of tlu; Itiiihvuy Coinpanies Arl)i- Cuap. Y. tration Act, 18;")!) cl'l S: 28 Viet. e. o!M, is, umler section *2(), obligatory upon and ousts the jurisdiction of the courts {Watford Hail. Cn. v. London and North ]\'rst(-rn Hail. Co., SH L. J., Ch. 449; L. R., 8 Eq. 231), hut only if one of the companies insists upon a reference. {London, Chatham and l)i/ Conarnt. The Arbitration Act, 1889, by section 14, enacts that Refereiue of " In any cause or matter (other than a criminal pro- vj!t"!'"4y s. ceeding by the Crown), if all the parties interested who i^- are not under disability consent, the court or a judjj;e may at any time order the whole cause or matter to be tried before a special referee or arbitrator, or before an official referee or officer of the court." Apart from this statutory provision, the High Court, luli'rent by virtue of its inherent authority over an action which [^ refer i-v is pending, may at any stage of the proceedings, with couscut. the consent of all the parties, make an order referring the action to arbitration. {DarVuKiton Wiujon Co. v. Hardimi and TnnirilU', dr. Co. [18!^] 1 Q. B. 245 ; 60 L. J., Q. B. 110.) The order of reference may be made in chambers at any time before the action is called on for trial. When the reference is made at the trial the order will be drawn up by the associate if at Nisi Prius and by tlu- registrar if in the Chancery I'ivision. A judge at Nisi Prius is a full court with a power to refer. {IL ,Ii v. Boor, 19 L. .1.. C 1'. r>ur, : 1 ; I.. T. 125.) 64 THE LAW OF ARBITRATIONS AND AWARDS. Chap. V. Such refer- ences only when an ac- tion pending When action remains in court notwith- standing references. Reference on the " usual terms." If no action be pending, the courts have no jurisdic- tion over the matters, and the parties cannot refer bj- an order of court {R. v. Hardeij, 14 Q. B. 529 ; 19 L. J., Q. B. 196) ; but if there be an action pending, any other matter in difference deJiors the cause may be comprehended in the order of reference. {Bonner \\ Charlton, 5 East, 189 ; Hall v. Brand, 58 L. J., Q. B. 19; 49 L. T. 492.) An order of reference by consent which inchides matters in difference other than those in the action is not an order under the Arbitration Act, 1889, but owes its vaHdity to the consent of the parties, and the award is final and cannot be reviewed by the court in the manner appHcable to awards under an order of reference of an action alone. {Darlington Wagon Co. v. Harding [18911 1 Q. B. 245.) A person not a party to the action may, by consent, be made a party to the reference, and will be bound by it and cannot retract it. {Williams v. Lewis, 7 E. & B. 928; Rogers v. Stanton, 7 Taunt. 575, n.) The effect of the reference of an action and other matters in difference, would seem to be to put an end to the action, as an action pending in the court {Hall v. Bixuid, supra ; Penrice v. ]]'iUia)ns, 52 L. J., Ch. 593 ; 28 Ch. D. 858 ; Dick v. Milligan, 2 Yes. jun. 24 ; Wade V. Simeo)t, 18 M. & W. 650), except for the purpose of entering judgment pursuant to power expressly reserved. It is otherwise where the order of reference is of the action only, for in such a case the action remains in court. {Macalpine v. Calder [1898] 1 Q. B. 545 ; 62 L. J., Q. B. 607.) A reference is often agreed to be made on " the usual terms." These are well-known terms, which are embodied in the form given by E. S. C. App. K., No. 24. If it is necessary, such other terms, not in- cluded in the printed form, as may be agreed upon, are added. MOOR OF srilMISSION. Ct't To [tioveiit an award l)einr>h, confer a variety of powers upon referees, and by rule ooc the pro- visions of rules 4S to 55 and of rule 55b of Order XXXVI shall apply, where any cause or matter, or any (piestion or issue of fact therein, is referred to an arbitrator. These are dealt with in detail in subse- quent parts of the work. The judge of a county court may, with the consent of in thccunty ,, court. A. r 66 THE LAW OF ARBITRATIONS AND AWARDS. Chap. V. botli parties, at any time after an action has been com- menced, in all cases within the ordinary jurisdiction of the court, and in cases in which, by agreement under section 64 of the Count}- Courts Act, 1888, the parties have consented that the court shall have jurisdiction, order the action, with or without other matters, within the jurisdiction, in dispute between the parties, to be referred to arbitration, in such manner, and on such terms as he shall think reasonable and just. The re- ference is not revocable except by consent of the judge. The award is to be entered as the judgment in the action. But the judge may, if he think fit, on applica- tion to him at the first court held after the expiration of one week after the entry of such award, set aside the award, or with the consent of the parties revoke the reference or order another reference. (51 & 52 Vict. c. 43, s. 104, C. C. E., 1889, Order XX.) There is no appeal from the refusal of the judge to set aside an award in an action referred by him. {Mcq/er v. Fanner, 3 Ex. D. 235 ; 47 L. J., Ex. 760.) Compulsory relerence by statute. Reference for inquiry and refiort. Sect. 3. — CotnpuUonj Reference. B}' the common law of England there is no power of compelling persons to refer. For obvious reasons of public policy the C. L. P. Act, 1854, introduced provi- sions for the compulsory reference of actions where the disputes were regarding mere matters of account. This power of compulsory reference was extended by the Judicature Act, 1873 (36 & 37 Vict. c. 66, ss. r^ij, 57), and by the Judicature Act, 1884 (47 & 48 Vict. c. 61, ss. 9, 10). These special provisions have all been repealed and replaced by sections 13 and 14 of the Arbitration Act, 1889. Section 13, so far as at present material, is as follows: — " Subject to rules of court and to any right to MonK OK snniissioN. fx have particular cases trii-d l)y a jury, tlie court or a Chai'. V. jud^e may refer any (jui'stion arisin;^ in any cause or matter (other than a criminal proceeding by the Crown) for inquiry or report to any otticial or special referee." Section 14 is as follows : — " In any cause or matter H»'f<-r<-iice for (other than a criminal proceeding by the Crown), (a) if all the parties interested who are not under disability consent : or {!>) if the cause or matter requires any pro- longed examination of documents or any scientilic or local investigation which cannot, in the opinion of the court or a judge, conveniently be made before a jury or conducted by the court through its other ordinary officers: or (r) if the question in dispute consists wholly or in part of matters of account : the court or a judge may at any time order the whole cause or matter, or any question or issue of fact arising therein, to be tried before a special referee or arbitrator respectively agreed on by the parties, or before an official referee or officer of the court." These provisions are considered at length in Chap- ter XIX. An order of reference under either section, may be How and made in chambers on summons (R. S. C. Order LIV, ,Mi!e"nmyV.e r. 12a), or may be made at the trial. {Ilorh v. Boor, "'•'"•^'• 41) L. J., C. P. (U35.) As the power to refer under section 18, is " subject to any right to have particular cases tried by a jury," where such a right exists (see J\. S. C. Order XXX VI. rr. 3 — 7a), the order cannot be made until the lime has passed for re(]uiring a jury. Under section 14 the order may be made at " any time." Notwithstanding a compulsory reference the cause still remains in court. {Kdiidrds v. Kiliranh, 'iS L. J., C. r. 2r, ; -) C. 13., N. S. 53(5.) Power is given to the court of quarter sessions coinpiiisory compulsorily to refer appeals under the Land Drainage !'„!irt"r ^^^^ * Act, 1861 (24 & 25 Vict. c. 133, ss. 48, 49), and the hcs.s.o..s. f2 68 THE LAW OF ARBITRATIONS AND AWARDS. Chap. V. Highway Act, 1864 (27 & 28 Vict. c. 101, ss. 40, 41), "when the}' consist wholl}', or in part, of mere matters of account. The provisions of the Common Law Procedure Ac 1854, were made applicable to such references, and now they are governed by the Arbitration Act, 1889 (52 & 53 Vict, c 49, s. 24). Sect. 4. — Snht}ussioii under •particular Statutes. Enactments empowering the reference to arbitration of particular matters usually indicate the mode of sub- mission. SuLmissioii The mode of referring matters authorized under the K aVt'let, L- C. C. Act, 1845, is thus pointed out by section 25 :— 1845. " When any question of disputed compensation by this or the special Act, or any Act incorporated therewith, authorized or required to be settled by arbitration, shall have arisen, then, unless both parties shall concur in the appointment of a single arbitrator, each party, on the request of the other party, shall nominate and appoint an arbitrator, to whom such dispute shall be referred ; and every appointment of an arbitrator shall be made on the part of the promoters of the undertaking under the hands of the said promoters or any two of them, or of their secretary or clerk, and on the part of any other party under the hand of such party, or if such party be a corporation aggregate under the common seal of such corporation ; and such appointment shall be delivered to the arbitrator, and shall be deemed a submission to arbitration on the part of the party by whom the same shall be made ; and after any such appointment shall have been made neither party shall have power to revoke the same without the consent of the other, nor shall the death of either party operate as a revocation ; and if for MonK OF snoiissioN. 69 tlie space of fomtetn days after any sucli dispute shall Chap. V. have arisen, and after a recjuest in writing', in which shall he stated the matter so retjuired to he referred to arhitration, shall have heen served hy the one party on the other party to appoint an arhitralor, such last-men- tioned party fail to appoint such arl)itrator, then upon such failure the party makinp; the request, and having himself ai)pointed an arhitrator, may appoint such arhitrator to act on hehalf of hoth parties, and such arhitrator may proceed to hear and determine the matters which shall he in dispute,, and in such case the award or determination of such sin<:,de arhitrator shall he tinal," The suhmission may he made a rule of any division May be made of the Hi<:;h Court on the application of any of the par- 'roy^j-t. '^ ties. (Section 8(5 ; and see lie Ilturlci/ and XortJi Stdtfhnl- shirr Hall. ('»., 2 ])e G. .t S. 8;} ; Hr ]l'arc, <) Ex. 395; 23 L. .J., Kx. 145.) But such a step is no lon^'er neces- sary, as, under section 1 of the Arhitration Act. 1889, the suhmission has the same ell'ect as if it liad Iteen made an order of court. If hoth parties concur in the appointment of an rrelimiuary arhitrator, all that is necessary is, that the appointment iv^uirc.l'm should "he signed hy the claimant and the secretary of ^'«"'l'«l'*"ry the company ; a strict comphance with the various pre- liminary steps only heing required when the reference is compulsory. {Collins v. Sf„r of niarhhiini, 29 L. J., Ex. 447 ; H. cV: N. 61.) The award of an umpire will not, however, l)e had because no eflbrt has heen made to a^ipoint a single THE LAW OF ARBITRATIONS AND AWARDS. Chai-. V. How com- panies should aiipoint an iubitrator. Notice of appointment to other side. A])pointment under protest. Wlieu .suh- mission may be revoked. arbitrator. {Eagle v. Chariwi Cross Hail. Co., 36 L. J., C. P. 297 ; L. E., 2 C. P. 638.) If unsuccessful in the attempt to agree upon a single arbitrator, he should appoint an arbitrator himself and notify the appoint- ment to the promoters, and request them in writing to appoint an arljitrator on their part. {Bradley v. London and North Western Hail. Co., 5 Ex. 769 ; 20 L. J., Ex. 3.) Should they fail to do so for four- teen da3'S he may then appoint an arbitrator to act for both parties. The reason of the notice is to afford the other side an opportunity to acquiesce in the appoint- ment already made. {Ih.) The notice should be in ex- press terms ; it is not sufficient to state an intention of appointing, but an actual appointment should be made and delivered to the arbitrator and notice thereof given to the promoters. {lb.) The company's appointment is required to be under the hands of the "promoters or any two of them," or of their secretary or clerk (s. 25). It ought to be made under the hands of the secretary, for the word " pro- moters " refers to the company ; but it is difficult to say who are two of the company. If the interpreta- tion clause had included the word "directors" in the word " promoters " tliis difficulty would not have arisen. An appointment by either side is not complete until communicated to the other side. {I'eic v. Harris, 11 Q. h. 7; 17 L. J., Q. 13. 1.) A company does not by nominating an arbiti-ator under protest, admit that the case is one entitling the claimant to any compensation. {Sutton Harbour Ini- jyrorcntent Co. v. Hitcliens, 1 De G., M. & G. 161.) Though neither party may revoke the submission without the consent of the other, yet, if it clearly appear that the arbitrator or umpire is about to exceed his jurisdiction, the court may interfere on an application MODK OF srUMISSION. 71 to revoke the submission, {r'aricll v. KnHtern Coimtie/i Chai-. V. Hail. Co., 17 L. J., Ex. 223 ; 2 Ex. 344.) A submission under this Act may, by consent, bo made to embrace incidents and impart powers not in- cluded in a reference \Yhieh proceeds simply on the statutory clauses. {Calt'doniait lUtil. Cn. v. LockJiart, 3 Macq. 808.) And if the parties agree that two persons named shall nominatL' the arbitrator, instead of doiufj so themselves, it will not be a reference under the statute, though it may be on the terms of it. {Martin v. Lriccxtrr U'atrnrorks Co., 3 H. & N. 4()3 ; 27 L. J., Ex. 432.) Similar provisions are also made in the Railways Submissions Clauses Act, 1845 (8 & 9 Vict. c. 20, ss. 12()— 137) ; the "uluu!!.'''''' Companies Clauses Act, 1845 (8 A: 5) Vict. c. 10, ss. 128 — 134), and other statutes, as to the mode of submitting matters by those statutes respectively authorized to be referred. Submissions under the Pkailway Companies Arbitration Act, 185i), must be in writing under the common seals of the submitting companies. (22 cV 23 Vict. c. 51), s. 2.) The provisions as to the mode of submitting disputes contained in the Pul)lic Health Act, 1875 (38 »)c 3!) Vict. c. 55, ss. 17!) — 181), are similar to those in the L. C. C. Act, 1845, except that every appointment of an arbitrator on behalf of the local authority must be under their common seal, and on behalf of any other party under his hand. An api)ointment by the local authority under seal, but by the other party not in writing, is bad, and everything done under it is invalid. {lie Gifonl and Burn Toini Cnnnril, 20 (,). J]. ]>. 3(i8 ; 57 L. J., q. B. 181.) 15y reason of the similarity of language, the deci^^ions stntutorj- under the L. C. C. Act. 1845, are authorities upon the w't'in'irt'he' construction of the other statutes. It is imiiortant, Arbitration Act 18S9 therefore, to note that where arl)itrators are a[>p()inted by both parties under section 25 of the former .\ct there 72 THE LAW OF ARBITPATIOXS AND AWAltDS. Chap. y. is a " submissioD " within the meaning of the Arbitration Act, 1889, and that it attaches the powers of that statute, enabhng the court to enlarge the time for making the award, or to remit the matter to the arbitrators for reconsideration {lie Bare Valley Co., L. E., 4 Ch. 554 ; 38 L. J., Ch. 417), and giving the arbitrator power to state a special case, (llhodes v. Airedale Drainage Com- missioncrs, 1 C. P. I). 402; 45 L. J., C. P. 861 ; Bidder V. North Stafurdshire Hail. Co., 4 Q. B. D. 412 ; Isitt v. liaihcaij Passeiujers' Assurance Co., 22 Q. B. D. 504 ; 58 L. i., Q. B. 191.) ( 73 ) CHAi'TKi; VI. WHAT :MATTKns AKE INCLIDKD IK A SUBMISSION. A sri'.MissioN should he (hstinctly framed so as to Chap. VI. €mhrace nil iiiiiUers, and those only, which the parties mean to refer. In an instrument, of which the sole or principal ohject Ooneml is a reference, a general submission of "all matters in includes all ditlerence between the parties" will empower the '^'spuies. arbitrator to adjudicate on all disputes aftecting their civil rights (Baker v. TttniDicnd, 7 Taunt. 4'22) ; even on rights in aiitri' ilroit, such as claims in their capacity as executors or administrators, or on behalf of their wives. {KUctaon v. Ciiiniiiiits, 2 Stra. 1144; Morac v. Snrij, S Mod. 212; Liinilr// v. Jlnttoii, Cro. Jac. 447.) So a reference in an action of "all mailers in dispute Ijetween the parties" will be a general submission; while a sub- mission of "all matters in dispute in the action" is confined to matters actually in dispute in the action. iMahi>lni V. FuUartoii, 2 T. 1{. G45 ; Smith v. Mnlhr, 8 T. 1{. 624, 620, per Buller, J.) A submission of " all debts and demands " comprehends all, whether by simple contract or specialty. (Ilnlwrts v. Mdrictt, 2 Saund. 190.) A submission of "all actions" extends only to actions pending, and not to causes of action (Co. Litt. 'IH')) \ but "actions and complaints" would include the latter. (Com. Dig. " Arb." D. 4.) A submission which in terms is general may be con- I'nle-s con- trolled by the context or tlie nature of the instrument. .-..utvxi. In an instrument creating a contractual relationship Or nature of between the parties as to other matters than a reference, with an arbitration clause as part of the contract. 74 THE LAW OF ARBITRATIONS AND AWARDS. Chai'. VI. Notcoutrolled by specific recital. Ccjiistructiou of tlie con- tract. general words of reference will ordinarily be limited to differences arising out of the relationship created by the contract. Thus, where a partnership agreement contained a provision that "any differences or disputes which may arise between the partners shall be settled by arbitra- tion," it was held that it must not be read literally as applicable to all differences between the partners {Pierci; V. Youiifi, 14 Ch. D. 200; 42 L. T. 710), but to differences relating to matters the subject of the previous articles in the partnership instrument. {Ih., jx'f Baggallay and Thesiger, L.JJ.) A clause in a contract, "all disputes to be settled by arbitration," was held to mean all disputes in respect of the contract or its construction. {lie Holiciizollcni Acticn, cC-c, 54 L. T. 596.) A submission of all matters in difference is not con- trolled by a recital of some specific matters. {Charlton V. Sjjciicc)-, 3 Q. B. 693.) Where, however, a submission to arbitration referred the amount of loss by fire on " wool in the process of wooling, carding, scribbling, and spinning," but in other parts of the submission "raw wool " was spoken of, the arbitrator was held to be justified in refusing to take into his consideration wool in the process of manufacture, but not at the time of the fire in any of the carding machines. {lie Hurst, 1 H. & W. 275.) "Where the submission specifies certain matters upon which the arbitrator is to award, this excludes other matters not mentioned, although they are issues in the same action out of which the reference arises. {Soirdoit v. Mill^, 30 L. J., Q. B. 175.) On a reference of " any dispute arising out of a con- tract " the arbitrator may decide a dispute as to the construction of the contract. {TJiorbnr)i v. Jiaiiies, L. E., 2 C. P. 384; 36 L. J., C. P. 184; and see ante, WHAT MATTKRS AUK INCLUDEP IN A SriOriSSlON. t i) \). 51).) But he may not alter or add to the contract: Chai-. VI. and where a contract for the sale of ^oods provided for tile settlement hv arltitration of "any disputes arising,' <>n this contract " il was held that the arhitrators were not entitled to read into the contract a custom which did not exist. (Iliitclusoii v. Katoii, 13 C^). B. D. 8(51 ; 51 L. T. 846.) The arhitrator has no power to make a new contract Making "ew , ,, ,. J. 7, I • /I -1 T rii /• li- V w\ Contract lor for tlie parties. {IIodjxi- v. lialjour, O'i L. i . b4<).) \\ liere j.^irtifs— lijjht the only dispute submitted to an arbitrator is a buyer's i" i"<'i«-'Lt ri;^dit to reject goods on the ground of inferiority in quality to those contracted for (see Ilcj/irnrth v. Hiitrliin- snii, L. R., 2 Q. B. 447) the arbitrator has no power to make an award that the purchaser shall take the goods with an allowance. (Siiti v. Kitchen, Cab. A: E. 217 ; Jii' Green and llalfnur, 03 L. T. il7 ; 325.) Ordinarily a submission does not empower the arbi- Detenniiiiiig trator to determine whether matters in dispute are in- ,'iJ,je.riii the eluded in the submission {I'ieni/ v. Yoini'i, 14 Ch. J), .submission. 200; 42 L. T. 710), though the .submission may be drawn so wide as to include not only the construction of the document, but also the question as to whether acts complained of, are, or are not, within the terms of the matters agreed to be referred. (]\'illes/<>ril v. ]\'(its(>n, L. l\., 8 Ch. 473 ; 42 L. J., Ch. 447 ; nnte, p. 57.) Under a general submission l>y partners of all matters rnrtufrsliip in difference between them, the arbitrator may award a ^'"l'"'*- dissolution and a return of the premium (ante, p. 5iM, may direct that money shall be paid or secured by one partner to the other {Sinnnomls v. Sicainr, 1 Taunt. 541'). may apportion the as.sets between them [Limiixnl v. Eade, 2 Atk. 505), may direct mutual releases (//'.) and conveyances. {]Vi»<>pn\ ,ii,j-,.re„^.e." 4 l)ow. 148 ; L*{niener v. lUhtnl ami Xortlt Soim rs. t Jlail. 76 THE LAAV OF AEBITRATIOXS AND AWAEDS. Chap. VI. Matters in- cluded ill a former reference. Submission under L. C. C. Act, 1845. Submission includes only subsisting differences. Co., 16 L. T., X. S. 326) ; but a claim made h\ one side before the arbitrator, and admitted by the other to be correct, is a "matter in difference," and must be adjudicated upon, {Re Ilohson and liailston, 1 B. & Ad. 723.) A reference of all matters in difference \Yill not empower an arbitrator to go into a claim within the scope of a former reference in which the arbitrator directed mutual releases, notwithstanding the matter was not specifically considered and awarded on by the former arbitrator. {Trimmgliam v. Triminghcun, 4 X. & M. 786.) Everything which might have been gone into on a previous reference must be taken to have been adjudicated upon. {Smith V. Johnson, 15 East, 213; Bivl^s v. Trippet, 1 Saund. 28 c.) But it is open to the parties to show that a cause of action subsisting at the date of a former reference had not then become "a matter in difference." {liavee v. Farmer, 4 T. E. 146.) In a submission under the L. C. C. Act, 1845, the arbitrator cannot decide a c|uestion of title {Brandon v. Brandon, 34 L. J., Ch. 333), and he can only award in respect of interests actual^ claimed by notice. {lie nin/s and Dare Bail. Co., L. E., 6 Eq. 429; 37 L. J., Ch. 719.) A reference of an action, is the action as it stands when the order is made, and the arbitrator could not deal with matters raised b}' subsequent pleadings. {Ashicorth v. HeatJicote, 6 Bing. 596; Atkinson v. Jones, 1 D. & L. 225 ; CoojJcr v. Langdon, 9 M. cV'. W. 60.) By R. S. C. Order XXXVI, r. 58, where damages are to be assessed in respect of any continuing cause of action, they shall be assessed down to the time of the assessment. A reference of all matters in difference between the parties gives the arbitrator power over all matters down WHAT MATTKItS AKK lNlU|)|;i> IN A SLUM ISSK tN. 77 to the i)ei-i()il of siihinissioii. Imt tloes not enahli; him to Chap. VI. award on future antl contin^^ent c-hiinis [Ilr llnuni itml Crotfdon Cdital Co., !> A. A: E. 522; liaiuill v. Lriijlt, 8 T. R. 571) ; nor will a submission of all existing differences and " anything,' in anywise relatinj^ thereto " extend the arbitrator's authority to matters arisin^^ after the submission, since matters relatin<; to existing circumstances must themselves exist at the same time as the existing differences. (lie Mcrphctt, 2 ]). A: L. !>7H, per Coleridge, J.) Ikit the subsequent alteration or amendment of the instrument of reference by the parties makes the date thereof the period of the submission. {Watkim V. I'liillpotts. M-Ci. \- Y. iV.VS.) Matters arising sul)se(|uently to the date of the sub- Sabsf-ni.-nt mission, including accruing or contingent claims, may, eiujeirt'y by agreement of the parties, be hicluded in the reference a^Teinifut {lie Bvonii and Croi/ihni Canal Co., supra) ; and in Broirn V. Watson (8 Scott, 391 ; 8 Dow. 22), where from the peculiar terms of the submission it appeared that the parties meant to treat a growing demand as if it were a bygone claim, the arbitrator was held justified in taking it into his consideration. (And see Pctch v. Conlan, 7 Dow. 42(j.) Where an action having been brought for breaches of covenant to repair, tlie order referring the action and all matters in difference between the parties to an arbitrator, gave liim i)ower "to decide all matters and (questions to do justice between tlie parties, and power to order and direct what shall be done by either or both of the said parties, either immediately or prospectively, whether relating to the action or to the other matters in difference," the submission was held to empower him to award damages for breach of covenant accruing up to the date of tlie award. (Lnris v. h'ossirtr, 44 L. J., Ex. 130 ; 23 W. 11. 832.) A power to deal with subsequent matters may some- or by iu- times arise by inference where the nature of the reference '■'^^'^^' 78 THE LAW OF AEBITLATIOXS AND AWARDS. CHAr. VI. indicates that the parties clearly meant it ; thus, where an action of replevin having been brought in respect of a distress for an annuity, a reference was agreed to of " the cause and all matters in relation to the annuity in question," and the arbitrator awarded 50/. for arrears of the annuity due at the time of distress, and 40/. for arrears accruing between that time and the date of the order of reference, he was held not to have exceeded his authority. {Wiiiine v. Wrjune, 3 Scott, N. E. 435.) And a railwa}' company having taken possession of lands of the plaintiff, he brought an action of ejectment, which, with all matters in difference, was referred to an arbitra- tor, who was to settle the price of compensation ; he was held entitled to take into consideration mesne profits down to the time of making his award. {Smalley v. BJacJdmrn Rail. Co., 2 H. & N. 158; 27 L. J., Ex. 65.) A reference of all actions between A. and B. does not comprehend actions where A. and his wife are parties (Eoll. Ab. "Arb." D. 4; Barnardiston v. Foirlcr, 10 Mod. 205), or in which A. and another are parties on one side and B. on the other. (Fisltcr v. PimUey, 11 East, 189.) But where there is a reference of disputes between A. and B. on the one side and C. on the other, this is taken distributively, and gives the arbitrator the power to determine differences existing between them, or either of them ; and therefore an award of a matter in dispute between A. and C, or even of a matter between A. and B., would be good, such disputes being embraced by this reference. {Baspole's Case, Yelv. 203 ; Carter v. Carter, 1 Yern. 259 ; Winter v. White, 3 Moore, 674; Adaxk V. Wi><,d, 6 Ex. 814; in error, 7 Ex. 468; 21 L. J., Ex. 204.) >'o injunction ^^ ^^ well established, that in arbitrations, a party can to restrain protest against the jurisdiction of the arbitrator and proceedings proceed with the case subject to the protest, without waiv- as ultra the ij-^g ]^[^ right to impeach the proceedings. (Ilainhjii v. iigreenient to ^ ® ^ '■ n \ j Tcfer. WHAT MATTKHS AT.K IN('I,rDKn 1\ A SM;MI>MnN. 71) JUttrUcu, i\ Q. h. ]). do; r,0 L. J.. (,). B. 8, ]>rr Lord Chap. VI. Selborne.) S(j that j^encM'ally iiii injunction will not be granted to restrain an arbitrator from acting on the ground of want of jurisdiction {(ircat WvHtcrn li/til. Co. V. ]]'atrrf(ir., 11 (,). ]5. ]). :W ; 52 L. .1.. Q. B. 380; Wood v. LiUirs, 01 L. J., Ch. 158; J-'anary. Cooper, 44 Ch. D. 823 ; 51) L. J., Ch. 500 ; London and BlavknaU Hail. Co. v. Cross, 31 Ch. D. 354; 55 L. J., Ch. 813.) The court has, however, jurisdiction to interfere l>y in- K.\<»'i.t lu-tiou junction on equitable grounds in proper cases (London jn,l','...'".h tub- and Blarhwall Hail. Co. v. Cross, 31 Ch. 1). 868), and laission, arbitration proceedings may be restrained until the trial of an action in which the agreement containing the arbitration clause, is itself impeached. (Kitt.^ v. Moon- [1805] 1 Q. B. 253; 04 L. J., Q. B. 152; Mann- srll V. Midland Great Western Hail. Co., 1 H. \- M. 133.) It is said also that the court will interfere Mhere it "r on other is satisfied that injury will result to the party complain- '.Xlmlls^ ing if the arbitration is allowed to proceed (Farrar v. Cooper, snpra), or where the party proceeding with the arbitration has, b}- his conduct, made it inequitable that he should be allowed to proceed. {Piekcrimj v. Cape Ton-n Hail. Co., L. B., 1 Eq. 84.) In a case in which a contract for the sale of barley, provided that all disputes should be referred to arbitra- tion according to the rules of the Liverpool Corn Ex- change, and the buyer complained, and the .seller admitted, that the barley supplied was not according to sample, an injunction was granted restraining the seller from 80 THE LAAV OF ARBITRATIONS AND AWARDS. Chav. YI. proceeding to arbitration, as there was really nothing to try. (Sissons v. Gates, 10 Times L. E. 392.) But, where parties had entered into a contract (containing an arbi- tration clause) for dealing in shares, the court refused an injunction to restrain arbitration proceedings, on the application of one of the parties who alleged that the written contract was not the real agreement, and that the course of dealing under it had been gambling trans- actions, over which an arbitrator would have no juris- diction. {McHani v. Universal Stock ExcJianr/e, 11 Times L. E. 409.) ( HI ) CHAPTER VII. ALTERATION AN1> AM I'.KDMENT OF THE SUBMISSION. The terms of a submission to arbitration, like any other <'"ap. vil. ajijreement, may be altered, before the award is made, by sui.niission the consent or further agreement of the parties. But to |"".\ '"^' "it- .'v tlif i>artifs. presen'e the ri<:^ht of action on the original submission the alteration should be by an instrument of as hif,di a nature as the submission, for, after the alteration, the instrument effecting the alteration l)ecomes the submis- sion, incorporating all the unaltered terms of the original submission. {Greif/ v. Talbot, 2 B. ct C. 179.) Thus, where a submission was by deed, and a new arbitrator was, by a written memorandum, substituted in the place of one of the original arbitrators, such an appoint- ment was held to constitute a new submission, not under seal, incorporating all the remaining provisions of the former submission, (lie 'J'lnnio anil JJinl, 5 B. c'v: Ad. 488.) So, where there was an endorsed memorandum enlarging the time. {EnDis v. 'Jlmmson, 5 East, 189 ; StepluiiH V. Loire, 9 Bing. 32.) The remedy by action on a deed of submission will be lost unless the alteration is also under seal {Broun V. Guotliiuui, 3 T. Pi. 592, n. (/>)), and then the remedy will depend upon whether the alteration is in writing or parol ; if parol, the award cannot be enforced under the Arbitration Act, 1889. A recognizance to perform the award of B. is not forfeited by the non-performance of the award of C, who, I)}' the consent of the parties, is substituted for B. by order of court. (/.'. v. l>iny arbitrators. A. O 82 THE LAW OF ARBITRATIONS AND AWARDS. Chap. VII. Consent onlers of reference altered, — but only by consent. May be amemled to iurtlier the agreement of the parties by inserting omitted terms. the submission ; and where a submission contained no Hmit as to the time within which the award was to be made it was held that the arbitrators had no power to attach such a hmit, so as to render an award made after- wards invahd. {Re Morphett, 14 L. J., Q. B. 259.) An order of reference by consent may be varied by the parties. Any agreed alteration should be by amendment of the order, drawn up according to the new agreement. An order of reference " by consent" is evidence of a previous express agreement between the parties to the terms of the order {Lieveslcy v. Gilinore, L. E., 1 C. P. 570; 35 L. J., C. P. 351 ; Comdcni v. Leijland, 27 Ch. D. 632; 54 L. J., Ch. 123 ; ojitc, p. 64), which the court has no power to add to or subtract from. {TlioDtpsett v. lion-ycr, 30 L. J., C. P. 1.) It is, however, competent to the courts to amend orders of reference to effectuate the real intention of the parties where the orders have been erroneously or insufficiently drawn up. {Vanderhyl v. jWKenna, L. Pi., 3 C. P. 252.) They cannot add anything which requires the further consent of the parties ; but they can correct a clerical error, as, where the christian and surname of the defen- dant were transposed in the order {Price v. James, 2 Dow. 435) ; or insert such omitted matters as are incident to the substance of the agreement between the parties, as, in an order at ^;/.s/ prius, that defendant should sell certain lands at a valuation, the words " that the defendant should make a good title and execute a conveyance of the premises " were added, such terms being implied in the original order (Eraits v. Soior, 5 Taunt. 662) ; so, where a cause was referred on the " usual terms," the court inserted a power to amend, which had been omitted in drawing up the original order {Tluniip^ett v. Bowyer, 9 C. B., N. S. 284 ; 30 L. J., C. P. 1) ; and would insert a power to deal with the costs of the reference. {Morel ALTERATION ANI» AMKNI>MENT OF THK SUBMISSION. 88 V. Byrne, 21 W. \\. (ITH.) On a reference of a cause two Chai-. VII. orders of iiiai juiiix were drawn up for the respective solicitors of plaintilT and defendants, which were not duphcates, hut varied in their terms, and the defendants, after making' their part of the order a rule of court, moved to set aside the award (the arhitrator having acted on the plaintiirs part of the order only), and the plaintitr made a counter motion to set aside the rule of court conlirminj]; the defendants' order as incorrect ; the court directed a reference to the associate to ascertain which of the two orders was drawn up in accordance with his minutes of the agreement made at the trial, and on receiving his report set aside the rule of court confirming the defendants' order. (Ahhr v. Sari}!, 5 Taunt. 454.) But the courts have no pi)wer to amend so as to intro- I'.nt not so as duce a new cause of action, or to make tlie parties refer „e\v matter, what they never consented to refer (SiiiiirtJiiraitr v. liiclianJsdii, 15 C. 13., X. 8. 4r)8), and therefore can only make an alteration in an order of reference when it is manifest, tliat. there has l)een some omission on the part of the officer, or that, through some accident or mistake, the order is not in accordance with the intention of the parties, and does not in fact emhody their agreement. {VaiKlcrJii/l V. M'Kciifia, L. K., 8 C. P. 252; Iloinihton v. Banknrt, :{ J)e G., F. & J. 10 ; 30 L. J., Ch. 182.) An order of reference will not he varied upon a sug- gestion hy one party of subsequently discovered matter. {Dral-c V. lifoun, 2 C. M. k l\. 270.) The court will often amend an order hy striking out striking out terms which have been inadvertently inserted ; thus, vprtentlv where a cause was referred upon the usual terms con- inscrtcil. tained in a printed form of, amongst others. " filing no bill in equity," and it being found essential to the justice of the case that a bill should l)e filed, the condition was erased {Oriinstn)!,- v. Bell, 4 Taunt. 254) ; and where g2 84 THE LAW OF ARBITRATIONS AND AWARDS. Chai'. VII. the words " and all matters in difl'erence " were improvi- dentl}- inserted in a compulsoiy order of reference, the court struck them out. {Kendil v. Merrett, 25 L. J., C. P. 251 ; but see JRaictree v. Kinc/, 5 Moore, 167.) The court will not amend an order of reference, drawn up by one of the parties thereto, upon affidavits by such party that an error was made by him in copying a document attached by consent to the order of reference. {Wi/ini V. Nicholson, 18 L. J., C. P. 231 ; 7 C. B. 819.) And when a cause had been referred on terms signed by counsel on both sides, but the order drawn up varied from those terms, the parties appearing from their sul)- sequent acts to have been in favour of the terms of the order, the court refused to amend it in accordance with the original terms. {Pearman v. Carter, 2 Chitt. 29.) Where the arbitrator awarded a larger sum than that mentioned in the order of reference, and there appeared to be a mistake in the order as to the sum, semhle that the court would amend the order. {Hannen v. Juhe, 10 Jur. 926.) Material ^^ ^ proposed alteration is a material one, or will alterations introduce new matter, there must be a consent of the coVsent. parties. {Cross v. Metcalfe, 5 A. & E. 800.) When a cause was referred at nisi i)riHs without any notice of set-off it was held that a second order could not be made to enable the defendant to give a particular of set-off. {AsJticorth V. Heathcotc, 6 Bing. 596.) In M<>r(jaii v. Tartc (11 Ex. 82), where a cause was referred to arl)itra- tion without power of amendment, it was held that a judge has no power, except by consent of the parties, ta order the particulars of demand, specially endorsed on the writ, to be altered by- increasing the amount of one of the items ; though in an earlier case in the Common Pleas {Blunt v. Coolie, 4 M. & G. 458), after several meetings had taken place, the court allowed the plaintiff to amend his particulars by the insertion of other items ALTERATION ANI» AMKNDM KN r <»1' Till: SUHMISSION. 85 ill respect of services dining the period covered by the Chap. VII, former particulars. The court has more extensive powers of amendment AmeiKimcnt , , 1 » T 1 of oniers for over orders for compulsory reference. In sucli a case, lompulsory the court may amend the particuhirs of chiim at any iLf'-reucc time before the award, even thouf^li objected to. {(iUihn v. K,ti;ihth'!/, 2 H. A: N. U ; 2(5 L. J., Ex. 2!M.) And where a rule for compulsory reference was silent as to costs, and it appeared that the understanding of the officer of the court and of the parties on the drawing up of the rule was that costs would abide the event, and the arbitrator awarded in favour of the plaintiff, the court amended the rule nuiti- pro tunc so as to give effect to the intention of the court when the rule was drawn up. (Brllx. Postlethicaih', 5 E. & 13. GUo ; 25 L. J., Q. B. 03.) If an order of reference has been improperly drawn up Submission, {Rantirc v. Kiiir^, 5 Moore, 167), or obtained by fraud ^^^j"_^^ {Saclcctt V. Oneii, 2 Chitt. 39), application should be made to set it aside, and not to set aside the award. Where a stranger, who had agreed to join in a submission of a cause, refused to proceed with the reference, the submis- sion was set aside on the application of one of the parties to the cause. {Bacon v. Cressiccll, 1 Hodges, 18'J.) And where the plaintiffs had acted with bad faith towards the defendants, and had endeavoured at every step to defeat the object of the reference, a submission was set aside. (Monjan v. MiUcr, (5 Bing. N. C. 168.) ( 86 ) CHAPTEE YIII. DURATION OF THE ARBITRATOR'S AUTHORITY UXDER THE SUBMISSION. Chap. YIII. Duration of arbitrator's authoritj' when no time is fixed for the award. Three raontlis under Arbi- tration Act, 1889. Sect. 1. — Enlargement of Time by the Arbitrator or the Parties. There should, in every submission, be a certain day named on, or before ^yhich, the arbitrator is to make his award, for if there is no limitation of time for making the award there is, in the absence of any statutory provision affecting the submission, no impli- cation that he shall make it within a reasonable time. But if, after the parties request the arbitrator to do so, he neglects to award within a reasonable time, it would be ground for revocation of the submission. {Curtis v. Potts, 8 M. & S. 145 ; Salter v. Yeat<^s, 5 Dow. 291.) It was found convenient to provide a limit of time by statute. Section 15 of the C. L. P. Act, 1854, fixed this at three months, where the document of reference contained no different limit. This section, though repealed, is re- placed by clause (c) in the first schedule to the Arbitration Act, 1889. So that, in any reference by consent out of court, where no different limit is fixed in the submission, " The arbitrators shall make their award in writing within three months after entering on the reference, or after having been called on to act by notice in writing from any part}- to the submission ; or on or before any later day to which the arbitrators, by any writing signed by them, may from time to time enlarge the time for makiiif' the award." ItlUATIdN III' TIIF. ARIUTRAlolt's AITIImI; i i V. 87 It is Jissiiiut'd tliat " arbitrators " incliules a sinjile Chap. VIII. arbitrator where there is only one, and that the powers by Q^^^^. of single the Act ffiven to " arlntrators " are exereiseable by a sole '""''itrutor. arbitrator. Under the Interi)retation Act, " words in the sinfjjnlar shall include the plural, and words in the plural shall include the singular." ('i'l S: 53 Vict. c. (58, s. 1.) Tile three iiionllis only bej^in to run from the time the From wlmt arbitrator enters on the reference, and he enters on the ^^''^J^'^i'l-r ' niontlis l>egm reference, not when he accepts the oftice, or takes upon to run. himself the functions of arbitrator by giving notice of his intention to proceed, but when he begins the real business of the reference b}- holding a meeting of the parties, or proceeds under a peremptory appointment rx parti-, {liakrv v. Strphnts, L. Pi., 2 Q. B. 5-23 ; 3() L. J., Q. 13. '23G.) xVnd the same construction applies when the matter is referred back and the arbitrator has to enter on the reference de novo. (//>.) If the submission mention a time within which the wiieutinip award must l)e made, that is a condition that must /.'aistiK. with- be strictly complied with unless further time be given, '"it. (See Chap. XII., s. 1.) A submission usually contains, either expressly or by Eniurgenient non-exclusion of the statutory power above cited, power a[|Ji"J^tor for the arbitrator to enlarge the time for making his award. The enlargement must be made during the time previously fixed for making the award. "Where a cause was referred to two arbitrators with lu-twoof power to them to appoint a third, and power for any two Jj^'^l^'' "''^'t'^* of them to enlarge the time, and the two first named enlarged the time before appointing the third, the court held that this was an invalid enlargement, as all three should have been in a position to exercise judgment on the point, {lieadc v. Dntton, 2 M. i?c W. 0!).) Clause («•) in the first schedule to the Arbitration Ait, Byumi.iic 1889, provides that " The umpire shall make his award within one month after the original or extended time 88 THE LAW OF ARBITRATIONS AND AWARDS. Chap. YIII. Enlarf^ement after death of a party. :\ioae of enlarc;ement. According to the terms of the stlb- appointed for making the award of the arbitrators has expired, or on or before any later day to which the umpire by any writing signed by him may from time to time enlarge the time for making his award." Previously to this Act, it had been decided, that, if power be given to arbitrators to enlarge the time, and in case of their disagreement the}' are to choose an umpire, who shall have power to make an award " at the time and in the manner aforesaid," this impliedly gives the umpire power to enlarge the time by his single authority {Re Vinicombe and Morgan, 10 L. J., Q. B. 128 ; 5 Jur. 72) ; and that the umpire may enlarge the time though the period for entering on his umpirage has not arrived. (Re Vodington and BaiUcard, 5 Bing. N. C. 591.) If the submission provide that the death of either party shall not be a revocation, and contain the usual power for enlarging the time, such power may be exer- cised after the death of either party. {Tyler v. Jones, 3 B. & C. 144 ; Clarke v. Crofts, 4 Bing. 143.) The statutory power of enlargement given to arbi- trators is to be executed by " writing signed by them." So also in the case of the umpire. The enlargement may be made " from time to time," as often, and for such a period as may be thought fit. But if the submission give a power of enlargement for a period not exceeding three months from the date of the submission the arbi- trator cannot enlarge beyond. {Denton v. Strong, L. E., 9 Q. B. 117 ; 43 L. J., Q. B. 41.) In cases to which the statutory power does not apply, the mode of enlargement by the arbitrator depends entirely upon the terms of the submission. {Reid v. Frjjatt, 1 M. & S. 1 ; Davis v. Vass, 15 East, 97.) A power to enlarge in some particular way specified in the submission must be strictly pursued. It is generally by endorsement on the agreement or order of reference. (Leggett v. Finlaij, 6 Bing. 255 ; Davison v. Gauntlet, DURATION OF THE ARmTRATOR's AUTHORITY. 89 1 Dow., N. S. VJH.) Where, by an order of reference, a Chap. VIIL power was f,'iven to the arl)itrator to enlarge the time for makiiif; liis award until sueli uUerior day as he should appoint in writing under his hand, to be endorsed on that order, and the court or a judge thereof should order, it v,ix>: }ield necessary to obtain a judge's order ratifying the enlargement. {Mason v. Wall is, 10 J>. \- C. 107.) If the arbitrators or umpire fail to exercise the power Knlnrgeineut for enlarging the time, further time may be granted I',-^' '''"Y."^ "^ ^ 1^ ' J i-> ii,,. parties. by consent of the parties. Tliis consent should be in writing. The parties may, however, dispense with a formal consent, and if they proceed as if a consent had been given they will be estopped from saying it was not given. {Ti/cniian v. Smith, G E. l'v: B. 711); 25 L. J., Q. B. 85i).) And the consent of the parties, whether expressed in words, or by attendance, or by any other act recognizing the continuance of the arbitrator's authority, waives the want of a written or formal enlargement, and amounts in effect to a new parol sul)mission. {Ih.; Ben- irrll V. Jliii.riiKiii, 3 Dow. 500; Lcfffiett v. Finlay, 6 Bing. 255 ; Palmer v. Metropolitan Rail. Co., 31 L. J., Q. B. 259 ; Bennett v. Watson, 2!) L. J., Ex. 357 ; 5 II. iV X. 831.) But attending under protest will not be a waiver, thougli the party contests the case before the arbitrator {Bin,i, (J C. B. 37N ; 17 L. J., C. P. 324.) The order is not made as of course, and lias been order refused, refused where no proceedings have been taken for some time under the reference {Lambert v. Jlntchinson, 10 L. J., C. P. 213; 2 M. .1- G. 858; Andreirs v. Eaton, 7 Ex. 221 ; 21 L. J., Ex. 110: l>«r v. CamnlL I'l L. .].. 92 THE LAW OF ARBITRATIONS AND AWARDS. Chap. VIII. Court may en- large thougli the submis- sion forbid. Ami after the award is made. Q. B. 3*21) ; and ^Ylle^e the arbitrator, having power to enlarge, has intentionally let the time pass without doing so (Aitdrcics v. Eaton, supra, per Parke, B. ; and see Doe v. Powell, 7 Dow. 539) ; and where one of the parties has died (Edwards v. Davies, 23 L. J., Q. B. 278 ; Bowen v. Williams, 6 D. & L. 235) or become bankrupt. {Gaffney V. Killen, 12 Ir. C. L. E., App. 25.) Though the submission name a time beyond which no enlargement may be made, the court may enlarge beyond that time. Thus, where the time was limited to a day named, or such further day not exceeding two calendar months from the date of the submission as the arbitrator might appoint, it was held that the court had power to enlarge the time beyond the two months [Ward V. Secretary of State for War, 32 L. J., Q. B. 53 ; 4 B. & S. 442; Denton v. Strong, 43 L. J., Q. B. 41; L. Pi., 9 Q. B. 117) ; and so where the submission provided that the period to which the time should be enlarged should not exceed the 1st day of Juh% 1847. (Parhes v. Smith, 15 Q. B. 297 ; 19 L. J., Q. B. 405.) If an arbitrator make his award after the time limited for making it, and no enlargement has been made, the court may enlarge the time (Browne v. Colly er, 2 L. M. & P. 470 ; 20 L. J., Q. B. 426 ; Ward v. Secretary of State for War, supra; May y. Harcourt, 13 Q. B. D. 688) ; and the effect of the order is by relation back to render valid the award and any steps taken between the lapse of the first period and the extended time given by the order. (Lord v. Lee, 37 L. J., Q. B. 121 ; L. E., 3 Q. B. 404.) Though in some instances the award has been remitted back to the arbitrator (Re Warner and Powell, L. E., 3 Eq. 261 ; 15 W. E. 303), this does not seem necessary. ( !t;5 ) CllAi'TEK IX. REVOCATION. Revocations are cither l)y express acts of tlic parties or chap. L\. by operation of law, as Ijy death. There is a common law rifj;ht in eitlier party to a Common Inw su])mission at his caprice to countermand the arbitrator's revoke'' authority, at any time before the award is made. iVjixhir'a Case, 8 Rep. Sib; Re Rouse and Meier, L. R.. (> C. P. 212 : 40 L. J., C. P. 145, per Willes, J.) The arbitrator is a mandatory, and at any time before the mandate is completed it can be revoked and withdrawn, unless the power of revocation is taken awaj' by Act of Par- liament. {Fniser v. Klirexsperf/er, 53 L. J., Q. B. 73 ; 12 Q. B. D. 310.) The common law ri{];ht to revoke the arbitrator's authority exists notwithstanding the submission de- clares that it shall be irrevocable. But even at common law, after the submission (whether Revocation it were by judge's order, order of nisi prius, or agreement con'tempt *" containing a consent clause) was made a rule of court, either party revoking the submission would be guilty of, and lial)le to an attachment for, a contempt. (Milne v. Gratrix, 7 East, (508 ; Hof/nett v. HV/.s//, 1 Sim. 134 : Green v. I'nir, (> Ring. 443 ; Re Ronse an, I Meirr, -10 L. J.. C. P. 145, per Willes, J.) And where the judge's ortli-r contained not only the submission of the parties, but directed that either partv should under certain cir- cumstances pay to the other " such costs as the court should think reasonable and just,'* it was held that such an order might be made a rule of court after a revocation, in order to enable the court to dispose 94 THE LAW OF ARBITRATIONS AND AAVARDS. Chap. IX. General agreement to refer not revocable. Xo revocatii n ot ;q)praise- nient. of the question of costs. {Asto)i v. George, 2 B. & A. 395.) It is necessary to distinguish between the revocation of an agreement to refer, and the revocation of the appoint- ment of a particular person as arbitrator. Although, at common law, a submission to a particular named arbi- trator could be revoked, a general agreement to refer to arbitration could not, any more than any other contract, be revoked. Qlofat v. Coiiieliiis, 39 L. T. 102 ; Piercyw. Young, 14 Ch. D. 200 ; 42 L. T. 710 ; Fraser v. Ehren- sperger, 12 Q. B. D. 310 ; 53 L. J., Q. B. 73 ; Be Smith and Nelson, 25 Q. B. D. 545 ; 59 L. J., Q. B. 533.) If the agreement was to submit a specific difference to a named person, and the authority of that person was revoked, the agreement was at an end. {RcoiiJell v. Thompson, 1 Q. B. D. 748 ; 45 L. J., Q. B. 713 ; Deutsche, dec, Gesellschaft v. Briscoe, 20 Q. B. D. 177 ; 57 L. J., Q. B. 4.) But if there was a general agreement to refer differences, and afterwards an appointment of an arbitrator to deal with particular differences which had arisen, the appoint- ment of the arbitrator could be revoked by either party, but the agreement to refer continued to exist (Fraser v. Ehrensperger, supra) ; and the court could appoint an arbitrator and stay proceedings commenced contrary to the agreement to refer. (Moffat \. Cornelius, supra.) There is no power of revocation where the adjudication of the arbitrator is a mere appraisement. So that where by a deed between P., the plaintiffs, and the defendant, P. covenanted with the plaintiffs that he would commence and forthwith build and finish a gas-holder tank, and that the work should be completed on a day mentioned, or, in default, P. should forfeit to the plaintiffs 50/. and 20s. for every day the ccmipletion should be delayed beyond that time ; and the defendant, as P.'s surety ^ covenanted with the plaintiffs that P. should perform the covenants on his part, and in default that the defendant IlEYUCATION. f'.'> would jniy to the phiintiffK sui-h sum as E. shoulil ad- Ciiai-. IX. jud^e proper; in lui action for not linisliin^ tlie work, and for not paying the anioiint wliit-li K. had adjudt^a-d proper, it ^Yas held that E.'s power could not he revoked by any of the parties to the deed. {XdrtJiamjttoii Gun Lu/htCo. V. Ponirll, 15 C. B. (130; 24 L. J., C. P. 00 ; Mills V. Ihiylri,, 32 L. J., Ex. 171); 2 H. v^- C. 3(;.) The common law power of revocation having been much I'owir of ro- abused, the statute 3 & 4 AVill. 4, c. 42, s. 35>, was passed. I,J!,fricterth Western Rail. Co. ;1804 2 Q. B. 015 ; '180;V 1 Q. B. 450 ; G3 L. J., Q. B. 7«J4 ; (U ih. 2(;0.) If the arbitrator improperly rejects admissible evidence, the aggrieved party may apply to revoke the suijmission, and the court will revoke his authority, unless the arbi- trator will consent to obey the directions of the court in receiving such rejected evidence. (Hart v. Duke. 82 A. H 98 THE LAW OF ARBITRATIOXS AND AWARDS. '-"-^^•- ^^- L. J., Q. B. 55 ; nohins.m v. Davies, 49 L. J., Q. B. 218 ; 5 Q. B. D. 26.) Where an arbitrator is going wrong in point of law, even in a matter within his jurisdiction, the court has power to give leave to revoke a submission ; and an arbitrator, having received evidence objected to as tending to vary a written contract, and other e^ddence, inadmissible in one view of the contract and admissible in another, the House of Lords ordered the revocation un- less the parties agreed to the arbitrator stating a special case, showing all the purposes for which he had re- ceived, and the effect which he had given to, the different classes of evidence. {East and West India Dock Co. v. Kirk, 12 App. Cas. 738 ; 57 L. J., Q. B. 295.) But in all these cases of an arbitrator going wrong in point of law on a matter within his jurisdiction, the inter- ference of the court is a matter of discretion. (Janvs V. James, 23 Q. B. D. 12 ; 58 L. J., Q. B. 424.) An applicant cannot set up his own acts as grounds for revocation. (Re Woodcroft and Jones, 9 Dow. 538.) Nor will revocation be allowed because some necessary third party will not concur in the reference, unless, at any rate, the submission was conditional upon his con- currence. And, where an action and a chancery suit, were, with the consent of the parties to the action, referred at nisi prins, one of the parties to the chancery suit not being a party to the action, and nothing being said when the suit was referred as to obtaining his consent, his refusal to concur was held no ground for revocation. {Wilson v. Mon-ell, 15 C. B. 720 ; 3 C. L. Rep. 333.) Appeal from An appeal from a judge at chambers, giving or refusing chambers" leave to revoke a submission, lies to the court of appeal, and not to a divisional court. {Re Portland District Council and Tilley :i896j 2 Q. B. 98 ; 65 L. .J., Q. B. 527.) Notice of, To make a revocation complete, unless it is by operation tTarbitmton'' ^^ ^'^^^■' "^^^^'^ ^^^^^^^ ^^® gi^'^" ^^ ^^^^ arbitrator. {Marsh V. Bnlteel, 5 B. it A. 507 ; Vijnivr's Case, 8 Piep. 81, n.) REVOCATION. -'0 Unless expressly provideil to the contrary, the death of ^"•'^''- ^^ either party — where there are only two — to a submission, Oi-ath of u before the award is made, acts as a revocation of the ''"f*. " "''^"' authority of the arl)itrator. (Cnopcrv. Joloison, 2 B. I'v: A. 394 ; Ti/lcr v. Jones, 3 B. .;• C. 144 ; BlniuhU v. Brcttar), even where a verdict was taken sul)ject to an award. {Tonssaintv. Hartop, 7 Taunt, 571.) Now, however, it is assumed that if, after the reference of an action, one of the parties dies, but his personal representatives are substituted under B. S. C. 1883, Order XVII. r. 4, the award would be enforced against them. But where the cause of action is a tort, and after the reference and before award one of the parties dies, his representatives cannot be substituted, as the cause of action is gone. {Chapman v. Dai/, 49 L. T. 43G ; B,>n-hrr v. Erans, 15 Q. B. D. 565 ; 54 L. J., Q. B. 421.) The award is futile. "Where the arbitrators were to make and publish their award in writing, ready to be delivered to the parties in difference before a certain day, it was held that the execution of the award in the lifetime of the plaintiff was sutticient to make it valid, though the plaintiff died before notice of it to either party to the reference. {Brnnl-r V. Mitrhrll, (5 M. A: W. 473.) "Where the arbitrator is in the position of a person appointed by vendor and purchaser to lix the vahu' and price of an estate sold, the death of either party does not operate as a revocation of the submission. {Calfilonian Bail. Co. V. Lorhhait, 3 Macq. 808.) It seems very questionable whether an award, after wiu-thor ^, , ,, , , , . •It 'Icathofone the death of one of several parties on one side of a ..fg^.veml reference, is void (/iV Han; 8 Scott, 367 ; 8 Dow. 71, ;"•/• i.arties« ... iworatiou. Tmdal, C.J.), ann(l, 1) B. & C. liankruptcy 65U), it seems now established that the bankruptcy of ^'i,,,, either party to a reference will not of itself operate as a revocation of the submission {Tnj/lor v. Shnttleworth, 8 Dow. 281 ; Tanlov v. Murlluii, 2 M. k G. 55 ; Hans- north v. Brian, 14 L. J., C. P. 134 ; 1 C. B. 131 ; Ex parte Edicards, 3 Mor. 79) ; and this whether the sub- mission is by order of court or not. {Andrews v. Palmer, 4 B. & A. 250 ; Siin„k v. Helli/rr, 2 Chitt. 43.) The trus- tees of a bankrupt cannot, however, be compelled to become parties to the reference, nor is the submission binding upon them unless they choose to adopt it. {I'eiincll V. Walker, 26 L. J., C. P. <) ; 18 C. B. 651 ; Stunjis V. Curzon, 7 Ex. 17 ; 21 L. .T., Kx. 38.) And, as we have seen, the bankruptcy of the one party will 1)6 good ground for an application to the court to revoke. {Ante, p. 96.) Even in cases in which a party may be able to revoke KovokinR the authority of the arbitrator, he cannot, as we have ;,'„ action, seen {ante, p. 94), revoke the instrument of submission, but will remain liable to an action on such instrument. 102 THE LAW OF ARBITKATIONS AND AWARDS. Chap. IX The remedy for revocation of a submission when not under seal is by action for breach of agreement {Brown V. Tanner, M'Ci. & Y. 464 ; Warburton v. Starr, 4 B. & C. 103 ; 6 D. & K. 213) ; when the submission is by deed the revoking party is hable to an action on the covenant. (Milne v. Gratrix, 7 East, 607; Knir/ v. Joseph, 5 Taunt. 452.) Xo power to On a reference under the L. C. C. Act, 1845, after the !!r*T^^n'^rf^ appointment by each party of an arbitrator, neither Act, 1845, &c. shall have power to revoke such apponitment without the consent of the other, nor shall the death of either party operate as a revocation. (8 & 9 Vict. c. 18, s. 25.) Similar provisions are made with respect to references under the Railway Clauses Act, 1845 (s. 126) ; the Com- panies Clauses Act, 1845 (s. 128) ; the Railway Com- panies Arbitration Act, 1859 (22 & 23 Vict. c. 59, s. 11) ; and the Public Health Act, 1875 (38 & 39 Vict. c. 55, s. 180, sub-s. 3). The Agricultural Holdings Act, 1883, although depriving the parties of the power to revoke the submission, does not prevent a revocation by death of either party. (46 & 47 Vict. c. 61, s. 12.) ^ 103 ) CHAPTER X. THE ARBITRATORS AND UMPIRE. Sect. 1. — The ArhUraUtrs. Unless the reference is under some statute which points Cmai'. X. out the class of persons from which the arbitrator is to ^vho mav be be selected, any person may l)e appointed arbitrator; an arbitrator. and if the parties agree to choose the arl)itrator by lot they may do so. {Re Shun- tind Sims, 17 L. T. 1<)0.) Some of the older authorities except, as incompetent to be arbitrators, infants and lunatics, but if the selection is by mutual consent it is not now probable that disability of any kind in the person chosen, known at the time of appointment, would be ground for impeaching the award, for the parties choose their own tribunal and agree to altide by its decision. {Ashton v. Poi/ntcr, 3 Dow. 201 ; Himtifi V. nalliiKi, 8 Dow. 879, a)itc, p. 9.) Persons unimpeachal)le on the score of interest or capacit}' are usually, and should always be, chosen. A reference may be to a fluctuating body (Rdtlircn v. Fluctuating KUl'in, L. Pi., 2 Sc. App. 535), or to the committee of a -^• trade association, who appoint certain of their number to act. {Rr Keiffhh'ii and Bniait Duniiit 1808 1 Q. P,. 405 ; ()2 L. J., Q. B. 105.) It is no ground for setting aside an award that the IVrsons arbitrator is a party to the submission, if the other party assented to his appointment ; or that he is interested in the matter submitted, provided that, at the time of submission, the objecting party was aware of his interest. 104 THE LAW OF AEBITRATIOXS AND AWARDS. Chap. X. Secret interest or bias. Indebted- ness. Bias in arbi- trators who have only to select an umpire. {Matthew v. Ollerton, 4 Mod. 226 ; Harcourt v. Ramshottom, 1 J. & W. 511 ; Johnston v. Cheajje, 5 Dow, H. L. 247.) An arbitrator is, however, in a quasi-judicial position, and in ordinary cases it is a just ground of objection to an arbitrator that he is not indifferent between the parties. (5 H. L. C. 89 ; Bcddow v. Beddow, 47 L. J., Ch. 588 ; 9 Ch. D. 89.) Where it turns out that, un- known to one or both of the parties who submit to be bound by his decision, there are some circumstances in the situation of the arbitrator which tend to produce a bias in his mind, he is an improper person for an arbi- trator. {Kemp V. Ruse, 1 Gift". 265 ; Dimes v. Grand Junetion Canal, 3 H. L. C. 759.) Therefore, if the arbitrator has any bad feeling towards one of the parties {Parker v. Burroughs, Colles, Pari. Ca. 257), or has any secret interest in the subject-matter of the reference {Earl V. Stocker, 2 Vern. 251 ; Beddoic v. Beddoiu, sii2)ra), or in the success of either of the parties, he is unfit for the position. Mere indebtedness to one of the parties will not dis- qualify a person for being an arbitrator {Morgan v. Morgan, 1 Dow. 611 ; Malmeslmrij Rail. Co. v. Bndd, 2 Ch. D. 113; 45 L. J., Ch. 271); and where an arbitrator to whom certain disputed debts between A. and B. had been referred was one of several trustees who had lent part of the trust monej'S to A., unknown to B., who, on discovering the fact that A. was insolvent, applied to rescind the submission, it was held that the interest was too remote to warrant the court in rescind- ing. {Drva- V. Drew, 2 Macq. 1 ; 25 L. T. 282.) But where the indebtedness arises directly out of the subject- matter of reference it creates an unfitness. {Beddow v. Beddow, 9 Ch. D. 89.) Even when the reference is to two arbitrators, one to be chosen by each party, indifferent persons must be selected. Thus, in a reference under the L. C. C. Act, THE ARIUTRATORS AND I'MPIRE. 10/3 1845, the appointment of the surveyor of the company is Chai-. X. objectionable, {lie Elliot and Soutli Devon Rdilicay Co., 2 De G. ».t S. 17.) So is the appointment by either side of a person who has been acting as aj;ent in getting up the case. In practice, where the arbitrators are only appointed with a view to their appointing an umpire to act at once, this rule is constantly ignored, and persons who are not " indifferent between the parties " are appointed. Such appointments are imprudent as wuU as objectionable, and may be impeached by the other side, and may even imperil the award. In a case in which one side appointed their manager as their arbi- trator the court threatened to revoke the submission unless a new appointment was made. (Re FranLenhcrtj and The Scenritif Co., 10 Times L. Pi. 893.) And if biassed arbitrators sit with the umpire his award may be set aside. (Blancliard v. Sun Fire Offiee, G Times L. \\. 3C5.) If at the time of his selection by the arbitrators, or Bias in umiaro subsequently and before the award, the umpire acts as ^^ *^ ^^ ' a witness on behalf of one of the parties under circum- stances which might raise a suspicion of bias on his part, he should either decline to act as umpire or give notice to the parties, so as to allow them either to proceed with the reference, and thus waive the objec- tion, or take steps to revoke the submission {Re Clout and MetmpnUtan Rail. Co., 46 L. T. 141 ; iic Haiijh and L'Didon and XartJi IVestern Rail. Co. [180G] 1 Q. 13. G4i) ; 65 L. J., Q. B. oil) ; though an umpire is not necessarily disqualified on the ground of bias by reason that, pending the reference to him as to the value of land, he has given evidence for one of the parties in another in(|uiry as to the value of otlier land taken for the same purpose and under the same powers. {lb.) When a person, although called an arbitrator, has Known not quasi-judicial functions to perform, and is. in fact, n°oulIsmmlify. 106 THE LAW OF ARBITRATIONS AND AWARDS. ^"-^^'- ^- apiDointed, not as an indifferent person, but because he is the agent of one of the parties, it is no objection that he has an interest in the subject-matter of reference. {Banger v. Great Western Bail. Co., 5 H. L. C. 72; Hill V. South Staffordshire Rail. Co., 11 Jur., N. S. 192.) Such is the common instance of contracts for works, by which the contractor agrees to abide by the decision of the engineer or architect of the employer. {Scott v. Corporation of Liverpool, 28 L. J., Ch. 230, 238.) The engineer could not be expected, nor was it intended, that he should come with a mind free from preconceived opinion. The perfectly open judgment, the absence of all previously formed or pronounced views, which in an ordinary arbitrator are natural and to be looked for, neither party proposed to exact from the arbitrator of their choice. They knew well that he probably must be committed to a prior view, and that he might not be impartial in the ordinary sense. What they relied on was his professional honour, his position, his intelli- gence. {Jackson v. Barnj Bail. Co. [1893] 1 Ch. 238 ; 68 L. T. 472, jj^r Bowen, L.J.) It must therefore be shown that there is a reasonable probability that the arbitrator will be biassed towards one of the parties to disqualify him from acting in the matter {Eckersley V. Mersey Docks and Harbour Board [1894] 2 Q. B. 667 ; 71 L. T. 308.) It is not sufficient to show that he will have to decide questions as to his own or his son's skill and competence {ih.), or that he will in substance be a judge in his own case {Ices v. Willans [1894] 2 Ch. 478; 63 L. J., Ch. 521), or that he has expressed his opinion on the matters in dispute, unless it appears that he has made up his mind so as not to be open to change it on argument. {Jackson V. Barry Bail. Co., supra.) But where there was an unseemlj- personal dispute between the contractor and engineer, and it appeared THE .VRUITKATORS AND UMriRE. 1". the latter had pifjudi^od the case, that was considered Ciiai'. X. sutticient to disqiiahfy him from acting. {Xnttull v. Mayor of MancJtester, 8 Times L. l\. 513, as exphiined in Kclicrslvy v. Mersey Docka and llarhour Board, 8uj)ra.) Again, a guarantee hy the architect to the employer, and not communicated to the contractor, that the cost of a huilding should not exceed a certain sum, would invalidate his decision upon a claim by the contractor for "extras." (Kcntj) v. llosc, 1 Gift". 258; Kxmhcrhy V. Dkh, 41 L. .J., Ch. 38; L. It., 13 E(i. 1 ; and see Liulhrook V. Barntt, '25 W. R. 04i).) The decision of stewards of a horse race is not invalid Hoi-se on the ground of interest, as, for example, by reason of *' <^^*'"^''- one of them having made a bet against one of the horses concerned in the dispute. {Ellis v. Uappcr, 28 L. J., Ex. 1 ; 3 H. A: X. 700.) If a party is aware of any objection to the arbitrator. Waiver of and yet proceed with the reference without protest, he arhft'iul'tor^'^' will be held to waive the objection. {Re Elliot and South Devon liail. Co., 2 De G. & S. 17 ; lie Clout mid MitrnpoUtan liail. C<>., 40 L. T. 141.) The objection is not waived if the objecting party appear before him under protest. {Daries v. Price, 34 L. .J., Q. B. H; lluKlland V. Loirndts, 33 L. J., C. P. 337 ; 17 C. 13., N. 8. 514 ; Sheioiath v. Uamnath, 35 L. J., P. C". 1.) Upon application to the court an iiijiuKtion will be Injunction to . T , , • 1 -i 4 f . • i\ restrain nrhi- granted to restrani an arl)itrator from uclnig, on the tmtor. ground that he is unfit or incompetent. {MalnusJuiry Hail. Co. V. Jiiidd, 45 L. J., Ch. 271; 2 Ch. D. 113; Ihddnw V. BeddiHC, 47 L. J., Ch. 588; 9 Ch. 1). SD.) An application might also be made for leave to revoke the submission. We have seen {ante, p. 79) that the court will not generally grant an injunction to restrain an arbi- trator from acting on the ground of want of jurisdiction. Notification to the person chosen, and acceptance Acceptance of by him of the office, are necessary to complete the "rix""tn>eut- 108 THE LAW OF ARBITRATIONS AND AWARDS. Chap. X. Requisites of an arbitrator. Removal of arbitrator for iiiiscouduct. Corruption or partiality. appointment of an arbitrator. {lUurilaml v. Lowndes, 15 C. B., X. S. 173 ; 33 L. J., C. P. 25.) It cannot be too strongly impressed upon arbitrators, that the first great requisite in persons occupying that post, is a judicial impartiality and freedom from bias. They should regard themselves as judges {Harvey v. Shelton, 7 Beav. 455; 13 L. J., Ch. 466; Morris v. Reynolds, 2 Ld. Piaym. 857), and Ijound by the same rigid necessity as the judges of Her Majesty's courts, not only of not being actuated by corrupt and fraudulent motives or partiality, but even of so deporting them- selves in every way as to be above the suspicion of being so actuated. " In a matter of so tender a nature," says Lord Hardwicke, "even the appearance of evil is to be avoided." It is provided by section 11, sub-section 1, of the Arbitration Act, 1889 (52 & 53 Vict. c. 49), that "where an arbitrator or umpire has misconducted himself the court may remove him." The second sub-section enables the court to set aside the award where the arbitrator or umpire has misconducted himself. This replaces the provision in 9 & 10 "Will. 3, c. 15, s. 2, which enacted that an award procured by corruption or undue means should be void. Any misconduct of the arl)itrator sufficient for setting aside the award would, if discovered l^efore the award is made, be ground for an application to remove him. Under the repealed statute it was decided that if there was ground for imputing to the arbitrator corruption, fraud, or partiality, the award could not stand. {Steward V. WilliamsoK, 5 Bing. 415 ; Mor;ian v. Mather, 2 Ves. 15 ; Ilatcldus v. Ilittcliins, Andr. 297 ; Tittenson v. Peat, 3 Atk. 529; Burton v. KnUiht, 2 Vern. 515.) So if he had used strong expressions against either party {Ward's Case, cited 2 Atk. 396; Chicot v. Lequesne, 2 Ves. sen. 315), or had taken money from one of the THK .vniilTltATOUS AND IMI'IKi:. 101) parties alone, for his charges, hcfore making' the awaril Chai-. ,\. {Shcpliunl V. liraiid, li Barnard. 4(j3) ; tlnnigh merely getting an undertaking; by one party to take up the award in any event is not misconduct. iUr Koncorthji and Qitcnt Iiisiirancc Co., 1) Times L. It. 181.) To purchase the unascertained claims of any of the parties I'.uying the is gross misconduct. (Blcinierliassct v. ]>ciy, 2 Ball i!^- B. '^ '""' 104.) A claim under a policy of insurance was referred to two arbitrators, who appointed an umpire ; the three sat together, but the arbitrators ditiered, and the umpire awarded the claimant il,*200. On it being discovered that before the sittings of the arbitrators the claimant had assigned his interest in the policy to his arbitrator the award was set aside. (BhuirJiard v. Sidi Fiir Ofiice, () Times L. l\. 8(5.3.) It is improper in an arbitrator to accept hospitality Accepting from one of the parties, and if the invitation be given '»o'P>t'^li^^'- with the intent, or have the effect, of inducing the arbi- trator to act unfairly, the court will set aside the award. (7.V Ilopprr, 3G L. J., Q. B. 1)7 ; L. R., 2 (). B. 3(37.) But merely dining or lunching with one of the parties and his witnesses, in the absence of the other, will not in itself invalidate an award (7/^. ,• Crosslei/ v, Clai/, 5 C. B. 581 ; Mosi'leij v. Simpson, L. R., 16 Eq. '220; 42 L. J., Ch. 731); 7iV Maunder, 49 L. T. 535), and it is said the court will not interfere on the ground of misconduct of the arbitrator on mere suspicion. (lb.) It is competent for the parties to agree that the (]ues- Agreement tion of fraud or misconduct on the part of the arbitrator "io^,/comiuc't shall not be raised Ijy either party. (Tiillis v. Jtirstm <>f arJntnuor. [181)2] 3 Ch. 441 : (UL. J., Ch. i'y-jh.) An application to remove an arbitrator or umpire .Male of must be made by motion to a judge in court or to a r^^love. '" ^ divisional court, and not l)y summons in chamiiers. "Where, as is commonlv the case, each of the two Sa™^' oblij^a- * . , tions on joint parties to a reference appomts an arbitrator, tliere 110 THE LAW OF ARBITRATIONS AND AWARDS. Chai'. X. as on sole ai'bitrators. Aiipointmeut must be coiii- nmnicated to the other side. Joint arbitra- tors must act together is a danger of the persons so appointed considering themselves as the agents or tools of their respective appointors, and acting accordingly. This is a highl}^ censurable and dangerous mistake, as it must always imi^eril the award. Each arl)itrator has the same obli- gations upon him, when more than one are appointed, as if he were the sole arbitrator, and any fraud, cor- ruption, partiality, or bias that would invalidate an award if the arbitrator were acting alone will have the same effect when he awards jointly with another or others, even though the conduct of the others is unim- peachable. {Burton v. Knifiltt, 2 Vern. 515; Fetlierstone V. Cooper, 9 Ves. 67 ; Watson v. Duhe of Northumberland, 11 Ves. 153.) Joint arbitrators have no right to act as the advocates of their respective appointors. {Re Tem-pleman and Reed, 9 Dow. 962.) In Oswald v. Greji (24 L. J., Q. B. 69), Erie, J., observed: "It appears in the present case that each of the arbitrators has considered himself the agent of the part}* who nomi- nated him. This is a notion which ought strongly to be repudiated, and that it is wrong for an arbitrator so nominated to consider himself appointed to take care of the interests of one party only, and not of the other as well." (And see Cooper v. Shuttle worth, 25 L. J., Ex. 114, 2'^'' Bramwell, B.) Where differences are referred to two arbitrators, one to lie appointed by each part}^ the appointment on each side will not be complete until notified to the other side. {Tew V. Harris, 11 Q. B. 7 ; 17 L. -I., q. B. 1 ; Thomas v. Fredericks, 10 Q. B. 775 ; 16 L. J., Q. B. 393.) The appointments should both relate to the same subject- matter, for the arbitrators cannot deal with matters not common to each appointment. {Davies v. Price, 10 W. E. 865.) On a reference to several arl^itrators with no provision that less than all may make an award each must act Tin: AKiinuATons ani) iMi'iiti:. Ill iLittlr V, XriftDii, 2 M. \' (i. 351 ; Strtli v. Iiinx, 18 Cum: X. M. \' AV. 4()G ; UiiitctI Kiiiiiilnni, d'r. Aimuyancf Ax>iiH'iutii>n x. IIoKstini 18!)G 1 t^). B. ")()?), and all must act together (Mnr;iau V. limilt, 11 W. K. 20r, ; 1 N. R. 271), and every stage of the proceedings must be in the presence of all. (He Plcux auil Muhllrtoii, (J Q. B. S15 ; Pctrrsoii v. Ai/ir, •23 L. J.. C. P. 12U; 14 C. B. Olio.) Every judicial act to be done by two or more must be completed in the presence of all who do it (Lord v. Lord, 2(5 L. J., Q. B. 34 ; 5 E. .^- B. 404 : Init see lie Hopper, L. B., 2 Q. B. 307 ; 3() L. J., Q. B. 1)7), and the award must be signed by all at the same time. {Wade v. DowUmi, 4 E. »fc B. 44 ; 23 L. J., Q. B. 302 ; Ecuh v.Willwnix, 24 L. .T., Ch. ",31 ; 4 De G. M. & G. ()74.) Any objection on the ground of part of the ]iro- ceedings not being in the presence of all the arbi- trators may be waived b}' the parties going on with the case without objection. (He Mar.sJi, 1(5 L. J., (). ]3. 330; Moseleij v. Simpson, 42 L. J., Ch. l:\U ] L. B., IC Eq. 22().) AVhere the reference is to three arbitrators, enabling wiuu tin- them, or anv two of them, to hear the case and make '"nj*""'*y '""*>' ' ' act. an award, altliough two have jurisdiction over the case, they must, that their award shall be valid, have given the third notice of the meetings, that he might have attended had lie chosen, {(joodinan v.Scn/erK, 2 J. vV: W. 201 ; Dalliiin v. Matehett, Willes, 21;"5 ; Barnes, 57.) Where there is no positive refusal, two cannot act with out first taking the opinion of the third. If, after discussion, he refuse to concur with them in the award, they may execute it, and it will be go.nl.- (Mliitex. Shurp 12 M. k AV. 712; Sallnoi v. Girlimi, Cro. Jar. 277; lie Piriuij a ml Kn/iner, 3 A. i^" E. 245 ; lie Teiii]>leiii. X. Parties may a]i]ioint a new arbitrator. Appointment ot arbitrator when not named in submission , Reference to single arbitrator. Power of court to the only reason the third did not execute it was his ahsence from home, the execution of the two was held insufficient. {Re Beck, 1 C. B., N. S. 695.) Again, in a reference to three arbitrators in which it was provided that any two of them might make an award, a proposed award was shown at a meeting of the three to which one of them objected, and after dis- cussion declared that if the other two would not alter their view they must make the award by themselves. A different draft was afterwards sent by the two to the objecting arbitrator, and he returned it with comments and objections, and eventualh- the two made an award in the terms originally proposed without again sub- mitting it to the third. The court set it aside, as the other two had not treated the original refusal of the third arbitrator as final, and should have given him an opportunity of discussing his views before finallj^ deciding. {Re Perinc/ and Kei/vicr, 3 A. & E. 245 ; Re Templeman and Reed, 9 Dow. 962.) The parties may by consent substitute an arbitrator in the place of the one originally appointed; but this will amount to a new submission. {Re Tunno and Bird, 5 B. & Ad. 488; ante, p. 81.) In the majority of references of future disputes the arbitrator is not nominated, and in some instances it is left open, as a reference generalh% without stating to what number of arbitrators; in others it is expressed to be to a single ar])itrator, or to two arbitrators, one to be appointed by each party, or to three arbitrators, one to be appointed by each of the parties, and the third by the two arbitrators so appointed. Under the Arl)itration Act, 1889, in the case of a reference out of court, if no other mode of reference is provided, the reference shall be to a single arbitrator. (52 & 53 Vict. c. 49, sched. 1, cl. {a).) The same Act makes provision for the court appointing Tin: ARBITRATORS AND IMPIIU:. 113 a single arbitrator where the parlies cannot agree upon Chap. X. one. Section 5 enacts that : — appoint arbi- (a) "Where a submission provides that the reference tratorif • 1 1 -i • parties do not. shall be to a snigle arl)itrator, antl all the parties do not, after dilVerences luive arisen, concur in the appointment of an arbitrator ; " and also — {b) "If an appointed arbitrator refuses to act, or is in- capable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be supplied, and tlie parties do not supply the vacancy; " any party may serve the other parties with a written notice to appoint an arbitrator. If the appointment is not made within seven clear days after the service of the notice, the court or a judge may, on application by the party who gave the notice, appoint an arbitrator, who shall have the like powers to act in the reference, and make an award as if he had l)een appointed bv consent of all parties. Provisions to the like effect were contained in section 12 of the C. L. P. Act, 1854. It is assumed that a submission which provides no contrary mode of reference is l)y clause (ii, 25 Q. P. ]). 545; 5«) L. J., Q. B. 533.) The L. C. C. Act, 1845, makes provision for the Vacancy • • 1 -i. i. T • ii t 1 under tho remaninig arbitrator proceedm;^ ni the reference alone l. c. C. Act when the other arbitrator dies or becomes incapable, 1845. and the party whose nominee he was neglects to make another appointment (s. 26); and the same where the arbitrator refuses, or, for seven days, neglects to act (s. 30). Corresponding provisions are contained in the Pailways Clauses Act, 1845, the Public Health Act, 1875, and the Pailway Companies Arbitration Act, 1859. In a reference under the three former Acts the death of a shigle arbi- trator before he has made his award determines the proceedings, and the arbitration must l)egin dc iioro. Arbitrators must themselves decide the matters sub- Arliitrator nutted to them, and may not delegate then* judicial !^"^ i"|!f *^'''''** powers, even to each other (Liiifiood v. Eadc/l Atk. 505), authority, or agree to accept the decision or opinion of one of their number without exercising any judgment upon it. Even upon a reference to tw'o merchants and a barrister, where the two lay arbitrators agreed to leave a point of law to the decision of the legal arbitrator, it was held to invalidate the award. {Little v. Xenton, 9 Dow. 437.) They might, however, have adopted his opinion as evidence which satisfied their minds upon the point. (See Eadx v. Williams, 4 De G. >r. \ C. OST, ]»r Lord Cranworth.) Arbitrators cannot without the lonscnt of the parties agree beforehand to be bound by thf opinion of a third person without exercising their own judgment i2 116 THE LAW OF ARBITRATIONS AND AWARDS. Chap. X. Mutual con- cessions by co-arbitrators. on the point. (Whitmorc v. Smith, 7 H. & N. 509 r 31 L. J., Ex. 107.) Where an arbitrator made his award " subject to the opinion " of another person, it was held that this was a substituted judgment, and therefore bad. (Ellison V. Braij, 9 L. T., N. S. 730.) An arbitrator may, however, adopt the opinion taken from another person as his own. (Emery v. Wasc, 5 Yes. 846 ; 8 Yes. 505 ; Anderson v. Wallace, 3 CI. & F. 26.) Where, pending a reference, the parties, by a memo- randum to which the arbitrator was an assenting party, agreed that a particular portion of the account in dispute should be settled and adjusted by a third person, whose report was to be adopted by the arbitrator as conclusive evidence, it was held that this was not an improper delegation of authority by tlie arbitrator. (Sliarj) v. Nawell, 6 C. B. 253.) Mutual concessions are often necessary to attain unanimity, and it is no objection to an award that one or both of the arbitrators gave way upon points upon which they originally differed, in order to come to a decision. (Eardley v. Steer, 4 Bow. 430.) But if one arbitrator, in concession to his co-arbitrator, awards contrary to his own judgment, it will be bad. (Eads v. Williams, 4 Be G. M. & G. 688.) When an umpire may be ai)pointed. Sect. 2. — Tlie Uinjnrc. When two arbitrators are appointed, and nothing to the contrary appears in the instrument of reference, an umpire may be chosen. It is usual to make provision for his appointment in the submission, and in such case the nomination may either be by the parties themselves at the time of submission, or may be left to the arbi- trators. In the latter case, the appointment is often made a condition precedent to the arbitrators entering THE ARllITIUTOr.S AND UMPIlit:. 117 on the lefercnce (Bri;iJif v. Jfnnull, 4 ])o\v. 75(5; llr Ilirk, Ciiap. X. 8 Taunt. GUI), in which event, no vahd step can he taken in the arbitration until it is clone. But merely enlargin;^ the time before appointing an umpire in not an entering on the reference so as to render the appointment null. {Cudlilfy. IValtcrs, 2 M. .;• \l. '2;W.) Sometimes the person to be appointed is not an umpire, but a third arbitrator. It is necessary to dis- tinguish between an umpire, whose duties only commence when those of the arbitrators have ended, and a third arbitrator, whose duties commence at once, {lie SmitJi and Xrhon, 25 Q. 13. D. 545; 59 L. J., Q. 13. 583; Uiiitt'd Kiii'idoin, i(r. Assurance Association v. Houston [1890] 1 Q. 13. 507.) Until he is appointed the other two cannot act, even to the extent of enlarging tlie time. {Reade v. Dutton, 2 M. c'v: W. 09.) It is not always clear Umniro whether the person to be appointed is an umpire or third arbitrator, arbitrator. Where there was a reference to two persons, with power for them to appoint an umpire, and an agree- ment to obey the award of the two and their umpire, it was considered doubtful whether the third person was not an arbitrator so as to require the award to be made by all. {Ilrthrrinrjton v. l{ohinsi>n, 4 M. & W. 008.) But a submission to two, with power for them, if they should not agree, to appoint a third person " to be umpire in or to concur and join with them in considering and deter- mining all or any of the matters referred," was held to make the third person an umpire. (]l'interiniiliain v. Uohcrtson, 27 L. J,, Ex. 301.) And if the two arbitrators, with the acquiescence of the parties, treat the third arbi- trator as an umpire, the award will not be open to objec- tion on that account, {lie Marsh, 16 L. J., Q. B. 330 ; Peterson v. Aijres, 23 L. J., C. P. 129; 14 C. B. 005; Moseh'i/ v. Sint2)son, L. li., 10 Eq. 22»j ; 42 L. J., Ch. 739.) In the case of a reference by consent out of court, '^\'»5" ^'"e ^ arbitrators 118 THE LAW OF AKBITKATIONS AND AWARDS. Chap. X. may appoint umpire. "When court may appoint. Submission to threu arbitra- tor.s no power to compel party to appoint. unless a contrary intention is expressed in the submission, '*if the reference is to two arbitrators the two arbitrators may appoint an umi)ire at any time within the period dur- ing which they have power to make an award." (52 & 5S Vict. c. 49, s. 2, sched. 1, cl. (h).) This in substance em- bodies the repealed section 14 of the C. L. P. Act, 1854. Section 5 of the Arbitration Act, 1889, in addition to giving the court power to appoint in the case of a reference to a single arbitrator {ante, p. 112), provides as follows : — (c) Where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him ; (d) Where an appointed umpire or third arbitrator refuses to act, or is incapable of acting, or dies, and the submission does not show that it was intended that the vacancy should not be sup- plied, and the parties or arbitrators do not supply the vacancy ; any party may serve the other parties or the arbitrators, as the case may be, with a written notice to appoint an umpire or third arbitrator. If the appointment is not made within seven clear days after the service of the notice the court or a judge may appoint. (See p. 113.) These provisions, like the other provisions of the Act, are restricted to arbitrations properly so called {ante, pp. 2, 4), Init they apply to statutor}^ references. {Ex parte McBryde, 4 Ch. D. 200 ; 46 L. J., Ch. 153 ; Re Lord, 1 K. & J. 90, ante, p. 114.) Where there is a reference to three arbitrators, one to be appointed by each of the parties, and the third by the two so appointed, and one of the parties refuses to appoint an arbitrator, the court has no power to order him to do so, or to appoint an arbitrator in default of his appointment. {Be Smith and Nelson, 25 Q. B. D. 545 ; 59 L. J., Q. B. 533.) Tllli AliBITIUTOUS AND IMI'IIU:. IVJ In rt referencG to two or iiioro arhitrulors uiuler the ^'"*'- '^- L. C. C. Act, 18-15, the iirbitnitors must, before entering' AiiiK)iiitiuent upon the reference, appoint by writing im umpire to I,"„j,.7[i,^"'^*' decide matters on which they shall ditler, or which may L. C C. Act, • ■ ■' 1845 be referretl to him under the provisions of the Act ; and if he die they should forthwith appoint another. (Sect. 27; and see Shepherd v. Corporation of XoncicJi, 30 Ch. D. 553; 54 L. J., Ch. 1050.) If the arbitrators refuse or for seven days after request neglect to appoint an umpire, the Board of Trade are to appoint an umpire, and the decision of such umpire on the matters in which the arbitrators differ, or which are referred to him under the Act, is final. (Section 28 ; and see 46 & 47 Vict, c. 15.) The Railways Clauses Act, 1845, and the Eaihvay Companies Arbitration Act, 1851), contain corresponding provisions. The latter, however, makes provision in case the umpire neglect or refuse to act (22 c*i: 23 Vict. c. 51), ss. 14 — 10), which the two former do not. The Public Health Act, 1875, also requires the appointment of an umpire where there is more than one arbitrator. If the arbitrators neglect or refuse to make the appointment, it may be made by the Local Government Board. The appointment of an umpire must be signed by both Appointment arbitrators at the same time or in each other's presence, "ojj'i^jr'i,}.'^ or the appointment will be invalid {Lord v. Ijurd, 20 L. J., tmtors at tho Q. B. 34; 5 E. & B. 404) ; unless they have previously decided upon the umpire, and the signing is a mere record of their decision. {lie Hopper, 30 L. J., Q, B. \)7 ; L. R., 2 g. B. 307.) Where the umpire is to be appointed by tho arbitra- At what time tors, he may, as we have seen {dute, p. 118), be appointed 1,',',^"".'"'^'^ at any time within the period during which they have appoiutcd. power to make an award. He may, in general, be appointed by them before they enter upon the reference, even although the submission give power to appoint only in case of their disagreeing. {Bates v. Cooke, 120 THE LAW OF ARBITRATIONS AND AWARDS. Chap. X. Appointed by arbitrators after their other powers are spent. Appointment must not be by lot. 9 B. & C. 407 ; Wintcringham v. Bohertson, 27 L. J., Ex. 301.) Although the power of arbitrators to make an award is determined at the end of twenty-one days unless the time is extended, both under the L. C. C. Act, 1845, and the Public Health Act, 1875, it was held that they may appoint an umpire at any time within the time limited for the umpirage. {Bradsliatv's Case, 17 L. J., Q. B. 362; 12 Q. B. 562 ; Holdsworth v. Wilsoji, 32 L. J., Q. B. 289; 4 B. & S. 1.) These decisions were, however, before the Arbitration Act, 1889, and it may be questioned, whether under section 24 of that Act, the requirement of clause (h) in the first schedule to the Act does not apply so as to limit the power of appointment to the time during which the arbitrators have power to make an award. It was decided under the L. C. C. Act, 1845, that the umpire's time begins to run from the date when the arbitration devolves upon him. {Skerratt v. Nortli Staf- ford. Hail. Co., 2 Ph. 475 ; lie Pulle)i and Corporation of Liverpool, 46 L. T. 391 ; 51 L. J., Q. B. 285.) The appointment must be a matter of choice, and not of chance {Re CasseU, 9 B. & C. 624 ; Ford v. Jones, 3 B. & Ad. 248) ; so that where arbitrators, being unable to agree upon a proper person to appoint, agreed to cast lots icJiifli sJionld have the nomination, the appointment was held bad. {Wells v. Cooke, 2 B. & A. 218 ; Youmi v. Miller, 3 B. & C. 407 ; Harris v. Mitchell, 2 Yern. 485.) The assent of the parties, given with a full knowledge of all the attendant circumstances to such an appoint- ment, may make it valid. {He Hodson a)id iJrewry, 7 Dow. 569 ; lie Tnnno and Bird, 5 B. & Ad. 488.) But neither attending meetings before an umpire so chosen {Wells V. Cooke, 2 B. & A. 218), nor assenting to the umpire chosen, without knowing the mode of choice {Re Greenwood, 9 A. & E. 699), nor, even knowing the mode of choice, but not knowing that the person chosen had THK ARIUTUATOHS AND U.MI'IIIK. I'il before eastinp; lots been objected to by one of tbo arbitrft- Chap. X. tors (/ic Jdiiiitson, -1 A. \' E. !>-15), will i)revent one of the parties fiom tukin}:; the objection to the appointment. A solicitor or agent (Baikhitiisn' v. 'J\ij/li>r, 20 L, J., Q. B. 233; iiV Jilifth and Tt/ne Hail. Co., 11 W. R. 705)— but not the solicitor's clerk {lie Ilmhoii and Dirnri/, 7 Dow. 5GtJ) — has power to consent to an appointment by lot. Where each arbitrator named an umpire whom the other thought a proper person, and, not being able to decide which of the two proposed should be selected, they agreed to decide the choice by lot, the appoint- ment was held good, for as each arbitrator admitted the fitness of the person proposed by the other, the one chosen was in fact the nominee of Ijoth. {Scale v. Lcd'ier, K; East, 51 ; Re JfnpjH'i; 30 L. J., (^ 15. 97 : L. It., 2 (^). B. 3()7.) But such an appointment would be bad if one of the arbitrators did not know the person appointed, and was without the means of judging of his qualifications (lie European and American Steam Ship- pine/ Co., 21) L. J., C. P. 155 ; 8 C. B., N. S. 397 ; Pescod V. Pescod, 58 L. T. 7G) ; and it must always be made out clearly that the person chosen was not objected to by either arbitrator. {Monianv. Boidt, 11 "W. R. 265; and see He Vinicomhe and Manjan, 10 L. J., Q. B. 128.) Unless the person named as umpire accept the ap- Appointment pointment, the arbitrators may appoint another person, jirj" refuse to {Trippet v. Ki/rc, 3 Lev. 2(53 ; 5 Mod. 457 ; luj/nohh v. act. Gray, 1 Salk. 70 ; 12 Mod. 120; 2 Saund. 1:};^ a.) But a regular appointment of an umpire who ancjits the appointment cannot be revoked or affected by the sub- sequent dissent of the parties. (Oliver v. Citllin;is, 11 East, 367.) If the submission indicate the mode of appointing an Modo of umpire, or the reference is under a statute, the direc- "'I'''"'" '"*^" • tions of the submission, or the provisions of the statute must be followed ; when no mode of appointment is 122 THE LAW OF ARBITRATIONS AND AWARDS. Chaf. X. Stamp not necessary. Commence- ment of umpire's powers. What is a disagreement of the arbi- trators. Umpire must decide be- tween the prescribed it maj' be by parol. {Oliver v. Collings, 11 East, 367.) The appointment of an umpire need not be stamped {Roittlechie v. Tliornton, 4 Taunt. 704) unless it be by deed. In the case of a submission by consent out of court, where an umpire has been appointed, it shall be lawful for him to enter on the reference in lieu of the arbi- trators if the latter shall have allowed their time or extended time to expire without making an award, or have delivered to any party to the submission, or to the umpire a notice in writing, stating that they cannot agree. (Arbitration Act, 1889, sched. 1, cl. {d) ; in sub- stance re-enacting C. L. P. Act, 1854, s. 15.) Indepen- dently of this enactment the authority and powers of an umpire only arise when the arbitrators have disagreed, or when they have allowed the time for their award to pass without agreemg, or neglecting to agree. He may make his umpirage at any time before the expiration of the time limited for that purpose by the submission ; he may do so even before the expiration of the time limited for the arbitrators making their award {Sprigens v. Xash, 5 M. & S. 198; Smailes v. Wright, 3 M. c^- S. 559), only defeasible m the event of the arbitrators, within the time limited for them, agreeing upon an award. (lb.) If one arbitrator requires more evidence to be laid before him and the other does not, this is a sufficient disagreement to warrant the appointment or interference of the umpire, when it has been agreed that such shall take place upon the arbitrators disagreemg. {Cudli^f v. Walters, 2 M. i!v: Eob. 232.) And, as a general rule, non-agreement is "disagreement." {lie Doddington and Bailnard, 8 L. J., C. P. 331 ; 7 Dow. 640 ; Winteringliam V. Robertson, 27 L. J., Ex. 301.) The duty of the umpire, when he acts, is to decide upon the whole of the matters in diU'erence between the parties, Tllli AUIJITKATOUS AM> rMI'IIlK. 123 and not upon ])iuticnliir])oints upon which the urlfilrulors Chai-. X. are unable to decitlo {Tollit y. SaiiiKhru, U Price, (ll'i ; |mrti<-H, an.l WirkH V. Cox, 11 Jur. 542; Gnmr v. lirackvn, 2 |'«t l.euvc.i. ' ' tlio nrbitrii- Ir. C. L. Rep. 17G ; Wuiti'vimiham v. liohrrtson, supra ; tom. Com. Dir,'. " Arb." ¥.), unless, as is sometimes the case, there is an express provision for that purpose m the submission {Iavkj v. Broun, 25 L. T. 297), or in the statute i)rovidinf^ for the reference, as in tiie L. C. C. Act, 1845. Where there was a submission to two arbitrators, and, ill the event of their differing; in opinion, to any umpire they might appoint, " and whatever the arbitrators or umpire shall determine in the premises by an award or awards, interim or final, to bo pronounced l)y them " within a certain time, it was hold in the House of Lords, upon till! construction of the document, that the arbi- trators were not bound to decide everything themselves, or send everything to the umph*e, but that they could decide part, and leave matters upon which they could not agree to the umpire. {Lancj v. Brown, .supra.) The umpire must make his umpirage within the time Duration of limited by the submission. {Re Su-inford, G M. & S. 220.) ""{jlyrity. If no time is limited, then within one month after the original or extended time for making the award of the arbitrators has expired, or on or before any later day to which the umpire by any writing signed by him may from time to time enlarge the time for making his award. (Arbitration Act, 1889, sclied. 1, cl. (c).) The court has power to enlarge the time of an umpire Enlarsiment for making his award. (lie JoJinsnn and Collie, 'M h. J., ^o„rt.''' ' g. 13. 113.) When acting, the umpire has the same powers and Towers and rights, and is bound by the same rules, as the arbitrators. J„" V.^^" * '*^ {JU'an V. Xeuiiun/, 1 Lev. 139 ; Be Sallii;>< WD IMlIUi:, 12i principles of justice and law, uiul that the award of an Cuai-. X. umpire who had followed this usa^'e was had. (/iV Iin>(>h\ 83 L. J.,C. P. 24G; 10 C. B., N. S. 403; but see Matsnn V. Trmccr, H. Sc M. 17.) "Where the reference is to two persons and their Reference to umpire as experts, it is no objection to the decision of ^'^^^'^^ "' the umpire that he acts bj- applying his expert know- ledge to the statement of facts of the arbitrators without examining witnesses {Bottomlet/ v. Ambler, 38 L. T. 545; 26 W. R. 500) ; but even in such a case the parties, if they desire it, and make known their desire before the umpire makes his award, are entitled to be heard in the ordinary way. {lie Maunder, 49 L. T. 535.) If the ari)itrators join the umpire in his umpirage ii Ariiitrat..rs is mere surplusage, and will not vitiate the instrument. ui'JpJrage * '"^ {Bates V. Coolce, D B. &C. 407 ; Becky. Sargent, 4 Taunt, mere surplus- 232 ; Sonhh,/ v. ILxhison, 1 W. Bl. 403.) "°*'" Before an arbitrator or umpire shall enter into the Declaration consideration of any matters referred to him under the an/umpfre hi L. C. C. Act, 1845, or the Railways Clauses Act, 1845, statutory references. he must, in the presence of a justice of the peace, make a declaration in the form given in those Acts (8 & 9 Vict. c. 18, s. 33 ; 8 & 9 Vict. c. 20, s. 134) ; and such declaration shall be annexed to the award when made. A similar provision is contained in the Public Health Act, 1875 (38 & 39 Vict. c. 55, s. 180), and in other statutes providing for references. Sect. 3. — liemnneration of Arbitrators — Their lAabilitij for Misconduct. An arbitrator is at liberty to fix his own charges, and it is usual for him to do so. {TlirelfaU y. Fanshaire, 19 L. J.,Q.B. 334.) But he should not state the amount in his award, although authorized to do so by the submission, since, if excessive, the award might be questioned. 126 THE LAAY OF ARBITRATIONS AND AWARDS. Chap. X. In the absence of an express promise by the parties Arbitrator to the reference to pa,y, a legal arbitrator cannot recover hi" feeV^^ ^*^^ ^^^ charges by action (Virany v. Warne, 4 Esp. 47; Burroufilies v. Clarle, 1 Dow. 48 ; Hof/gins v. Gordon, 11 L. .J., Q. B. 286; 3 Q. B. 466), though it was held in the reference of a mercantile dispute to lay arbitrators and their umpire that there is an implied contract to pay reasonable remuneration for their services. {Crampton v. Bulleii, 20 Q. B. D. 48 ; 36 W. E. 554 ; Willisv. Wakeley, His lien. 7 Times L. E. 604.) The arbitrator has, however, a lien upon the award and submission (but not upon documents put in evidence before him {Ponsford v. Sicaine, 1 J. & H. 433) ), and may retain them until his charges have been paid. The usual practice, therefore, is for the arbitrator to notify to the parties the amount of his charges, and to refuse to deliver the award or communicate its contents until they are paid. This obviates all disputes, and the practice has received repeated judicial sanction. {Roberts V. Eherhardt, 28 L. J., C. P. 74 ; 6 W. E. 170.) And he is justified in so doing, even where the reference is under the L. C. C. Act, 1845. (R. v. South Devon Rail. Co., 15 Q. B. 1043 ; 20 L. J., Q. B. 145 ; Ex jxirte Harper, 23 W. E. 67.) The fees payable to legal arbitrators are well known in the profession, and are sanctioned by the masters on taxation. If the arbitrator is also appointed receiver, he may re- tain his fees out of the funds coming into his possession. {Roberts v. Eberliardt, supra.) If each party be ordered to pay a moiety of the arbitrator's charges, one of them may pay the entire sum in order to get the award from the arbitrator, and may afterwards have the same remedy against the other, if he refuse to pay his moiety, as he would have for the non-performance of any other part of the award. (Hicks V. Richardson, 1 B. .^ P. 93; Marsack v. Webber, 6 H. & N. 1.) TlIK AniJiTItATtins AN'P IMIIl;!:. 121 Thoii«4li an arbitrator may fix his uwii clmrf^'os, he is Chai-. X. not at Hl)urty to lix an exorbitant sum. If he does so, Kxccssive and a narty in order to take ni) tbu award is oblirjed to cl>»''K<5«by '■ '^ . . ^ arbitmtor pay or pays invohnitarily such unreasonable amount, ho rocovcnMUmck may recover the overcharge by action for money had '^ '^'t""'- and received, for, the money being extorted under a species of duress of property contrary to the hiw, an action hes to recover the excess. {Fenilci/ v. Jiransoit, 20 L. J., Q. B. 178 ; Jle Coombs, 4 Exch. 839 ; BarnrH V. Jiniithifditc, 2 II. & N. 501).) But the courts liave no sunnnary jurisdiction over an arbitrator to compel him to submit his costs to taxation {Withinriton v. Wrexham Waternorks Co., 32 "W. B. 1000) or to compel him by attachment to refund the amount received by him beyond what is allowed on taxation. {Dossrtt v. Giiu/cU, 2 M. I'v: G. 870; 10 L. J., C. P. 183.) If one of the parties has paid an excessive claim for the arbitrator's charges on taking up the award, and he is entitled to the costs of the award, he is not entitled to recover from the opposite party more than a reasonable sum for the arbitrator's fee, and the master on taxation between party and party may tax off the excess. {Fitzfiemhl v. Graves, 5 Taunt. 342; Rohevts v. Eherhardt, 28 L. J., C. P. 74; Wehh v. Wtfatt, 5 W. Pi. 570.) In such a case the party must resort to his remedy by action against the arbitrator to recover the difference between the amount paid and the amount allowed on taxation. {Barnes v. Ilaj/inml, 1 H. & N. 742.) It has not been exj^ressly decided what are the rights of a party to recover from the arbitrator charges paid in order to take up an award which is afterwards set aside for a gross mistake of the arbitrator. (But see He Hull and Hinds, 2 ^I. & G. 847, 853, n.) ^Vhen an award is made by an umpire on the disagree- Cosu of ment of the arbitrators, or on their failing to award, he ""'1'>"*K<'- is entitled to charge the fees due to the arbitrators as 128 THE LAW OF AEBITEATIONS AND AWARDS. Chap. X. Action against arbitrator for misconduct Negligence or unskilful- ArLitrator made defen- dant in i^ro- ceedings to impeach an award. part of the costs of umpirage. (Ellison v. Ackroijd, 20 L. J., Q. B. 193.) If the umpire fail to charge them, the party who has paid the arbitrators' fees will be entitled to have the amount allowed him among the other costs of the reference. It has been said that an arbitrator is liable to an action if he misconduct himself {Wills v. Maccarmick, 2 Wils. 148 ; and see Moore v. Foster, Yelv. 62) ; though there does not seem to be any instance of such an action. But, where, under a building contract, the certificate of an architect that he was satisfied, was a condition pre- cedent to payment, it was held that an action would lie against the architect for a fraudulent refusal to certify. {Ludhrook v. Barrett, 25 W. E. G49 ; 46 L. J., C. P. 798.) Wilful misconduct in an arbitrator appointed under the L. C. C. Act, 1845, or the Eailways Clauses Act, 1845, is a misdemeanor. (8 & 9 Yict. c. 18, s. 33 ; 8 & 9 Yict. c. 20, s. 134.) If an arbitrator act honestl}', an action will not lie against him for want of skill or care, or for negligence in performing his duties. (PapiM v. Rose, 41 L. J., C. P. 187 ; L. E., 7 C. P. 525 ; Tharsis Sulphur and Copper Co. v. Loftus, 42 L. J., C. P. 6; L. E., 8 C. P. 1 ; Stevenson v. Watson, 48 L. J., C. P. 318; 4 C. P. D. 148.) Even a person who is not an arbitrator in the strict sense of the term, but undertakes to conclude a disputed fact left to his decision, is not liable to such an action. But a mere valuer, who has held himself out as such for reward, is liable. (Turner v. Goulden, 43 L. J., C. P. 60 ; L. E., 9 C. P. 57 ; Jenkins v. Betham, 24 L. J., C. P. 94 ; 15 C. B. 168.) Under the practice of the old courts of equity it was a rule that in general an arbitrator could not be made a party to a bill for the purpose of impeaching an award. In some cases, nevertheless, where an award was impeached on the ground of gross misconduct in the THK ARItlTRATORS AND IMPIRK. 120 nibitrators, and they were made parties to the suit, the CnKr. X. court ordered them to pay the costs. {Chicot v. Lcqiirmir, 2 Ves. sen. 315 ; LiiniiHxl v. Croncher, 2 Atk. 39o ; Hamilton v. Bankin, 3 De G. & S. 782 ; see, jicr Jessel, M.R., Mathias v. Yetts, 4() L. T. 502.) But now, it is nut proper to make an arbitrator a party to an action simply for the purpose of askin^j for costs, if no other reUef is sought a<];ainst him. {Amos v. Henw Baif, iic Co., 54 L. T. 2G4 ; JJurstall v. BetifHS, 2G Ch. D. 35 ; 53 L. J., Ch. 565.) Sect. 4. — ]]'Jicii (in Ar1ntri< " ]Vitness. An arl)itrator may often be called as a witness to Arbitrator prove facts which occurred or came under his notice wUness'.Is to durinp; the reference. (Uolxrts v. Corhrtt, 20 L. T. 66.) facts of the . . reference. He cannot, however, be admitted, or called upon, to give evidence of any concessions made by one party during the reference for the purpose of l^ringing peace and getting rid of a suit, but there is no objection to his proving regular admissions made Ijy the parties in the course of the proceedings. {Wcsthilce v. CoUard, Bull. N. P. 230; Slack v. Buchanan, Peake, N. P. C. 6; (ircfiori/ v. Howard, 3 Esp. 113.) And an abstract furnished by one party before an arbitrator was admitted as evidence in a future suit, in a court of law, against the same party. {Doc v. Evans, 3 C. vl^ P. 219.) But an arbitrator cannot be allowed, in a subsecpient trial of the same cause of action, to prove the result of an exami- nation of the parties, or of an inspection of their books, pending a reference to him. {Habcrshon v. Troby, 3 Esp. 38.) The evidence of an arbitrator is also admissible to An.l to show show in respect of what matters he exercised jurisdiction. „„ittcr ho A. K 130 THE LAW OF AKBITRATIOXS AND AWARDS. Chap. X. {Duke of Biicdeuch v. Metropolitan Board of Works, exercised 39 L. J., Ex. 130; 41 L. J., Ex. 137 ; L. E., 5 Ex. 221; jurisdiction. 5 jj. L. 418.) " Any attempt to annoy an arbitrator, by asking questions to show that he had mistaken the law, or found a verdict against the weight of evidence, should be checked, for these matters are irrelevant. But where the question is whether he did or did not entertain a question over which he had no jurisdiction, the matter is relevant, and nobody can he better qualified to give evidence on that matter than he." {Ih., per Blackburn, J., 39 L. J., Ex. 138.) In that case the House of Lords held the arbitrator's evidence admissible to show whether he had adjudicated upon matters not within his jurisdic- tion. Hart, L. C. of Ireland, had expressed an opinion in an earlier case oiBrophy v. Holmes (2 Molloy, 1), that though an award was good on the face of it, and pur- ported to be an adjudication on all matters m difference brought before the arbitrators, the arbitrators themselves might be examined whether they did in fact exercise the jurisdiction, and include in their consideration as matters in difference certain matters brought before them. In Be Bhijs and Dare Valley Bail. Co. (37 L. J., Ch. 719 ; L. E., 6 Eq. 429) the evidence of an arbitrator was held admissil^le, upon a motion to set aside an award, to show whether he had mistakenly awarded on wrong subject-matter, or made a mistake in legal principle going directly to the basis on which the award was founded ; though, in an old case, the court refused to allow the arbitrator to l)e called to give such evidence as would in fact contradict his award, the terms of the award being clear. {SJtellinf/ v. Farmer, 1 Str. 646.) But not as An arbitrator cannot be examined as to the mental for hiVawaiT pi'ocess by wliich he arrived at his award in respect of matters within his jurisdiction. {Duke of Buccleuch v. Metropolitan Board of ]]'<)rks, supra ; Ellis v. Saltan, 4 C. & P. 327, n.) THK AUltlTRATOIIS AND TMl'lllK. l^il The above rules apply to actions upon the award in Chap. X, which the rules of evidence are to he observed. Upon .m ipplication to set aside or remit an award, on the {ground if mistake or misconception of the arbitrator, the court to which the application was made would probably riject no means of infc)rmin<; itself whether the arbitra- tor had proceeded upon such mistake or misconception. {J)iili(' of Bnrrlntrh v. Mitrojxilitan Bimril <>/ JVarkK, supra, per Cleasby, B. ; and see jiost, Chap. XV.) An arltitrator may be called to prove that certain matters were not included in matters referred (/irtrcc v. Fdniicr, 4 T. II. 14(5) ; or that a specific claim was not made before him. (Martin v. Thornton, -i Esp. 180.) And he may be asked whether he was requested by cither party to find on specific issues, he l)eing authorized to award generally unless so requested. {Ullson v. Ilhwhleii, 18 L. T., N. 8. Gi)5.) The notes of evidence taken by an arbitrator are his own, and the court has no power to compel the produc- tion of them, or deal with them, any more than with a judge's minutes. (Sconfiiill v. Camplidl, 1 Chitt. 283.) It is a well understood rule of the profession, approved wiun arbi- bv the courts, that a Imrrister should decline to make an l"^'^?'*' * _ ^ ' _ _ barrister. atKdavit respecting his conduct as an arbitrator. [DoJison V. Oruve>i, Q. 13. (J37 ; Doc v. Preston, 3 J). \- L. 708.) K- 1! ( 132 ) CHAPTER XI. PROCEEDINGS BEFORE THE ARBITRATOR. Chap. XI. Procuring an appointment for the hearing. Power of arbitrator as to the pro- ceedings. Appointment of meetings. Sect. 1. — Preliminayics. The arbitrator having consented to undertake the office, one of the parties should apply to him for a written appointment of a day for hearing the case. It is usual to try and arrange a day convenient for all the parties. Where several arbitrators are appointed, they should all concur in naming a day, unless the submission empowers the majority to award, in which case the majority may appoint a reasonable time, and, if the others do not attend after notice of such appointment, may proceed in their absence. {Goodman v. Sayers, 2 J. & W. 261.) Absenting arbitrators should have notice of every meeting. The submission, or order of reference, should be left with the arbitrator, that he may know the duties he has to perform and the powers with which he is invested. Subject to the ol)ligation to conduct it as nearly as may he. like a trial before a judge (infra, p. 138), the mode of conducting a reference lies almost wholly in the discre- tion of the arbitrator. Like other judges, however, he is bound to observe in his proceedings the ordinar}^ rules laid down for the administration of justice. {Re HaigJi's Estate, 31 L. J., Ch. 420 ; 3 De G., F. & J. 157.) He appoints the times and places of meeting and adjourn- ment, but they must be reasonable, and notice thereof PROCEEDINGS 15EF0RE THE ARIUTRATOR. 133 must be given to both parties, or the award will be voiil ('"ai-. XI. (Osicahl V. Grri/, "24 L. J., Q. B. 01); Ilohhs v. lurrurs, 8 Dow. 77'.) ; Anon., 1 Sulk. 71) ; l»ut if nothing is done, except to adjourn, at a meeting of which no notice is given to one party, the award will not be bad. {lie Morphctt, 2 D. ///.'/.< v. IlansiU, 1() C. 13. o02.) If the instrument of reference leave the swearing of witnesses in the discretion of the arl)itrator, he may, at his option, dispense with the oath, even though one of the parties request otherwise, {Smith v. Gof, 14 M. & W. 204.) The chief statutory enactments for reference provide that statutory the examination of the parties and their witnesses may be retereuces. on oath. It should be so, unless both parties dispense with it. {U'akrndd v. Hanelbj Rail. Co., 34 13eav. 245.) Where the submission required the witnesses to be Aflidavits. examined on oath, and the arbitrator received some affidavits, the court set aside the award, holding that the deponents should have been examined cird voce, {Banlis V. Banks, 1 Gale. 40.) Copies of entries in bankers' books are evidence in Of i>aukir>* proceedings before an arbitrator, and ma}- be verilied by affidavit. (42 \- 43 Vict. c. 11, s. 5.) No particular form of words is necessary to make the oath binding. The following may be useful as a precedent : — "You shall true answers make to all such ques- tions as shall be asked of you touching the matters in question between the parties to this reference : So help you God.'" Should a witness object to be sworn, he may make his solemn affirmation ; and the following form may be adopted in such a case : — "I, A. Jj., do solemnly, sincerel}', and truly declare and affirm that I will true answers make to all such questions as shall be asked me touching the matters in question between the parties to this reference." 140 THE LAAV OF ARBITRATIONS AND A^YARDS. Chap. XL "Witnesses pri\-ileged from arrest. Punishable for perjury. "Witnesses compulsorilj^ attending a reference have the same jDrivilege in being protected from arrest as witnesses attending courts of justice. (Mooj-e v. Booth, 3 Yes. 350 ; Spence v. Stuart, 3 East, 89 ; Randall v. Gimiey, 3 B. & A. 252 ; 2 Taylor on Evidence, 1153.) And though a witness attend a reference vokmtarily, he "will still be protected, inasmuch as he might have been compelled to attend. {Wchh v. Taylor, 13 L. J., Q. B. 24; ID. & L. 676, per Patterson, J.) The arbitrator has no power to discharge a witness from custody'. Any person -who wilfully and corruptly gives false evidence before any referee, arbitrator, or umpire shall be guilty of perjury, as if the evidence had been given in open court, and may be dealt with, prosecuted, and punished accordingly. (Arbitration Act, 1889, s. 22.) The manufacture of false evidence, mtended to be used, and to deceive arbitrators, such as tampering with samples taken from a bulk, is a common law mis- demeanor, although the evidence is never used. (Rey, V. Yreones [1891] 1 Q. B. 360; 60 L. J., M. C. 62.) Sect. 3. — Evidence. Power of arbitrator to decide ques- tions of evidence. Arbitrators are bound b}' the same rules of evidence as courts of law. {Att.-Geii. v. Davison, M'Cl. & Y. 160.) But if an arbitrator make a mistake in the law of evi- dence the court will not, after award, review his decision. {Cantpbell v. Tivendoic, 1 Price, 81 ; Hagyer v. Baker, 14 M. & W. 9.) He is the judge of the adinissibility of evidence so far as the competency of the witnesses is concerned, and if he receive the evidence of an incom- petent, or reject that of a competent witness, the court will not generally set aside the award. {Lloyd v. Arch- hoicle, 2 Taunt. 324 ; Verriman v. Steyyall, 9 Bing. 679 ; Arinstrony v. Marshall, 4 Dow. 593 ; Hagger v. Baker, PROCEEDINC.S IiKroi;!: Till-: AlilUTRATol;. Ill 14 M. tt v. ]'un Samhu, 6 Q. 13. 237 ; Si/moi v. Goodfdlow, 2 Scott, 761) ; 2 liing. N. C. 532.) But we have seen (untf, p. *.»") that before the award How oj.inion the court may, upon application, revoke the arbitrator's oJ,*^.videD'ce " autliority if he admit improper evidence or refuse to admit evidence which is le^'ally admissible. {Hart v. Duke, 32 L. J., Q. B. 55.) This is the proper way to take the opinion of the court on a question as to the admission or rejection of evidence. We must distinp;uish between a rejection of evidence Materiality of as being inadmissible under the rules of evidence and a lie[er",'inrbk' rejection on the ground that it is not material to the '•>' arbitrator, issues. (See lie Marsh, 10 L. J., Q. B. 330.) Exer- cising any discretion as to the amount of evidence, or rejecting evidence on any matter which the arbitrator may think foreign to the subject of the reference, is a step that should be taken with great caution {Johnston v. Clieajic, 5 Dow, H. L. 247), for if the arbitrator refuse evidence of matters within the scope of the reference, under the mistaken impression that they are not within it (Samuel v. Cooper, 2 A. & E. 752 ; liroplii/ v. ILilmes, 2 Molloy, 1), or refuse to examine a material witness because he thinks there is sufficient evidence without {Phipps V. Inr/ram, 3 Dow. 669), this will invalidate the award. But the evidence or witness must have been actually tendered. {Craven v. Craven, 7 Taunt. (544.) An affidavit to set aside an award on the ground that the arl)itrator has refused to examine a material witness should state what reason, if any, he gave for refu.-in.!^ to hear the witness. {Bradlejf v. IhheUon, 2 L. M. iV \\ 583.) The court refused to set aside an award upon an affidavit that an arbitrator said that \\v would look at affidavits, but that the}- would have no weight with him. 142 THE LAW OF ARBITRATIONS AND AAVARDS. Chap. XI. Unstamped documents. Arbitrator must call pailies before him and take evidence. Unless the submission negative the duty, or the refer- ence is to an expert. {Imperial Fioyal Chartered Azicnda v. Fiuidcr, 21 W. E. 67, 116.) An instrument ^Yhicll is chargeable with stamp duty cannot, except in criminal proceedings, be admitted in evidence without being properly stamped. If produced to an arbitrator or referee, and the instrument is one which may legally be stamped after execution, it may, on paj'ment to the arbitrator or referee of the amount of the unpaid duty and the penalty payable on stamping the same, and a further sum of 11., be received in evidence. (54 & 55 Vict. c. 39, s. 14.) It is now, therefore, the duty of an arbitrator or referee to see that every instru- ment put in evidence is properly stamped, and if in- sufficiently stamped to receive payment of the unpaid duty and penalty and pay them over to the Inland Revenue . Prima facie, the duty of an arbitrator is to summon the parties before him, take the evidence which they wish to adduce, and make his award upon and accord- ing to the evidence. Though the matters referred may almost tell their own tale, as in the case of dilapidations, the arbitrator must not make his award without calling the parties before him, as there may be other facts which the parties would like to adduce as to liability. (Anon., 2 Chitt. 44 ; Be Haidey and North Stafford Rail. Co., 2 De G. & Sm. 33.) If it is in terms referred to a person to decide, from his special knowledge of the subject-matter in dispute, he may refuse to receive evidence. (Joluiston v. Cheape, 5 Dow, H. L. 247.) When a matter is referred to an expert as such, and he is competent to decide from personal observation, he need not take evidence unless requested to do so. {Bot- tomley v. Amhler, 38 L. T. 545 ; 26 W. E. 566 ; Wricjht v. Hoirson, 4 Times L. E. 386.) "I do not think, when a matter is referred to surveyors or other persons of skill PROCEEDINGS IJEFORE TIIK \l;l;m;\T(M;. 1 l:l to fix the value of property to ]>c Ijou^Iu or kl, ilial the *^"^'- ^^- meaning is that tlu-y are necessarily to examine witnesses ; they are intrusted, from their experience and observa- tion, to form a judj^nnent which the parties referring to them agree shall he considered satisfactory." {Ku(h v. ]]lUiamti, 4 De G., M. & G. fi87, ]icr Lord Cranworth.) There might Ije a reference between an incoming and outgoing tenant where an inspection of the farm would af!brd every information necessary. In such a case it might be, if the usage were so, that the referees need not give notice of their meetings to the parties or have their attendance, but might make their award on a view of the farm. (Oswald v. Grey, 24 L. J., Q. B. G9, per Erie, J.) But in any case, unless the parties have expressly agreed that the arbitrator need not take evidence, either party may claim, at any time before the award is made, to be heard and to adduce evidence. {HcMtuinilcr, 40 L. T. 535.) "When evidence is received, the arbitrator must observe Aii.itnitor the principles of universal justice recognized in the con- \^i\^ si.K-sun.l duct of judicial iiroceedin^s, which require that a person take t-vitk-iice who may be prejudiced by evidence ought to be present seucu of ix^th to hear it taken, to suggest cross-examination, or him- l^^^ics. self to cross-examine, and to be able to find evidence, if he can, that shall meet and answer it. {Drew v. Drew, 2 Macq. 1 ; Re Brook, 33 L. J., C. P. 24r) ; IG C. B., N. 8. 403 ; Thorhum v. Barnes, 3<) L. J., C. P. 184 ; L. R., 2 C. P. 384.) An award will not stand— 1. AVhere the arbitrator hears one party and refuses to hear the other. {Sharpr v. Birlnrdi/he, 3 Dow, H. L. 102 ; Osirald v. (hri/, 24 L. J., Q. B. iV.) ; Phippsx. Ingram, 3 Dow. ()(){).) 2. ^Vhere the arbitrator holds private communications with one of the parties on the subject-matter of the reference. (FetJifrstoiic v. Cooju r, \) Yes. 01) ; Harvey v. Sheltoii, 13 L. J., Ch. 4(;(;: 7 Jieav. 4G2 ; Re Tidsuell, 33 Beav. 213.) 144 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XI. 3. Where the arbitrator, unless justifiably proceeding ex parte, examines one of the parties {Re Hick, 8 Taunt. 694), or the witnesses on one side {Pepper v. GorJiam, 4 Moore, 148 ; Walker v. FrolAsher, 6 Yes, 70 ; Re Brook, supra), in the absence of the other party ; or receives information from the one party in the absence of the other. {Re Gregson and Armstrong, 70 L. T. 106.) 4. Where the arbitrator examines witnesses in the absence of both parties. {Re Pleics and Middleton, 14 L. J., Q. B. 139 ; 6 Q. B. 845 ; Kingn-ell v. Elliott, 7 Dow. 423.) The award will be set aside, notwithstanding the arbi- trator may swear that the evidence thus received had no effect upon his award {Walker v. Frohisher, 6 Ves. 70; Dohson v. Groves, 6 Q. B. 637 ; 14 L. J., Q. B. 17 ; Fetlierstone v. Cooper, 9 Yes. 67), unless the objection be waived. The same rules apply, and the same course of pro- ceedings ought to take place, in a mercantile as in anj^ other reference. {Harvey v. Shelton, supra.) Where a letter book, containmg copies of letters which had been adduced in evidence before an arbitrator, and marked by him as read, was, at the close of the case, left in his hands in order that he might, before making his award, refer to the copies so adduced, and he referred to a copy of a letter which had not been so marked, the court directed that the case should be referred back to the arbitrator in order that the party against whom the letter complained of had been used might have an oppor- tunity of explaining its contents, but refused to set aside the award. {Davenport v. Vickcrii, 9 W. R. 701.) Private com- If one party make any private written communication to the arbitrator touching the subject-matter of reference, the arbitrator should inform the other party, or hand the communication over to him. {Harvey v. Shelton, 7 Beav. 462; 13 L. J., Ch. 466.) munications. PUOCEEItlNdS liEFOlli: THE AKIJITKATui:. 145 In Andnson v. U'alhirr (:j C. i!^' F. 20) it was (lecidt-d Chai'. XI. that an award was not invaliilated by the arbitratDr. in inqTiin- the absence of one of the parties, calUng on the other «'.'"i'"'' I'^iy , , . , . ■■ . •■ ,. dl.Sl>Ut<-.s party and asking hnn whetlier he admitted or disputed items certain items in an account, and merely takin;.; his answer to that question. But had he received any exphmations of items in the absence of the other party it would have been different. {Rr Haif/Ji's Kstatf, 3 De G., F. & J. 157.) The only safe course for an arbitrator, unless proceed- ^'« inform ■- ing r.v parte, is to insist that all information in relation recciv.-.l U- to the matter in reference, communicated bv one partv, 5ii»J tli.'back or his witnesses or agents, shall be in the presence of the other. (Drew v. Drcir, '2 Macc]. 1.) The parties may consent to the arbitrator informing Im-gulin- his mind by taking evidence in the absence of the parties i!!,"ctr.l!ea in- {Mdtson v. Troici'i; Uy. >k M. 17 ; Re Pleas and Middle- ngrcenu-ut. ton. 14 L. J., Q. B. 131), prr Coleridge, J.) ; but such a course could not be justified by any alleged usage. No usage would l)e legal, for arl)itrators to make their award upon the examination of the witnesses of the one party in the absence of the other, and without notice to the latter. {Re Brook, Hi C. 13., X. S. 403; 33 L. J., C. P. 240; Osicald V. Grey, 24 L. J., Q. B. 60.) Any objection to irregular or improper conduct on the < )r waived by part of the arbitrator may be waived by the parties, either ''"^' P*'"*'^'*- expressly or by their conduct {Re Salkcld and Slater, 12 A. .1- E. 767; Rinnall v. Gale, 10 L. J., C. P. 160; 2 M. & G. 830), providing the party waiving have full knowledge of the defect. {Earl of Darnley v. London, Chatham and Dovrr Rail. Co., L. P., 2 H. L. 43; 36 L. J., Ch. 404.) "When it comes to the knowledge of a party, that the arl)itrator has examined witnesses in bis absence, he should at once either abandon the reference or apply in chambers to revoke the submission, for if he continue to attend the subsequent proceedings this will A. L 146 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XI. Recemng evidence of matters not ^vithin the submission. Giving time for the ]iio- duition of eviilence. he a waiver. {Drew v. Drew, '2 Macq. 1 ; but see lie Haigh's Estate, 31 L. J., Ch. 420.) Where, pending a reference, the umpire held a communication with the agents of one of the parties, this fact being known to all the parties at the time, and not objected to by any of them, and the reference having proceeded and the award being subsequently made, it was held that neither of the parties could object to the award on the ground of such communication, having acquiesced in it. (Mills v. Bowyer's Soeiety, 3 K. & J. 66 ; Hamilton v. Bankiii, 19 L. J., Ch. 307.) An arbitrator may receive evidence upon matters denied by one of the parties to be in difference, and, provided his award does not exceed his authority, it will not be thereby invalidated {Arhuckle v. Price, 4 Dow. 174) ; and he may inquire into collateral matters neces- sary to decide the matters submitted. {Eastern Counties Bail. Co. V. Bohertson, 1 D. & L. 498.) If a party to a reference objects that the arbitrator is entering on the consideration of a matter not referred to him, and protests against it, and the arbitrator neverthe- less goes into the question and receives evidence on it, and the party, still under protest, continues to attend before the arbitrator and cross-exn mines the witnesses on the point objected to, he does not thereby waive his objec- tion, nor is he estopped from saying that the arbitrator has exceeded his authority by awarding on the matter. {Davics V. Price, 84 L. J., Q. B. 8 ; ante, p. 107.) The arbitrator before closing the hearing should receive all the evidence on both sides. {Bedintjton v. Southall, 4 Price, 232 ; Doihlimjton v. Hudson, 1 Bing. 384 ; PJiijU^s V. Ingram, 3 Dow. 669.) An arbitrator has no authority to say he has fully heard the case on both sides as against the desire of one of the parties to adduce further evidence. {Be Maunder, 49 L. T. 535.) When the parties require further time for the production of evidence it is generally PR()CEEI>IN(;S liKFOKK TllK AniUTRATOR. 1 I7 in the power of tlie arbitrator to dfcide whether the party • hm. xi. so ai)plyin;^ has inade out such a ease as ought to induce liim to put otT tlie further hearing or postpone his award {Iii)i(itr V. Joifcc, 1 Marsh. 404 ; (iiiuh r v. Curtis, 14 C. B., N. S. I'lS) ; although the courts do not regard this as a tixed rule applicable to every case [Sprttiiiitc v. Car- poiter, 3 P. W. 361); and the arbitrator ouglit generally to compl}' with the request, if it is made on reasonable grounds, {Sdloinon v. .S'o/o;«ou, 28 L. J.. Ex. 121).) It is in the discretion of the arbitrator whether he will give time for one of the parties to bring a material witness from abroad. {Gimh-r v. Curtia, aupra.) And when an application was made to arl)itrators to afford time to ol)tain and examine a witness who was absent, and they honestl}' (though erroneously) exercised their discretion as to the materiality of his evidence, and refused time, the court would not set aside the award. {Larrhiii v. KUis, 11 W. R. 281.) Notes of the evidence should Ije taken by the arbi- Notes should trator, even though the case is short. {Croom v. (im-e, 2") L. J., Ex. 2<)7 ; 1 H. .1- N. 14.) It is said that an arbitrator may consult men of .Vii.itrator's science in every department where it becomes necessary ![*X iK-reonT {Cdlnhniiaii Rail. C'n. v. Lnrhhart, 3 Maccj. 808, per iV skill and Lord "Wensleydale) ; and though he cannot agree before- hand to be bound by whatever opinion another man may give, for that would be a delegation of his authority, he may submit a question to another person of skill or science and adopt the opinion given thereon as his own {Eincrif V. U'aar, o Yes. 846 ; 8 Yes. 504; antr, p. llo), but only if he forms his own judgment upon it ami believes it to l)e correct. {Kmh v. ]l'illi(inix, 24 I.. J.. Ch. 531; 4 De G. M. .^- (i. (;74.) Under an authority to arbitrators to call in a competent person to assist them in the valuation of the stock and jiroperty of a partnership, it is no objection to their award that they l2 148 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XI. Legal assist- ance. have availed themselves of the assistance of such a person in deciding on the partnership accounts ; the arbitrators by adopting in terms the opinions of such person do not constitute him an umpire, but make his opinions their own, and their award cannot be impeached on that account. {Anderson v. Wallace, 3 C. & F. 26.) And so, where matters in difference being referred to two arbitrators, the parties consented that they might in case of difficulty consult a third person, who was named, and the arbitrators did so on one out of the whole number of questions arising in the investiga- tion, and they adopted the opinion which he gave them upon it, without, as far as appeared, exercising any independent opinion, and made their award on the whole of the matters referred, it was held that the award was not thereby invalidated. {Whitmore v. Smith, 31 L. J., Ex. 107; 8 Jur., N. S. 514.) When, however, it is desired to obtain the assistance of a valuer, or scientific or skilled person, on a matter of fact, the regular and proper way to do so is to examine him as a witness. {Anderson v. Wallace, supra, per Lord Brougham ; Hopcraft v. Hickman, 2 S. & S. 130.) An action on a builder's account being referred to a master, it was held that he was entitled to appoint a surveyor to report as to value, but that he must receive the report in the same way as other evidence, and could not refuse to hear additional evidence tendered by the parties. {Gra/j v. Wilson, 35 L. .J., C. P. 123; L. E., 1 C. P. 50.) A lay arbitrator may consult counsel on the admis- sibility of evidence, or as to the framing of his award {Re Hare, 6 Bing. N. C. 158 ; Dnhson v. Groves, 6 Q. B. 637) ; or may take an opinion upon a point of law {Holland V. Cassidij, 57 L. J., P. C. 99 ; 13 App. Cas. 770) ; or he may employ a professional man to draw up his award so as to make it good in point of form {Fcthcrstone PROCEEniNGS ItEFOnt: THE ARKITRATOU. ll'J V. Cix'jiir, \) Ves. iu : Bub.r v. Cottcrill, 18 L. J., g. J}. Chaj-. XI. 345; GalUm-nij v. Krifircrth, '23 L. J., C. T. 218), but it should not be the solicitor of either of the parties, {lie Uuih'nt()y the defendant that ho did <^'hu. xi nut intend to be present, one of his reasons heinj,' that on account of the non-admissibility of certain depositions, wliich the arbitrator hud not rejected as evidence, no award he could make would be valid, and another reason l)eing that the notice (seventeen days) was too short ; the arbitrator was held to have acted rij^ditly in proceeding; r.r parte, though he had not warned the defendant that if he absented himself the arbitration would proceed. (Scott V. Van Sandaii, C Q. B. 237.) Objections on the ground of want of notice will be waived by attendance at subsequent meetings. [Bii/nall v. Gale, 9 I>ow. G31 ; 2 M. & G. 830.) The evidence being closed, the arbitrator should in- Case clospd, form both parties that he considers the case closed, {^\,l"ionii'ca! ' and that he shall proceed to make his award. (Peter- sun V. Ai/re, 23 L. J., C. P. 121). ) "Where arbitrators who had proceeded in a reference informed the defendant that they would suspend their proceedings till the books of account had been referred to, it was held that afterwards making an award in his absence, without examining the books of account, was ground for setting it aside. (Pepper v. Gorham, 4 Moore, 148.) So where arbitrators promised to hear certain witnesses and made their award without doing so (Earl v. Stocher, 2 Vern. 251) ; or refused to hear evidence tendered while the case was still open, {lie Maunder, V.) L. T. 535.) When the case has been formally closed the arbi- Hc-ojiening liiitor may, if he think tit, allow the production of "-'*^***- further evidence (Bi;inall v. Gale, siij>ra), or he may refuse to re-open the case. (Ilenniii'j v. Purher, 11 W. Tu 328.) ( 152 ) CHAPTEE XII. THE AWARD. Time within which award must be made Sect. 1. — Form and General Requisites of an Aicavd. Chap. XII. The evidence on both sides being fully heard and the ease closed, the arbitrator proceeds to make his award. It must be made within the time limited for that pur- pose. If he has until a certain day, " until " will be construed as inclusive {Knox v. Simmonds, 3 Bro. C. C. 358; Kerr v. Jeston, 1 Dow., N. S. 538); and if he has a certain length of time " after " matters are re- ferred, the day of reference is excluded. {Re Highani and Jessop, 9 Dow. 203.) A limitation in "months" simply, will be construed as lunar, not as calendar, months. {lie Sicinford, 6 M. & S. 226; and see Simpson V. Ma>-f/efson, 17 L. J., Q. B. 81 ; 11 Q. B. 23.) A reference under a statute which contains a limitation in "months" means calendar months, unless words be added showing lunar months to be intended. (52 & 53 Vict. c. 63, s. 3.) The arbitrator has no power to shorten the time given by the submission. {Re Morphctt, 2 D. & L. 967.) The arbitrator is not bound to make an award, not- withstanding he has held several meetings. {Lewin v. Holhrook, 11 M. .^ W. 110; Craicshay v. Collins, 1 Swanst. 40 ; 3 ih. 90.) But he may contract to give his award upon the matter, and he is then as much bound to do so, as the parties are to abide by his decision. {PapiM v. Rose, 41 L. J., C. P. 187 ; L. Pi., 7 C. P. 525, per Kelly, C.B.) When arbitra- tor bound to award. TIIK AWAI;I). I'Ni It is not necessary to the validity of an award tliat it Ciui-. xii. should be in any precise form of words or make use of ponn of ih.- any technical expressions (Kanllii/ v. Star, 4 Dow. -'^^r'' \'2S) ; it is enough if it clearly sliow that the arbitrator has finally decided on the matters submitted to him. (Lock V. VtiUi(uin/, 5 B. viv: Ad. (iOO, jxt Parke, J. ; Airlicr V. Otnn, 9 Dow. H41 ; JinnUirc v. Christ's Hns- jiital, 2 Dow., N. S. 1(54 ; Lair v. Blcukhnrrow, '28 L. J., C. r.. '2S ; U'hitrinod V. TattcrsaU, 1 A. I'c E. 4!>1.) Even an award in the form of an opinion has been held sutttcient (MatHaii v. Troircr, R. Sc M. 17) ; so has an award of a sum in favour of one party and a re(iuest to the other party to pay. (Smidi v. Jlartley, 10 C. B. 800.) But a letter from the arbitrator to the partits, in which he said, " To meet the circumstances of the case in a liberal manner I propose that Mr. V. shall pay Mr. L. 10/.," was held not to be an award, but a mere recommendation. {Lock v. Vidliaiinf, 5 B. X- Ad. . 1.",:, the awrtitl, the arhitmtur may adopt such foriuahties as Ciiap. Ml. he chooses, or ma}' make a verhal award. {lInnHDn v. lAversi'iUje, 2 Vent. 242; lianUii;i v. ]]'(><»l, Barnes, .'54; (kites V. Bromell, G Mod. 100, 17(j ; 1 Salk. 75; lUxrts V. Watkins, 32 L. J., C. P. 21)1.) This now, however, Wh.n re- ai)))lies only to awards in inirsuance of submissions which '.i""''''.\.'° '•♦^ 1 1 -^ i 111 writing, lire not contained in some document subject to the Arl)itration Act, IH.S'l. For schedule 1 to tlial Act, ch (<•), provides that " the arbitrators shall make their award in writin<:j." We have indicated {(intc, pp. 8, 87) that this applies to a single arbitrator. Clause (<■) in the same schedule says " the umpire shall make his award," but does not say that it shall necessarily be in writing. The chief statutory enactments for arbitration provide fur the awards being made in writing. An award under the L. C. C. Act, 1845, or the Railways Clauses Act, 1845, must not only be in writing, but must have the declaration made and subscribed by the arbitrator be- fore entering on the reference annexed to it when made (8 .S: 9 Vict. c. 18, s. 33 ; 8 & 9 Vict. c. 20, s. 134) ; and under the former Act must be delivered to the promoters of the undertakhig (s. 35). The award is usually signed in the presence of an Attesting: attestmg witness. Where there are two or more arbitrators, all (or the J'»i»t nrbitm- majority required by the submission) must execute the t'xecuu' to- award {i'nitcd Kiuijdmn it'r. Aasiiraitn' Associatitni v. K*'*''*"""- Houston 189GJ 1 Q. B. 5G7) at the same time and place and in the presence of each other {M'ailc v. l>(>iiliii'j, 23 L. J., g. B. 302; 4 E. .^ B. 44 ; FauIs v. IViUiams, 24 L. J., Ch. 531 ; 4 De G. M. .t G. G74 ; a,it>', p. Ill) ; though omission to do so would not be fatal, as the court, on application, would send it back to the arbitrators to be re-executed. {Anniini v. Ilarthii, 27 L. J., Ex. 145.) Where an award purported on the face of it to be the award of three arbitrators, but it was signed by two only, 156 THE LAW OF ARBITRATIONS AND AWARDS. Chai'. XII. yet, as by the submission it was to be by .the three or any two of them, it was held a good award of the two. {White V. Sharp, 12 M. & W. 712.) If the submission be to perform the award of the arbitrators and their umpire, it would seem that an award by the arbitrators alone is bad {Hetherimjtoi v. liohinson, 4 M. ^^ W. 608 ; 7 Dow. 192) ; and where the reference was to the award of two persons named, and of such person as they should nominate before they pro- ceeded to act, or of a majority of them in case they could not unanimously agree, it was held that no award of the two could be good until the third had had a full oppor- tunity of joining in it, and had declared his dissent from it, or withdrawn from the reference. {Re Templeman and Fwrd, 9 Dow. 962.) "Publishing" When the submissioii provides that the award "shall tv"" the b^ made and published ready for delivery to the parties " award. on a day named, it is considered to be published for the purpose of making it valid when executed, though no notice has been given to the parties {Hcnfree v. Bromley, 6 East, 309 ; Brooke v. Mitchell, 6 M. & W. 473) ; and " ready for delivery " means delivery on request, for it is " ready " as soon as it is made. {Rohisony. Calwood, 6 Mod. 82 ; Freeman, v. Bernard, 1 Ld. Eaym. 247 ; Vrale V. IVarner, 1 Saund. 327 b; Wilson v. IVilson, ih. 327 c.) But for the purpose of setting aside the award it is only considered to be published when notice that it is made is given to the parties, and time only begins to run from then. {Brooke v. Mitchell, SKpra.) If the submission is that the arbitrator shall deliver his award to the parties it is not complete until actual delivery, and where it is to be delivered to either of the jyarties it must be delivered to each or it is not binding. {Hungate's Case, 5 Eep. 103 ; Block v. Pair/ rave, Cro. Eliz. 797.) A parol award is capable of " delivery," viz., a declaration of it to the parties, or either of them, THE AWARD. l..i if they desire it. In cases where a parol award is Chap. Xll. surticient, so soon as the arl)itrators have apjreed upon their award, it is, according to an old case, ready to he delivered. {Oatrs v. BronitU, (J Mod. 1C>(), 110.) Until the arl)itrator has finally made up his mind, his determination upon a matter is not an award. Signmg minutes of an award as instructions would not he considered an award. {Jtlinidcll v. Birttnnil/, 17 Ves. 282.) In a case in which a verhal award would have heen sufficient, it was held that an intimation hy the arhitrator to one of the parties, in the ahsence of the other, of what he intended to award, was not in- tended as a declaration of his final mind. {Thompson v. Millrr, 15 W. R. 353.) The usual practice after the award is made is to give Awanl df- notice to hoth iiarties that it is readv for deliverv, to- ^'*t''"'^'l \'\ '■ , ' ' ' partv tiiKMig gether with a note of the arhitrator's fees, leaving it open it hi'i. to either party to take up the award. The stamped aMard is handed to the party who first applies for it and pays the fees. An unstamped copy is generally given to the other party. In the case of a reference under the L. C. C. Act, 1M45, the award is, under section 35, delivered to the pro- moters of the undertaking. If the landowner takes up the award, and pays the umpire's fees, he cannot recover them from the company. {Karl of Shrewshimj v. Wirral lUiiliraijs Conimitttr [181)5] 2 Ch. 812.) Formerly, when an arhitrator had e.xecuted a paper as An awanl and for his award, and it purported on the face of it to |,i\'"^.'a. '^ he his award, then he was functus ojficio, and could not of his own authority remedy any mistake or hi under that he had made in executing it. {Moninc v. Pulnwr, 40 L. J., Ch. 8; L. 1!., C. Ch. 22; Brook v. Mitrh.Ii I) M. vlv: W. 477.) Thus, where an arl)itrator had made a mistake in the calculation of figures [Irrinr v. Klnon, 8 East, 54), or had put the plaintiffs instead of the 158 THE LAW OF ARBITRATIONS AND AWARDS. Chai'. XII. defendant's name in the direction to pay costs {Ward V. Dean, 3 B. & Ad. 234), or had executed an engrossed copy which omitted some words contained in the draft award {Mordue v. Painter, supni), he could not correct the mistake, even within the time fixed for making his award, unless by consent of the parties. If he made such an alteration, the alteration was nugator}^ as though it were by a stranger, and the award as originally written would stand good, if the original matter were still legible. (Henfrce v. Bromley, 6 East, 309.) Exceiit to Now the arbitrators or umpire, acting under a sub- correct clerical niission by consent out of court, have power "to correct error or slip. . '' . , ^ in an award any clerical mistake or error arising from any accidental slip or omission." (Arbitration Act, 1889, s. 7 (c-).) An alteration made by a stranger in an award, will not affect it, but leaves it in the state it was before such alteration. {Treiv v. Burton, 1 C. & M. 533.) Where a mistake other than such as above noticed has been made the court or a judge may send the award back to the arbi- trator to be amended. (Arbitration Act, 1889, s. 10 (1).) Stamping an An award must be properly stamped, for though an award. omission or defect in this respect is no ground for setting the award aside (Preston, v. Eastirood, 7 T. E. 95), yet an application to enforce an award will not be granted until the original is properly stamped. (Hill v. Slocomhe, 9 Dow. 339.) It may be stamped at any time on paying the penalty. As a rule, when a document on the face of it does not appear to be an award, it need not be stamped as such ; therefore, where the defendant had said that if a miners' jury should say that a shaft down which a horse had fallen was his, he would remunerate the plaintiff, it was held that the verdict of the jury given in writing did not require an award stamp. {Sijlray v. Wltite, 1 M. & W. 135.) If two persons agree to be THE AWAim, l'}\) bound 1)V the opinion of counsel, the opinion is not liable Cmm \ii. to an award stamp. (Ih. ; Boi/il v. Kiniiirrnoii, '1 A. it E. 184.) Where there are several parties to an instrument of submission, having a community of interest in the sub- ject-matter referred, if the award be stamped with one stamp it is sulticient. {Goodsoit v. Farlics, (5 Taunt. 171.) The following are now the stamps to be impressed upon awards, under 54 & 55 Vict. c. 39 : — > 30 ,, , 40 „ 100 „ 200 „ 500 750 And where it exceeds £1.000, and in any other case not above provided for 1 15 It will be observed that the stamp is not in respect of the sum awarded, but of the " amount or value of the matter in dispute." If the award is not an "amount or value" the duty is one pound tifteen shillings ; so, if the award is partly an " amount or value " and partly something else. An award may be in the form of a special case stated Sp,-.i.ii .-ase. for the opinion of the court. But, to assist arbitrators, the Arbitration Act, IHM'.), and the rules of court have 160 THE LAW OF ARBITRATIONS AND AAVARDS. Ch«t.. XII. By way of awarc^ Exhansts arliiivaLoi's powers. Appeal from judgment on. Costs of appeal on. enabled them to take the opmion of the court by stating a special case, pending the award. It will be convenient to consider together the difference in the two kinds of special cases. Under section 7 of the Arbitration Act, 1889, unless the submission express a contrary intention, the arbitrators or umpire, under a reference by consent out of court, have power *' to state an award as to the whole or part thereof, in the form of a special case, for the opinion of the court." The power thus given to state a special case applies in the case of an arbitrator acting under the L. C. C. Act, 1845, or other statutory reference. {Ante, p. 72.) "Wlien an arbitrator has made his award in the form of a special case he has exhausted his powers, and the opinion of the court determines the rights of the parties. (Be KirJdeatham Local Board [1893' 1 Q. B. 375 ; 62 L. J., Q. B. 180.) An appeal will lie to the Court of Appeal from a decision of the divisional court on an award in the form of a special case stated by an arbitrator. {Bidder v. North Staffordshire Bail Co., 48 L. J., Q. B. 249 ; 4 Q. B. D. 412.) It is an appeal from a final, not an interlocutory, order {Sliuhrook v. Tuffnell, 9 Q. B. D. 621 ; 46 L. T. 749 ; 30 W. R. 740), unless the matter will have to go back to the arbitrator whatever way the court decides, in which case it is to be treated as an interlocutory order. {Collins v. Vestri/ of Baddiiic/ton, 5 Q. B. D. 368 ; 42 L. T. 573.) Under section 20 of the Arbitration Act, 1889, the Court of Appeal has power to deal with the costs of an appeal on an award in the form of a special case, not- withstanding the reference is under the L. C. C. Act, 1845 — section 34 of which is superseded. {Be Gonty and Manchester, Sheffield, i(r. Bad. Co. [1896] 2 Q. B. 439. The case of Bie Holliday and the Mayor of Wakefield, 20 Q. B. D. 699, is no longer applicable.) THR AW.vnn. inl Any referee, arbitrator, or umpire may, at any stage of the proceedings under a reference, and shall, if so directed by the court or a judge, state in th'3 form of a special case for ths opinion of the court any (piestion of law arising in the course of the reference. (Arbitration Act, 1881), s. 10.) The referee may, before the conclusion of any trial before him, or b}' his report under the reference made to him, submit any question arising therein for the decision of the court, or state any facts specially, with power to the court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the court may direct ; and the court shall have power to require any explana- tion or reasons from the referee, and to remit the cause or matter, or any part thereof, for re-trial or further consideration to the same or any other referee ; or the court may decide the question referred to any referee on the evidence taken before him, either with or without additional evidence as the court niav direct. (R. S. C. Order XXXYI. r. r,2.) This, by rule o5 r of the same order, now applies to any matter referred to an arbitrator. Section 10 provides for a case being stated at any time before the award is made. It contemplates a proceeding bj' the arbitrator for the purpose of guiding himself as to the course he should pursue in the reference. {Re Knifiht and Tahcrnaclc Pernuinoit Bitildiiifi Society [1S92] 2 Q." B. 613 ; 62 L. J., Q. B. 33.) If he does not voluntarily state a case, he may be compelled to do so by the court. There is no power to compel the statement of a case by an arbitrator who is appointed under the Building Societies Acts (57 & 58 Vict. c. 47, s. 20), or under the Friendly Societies Act, 1896. (59 & 60 Vict. c. 25, s. 68.) It is not a condition precedent to the right to order a A. M Chai". .\II. S]k; ial case arbitration. Sulnnitliii^' nut'stious to tne court. Arbitrator niny state o.ijw voliintarilv ConijH'lli'il t) state. Evprossion of opinion on 162 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XII. the point not a cimdition to an order. Application for order to state casf. Awaid niailu pending application. Question of law. No appeal. Costs. Procedure on case. case to be stated, that the arbitrator shall have indicated in what way he will decide the point raised. {Re SjyiUrrs and Bahn- "1897] 1 Q. B. 312.) The application for an order to state a case is by summons in chamliers. There is an appeal from the decision of the judge to the Court of Appeal. (See Judicature Act, 1894, s. 1 (4).) If, pending an application to the court to compel arbitrators to state a case, they proceed and make their award, it would appear that the court might remit the award under section 10 of the Arbitration Act, 1889, to enable the arbitrators to state their award in the form of a special case. All that the arbitrator can remit to the court is a question of law, and he must find affirmatively the facts upon which the law depends. [North and South Western Jimction Rail. Co. v. Brentford Union, 60 L. T. 274; 58 L. J., M. C. 95.) The jurisdiction of the court under this section is consultative only. The opinion expressed by the court is not an order, and there is no appeal from it {Re Knight and Tabernacle Permanent Building Society [1892] 2 Q. B. 613), difiering in this respect from a special case by way of award. {Ante, p. 160.) As it is not an order it does not appear to be affected b}^ the Judicature Act, 1894, s. 1 {h) (v). Unless the order directing a special case to be stated reserves to the court power over costs, the court cannot deal with the costs of a special case. They are prima facie in the discretion of the arbitrator. {Re Knight and Tabernacle Building Society, supra.) If the case is stated in an action it should be filed in the Filing Department, Central Office ; if in a submission out of court, in the Associates' Department, Central Office. If stated for the opinion of a judge of the Chancery Division it will be assigned to a judge at the time of filing. TIIK AWARn. K',3 Where a verdict is taken at nisi jiriux, and the arhi- < "ai. xii. trator has merely to certify tlie amount of damaf^'es for c. rtifi iiDitiinitoii, (5 Taunt. 501) ; but he need not draw it himself. {TililiKtt v. Aiiihlcr, 2 Dow., N. S. 077.) As property in land will not pass by an award, the arbitrator must direct a conveyance, when the object of the reference is to make any change in the ownership of land (Jolnisim v. ]l'ils(}ii, siij)ra), though a direction for the delivery of possession of land may be enforced by the court. Where an arbitrator in settling a deed had done so in a manner exceeding his authority, Kay, J., held that the court had jurisdiction to settle the deed, instead of referring it back to the arbitrator. (Ju-crshrd v. Krcn^Jixl, SO W. l\. 732 ; 40 L. T. 61)0.) Besides the implied power of an arbitrator to give Express directions as to matters in dispute, an express power is r^^^ r to give often inserted in submissions. Where the arbitrator "is to determine," or ''shall have power to determine," Avhat he shall think fit to be done, he is not bound to direct affirmatively that something shall be done unless he shall so think fit {Aii;iiis v. Hfd/nrd, 11 M. iS: W, Hi); XichoUs v. Jones, 20 L. J., Ex. 275 ; Ex. 373) ; though it may frequently happen that such a power must be construed as compulsory, or the award would be bad, as not being final. {Ross v. Cli/tau, i) l)ow. 350; but see Gvcnndd V. E(hiecnmhe,l Q. B. 001 ; 14 L. J., Q. B. 322.) "When authorized to give directions the arbitrator Din-ctions must take care that they are not in excess of his j.^.'vTcr^llJvcD'*' authority ; thus, where an action in which the plaintiff claimed a right of way (not a carriage way) was referred to an arbitrator to direct in what manner the road in question should (if at all) i)e enjoyed by the plaintilT. and the arbitrator awarded that the plaintilY was entitled to a ri'.'b.t of way. including a carriage way, it was held 170 THE LAW OF AEBITRATIONS AND AWARDS. Chai'. XII. bad as exceeding his authority. (Hooper v. Hooper^ M'Cl. & Y. 509.) In Bonner v. Liddell (1 B. & B. 80), there was an agreement for a lease of a coal mine for sixty-three years from the 1st May, 1801, the lessee to be allowed three years for winning the colliery without payment of rent ; and an arbitrator, being authorized to give such directions for a lease according to the terms of the agreement as he should think fit, directed a lease of sixty-three years from 1804 ; it was held that he had exceeded his authority, and consequently that the award was bad. Where a submission empowered the arbitrator to decide how, and by whom, and in what manner, a certain pump, yard, hedge, and ditch, respectmg which disputes had arisen, should in future be enjoyed and occupied, and who should have the care and manage- ment thereof ; and the arbitrator, after finding that the pump was the exclusive property of one of the parties, subject to an easement in it by the other, was held not to be authorized to partly dispose of the property in it to the other, so as to make the two disputants tenants in common. {Boodle v. Davies, 3 A. & E. 200.) But under a power to the arbitrator to decide the right to a certain stream of water claimed in the action, and to regulate the use of it in future, and to order and determine what he should think fit to be done, it was considered that the authority to regulate the flow of the stream in dispute incidentally and necessarily empowered the arbitrator to affect the enjoyment of other rights of the parties, and to luake regulations respecting the flowing of the water in the stream in question, notwithstanding they interfered with the former enjoyment of other streams not the subject of dispute. {Winter v. Letlihridge, 13 Price, 533.) Should direct When an arbitrator finds a sum to be due from the payment ot Q^^g ijartv to the otlier he should give an express direc- suin found . . . , . , due. tion for its payment, otherwise the party liable cannot be compelled by attachment to pay {Edgell v. Dalliinore, TFli: AWARD. 171 11 Moore, 541; 3 Bin<,'. r.:34 ; Ilnphins v. Daviat, 1 C. Chap. Xll. M. cV: 1{. 84G; ^cott v. U'Hli(iin.s, 3 Dow. 508), thouj^h he may by an order in the nature of a judgment. The arbitrator may (but need not of necessit}') ai)point I'owii- to order nifiit Ijv IlUIlt" the time and phicu of i)aymt'nt of the amount awarded inital to be paid 1)V one i)artv to the otlier ; and mav award 1 """"'' -""■>■ ■; , • • notes, in:. payment by mstahnents. (Kn,l:iil v. iritlunll, 2 Keb. 83H.) If he order payment at a future day, he may direct the party hable to pay, to give a promissory note (linoth V. Ganu'tt, 2 Stra. 1082), or a bond in a penaUy, but not with a surety. (C'oohi: v. Wltoncm)'], 2 Saund. 387.) When an arltitrator directs payment l»y one party of Imlemuity. charges for which the other is Hable, he may require a bond of indemnity to be given by the former to the latter. {Brown v. iratsoii, (> Bing. X. C. 118; Goddanl V. Mansju'ld, 19 L. J., (,). B. 305.) An arbitrator may award one sum generally in respect May auar.l of all money claims submitted to him, unless the .sull[*for lus- submission provide, or there is some legal necessity, fur tinct claims, his awarding separately — as, for instance, to determine the right to costs. (H< ]]'ltitirortl( and Ilidac, L. II., 1 Ex. 251; 35 L. J., Ex. 14It : ami see llid*- v. Bri/d(, 1 Ex. 151 ; k; l. J., Ex. 2:.(;.» Sect. 3. — An Anard iinist r.rtrnd to all Matdrs rc/crrcil. Unless an award extend to all matters submitted to Ea.h distinct the arbitrator it is entirely void. If several distinct K.^eVided.* matters are referred, and the arbitrator omit to decide ui»on any one of such matters, the whole award is vitiated {lianddll v. llanddl, 7 East, 81 ; 7/' ludison and liailston, 1 B. i\: Ad. 723 ; Jinnrs v. Fcniir, 4 My. iV: C'r. 150) ; thus, for instance, where an action containing two counts, one on a promissory note, the other on an 172 THE LAW OF ARBITEATIONS AND AWARDS. Ch.vi-. XII. account stated, \Yas referred, an award on the former count, but containing no adjudication on the latter, was held bad {Gishome v. Hart, 5 M. & W. 50) ; so where an action of ejectment was referred, and the arbitrator found that the lessor of the plaintiff was entitled to a part of the lands claimed, setting them out by metes and bounds, but said nothing as to the residue, the award was held bad. {Doe v. Horner, 8 A. & E. 235; Wijhes v. Slupion, 8 A. & E. 246, n.; Stone v. PhilUpps, 6 Dow. 247.) And where it was referred to an arbitrator, 1st, to determine all actions between the parties ; 2nd, to settle the sum to be paid for articles on certain land ; 3rd, to ascertain what rent was to be paid by the plaintiff to the defendant for other land; and the arbitrator made his award on the two first things referred, but took no notice of the rent, the award was set aside. {Randall v. liandall, siqjra.) Where an action was referred to determine not only matters in difference between the plaintiffs, on the one hand, and the defendants, on the other, but also to adjust certain claims of the defendants inter se, the award was set aside for not dealing with the claims of the defendants. {Turner v. Tamer, 3 Euss. 494.) When silence The question sometimes arises, when several distinct a decision. matters are included in the submission, whether an award can be supported as an adjudication upon all the matters when it is silent as to some. This depends, in the first place, upon whether the particular matter in respect of which the award is silent is one from its nature requiring an afiirmative decision. If it is not, then, secondly, whether there is anything on the face of the award to negative the presumption that the arbitrator intended his award to dispose of everything submitted to him. {Harrison v. Cresa-ich, 21 L. J., C. P. 113; 13 C. B. 399.) The old authorities had clearly established that if an award were made de j^/vt'^/f/.ssis, or in modern language "of and concerning the premises" (or matters THK AWARD. 178 referred), it would l)e presumed that the arbitrator Chai-. XII. intended to award on all the matters in difference. (III. ; ]}irhs V. Trippi't, 1 Saund. '.Vl ; Jrir<'ll v. Clirintic, 30 L. J., C. P. 168; L. !{., 2 C. P. 20(; : Pcrru v. Mitrhrll, VI ^r. .1- W. 803.) The later authorities have estahlished that the expression { is cjuite un- necessary, and that the courts will assume that the award was made on all matters submitted to the arbitrator unless it appear on the face of it that it was not so made. (Jic lUiUc of Beaufort and the SnuDisra HnrJxnir Tnisfirs, 20 L. J., C. P. 241 ; 8 C. B., X. S. 140 ; Herf. V. Mrtropolitmi Rail. Co., 48 L. T. 869, prr Pluddle- ston, B., affirmed, 50 L. T. 6.) The followinfj was laid down as the true rule by Parke, B.. in Jlarrimni v. Crran-'tch, fnijira : " Where there is a further claim made by the plaintiff or a cross demand set up by the de- fendant, and the award, professinpj to be made of and concerning the matters referred, is silent respecting such further claim or cross demand, the award amounts to an adjudication that the plaintiff has no such further claim, or that the defendant's cross demand is unten- able ; but where the matter so set up from its nature requires to be specifically adjudicated upon mere silence will not do." And where, in a submission under the L, C. C. Act, 1845, the arbitrator was to determine what ■ sum should be paid for the purchase of certain land, and what, if any, sum for severance damage ; and he, bj* his award, after reciting the submission, and that he had considered the matters so referred to him, awarded — but not de pvtemissis — a sum to be paid for the purchase of the land, without saying anything as to the severance damage, the court held the award good ; and that the arbitrator, by his silence, had nega- tived any right to compensation for severance damage. {Re Duliv of Beaiifiirt and the Suanaca Ilarhoiir TrusteeSy mipra.) 174 THE LAW OF ARBITRATIONS AND AAVARDS. Chap. XII. Silence, however, is not sufficient where the nature of When silence the claim requires an affirmative decision, not a decision. j^ ^-^q arbitrator is to direct how the costs are to be paid the award will he bad if he omit to direct as to them. {Richardson v. Wordi'ti, 5 Ex. 613 ; 19 L. J., Ex. 317.) If the matter about which the award is silent were the subject of an action which it was neces- sary to dispose of in order to distinguish what costs were to be paid silence would not do. (JeircU v. Christie, 36 L. J., C. P. 168, per Willes, J.) So, if the arbitrator is to find on an}^ fact, and omit to do so ; thus, it being disputed Avhether A. had been in partner- ship with B., and if so, whether and when it had been put an end to, an award that if a partnership ever existed it was terminated by consent, was held to be bad as not deciding the question of the existence of the partnership. {Bhear v. Harradine, 7 Ex. 269 ; 21 L. J., Ex. 127.) Where a submission authorized the arbi- trator to set aside certain deeds, and gave him power to direct what should be done, and he awarded that certain specified deeds should be set aside, " if and so far as the same are in force, and if and so far as I have jurisdiction to set the same aside, and if I have no jurisdiction to set them or any of them aside, I declare that the rest of my award is yet to stand," was held an inconclusive award. {Nickels v. Haneoek, 7 De G. M. & G. 300.) Under a submission of a dispute on a building con- tract, where the arbitrators were to award on alleged defects in the building, on claims for extra work and for omissions, and to ascertain what balance, if any, might be due to the builder, an award ordering a gross sum to be paid to the builder, without any decision on the defects, was held bad. {lie Rider, 3 Bing. N. C. 874.) Award .sufii- Where the submission is of all matters in difference, piSiVgall"' ^vithout specifying them, the arbitrator need only make THK .wv.vnn. 1 1 o his award of such matters as he had notice of, for Chap. XL though tlu-re he other tilings in controversy not inchidod .lifr.nnecH of in the award, vet, if tlie arl)itrator liad no notice of ^^''j^'' f''^'- • trator ha'l them, liis award is pjood. (Hisden v. Iiuflet, Cro. EHz. notice. 838 ; Hers v. Watn-x, 10 M. \- W. 208 ; ,S/////// v. Jnlni- sou, 15 East, 218; Dai/ v. Jioiiniii, 8 ]3in<,'. N. C. 21!> ; Duhr of Bniu/ort v. U'rlrli, 10 A. \- E. r)27.) If, how- ever, he do not make his award of all thin^^'s within the submission of which he had notice the award will be void (MitcheU v. Staveleif, 16 East, 58 ; Stone v. PliiUi]ip>t, T) Dow. 247) ; and on its beinp; clearly shown that these thinf,'s were brought before him as matters in dispute (Martin v. Thornton, 4 Esp. 180; Krshinc v. Wnllare, 12 W. 11. 181 ; Pinkrrton v. Caslon, 2 B. e^- A. 704 ; Hancock v. llcul, 21 L. J., Q. B. 78), and that he did not award upon them, the court will set aside the award. (Sumuil v. Cooper, 2 A. c'i: E. 7o2.) ]3ut it must appear clearly upon the award (Aitclicsnn v. Canicif, 2 Bing. 199) that the arbitrator did not take such matters into his consideration and include them in his award. (Dnnn v. ^Varltcrs, 9 M. .t W. 298 ; 7.V Gillnn and The Merncfi Sarviatum Co., 3 B. .'v: Ad. 498 ; lie Marsh, IC) L. J., Q. B. 880.) "\Miether the award specifically notice every matter in difference or not is immaterial, provided the arl>itrator has in fact decided u))on all mat- ters in difference submitted to him. {Graji v. Gwcnnap, 1 B. .1- A. lOfi ; Ilaj/Jlarw Kllis. (> Bing. 225 ; ante, p. 172.) If several distinct matters and cross claims are referred, and the arbitrator simply award payment of one sum, it will be understood to mean in respect of all the matters referred to him. (lie Gillon and The Merseif Xarltiation Co., supra.) So where a cause and all matters in difference were referred, and the arbitrator awarded that, on a settle- ment of all the matters in difference, there was due a specified sum from the defendant to the plaint ilT, it was held sufficient. {Bradleif v. Phrljis, 21 L. J., Ex. 810.) 176 THE LAW OF ARI^ilTRATION'S AND AAVAEDS. Chap. XII. "When a power only to decidi; Misapprehen- sion of arbi- trator. Deciding be- tween all tile ])arties. If a power only is siven to an arbitrator to award upon any matter, be is not bound to make any award as to tbat (Anri„s v. Eedford, 11 M. & W. ^ ;Wriqhf- sou V. Bi/H-afer, B M. & W. 207) ; and if he award de- fectively upon it. tbe award will not thereby be^rendered bad, but the defective part will be rejected. (Nicholh v. Jovps, 6 Ex. 373 ; 20 L. J., Ex. 275.) It has been held that an agreement that an arbitrator " shall and may " award upon certain matters is imperative upon him, and that he must. (Cnimp v. Adney, 1 C. & M. 355.) It will not save an award, void throucch omitting to decide some of the matters submitted, that the arbitrator supposed the omitted matters M-ere not in difference, or not within the scope of the submission, (Samuel v. Cooper, 2 A. & E. 752.) Thus, where all matters in difference were referred, and the arbitrators declined to award concerning a certain claim to an annuity, as they thought they were precluded from so doing by reason of a suit pending in chancery concerning it, the award was declared void. (Bowes v. Fernie, 4 My. & Cr. 150.) The award will be bad if it omit to adjudicate between all the parties to the reference. (Winter v. WJiife, 2 Moore, 723.) Thus, where three persons, A., B., & C, on one side, and D. on the other, submit all differences and disputes between them to arbitration, an award relating to disputes between A. and B. only of one part, and D. of the other, is bad for omitting to decide between C. and I). (Harris v. Paynter, Eolle, Ah. " Arb." 0. 8 ; and see Rees v. Waters, 16 M. &. W. 263 ; Turner v. Turner, ante, p. 172.) Sect. 4. — An Award must he certain. An award to l)e binding must be certain, that the p-arties may be able to gather from it clearly what they THK Aw.vnn. 17' have to perform, and that the court may see that the Chai-. XII. arbitrator lias not exceeded his authority. It must be certain both as to tlio tinding itself and as to the things ordered to be done. The courts will strive to hold an award to be cer- wiicn nn tain, and will not presume it to be uncertain. (Wood i'l!ia'eurijiia*' V. (irilJitli, 1 Swanst. 52.) The uncertainty must ex- pressly appear on the face of the award or by averment. It will be sullicient if it is certain to a common intent, that is, if it show such a certainty as was contemplated by the parties in the subiiiis-^ion {nttickiiiH v. Coldoufih, 1 Burr. 274) ; and if, on a fair and reasonable inter- pretation of the terms employed, a man of common un- derstanding can comprehend the meaning and intention of the arbitrator. {Canjcij v. Aitchcson, 2 B. it C. 170 ; 3 D. & B. 433.) If, by manifest implication, or necessary import, that Miuiifest appear which, if positively expressed, would render the ""'' award good, that is sufficient to support it. {Linnem v. Williamson, Bolle, Ab. "Arb." B. 16; Builji v. Curliiui, 20 L. J., Q. B. 235.) Thus, a direction to a mortgagee to re-assign mortgaged lands will be sufficient, though the period for which the re-assignment is to be, is not named, the courts presuming that the whole interest mortgaged is intended (Ilossr v. Jlodgrs, 1 Ld. Ba3'm. 233) ; and, a direction tliat a nuisance on the defendant's soil is to be removed, without saying by whom, has been held certain, as the courts will presume that the owner of the soil is the person intended. {Arinitt v. lircanir, 2 Ld. Baym. 107(5.) An award, on a reference of a cause and all matters in difiference, that " nothing is due to the plaintiff," was held sufficiently certain, and equivalent to a finding that the plaintiff had no right to recover in the action (Dichins v. Jdrris, 5 B. & C. 528) ; so, in a reference of an action in wliich there were several speciiic claims, A. N 178 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XII. Matters not in controversy. Award in terms of sub- mission. was an award that " the plaintiff has no cause of action." (Haijllar v. Ellis, 6 Bing. 225 ; 3 M. & P. 553; Jackson v. Yahsley, 5 B. & A. 848.) But, an award that the defendant had overpaid the plaintiff a specified sum, was held sufficiently doubtful to justify the refusal of an attachment. {Thornton v. Hornby, 8 Bing. 13 ; 1 M. & Sc. 48.) An award will not be bad for uncertainty upon a point about which there is no controversy between the parties. {Cargeij v. AitcJieson, 2 B. it C. 170 ; Phimmer V.Lee, 2M. & W. 495.) An arbitrator fulfils his task if he decide the very matters submitted and about which the parties differ {Miller v. De Burgh, 19 L. J., Ex. 127) ; what the parties treat as certain and ascertained, he may assume to be, and deal with as such ; and though the award might to a stranger be ambiguous or uncertain, it will be valid if it determine such matters as it could have been fairly intended by the submission that he should decide. Where an arbitrator had power to settle at what price the defendant should purchase the plaintiff's " property," and the arbitrator fixed a certain price at which the defendant should purchase the plaintiff's " said property," it was held that this was sufficiently certain, as the property was not a matter in difference. {Round V. Hatton, 10 M. & W. 6G0.) An award upon a submission of difi'eronces between an administrator and the next of kin of his intestate, directed that the administrator should pay to the next of kin their distributive shares, and it was held sufficient ; the degree of relationship, and consequently their aliquot shares of the intestate's estate, not being shown to be in dispute. {Perry v. Mitchell, 12 M. & W. 792.) On the same principle, where an action of debt on a money bond, to which the only plea was payment by a co- obligor, was referred, and the arbitrator ordered a verdict iiiiiniitoiiitl jHtint. THK AWAltl). 179 to be entered for tlie plaintiff, without statin<^ wliat Cuw. XII. amount was clue on the bond, the award was held suOi- cient. iCai/nw v. Watts, 3 D. A: l\. 221.) Ill an action against an executor, where the arbitrator found a certain sum due to the plaintiff on tlu- balance of accounts, and awarded that the defendant should pay it, out of assets, on a given day, it was held to be suffi- ciently certain without stating expressly that defendant had assets to that amount. {Lave v. Jloncijbourne, 4 D. ct E. 814.) If an award completely decide a matter, the addition Diifction on of an imperfect direction which may be rejected as surplusage will not invalidate the award. (Miller v. Di Bimjh, 19 L. J., Ex. 127 ; 4 Ex. 80!) ; liartini v. Ramon, 3 M. .^- W. 322.) But, it will l)e otherwise, if the matter which is left in uncertainty, is so connected with the rest of the award as to be a material part of the whole thing awarded, although, if it had been originally omitted, the award would have been suihcient. (Ilr Mar- shall ami Drrsser, 12 L. J., Q. B. 104 ; 3 (,). B. 878.) A })riiii('i facie uncertainty or want of conclusiveness Awanl miIH- in an award does not vitiate it, if it be capable of being ].l^^ {,^ ri„- rendered certain or conclusive, — the nrnxiiii iil crrttnit 'l-ifl oeit.iin. aid within a certain time from the date of the award, and the award bore no date, it was held sufficiently certain, as the time would be computed from the delivery of the award. {Armitt v. Jinainr, 2 Ld. Baym. 1070.) So, where a bond was ordered to be delivered up to be can- celled within a certain time from the date of it, without stating the date, it was considered sufficient. (licll v. (iij'ps, 2 Ld. Baym. 1141.) In lie lioi/eH and Bbiek (13 C. B. O'o'l; 22 L. J., C. V. 173) an award that A. N 2 180 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XII. should " forthwith " execute conveyances to C, and that C. should " forthwith " execute releases to A., was up- held, as the latter foriluritli was to be construed to mean as soon as the former direction had been obeyed. And, a direction to pay money or execute a release, is suffi- ciently certain though it mention no time, for it must be performed within a reasonable time. (Freemaii v. Bernard, 1 Salk. 69.) An award that one party to a reference re- lating to a voyage should pay his share of the expenses of the voj-age, and allow on account his proportion of the loss which should happen to the ship during the voyage, was held good, as both expenses and loss might be re- duced to a certainty. (Bcale v. Beale, Eolle, Ab. " Arb." H. 14.) So, an award that two persons should pa}- a debt in proportion to the shares which the}^ held in a ship {Wohlenherg v. Lagcman, 6 Taunt. 254), and, a direction for payment of "interest since the last settlement of accounts " {Plummer v. Lee, 2 M. & W. 495 ; 5 Dow. 755), are sufficiently certain. And, an award was held certain, that directed one party to pay to the other all such monies as he had expended about the prosecution of a suit, for that might be ascertained by showing, in fact, what had been laid out. {Ibtnson v. Liverscdgc, 2 Tent. 242; Fox v. Smith, 2 Wils. 267.) But a direc- tion to pay all reasonable expenses which the plain- tiff has sustained about a suit {Bargrarc v. Atldns, 3 Lev. 413), or to pay the charges spent in making an award (Puikynj v. Bullock, cited 3 Lev. 413), is void for uncertainty. Award upon n It being referred to two surveyors to fix the price of no^dflilv'^ land, and they stated the amount in their valuation, but defined. directed that if there should prove to be a mistake in the admeasurement an addition or deduction should be made at the rate of 84/. or 42/., according as the land lay on one side or the other of a certain line, which they did not accurately define, the valuation was held Tin: AWARD. 181 void for uncertainty. {ILtprraJt v. Ilichinun, *2 S. A: S. Chai-. XII. 130.) ' " ^ If, in awarding a payment uf money, the arliitrator, Awnnl ^'iving instead of naming the amount, indicate the manner in ascertaining Avliifh it is to be estimated, it will be good ; but the tl'(^ mon.y to manner must be precisely pomted out, for an award l^etween A. and B., concerninf; certain quarters of malt delivered by A. to B., that B. should pay to A. so much for each quarter of malt as a quarter of malt was then sold for, was held bad, because no mention was made of any market or place where the price was to be esti- mated. (IlnrHt V. JSaiiihy}(l;i(', Bolle, Ab. " Arb." Q. 7.) This decision is not aft*ected by ll'adillc v. Doininiaii (12 M. A: W. 5(52), for there tlie arbitrator had only to decide whether or not the plaintifl' was to be allowed the value of certain articles at the market price of pijj; iron, as distinguished from machimiy, and, as he decided affir- matively, that was such a certainty as the parties may fairly be considered to have contemplated, without his naming the market. The court will look to the evident or necessary inten- Intention of tion of tlie arbitrator, in deciding upon the certainty of Ubc^regankni. an award : thus, where an action of ejectment was re- ferred, and the arbitrator, after reciting the submission, awarded thus, " I award and determine that the ver- dict in the said cause be entered for the lessors of the plaintiflf," — instead of for the plaintiff, — the court held that the arbitrator must be understood to have finally determined the cause in favour of the plaiiitill". {Ldir v. Jilachhumnr, 23 L. J., C. P. 28 ; 14 L\ J). 77 : M'i/,h v. Caiinrl, 24 L. J., C. P. 41 ; 15 C. B. 107.) liut there must be a reasonable precision, and an A^^yl \'a.l >f '■ ' .loulitful what award is void for uncertamty that leaves in doubt what it iliciiics. it decides, rj/., an award that orders one party to pay so iinicli money as is due in conscience {li'dtsmi v. ]l'atiiy them, some or one of them is uncertain. {Bai)i- forth V. Hamer, 25 L. T. 247.) Where an action of assumpsit and all matters in difference were referred at nisi prlus, with power to the arbitrator to direct a verdict amount. decides. decides at all. THK AWARD. 188 to be entered for either party, and the arbitrator directed Chai'. XII. a verdict to be entered for the plaintiff, without sayinj^ for what amount : the ccjurt lu-ld tht; award bad for uncertainty, aUhough it also awarded that the defendant was inde])ted to the phiintiff in 2(»0/., because that sum might have been due with respect to the matters in difference, and not in the cause. (Mcrtiit v. linnn-, 4 A. k E. W73 ; (5 N. c't M. 201.) A fortiori, an award which leaves it in doubt as to or wiiether it any of the questions whether they were meant to be and have been disposed of, cannot be maintained. {Waketichl V. Uaui'lhi Hail. Co., 13 W. E. 823.) A suit having been connnenced to rescind an agreement, it, and all matters in difference between the parties, were referred to arbitration. The award merely directed as to the suit, that eacii party should pay his own costs, but made no further determination as to the agreement, and it was held to be bad. for although the court considered that it was prob.ibly the arbitrator's intention to put an end to the suit, they could not say, in point of law, that he had done so. (lie Trihc and Cjtjierton, 3 A. v't E. 2!)5.) An award that one of two persons shall do an act is Award in the void for uncertainty {Lmcrcncev. Hodf/soii, 1 Y. A: J. 16), conditional', but, an award that a person shall do one of two things, is not uncertain if either thing is capable of being performed. (Lee v. Klkiiis, 12 Mod. 585 ; Siiiuiiondii v. Suainc, 1 Taunt. 549; OUljidd and JVibiwr's Case,! Leon. 140; ]l'harton v. Kin;i, 2 B. ct Ad. 528.) And an award, conditional upon the performance or non-performance of a certain act, is not uncertain : thus, an award that one party should pay the other 20.s. on condition that each should ac(piit the other (Lin field v. Fernr, 3 Lev. 18) ; and that A. should pay 105/. on a certain day, and if he did not, that he should pay 110/. on a certain other day (Rolle. Ab. " Arb." H. H), have been held good. If the award direct any acts to be done the tlirections Dirfctions 184 THE LAW OF ARBITEATIONS AND AWARDS. Chap. XII. must be specific. Awarding costs witliout ascertaiiiiii'r must be clear and specific, that they may be strictly obeyed ; therefore an award that a party shall put up certain fixtures, without defining their value or descrip- tion, is bad. {Price v. Popkin, 10 A. & E. 139.) And, where in a reference of an action for polluting a water- course the arbitrator was to direct how the water should be enjoyed in future, and he awarded that the defendant should take all reasonable precautions to prevent the water from being rendered less fit for use by his business of a dyer, and that all refuse water from the defendant's works should, at the defendant's expense, be passed through filters, so as to be thereby effectually cleansed, so far as the same could be cleansed by the ordinary and most approved process of filtering, this was held to be uncertain, for not specifying what particular precautions should be employed. (Stoneheicer v. Farrer, 14 L. J., Q. B. 122 ; 6 Q. B. 730; but see per Erie, J., Johnson v. Latham, 20 L. J., Q. B. 238 ; and see Sharpe V. Hancock, 7 M. & G. 354.) An arbitrator, who had to direct the apportionment of a trust estate amongst the persons entitled, after finding a certain sum due from a party, directed him to pay or account for it to the trust estate ; his award was held uncertain, in not specifying to whom and in what proportions the money ought to be paid. {Be Tichicell, 33 Beav. 213 ; 3 N. E. 281.) And an award which, in directing the enjoyment of land in the future, directed that the parties should enjoy it as heretofore, was held to be uncertain. {Ross v. Clifton, \) Dow. 356.) But an award which recited that the parties were joint tenants of certain lands, and ordered that they should make partition by mutual conveyance, was held good, though it did not specify what moiety or part the one should have and what the other. {Kniglit V. Burton, 6 Mod. 231.) In a reference of an action, either alone or with other matters, an award of costs or any specified proportion THK AWARD. 185 thereof, though the amount is not ascertained, is suffi- Ciiw. XII. ciently ctrtjiin, and in siu-h a case the master or otlier them, when officer of the court shall tax them, (Cdnic}/ v. AitcJnsoii, ^^■'■*"'"- 2 Ji. \- C. 170; Fox v. Smith, -J Wils. 1>C>7 ; lln},hn„ith V. Jniraliaiu, lU L. J., (}. ]1 145 ; in error, 82 L. J., g. 13. 28. k S. 1; Sharpe V. Mctropolitdit Distrirt ]:,iil. Co., IK L. J., (^). ]^>. M25 ; 50 L. J., Q. B. 14 ; 4 Q. 13. D. (•)4r) ; 5 App. Cas. 425 ; Lcivis V. Uossitcr, 44 L. J., Ex. 18(>.) If the arbitrator, without specifying definitely the amount of costs, give the rule for computing them, the award is sufficiently certain. {Iliu'iiiis v. ]]'ilJrs, 3 M. ct Ry. 382.) "Where an arbitrator finds facts to raise a question of Finding; facts law he should find them with such certainty that the ,,uestion of court may draw their conclusion of law, and he should '""• not leave an}' fact to be intended l)y the court. (Watson on Awards, 201).) Sect. 5. — An Ananl miifit be jiiial. An award must finally determine all matters contained Award must in the submission, requiring decision, and if it leave the final decision of some of the matters to be ascertained in the future, it will not be binding on the parties. But where differences having arisen between two railway companies, proprietors of joining lines, as to the inter- change and transmission of traffic, it was, under the provisions of a special Act, referred to arbitrators to determine what arrangements should be made by the two companies or either of them for affording i)roper facilities for such interchange and transmission, and the arl)itrators made their award giving specific directions as to future traffic arrangements, but no directions as to the length of time for which such arrangements were to last, it was held not to be thereby defective, as the directions 186 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XII. Final as the case admits. Arbitrator can make but one award, would continue until new arrangements were made under the arbitration clause in the said Act. {Eastern Union Rail. Co. V. Eastern Counties Rail. Co., 22 L. J., Q. B. 371 ; 2 E. & B. 530.) And an arbitrator, having to decide upon the depth at which the defendant was entitled to keep a weir, awarded that the defendant was entitled to maintain his weir to the depth of fourteen inches and no more, and added that he had caused marks to be placed, which marks pointed out the depth the defendant was to keep his weir ; it was held that the award sufficiently pointed out the depth of the weir, and was sufficiently precise, although it made no provision for the case of floods, or for regulating the depth of the paddle in the defendant's weir by which the water could be let off. {Johnson v. Latham, 20 L. J., Q. B. 236 ; 2 L. M. & P. 205.) Where two parties agreed to be bound by the opinion of a professional man upon the construction of an Act of Parliament, and he gave his opinion in favour of one, such opinion was considered final and conclusive, though it recommended the printed statute to be compared with the Parliament roll before the matter was settled, under a doubt whether the statute was not misj)rinted. {Price v. Hollis, 1 M. & S. 105.) If the award be as final as the nature of the thing will admit, it is sufficient. {PJtilij^s v. Knie/htlei/, 2 Stra. 903.) So, if it award the very thing that the parties have agreed shall be done. {Miller v. De Burgli, 19 L. J., Ex. 127 ; 4 Ex. 809.) An award must be one entire instrument or direction, for an arbitrator can make but one award, even within the time limited for his award, unless by express or implied authorization in the submission. {]Vri(jhts()n v. Bywater, 3 M. & "\V. 206.) Thus, where by an order of reference a cause and all matters in difference between A. and B. were referred, and by a subsequent order, made THK AWARD. 1^7 after the first reference had commenced, it was directed Chai-. XII. that C. should ho made u party thereto as if he liad been an orij^'iniil piirty. and that a cause between A. and C. and all niatlers in difference between A., 13., and C, each and every of them, jointly and severally, should be referred to the same arbitrator ; and the arbitrator made two awards, in one of which he awarded that A. was indebted to B. without mentioning C, and in the other that A. was indebted to C. without mentioning B. ; it was held that both awards were bad, and that the arbi- trator had not properly performed his duty, as there was no one award determining all matters in difference between all the parties. []l'intrr v. Mliitr, 2 Moore, 72:i.) But where a general verdict was taken for the plain- tiff' on all the issues in an action, subject to a re- ference of that and another cross action between the same parties in which issue had not been joined, with power to the arbitrator to make an awanl or certilicate, and the arbitrator delivered two papers containing two certificates, it was held that it might be intended that both were made at the same time, and, if so, they would be one instrument containing the decision of each cause, written on separate papers for the purpose of being applied to the separate causes. {Smith v. Jirecc, 6 D. & L. 520.) If empowered by the submission the arbitrator may unless em- make several awards. {Di>nsr v. ('<>.,;■, 'A Bing. 20; {j"/"'!^"";;),,^^^ Wrvihtsim v. lii/iratcr, 3 M. A:. W. 11)1).) .\rbitrators in sion tt) make a reference under the Railway Companies Arljitration Act, 18511, may make several awards, each on jiart of the matters referred. (22 it 23 Vict. c. 51), s. 21.) We have seen {ante, sect. 3) that where several matters are referred, and some only are decided, the award is bad, and it is bad because it is not a final settlement of the matters in difference between the parties. {Saiiutcl V. Cooper, 4 N. & M. 520; lloss v. Boards, 8 A. A: E. 290.) 188 THE LAW OF AEBITEATIONS AND AWARDS. Chap. XII. Conditional finding. Awarding a voluntary perl'ormauce is bad. rroviso void- ing the award is bad. Where an arbitrator set out the facts on the face of his award, and then awarded in favour of the defendant, but concluded that if the court should be of opinion upon the facts that the plaintiff was entitled to recover, then he awarded in favour of the plaintiff, it was held that the arbitrator had come to a final conclusion, and expressed his own opinion, and that the last clause might be rejected. {Barton v. Hanson, 3 M. & W. 322.) An award leaving the result conditional upon the voluntary performance of an act by the one party is generally bad. {Crofts v. Harris, Carth. 187.) Thus an award that if A. give up his shares B. shall pay him a certain sum is bad ; it should be that A. shall give up his shares and that B. shall pay the sum {Baillie v. Edinhurgh Gas Co., 3 C. & F. 639) ; and a direction that the plaintiff should accept a bill of sale was held bad because it did not direct the defendant to give the bill of sale. {Clapcott v. Dai-jj, 1 Ld. Eaym. 611.) But an award of a lease of certain premises to the defendant, and providing that if the rent awarded to be paid by him, were not paid, the award should be void, was held good on the ground that the conditional award became absolute if the defendant paid the rent, and if he did not he lost the enjoyment by his own default. {Fnrscr v. Proicd, Cro. Jac. 423.) An award containing a proviso that upon the happening of a subsequent event (whether the event is within the control of the parties or not) the award shall be wholly void is bad, as not being final {Kinge v. Finis, Sid. 59) ; thus a proviso that if either party were dissatisfied with the award and within a specified time paid a small sum to the other the award should be void and the parties Ite at li)>erty to proceed against each other as before the award, was held not final. {Sherry v. Richardson, Pop. 15.) TIIK AWAUn. IHf) Where the award is to he altered hy the suhseqnrnt fnAp. XII. oath or proof of one of tlie parties, this vitiates the whoU; An awur.i t.. award ; thus an award, tliat if the i)hiintiff on account '•'"'''''"■'l '•)' * sul'si'nufiit prove certain articles against the defendant, then he i>roof. shall pay so much money as the plaintilT was damnified therehy. is not final. (Sell)i/ v. liiisHtll, Conih. 450.) So an award depending; on something to he suhsequently ascertained is had : thus an award that a certain sum should he paid in lieu of tithes provided the whole lands were suhject to tithes ; hut if only suhject to tithes accordinpj to a specified terrier then a different sum, was held void, {(iootlr v. ll'atirs, 20 L. J., Ch. 72.) Any delegation or reservation of their authority hy Delegation or arhilrators will vitiate their award, for an award would J,ift'i[oritv'' '^ not be final that left anything to the future judgment or power of the arbitrators or of any other person ; thus a direction to leave so many trees on land, for house-hote and hedge-hote, as the arbitrator upon advice with counsel shall appoint {Thiinir v. liifihy, Cro. Jac. 314); or a proviso that doing of the a certain act awarded shall depend upon the after-given consent of the arbi- trator {Linl«--- a deed which is in the custody of another (Lee v. Klhiiis, VI Mod. ')H')) ; or that he shall procure a stranger to he hound with him as a surety. [TJtirHhjj V. IL'lhot, 3 Mod. 27'2.) liut it is no objection to the award that it is ditiicult for the party to perform it from the accidental narrowness of his circumstances, as if he be to pay 20/. when he has no projierty. And an award of an impossible act with a possible alternative is good. {Wharton v. Kinr/, 2 B. & Ad. 528.) If an act awarded is possible at the time of the award, the party is bound by the award though the act after- wards becomes impossible by the conduct of himself or a stranger. (Com. Dig. " Arb." E. 12.) An award must be reasonable Instances of un- Awanl un- reasonable awards are furnishd in the old cases. Thus •'^'^o"''^!'-'- an award that one party shall give a horse or release his right to certain land in satisfaction of a trespass, or erect a stile on the land of another, is so unreasonable as not to be binding upon the party, {lioss v. Bmirds, 8 N. \- P. 382.) So an award that one party shall serve the other two years in satisfaction of an action (Rolle, Ab. y " Arb." 13. 12), or pay the other 300/. to repair his honour for calling him a bankrupt knave. (3 Kep. in Ch. li\.) If one part of an award be inconsistent with the Contradic- other it will be bad, as where an arbitrator awarded ^°^-'' 192 THE LAW OF ARKITRATIONS AND AWARDS. C^-^^- -'^"- that A. should pay B. 100/., and that both should give general releases, and that at a subsequent thue B. should pay A. 201., the award was held bad. (Storke v. De Smeth, Willes, 66.) So m an action founded on fraud, where the arbitrator expressly acquitted the defendant of all fraud, and then awarded against him. {Ames V. Mihcard, 8 Taunt. 637.) But an award that the defendant should pay to the plaintiff 50/. towards the costs of the cause and reference, and that the plaintiff should pay his own and the defendant's costs of the same, has been held not to be inconsistent. (Seckham v. Bahh, 8 Dow. 167 ; 6 M. & W. 129.) And where a cause and all matters in difference were re- ferred, costs to abide the event, and the arbitrator found several of the issues inconsistently, the court held the award good, regarding all the findings after the first as hypothetical and only for the purpose of distributing the costs. {Duke of Beaufort v. Welch, 10 A. & E. 527.) In a reference of an action of debt the pleas of nunquam indebitatus and payment may both be consistently found for the defendant, for if on a trial the plaintiff had failed in proof of his case, and the defendant proved payment, the verdict would be entered for the defendant on both issues. {Malonij v. Stocklei/, 2 Dow., N. S. 122 ; 4 M. & G. 647 ; and see Cooper v. Lairfidon, 9 M. & W. 60 ; 10 M. & W. 785.) In an action of trespass referred by order of nisi priiis, to which the defendant pleaded not guilty, and secondly a justification, the arbitrator (who was a layman) awarded "that as the defendant had not proved his plea the verdict ought to stand," and then added a number of reasons which could not be con- sidered satisfactory, the court held the adjudication sufficient, and declined to consider the sufficiency of the reasons assigned by the arbitrator. {Archer v. Owen, 9 Dow. 341.) THK AWAUn. l'>3 If an nrl)itrator direct an act to be done which is Chai-. XII. contrary to the \ix\\ the award is so far had. (Ahirr v. iii,m,,i1. Sarill, ') Taunt. 404; Tnrui'r v. Sirainsoii, 1 M. i'^ \\'. 57'2.) Thus an award dircctin;^' a party to commit waste or a trespass, or to do an act anionntinfj to a crime, is had. But it seems that if the doin^' of an act is against some rule of practice merely it is not hiul. ilii' limhu'r, 2 B. t'v: A. 1)01.) If a sum of money l)e awarded to 1)6 paid on a Sunday the award is not had. (Hohdcll V. Milhr, () Binrj. X. C. 2!l-2 ; 2 Scott, N. R. 103.) If a sum awarded appear on the face of it to have arisen out of some ille<:;al transaction the award will he had jm) tanto. {Auhert v. Maze, 2 B. & P. 371 ; and see Strrrs v. Ldshlci/, 6 T. B. CA.) Though it has been held that the illepility must he apparent on the face of the award. (Cramp v. Sj/moiis, 1 Bing. 104.) Where an award recited a clause in the submission which provided that documents should be admitted in evidence without a stamp, l)ut it did not appear that the arbitrator had admitted any mistamped documents, the award was held good. {]'liilli))s v. Ili'iii'mit, 20 L. J., Q. B. 357.) Formerly great stress was laid u\u)n the necessity of .Mutimlityin mutuality in an award, but the decisions on this point "'" "^^"" * have long ceased to have any practical value, for it is ditlicult to conceive any case in which, the submission itself being binding, an award extending to all matters submitted, and not exceeding the submission, would be set aside on the ground of want of mutualitv. Sect. 7. — Aumdhal in Part. An award may be good in part and bad in pari Aw.iri i.ii m when the subject is clearly capable of being separated ; J,'" „| \^f and that part which is good may be enforced, provided ri'si.lue if all A. o 194 THE LAW OF ARBITRATIONS AND AWARDS. Chai'. XII. matters well decided. The good and the bad must be distinct. Severability of excessive awards. Where the whole award to be per- formed by one of the parties. it be in itself a final determination of all matters sub- mitted, and perfectly distinct from and independent of that part which is bad (Candler v. Fuller, Willes, 64 ; Aiiriol V. Smitli, Turn. & Kuss. 121 ; Addison v. Gray, 2 Wils. 293; Lee v. Elkins, 12 Mod. 585; Stone v. Phillipps, 6 Dow. 247 ; Kendrick v. Davies, 5 Dow. 693) ; and the faulty direction will be set aside or treated as null. The bad part must be wholly severable from the rest of the award. If the Ijad part is so mixed up with the rest that it cannot be rejected, the award is void altogether. (Duke of Buceleiich v. Metropolitan Board of Works, 39 L. J., Ex. 137 ; L. E., 5 Ex. 229, j^er Blackburn, J. ; Be Tandy and Tandy, 9 Dow. 1044.) "I always find a difficulty," said Lord Denman, C.J., "in separating the good part of an award from the bad. The arbitrator probably frames one part with a view to the other ; and each may be varied by the view which he takes of the whole." {Tomlin v. Mayor of Fordwich, 5 A. & E. 152.) This observation will indicate the difficulty of laying down any general rules as to the divisibility of awards. The most numerous class of cases in which the doctrine of divisibility has been allowed to operate, is where the arbitrator has exceeded his authority by awarding on matters, some within, and some beyond, the submission. If the award is for one of the parties to do several things, some of which are beyond the submission, the award as to the latter is mere surplusage. Thus an award directing the defendant to remove certain hatches, part of which belonged to him absolutely, but in other parts of which he had only a share ; at the same time providing that the award should affect the latter only so far as his interest extended, was held good as to all l)ut that part in which the defendant might show his inability to proceed. {Rr D<)ddi)iyto)t and Bailivard, 8 L. J., C. P. 331 ; 7 Dow. 640.) TIIK AWARD. ion If the award is to be performed partly by the one and Chah. XII. l)artly by tlie other party, Init the thinR awarded beyond Whorc mutual the submission forms no i)art of the consideration for or l'f'f""iiiiiice« '■ ;i\viiit' L'<"'>*i.) If an arbitrator have no power over costs, and he Kxccss a« to assume in his award to give directions as to costs, such " ' directions do not vitiate the award, but will be rejected and the other portions enforced. {Aitrhixmi v. Ciiniei/, o 2 196 THE LAW OF AEBITRATIONS AND AWARDS. Chap. XII. 13 Price, 639 ; 2 Bing. 199 ; KendrU-h v. Dark's, 5 Dow. 693 ; Wilson v. Doolan, 5 Ir. Jur. 136.) or on matter Where an arbitrator having power, but not heing not necessary jjound by the temis of the submission to give directions as to a particular matter, gives a direction which is invahd, the whole award is not thereby vitiated, but the invalid direction may be treated as surplusage. {NichoUs V. Jones, 20 L. J., Ex. 275 ; 6 Ex. 373 ; Lacis V. Piossiter, 23 W. E. 832.) Complete de- Where an arbitrator, having decided the actual matters by iinwar- ' ^^^ Controversy in terms which, if they stood alone, would ranted diree- amount to an unimpeachal)le award, proceeds to give a tions. ^ . . ,..11 , . 1 . dn-ection which he has no power to give, the excessive direction may be disregarded. Thus, where an arbi- trator without authority ordered a verdict to be entered, but the award disposed of all matters referred inde- pendently of the verdict, that part of the award was rejected and the rest held good. {Price v. Poplin, 2 P. & D. 304 ; Doe d. Bodii v. Cox, 15 L. J., Q. B. 317.) In like manner when the arbitrator, having found on all the issues, awarded a stct processus, having no authority to do so, this part of the award was held separable from the rest. (Jl^ard v. Hall, 9 Dow. 610.) Where an arbitrator, after directing the execution of certain works, and making a complete decision, pro- ceeded to give directions as to their future repair, the latter directions were rejected. {JolniHtan v. Cheape, 5 Dow, H. L. 2-17.) So where an action as to the right to the enjoyment of a watercourse was referred with all matters in difference, and the arbitrator gave some directions respecting the enjoyment of the watercourse beyond the submission, the court held the award to l)e bad quoad that part only, but good for the rest. {Winter V. Lethhridf/e, 13 Price, 533.) If the arbitrator make a complete and final award, but add reasons for his decision which are insufficient, the THi: A\VAi;i). r.iT reiisons will he rejected. (Archrr v. Oirin, \) Dow. J341 ; '"vi-. XII. and see He U'rinht, 1 Q. B. W.) If an award is complete and linal, a reservation of a Kx.t^., in future power to alter the award may be rejected. An [IXyr't'oaihl arbitrator to whom a cause and all matters in difference to the awanl. were referri'd, directed a verdict to l)e entered for the l)laintitf and certain works to be done by the defendant : he then added, that as disputes mi}.;ht arise respecting; the performance of the award, the plaintiff, if dissatisfied with it, mi^'ht (on giving notice to the defendant) bring evidence before the arbitrator of the insuflficiency of the work, and the defendant might also give evidence on his l>art in order that a linal award might be made con- cerning the matters in difference ; but if no proceedings were taken by the plaintitl' within two months after the work was done the award then made should be final, and he enlarged the time for making his final award for six months ; it was held that the reservation of future power by the arbitrator was bad, l)ut that the former part of the award was final and binding. {M. ]\\[) If there is any connection or inter-dependence Ciiai-. XII. between the good and the bad part they cannot be inu-r-flc- severed. When there is a cood award standing alone, l'"''"''"^'' "' - _ . f^ifOil iiinl bad but in a subseijuent part there is a reservation or dele- I'-nt. gation by the arbitrator of his autliority, which runs over the whole award, this latter part vitiates the whole award. (.S7.-/7,v v. 1 ><■ Siinth, Willes, (V.) ; I>riirh v. Sanmlfni, Cro. Jac. 584.) An award will be void if the decision of matters beyond his authority has affected the arbitrator's decision as to matters within his authority, (/w' MarshdU and Ditinier, 3 Q. 13. 878 ; 12 L. J., Q. B. 104.) So, it is presumed if the attendant circumstances make it obvious that the arbitrator would have altered his finding in the good part had he known that the remainder would be inoperative. ( 200 ) CHAPTER XIII. AWARDING ON AN ACTION. Chap. XIII. It must be borne in mind that the rules and observations Action in- hereinafter contained as to awarding on an action, apply eludes equally to awarding on a counterclaim, which is in the counterclaim. j. "^ £ >• k t c c a ^^ li. nature oi a cross action. And a reference of all matters in difference in the action," includes a counterclaim, {JVeall V. James, 68 L. T. 54.) Award should When ail action is referred the pleadings need not be what it de- ^' ^^^ ^^^ ^^^ ^^^® award. {Johnson v. Latham, 20 L. J., cides, Q. B. 236.) It is not necessary that the arbitrator should find for the plaintiff or defendant in the words of the issue ; it is sufficient if he decide substantially the question in dispute. {JVi/hes v. SJiipton, 3 N. & M. 240.) On the other hand it is sufficient if he find in the words of the issue (and this is the best and most proper way) ; he need not find in express terms for the plaintiff or defendant. (Allen v. Lowe, 4 Q. B. 66; 12 L. J., Q. B. 115; Stoneheicer v. Farrer, 6 Q. B. 730; 14 L. J., Q. B. 122.) Unless the terms of the submission empower him to do so, an arbitrator may not dispose of an action without showing in whose favour it is decided. As a general rule, M'here an action in which there are several issues is referred at nisi prius, the arbitrator should, if requested, direct how each issue is to be determined. {Woolfe v. Huoper, 6 Scott, 281 ; 4 Bing. N. C. 449 ; Williams v. ^Lmhdale, 7 M. & W. 134.) But an award on a suit in equity, that the suit should be dismissed, was held suffi- cient. (Knight v. Burton, 1 Salk. 75 ; Pcarse v. Pearsc, 9 B. & C. 484.) AWARKINfi ON AN ACTION. 201 When an action and counterclaini, with or without ''"vr. Mil. otlier matters in (lilVcrcnco, are referred (KIHh v. I>< wiim c.st.s Silra, r>0 L. J.. (J. Ji. :il>H ; (J (). H. ]). 521; Lmnl v. "I;'.'';; I,''.;;;. C'aiiijMl, 14 Q. Ji. 1). 821 : ') 1 L. .1.. (,). B. 281 ; Ahrhrd;,',- uV.t''r'inus' V. Fro^t, 17 (,). li. 1). cor.; r,r. L. .I.. (). li. 477), or an li,";!,'.''' ''"''' Action without counterclaim, hut in which there are several issues, or an action and oiher matters in dif- ference (Uairlf V. Bieur, 14 Q. Ji. ]). H41 ; 54 L. J., Q. B. 315), and the costs of the action are to abide the event, the arbitrator must find upon each issue, so as to enable the officer of the court to tax the costs for the party in whose favour each issue has been found. {Goutard V. Can; 53 L. J., Q. B. 55 ; 13 Q. B. ]). 5'.>H.n. ; Killnnn v. Kllhiini, 1:5 M. .V W. (;71 ; 2 I). & L. 33: bn>t>l,s V. J'ar.'O'lis, 13 L. .)., (,). Ji. 50; 1 D. & L. (VM ; Bourh' V. IJofiil, 10 M. iV W. 550 ; Doe d. Starllii;/ v. Hillnt, 2 Dow.. X. S. C.'.M : l'rm->in„ v. Anhh,,U, 11 M. & W. 477 ; Lewia v. Curhiris, 1 B. C. Bep. Kil ; and see Chap. XIV.) And he sliould so find, thougli not expressly requested to do so hv the i)arties {England v. Dmison/J Dow. 1052), and. whether he has an award or only a cerlilicate to make, (BniohH v. Partioim, supra.) And he may not order a utet ])rocc8sns, for then, as there is no decision in favour of either party, there is no legal event of the action on which the costs can be taxed. {Iliiiit v. Jlimt, 5 Dow. 442; Xarris v. Ikmid, 10 Bing. 507.) But if he award on all the issues, and then direct a 8tct pvoccsHua, the latter direction will be void as an excess of authority, but will not vitiate the award. {Wanl V. Hall, \) Dow. (ilO.) If, however, the parties agree among themselves that, to avoid iinding upon each issue, the arbitrator may, if he think there was no ground of action against the defendant, award a verdict for the defendant on all the issues, such an award will be good. {]\'u(hllr \. Jhiinnndti, 12 M. i^' W. 5(i2.) And where a verdict is taken subject to a reference to an 202 THE LAW OF AEBITRATIONS AND AAVABDS. Chap. XIII. S])ecific findings on the issues. Kefeience of action only — general find- ing, when sufficient. arbitrator who is to award on some specified matters only, lie need not find on the issues, or do more than decide on the particular questions. {Soicdon v. Mills, 30 L. J., Q. B. 175.) It is not always necessary for the arbitrator to find specificalhi upon each issue ; if it can be clearly inferred from the award in which way each of the issues has been found it is sufficient. {Humplirei/ v. Pearce, 22 L. J., Ex. 120; 7 Ex. 696; Wilcox v. Wilcox, 4 Ex. 500; 19 L. J., Ex. 27; Hohso7i v. Steicart, 4 D. & L. 589 ; Stonehen-cr v. Farrer, 6 Q. B. 730 ; Phillips v. Higgins, 20 L. J., Q. B. 357; Williamson v. Locke, 2 J). & L. 782 ; Armitagc v. Coates, 4 Ex. 641 ; Baker v. Cotterill, 18 L. ,J., Q. B. 345 ; 7 D. & L. 20.) Though the older cases (see Brooks v. Parsons, 13 L. J., Q. B. 50; ID. & L. 691), lay down the rule that each issue must have been specifically^ decided, the recent decisions of the courts have established the more lax rule above stated. In Humphrey v. Pearce {supra), Martin, B., said : " The case of brooks v. Parsons may now be con- sidered as overruled by no less than three decisions ; first there is Wilcox v. ]]llcox, which recognizes and adopts the principle of the decision of Erie, J., in Hohson V. Steu-art ,- and there is the case of Pliillij^s v. Hif/fjins. in which my brother "NVightman expressed his opinion that when there is a reference of a cause only the award is good, notwithstanding there is no specific finding on each issue, if it appear by reasonable intend- ment that all the issues have been determined in favour of the plaintiff. I am glad that the cases have been so decided, for it is plain that when an arbitrator awards that a i)]aintifi' is entitled to a certain sum the meaning is that he is so entitled upon all the issues joined in the cause." A difficulty in applying the above rule, and of dis- pensing with specific findings, except in the most simple Aw.vnniNr, on an action. 203 cases, is created l)y the law of pleailinj^s and costs iindur Ciiw. xiii the Jndic'ftture Acts, as the word "event" is to he read ilistrihiilivcly. and the costs apportioned acconhn^' to the results of the different issues. {Mifcrx v. Prfrirx, V.) L. J., (,). ]3. 2C)(; ; f) Ex. ]). ISO; (imitanl v. ('(in\ :>:\ ].. .1., (,>. J}, f).-,.) "Where to a dechiration consisting,' of three indebitatus counts there were pleas of non assunijisit, tender, set-off, and payment, upon which issues wove joined, the cause havini, the costs of the cause to abide the event of the award, the arbitrator found for the plaintiff' on the tirst, third, and last issues, and for the defendant on the second issue ; it was held that this was a sufficient ffndin^', and that it was not necessary there should be a distinct lindin^' on all the sui)-issues raised by the plea of non assumpsit upon each separate count in the declaration. {Adam v. Rone, 15 L. J., Q. B. 228 : 8 I). .I- L. 881.) So, where an action in which the declaration contained three counts, to which the defendant had pU-adcd not ^niilty, and to each of the counts various s[)ecial pleas which went to the whole cause of action, was referred with all matters in dispute, the costs of the action and of the reference and award to abide the event; the arbitrator awarded that the plaintiff' had good cause of action in respect of the second count, and was entitled to recover a certain sum for damages on that count, but that he had no cause of action in respect of the first and third counts; the award was lield good. {]\'illi. XI II. Xo general fimliiif,' when reference in- cludes matters outside action. Awar,t» not necessary for the arbitrator to find ui)on each issue "'^ '"^V"V ''", " ' . not iilmle tin? unless rofjiiested to do so. (I)iir/,ir(iii}i v. IfurriHini, 7 <^veiit ; Dow. 71 ; 4 ^^. \- \V. 4S-2 : Ilnniir v. Mills, 7 Scott, 27(».) Where an action is in respect of several distinct ,,r wlnrf Ismi.. matters, and before defence the action is referred, the !'"** "''^ '"'" 11-1 JOllH'll. arbitrator is not bound to bnd upon each matter, not- withstanding; the costs of the action abide the event, for before a defence is pleaded it is impossible to say wliat the issues will be ; it is suthcient if he decide in whose favour the action is detcnnined (Iharup v. I'mnnl:, •1 I), k L. H')i) : 11 M. \- W. 1 1'.) ; Craicshair v. )'nrl, ami Xnrth MhlUmd J:,iII. (',>., 21 L. J., Q. B. 274; and see NirJinlxiui V. Si/Lrs, 23 L. .1., Iv\. lUH) ; but he would act wisely by decidin*,' the matters separately as if they were in issue. An award made in two causes referred before plea that all further proceedinf,'s should cease and be no furtlier prosecuted, and that the defendant should pay a specified sum in full of all demands in tlie said causes, was held a sufficient determination of both causes. {U'tfiinr V. Ktlinnds, 12 M. vV: W. 708; nee Kanllci/ v- Sti'rr, 4 Dow. 42:i; 2 ('. M. Sc R. 327; Jlanliii;/ v. I-'ornhair, 1 M. tV; W. 415.) So it was formerly held that there was no necessity to find upon issues on a reference of a cause unless it was clear that issues had been so joined as to be capable of beinj; specifically disposed of ; and that on a reference after plea and before issue joined a specific tindmj:; on the issues was not necessary. {Smith V. lln'.-r, (\ D. i*;: L. r>20.) An uiiauthori/.ed direction that a verdict shall be rimutliori/cl entered for a specified sum for the plaintitT does not venlict. amount to a direction to the defendant to ])ay that sum, nor can the payment be enforceil by attachment ilhnihin V. Jintt, 2 A. ct E. 844; Ilairlnfaid v. .S7(»r/.y. 2 D. iV- L. '.)3()) ; thouj^h an action would lie upon the 206 THE LAW OF ARBITRATIONS AND AWARDS. ChaI". XIII. Arbitrator awarding damages should assess them. award, as the courts would treat it as an informal finding that the plaintiff was entitled to succeed in the action to that amount. {Everest v. Ritchie, 31 L. J., Ex. 350; 7 H. & N. 698 ; Law v. Blackburrow, 23 L. J., C. P. 28.) An award in favour of either party upon a claim or counterclaim for a money demand, or for damages, should state the amount he is entitled to recover. Thus in a reference of a cause in which there were seven issues, the costs of the award and reference to abide the event, and the arbitrator found for the plaintiff on two issues, neither of which covered the whole cause of action, and for the plaintiff on the others, but omitted to award damages, the award was held bad. {Wood v. Duncan, 7 Dow. 91.) And where a verdict for 1,000/. was taken subject to a reference, and the arbitrator found for the plaintiff but assessed no damages, and the plaintiff entered up judgment for the 1,000/., the court held that the plaintiff was entitled only to nominal damages. {Brown v. Somerset and Dorset Rail. Co., 34 L. J., Ex. 152.) But where an action on a money bond and all matters in difference were referred, and the arbitrator directed a verdict to be entered for the plaintiff, it was held sufficient, though it did not state for what amount ; for there was no evidence that any other matters than the penalty on the bond were ni difference, and if the plaintiff recovered a verdict it must mean for the whole amount of the claim. {Caynie v. Watts, 3 D. & E. 224.) Where a verdict was taken for the plaintiff subject to a reference of the cause and all matters in difference, the arbitrator having power to vacate the verdict or reduce the damages, and he awarded that the plaintiff was entitled to demand of the defendant 90/. in re- spect of the causes of action, and that the defendant was entitled to set off 35/. in respect of matters men- tioned in the plea of set-off ; it was held that the award sufficiently ascertained the amount for which the verdict AWAUl)IN(i t)N AN ACTION. 207 was to be entered, us nil that was necessary was to de- Chap. XIII. • liict one Sinn from the other. (I'lutt v. Hull, 2 M. it W. '.\\)1.) So an award in an action on a covenant, where there was only one breach, directin^^ a verdict to be entered for tiie plaintift' on each of the two issues raised by the pleas, with separate damages on each, was held sntlrtcient. as the verdict might be entered for the aggregate sum of the two separate amounts. (Smith v. F,stiiu»;i n,nL Co., 4 Bing. N. C. 23 ; 6 Dow. l'.)0.) An arbitrator may not award damages if he finds wiien aH.i- on a i)lea which covers tlie wliole cause of action and *"'V" '""'"* "" '■ ..." 1''*'" L'over- completely answers the plaintiff's claim, and if he does ini,' tlie cause the llnding as to damages will be rejected as mere sur- Iiamag"" "° plusage. {JVanrirh- v. Co.r, 1 ]). .t L. OSC ; 12 M. ,^ W. '^'ir-l*^'!- 774; S(ira;i(' v. AsJiiriii, 4 M. it "\V, 'u]().) Jiut if on a reference of an action, the costs to ai>ide the event, the arbitrator fhids for the defendant on a plea which covers the whole cause of action, it is no objection to the award that on other issues he finds for the plaintiff without tlamages ; in fact he should so find, (linns v. Cli/toii, 12 L. J., g. B. 2G5 ; 2 Dow., N. S. 1)83.) When a verdict is taken subject to a reference the Dimiajji's not irbitrator cannot (so far as relates to an action referred) Jn„ouuUaken. award payment of a greater sum than the amount taken on the verdict ; and if he do, no assumpsit by implica- tion will arise to pay, even to the extent of the amount so taken. (Bonner v. Charlton, f) East, 139.) But if an arbitrator award a greater sum than the amount of the verdict, and judgment is entered for the whole, and it ajipear that part of the sum is covered by a countervailing demand which never was a subject of dispute, so that only a balance less than the amount of the verdict is ultimately to be paid over, the court will reduce the judgment to the amount of the verdict and grant execution for the sum really due. (Prentice V. lord, 1 Taunt, l^l.) 208 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XII 1. Damages not limited when all matters in ilifieience referred. Awarding damages in the action and in the other matters sepa- rately. The court will not, after a verdict taken for the damages laid in the statement of claim, allow the claim to 1)6 amended so as to enlarge those damages, even upon affidavit that a greater debt can be proved before the arbitrator. {Pearse v. Cameron, 1 M. & S. 675.) An arbitrator should not direct either of the parties to an action to pay a larger sum tlian is claimed in the pleadings or particulars. But the particulars are not necessarily before the arbitrator even where the action is referred at jiisi ]>)-iiis ; therefore, if it is intended to limit a demand to the amount claimed by the parti- culars, they should be brought before the arbitrator. {Kenrick v. Phillips, 7 M. & W. 415.) If an action and all matters in difference be referred the arbitrator will not of necessity be confined to the amount of damages for which the verdict is taken, and if he award a greater sum the plaintiff will have a remedy under the award but not under the verdict. {Pearse v. Cameron, supra.) The older cases lay down the rule that where a cause and all matters in difference are referred, and the arbi- trator finds that the plaintiff' is entitled to recover, he must award how much is due in respect of the cause and how much in respect of the matters in difference {Lund V. Hudson, 1 D. & L. 236; Croshic v. Holmes, 15 L. J., Q. B. 125) ; but it is said they have gone to an extreme degree of strictness. {Bradleii \. Phelps, 21 L. J., Ex. 310, per Parke, B.) It is, however, advis- able to state in an award how much of the damages is for each, that it may be plainly seen that the arbi- trator has not exceeded the assigned limits in respect of the former {Taylor v. Shuttleu-urth, 6 Bing. N. C. 277; Taylor v. Marlineforo the entered up for either party, even though the submission xcu. empowered him to direct the entry of a verdict, and to determine what he should think lit to be done by either of the parties. [Auiius v. licdftml, 11 M. il- AV. 69; 2 Dow., N. S. 735 ; Tohj v. LoviLml, 17 L. J., C. P. 201 ; o C. B. 770 ; Lineriar v. Ponrr, 9 Ex. 417.) Frequently on the reference of an action, whether at nisi })riiiH or before trial, the arbitrator was empowered to direct the entry of a verdict. In such a case, if the A. p 210 THE LAW OF AKBITEATIONS AND AWARDS. Chap. XIII. Since the Judicature Acts. When order silent as to judgment. arbitrator directed the entry of a verdict, the party in whose favour it was given could sign judgment without any further order of the court. Under the Judicature Acts, before entry of any judg- ment after a verdict, a direction must be obtained from the court or a judge. To obviate this, usually, either an express power is given to the arbitrator to direct judg- ment to be entered, or the order provides that the party in whose favour the award is made shall be at liberty to sign final judgment. But, even if the order of reference is silent as to entry of judgment, the award is "equivalent to the verdict of a jury" (Arbitration Act, 1889, s. 15), and under Order XXXVI. rr. 50 and 55c, the arbitrator has the same power to direct that judgment be entered for any or either party as a judge of the High Court. And under Order XL. rr. 2, 6a, it is compulsory upon him to direct how such judgment shall be entered, and it shall be entered accordingly. If he omit to direct judgment in his award, he would appear to have power to do so sub- sequently ; and apparently a judge in chambers could supply the omission. {Macalpine v. Calder [1893] 1 Q. B. 545 ; 62 L. J., Q. B. GOT.) But this does not apply to a reference of the action and other matters in difference. {Darlington, d;c. Wagon Co. v. Harding [1891] 1 Q. B. 245 - 60 L. J., Q. B. 110.) Under Order XL, rr. 6 and 6a, any party may move to set aside the judgment and to enter any other judgment. ( 211 ) CHAPTER XIV. COSTS. Sect. 1. — Costs of the Reference. Ik the case of a submission by consent out of court, Cii\i'. Xiv. unless a contrary intention is expressed therein, "the -where refer- costs of the reference and award shall be in the discre- e"ce by con- . , , . . T i J 1 sent out of tion of the arbitrators or unipn-e, wlio may du'ect to and court, by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid or any part thereof, and may award costs to be paid as between solicitor and client." (Arbi- tration Act, 18S0, s. 2, sched. 1, cl. (/).) This applies to a submission made before the Act. {Re Williams and Stepney [1891] 2 Q. B. 257 ; (JO L. J., Q. B. 63-*).) It enables the arbitrators and umpire to settle finally the amount of costs to be paid to them, but for this purpose the amount must be stated in, and as part of , the award. {Re Stiphens and Liverpool, dc. In- sun.nce Co., 3G Sol. Jour., 4(54.) If fixed in the award, and the charges are extravagant, possibly the award might be set aside for misconduct. {Re Prehhle and Ruhinsnn [181)2] 2 Q. B. 602; 07 L. T. 267.) If not tixed in the award, the arbitrator's charges are liable to taxation. {lb.) An order of reference mixy be made on such terms as Where by to costs, as the authority making it thinks lit. ^Arbitra- tion Act, 1889, s. 20.) Where the whole of an action is referred to an ofticial Order silent— or special referee, and no provision is made as to costs, ^fJrr">a " ^ p2 212 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XIV. Order silent — action and other matters referred. Rule before Arbitration Act, 1889, where order silent as to costs. he has power to deal with the costs (Order XXXVI. r. ooh), and the same power is conferred on an arbi- trator when the action simply is referred to him. (Order XXXYL r. 5oc.) An order of reference hj consent not only of the action, but of other matters in difference, is not made under the Arbitration Act, but derives its validity from the consent of the parties. {Darlinr/ton Wagon Co. v. Harding, ^1891] 1 Q. B. 245 ; 60 L. J., Q. B. 110.) In such a case, if the order of reference is silent as to costs, but prior to drawing up the order there was a "submission " within the meaning of section 27 of the Arbitration Act, 1889, in the shape of a consent to refer, signed by the parties, their solicitors, or counsel {Aitken v. Batchclor, 62 L. J., Q. B. 193), the arbitrator would appear to have the same power over costs as one acting under a reference by con- sent out of court. If there is no such " submission " the authority of the arbitrator would appear to be the same as before the Act, when the order of reference was silent as to costs. Before the Arbitration Act, 1889, where an action was referred, and the order of reference was silent as to costs, there was a distinction as to the power of the arbitrator with respect to the costs of the action and those of the reference. As to the former, the power of awarding costs was necessarily consequent on the authority con- ferred of determining the action {Roc v. Boe, 2 T. R. 664), for the reason that the costs in the action were matters in difference in the action, though not mentioned in the submission. {Firth v. Robinson, 1 B. & C. 277.) The reason why in references of actions the provision is sometimes inserted that the costs shall abide the event is, that the arbitrator may not have it in his power to withhold costs from the party who is in the right, but it is a restriction of a power which he would otherwise have of allowing costs at his election. {Roe v. Doc, siq^ra.) COSTS. 213 liut, as to the costs of the reference iiiul uwtud, when ; Firth v. Robinson, 1 J3. & C. 277 ; Lrnis v. ILirris, 4 1). c\: K. 129.) If, by the order, the costs of the action are to " al>ide Where costa the event," the arbitrator cannot exercise any discretion "'^"i" *•»'-' ^ -^ eveut. in the awarding of them, or even in fixing their amount. {Kniflricli- v. Daries, 5 Dow. (598.) And the ari)itrator need not notice the costs when they are to abide the event. (Jupp v. Grayaofi, 1 C. M. 1.1- \\. 528 ; Spiri/ v. Wrhster, 2 Dow. 40 ; Ward v. Ihdl, 9 Dow. (UO.) If he give any directions as to the costs they will generally be rejected as surplusage, and the rest of the award held good ; and where by an order of reference the costs of the cause were to abide the event, and the arbitrator decided the suit in favour of the defendant, and ordered the plaintiff on a certain day to pay him those costs, it was held that the award was good, as the defendant was not deprived of any right to recover costs at an earlier date. {Cochhiirn v. Xetrton, 9 Dow. G7G.) On a reference of an action and matters in difference, Event of the where " the costs of the action shall abide the event of '^'"•^'"'^"ce. the reference," the "event of the reference " must be taken to mean the event or result so far as the action is concerned. {Reynolds v. Ilarria, 28 L. J., C. P. 26 ; W/>/<./?, 49 L. J., Ex. 2G() : 5 Ex. D. 180), in the same way as if the events had l)een arrived at by the trial of the action in the ordinarv wav. ((rtmtard 220 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XIY. y. Can; 53 L. J., Q. B. 55; 13 Q .B. D. 598 n. ; Pearson v. Iliphy, 32 W. E. 463.) So that where the costs were to abide the event, upon the reference of an action in which the defendants denied all the allegations of the statement of claim, and, as an alternative defence, paid a sum of money into court in satisfaction of the plaintiffs' claim, which the plaintiffs did not accept, the arbitrator having found all the issues except one as to special damage in favour of the plaintiffs, and having also found that the money paid into court was enough to satisfy the plaintifl's' claim in respect of the subject-matter of the action, it was held that the defendants were entitled to the general costs of the action and of the issues found in their favour, but that the plaintiffs were entitled to the costs of the issues on which they had succeeded. {Ih. ; Lund v. Campbell, 14 Q. B. D. 821 ; 54 L. J., Q. B. 281.) In Waring v. Pearnian (32 W. R. 429), a claim and counter- claim were referred, costs of the cause to abide the event. The claim was on a building contract for 500L ; the defendant j)aid 278L into court and counterclaimed 500/. for "negligent workmanship." The arbitrator found for the plaintiff for 28oZ., i.e., for 11. plus the sum paid into court, and for the defendant to the amount of 18/. It was held that the event of the action was substantially in favour of the plaintiff, and he was entitled to the general costs of the action, and the respective parties were entitled to the costs of the issues upon which they respectively succeeded. Where there was a reference of an action for a debt and a counter- claim for debt, and the award found a balance of 97/. due to the defendant on the counterclaim, the "event" was held to be in favour of the defendant, who was entitled to the general costs of the action, though the plaintiff was entitled to the costs of the issues found in his favour. {Lund v. Campbell, 14 Q. B. D. 821 ; 54 L. J., Q. B. 281.) rovT<. 221 "Where the costs of tho rcft'i-ence are "to ahidc the Ciur. XIV. event" it means the event with its legal consequence, To wha7cx~ having regard to the operation of the 116th section of the ^'^ *^"fV* " anccteil hy County Courts Act, 1888 (51 & 52 \ ict. c. 43). CountyConrts ]3y that Act it is provided, with respect to anj* action ^Y& 52 Vi hrought in the High Court which roiild have been com- c. 43, s. 116. mcnced in a comity court, that if the action is founded on A.-tions on contract, and the plaintiff recovers a less sum than 20/., ''""^'■"'■*- lie shall not l)e entitled to any costs of the action, and if he shall recover a sum of 20/. or upwards, but less than 50/., he shall not be entitled to any more costs than he would have been entitled to if tlie action had been brought in a county court; and if, the action being On tort, founded on tort, the plaintiff shall recover a sum less tlian 10/., he sliall not be entitled to any costs of the action ; and if he shall recover a sum of 10/. or upwards, but k'ss than 20/., he shall not be entitled to any more costs than he would have been entitled to if the action liad been ])rouglit in the county court ; unless in any such action, whether on contract or tort, a judge of the Jligh Court certifies that there was sufficient reason for bringing the action in that court, or unless the High Court, or a judge thereof at chambers, shall by order allow costs. In connection with the section is to be read 1\. S. C. Power of Order LXV. r. 12, which provides that, "In actions stTiuiinu' to founded on contract, in which the plaintiff recovers bv ?"**^^' ^^'^'' . 1 . 1 . , . Court costs. judgment or otherwise a sum (exclusive of costs) not exceeding 50/., he shall be entitled t(^ 110 more costs than he would have been entitled to had he brought his action in a county court, unless the court or a judge othei-wise orders." This enables a judge at chambers, where an action of contract has been referred to arbitration, by an order l)y consent providing that the costs of the action shall abide the event of the award, and the sum awarded does not 222 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XIV. Power of arbitrator. exceed 50/., to order that the costs shall be taxed on the High Court scale. {Hyde v. Beardslerj, 18 Q. B. D. 244 ; 56 L. J., Q. B. 81.) When the \Yhole of an action is referred without any other matters, an arbitrator, subject to any directions in the order of reference, "may exercise the same discretion as to costs as the court or a judge could have exercised." (Order XXXVI. rr. 556 and 55c.) A plaintiff "recovers" within the meaning of the section, as well, when the action is determined by an arbitrator, as when it is determined by trial in the ordinary course. So that when an action is referred upon the terms that the costs shall abide the event, the plaintiff is only entitled to the same costs of the action as if the action had been determined by a verdict for the same amount as that found by the arbitrator. {Coif ell V. Amman Colliery Co., 34 L. J., Q. B. 161 ; 6 B. & S. 333 ; Furgusson v. Davison, 51 L. J., Q. B. 267 ; 8 Q. B. D. 470; Smith v. Edge, 33 L. J., Ex. 9; 2 H. & C. 659.) The rule equally applies when there has been a verdict by consent, subject to a reference (Smitli V. Edge, siqwa), and when the reference is after issue but before trial. {Coicell v. Amman Colliery Co., supra; Fergusson v. Davison, supra.) Where an action of contract and a counterclaim were referred, costs of the action to abide the event, and by the award the plaintiffs were awarded less than 201., whilst the defendant was awarded 63/. on his counter- claim, it was held that the plaintiffs were not en- titled to the costs of the issues on which they had succeeded. {Ahrhccker v. Frost, 17 Q. B. D. 606; 55 L. J., Q. B. 477.) Where an action and other matters in difference were referred, costs of the action to abide the award, and the arbitrator awarded 401. in respect of matters in the action and 14/. in respect of matters outside it, it was held that, having recovered less than COSTS. 223 50/. in the action, the phiintilTwus only cntitlctl to county f'n.\i-. xiv, court costs. {Emmitt v. //<7/.k, 80 W. R. 237.) If the phiintiff's chiini is estiibhslied for a sum sufli- \vliut"Kum cient to entitle him to superior court costs, but the wh^n'^dil^im defendant prove a set-oflf whieli reduces the bahince to rduccl i.y less tlian sufticient to entitle him to such costs, the plaintiff only '• recovers " the balance within the mean- ing of the Act, and is not entitled to costs without a certificate. (Ashcni/t v. Fnulkes, 25 L. J., C. P. 202; 18 C. B. 261; Beard v. Prn-if, 31 L. J., Q. B. 180; 2 B. ct S. 4<)3.) A counterclaim which is in the nature of a cross When \>\ action is not upon the same footin;^ as a set-off, and therefore where a claim and counterclaim are referred, costs of the action to abide the event, if the plaintiff establishes his claim for an amount suflieiont to entitle him to superior court costs, although the balance for which he obtains an award may be reduced to less than that amount by the counterclaim, he is not deprived of his costs. {StiHiLr v. Tui/lor, -49 L. J., Q. B. S')7 ; 5 Q. B. D. 571) ; Cole v. Firth, 4 Ex. I). 301 ; 40 L. ']'. 851; Xrah' v. Clarhr, 4 Ex. D. 28G ; 41 L. T. 438; Potter V. Chambers, 48 L. J., C. P. 274 ; 4 C. P. D. 457.) The Act and rule do not apply to a defendant so as to deprive liim of his costs when he recovers less than the minimum amount on his counterclaim. {Blake v. Apph'iiard, 47 L. J., Ex. 407; 3 Ex. I). 195; Chat- Jield v. Sediiu'icJc, 4 C. P. D. 459 ; 27 W. R. 790 ; and see Daridson v. Grai/, 40 L. T. 192 ; 5 Ex. 1). 189 n.) To determine whether an action is "founded on con- Action on tract " or " founded on tort " the substance of the action tort.'how''^ on the face of the statement of claim n.nd defence is to fXen-eastIe, L. R., 5 Q. B. 47 ; 39 L. J., Q. B. 67.) AVhen a cause was referred by order of nisi prius, and by the order the costs of the cause were to abide the event of the award, and the costs of the special jury, which had been obtained on the motion of the defendant, and of the reference were to be in the discretion of the arlutrator, the court held that the arl)itrator had only the power of allowing the costs of the special jury as costs in the cause if the party who moved for the same were to succeed ; and. there- fore, tliat after awarding a verdict for the plaintiff, he could not award that he should pay the costs of the special jury. {Finlai/son v. M'ljiod, 1 B. , order under 226 THE LAW OF ARBITRATIONS AND AWARDS. Chai>. XIV. on the ground that the parties had agreed to refer, the section 4, court or judge has power to vary such order as to costs Arbitration ^f j^j^g action at anv time, even after the award has been Act 18S9is to costs. ' made. {Bustros v. Lenders, L. E., 6 C. P. 259 ; 40 L. J., C. P. 193.) The arbitrator has no power over such costs. Sect. 3. — Arbitrator'' s Poiccr over Costs ivitldn the Submission. How the "When an arbitrator has a discretion to exercise upon discretion may ^^® subject of costs, he may Order either party to pay the be exercised, costs, or each to pay a moiety, or the Hke. (Cargey v. Aitcheson, 2 B. & C. 170.) He may order the entire costs to be paid by the successful party. (Re Fearon and Flinn, L. Pi., 5 C. P. 34.) He may direct an infant party to the reference, or a person (not a party to the cause), made a party to the reference by consent, to pay the whole costs. {Provdfoot v. Boyle, 15 M. & W. 198.) An action for pulling down a wall was referred by an agreement, to which B., who had authorized defendant to pull down the wall, was a party, the agreement was, " Piecord withdrawn, cause and all matters in difference referred to Mr. T., with power to say what shall be done by the parties, on all usual terms. B. to be party to the reference." By the order of reference, which set out the agreement, the costs of the cause were to abide the event, and the costs of the reference and award to be in the discretion of the arlntrator. The arbitrator awarded that the defendant should pay half plaintiff's costs of reference and award, and B. the other half, and that B. should i^ay defendant half defendant's costs of action and reference. It l)eing objected that the arbitrator had no power to order B. to pay any part of the costs of the action, it was held that he had power, as it was in the nature of a COSTS. direction to B. to pay the defendiint a sum of money, Chap. XIV. which the urbitnitor assessed at half the costs in the action. {StorUrif v. Shoplaml, 2() L. T. 58().) Where an award contained a direction for plaintiff to paj' defendant's costs, hut no direction was <^iv('n ahout payment of plaintiff's costs, it was held to he sulhciently evident that the plaintiff' was to pay his own costs. {Hose V. Ri'dfi'rn, 10 W. l\. 91.) And it is sufficient, if the award direct by whom the costs are to be paid with- out saying they are to be paid to the opposite party. {Baihiv. Cnrlinn, 20 L. J., Q. B. 235.) Where a reference was of matters in difference between three parties, and the award directed that the costs of the arbitration should be paid by them in equal proportions, without showing to whom or in what manner they should be paid, the court held that it sufficiently appeared that they were to be paid to the arbitrator, {lie Yoiiii'i, 22 L. J., C. P. 100; 13 C. B. G23.) Formerly, in a reference at connnon law, the arbitrator Costs as he- had no i)ower, unless specially authorized, to award any ^n j*^!Ia|\^y, "^ costs other than the common costs as between party and party. {Mardcr v. Co.v, Cowp. 127 ; Scchham v. Bahh, 8 Dow. 167 ; Barker v. Tihson, 2 W. Bl. 953; Whitehead V. Firth, 12 East, 105 ; Eceles v. BUukhurn, 30 L. J., Ex. 358.) In Chancery, however, upon a reference of a suit As wtwccD leaving the costs both of the suit and the reference in the cUent." arbitrator's discretion, he had jurisdiction to give costs as between solicitor and client if he thought fit. (Mordttc v. Pcdmer, 39 L. J., Ch. 740 ; 40 L. J., Ch. 8 ; L. B., 6 Ch. 22.) It is assumed that this rule now applies to every reference of an action in which the costs are in the arbitrator's discretion. (Andrciis v. Barnes, 39 Ch. D. 133, 57 L. J., Ch. (\\)\.) "We have seen that in a reference l)y consent out of court, the arbitrator may award costs as between solicitor and client. {Ante, p. 211.) 228 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XIV. "WTien the amount of costs must be fixed in the award. Awarding a gi-oss sum for costs. AVhen costs may be left to be ascer- tained by taxation. If the costs are in the discretion of the arbitrator, " who shall ascertain the same," he is bound to ascertain and determine the amomit of them, or the award will be bad, for the master's taxation will not supply the omis- sion. {Morgan v. Smith, 1 Dow., N. S. 617 ; 9 M. & W. 427; Grenfell v. Edficome, 7 Q. B. 661.) Where an agreement of reference contained a stipulation that " the costs of the agreement and of the reference and award should be in the discretion of the arbitrator, and be defrayed as he should direct," and the arbitrator awarded that the defendant should pay a certain sum to the plaintiff, but made no mention of costs, it was held that the award was therefore bad. {Richardson v. Worsle)j, 19 L. J., Ex. 317 ; 5 Ex. 613.) The arbitrator when empowered to award costs has a very wide discretion. If the submission make no provi- sion for their being taxed he may award a gross sum for costs, and the court will not review his discretion, unless the amount is grossly excessive. {Turner v. Rose, 1 Ld. Ken. 393 ; Rowcliffe v. Devon and Somerset Rail. Co., 21 W. E. 433.) If the arbitrator have a discretion over the costs, but no obligation to ascertain the amount, and the reference is of an action in the High Court, or by an agreement in writing, he need not ascertain the costs, but may leave them to be taxed by the officer of the court ; and upon an award of costs generally to either of the parties they may be so taxed, even without any express direction to that effect. {Bhear v. TTarradine, 21 L. J., Ex. 127; 7 Ex. 269 ; Holdsworth v. Wilsini, 32 L. J., Q. B. 289 ; 2 B. & S. 480 ; Metropolitan District Rail. Co. v. Sharpe, 50 L. J., Q. B. 14; 5 App. Cas. 425.) Where the reference is of an action in an inferior court, or by a verbal agreement, which has not the same effect as an order of court, the arbitrator must himself assess the costs. {Winter v. Garlick, 1 Salk. 75 ; Thorp v. Cole, 4 COSTS. 229 Dow. 457; .UJ/.s'"// v. Gmj, 2 Wils. 293.) This would Chap. XIV. not seem to apply to jin action in the county court, in which there is a proper uflicer to tax costs. (See Leicis V. lUmitcr, 4-4 L. J., Ex. 130 ; 23 W. It. 832.) Even hi an action in the Ili^h Court, an arbitrator cannot award costs to be taxed by any person but the proper taxing officer of the court, for this would be a delegation of his authority ; the taxation of costs by the master being a ministerial, and in any other person a judicial act. {Knott V. Lomj, 2 Stra. 1025.) An award as to costs which is uncertain or not final is Invali.l direc- invalid to that extent. {lie Smith and Wilson, 18 L. J., *|,°".^ ^^ ^° Ex. 320; 2 Ex. 327; Williams v. Wilson, 23 L. J., Ex. 17; lie Murris and Morris, 25 L. J., Q. B. 2G1 ; 6 E. ct B. 383.) And where an action in which there were several issues was referred, and amongst other things the arbitrators awarded that the costs of the several issues should be paid " to the plaintifif or to the party entitled thereto," the award, so far as related to the costs, was held void for uncertainty. (HctJierinritun v. Robinson, 8 L. J., Ex. 148 ; 4 M. & W. 608.) "When an arbitrator directs one party to pay the costs of the action, this will generally be understood to mean such costs only as the other party would be entitled to if a verdict and judgment had been obtained to the same effect as the award. {Allvnhy v. Proudlock, 5 N. & M. 636 ; lUf/by v. Okcll, 7 B. & C. 57.) An error as to costs will not vitiate the whole award. (Aitchcson v. Cartel/, 2 Bing. 199 ; 9 Moore, 381 ; lioherts V. Klnrhardt, 28 L. J., C. P. 74.) A set-off for damages or costs between i arties may be s.t-oiTfor allowed, notwithstanding the solicitor's lien for costs in l'^'"^'^^**"" the particular cause or matter in which the set-off is sought. (R. S. C. Order LXV. r. 14.) The contrary rule formerly prevailed, preventing an arbitrator awanling a set-off to prejudice the solicitor's lien. U Chitt. Arch. 230 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XIY. Mode of ascer- taining the respective propoi'tions when costs to be paid by the several parties. Costs under L. C. C. Act, 1845. 145, 13th ed. ; Cowcll v. Bcttclcy, 10 Bing. 432 ; Havier V. Giles, 48 L. J., Ch. 508; 11 Ch. D. 942; but see Pringle v. Gloag, 48 L. J., Ch. 381 ; 10 Ch. D. 676.) The rule, however, leaves the court a discretion to refuse or allow the set-off to the prejudice of the solicitor's lien. {Edwards v. Hojje, 14 Q. B. D. 922 ; 54 L. J., Q. B. 379.) If the arbitrator direct that the costs of the reference shall be paid by each party in specified proportions, the mode of ascertaining what sum each is to pay is by adding together the costs of both, and apportioning to each the proportionate part to which he is liable. Thus, if each is to pay a moiety of the costs of the reference, the costs of both will be l)rought as it were into hotch- pot and half paid by each party. {Day v. Norris, 1 Dow., N. S. 353.) The payment of costs is enforced in the same manner as any other part of the award. In a reference under the L. C. C. Act, 1845, all the costs of and incident to the arbitration are to be borne by the promoters, unless the arbitrators award the same or a less sum than shall have been offered by the pro- moters [in respect of the same subject-matter (Miles v. Great Western Hail. Co. ^1896] 2 Q. B. 432), before the arbitrators on both sides have been appointed (Re Gray and North Eastern Hail. Co., 45 L. J., Q. B. 818 ; 1 Q. B. D. 696), and not withdrawn (Foster v. Sheffield Cor- poration, 72 L. T. 549)^ ; in which case each party is to bear his own costs incident to the arbitration, and the costs of the arbitrators are to be borne by the parties in equal proportions. (Sect. 34.) The costs become pay- able within a reasonable time after the award has been made, and the execution of the conveyance is not a condition precedent to the right to recover them. (Capell v. Great Western Rail. Co., 52 L. J., Q. B. 345 ; 11 Q. B. D. 345.) By the Lands Clauses (Taxation of Costs) Act, 1895, COSTS. -IM the costs of and incident to the arhitration and award Chai-. XIV. shall, if either party so re(|iiires, be taxed by one of the masters of the Supreme Court. (08 &51) Yict. c. 11, s. 1.) The assessment by a master is not a condition precedent to the claimant's ri^ht to brinp; an action for such costs, Nvhere the rif^lit to costs is disputed. (Metro- politan DUtrict Hail. Co. v. Sharp,-, 50 L. J., Q. B. 14; 5 App. Cas. 425.) The master's taxation is not subject to review by the court. {Re Sandhach Chariti/ Trustees, 47 L. ,T., (,). n. 10; 3 Q. B. I). 1.) This Act is not retrospective {iJonltoit v. Metropolitan Board of Works, L. R., 5 Q. B. 333; 39 L. J., Q. B. 1G5), and applies only to a reference purely within the L. C. C. Act, and not where the reference embraces other matters. {Ih.) The parties may contract themselves out of the Act, and agree to have the costs ascertained in some other manner than by the master's taxation. {Womlxvell v. Corporation o/Barnsle,/, 36 L. T. 70').) Under the Public Health Act, 1875 (38 vS: 39 Vict. Costs under c. 55), the costs of and consequent upon the reference ^"['^'[g^^"^*^^ are in the discretion of the arbitrator. (Section 180, sub-section 13.) If he neglect to deal with them, the award will be remitted to him for that purpose. {Peakc V. Fineldei/ Loeal Board, 57 L. T. 882.) This does not apply to a reference as to the assessment of compensa- tion in respect of lands taken by a local board under the L. C. C. Act, over which the arljitrator has no discretion. {Ex parte liayner, 47 L. J., Q. B. 001 ; 3 Q. B. D. 440.) The costs allowed under both Acts are party and party costs, and not as between solicitor and client. {He Coudell, 31 W. R. 335 ; 52 L. J., Ch. 240.) Under the Railways Clauses Act, 1845, the costs are left to the discretion of the arbitrator ; and so, subject to the agreement of the companies, are the costs of an arbitration under the Railway Companies Arbitration Act, 1859. 232 THE LAW OF ARBITRATIONS AND AAVARDS. Chap. XIY. Costs of re- ference at quarter ses- sions. When an order of reference in an appeal at quarter sessions is silent as to costs, the arbitrator has no power over the costs of the appeal {West London Hail. Co. v. Fnlham Union, 39 L. J., Q. B. 178 ; L. E., 5 Q. B. 361): nor can any subsequent court of quarter sessions order them, though the appeal may have been regularly adjourned from session to session {li. v. JJ. Middlesex, L. R., 6 Q. B. 220; 40 L. J., M. C. 109) ; nor, in a like case, can the court of quarter sessions itself order the payment of the costs of the reference. {li. v. JJ. West Biding, 34 L. J., M. C. 142 ; 13 W. E. 738.) If the order of reference give the arbitrator power over the costs, and he deals with them in his award, the taxation may take place after the sessions at which the award is entered as the judgment of the court, are over, if such be the usual practice, and no objection to that course is raised at the time. (Soutliamj^toi Gas Light Co. V. Sout^iamjjtoii Union, 46 L. J., M. C. 238 ; L. E., 2 Q. B. D. 371.) When costs may be taxed. May be taxed though time for setting aside the award has not elapsed. Sect. 4. — Taxation of Costs. We have seen in what cases costs may be taxed bj- the officer of the court, namely, where there is a sub- mission within the meaning of the Arbitration Act, 1889, or a reference by order of court, and the arbitrator has not awarded a gross sum for costs, but costs generally, with or without any express direction as to their being taxed. Formerly, the party in whose favour the award was made, was not entitled to have his costs taxed until the time had expired within which it was open to the unsuc- cessful party to move to set it aside. (Hobdell v. Miller, 2 Scott, N. E. 163.) But now, " costs may be taxed on an award notwithstandinrr the time for settin^r aside COSTS. Oj^j^ the awaril has not t'laiiscd." (R. S. C. Order LXV. Chap. XIV. r. 15.) The usual one day's notice of taxation, together with a copy of the bill of costs, must be given. (R. S. C. Order LXV. r. 10.) The costs will be taxed as between party and party unless the arbitrator, having authority to do so {ante, p. '227), order otherwise. When an action is referred, and the plaintill' recovers a less sum than sufficient to entitle him to costs under section IIG of the County Courts Act, 1888, or only sufficient to entitle him to costs according to the county court scale under R. S. C. Order LXV. r. 12, his right to costs will depend upon the certificate given by the arbitrator. {Smith y. Haibi/, 42 L. J., Ex. 5; L. R., 8 Ex. 16.) The plaintitY's solicitor should therefore, by way of precaution, take care that the submission, or order of reference, express that the arbitrator shall have power to certify as a judge might, {ll'ullrn v. Smith, '> M. iV: W. 159; Lund v. Jliuhoii, 1 D. & L. 23G ; Elkman v. 117/- /mwK, 2 D. Ot L. 4G ; AatUij v. Joji, 9 A. .1- E. 702.) The costs of the reference, when they are not to be treated as costs in the cause, are taxed without reference to the amount awarded. {IloUaitd v. ]'i)ict)tt, 23 L. J., Ex. 78 ; 9 Ex. 274 ; Mrholson v. Sylccs, 9 Ex. 857.) The master must tax the costs according to the lan- guage of the award. And the court will sometimes, when there is a difficulty in construing the legal effect of an award, direct the master how the costs are to be taxed. {Unjuoldsv. Ilanis, 28 L. J., C. P. 26 ; 3 C. B., N. S. 267.) The same allowance is made for witnesses attending Oxsts of wit- before an arbitrator as upon the trial of a cause at nisi "'^***'*- jmiat. (Dax, Pr. 250.) AVhere a witness is rejected before the arbitrator, his costs will not be allowed on taxation, {(hdhmat/ v. Kcyinnth, 15 C. B. 228 ; 23 L. J., C. P. 218.) 234 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XIV Fees to counsel. Costs of quali- fyiug a wit- ness to give evidence. The costs of the attendance of counsel will be allowed where it is proper counsel should attend. It is the general practice of the court not to allow the costs of more than one counsel attending the arbitrator on each side, in an ordinary reference {Hawkins v. llighy, 29 L. J., C. P. 228 ; 8 C. B., N. S. 271) ; but there is no inflexible rule, and if the case be of great importance or difficulty, and two counsel attend, their fees will be allowed. {Sinclair v. Great Eastern Rail. Co., 39 L. J., C. P. 165 ; L.E., 5 C. P. 135 ; Orient Steam Co. v. Ocean Marine Co., 35 W. E. 771.) But the costs of shorthand writers' notes for the use of counsel will not be allowed, although it may be a case in which a second counsel would be allowed for. {Crooines v. Gore, 1 H. & N. 14 ; 25 L. J., Ex. 267 ; Wells v. Mitcham Gas Co., 48 L. J., Ex. 75 ; 4 Ex. D. 1.) Formerly, the practice of the common law courts was to disallow the expenses of qualifying a witness to give evidence, while in the Chancery courts such expenses were allowed. The latter practice now obtains in both divisions of the High Court. By Order LXV. r. 27, sub-rule 9, of K. S. C. 1883, in taxing costs, " such just and reasonable charges and expenses as appear to have been properly incurred in procuring evidence," are to be allowed. This would include the fees of surveyors, for time employed in examining and surveying premises to enable them to give evidence at the trial {MacJdcy v. ChilUiuj- worth, 46 L. J., C. P. 484; 2 C. P. D. 273) ; and of scientific witnesses getting up the case. {Smith v. B idler, 45 L. J., Ch. 69 ; L. P., 19 Eq. 473.) It would also in- clude the costs of an accountant employed to investigate accounts, such as were disallowed in Nolan v. Copeman (42 L. J., Q. B. 44 ; L. E., 8 Q. B. 84) ; and the fees of an antiquary, for searching after and translating ancient records. {Beaufort v. Ashhnniham, 32 L. J., C. P. 97 ; 13 C. B., N. S. 598.) COSTS. 23/j As between the parties, the arbitrator's charges may l)e Chap. XI v. reviewed on taxation. {Banwa v. Hai/iiuinl, 1 H. Sc N. Arbitrator's 742.) But it is not usual for the master to question the •^'"""o*^*- arbitrator's charges, Init to pass them without inquiry, especially if he be a barrister. {Sniltlt v. Troup, 7 C. B. 7;"57.) In taxation there is no dillVrent scale whether the arbitrator l)e a (^)ueen's counsel or ji junior; but in all cases, it is in the discretion of the master to allow such remuneration as the ditticulty and nature of the arbitra- tion may, in his opinion, justify. [Sinclair v. Great Eaatcrn Rail. Co., 39 L. J., C. P. 165.) It is only usual to allow ten guineas in the case of a Queen's counsel, and no larger sum will be allowed in the case of an eminent engineer. (7iV JW'stirood, 81 L. T., Jour. 84 ; 2 Times L. B. 067.) A lay arbitrator may employ a professional person to draw his award. But where a separate charge was made for a solicitor's costs of pre- paring the award, the arbitrator having charged a sulhcient sum for the award, it was held that the master was right in disallowing the amount of the solicitor's bill in the costs. (Gdlloirai/y. Kri/irortJi, 23 L. J., C. P. 218; 15 C. B. 228.) It is provided by section 15 (3) of the Arbitration Act, 1889, that the remuneration to be paid to any special referee or arbitrator to whom any matter is referred under order of the court or a judge shall be determined by the court or a judge. This is of little practical importance, and is seldom applied. If the arbitrator award the defendant to pay the i)lain- tiff his costs of action, to be taxed by the proper officer before a particular day, it is the defendaufs business to have them taxed before that day (Candler v. Fuller, Willes, 62) ; and if he do not, the plaintiff may proceed to have them taxed r.r ])arte. {Sadler x. lioJiinii, 1 Camp. 253.) If a verdict has been taken at ni.fi prius, and one party is entitled to the costs of the cause and also to the costs 236 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XIV. of the reference, such costs should be taxed separately, if it is intended to sign judgment for the costs of the action. When the arbitrator directs that the costs of the cause shall be taxed by the proper officer, they should be taxed as upon a verdict to the like effect as the award. {Allenhy V. Proudlock, 5 N. & M. 636.) ( 237 ) CHAPTER XY. REFERRINfl ]!ACK AN AWARD. After an award is made and published tlie arl)itrator, Chap. XV. as we have seen (ante, p. 157), has very Hniited power to aher it. But, section 10 of the Arbitration Act, IRftO, provides Power of that " in all cases of reference to arbitration the court or ^ij^ ttwanl. a judge may from time to time remit the matters referred, or any of them, to the reconsideration of the arbitrators or umpire." (52 & 53 Vict. c. 49.) Although section 10 is one which applies only to references by consent out of court, its provisions are by section IG of the Act made applicable to references under order of court. And Order XXXVI. r. 52, further con- tains power of remitting, where a case is referred for trial. The object of these provisions was, when any error, formal or otherwise, had occurred which would vitiate the award, to enable the court to send it back, if they thought fit, to the arbitrator to correct such error instead of setting the award wholly aside. (Mills v. Bouyer's Society, 3 K. & J. 6G.) And the general power to remit back thereby given, is not restrained ))y a clause in the submission, only empowering the court to refer back the award in case of a motion being made to set it aside. (Re Morris and Morris, 6 E. & B. 383 ; 25 L. J., Q. B. 201 .) An award under the L. C. C. Act, 1845, is witiiin the section, and may be referred back. (Dare Valley Rail. Co. v. Rhys, 38 L. J., Ch. 417 ; L. B., 4 Ch. 554.) So may an award in a reference under the Public Health Act, 1875. (Warhurton v. JIasUnyden Local Board, 48 L. J., C. P. 451.) 238 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XY Mode of ap- plication. Form of notice. "Within what time applica- tion to remit The ajDplication to remit, ^\-hicli is generally supported by an affidavit of the facts upon which it is founded, may, under section 10 of the Act, be made to the " court or a, judge," which means it may be made to a master in chambers. (Order LIV. r. 12a.) The application will be by summons instead of by motion, as contemplated by Order LIT. rr. 1 — 3. An application to remit under Order XXXVI. r. 52 (and see r. 55c), is to the courts and by motion. The summons or motion must be served on the parties affected thereby (E. S. C. Order LII. rr. 1 — 3), but not upon the arbitrators. {Moseley V. Sivijjson, 42 L. J., Ch. 739 ; L.. E., 16 Eq. 226.) When by motion, the notice shall state in general terms the grounds of the application, and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion. (Order LII. r. 4 ; Mercier v. Pepperell, 19 Ch. D. 58 ; 51 L. J., Ch. 63.) Unless by special leave there must be two clear days between the service of a summons or notice of motion and the day named for hearing the application. (Order LII. r. 5.) If by motion, the notice may be in the alternative to set aside or remit the award. And upon a motion simply to set aside the award, the court could exercise its power of remitting the award to cure the defect upon which the motion to set aside is grounded. {Anning \. Hartley, 27 L. J., Ex. 145 ; Peterson v. Ayrc, 23 L. J., C. P. 129.) Even on an application to enforce the award the court, in the event of the application being opposed upon the ground of some manifest defect in the award, may order it to be remitted to the arbitrator instead of dis- missing the application. There is no absolute limit of time within which the application must be made {Warhurton v. Ilaslingden RKFKRRING I5.VCK AN AWARP. 239 Load Board, 48 L. J., C. P. 4;")! ; Lekrstcr v. Grazrhrooh; Chap. XV. 40 L. T. 883), but the application must be within a shouldlbc reasonable time {Ijciccstcr v. Grazebrotdc, supra), and '""^'-'• should generally be made within the same time as an application to set it aside {Doc v. ll Ch. 22.) So, where the award referred to the defendant by a wrong christian name. {Darics v. Pratt, 25 L. J., C. P. 71 ; 16 C. B. 586.) This is no longer necessary, or nccidenul for in a reference by consent out of court, an arbitrator silui.*"^ *'"'** or umpire may correct a clerical mistake or error from any accidental slip or omission. (Arbitration Act, l.S8I^ 8. 7 ic).) When an award is good on the face of it, but the finding Mistnke of . ,1 1 •. i • 1 1 -1 , • -11 arl>itmtor. or the arbitrator is based upon a mistake, this will some- times be ground for applying to refer it back to him, though the decisions upon the point are somewhat conflicting. It is no ground for sending back an award, good on the Mistakv in face of it, that the arbitrator has made a mistake in law, A. B 242 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XY Mistake such that the award is not the de- cision of the arbitrator. or has misapprehended the legal effect of his decision. Thus, where arbitrators, believing they had power over costs, awarded the plaintiff a greater sum than they would have done if they had thought the costs followed the event, the application to remit was refused, notwith- standing the arbitrators made an affidavit admitting the mistake. (AUen v. Greenslade, 33 L. T. 567.) A like application was refused, though an arbitrator swore that he intended that the effect of his award should be to give the defendant the costs of his counterclaim. {Greenn-ood V. BroivnluU, 44 L. T. 47.) The earlier case of Dinu v. Blake (44 L. J., C. P. 276 ; L. E., 10 C. P. 388 ; 32 L. T. 480), which does not appear to have been cited in either of these cases, is an authority for referring back the award where the arbitrator is dissatisfied with his de- cision, as given under a misapprehension of law. (And see Grqfham v. TnrnhuU, 44 L. J., Ch. 538.) Though the courts will not interfere with the arbi- trator's judgment either on fact or law, yet when there has been, not an error of judgment, but a mistake of the arbitrator, the effect of which has been that his mind has not been exercised upon the real case submitted to him, and therefore that he has not adjudicated upon the actual controversy, the courts will remit it as being no decision. {Flynn v. Eohertson, 38 L. J., C. P. 241 ; L. P., 4 C. P. 324.) Thus, an action having been referred to the master, and it being admitted at the reference that something was due to the plaintiff, the master certified that nothing was due ; it was admitted on all hands, and the arbitrator stated that he had made a mistake, but the defendant objected to the award going back ; the court, however, held that it had power, and ought to refer the matter back. (Ih. ; and see Mills v. Boirj/er's Societ)/, 3 K. & J. 66.) So, if by mistake, the arbitrator write one sum for another in his award, or, meaning to add two sums together, by mistake deduct the smaller nEFERRIN'G HACK AN AWARP. "213 from the greater, the writiiif:; is not his award, as it does ''"^'- -'^^'• not express his intention {lirmni v. Ilrllahi/, 20 L. J.. Ex. •217. }>'r Brannvell. B. : lir Hall ami Uituh, 2 M. \- G. SIT : 10 L. J.. C. r. 1\0,pn- Tindal, C.J.), and may be remitted to him for correction. An award will not be sent back to the arl>itrator for an Mihtak.- iiiii>i alleji^ed mistake not manifest upon the face of it, unless {"y ari'itil'tnr the arbitrator admit that he has made a mistake, and is himself desirous of the assistance of the court to set it ri^ht. (/)/»» V. Blalce, 44 L. J., C. P. 270; L. R., 10 C. P. 388; Waltn,, v. Sicanaur Pin- ('<,., 10 W. P. ()2!> ; LochwDod V. Smith, ih. 028; Jiitpcvinl Roijal CJiartrrnl AzicixJd V. Fiiiulcr, 21 "\V. R. 07.^ Therefore, if an award is good on the face of it, tlie court will not refer it back for an alleged mistake in law, attempted to be made out on athdavits (Fidlrr v. Fcnirirk, 10 L. J., C. P. 70; Bniinh',/ V. Mavlirirk, 30 L. J.. C. P. 342), or remit to him to state a case when, at the hearing, he has declined to do so, (IloUoicai/ V. Francis, 9 C. B., N. S, 5.5!) ; Gihhnu V. Parkrr, .5 L. T., X. S. 584.) An agreement of reference in an appeal against a poor rate contained a clause enabling the arbitrators, at the request of either party, to state a case to be settled l)y the umpire for the opinion of the court ; the arbitrators having disagreed, the umpire made his umpirage, and subsequently, at the recjuest of the appellants, set out the principles of law on which he had acted ; the court refused to refer back the matter to enable the umpire to state the case more fully, as the appellants had had the opportunity of getting a case stated, and instead of doing so had taken their chance of getting the umpirage made in their favour. (/»'<■ LouiJim Dock Co. and Tnisti-is ,>f Slnnlicll, 82 Ti. J.. Q. B. 30.) The (juestion has from time to time arisen, whether a Taper nc- paper accompanying the award can be looked at by the awnn7,"X?u court, so as to disclose a mistake of the arbitrator, and '^^^^ ^>" _ look at. R 2 244 THE LAW OF ARBITRATIONS AND AWARDS. Chav. XV. form ground for an application to set aside or remit the award, it being otherwise unimpeachable. The result of the authorities seems to be, that where the paper is intended and professes to be part of the arbitrator's decision, the court will look at it, not otherwise. (Lcr/go V. Young, 24 L. J., C. P. 200 ; 16 C. B. 626.) Thus, a paper delivered by an arbitrator to one of the parties, along with the award, in which the arbitrator stated that he would have given that partj' the costs if he had had the power, was a matter which the court refused to notice on an application to send back the award on the question of costs. {Il>.) In Hogg v. Burgess (27 L. J., Ex. 318 ; 3 H. & N. 293), Watson, B., stated the rule thus: " Where, either upon the face of the award or by a paper contemporaneous with it, the arbitrator professes to found his award upon a question of law, and determines it wrongly, the court may interfere." But, according to "Williams, J., in Hodgliinson v. Fernie (27 L. J., C. P. 66 ; 3 C. B., N. S. 189), the paper must be "accompanying and forming part of the award," This qualification has been often approved. (Hulgatey. Killick, 31 L. J., Ex. 7 ; 7 H. & N. 418; lie London Dock Co. and Trustees of Shadn-ell, 32 L. J., Q. B. 30 ; Dinn v. Blake, L. E., 10 C. P. 388 ; 32 L. T. 489.) Discovery of Though the discovery of new evidence would probably not induce the court to set aside an award, it would be ground for an application to refer back the award. Thus, where one party against whom an award was made applied to have it sent back, on the ground that he had since found a letter in the other party's handwriting containing material evidence in his favour, and which the arbitrator stated would have materially affected his decision, if it had been given in evidence before him : the court remitted the case to the arbitrator, though the other party swore that the latter was a forgery. (Buriiard v. Wainwyight, 19 L. J., Q, B. 423; Re REFERRING BACK AN AWARD. 215 Kcvihlcy and linjan [lKi»3] 1 (,). 15. 10r> : ('.2 L. J., Chap. XV. Q. B. 105.) When a letter book, containinj; copies of letters which had been adduced in evidence before an arbitrator and marked In' him as read was, at the close of the case, left in his hands in order that he might, before making his award, refer to the copies so adduced, and he referred to a copy of a letter contained in the book which had not been marked as adduced in evidence, the court ordered that the case should be referred back, in order that the party against whom the letter was used might have an opportunity of explaining its contents, but refused to set aside the award. {Davenport v. Vickcri/, !) W. R. 701.) As a general rule the award will be referred back to Awani sent the same arbitrators, when a mere formal error has arbitrator!"** occurred involving no misconduct in the arbitrators or substantial injustice to the parties, and there is no reason to suppose that they may not be trusted. {Annin(i v. Harthf/, 27 L. J., Ex. 145.) And where the reference was to several arbitrators, with power to appoint a new one in case of the death of any, and one died after the award was made, it was remitted to the survivors and to a fresh one to be appointed in pursuance of the power in the submission. {Lord v. Ilawkina, 2 H. cS: N. 55.) But where an arbitrator in taking accounts allowed a claim sent to him by one party after the last meeting, without communicating it to the other side, Eomilly, M.E., thought it objectionable to send the award back to the same arbitrator because, notwith- standing the perfect honesty and hum} fidix of an arbi- trator, it is impossible, where an award has been set aside and sent back upon such grounds, that there should not be, in spite of himself, some disposition to make it appear that the objections to the award were useless. {Re Tidsnill, 33 Beav. 217.) 246 THE LAW OF ARBITRATIONS AND AWARDS. Chai>. XV. When matters are referred back, all the origmal Powers and powers of the arbitrator are generally revived. {M'llae dutyofarbi- ^ M'Lean, 2 E. & B. 946.) He must hear additional trator when award referred evidence if the matters remitted require it. Thus, ^^ '• where an award was remitted on the ground that the arbitrator had not finally disposed of a matter submitted to him and with respect to which he had received no evidence, and upon the parties attending before him and tendering evidence he refused to receive it, the court held that he ought to have received it. {XickaUs v. Wa)-reit, 6 Q. B. 615 ; 14 L. J., Q. B. 75.) But, if the award is remitted merely for a specific alteration in or addition to it, in a matter upon which no assistance from either party is necessary, the arbitrator need not receive fresh evidence or give any notice to the parties to attend before him ; as where the award is remitted that the arbitrator may correct a mistake apparent on the face of the award {Be Morris and Morris, 6 E. & B. 383) ; or determine the amount of costs to be paid by one of the parties {Ex jKirte Huntlcij, 22 L. J., Q. B. 277 ; 1 E. & B. 787) ; or that all the arbitrators may re-execute together, they having originally executed the award at different times and places {Ainiincj v. Hartleij, 27 L. J., Ex. 145) ; or that a mistake in the christian name of one of the parties may be corrected. {Hotcctt v. Clonents, 7 M. & G. 1044.) And, in the latter case, it is sufficient if the arbitrator merely certifies that the award ought to be amended in the name without actually amending it. {Daries v. Pratt, 25 L. J., C. P. 71 ; 16 C. B. 586.) Where an arbitrator not having decided an issue on an account stated, the court directed the award to be sent back to him to be corrected in this particular : it was held that he was not bound to rehear evidence. {Bird V. Penrice, 6 M. & W. 754.) So, where neither party requested the arbitrator to hear fresh evidence. {Baker V. IJunter, 16 M. lV ^\. 672.) IlEFEUniNG liACK AN AWAlil*. 217 \Vhen a matter is leuiitted Imck to un arbitrator, who Chak XV, has made an award, for reconsideration, that award is avoided altogether. {Iktre I'alleif liuil. Cn. v. lUiyn, 88 L. J., Ch. 417 ; L. K., 4 Ch. 554.) But if an award, ^'ood as to three points and bad as to the fourth, is sent back as to that alone, the arbitrator is jtinctus ojficio as to the three, and cannot alter his judj^auent as to them. {Joliusuu V. Latliuiii, 20 L. J., Q. B. 288, jur Erie, J.) The court can provide for costs on remitting, and where the submission gives the arlatrator power over costs the court on sending the award back to him may direct tliat the costs of tiie motion to remit shall be in his discretion. (Arbitration Act, 188*J, s. 20 ; Pearson v. Onrdl, 12 W. B. 70'J.) The amended award need not recite the order referring the matter back, and if it misrecite it, it is immaterial. {Bdher V. Hunter, US M. A: W. 072.) Where an award is remitted the arbitrators or umpire Tinu- f-.r shall, unless the order otherwise directs, make their "^^"''l "•'en award within three months after the date of the order. (Arbitration Act, 1889, s. 10 (2).) In addition to the power of the court to remit upcm I'.iwi-r to iv- the grounds hereinbefore considered, a further power Ililcalion i.'y to remit exists in the case of a compulsory reference, way otai.pi-ui m u .1 /, 1 , , 1 • -1 I- ' 1 /• from iiwaril ilie li. h). C. 1888 liave given a riglit of appeal from an ou n .o-iiml- award made upon a compulsory reference, and to that ^^' «"eft'rencc extent placed such a reference on an entirely diU'erent footing to a reference by consent. Upon the hearing of the appeal the court may, amongst other things, remit the matter in dispute to the arbitrator. The rule, which is not very clear, is as follows : — Where a compulsory reference to arbitration has been ordered, any party to such reference may appeal from the award or certificate of the arbitrator or referee upon any question of law; and on the application of any party the court may set aside the award on anv ground on which the court 248 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XV. might set aside the verdict of a jury. Such appeal shall be to a divisional court, who shall have power to remit all or any part of the matter in dispute to the arbitrator or referee, or to make any order with respect to the award or certificate, or all or any of the matters in dis- pute that may be just. (E. S. C. Order LIX. r. 3, and 47 & 48 Vict. c. 61, s. 8 ; Munday v. Norton [1892] 1 Q. B. 403; 61 L. J., Q. B. 456.) It is doubtful if the rule has any application since the repeal of the C. L. P. Act, 1854, for compulsory reference to " arbitration " in the sense in which it was understood when the rule was framed has ceased to exist. A com- pulsor}^ reference to referees is a different thing. {Miuiday V. Norton, supra.) No time is limited for the appeal. It is not clear how the evidence taken before the arbitrator is to be brought before the court, whether by affidavit or production of the notes of the arbitrator. (See Doe v. Preston, 3 D. & L. 768.) ( 249 ) CHArTEll XVI. EFFECT OF AN AWAHD. In tlie C}i!=e of a reference 1)V consent out of court, a Chai-. xvi. valid award is final and binding on the parties and whi-ie refer- privies (Arbitration Act, 1881), s. 2, sched. 1, cl. (//)). and "1;^^!"'^ "*" is conclusive as to the matters submitted, debarring the parties both from appeal {Goodinan v. Saijcvs, 2 J. A: W. 25i) ; E*' l)itrhani Cnitnti/, iCr. Buildbui Socicti/, 41 L. J., Ch. 164 ; L. !(., 7 Ch. 4;')), and from again litigating the same subject-matter. {DiKhjcoit v. ThniHxnn, 1 Macq. 714; WiUiams v. Moiihdah', 7 :^I. .^: W. 1:54; I'ri.r v. Pikr, 9 Dow. 334.) An order of reference by consent, of an action and win^e rot,r- ii X, • Tiv ' i 1 i.1 f i." eiu't' of action Other matters m ditierence, stands upon the same tootnig ^^.jjj, ^,^1,^,. as a reference by consent out of court. It is Ihial. and mutters, can only be reviewed upon the same grounds as the latter. (Darlinntnii Waumi C<>.\. //rt/v//»^ [1891] 1 Q. B. 245; 60 L. J., Q. B. 110.) Where an action alone, is by an order of court, referred wiiere action to an arbitrator the award shall, unless .set aside by the '*'^"*^^" * court or a judge, be equivalent to the verdict of a jury- (Arbitration Act, 1889, s. 15 (2).) We have seen {ante, p. 210) that the arbitrator has power to direct judgment to be entered. "When he has done 80 either party may move to set aside the judgment. The effect, and mode of dealing with the report or i;. fcrcnce to award of an othcial or special referee, will be considered l^J'lX'n'i.n-.'. more fully in Chapter XIX. If the award is good on the face of it, and neither j:,^judr:u!a. party has taken steps to impeach it, each party is prohibited from objecting to it, and as to all matters 250 THE LAW OF ARBITRATIONS AND AWARDS. C'HAl'. XVI. Excessive award .sus- tained if against goud faith to treat it as void. which it professes to decide, it as much precludes the parties from alleging anything contrary to the award as a judgment would, on the ground that it is res judicata . iCinnmings v. Heard, 39 L. J., Q. B. 9 ; L. E., 4 Q. B. G69 ; Parkes v. ^mith, 19 L. J., Q. B. 405 ; 15 Q. B. 297 ; • Martin v. Boulanger, 49 L. T. 62.) But where a plain- tiff had filed a bill in chancery against a defendant for infringing his patent, and for an injunction, and the matter was referred to an arbitrator, who decided by inference, but by inference only, that the plaintiff was the true and first inventor, and therefore that the letters patent were not void — this might be collected from the award, but was not so stated directly or positively — it was held in an action afterwards, by the same plaintiff' against the same defendant, that the defendant was not estopped by that award from denying that the plaintiff' was the true and first inventor, and therefore that the patent was void : an award in that form being no estoppel. {Xeicall v. Elliot, 1 H. & C. 797 ; 32 L. J., Ex. 120.) Though a submission may be in excess of the powers of one of the parties, or the award in excess of the arbitrator's authority, yet if one party have given up any right, or placed himself in a worse position, upon the faith of the excessive instrument being binding, the court will hold it binding, since it would be against good faith to allow it to be treated otherwise. {London and North Western Hail. Co. v. Bedford, 17 Q. B. 978 ; Leicester Waterworks Co. v. Cropstone Overseers, 44 L. J.,, M. C. 92 ; 32 L. T. 507.) An arbitrator's decision upon a question of fact is conclusive ; and where the claims of the plaintiff" in an action were referred it was held that the arbitrator's decision that a certain claim made by the defendant was within the submission was conclusive. {Facicll v. Eastern Counties Had. Co., 2 Ex. 344; 17 L. J., Ex. 297.) But EFFECT OF AN AWAKD. -'>l lui arbitrator's decision iis to the extent or limit of his Chai-. XVI. authority is not in all cases conclusive. (Ih. ; Tohij v. Lnrihoml, 5 C. B. 770 ; 17 L. J., C. P. '201 ; Hiitrln.snn V. Katoit, I'd (). ];. ]). 8G1 ; 51 L. T. 84G.) Ordinarily the ri,i,'hts of a stran^'er will not he affected Ktlct oi by an award. {'Jli<>iiij>S()ii v. XocL 1 Atk. GO.) rii'lits ot An award aj^'ainst a principal debtor is not binding' straugers. upon a surety, or evidencL' aj^'ainst him in an action l)y the creditor, unless the surety shall have agreed in the l)lainest terms to l)e bound by such award. {K.r parte Yoitiif/, lie Kitchiii, 50 L. J., Ch. 824; 17 Ch. D. GG8.) But a stranger may be bound by acquiescence, and where A., having a claim on property which he knew was the subject of a reference between C. and 1)., suffered the award to be made without bringing forward his claim, Shadwell, V.-C, held that he was bound by tlie award, ((iorctt v. IliclDiiond, 7 Sim. 1.) So, if tlie trustees of a bankrupt attend meetings under a reference to which the bankrupt was a part}-, and make no objections to the proceedings, they will be considered as adopting them, and be bound by the decision. (L)(»l v. IlcniiKj, 1 liuss. c^' M. 158.) And in an old case, where an award was made in an adverse suit between A. and B., and conlirmed by the court, A. being then a Ijankrupt, but not being known to be so, a commission was afterwards taken out, and the award was held to bind the assigns under the commission, {li'hitanc v. J ',11(1 ill, 2 Vern. 22J).) The award is binding u[)on every one claiming through or under the parties to the reference, though claiming adversely to them. [Martin v. Ihadainirr, 52 L. J., P. C. 31 ; 8 App. Cas. 20G.) An award is conclusive as to all such matters in f:ircct of dirterence between the [)arties, as are within the scoi)e ",^'"„er^'i„ of the reference, notwithstanding thev were not brought diirertncf uot If ii . • . , , • *..•,• f 1 brought 1>c- betore the attention ot ihe arl)itratt)r : for if one of the fore arbi- 252 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XVI. parties has neglected to bring before the arbitrator any matter when he might have clone so, he cannot after- wards maintain an action on such matter, or take ad- vantage of it in answer to a motion to enforce the award. Thus, where the reference was of "all actions and causes of action between the parties," and after the award made, the party thereby ordered to pay a sum of money, wished to deduct from it a sum due to him from the opposite party, and which had not been under the consideration of the arbitrators, the court held that he could not do so, for the order of reference was large enough to include that transaction, and it should have been discussed before the arbitrators. (Smith v. John- son, 15 East, 213.) And where an action by a person for his salary, and also for damages for dismissal from service, was referred, and the plaintiff gave evidence of dismissal, but claimed no damages for it, before the arbitrator, who onl}' awarded the amount of the salary, it was held that the award was nevertheless a bar to a second action for damages for the dismissal. (Dunn v. Murray, 9 B, & C. 780.) So, where an arbitrator to whom an action of ejectment and all matters in difference were referred, with a provision that the arbitrator should decide what compensation should be paid to the plain- tiffs for lands which the defendants, a railway company, had taken for the purpose of their railway, the terms of the reference being wide enough to embrace a claim for mesne profits, it was held to be concluded by the award, though it had not been specifically set up before the arbitrator. {SDudlcij v. Blachbuni Iiail. Co., 27 L. J., Ex. 65 ; 2 H. & N. 158.) But a reference of " all matters in difference " does not preclude one of the parties from afterwards suing for a cause of action subsisting at the time of reference, but not then a matter in difference. {Ravee v. Farmer, 4 T. E. 146 ; Thorpe v. Cooper, 5 Bing. 129.) EFFECT OF AN A\\AI;I>. 'J_:,\i An award is only conclusive as to the questions Chai-. XVI. actually referred (Oxnihuin v. Lemon, 2 I). *t R. 4G1), Awnr-T^on^ and a reference of the (luantum of a demand, does not '•l>i'*i^t"'"ly .... , ,. , . "11 tin- Ixiillt.H waive an objection to the legality of it. (Strrrs v. nf.iii-.l. Lashlei/, 1 Esp. IHf).) A reference under the L. C. C. Act, 1845, is only to assess compensation, and the award determines nothinf,' as to the title of the claimant to receive the compensa- tion, which, if disputed, must he estahlished hy an action (ante, p. 26), and so, in tlie case of a reference under the Puhlic Health Act, 1875. (Antr, p. 20.) "Where all matters in difference are referred to an Awanl u\ arbitrator, an award, directing the execution of mutual ^'^as™. ^^ general releases, closes all accounts between the parties up to the time of the submission. {Trimiiifihain v. Triiiiiiiffhdni, 4 X. k!c M. 78G.) But where the gene- rality of the words of a release, executed according to the directions of an award, might extend to a matter the parties did not intend the arbitrators to adjudicate upon, and upon which they did not adjudicate, the generality of the words will be restrained by the inten- tion of the parties. (Cpton v. Uptox, 1 Dow. 400.) Except the reference be under a statute giving an .\wnnl will award the effect of a conveyance, an award that one iai,j""^^"^ person shall convey land, or any interest in land, will not itself operate as a conveyance (Rolle, Ab. " Arb." A. 3 ; Marks v. Marriot, 1 Ld. Raym. 114 ; llrnrii v. Kinian, 9 Ir. C. L. Eep., N. S. 45*J), or as a partition of lands between tenants in common {Johnsum v. ]]'ih<>u, Willes, 248), but the arbitrator must direct the execu- tion of conveyances. The property in a chattel cannot be transferred by the or trnnsf.r a mere force of an award. {Ilnnter v. Rice, 15 East, 100; Thorpe v. Efirc, 1 A. & E. 1)2().) But an award may ascertain the right to any species of property, so as to give the party in whose favour it 254 THE LAW OF ARBITRATIONS AND AWARDS. Chat. XYI. Sum awarded creating a debt. An award as a defence to action for same matter. is made a possessoiy remedy for the recovery of it ; for if two persons submit to arbitration a dispute re- specting the right to certain land or other property, when the arbitrator ascertains to whom the property belongs, the parties are concluded by the award. {Doe d. Morris v. Rosser, 3 East, 15.) And if the arbitrator award that one of the parties is entitled to possession of land, the court can give effect to his finding {JJ^adc- Gery v. Morrison, 37 L. T. 271), though the provision of 17 & 18 Vict. c. 125, s. 16, is omitted from the Arbitra- tion Act, 1889. An award that one person shall pay to another a sum of money will create a del)t from the 'one party to the other, the payment of which may be enforced by action or on an application to enforce the award. An award under the L. C. C. Act, 1845, does not, however, create a debt until the title of the claimant has been made out and accepted {Re Milford Docks Co., Ex iiarte Lister, 48 L. T. 560 ; 23 Ch. D.^ 292 ; 52 L. J., Ch. 774), nor can payment of the sum awarded be enforced by summons, but only by action. {Re Walker and Beckenham Local Board, 50 L. T. 207.) A sum of money due upon an award is provable in bankruptcy, and is a good petitioning creditor's debt {Ex parte Lingood, 1 Atk. 240 ; E.i parte Hardinr/, 5 De G. M. & G. 367), unless the award be bad upon the face of it, or the sulmiission be void. {Ant ram v. Chacf, 15 East, 209; Dntton v. Morri.^o,,, 17 Ves. 193.) And the sum awarded will carrv interest from the day appointed for payment, which interest ma}^ l)e re- covered l)y action, or summons, or l)y including it in a judgment entered up on a verdict in pursuance of an award. (E. S. C. Order XLII. r. 16.) Where an action is brought for the same cause of action upon which an award has ]:)een made between the parties, the award is a good defence to the action. EFFFCT OF AN' AWAnO. 'Z-f- (Aiitt\ p. 2-40.) In oriler to r^We it in eviclence as a <'hai-. \\ i defence, tlie siwanl must he pleaded specially. "\Alierever accord and satisfaction would be a ^'ood defence, an award mny l)e pleaded. If A. liave the custody of the cattle of B., and the cattle commit a trespass on the land of C, and A. and C. suhmit this trespass to arbitration, and an award is made ; the award is a p;ood defence to an action for the same trespass brouf^ht by C. apainst B. (Bolle, Ah. " Arb." B. 1.) And in an action l)rouKlit nptainst A. a plea by him of an award, for the same cause, between the plaintiff on the one side and A. and another jointly on the other side, is a good defence. ' {Thomliusoii v. Arriskin, Comyn, 328.) So. an award made between one of several trespassers and the plaintitT, and performance, will liar an action apjainst the others, for this is satisfaction. (Rolle, Ah. " Release," G. 2 ; Pej/tor's Case, Bep. 78.) It has been decided that whenever tlie award fi^ives a new duty in lieu of the former, or awards any collateral matter in satisfaction of a debt or p-ievance, it is not necessary in pleadinp; the award to aver performance. {(idxroj/nr v. Kdirardft, 1 Y. i'^' J. 19 ; ('loiniiiiiiia v. He,ml, 39 L. J.. Q. B. 0; L. B., 1 (}. B. OHO ; .!//.» v. Harrin, 1 Ld. l^aym. 122 : FrrniKui v. JhriKinl. 1 Salk. 69; Piirxhm- v. Bhi, 2 Ld. Baym. 1089.) But, where the award merely ascertains the amount of the debt to an action for de])t, an award is not a ^C)o(\ plea without an allof^ation of performance. Thus, where to an action of assumpsit for IHO/. for tolls, it was pleaded that ditTer- ences resprrtiiifi tJuif rlniw had arisen between the plaintiff and defendant, and they had mutually af];reed to refer the mid matter to the award of an arbitrator, who made his award of and concerning the matter submitted to him, and thereby awarded that the defendant should pay to the plaintiff 13/. ; this plea on demurrer was held bad witliout an averment of payment of the sum awar'.^ On tlu' i)rincii>le dr miiiiiiiix ikhi tnr]ih'itl)rni v. Latiu- iiiaii, (J Taunt. *254.) A mistake as to foreign law is a mistake of fact, and is not a reason for setting aside an award. {Iinpcvial Roi/al Chaiirred Azirndii v. Fiiiulcr, 1>1 W. R. 117.) It cannot be alleged as ground for setting aside an award on a reference by consent, that it is contrary to the evidence. {lie liradsJidu's Arhilrdtioit, VI (). 11 .'•»i2; 17 L. J., (,). B. 8(i2.) As an arbitrator under a reference by consent is a judge, voluntarily chosen by the parties to decide be- tween them, they cannot object to his decision, whether in the form of an award or certificate (I'rirc v. I'riif, 9 Dow. 334), that it is unreasonable, or a judgment a<:ainst law (lin,inlr;i v. Marhnirh, 30 L. J., C. P. 342; 10 C. 15., N. S. tJl ; FnUi-r v. Fmniclc, 3 C. B. 705 ; IG L. J.. ('. r. 7!» : F'irirll V. Fnntcrv Cninitirn BdiL Cn.^ 262 THE LAW OF AKIilTEATIONS AND AWARDS. Chap. XVII. 2 Ex. 344; 17 L. J., Ex. 297), or an eiToneous judg- ment on the facts, {Morgan v. Mather, 2 Yes. jun. 15.) The result of the cases is thus summarized by Williams, J., m Hodiikinson v. Ferme (3 C. B., N. S. 189), " The law has for many years been settled, and remains so to this day, that, where a cause or matters in difference are referred to an arbitrator, whether a lawyer or a layman, he is constituted the sole and final judge of all questions both of law and fact. Many cases have fully established that position where awards have been attempted to be set aside on the ground of the admis- sion of an incompetent witness or the rejection of a competent one. The court has invariably met those applications by saying, ' You have constituted 3'our own tribunal ; you are bound by its decision.' The only exceptions to that rule are cases where the award is the result of corruption or fraud, and the one other, which, though it is to be regretted, is now, I think, firmly established, namely, where the question of law necessarily arises on the face of the award or upon some paper accompanying and forming part of the award. Though the propriety of this latter may very well be doubted, I think it may be considered as esta- blished." {iMnn V. Blake, 44 L. J., C. P. 276 ; L. E., 10 C. P. 388; ante, p. 243.) If parties submit to an arbitrator the decision of a bare point of law, and he give an erroneous decision, his award is binding notwithstanding. {Steff v. A ndrews, 2 Mad. 6 ; Cldmi v. Ching, 6 Yes. 282.) If the parties submit to an arbitrator a mixed ques- tion of law and fact, they impliedl}^ impose upon him the obligation to determine their rights by the applica- tion of the rules of law to the facts established in evi- dence before him, and his award may be good or l)ad, as it appears upon the face of the award that he has properly done so. "When the arbitrator is silent in his SETTINd .\SI[»K AN AWARD. 203 award as to his law, the court cannot interfere though Chap . XVII. he be wrong. {lioiittUur v. 'lltirh, 1 D. k II. mi\.) "When he professes to decide accordin<^' to hiw, but does not do so, if the mistake appear on the face of the award, or is disclosed by some contemporaneous writing, the court will set it aside. (//"//.'/ v. liimiesH, 3 H. & N. t>l»3; 27 L. J., Ex. 31ft; jur Watson, B.) But, if the award be good on the face of it, the court will not admit an nthdavit or after-written letter of tiie arl)i- trator to show that the arbitrator was mistaken in fact or law [llnhiatc v. Killirh, 31 L. J.. Kx. 7 ; 7 11. .1" N. 41.S ; Brown v. Schmt, 13 M. \ W. 3!)7) ; nor even a contemporaneously written letter, unless such letter substantially forms part of the award, and was in- tended so to do. {Ante, p. 244.) Thus, where an award was accompanied by a letter from the arbitrator to one of the parties only, stating that he had not made any award as to the costs because he considered he had no power to do so, the award being good on the face of it, the court refused to look at the letter, as it did not form part of the award. (Ltv/'/o v. YoHmi, 10 C. B. 02(; ; 24 L. J., C. P. 200.) The courts will not allow the award to be impeached on the ground of the arbitrator's mistake, except the arbitrator admits the mistake and himself craves the assistance of the court {l>iiiii v. JilaLc, 44 L. J., C. P. 27<". ; L. P., 10 C. P. 388), and not always then, for the courts have refused to allow an arbitrator to impeach his award, on the ground that the legal eti'ect of it is ditierent to what he supposed it would be. (Greennood V. linmuhill, 44 L. T. 47; .1//'// v. (irrntslddr, 33 L. T. 507.) Where a gross mistake is made by an arbitrator, though not apparent on the face of the award, the court will sometimes set aside the award on the ground that the mistake as a matter of carelessness amounts in 264 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XVII. a judicial sense to misconduct in the arbitrator ; as where A. claiming two sums to be due to him from B., the contention l)efore the arbitrator is merely whether A. is entitled to l^oth or only one of those sums, and the arbitrator, meaning to give A. both sums, instead of adding them together deducts the smaller from the larger, and instead of directing the payment to be made by B. to A., awards that the payment shall be made by A. to B. {Re Hall and Hinds, 2 M. & G. 847 ; 10 L. J., C. P. 210 ; Ashton v. Pointer, 2 Dow. 651; and see Flijnn v. Rohcrtson, 38 L. J., C. P. 240; L. P., 4 C. P. 324.) The decisions on the power of the court to set aside an award for a mistake by the arbitrator are now of less importance than formerly, for the court having power in all cases to remit the award to the arbitrator for his reconsideration, it is conceived that no award will now be set aside for any defect which the arbitrator could cure, but that in all such cases it will be remitted to him. Many of such mistakes can now be corrected under the slip section. (Arbitration Act, 1889, s. 7 (<•)•) 3. Irregularity in the proceedings, such as want of notice of the meetings, or improper conduct of the arbi- trator in receiving evidence. These points have been already fully considered. {Ante, Chap. XI.) 4. Corruption or misconduct of the arbitrator, or a secret interest in the matters referred, or bias. {Ante, Chap. X.) It is seldom, at the present day, that any actual corruption or fraud is to be found in the conduct of arbitrators, but there may be ample misconduct in a legal sense when there is no moral culpability, {lie Hall and Hinds, 2 M. & G. 847.) Generally an award will be set aside if, unknown to one of the parties, the arbitrator has an interest in the matters referred to him {ante, p. 103), or he is in such a position, or his conduct has lieen such that he is likely 3. Ii-reguiarity iu the ]iio- ceedings. 4. Corruption in the arbi- trator. Interest or bias. 8ETT1N<; ASIDE AN AWAUD. 2()5 to be biassed in favour of one of the parties (pp. 104, 108). CnAr. xvii. AVhere an umpire sat with arbitrators, cme of wlioni was secretly interested in tlie matters referred, the umpire's award was set aside. {liUnuliurd v. Situ Fin- Ojiirr, (i Times L. E. aGf).) Accepting hosi)itality (hnung the arbitration from one Accepting of the parties in the absence of the other may cause the '""i"''^ '*-^'- award to be set aside {(iiiti\ p. 109). It will be sutticient ground for setting aside an award .Mi>.nn. *2()7 of l)Otli parties as unworthy of credit. {Smitli v. Suin«- Cnw. XVII hiirif, i) IVuv^. 31.) In PUmoie v. lloml (8 Dow. 21) the court refused to set aside an award on the jj;round that the arbitrator had heeu misled hy tlio evidence of a witness who nii^dit have heen cross-examined hut was not. It is no ground for setting aside an award that the unsuccessful party suffered a surprise, as an arbi- trator would have power to postpone the proceedings upon any reasonable application for that purpose. {Sniniiliill V. SnlnlilOll, 2H L. J., Ex. 12!). ) The court will not set aside an award although the Fraud an. I allidavit in support of the application disclose strong im[)utations upon the testimony of a material witness who was examined before tlie arbitrator. {Sralf^ v. 7v<.s7 Ln)ul(ni ]l'i Co., 1 Ilodg. !M.) Nor will the court set aside an award on the ground that the order of reference has been fraudulently obtained ; the application ought to be to set aside the order of re- ference, and should be made witliin due time after the order was obtained. (SadiCtt v. Oiceii, 2 Chitt. 3!>.) (). If an award l)e void the court will not on that «. wiu-n voi.i ground set it aside, if nothing can be done upon it with- "^jljl^'' '"'^ out suit or application to the court ; but if the party can enforce it without a[)plying to the court to enable him to do so — as, for instance, if the award order a verdict to be entered — the court will set it aside, though the sub- mission has been revoked, since otherwise the party might proceed to judgment and execution upon it. (l>n, V. Jiroini, 5 B. ^: C. 384.) liefore taking any proceedings to impeach an award Waiver of it should be considered whether anything has been done "^''tt^vanT to waive the objection to it. Many objections in them- selves fatal to an award, such as irregularity in the proceedings of the arbitrator or other misconduct ori his part, may be waived l)y a party proceeding in the reference after the objection comes to his knowledge. 268 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XVII. unless lie do so under protest. We have from time to time noticed acts amomiting to a waiver of objections. {Ante, pp.107, 145, 151.) Time allowed — until last day of next sittings. "What is a sufficient ' ' applica- tion. " Power of coui t to extend time. Sect. 2. — Time Uinitcd for Moving to set aside an Award. " An application to set aside an award may be made at any time before the last day of the sittings next after such award has been made and published to the parties." (E. S. C. Order LXIY. r. U.) If the award be made in vacation, an application to set it aside must be made before the last day of the next sittings ; but if the award be made during the sittings, the parties have until the last day of the following sittings to make the application. {Tie Burt, 5 B. & C- 668 ; Allenhy v. Proudlock, 4 Dow. 54.) " Before the last day of the next " sittings is construed strictly against the person moving to set aside the award, and the " appli- cation " must be actually made before, and cannot be made on, the last day of sittings. {Re Evans, 4 M. & G., 767 ; lie Holloivaij and Monk, 8 Dow. 138 ; Reynolds V. Askew, 5 Dow. 682 ; Freanie v. Pinneger, 1 Cowp. 23; Re Corporation of Huddersfield and Jacomh, 43 L. J., Ch. 748 ; L. R., 17 Eq. 476.) Service of a notice of motion, with or without an affidavit in support, on the opposite side, is " an applica- tion." It is not necessary the motion itself should be heard in open court before the last day of sittings. {Re Gnlloj) and Central Queensland, cOc. Co., 25 Q. B. D. 230; 59 L. J., Q. B. 460 ; Re Corporation of Huddersfield and Jaeonih, supra, on appeal, 44 L. J., Ch. 96 ; L. B., 10 Ch. 92; Smith v. Parhside Mining Co., 29 W. E. 154; 50 L. J., Ex. 144 ; 6 Q. B. D. 67.) Order LXIY. r. 7, which enables the court or a judge to enlarge the time for taking proceedings, has been held SKTTINO ASIDE AX AWaHI). '2<'.0 by Kekewich, J., to gi^'f juns'liction, on good cause Chai- xvri. sliown, to extend the time for niovinp; to set aside an award. (/iV Olirrr and Scott, 43 Ch. I). 310; 59 L. J., Ch. 148.) Before the repeal of the statute of "WilHani the Third which fixed the time for applying,' to set aside an award, it was considered that the couit liad no power to alter the statute. (7iV CoU,-;ic ,>/ Christ and Martin, 3 Q. B. D. 1(5.) Accordingly the court would not, after the expira- tion of the statutory period, entertain a motion, even by consent of the parties {Re Xorfli British Rail. Co., 35 L. J., C. P. 2(;2 ; L. R., 1 C. P. 401), to set aside an award on any account whatever {Reynolds v. Ankew, 5 Dow. 082), even for objections appearing on the face of the award (T.uithln, \) liiii;^. (lOo, whore the Court of Comnioii Pleas considered that an award was only })ul)lished within tlie statute when tlie party nii^lit have it hy payinf^ a reasonahle amount for the arhitrator's charges.) When an action without other matters in difference is Time in rase referred to an arhitrator hy order of court the award lit action' "^ shall, "unless set aside by the court or a judge, he ^^■•>i>«' "« 1 T , ', . ,, nil • 1 ± judfoncnt equivalent to the verdict of a jury. ihis does not aiivcteJ. mean that the case shall be deemed to have been tried by a jury, but only that the award may l)e enforced in the same way as the verdict of a jury. {Ohisbronlc v. Oiciit, 7 Times L. Pi. iVl\ Re DarUiuitoii ]Vii Co. (tnd Hardin,! [1891] 1 Q. P. 2-15, 247, p,,- Day, J.) The words " unless set aside by the court or a judge," must not be taken as importing, that under Order LIV. r. Pia, a master in chambers can set aside an award. The application is properly made to a divisional court in the Queen's Bench Division (see Goircr v. Tohitt, 81) ^\'. It. 1!)3), and in the Chancery Division to the Court ni Appeal. (See Sn-lc v. FanhU, U Ch. D. 2I>9.) We have seen {ante, p. 210) that an arbitrator to wlioin wIumv aH.i- an action is referred may direct judgment to be entered, d'iiv''t.-(rfu.l«- and any party may move to set aside such judgment, and """'• to enter any other judgment, on the ground that upon the finding as entered the judgment so directed is wrong. (Order XL. rr. 2, (5, Ga.) The application in the Queen's Bench Division is to a divisional court ; in the Chancery Division to the Court of Appeal direct. Sect. 8. — Applifittum ami I'l'm-r, (li)iiifi tlnitnii. The mode of applying to set aside an award is by .M.>.ic ..f up- motion, of which notice must have been given to the '' "^"^'""• other side (R. S. C. Order LII. rr. 1 — 3^ but not to the •272 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XVII. arbitrator. (Moselcij v. Simjm))!, 42 L. J., Ch. 739: L. R., 16 Eq. 226.) The notice, which is the ordinary two clear days' notice (Order LII. r. 5), shall state in general terms the grounds of the application, and where any such motion is founded on evidence by affidavit, a copy of any affidavit intended to be used shall be served with the notice of motion. (Order LII. r. 4.) The non- service of the affidavits with the notice of motion is a mere irregularity which the court may condone. {Ee Wt/fifiestoii Hospital and StepheuHon, 52 L. T. 101 ; 33 W. E. 551 ; Hampden v. WalUs, 26 Ch. D. 746 ; 50 L. T. 515 ; Peitij v. Daniel, 34 Ch. D. 172.) The application may be to either division of the court. "Where an action is in court the notice of motion and affidavits pro and con should be entitled in the action. Where there is no action in court, the notice of motion and affidavits need only be entitled in the High Court of Justice, and the division in which the application is made, and " In the matter of an arbitration l:)etween A. B. and X. Y." And in such a case, adding the words plaintiff and defendant to the names of the parties in the title of the affidavit does not vitiate the affidavit. {Re Imeson and Horner, 8 Dow. 651.) Who may It seems that a party in whose favour a mistake has aside an '''^* been made cannot avail himself of it to set aside the award. award. Therefore, where an arbitrator erroneously found a plea of set-oft" in part for the plaintiff and in part for the defendant, instead of wholly for the plaintiff, the court refused to set aside the award at the instance of the defendant ; and as they had no power to amend the}' gave the plaintiff" the option either of having the award set aside or letting it stand if he were willing to pay the defendant's costs on the issue erroneously found in his favour, the merits not being aff'ected and the order of nisi prius precluding a writ of error. (Moore SETTIST. ASIDK AN A\VAni>. 27H V. liiitllii, 2 X. .^- p. J:?('. : U' A. .V: E. 119.) If the award omit matters, the affidavit should set forth such matteis, and allege that they were discussed before the arbitrator, {llaurock v. Reed, lo Jur. 108(5.) And so, in every other case where the motion is made upon an objection not disclosed by the award, the facts necessary to impeach the award must be fully set forth in the affidavits. As to the right of the oi)posite party to insi)ect docu- ments referred to in an affidavit sworn, but not tiled, in an application to set aside an award, see llr Fnnirr (uid Lord 1H!>7 1 Q. B. ()C>7 ; 4r> ^V. l\. 48(). The courts always construe awards, and hear motions C!.>iiits f.ivour respecting them, with a desire to sustain the judgment of ' ' " ' the tribunal the parties themselves have selected (lie Tt'iuphnitdH and Herd, '.) l)()w. IM)(')), at the same time construing the awards according to the rules of common sense and the fair import of the language. (Stimciuirrrv. lumrr, 14 L. J., (,). B. 127, pn- Coleridge, J.) In oi)position to the motion the other party may Evi-lon.;o in produce affidavits to deny or explain away the matters I'lJlltio'ii.'*"' of fact alleged as the grounds of motion ; or if the T 2 276 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XVII. imputation be of a defect in law, he may support the suf- ficiency of the award by argument, so as at least to render it doubtful whether the award be bad, and if he succeed so far the court will not set it aside. {Cock v. Gent, 13 M. & W. 364.) Formerly, on showing cause, the arbi- trator's notes were not allowed to be referred to {Doe v. Preston, 3 D. S: L. 768) ; but the original agreement of reference was. {OairahJ v. Grei/, 24 L. J., Q. B. 69.) Costs of the The court has power over the costs of any order (Arbitration Act., 1889, s. 20), and, in general, when the courts dismiss a motion for setting aside an award they will do so with costs {Snook v. Hellyer, 2 Chitt. 43) ; but sometimes they will do so without costs. {Ware v. Befienfs Canal Co., 23 L. J., Ex. 145.) Where the defendant put a wrong construction on an award, which induced the plaintiff to move the court to set it aside, the court held that the defendant's construction was unten- able, and therefore discharged the plaintiff's rule, and would not give him the costs of the motion. {Hocken v. Grenfell, 6 Dow. 250.) When a motion for setting aside an award on a cause is dismissed, and nothing is said about the costs of the motion, they will be costs in the cause. {Clarke v. Owen, 2 H. & W. 324.) Appeal from A motion to Set aside is analogous to an application for aside!' ° '''^ ^ ^^®^^' trial, and ought to be in the interlocutory, not the final, list of appeals. {Re Delaf/oa Bay Co. and Tancred, 37 W. R. 578 ; 61 L. T. 343.) Second ap- The motion having been dismissed, the court will not plication. ordinarily entertain another application on a suggestion of fresh objections. {Helli/er v. Snook, 2 Chitt. 265 ; IL V. Great Western Hail. Co., 1 D. & L. 874 ; but see Sherry \. Oke, 3 Dow. 349.) ( 277 ) CHAPTEll XYIII. ENFOKcING AN AWARD. Sect. 1. — Ih/ Suiiuikhis itmlrr Arliitratimi Act, 188'.(. *' An award on a submission may, l)y leave of the court Chap. XVIIl. or a juclf^e. l>e enforced in the same manner as a jud^^'ment i.-„f^,7(.c.i ns a or order to tlie same effect." (Arbitration Act, 18H!», s. 12.) .jn.lgmeiit. This appHes only to suljmissions in writing out of court ; but by section H\ of the Act the court or a jud;.,'e shall, as to references under order of the court or a judge, have all the powers by the Act conferred on the court or a judge as to references out of court. The application to enforce the award may be made, and ApiiHcation leave given, on such terms as may be just, to enforce the ^'^.ta^^'uie ex- award at any time, though the time for moving to set it pirt'l- aside has not elapsed. (R. S. C. Order XLII. r. 31 a.) Although the repealed section 10 of the C. L. P. Act, ijeiovery of 1854, is not re-enacted in terms, an order for the '"'"'• delivery of possession of land may be enforced under this section. (And see l\. S. C. Order XLII. r. 5.) An application for leave to enforce an award under Aj>i>licatioii. this section is made by an originating summons before a master in chambers. (11. S. C. Order LIV. r. 4 f.) The summons should be intituled " In the matter of an arbitration between A. B. i^- C. I)., And in the matter of the Arbitration Act, 188'.)." It should ask for leave to enforce the award dated , in the above arbitration, in the same manner as a judgment or order to the same effect. (E.r parte Cancasidu Tradim/ Corporatum, 74 L. T. 47 ; 18116] 1 Q. B. 808.) 278 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XVIII. Evideuce iu support. Service of summons. Matters which may be relied on in oppcsi- tion to the application. Former practice. The applicant must produce before the master the original award (or a duplicate thereof), together with a copy, both to be verified by affidavit intituled like the summons. (Practice Master's Eules 20, Annual Practice [1897] 1233.) The respondent shall not be required to enter an appearance (Pi. S. C. Order LIV. r. 4 f), but the sum- mons must be served two clear days before the return thereof. (Order LIT. r. 4 e.) In opposition to the application, the respondent may show such matters, affecting the validity of the award, as could be used in answer to an application for an attach- ment. But it seems doubtful whether he would be allowed to go into matters dehors the award itself. The proper course in such a case is to move to set aside the award. {Daries v. Pratt, 25 L. J., C. P. 71.) Where the respondent is takmg steps to set aside the award the summons will be ordered to stand over pending the result of such steps. In the former practice which obtained as to applica- tions under the statute 1 & 2 Yict. c. 110 {infra, p. 282), it was almost a sacred rule that, on a motion for a rule to pay money pursuant to an award, no objection could be raised except for matters apparent on the face of the award. {Woollen v. Bradford, 33 L. J., (}. B. 129, j^cr Crompton, J.) In answer to the motion, the respondent party could rely on any defect apparent upon the face of the award, even although the time limited for setting it aside had elapsed. {Pedlcy v. Goddard, 7 T. Pi. 73 ; Ilandall v. llaiidall, 7 East, 81.) But matters extrinsic, which should have been made the subject of a motion to set aside the award, such as alleged corruption or mis- conduct of the arbitrator, could not be set up in answer to the application {Brazier v. Bri/aitt, 3 Bing. 167 ; Holland v. Brooks, 6 T. E. 161 ; McArthur v. Cawphell, 2 A. l^- E. 52; 4 N. & M. 208), unless to show that no award KNFoRClNCf AN AWARD. -70 liiid l)oen made, or that two arbitrators had not executed Cum. xviii. it at the same time (Wright v. Graham, W \\\. 181; 18 L. J., Ex. 2'.)), or that the arbitrator was acting,' without autliority. {Great Western Hail. Co. v, Waterford and Limerick Hail. Co., 50 L. J., Ch. rtl'd ; L. R., 17 Ch. I). 4113.) It was even held that the pleading's in a cause referred could not be looked to, though brouj^ht before the court by an affidavit idenlifyin*,' them, so as to show the award defective on its face. (]>(irie..) A cross demand, being a matter within the submission, but not brought before the arbitrator, could not be used as an answer to the motion. {Smith v. Johnson, 15 East, 213.) Under the former practice an application for an order in what cases m the nature of a judgment to enforce payment of money !|pii5ej["™'^'^'^ in pursuance of an award, would in general only be granted when an attachment would have been granted for its non-payment. {Crcsiciek v. Harrison, 20 L. J., C. P. 5(5 ; 1 L., ^[. .^- P. 721 ; Lainfi v. Todd, 13 C. 13. 27(); Tatternall v. Parkinson, 17 L. J., Ex. 208; 2 Ex. 342; Graham v. P'Arr,/, 18 L. J., C. P. 61.) If there were any doubt as to the validity of the award on the face of it, it would not be granted. {Dickenson v. AUsop, 13 M. & \V. 722 ; Mackenzie v. Sliffo and i:>hannon Hail. Co., 19 L. J., C. P. 142.) Nor, would it be granted, if the party applying were at the same time endeavouring to obtain the benefit of the award by any other legal pro- ceedings. If a person ordered to pay money under an award satisfied the court that he had a hond fide claim for a cross demand larger than the sum awarded, which 1k' might reasonably hope to support by way of set-oflf 280 THE LAW OF ARBITRATIONS AND AAV.U^DS. Chap. XVIII. Award con- taining no direction to pay- Order drawn up. Enforced as a judgment. Lssuing execu- tion. or counterclaim to an action on the award, the court would not make an order against him to pay the sum awarded. {Su-aijiic v. White, 31 L. J., Q. B. 260.) And where by an award the plaintiff was to pay the costs of a chancery suit between himself and the defendant, which costs had not 3'et been ascertained, a rule was refused to compel the defendant to pay other sums due under the award. {Lamhe v. Jones, 9 C. B., N. S. 478 ; 9 W. E. 202.) The solicitor of the successful party, claiming a lien on the sum awarded, could not have an order in his own name, but only in that of his client, unless there were collusion between the parties to defraud him of his lien. {Biuin v. West, 20 L. J., C. P. 1 ; 10 C. B. 420 ; Brearey v. Kemp, 24 L. J., Q. B. 310.) An order to pay pursuant to an award will be made though there be no direction in the award to pay ; the practice in this respect differing from that of attach- ments. {Baker v. Cotterill, 7 D. & L. 20 ; 18 L. J., Q. B. 345 ; Boiven v. Boicen, 31 L. J., Q. B. 193.) The order is made in the terms of the summons, and must be drawn up. When the order is made and drawn up, it will be enforced in the same manner as a judgment or order to the same effect. For the manner in which judgments are enforced see E. S. C. Order XLII. and Table of Official Eequirements on Issuing Execution, No. 24 A. (Annual Practice [1897] p. 1259.) The order, where the award is for a money payment, is an order that a writ of Ji.Ja. may issue. {Ex j^cn'tc Caucasian Trading Cvrpora- tion, 74 L. T. 47 ; [1896] 1 Q. B. 368.) The writ of execution issues immediately, except when a time is fixed for payment. (E. S. C. Order XLII. r. 17.) Iso demand is necessary or service of the order. If a time is fixed for payment the order will be served as directed in E. S. C. Order XLI. r. 5. To obtain the issue of a writ of execution, produce the ENFORCIN<} AN AWAIID. 281 original award, also tile a clu])licate thereof (no fee), at Chai-. XVIII. tlie Writ, C) 1 Q. B. 308.) An award under the L. C. C. Act, 1845 {lie Xcnhohl Awanl uml'-r <:ind Mvtnijinhtaii Rail. Co., 14 C. B., N. S. 40o), or ^ycis. under the Public Health Act, 1875 {lie IValhcr, 50 L. T. 207), cannot be enforced under section 12 of the Arbi- tration Act, 1881), but only by action, when the basis of the assessment or the title to the compensation is in dispute. Nor can an award under section 150 of the Public Plealth Act, 1875, be enforced under this section. {!{<■ U'iUrsd,;! Loral Jinan! and U'ri'iht iHiXi 2 Q. B. 412 ; 75 L. T. 18.) Sect. 2. — liij Attachment. To appreciate the rules upon which the courts act Oriidn of in granting an attachment to enforce an award, it is " "^ " necessary to consider the gradual development of the jurisdiction. The only method which formerly existetl of enforcing an award summarily was by punishing a party for not performing it, and this practice was only introduced in the reign of Charles II. At that time the i)ractice airose of making the submission a rule of court. This gave the 282 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XVIII. court jurisdiction to treat a refusal or wilful neglect of a party to perform an award made under such submission as a contempt of the court, and punishable by attach- ment. This power was confirmed by 9 & 10 Will. 3, c. 15, s. 1, which, after providing that a submission might be made a rule of court, enacted that, " In case of dis- obedience to such arbitration or umpirage the party neglecting or refusing to perform or execute the same or any part thereof shall be subjected to all the penal- ties of contemning a rule of court." "Although this statute is repealed by the Arbitration Act, 1889, section 1 of that Act gives to a submission by consent out of court, the effect of an order of court.' For a long time attach- ment was the only summary proceeding for compelling obedience to an award, whether the award were for the payment of money or for the performance of some other act. "Whenever a submission could be made a rule of court, the performance of the award could be enforced by attachment. But when a submission could not be made a. rule of court (as when it was by parol, or by agreement negativing its being so made), an attach- ment for non-performance could not be granted. Order to pay But attachment was a remedy against the person Vietc^ no, only ; and previously to the statute 1 & 2 Yict. c. 110 s. 18. the courts had no power to give a remedy against the property of the defaulting party. {Xeale v. PustletJiicayte, 10 L. J., Q. B. 134; Doe v. Ameij, 8 M. & W. 565.) To remedy this 1 & 2 Yict. c. 110, s. 18, enacted " That all decrees and orders of courts of equity, and all the rules of courts of common law, and all orders of the Lord Chancellor or of the Court of Review in matters of bankruptcy, and all orders of the Lord Chancellor in matters of lunacy, whereb}' any sum of money, or any costs, charges, or expenses shall be payable to an}' person, shall have the effect of judgments in the superior courts of common law, and the persons to whom any ENFORCINCf AN AW.MUK 'iSH sucli monies, or costs, charges, or expenses, shall he 'iim-. xviii liayaMi', shall !)»• doenu'd judgment creditors within the luciining of tiiis Act ; and all powers hereby given to the judges of the superior courts of common law with respect to matters dei)ending in the same courts shall and ma}' he exercised liy the courts of equity with respect to matters therein depending, and hy the Lord Chancellor and the Court of Iveviow in matters of bankruptcy, and by the Lord Chancellor in matters of lunacy ; and all remedies hereby given to judgment creditors are in like manner given to persons to whom any monies, or costs, charges, or expenses, are by such orders or rules respectively directed to be paid." This power was extended by R. S. C. Order XLIL r. 2-1, which provides that "every order of the court or a judge in any cause or matter may be enforced against all per- sons bound thereby in the same manner as a judgment to the same effect." The Act has, however, been rendered obsolete ijy the Arbitration Act, ISBK, s. I'i ; though some of the decisions under it are retained by way of guide to the practice under the later Act. {Ante, p. 278.) Proceedings by way of attachment are now seldom Attn?linient resorted to, to enforce an award, being too indirect a sortl-d to! remedy. The more direct, speedy, and inexpensive method of obtaining an order under section 12 of the Arbitration Act, 1889, is usually adopted. It is still necessary, however, to consider the decisions as to attacli- uient, since, there are cases, in which disobedience to the award makes it necessary to resort to this remedy. An attachment may be granted for non-payment of I» what cases costs awarded. (]3ut see Gruudji v. Wilson, 7 Taunt, ment grantcHl. 700.) Where one party has paid the whole of the costs of an award, which were payable partly by the opposite side, to get the award from the arbitrator, the courts may grant an attachment at the instance of the party who has paid the costs against the other party for not con- 284 THE LAAV OF ARBITRATION'S AND AWARDS. Chai'. XYIII. Discretionary. No attach- ment unless the award is distinctly im- perative. tributing his share of such costs. {Hicks v. lUchardson, 1 B. cV P. 93 ; Stohcs v. Leicis, 2 Smith, 12.) The paA'ment of interest accruing due after the date of the award cannot be enforced by attachment, but only by action. (Churchcr v. Stnuf/cr, 2 B. & Ad. 777.) Where a party has done all in his power to obey the award, the court will not grant an attachment against him. {DodcUnrjton v. Baihcanl, 7 Scott, 733 ; 7 Dow. 640.) Nor will they do so if it be doubtful whether the award is a good one {Tattcvsall v. Parkinson, 2 Exch. 342; 17 L. J., Ex. 208) ; or if a set-off has arisen since the award {lit'es V. liecs, 25 L. J., Q. B. 352) ; or where there has not been a performance, or tender of performance, of all conditions precedent, or concurrent acts, awarded to be done by the party applying for the attachment. {Stand- ley V. Heinniinrjton, 6 Taunt. 561.) So, an attachment will be refused after a long delay, say, four years, unless such delay is satisfactorily accounted for. {Storey v. Garrey, 8 Dow. 299 ; but see Bailyw. Curlin».''''• " 111 (louhtlul. the court will not ro into the question on an application for an attachment, hut will leave the party to his action to enforce performance of the award. (Carfiri/ v. Aitrln- son, 2 T). i*i: R. 222 ; Prrn/ v. Xirhohon, 1 Burr. 27H ; Jarhsou V. ClaHr, M'Cl. el' Y. 200.) Thus, where the defendant was described by a wronj^ christian name, in an award directin*]; him to pay a sum of money, the court refused to prant an attachment. (Darirs v. Pratt, IC C. B. r^f^C^ ; Lees v. Hartlci/, 8 Dow. 883.) And. where the jiarties ap;reed to abide by the award made by the " two arbitrators and their umpire," and the award was made by the two arbitrators only, the objection bein<::j taken that all three oufjht to have executed it, the court considered the point too doubtful to grant an attachment. {Hethrri Hilton \. linJtiuaou, 4 M. & W. fi08 ; 7 Dow. 192.) An attachment will not be p:ranted for not makinfj a payment on a Sunday. (ILilidell v. Miller, 2 Scott, N. R. im.) In one case, under peculiar circumstances, the court made a rule absolute for an attachment for non-payment of a sum awarded to the wife of one of the parties, althou<^h by collusion, payment of the sum had l)een made to her husl)and. (]l'if)ine v. Wyuue, 8 Scott, N. R. 142 ; 1 Dow., N. S. 723.) The court will not grant an attachment pending Xo attach- an application for setting aside the award. (/>«/////// !"^'J[.n'^',"i"'**' V. Matrhi'tt, Willes, 21o.) And. as the courts will not »eou'* pro- pernnt separate contemporaneous proceednigs for tlie same matter, an attachment will not be granted i)ending an action on the award. {Badhni v. Loredaif, 1 B. ».\: P. 81.) If the party was not in contempt at the time the action was brought — for example, if no demand was made until after that time — the application will be dismissed 286 THE LAW OF AKBITRATIONS AND AWARDS. Chap. XVIII. with costs. (Baker V. Wells, 9 Dow. 323; Higf/ins v. Willes, 3 M. & E. 382.) But, if he was in contempt at that time, an attachment may be granted on the terms of discontinuing the action and paying the costs. {Paull V. Paull, 2 Dow. 340.) But both proceedings will not be permitted ; and where a party obtained an attachment to enforce an award, and afterwards proceeded by action, the court set aside the attachment upon the terms of the defendant giving a bond to the plaintiff with sureties to the master's satisfaction, and conditioned to the same effect as in the case of a recognizance of bail. {Lonsdale V. Whinnay, 3 Dow. 263.) The courts, however, have granted an attachment pending a foreign attachment in the City of London Court upon the same award. {Coppell v. Smith, 4 T. Pt. 313, n.) Imprisonment under an attachment is no satisfaction of the award, and the party remains liable to an action upon it, at least, where his refusal to perform the award is wilful. {li. V. Hemsicorth, 3 C. B. 745.) An attachment will not be granted in favour of a person not a party to the reference, but to whom money is by the award ordered to be paid. {Re Skecte, 1 Dow. 618 ; iJiinn V. West, 10 C. B. 420 ; 20 L. J., C. P. 1.) Nor, even on behalf of an executor or administrator of a party who has died after the award was made, and to whom the money awarded was to have been paid (it. v. Mqff'ct/, 1 Dow. (538 ; except, perhaps, where the award directs the money to be paid to the party or his executors. {Rogers v. Stanton, 7 Taunt. 576.) An attachment will not be granted against a peer (Walker v. Earl Grosrenor, 7 T. Pi. 171) or a member of the House of Commons (Catmnr v. Knatclihnll, ib. 448) ; nor against the executor or administrator of the part}' by whom the money was to be paid or the act done. (Ncicton V. Walker, Willes, 315 ; and see Lewin v. Hol- brook, 11 M. c^' W. 110.) But, where an executor or In -whose favour an at- tachment lies. "Who liable to be attached. ENFORCING AN AWARD. 'iST administrator sulmiith' disputes in that character to <'iiai. xviii. arliitration. he will he liahle to an attachment for non- jierforniance of the award. {Sjilri/ v. U'chsttr, 2 Dow. -10; Re J one ph ,iitoration. for the non-performance of an award. {Giiilfonl v. Mills, '2 Kel). 1 ; Markfiizie v. Sliffo ami SJuiniiox Hail. Co., H (.'. I^.. -ir.O ; 1!) L. .T., C. P. 142 ; Loi,d,ni v. Lmiii, 1 "W. Bl. •iO.' : liiit now sec 11. S. C. Order XLII. r. 81.) Where a )nil»lic company was authorized hy statute to sue and l)e sucil in the name of their treasurer, who was not to he liahle in his person or goods by reason of his Ijeing defendant, the treasurer, being pa.rty to an action which was referred, was directed by the award to pay a sum of money, the court directed a mandamus to the treasurer and directors of the company, to pay the money so awarded. {!!. v. .SV, Katharine Dock Co., 4 B. & Ad. SfiO.) It was also held, in the same case, that as the defendant was not rendered personally liable by the Act of Parliament, an attachment could not issue against him for non-payment of the money awarded. {Corpc v. (rli/n, 8 B. i^- Ad. 801.) "Where a fnnc snir, having agreed to a reference, was awarded to deliver up two notes and pay a sum of money ; she married, and the husband refusing to pay : it was doubted if the court could grant an attachment against lioth or either of them. (Anon., 1 Cromp. 270. 3rd ed.) But an attachment will Ije granted against one of several of the parties against whom the award is made (Iiicltmond v. Parhiuson, 3 Dow. 703) ; or against a party residing out of the jurisdiction of the court. (Hopcraft v, Fcniior, 1 Bing. 378 : 8 Moore, 424.) 288 THE LAW OF ARBITRATIONS AND AWARDS. ClIAP. XVIII. Steps pre- liminarj' to attachment. Personal service of award, &c. necessary. "When per- sonal service dispensed with. Proceedinpjs by attachment, being l)v way of punish- ment for contempt of the order of the com't, the appKcant, before going to the court, must be prepared to show that the delinquent party has wilfully refused to obey the award with notice of his obligation. Therefore a copy — which must be a correct one — of the award, must be personally served upon the party who has to perform the award. (Thomas v. nairjiiifis, 28 L. J., Ex. 347.) Where the matter to be performed is the payment of costs which have been taxed, a copy of the master's allocatur must be served at the same time. {Bass v. MaHland, 8 Moore, 44.) "WTien the demand of per- formance of the award is made by an agent, a copy of the power of attorney must also be served. Tendering the documents, and leaving them with the party, is suffi- cient service, though he refuse to take them up. {Ellis V. Giles, 5 Dow. 255.) He must also, at the time of service of the copies, be shown the originals, in such a way that he can read the contents, though they need not be placed in his hands (Calvert v. Redfearn, 2 Dow. 505) ; and this whether a sight of them be demanded or not. (2 Lush's Pr. 1065.) Serving a copy of an award one day, and showing the original two days after, when the demand was made for performance, has been held insuffi- cient. {Lloyd V. Harris, 8 C. B. 63 ; 18 L. J., C. P. 346.) Where the arbitrators have enlarged the original time given them for making their award, a notice of such fact, and that the award was made within the enlarged time, should also be given to the party who has to perform the award. {Davis v. Vass, 15 East, 97 ; Doddington v. Bailivard, 7 Dow. 640; 7 Scott, 733.) Service of the original submission is not necessary. {Greenwood v. Djjer, 5 Dow. 255.) No order for attachment will in general be made without personal service, in any case where the party applying has another remedy, and this although the ENFORCING AN AWARD. 289 other party purposely avoid the service. (Rirhnu)n(l v. Chap, xviii. I'lirhinsim, 8 Dow. TOB.) lUit where it nppearcd that the party had personal knowled<^e of the award, from a former ser^'ice of the same award, the Court of Queen's Bench f,'ranted an attachment. (Hi' lioni-r, 1 B. »fc C. "ICA.) But personal service can only he dispensed with when it appears that the party is evadinj;]; service. (Thomas v. Unitlinriii, '28 L. J., Ex. 347.) Service on his solicitor is not sutHcient without showini; that every effort had l)een made to effect personal service. (Evans v. Pressor, 34 L. J., Q. B. 256.) The court will not infer personal service to hring the party into contempt : thus, where it appeared that the service was made at the defendant's house, and the servant with the rule and award went up- stairs, and returned with an answer that the defendant's attorney would he there on the followin;]; day, and would give an answer, it also appeared that the defendant was confined to his hed with 4:he gout, the court refused an attachment, observing that they could not infer from these circumstances that the rule and award had come to the defendant's hands. (Braiitlrr v. Vndeazi', 5 Taunt. 818.) If an award he against two, and one of them be personally served, but a personal service on the other be found impracticable, the court will make an order against the one served, (liivlimond v. PurLinstni, 3 Bow. 703.) To obtain an order for an attachment the person in Oral demanJ whose favour the award is made should, at or after the °; i*f'';"^"!' time of serving the copies of the award and other docu- ^ny. ments as above mentioned, make an express oral demand of performance of the award. (Lloyd \. Harris, 7 1). A: L. 118; 18 L. J., C. P. 346; Suinfni v. Sirin/ni, 2o L. J.. C. P. 303 ; 18 C. B. 485.) The fact that a particular time and place are fixed by the award for the performance does not dispense with the necessity of a personal demand. (Ihandon v. lirnndou, 1 B. i!t P. 394.) But it is not necessary the demand should be at the time fixed for A. U 290 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XVIII. Demand by agent or at- torney. performance. {Re Ci-aihe, 7 Dow. 603.) On the other hand it cannot be made until the time has fully expired. And, where a deed to be prepared by the one party, is to be executed by the other, on a certain day, it must be tendered on that day. {Doe v. Hoicell, 5 Ex. 299 ; 19 L. J., Ex. 232.) A demand made by one of several plaintiffs, of money payable under an award, is sufficient. {Drew V. Woolcock, 24 L. J., Q. B. 22 ; Bailij v. Cnrliiifi, 20 L. J., Q. B. 235.) But, where an award ordered a bond to be delivered to three plaintiffs, a demand by the three, or under a power of attorney from all, was held necessary. {Si/hes v. Haif/li, 4 Dow. 114.) It has been held that a personal demand of money payable under an award, with a view to a proceeding on a rule of court, may be dispensed with where the party is evidently keeping out of the way to avoid the demand. {SmitJi v. Troup, 7 C. B. 757 ; 18 L. J., C. P. 209.) When it is impossible or inconvenient for the party to make the demand personally, he may depute his agent, duly authorized by a power of attorney, to do so. A mere parol authority to demand performance of the award is not sufficient. It is also necessary that a copy of the power of attorney be left with the party upon whom the demand is made. {LaiKjher v. Laugher, 1 Dow. 284 ; Ex parte Fortescue, 2 Dow. 448; King v. Packwood, 2 Dow. 570; Hartley v. Barlou; 1 Chitt. 229.) Where costs are awarded, a demand by the solicitor of the party is by virtue of his character sufficient, without a power of attorney. {Ihiiudi v. Hill, 4 M. & W. 7; Mason v. Whitehousc, 4 Bing. N. C. G92.) So, a solicitor may demand a sum expressly awarded to be paid to the plaintiff or his solicitor. {Hare v. Fleaij, 20 L. J., C. P. 249.) A power of attorney is not necessary to enable an agent to demand the execution of a deed directed by an award. {Kenijon v. Grayson, 2 Smith, 61 ; Tehhutt v. Amhlcr, 2 Dow., N. S. 677.) ENFORCING AN AWAIin. 291 The precise tiling or sum awarded must be demanded, Cmai-. xvill. otherwise there can he no attachment for refusal, iv.man.l niu«t (Stnitt V. 7i<)///r.s% 7 Taunt. 21-1.) If part of the award '"• "• Hi'- I're- • 1 ii 1 11111 ,■ -1 •■ '■'■''^ matter IS void, the demand should he conhned accordingly. nwMr.l.-.i, or Thus, where two sums are directed to be paid, one of J!,' .'J.'/i""'"'' "" which the arbitrator has no power to award, if both i'«:ii.ip.i, sums are demanded an order will not be made for either, but. if the demand be for the sum only which is well awarded, the court will grant an attachment for that sum. (Poifiirr V. Ihittim, 7 M, i<: "W, 211 ; Re Cardifian iiiul Ifnidrrsnii, 22 L. J., Q. B. 83 ; Whitehead v. Firth, 12 East, 105: Taftenfall v. Parkinson, 2 Ex. 842; 17 L. J., Ex. 20S.) Where an award, upon a submission of all matters in difference between partners, directed the delivery up of a particular box, which was a matter not specitically referred to the arl)itrator, and which hatl been parted witli l)ef<»n' the date of the submission, it was held that an attachment could not be granted for non-performance of that part of the award. (Smith v. Reeves, 2 H. .t W. 306.) Where an award directed that the plaintiff should, on a given ([i\y, deliver up to the defendant a warrant for a hogshead of port wine lying in the London Docks, describing it by its number and marks, and the demand required the plaintiff to deliver up one hogshead of port wine, describing it, it was held that this was not a sufficient demand to support an attachment. {Hmisicorth V. Brian, 1 C. B. 131.) No writ of attachment shall issue without the leave of AppHi-ation the court or a judge, to be applied for on notice to the nK.,',\. party against whom the attachment is to be issued. (B. S. C. Order XLIV. r. 2.) In the Queen's Bench Division the application for an MoiU'<»fai>- attachment may be made to a judge at chambers on Mmunohs. summons duly served on the other side (Salni KfirJninj v. Posuanski, 13 (). I'.. D. 218; 53 L. J., (,). JJ. 428; f2 292 THE LAW OF AELITRATI0Ni5 AND AWARDS. Chap.XYIII. Motion. Evidence in support. and see Amstell v. Lesser, 16 Q. B. D. 187) ; but in Davis V. Gnlmoyc (39 Ch. D. 322 ; 58 L. J., Ch. 120) the Court of Appeal thought the application ought to be made by motion in open court, though it is not neces- sarily so made. {Ih., 40 Ch. D. 355; 58 L. J., Ch. 338.) The application is supported by the same evi- dence as that hereinafter pointed out as necessary upon a motion in open court. The judge, if satisfied that the applicant has established his right, may give leave to issue a writ of attachment. In all cases, however, a party has the right to apply for an attachment in open court. Formerly, the application in open court in the Queen's Bench Division for an attachment, was by moving for a rule nisi, and afterwards making it absolute ; in the Chan- cery Division it was by motion upon notice to the other side. Now, the practice in both divisions is the same. No motion or application for a rule nisi or order to show cause shall hereafter be made to enforce an award or for attachment. (E. S. C. Order LII. r. 2.) Notice of motion must be given to the parties affected thereby (Order LII. r. 3) ; and every such notice shall state in general terms the grounds of the application, and a copy of any affidavit intended to be used shall l)e served with the notice of the motion. (Order LII. r. 4.) An application for attachment will, in all cases, require to be supported by affidavit. The notice of motion and affidavit will be entitled in the action, when there is one in court. If there is no action depending, they will be entitled, "In the High Court of Justice. Division. In the matter of an arbitration between A. B. and C. D."^ The affidavit must verify the award, and show that it was made in time {Wohlenhenj v. Lageman, 6 Taunt. 251 ; Hicjfjins v. Street, 25 L. J., Ex. 285) ; and the original award is usually exhibited. When the time has been enlarged, the affidavit must show that it was ENFORCING AN AWARD. '293 reguhirly enlarged, and that the defendant had notice of Chap. XVlll. the enlargements, and that the award was made within the enlarged time. (Darix v. I'^/x.s, If) East, 1)7.) But where the time was enlarged hy an arbitrator, under a power given to him in the order of reference, and the order and enlargement were made a rule of court, it was held not to be necessary in moving for an attachment to verify the affidavit that the time was duly enlarged. {]>irl:inH v. Jarvis, o B. \- C. 528). There must also be an affi- davit showing that all the proper ste])s preliminary to the order being made — such as personal service of the necessary documents, and a proper demand, and refusal or neglect to perform the award — have been taken. ^Vhen the demand has been made by an agent under a power of attorney, there must be an affidavit of the due execution of the power of attorney. {LatKihi'r v. Lati;i)ii r, 1 Dow. 284.) It must also appear by affidavit, that the party applying has performed, or offered to perform, all conditions precedent directed by the award. (Standlinf V. Hemmiiifiton, G Taunt. 5(jl.) The affidavit should also show that the award remains unperformed, and the money (if awarded), unpaid. (See Gijord v. Gijfnnl, Forrest, 80.) AVhen the original award is lost, an affidavit verifying Lost award, a true copy of the award, and deposing that the original is lost, is sufficient to induce the court to grant an attach- ment. {Uobiiisint V. 7'(///.s', 1 Str. 52() ; ///'// v. 'rounxiiul, 3 Taunt. 45.) In opposition to the motion, the respondent may rely ^^\'*J^'^7tlon to upon any irregularity in the demand or service of docu- tin- motion, ments, as well as up(»n any of the other grounds upon which an attachment is refused. {Ante, p. 2H4.) If the affidavits used in moving are defective, a second ^!^[^^^ "!'''''" application, on amended affidavits, is seldom allowed (74<' Jliitirr, 13 (^. B. 341) ; and though the court on objections purely technical will dismiss the motion without costs, 294 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XVIII. the party opposing the motion may, after taking the objection, be allowed, without waiving his advantage, to enter into the merits, so as to ask that the motion be dismissed with costs. {Re Chamhcrlain, 8 Dow. 686.) Award direct- ing judgment. Power of arbitrator to direct. Requirements for judgment. Judgment when verdict taken. Sect. 3. — By Judgmoit and Execution in the Action Ilef erred. Where an action is referred to an arbitrator for trial, the common order of reference enables the party in whose favour the award is made, sometimes, at the expiration of a given time after service of the award, to sign final judgment in accordance with the award. Whether the order of reference contains such a pro- vision or not, the arbitrator, when the action only is referred, has power to direct judgment to be entered. (E. S. C. Order XXXVI. rr. 50 and 55c.) His award is equivalent to the verdict of a jury. (Arbitration Act, 1889, s. 15 (2).) It is therefore his dut}' by his award to give some direction as to the judgment to be entered. (Order XL. r. 2.) If he omit to do so in his award, he may do so by a supplemental direction as to judgment ; or application may be made to a judge in chambers. The "official requirements" in the Queen's Bench Division, for judgment on the award (see Annual Practice [1897] 1245, No. 28), are (1) production of the original award or a duplicate thereof, which need not be tiled unless the parties desire it ; (2) the order of reference and a copy of the pleadings are to be filed, and (3) also an affidavit of service of the award, if the time for signing judgment dates from the service of the award. No demand of performance of the award is necessary before signing judgment. When a verdict is taken at the trial suljject to a reference, the party in whose favour the award or certificate ENFORCING AN WVAUD. ^O;' is given, is entitled to sign judgment forthwith. (()"J'ui>l,' Cum'. .win. V. Pott, 20 L. J., g. 13. 88 ; 7 E. & B. 102 ; Cmnur v. Chart, 15 M. & W. 310.) And the leave of the court or a judge is not necessary. {Lloi/d v. Liicis, 2 Ex. \). 7 ; 4G L. J., Ex. 81.) Judgment being entered u[), the writ of e.xecution will i:.ve.utioii. issue forthwith. .\ certain day being fixed in the award for the payment For intiiv.si of money, although judgment may be entered, yet, if °".,j'"i"i execution be taken out before that day, the court will set it aside for irregularity, ((.'allnnl v. Patcrsoii, 4 Taunt. 819.) Formerly, execution could only issue for the sum awarded, and not for interest accrued thereon. (Lee v. Lintjard, 1 East, 400.) But now, under 11. S. C. Order XLII. r. 10, a writ of execution for the recovery of money may be indorsed with a direction to the sheriff to levy for the amount due, with interest after the rate of i'4 per cent, from the entry of the judgment. Sect. 4. — Bi/ Artii>it for a Moitrij Claim. In all cases the performance of an award may be In what ca-sM enforced by action, whether the sulnnission be by deed. He.' '" by writing not under seal, or by parol, or by order of court. In some cases it is the only remedy. Thus, where the submission is not in writing, and has not the effect of an order of court, an action is the only remedy at law for enforcing the award. So, when the validity of the award is doubtful, or on grounds hereinbefore considered (sect. 1), the court will lefuse to enforce the award by summons, the party in whose favour it is made will be left to his remedy by action (Cnsirid: v. II7 ; luol-^ v. Williams, 4 De G., M. ct G. 674.) The defendant may plead that, as to the whole or part Exc.ss of of a sum awarded, it was so awarded in excess of the J""«lietiou. jurisdiction of the arbitrator. {lincrlnich y. Metrojxditau Hoard of Works, L. li., 3 Ex. 307 ; 5 Ex. 221 ; 5 H. L. 41H ; 39 L. J., Ex. 131 ; 41 ih. 137.) So, if on any other ground the award is in excess of the submission the defence must be specifically raised. (See Kiini v. l>oircn,S M. ilv: "\V. (525; Great ]]'cstt'rii Rail. Co. v. Watcrfonl and Liiitcriclc Hail. Co., 50 L. J., Ch. 513.) The plaintitf is not bound, as formerly (Birlcs v. Trippct, Nou-perfomi- 1 Saund. 32), to allege the performance of conditions "H"il*,,°s p"""^.. precedent to his right to sue. Therefore if the defendant *li^^»t- intends to rely upon the non-performance of any condi- tion precedent he must specify the same distinctly in his defence. (R. S. C. Order XIX. r. 14.) AVhere an award is good as to part only, the defendant Defence as to may limit his defence to the part of the award which is liad, and as to such part plead specifically the material facts upon which he relies to show that it is not binding, as being in excess of the submission, or the like. In addition to anv defence the defendant niav have to '^'i"" "'"i , , " ' couuteiclaun. the award, he may plead a set-ori or counterclann. Sect 5. — Bii Actiou for Specilic Pirformauvc. The court will order specilic performance of an award, ^v'»i> notion in all cases where the thing directed to be performed is such as would be enforced, if the same were bv 300 THE LAW OF ARBITRATIONS AND AWARDS. Pai t perform ance. Chap. XVIII. agreement between the parties. Thus, an action will lie for specific performance where anj'thing is awarded to be done in specie, as the conveyance of land or the like (Hall V. Hard)/, 3 P. Wms. 190; Wood v. Gnffith, 1 Swanst. 54), unless there be uncertaint}^ in the award. {Hopei-aft V. Hickman, 2 S. & S. 130.) But to compel the execution of an award for the payment of money, the proper remedy is either by summons or action on the money claim. (3 P. Wms. 190, n.) There are cases in which the court has specifically enforced an award not binding in form of law {Norton V. Mascall, 2 Yern. 24) ; but to warrant interference in such a case there must have been assent or part per- formance, and in Blunddl v. Brettarr/li (17 Yes. 232) Lord Eldon said he had met with no authority for the specific performance of an award by arbitrators, appointed for the valuation of interests, where their acts, for the purpose of carrying into effect the agreement for an award, were not valid in law, as to time, manner, or other circumstances, unless in the cases of acquiescence or part performance ; and accordingly, in the case before him, refused specific performance of an agreement to sell at a valuation, which, on the construction of the agree- ment, the court held was to be made during the lives of the parties, one of them having died before the award was made. The interference of the court to compel specific per- formance is in exercise of its ordinary jurisdiction as applied to agreements, and not of any jurisdiction pecu- liar to awards ; it follows that many, if not all the principles applicable to ordinary actions of that nature must apply. {Xickcls v. Hancock, 7 De G., M. & G. 314 ; Fry on Specific Performance, 699.) Where, therefore, the agreement contained in the submission is such in its character as, whether from its unreasonableness, unfair- ness, or imprudence, the court would not specifically Performance of an award enforced as of a contract. ENFORCING AN AWARP. 301 enforce, this will prevent its interference in respect of Chai-. XVIII. tlie award foumled on it. Nor can tlie court interfere where the award is excessive or defective — not if it be excessive, for, so far as the arbitrator has gone beyond his authority, there is no Ijinding agreement between the parties ; not if it be defective, because the parties had agreed to be bound l>v his decision on the wliole, and not on part, of the matters submitted to him. (Xirh'h v. IlaiirocI:, 7 De G., M. \- G. 300.) And although an award on part of the matters referred may be good, the court will not enforce it unless it dispose of all matters referred. (///Wf v. I'rtfit, 1 Ch. Ca. IH;'.^ The court will not generally take into consideration the I'lireaaouable- reasonableness of an award in reply to an application for specific performance; for, the arbitrators being judges of the parties' own choosing, it has been held that the award cannot be objected to by either of the parties on the ground of its unreasonableness. {Mrdcolj)' v. Ives, 1 Atk. 64.) Thus in Hom/ v. Grijith (1 Swanst. 43) the court enforced specific performance of an award which ordered the sale of an estate under circumstances which greatly depreciated its value. ]3ut the rule that the court will not consider the reasonableness of an award cannot be laid down as a universal one. {I'arhcn V. Whithu, T. cl- R. 3()(); Xirhrla v. Ifaiicorh; 7 De G., M. & G. 300, 315.) The court will not grant specific performance unless it can give full relief to both parties. (Blarh'tt v. Bates, L. R., 1 Ch. 117 ; 35 L. J., Ch. 324.) It seems that, even if an award be one of which specific Ktrectof performance might be enforced, a party could not, after ceediugs. having taken ineffectual proceedings to set it aside, enforce specific performance, {lilarkett v. Bates, L. R., 1 Ch. 117.) But in one case it was held no ground for refusing a decree for specific performance, that the Court of King's Bench had granted an attachment against the defendant for non-performance of the award, iii 302 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XYIII. refusing to execute an authority to sell an estate, and had discharged the attachment on receiving their officer's report that the defendant had not been guilty of a contempt. (Wood v. Griffitli, 1 Swanst. 43.) The specific performance of an award which directs the doing of illegal acts will not be enforced. (Fry, 226 ; Walters v. Morgan, 2 Cox, 369.) Xor will the court grant specific performance when a long time has elapsed without any attempt to enforce the award. [Eads v. Williams, 24 L. J., Ch. 531.) Illegality and laches. ( 303 ) CTTArTET^ XTX. REFERENCES TO OFFICIAL AND SPECIAL REFEREES. Sect. 1. — 'Die Position aiuJ Poircrs of Ilcferci's GeiirraUi/. The Arbitration Act, isSil, provides for two kinds of '^'"^i- -^I'^- references to otticial and special referees, viz.: — (1) Keivrcnces of Eeference for incpiirv and report (s. 18) ; ('2) Reference *^^*'' •^'"'^s- for trial (s. 14). AVe will deal with them separately later. Such references are not references to " arbi- tration." Olmuhui v. Xortou, <;6 L. T. 178; 18!)2 1 Q. B. 403.) Official and special referees perform functions ana- logous to those of the masters under the C. L. P. Act, 1854, with the addition of such special powers as are conferred on them by statute. The official referees are permanent officers attached to OHi.ial the Supreme Court, and appointed l)y the Lord Chancellor. "^ ' '^"^^'*' A special referee is a person appointed to deal witli •'Special the particular matter referred. "When the reference is *" ^ ^'^^ for in(]uiry under the Arbitration Act, 188i>, s. 18, he is appointed by the judge or the parties. Wlicii the reference is for trial under section 14, he must be agreed upon by the parties. (Loiuhni, <(r. Iiisiirainc Co. V. British America AsHiiraiice Co., 52 L. T. 385.) Official and special referees have the same powers All n-ferecs and duties, and proceed in the same manner in all !|,*^.',.rTaI!j respects, and are to be deemed officers of the court. Uutii«. (Arbitration Act. 1889, s. 15 (1).) The W. S. C. Order XXXVI. r. 7, enables the court or a judge at any time to order any cause, matter, or issue to 304 THE LAW OF AEfilTRATIONS AND AWARDS. Chai'. XIX. Discretionary power to refer not generally controlled. Order of reference slioiild be clear. Reference may be at any stage of proceedings. be tried by an official referee or special referee with or without assessors. The discretion of the judge or a court in ordering or refusing a compulsory reference will not generally be interfered with on appeal {Hoch \. Boor, 49 L. J., C. P. 665 ; 43 L. T. 425 ; per Thesiger, L.J. ; Ward v. PUley, 49 L. J., Q. B., 705 ; 5 Q. B- I>- 427 ; j)er Baggallay, L.J. ; Kiwjht v. Coales, 19 Q. B. D. 296 ; 56 L. J., Q. B. 486), except where it clearly appears that the discretion has been wrongly exercised and injustice done thereby. {Ormerod v. Todmorden Mill Co., 8 Q. B. D. 664 ; 51 L. J., Q. B. 348 ; 30 W. E. 805 ; Case v. WilUs, 8 Times L. E. 610.) An order of reference should point out whether the reference is under section 13, for report, or under section 14, for trial. If it is under section 14 it should say whether the whole action or only certain issues are re- ferred, and if only certain issues, which. (See Longnian V. East, 38 L. T. 15, i)(>r Brett, L.J.) The forms giyen in the rules should be strictly followed. {Wenlock v. River Dee Co. ; 19 Q. B. D. 155.) A reference, either for report or trial, may be directed at an}- stage of the proceedings. Li Dunkirk CoUierij Co. V. Lever (L. E., 9 Ch. D. 20 ; 39 L. T. 239) there was a claim Ijy the plaintiffs for damages by reason of the non- performance by the defendants of a contract ; at the trial of the action the M. E. held that the plaintiff's were entitled to relief, and ordered that the defendant should pay them their costs of the action, and that it should be referred to a special referee to inquire and report as to damages ; and that after he had made his report, such further order should be made by the judge in chambers with respect thereto, and the subsequent costs, as should be just. Li Stjkes y. Brook (W. N. (1880) 187 ; 29 W. E. 821), the parties having agreed to refer certain questions for inquiry, Fry, J., ordered that the agreed REFERENCES TO OFFICIAL AND SPECIAL REFEREES. 30.') matters should he referred, and that the action slioiild Cicap. XIX. stand until the report should he made, with lihortv to apply. Upon an appeal against a compulsory order of refer- Apical, ence under the C. L. P. Act, 1854, the court varied the order hy direetin^j a reference to an official referee. (Martin v. Fi/ff, oO L. T. 7*2.) And where the rever.sal hy the Court of Appeal of a judcjraent of the court helow necessitated the takinjj; of very difficult accounts, the court directed them to f^o to the official referee instead of to the chief clerk. (Il>rh"fn,irauhl v. B matm'l 18971 1 Ch. lOfi.) The Lord Chancellor l)y order 4th Fehruary, 1889, Direction of directed that all references of causes other than those ,.,.iior. involvinf]j questions of costs or questions of retainer, and all references to assessdaraage, except those under writ of inquiry, should in future he made to the official referees. \\lien in the Chancery Division a cause or matter is Of tran'.fem-l transferred from one judtije to another for trial only, the jud,!::;e to whom the cause or matter is transferred may direct that any further proceedings therein, hefore or after the hearing or trial thereof, sliall he taken hefore an official or special referee. (R. S. C. Order XLIX. r. 2.) An application for reference is usually made hy sum- Application mons, which may he heard in chamhers either before "''""'•y ''J' "^ , summons. a judge, master (Order LIV. r. 12 a), chief clerk, or district registrar, and is generally supported hy an affi- davit of circumstances rendering the reference desiralde. An appeal from a compulsory order of reference made ApiK-nl from hy a judge sitting at niai jiriiis or assizes must be brought refp^encf. direct to the Court of Appeal. (IfncJi v. Bod)-, 49 L. J., C. P. 665 ; 43 L. T. 425.) An appeal from a like order made hya judge in cliamhers is to the divisional court. (//'.) Business referred to the otticial referees, not naming nistribntion • 1 -TMia 1. of business any one of them in particular, is distributed amongst nm...- official them in rotation hy the clerk to the senior ofhcial referee, r.'- •• - (R. 8. C. Order XXXVI. r. 45.) Upon i)r()duction to the rota clerk to the official referees, Portugal Street, A. X 306 THE LAW OF ARBITRATIONS AND AWARDS. Chav. XIX. Reference to particular referee. Application to proceed with the reference. Where referee may hold his sitting. View. Referee to sit dediei/idiem. Lincoln's Inn Fields, of the order, or a duplicate of it, he will indorse the name of the official referee to whom that business is referred (r. 46). The court may refer any business to any one in particular of the referees (Order XXXVI. r. 45), and the parties may agree for a reference to a particular referee. (Arbitration Act, 1889, s. 3.) "When the parties are agreed, it is usual to insert the name of the referee in the order. The clerk, in making distribution of the business amongst the official referees, will have regard to such references. (Order XXXYI. r. 47.) An order of reference being obtained (and in case the reference is to an official referee, the name of the referee in rotation indorsed), the party having the conduct of the reference should apply to the referee to make an appointment for proceeding with the reference. The appointment, when obtained, must be served upon the other parties to the reference. The referee may, subject to the order of the court or a judge, hold the trial at, or adjourn it to, any place which he may deem most convenient, and have any inspection, or view either by himself or with his assessors (if any), which he may deem expedient for the better disposal of the controversy before him. (Order XXXYI. r. 48.) A referee, whether official or special, has power, subject to the control of the court, to give a peremptory appointment for the hearing of the reference, and in default of appear- ance by either party to proceed in his absence. {Wcnlock v. lUvcr Dee Co., 53 L. J., q. B. 208 ; 49 L. T. 617.) The referee shall, unless otherwise directed by the court or a judge, proceed with the trial icrrc Association 1891 j 2 Q. B. 23().) An official referee has power to make an order Grant .-oiu- granting a commission to examine witnesses al)road. ""'*'*'""• and an appeal lies from his decision to the judge in chamhers. {ILtifiranl v. Mutual luscrrr Assoriafiou (1891] 2 Q. B. 23G ; 05 L. T. 491.) A referee has no power to commit any person to No j.nwir to prison, or to enforce any order hy attachment or other- "^'""" • wise. (Order XXXVI. r. 51.) A referee has power under B. S. C. Order XVI. r. 11, Ameudmeui. to add parties whose presence may he necessary to settle the (juestions involved in the case. (Bifnir v. Jiroun, 22 <,). B. I), r.57 : 58 L. .7.. (;). P.. 110.) X 2 308 THE LAW OF AREITRATIONS AND AWARDS. Chap. XIX. Statins; a case. Explanation ma)- be re- quired from referee. Fees to be taken by official referees. A referee may, before the conclusion of any trial before him, or by his report under the reference made to him, submit any question arising therein for the decision of the court, or state any facts specially, with power to the court to draw inferences therefrom, and in any such case the order to be made on such submission or statement shall be entered as the court may direct. (Order XXXYI. r. 52.) This enables the referee to make a preliminary report in the shape of a case for the opinion of the court. {Be Great Britain Assurance Co., 19 Ch. I). 39.) The court shall have power to require any explanation or reasons from the referee. (Order XXXYI. r. 52.) Such explanations are not given on oath. (Broder v. SaiUard, 24 W. E. 456 ; 2 Ch. D. 692 ; Bust v. Victoria Graving Dock Co., 36 Ch. D. 113, 129.) If the court were satisfied that the referee on the evidence which was laid before him must have decided the case on some ground which in law was untenable, then the court has power to ask the referee his reasons for arriving at the particular conclusion, and also his reason on any par- ticular point of law, if that were necessary, in order to do justice between the parties. {Miller v. Pillinf/, 51 L. J., Q. B. 481 ; 9 Q. B. D. 736 ; jJcr Cotton, L.J.) The fees to be taken by official referees are fixed hy " the Order as to Supreme Court Fees, 1884," which came into operation on the 25th da}' of January, 1884, and which is as follows so far as it relates to — Proceedings before an official referee : £ On every reference And for every hour or part of an hour he is occupied beyond two full days On every sitting elsewhere than in London or Middlesex a further fee for every night the official referee shall be absent from London .... And for his clerk ..... 10 a 1 11 15 REFERENCES TO OFFICIAL ANI> SI'Kl lAL IIKFEREES. 809 By an order diitcd 20th December, 1H87, in proceed- , s. 15 (2).) It has in s(;veral cases been tixed at five guineas a sitting [Wallin v. Lichfield, "\V. N. (1870) 130; Court v. Pcniu, M.li., iJUt January, 1870, lieg. Lib. 13. 127), the referee in each case being a (Queen's counsel. In a case in which the inquiry extended over twenty-seven days and parts of days tlie remuneration allowed was two guineas per hour and twenty-tive guineas for the report. {Ciillier v. CItiulnick, 71) L. T. Jour. 2!>3.) AVhen a matter is referred to an othcial referee under Refcreuco by section 3 of the Arbitration Act, 1881), the referee is in SiaT^lSico. the position of an arbitrator acting under an ordinary sul)mission bv consent out of court. 310 THE LAW OF ARBITRATIONS AND AWARDS, Chap. XIX. Reference for inquiry and report. 52 & 53 Vict. c. 49, s. 13. Inquiry-. ■' "An J* que.s- tion arisinc'." Class of ques- tion.s referred tinder the section. Sect. 2. — Reference for Inquiry and lleport. Subject to rules of court and to any right to have particular cases tried by a jur}-, the court or a judge may refer any question arising in any cause or matter (other than a criminal proceeding Ijy the Crown) for inquiry or report to any official or special referee. (Arbitration Act, 1889, s. 13 (1).) The court can refer for inquirj' and report whether the parties desire it or not. Inquiry signifies a judicial inquiry by the examination of witnesses, and not merely personal observation. The word is used because the proceedings are not to have the same result as a trial. {Wenlock v. River Dee Co., 19 Q. B. D. 155 ; 56 L. J., Q. B. 589.) The words "any question arising" mean only questions which must necessarily arise in the action, and not ques- tions which will only arise if one of the parties is suc- cessful on other issues. {Weed v. Ward, 40 Ch. D. 555 ; 58 L. J., Ch. 454.) In a reference under this section, what the referee has to do is not to dispose of the action, nor to settle the matter at issue, but to report on certain specific questions. If facts are in dispute it may be referred to him to find what the facts are. In that case he is to determine what they are. He is not to decide any issue of fact or law, but to find the materials on which the court is to act. {Longman v. East, 3 C. P. D. 142, jjcr Bramwell, L.J.; Badische Anilin, die. Fahrih v. Levinstein, 48 L. T. 822.) At the time of the passing of the Judicature Act, 1873, the common law courts had no power to refer only a question in a cause or to direct the arbitrator to report in order that the court might afterwards give judgment in the action. In the Chancery Courts it was a common practice to refer to the chief clerk, not only certain questions, but all the questions in the suit, for him to REFERENCES TO OFFICIAL ANM SI'KC !AI. UKFEREES. :ni report on, and on that report the courts would review Chai-. XIX- what he had re^wrted and make their decree. The Judicature Act, 1H78, was fnuiied and passed with tlie ohject of having the same practice in iiU courts, and section o() of tliat Act, which has heen rcphiced by section 18 of the Arbitration Act, ItSHU, gave to all courts the l)ower to refer questions to he reported on in the same way as had heen done in Chancery. (CrnHishnnl,- v. FUtatiiuj Suiininiiin Bath Co., 45 L. J., C. P. 0 Ch. D. 28 ; 31) L. T. 242 ; U'alhrr V. Buiikt'U, 22 Ch. 1). 722; 31 W. R. 138.) If he can state any facts upon his report, or any figures that will enable the court to revise it and adopt a different con- clusion — to adopt the report either wholly or partially — it may be done. {Il>.) Having made his report, the referee shall on the same Notice of re- day cause notice thereof to be given to all the parties to ^'*^' ' the trial, or the reference before him, l)y prepaid post letter to tlie address for service of each party, who shall in due course of post be deemed to have notice of such report. (Order XXXVI. r. ~)S.) The report may be adopted wholly or partially l)y tiie I'ow.-rof •court or a judge, and if so adopted may be enforced as a ^^iih lepoit. judgment or order to the same effect. (Arbitration Act. 18K1), s. 15 (2).) The court may remit the matter for further considera- tion to the same or any other referee, or if it think tit it may wholly disregard the report, and decide the question referred to any referee on the evidence taken before him, either with or without additional evidence, as the court may direct. (Order XXXVI. r. 52.) Where the report of the referee has l)een made in a wii.-u rnrtb.r cause or matter, the further consideration of which has alijolirued, * been adjourned, it sliall be lawful for any party, on the hearing of such further consideration, without notice of motion or summons, to apply to the court or judge to adopt the report, or without leave of the court or a judge to give not less than four days' notice of motion, to come on with the further consideration, to vary the report or to remit the cause or matter, or any part thereof, for further consideration to the same or any other referee. (Order XXXVI. r. 54.) It is not necessary 314 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XIX. when not. Where report disposes of action. for the notice of motion to state the grounds on which it is desired to vary the report, but a party who has given no notice of motion to vary the report or remit the matter for re-hearing will not be allowed to go behind the report and look into the evidence on which it is founded on the application of the other party that the report may be adopted. (Ee Fitton's Estate, 42 W. E. 281.) "Where further consideration has not been adjourned it shall be lawful for any party, by an eight days' notice of motion, to apply to the court to adopt and carry into effect the report of the referee, or to vary the report, or to remit the cause or matter, or an}- part thereof, for re-hearing or further consideration, to the same or any other referee. (Order XXXYI. r. 55.) When the effect of a report made is to dispose of an action the proper course is not to move for its adoption under this rule, but to set it down on a motion for judg- ment under Order XL. r. 7. {LarJdx v. Lhnjd, 64 L.T. 507.) Reference f(ir trial. 52 & 53 Viet. c. 49, s. 14. Sect. 3. — lief crencc for Trial. In any cause or matter (other than a criminal pro- ceeding by the Crown) — {a) If all the parties interested who are not under disability consent : or, {h) If the cause or matter requires any prolonged examination of documents or any scientific or local investigation which cannot in the opinion of the court or a judge conveniently be made before a jury or conducted by the court through its other ordinary officers : or, (c) If the question in dispute consists wholl}^ or in part of matters of account; the court or a judge may at any time order the whole cause or matter, or any question or issue of fact arising therein, to REFEREN'CES TO OFFICIAI, AND SPKCIAL KErKUKKS. SIT) be tried ljeft)rt' a special referee or arbitrator Chai-. XI x. respectively a^'reed on l)ytlie parties, or before an olMcial referee or otticer of tlie court. (Arbitration Act, 188!), s. 14.) The power to refer the whole action for trial under \vii«n onler this section exists, tirst, where the parties consent, and, ..uisoiilv. secondly, without their consent if the cause or matter requires prolonged examination of documents, &c., or if the dispute is matter of account. Unless there is some substantial question or issue of one of tlie classes in- dicated there is no jurisdiction to make a compulsory order under the section. {Ornnnxl v. Toilmnvdot Mill Co., 8 Q. }i. ]). ()«)-i ; 4C) L. T. iWJ.) Keading a great number of letters is not a " prolonged " I'ioIoukcJ examination of documents" (0'nr»'.s 'J'noitn' w Jkinrtt, exa'iunatiun W. N. U-STo) 204) ; neither is the consideration of a long inents." set of depositions taken on commission. {Ilaniiltoii v. Mtnliants' Mdriiic IiiHurancc Co., 58 L. J., Q. B. 544.) The 57th section of the Judicature Act, 1878, which is repealed, unlike this section, allowed issues of fact only, and not of law, to be referred, and on this ground it was considered that "prolonged examination of documents" within the meaning of the section " must be a prolonged examination of such documents as it is necessary to in(|uire into and decide upon in order to enable the judge lo leave the questions of fact to the jury. If the examina- tion of the documents or a construction of the documents is not at all required in order to enable the trial of the issues of fact, but only to determine a question of legal right, 1 doubt much whether the examination of such documents is within tiie meaning of the section." {Ormcnid v. Toiliiionlrii Mill Co., 8 Q. B. D. 604 : 51 L. J., Q. B. 848 ; ]i,r Brett, L.J.) Where to an action for wrongful dismissal the defendant justified the dis- missal on the ground of " misconduct, disobedience, negligence, and incompetence," and in his particulars set 316 THE LAW OF ARBITRATIONS AXD AWARDS. Chai'. XIX. " Scientific investiga- tion." Local investi- gation. "Matters of account." forth, amongst other things, that the phiintiff, l)cmg partly paid by percentage on profits, " had invoiced wheat to the customers at incorrect weights, and overcharged them for the wheat actually delivered," it was held that this was a matter involving an unusually and necessarily prolonged examination of documents, because the only way to show that the plaintiff fraudulently put wrong weights in the invoices was by accumulating instances to show that he did it s^'stematieally, which involved an examination of books and documents relating to pur- chases and shipments extending over months. {HocJi v. Bdor, 49 L. J., C. P. 665 ; 43 L. T. 425.) Issues of fact in a patent case require " scientific investigation " (Saxhij v. Gloucester Wagun Co., W. N. (1880) 28), but not so takmg expert evidence as to the genuineness of pictures. {.Leigh v. Brooks, 5 Ch. D. 592 ; and see Ormerodv. Todmorden Mill Co., supra.) Mining disputes are not cases which necessarily in- volve local investigation. {Casey. IVillis, 8 Times L. R. 677.) The expression "matters of account" will receive a liberal construction. (Bou-clipe v. Leigh, 3 Ch. I). 292; 24 W. E. 782.) The questions of account intended to be dealt with are those which could formerly be referred to a master under section 3 of the C. L. P. Act, 1854. An action on a builder's bill, consisting of many items, each of which it appeared probable from the pleadings would be separately disputed, was held to involve matters of account which could be referred. {U'<(rd v. Pilley, 5 Q. B. D. 427 ; 49 L. J., Q. B. 705.) An action for money had and received, to which there was a plea of an existing partnership, was held to give jurisdiction to refer. {Gooda-iii v. Buddeii, 42 L. T. 536.) In an earlier case, a claim in an adminis- tration suit consisting of twenty-four items, in many or perhaps all of which it appeared questions as to price and REFERENCES TO OFFICIAL ANH Sl'KflAL REFEREES. MIT wnrranty, \-c., mifjlit arise, was referred. ilioircHfJr v. '"^i- -'^'■'^ h-i;,lt, :i Ch. I). 2!>'2 : 24 W. R. 782.) \Mien there is a question of account wliich can he re- -itirivUction ferred conipulsorily under section 14 of the Arhitration iMvolvesTSIt Act. 1880, tlie court has power tlierewitli to order the to refer all wliole action to he referred {Ilmlhatt v. lianmtt ,18931 1 Q. ]^. 77 ; (52 L. J., (}. I^. 1 ; and see KuKjht v. Coales, 19 (,). B. I). 2i)() ; ;jG L. J., (^. B. 48() : W(ml v. PUlni, 49 L. J., Q. \i. 705 ; 5 Q. B. D. 427 ; Martin v. Fiifv, 50 L. T. 72), even when those issues involve questions of fraud affect- inf,' the character and reputation of tlie parties {ILn-h v. hour, 49 L. J., C. P. 005 ; 43 L. T. 425 ; Sarin- v. Puuio. :ini\ 44 L. T. 308) ; though, as a {];eneral rule, a man is entitled to have a charge of fraud tried in open court, and such issues ought not to he referred, unless so mixed up with matters of account as to he incapahle of hoing tried separately. {Lri'jJi v. 7>r"o/,-.s-, 5 Ch. D. 592: KJ L. J., Ch. 344; HocJt v. lioor, >iit])ra ,- lliis.scll v. Harris, (55 L. T. 752; Dinnnock v. PiaiiclalL 5 Times L. B. 358.) Where any part 6i the dispute in a cause or matter ReienMice relates to a matter of account the cause or matter may ii„*j",^nlv'^'' he compulsorilv referred, although in certain events it M"ehiion ns 1 ' i 1 i • 11 .11. to liability. may become unnecessary to determine the matter of account. {Hnrlhatt v. liarnrtt [1893] 1 Q. B. 77 ; (')2 L, J., Q. B. 1.) But in such a case the court in the exercise of its discretion ought to see that the dispute as to matter of account is a substantial part of the dispute between the parties. {Ih. ; Kni'iht v. dmlrx, 19 (J. B. 1). 290 : 50 L. J., Q. B. 486.) An order of reference may be made on such terms as Tower of to costs as the authority making the order thinks just. coJts.*'' (.\rbitration Act, 1889, s. 20.) In the al)sence of any provision in the order of reference the referee has the same power over costs as a judge. (Order XXXM. r. 55/*. ) If neither the order of reference nor the award or report gives costs neither party is entitled to any. 318 THE LAW OF ARBITRATIONS AND AWARDS. Chap. XIX. Issues to be found separately. Directing judgment. Effect of referee's report. Judgment upon the re])ort. Sending liack a report to a referee. Mode of ap- plication. Where more issues than one are referred for trial, and the costs abide the event, the referee ought to find the issues separately, to enable the taxation of costs to follow the event. (Ellis v. Dc Silva, 50 L. J., Q. B. 328 ; 6 Q. B. D. 521; Mi/os v. Defries, 49 L. J., Ex. 266; 5 Ex. D. 180 ; Stooke v. Taylor, 5 Q. B. D. 569.) The court ordering judgment to be entered in accordance with the report of a referee is not bound to give any direction to the taxing master as to the costs.- {Rowclife v. Leigh, 26 W. E. 729.) By the E. S. C. Order XXXVI. r. 50, it is provided that, su])ject to any order to be made by the court or a judge, a referee shall have the same power to direct that judg- ment be entered for any or either party as a judge of the High Court. Order XL. rr. 2 and 6 a, make it compul- sory upon him after trial of the action to direct judgment. The report of an official or special referee under a reference for trial (see Si/kes v. Brook, 29 W. E. 821) shall, unless set aside by the court, be equivalent to the verdict of a jury. (Arbitration Act, 1889, s. 15 (2).) This means it may be enforced by execution in the same way as a verdict. In signing judgment upon the award of a special referee the original award directing judgment must be pro- duced. When the trial is before an official referee an office copy of his report directing judgment must be produced, the original being previously filed at the filing depart- ment. A copy of the pleadings must also be filed, and if the time for judgment dates from service of a copy of the report, an affidavit of such service is also required to be filed. (Annual Practice [1897] 1246, 28 a.) The court may remit a cause or matter referred, or any part thereof, for re-trial or further consideration, to the same or any other referee. (Order XXX YI. r. 52.) And the proper way to question a report before judgment has been entered, is for the unsuccessful party to move the nEFEUENCER TO OFFICTAL AND SrP.rTAL REFEREES. ■'^'•* court, on notice of motion, to set aside the report ami '"^'■- -^'-^ remit the action to the referee. iThih,' v. CaiinrU, 11 i). B. D. 180 ; 81 W. E. 747.^ This may he done l)efore indjjrment is entered, hut not after. (Srrlr v. Furddl, 44 Ch. D. 200: 0-2 L. T. 3.50.) The notice of motion to remit a case to an ofTicial . i''"f,:?,'! "'' jti M'ilVl'->ll, referee must he ^iven within the time h'mited for notices of motion for a new trial. (Forrmt v. TixhJ, 108 L. T. Jour, ion ; nnir.'r v. Tnhiff. 80 ^\. "R. 108.) The apphcation in the (^)neen s Jiencli Division is to ,,.,,mt. the divisional court. (Conkc v. Xrirrmttlr, ,(c. Tf'f^■/• Cn., 10 Q. B. r>. 882 : r,2 L. .T.. (). B. 887 ; IVrvhrk v. 7i^/r/'r Drr Co.. 10 Q. B. D. 1.5.5, inO: G,„rrr v. To]>iff. 80 "U'. B. 108.) In the Chancery Division the motion wouM properly he made to the Court of Appeal. An ajipeal from the divisional court lies to the Court of Appeal without leave Oluudmi v. Norton [1802] 1 Q. B. 408. fiG L. T. 178), for references under section 14 of the Arhitration Act, 1880, are not to arhitration, as they contemplate a trial, not an award. (//».) ., . 4 1111 I. 1. • 1 • . -^lo'HiIl to set Although the report of a referee upon a trial is equi- iisiik- to lu- valent to the findinpr of a iurv, a motion to set aside the ""IT^"?^'^* ''>' •' • aiiiuavit. report of a referee must he supported hv affidavits, the statement of counsel as to what took place hefore the referee not heinrr sufficient. {StuhJia v. Bm-Ir, 2.5 "\V. B. 184: 2Q. B. D. 124.) A copy of the referee's notes may he produced. ""Where at a trial hy a referee he has directed that j..siclcjud«- any judgement he entered, any party may move to set '"^'"^ aside such judgment, and to enter any other judj^nnent, on the f,'round that upon the findinf,' as entered the judg- ment so directed is wron;^' : itrovidcd that, in the (j)ueen's Bench Division, such motion shall he made to a divisional court." (Order XL. r. H.) In the Chancery Division the application is direct to the Court of Appeal. To prevent any ohjection to a notice of motion to noticl." 320 THE LAW OF AKBITEATIONS AND AWARDS. Chap. XIX. remit being too late, on the ground that judgment is ah-eady entered, the notice should ask to set aside or vary the findings and report, and the judgment directed to be entered thereon, (See Proudfoot v. Hart, 25 Q. B. D. 42 ; 59 L. J., Q. B. 389.) It may also ask to have judgment entered for the applicant. {Clark v. Sonnenschein, 25 Q. B. D. 464 ; 59 L. J., Q. B. 561.) Nature and With regard to the findings of a referee in an action appeal against ^^^^^ ^^ ^^^^^^ ^^" ^^'^^^ under section 14 of the Arbitration a report nnder Act, 1889, the appeal against his report is in the same s, 14, nature as an appeal from the finding of a judge when he tries without a jmy (Clark v. Soiinenscliein, 25 Q. B. D. 464), that is to sa,y, the court must accept the finding of the referee unless they can set it aside according to the ordinary rules which would be applicable to the finding of a jury or to the finding of a judge trying a cause without a jury. It is open to appeal, therefore, whether improper evidence has been received by the referee, or whether the referee, in considering the facts, has, so to speak, misdirected himself. The court can set aside the finding of the referee, if it considers the finding is a finding against the evidence, in the same way that the court can set aside the finding of a jury when their finding is against the evidence. {Lonriman v. East, 3 C. P. D. 155, j)er Brett, L. J. ; Miller v. Pilling, 9 Q. B. D. 736 ; Walker v. Bunkell, 52 L. J., Ch. 596, iwr Jessel, M.B. ; and see The Laneaster, 32 W. E. 608.) APPEXDIX. TAliT I. i'i;p:("Kr)i-;NTs and fokms. No. I. Clause 1)1 ail liistriimrnt jiniridiiiii fur tJh' Ui'/iTi'iirr of future I>isj)utes. PitovrnKH ALWAYS, aiul it is lu-reby aj,nvc'(l, tliat if any (lirti-rence or controversy sliall arise between the parties to these presents, or their respective representatives, or between one of the parties hereto and the representatives of the other of them, tonchinj^ these presents or any chinse or thint,' herein contained, or the construction hereof, or any matter in any way connected with these presents or the operation thereof, or the rights, duties, or h'abih'ties of either party in connection with the premises, then and in every such case the matter in difference shall be referred to two arbitrators, or their umpire, pursuant to, and so with regard to the mode and consequence of the reference, and in all other respects to conform to the provisions in that behalf cnntained in "The Arbitration Act, 18ft0,"or any then subsistino^ statutory modification thereof; and upon e\ery or any such reference the arbitrators and uin- pirt- shall respectively have power to take the opinion of such counsel as they or he may think fit upon any question of law that may arise, and at their or his discretion to adopt any opinion so taken, and to ol)tain the assistance of such account- ant, surveyor, or valuer as they or he may think fit, and to act upon any statement of accounts, survey, or valuation thus obtained : Axi) that all deeds, pajiers, writings and evidence A. Y 322 APPENDIX. that shall be iu the possession or under the control of the said parties, shall be produced to and deposited with the arbitrators or the umpire, at their or his request. No. II. Tlte Same — Reference to an Arbitrator named, or to he named, hy a PidAic Official. And it is hereby agreed that if any question or differ- ence shall arise between the parties hereto or their respective representatives, touching these presents, or the construction thereof, or the rights, duties, or obligations of any person here- under, or as to any other matter in any wise arising out of or connected with the subject-matter of these presents, the same shall be referred to [the arbitration of A. B., of &c., or, in the event of his death, inability, or failure to act and take upon himself the burden of the reference within fourteen days after notice by one of the parties in difference, sent to him through the post to his usual or last known address in England, that a particular difference has arisen, then to] some competent arbi- trator to be named by the President of the Institution. The arbitrator from time to time acting under these presents shall have all the powers conferred on arbitrators by " The Arbitration Act, 188'.)," or any statutory modification thereof. No. III. Clause giring a Valuation the Incidents of a Reference — in Co)iditio)ts (f Sale. If any erroi', mis-statement, or omission be discovered in the particulars or conditions, the same shall not annul the sale, but if pointed out before the completion of the purchase, and not otherwise, shall form the subject of compensation, such PRECEDENTS AND FORMS. 328 cumpcnsjition to bo madr In i>v hy the purchaser as the case may re(|uin'. The amount of such coin)>eiisati(tii, as well as of any vahiation which is provided to be made or taken by these conditions, shall, in case the parties do not a^ree thereon, be settled by two referees, one to be appointed l»y each jtarty, or an umpire, to be ajipointed by the referees, and in Citse either jiarty shall fail to appoint a referee for the space of ten days after notice shall have been ," shall apply to a reference under this clause, and the aj^reement hereunto annexed, incorporating^ these conditions, shall be deemed to be and have all the inci- dents of a submission under section 1 of that Act. No. IV Ajipointitunit of an Arhitintor Kiiib-r a CJtumv rrferriii;! fiituvr Jilffrn-ncrs. Whereas by an indenture bearin^^ date, &c., and made lietween A. H., of the one part, and me, C. D., of the other part, it is provided that disj)utes and differences arisin;,' between the parties thereto shall be referred to two arbitrators or their um- pire as therein mentioned. And whereas disputes and ditTerences, within the meaning of the said jn'oviso, have arisen, and are now depending between the said parties thereto. Now, therk- KOUK, in ])ursuance of tiie power in the said indenture contained, I, the said V. D., do hereby nominate and ajipoint you, X. Y., of , to be the arbitrator on my behalf of and concerning the premises. As witness my liand this day of , IK — . ('. I). To X. Y., Hsquire. Y 'I 324 APPENDIX. No. V. Notice of the Aiqunntment to the other Party. Sir, I hereby give you notice that I have this day appointed X. Y., of etc., to be the arbitrator on my behalf, to settle by arbitration in pursuance of the proviso in that behalf contained in an indenture dated, &c., the disputes and differences that are now depending between us. And I hereby give you further notice, requiring you within seven days from the service of this notice on you, to name an arbitrator to act on your behali in the matter of the said disputes and differences, or failing to do so the said disputes and differences will stand referred to the said X. Y. alone. CD. To A. B. No. YI. Suhmission of all Existiii;/ iJiJferciices to a Sinr/le Arhitrator — Short Form. 1. We, the undersigned, hereby agree that X. Y. of — shall decide all matters in difference between us, and for that end shall have all the powers given by the Arbitration Act, 1889, to arbitrators, and may direct eitlier of us to do or submit to any act, or to sign or execute any instrument, and may obtain such professional assistance, and may give such directions, as to him shall seem meet. He may proceed ex ji)arte if he think fit after such notice as he may deem reasonable. 2. This submission shall not be determined by the death of eitlicr of us. Witness our bauds this day of . A. B. CD. PRECEDENTS AND loiniS. '.^2^) No. VII. Si(l)iiHssi,)n (if S])i'cifif J hjirri'iiri s In arties hereto, for the purpose of puttin.i; an end tu such ditferences, have ai^reed to refer the same to arliitra- tion in manner liereinafter appearing; : Now these presents WITNESS that it is hereby a<,'reed as follows (that is to say) : — 1. It is hereby referred to E. F., lA' .and in case of his death, incapacity, or unwillingness to act, to (J. H., of , to award and determine concerninj^ \_srt forth the sjiccijir nuttters tu hr deter mi)ml\ and all other matters in contnjversy arisiiiir out of the subject of this reference, or in any wise incidental thereto. 2. The arbitrator actin*; in the matters hereby referred shall have all the powers fjiven to arbitrators by the Arbitration Act, ls«9, and shall make his award under his hand on or before the day of next, or within such extended time, not exceeding calendar mouths after that day, as the said arbitrator shall by writing under his hand appoint. ;!. Tlie said arbitrator shall liave power to order and deter- mine what he shall think Ht to he done by either of the parties hereto respecting:- the matters in ditlerence. 4. The said arbitrator shall have power to pioceed ej- par if in case either party fail after I'casonable notice to attend before him. .'». The resj>ective jiarties hereto will do and cause to be done all other thin<,'8 necessary and couvenient for enablin;.; the said arbitrator to make his award without delay. (!. This submission shall not be revoked by the derDE>rrrEE witxesseth, that in pnreuance of the said agreement, each of the parties hereto herebv covenants with the other of them, in manner following (that is to saj):— 1. It is hereby referred to E. F., of &c., and G. BL, of &c., or in case of their disagreement to their nmpire [to be ap- pointed by writing under their hands before thev enter npon the considerarion of the matters referred] "^^ to award and determine [set forth the matters to he determineir\, so that the award of the said arbitrators or nmpire, concerning the same, be made and published in writing, readv to be delivered to the said parties or either of them, or if they, or either of them, shall be dead before the making of the same, to their respective personal representatives re»]uiring the same, on or before the day of next, or such further day as the said arbitrators, or their umpire, may by writing tmder their or his hand, indorsed on these presents, from time to time enlarge the time for making their or his said award. 2.* The said arbitrators, at any time before making their award, may by writing indorsed on these presents, appoint an umpire, 3. The said parties hereto, their executors and administra- tois, will in all respects abide by, observe, perform, and obey the said award so to be made and pubUshed as aforesaid. 4. Tlie said parties respectively will do all acts necessary to enable the said arbitrators, or their umpire, to make their or his award herein, and neither of them will wilfully or wrongfuUy do, or cause to be done, any act to delay or pre- vent the said arbitrators, or their umpire, from making their * If the wonls in brackets in clause 1 are retained, daaae 2 will be omitted. PRECEDENTS AND FORMS. 327 or his award. And if either of the said {larties shall wilfally or vrroiifrfnliy do, or cause to Ix- done, any such act jw aforesaid, he shall pay to the other jmrty such costs as the said arbi- trators or their umpire may in writing; declare to be reasonable. 5. The said arbitrators, or their umpire, shall have general authority to require from either of the said jwrties such written statements and exjilanations as may be deemed exi>edient. C. In cjuie either party refiLse or fail after reasonable notice to attend, either jK/rsonally or by counsel or solicitor, l)efore the said arbitrators, or their umpire, at any meetinir which they or he may appoint, it slmll Ix,- lawful for them or him to proceed ex jxirte sis etfectually as if such party were present. 7. The said arbitrators, or their umpire, may in their or his said award order either party to do or to submit to any acts or to sign or execnte any \rritten instrument, and in the latter event may direitrators or iheir umpire or either of them, for or in respect of the said matters in difference or any or either of them, or the said award to be made in pursuance of this submission. IX WITNESS, tic. No. IX. (>nU'y of liiferenceof Actinnhif Cunsiiif unilir ArJntratinn Act, 1881), «. 14 {a). In the High Court of Justice. Division. 18 — . .Vo. . Between Plaintiff, and Defendant. Uf)on hearing and by consent It is ordered as follows : (rt) R. s. c. 1SS3, Ait- k., Xo. 24. 328 APPENDIX. 1. \^SIafe matiers to he rpfcrreiT] sliaM be referred to the award of •2. The arbitrator shall liave all the powers as to certifying and amending of a judge of the High Court of Justice. ;5. The arbitrator shall make and publish his award in writing of and concerning the matters referred, ready to be delivered to the parties in difference, or such of them as require the same (or their respective personal representatives, if either of the said parties die before the making of the award) on or before the next, or on or before such further day as the arbitrator may from time to time appoint and signify in writing signed by him and indorsed on this order. 4. The said parties shall in all things abide by and obey the award so to be made. 5. The costs of the said cause and the costs of the reference and award shall be 0. The arbitrator may (if he think fit) examine the said parties to this cause, and their respective witnesses, upon oath or affirmation. 7. The said parties shall produce befoi'e the arbitrator all books, deeds, papers, and writings in their, or either of their custody or power relating to the matters in difference. 8. Neither the plaintiff nor the defendant shall bring or prosecute any action against the arbitrator of or concerning the matters so to be referred. 'J. If either party by affected delay or otherwise wilfully prevent the said arljitrator from making an award, he or they shall pay such costs to the other as may think reasonable and just. 10. In the event of either of the said parties disputing the validity of the said award, or moving the to set it aside, the said shall have i)Ower to remit the matters hereby referred, or any or either of them, to the reconsideration of the arbitrator. 11. In the event of the arbitrator declining to act or dying befftre he has made his award, the said i)arties may, or if they cannot agi'ce, the master may, on application by either side, appoint a new arbitrator. PRECEDENTS AXD FoliMS. 329 ^^J. I'nless restrained by any (ndcr (if till- rourt or a jn(l;re, the party oriparties in whose favour the award shall l»e made shall be at liberty within days after service of a copy <»f the awaidoii the solicitor or aj^ent of the other jiarty to sir Adiiiiiiistratur — licjcn'uce not to be an AdiitiHsioit <>J AsHitn. The submission t(» reference hereby made sliall not be deemed iir taken to Ik; an admission by the said A. 15. that he has assets of the said {^deceased'] ; but the said A. B. shall be at liberty to deny before the sjiid arbitrator at any time before the case is closed that he has at the time of such denial assets in his hands lawfully liable to the demands of the said ('. 1>. ; and if the said A. 1). shall make such denial as aforesaid, the said arbitrator, if requested by the said C. 1)., shall inquire whether or not the same be true. If the said arbitrator shall by his award find any sum of money to be due to the siiid ('. 1)., he shall, if he shall tind that the said \. B. had at the time to which the said inquiry referred, lussets liable to the demands of the said ('. 1>., direct the said A. B. to pay to the said ('. I), tiie said sum awarded to be due, or so much thereof as the assets so found to be liable sliall be sutticieiit to satisfy. And if the said arbitrator shall find that the said \. B. had no such assets or not sufticicnt to pay the whole amount so awarded to be due to the said ('. 1)., he shall be at liberty to award that the said \. B. shall pay to the SJiid C. D. the said amount (or so much thereof .is 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 A, B. since the time included in the said inquiry as afore- 330 APPENDIX. said, or which may thereafter come into them. And if the said arbitrator shall find any sum of money to be due from the said C. J), he shall direct the latter to pay the same to the said A. B. No. XI. Particulars of Claims, tCc. to he furnished by each Party. Each of the said parties within days from the date of these presents, shall deliver to the other of them, and to the said arbitrator, a full and particular account in writing of all his claims, and of all the items thereof, giving credit for all payments, counter-claims, and deductions, and leaving a margin of at least two inches and a half on each page, and shall at the same time deliver all contracts, wn-itings, maps, plans, and drawings, or copies thereof, that may be necessary to illustrate the said account. Each of the said parties, within days after receiving the said accounts from the other of them, shall state in writing against each item, either actually or by reference in the margin of the said account, or of a copy thereof, whether he admits such item in the whole, or in any and what amount ; and in case he objects to such item shall so state whether he objects to the whole, or to any and what part thereof, and, as far as possible, the grounds of such objection, with reference to maps, plans, or drawings where necessary to illustrate such objection ; and each of the parties shall deliver such statement to the other of them and to the said arbitrator. The same course shall be adopted concerning any set-oft' or counter-claim adduced by either of the parties against the demands of the other of them. No. XII. Evidence. The arbitrator may, in his absolute discretion, admit as evidence any affidavit or statutory declaration concerning the matters in dift'erence (and whether the same may have been made in any other proceeding or in contemplation of this PRECEDENTS AND FORMS. 331 reference), a copy thereof lm\iniirxii(iiit to the Suhmissinii. We, the witliiii-iiiiiui'd !•]. F. and ('•. \\.,hy this iniMiinraiMluiii in \\ritiii<4 under our liands made Itefore enterini,^ upj)(>iiitiiiriif of a Miitiini hi/ Arlitiatof. In the matter of an arbitration between A. B. and C D. I appoint the day of next, at the hour of o'clock in tin' fun iioou, at [///<■ y/rtcf], for proceedinjj: in this reference. Dated 18—. To , solicitor for A. I?.. and , solicitor for C. D. E. F. [Arlilralor\ 334 APPENDIX. No. XXII. Appointment of Meeting with Notice of Intention to proceed ex jjai'te. B. V. D. I appoint the day of next, at the hour of, &c., at , for proceeding in this reference, and I give notice tliat in case either party absents himself I shall, at the request of the party present, proceed with the reference ex 2Jarte. Dated , 18—. E. F. [Arhiiraior']. To A. B. and C. D. and their respective solicitors. No. XXIII. Notice requiying a Parti/ to concur in appointimj Sole Arhitrator. In the matter of an arbitration between A. B. and C. D. Take notice that I hereby request and require you to con- cur with me, the undersigned, in the appointment of a sole arbitrator to act in the above-mentioned matter, for the pur- poses of the submission to arbitration contained in an agree- ment dated the day of , and made, &c. in accordance with clause of such agreement, and failing such concurrence I shall foithwith apply to the High Court of Justice to appoint an arbitrator. Dated the day of , 1 8—. A. B. To C. D., of &c. PRECEDENTS AND FORMS. 385 No. XXIV. (iriiiiiiiitiini SitiniittHDi jiir ///<■ Ajijuiintnii ut of tin A rhitrati))-. * In the High Court of Justice. (Queen's Hench Division. is — . \o. , In the matter <»f iin arbitration between A. 15. and C !)., And in the matter of The Arbitration Act. iss!). Let ('. ])., of iVc, attend the Judge [(/r blaster] in Chambers, <\'ntral Otlici', Ifoyal Courts of Justice, Strand, London, on the day of , IH — , at o'clock in the noon, on the hearing of an ap])]ication on the part of A. B., of A:c., pursuant to section ;"> of 'i'he Arbitration Act, lss;», that E. F„ of i^c, or some other fit and proper person, may be appointed to act as arbitrator under a submission dated the day of , IS — , and made between the above-named A. B. of the one part and the above-named C. 1). of the other part. Dated the day of , IS—. To the said C. D. This summons was taken out by , solicitor for the above-named A. B. XoTK. — It will not be necessary for you to enter an appear- ance in the Central Office, but if you do not attend, either in person or by your solicitor, at the time and place al)0ve-men- tioned, such order will be made and proceedings taken as the Judge may thiuk just and expedient. No. XXV. Oviijinatnui Suiiiihoiih Jur Loire in llevohc SuhmUx'uni. In the High Court of Justice. Chancery Division. 18 — . No. . ^Ir. Justice . In the matter of an arbitration l)etween .\. B. and <'. I)., And in the matter of the Arbitrati. * This is a siinmions for use on an nj'iiUiatiim to tho i)licHtiou to the Clianeeiy Division. 336 APPENDIX. Let C. D., of &c., attend at the Chambers of Mr. Justice -, Royal Courts of Justice, Strand, London, at the time specified in the mardn hereof, on the hearing of an application on the part of A. B., of &c., that the said A. B. may be at liberty to revoke and make void the power of the arbitrator [or umpire] to make his award in the reference herein. Dated the day of , IH— . To the said CD. This summons was taken out by , solicitor for the above-named Note. — It will not be necessary for you to enter an appear- ance, &c. [same as last form]. No. XXYI. Snmmous to stay Action after Afirecment to Refer. In the High Court of Justice. Division. IS — . No. . Between Plnintiff, and Defendant. Let all parties concerned attend the Judge [or Masfrr] in Chambers, Central Office, Royal Courts of Justice, Strand, London, on day, the day of , 18 — , at o'clock in the noon, on the hearing of an appli- cation on the part of the defendant, pursuant to section 4 of the Arbitration Act, 1881), that all proceedings in this action may be stayed, on the ground that the parties have agreed to refer the matter in respect whereof the action is brought, to arbitration, and that the jilaintiff may be directed to pay the costs of this application. Dated the day of , I'S — . This summons was taken out by , of , soHcitor for the defendant. To the above-named ])laintiff. PRECKhKNTS AND FORMS. N... XWll. (a). Sithjxnia for Attfiiduitrr of Witnesses before Arhitratoy. In the lliu'li Ctiiirt of Justice. hivisioii. is — . X(i. — . Ill the matter of an arbitration between A. B. and (_'. 1). And iu the matter of the Arbitration Act, 1889. Victoria, by tlie <;race of (!oil, «tc., to [llw names of three icifnessps m/ii/ be i)wrted'\, uToetinu". AVe command yon to attend before , at . on day, the day of , \x — , at the hour of in the noon. and so from day to day nntil the above matter is tried, to give evidence on behalf of the above-named ('. I). ■\Vrrxi:ss, &c. 337 No. XXVIll. (h). Subpo'iia duces tecum. Head in fi as j» la at form.] Vk'TORia, by the fjrace of God, Arc, to [_f/ie junnes of ihret irHnesses may f>e inserted], greeting. We command you to attend before , at , on day, the day of , ]H — , at the hour of in the noon, and so from day to day until the above matter is tried, to give evidence on behalf of the above-named , and also to l)ring with you and produce at tlie time and place aforesaid \_>r upon the estate or effects or under or by virtue of the wills of the saidT. T., (i. n., and.I. H., orof either of them, have been fully satisfied and discharjrod. And we hen*bv award, that the said 342 APPENDIX. C. H., her heirs, executors, or administrators shall, within one calendar month from the day of the date hereof, deliver into the hands of the said T, H., or of his solicitor, all deeds and other writings in her custody, possession, or power, relating to, or in any way affecting, the said freehold house and premises known by the sign of the White Lion : And shall also, within one calendar month from the day of the date hereof, execute a conveyance of the fee simple, and deliver possession of the said freehold house and close, with the appurtenances, situate at aforesaid, and all deeds and other writings relating to or in any way affecting the same, or the title thereof, to the said T. H. And we further award, that the said C. H. shall retain for her own use and benefit all other the effects which came, or which may hereafter come, to her hands or possession as executrix of the last will and testament of J. H. (save and except any rents which she may have received since the decease of the said J. H. for or on account of the said estate at aforesaid) in full satisfaction of all claim, interest, and demand which she has or ever had in or upon the estate and effects or under or by virtue of the said several wills of the said T. T., G. H., and J. H., or of either of them. And we hereby further award that the said T. H, shall, out of the said mortgage on the said house, with the appurtenances, at , called the White Lion, and out of the said freehold house and close at , pay, satisfy, and discharge the bequest to the said J. T. and his children, according to the direction of the said will of the said T. T. And we further award and order that the said C. H. shall account for and pay to the said T. H., his executors or administrators, within one calendar month from the date hereof, all rents which she may have received for or on account of either of the estates at and aforesaid, since the decease of her said brother J. H. And we do also award and order that the said T. 11. shall pay and refund to the said C. H., her executors or administrators, all sum and sums of money which she may have advanced or paid the said J. T., for and on account of the interest of the said sum of two hundred pounds mentioned in the will of the said T. T., since the decease of her said brother J. H. And we do likewise award, PRECEDENTS AND FORMS. :5 IIJ oidor, and direct, that the said T. II. shall within i>nL' ealt-mhir month from the date hereof pay or cause to be paid to the said C. II. the sum (»!" twelve pounds twelve shillinjjs, for and in full discharj,^' of all expenses which she has been at in the repaire of the said houses at and aforesaid, or otherwise howsoever. And we do further award, that the said C. H. shall «;ive and execute to the said 'W 11. a relea.se of all demands for or on account of any claim or interest in or upon the estate and effects, or under or by virtue of the wills of the said T. T., (J. II., and J. II., or of either of them : and further, that the said C. H. do and shall within one calendar month from the date hereof deliver unto the said T. II., his executors or administratoi-s, all books, accounts, discharjies, releases, and writin<(s whatsoever respectinf; only the estates of the said T. T. and (I. II., deceased, or either of them, and which are now in her custody, possession, or power : and that when the said V. H. shall have fully complied with this our award in all thing's hereby ordered to be done by her, then the said T. II. shall give and execute to her a similar release : and that the said J. II. and J. M. in right of his said wife, and tiie said J. S, in right of his said late wife, shall give and execute similar releases to the said T. H. and C. H. And we also award and order that the said T. H. do and shall execute to the said ('. H. a bond in the penal sum of eight hundred pounds under a condition to indemnify her the said (\ 11. against all demands of the said J. T. and his children who were living at the time of the decease of the said T. T., or any pei-son or jiersous claiming through them ; and also against all and every other person or persons whomsoever claiming under the will and wills of the said T. T. and (J. H., deceased, or either of them. And lastly, we do hereby award and order that tlie said T. H. shall pay or cause to Ije paid all chai-ges and expenses attending the present arbitration. l.V WITNKSS, &c. 344 APPENDIX. No. XXXV. Award hi/ ttco Ai-Jtitrators of Compensation for Land taken under the Lands Clauses Consolidation Act (a). To ALL TO WHOM, &c., Avc, A. B., of &c., and C. D., of &c., send greeting. Whereas I, the said A. B., have been duly appointed an arbitrator on the part of R. P., of &c., and I, the said C. D., have been duly appointed an arbitrator on the part of the Railway Company (hereinafter referred to as " the Company "), for the purpose of settling by way of arbitra- tion, in pursuance of the Lands Clauses Consolidation Act, 1845, the amount of compensation to be paid by the company for the purchase of all the estate and interest of the said E,. P. in the lands and hereditaments specified in the schedule to a certain notice in writing under the hand of the secretary of the com- pany, dated the day of , and described in a map or plan annexed to the said notice (of which schedule and map or plan the schedule and map hereunder written and hereunto annexed are respectively copies), and also for the damage (if any) that may be sustained by the said R. P. by reason of the execution of the works of the company. And whereas the said R. P., by a notice in writing dated the day of , and given by him to the company, described his interest in the said lands and hereditaments as an estate of inheritance in fee simple, and claimed the sum of £ for the purchase of his interest in the said lands and hereditaments, and the further sum of £ as compensation for injury which would be sustained by him l)y reason of the severing of the same lands from his other lands and otherwise injuriously affecting such other lands. And a\hhreas the company offered to pay to the said R. P. the sum of £ as and ibr the purchase of the said lands and hereditaments, and for compen- sation as aforesaid, and have not offered to pay any larger or other sum whatever in respect of the same. Now know ye, that we, the said A. B. and C. D., having taken upon ourselves the burthen of the said reference, and having, before entering into the consideration of any of the matters so referred to us (a) For anotlier precedent see Biownc arifl Allen on Compensation, ji. 824. PRECEDENTS AND FOIIMS. 845 }is aforesaid, respfctiwly duly made and subsoribt'd, in the presence nf a justice duly authorized in that behalf, the declara- tion required l>y the sjiid Lands Clauses Cnnsolidatioii Act, 1H4.") (which said declarations are hereunto annexed), and havin«i^ viewed the hinds and hereditaments hereinbefore men- tioned or referred to, and iiavin^^ heard, examined, and con- sidered the allegations, witnesses, and evidence of the respective parties, and duly weighed and considered all and singular the matters and things to us referred as aforesaid, Do make and publish this our award in writing of and concerning the said matters as follows, that is to say : Wk do awahd and dhtkum ink that the sum of £ ought to be paid by the company to the said K. V. for the purchase of the inheritance in fee simi)le cf the said lands and hereditaments, and that the further sum of f ought to be paid by the company to the said K. 1*. for or in respect of the damage to be sustained by him by reason of the severing of the same from the other lands of the said R. P., or otherwise injuriously atiecting such other lands by the exercise by the company of the powers of their Act, or any Act incorporated therewith {a). No. XXXVI. All aid uii a lirfcreiicc nf an Action hy Order of tJic (JH'ccn's Bench l>ivitii(»i. To ALL TO WHOM, iVc., 1, (i. .1. X.. li(iiild have all the powers as to certifying and amending of a .ludge of the High Court of Justice, and that 1 should make and publish my award in writing ■of and concerning the matters referred ready to be delivered to the I'arties in difference, or such of them as might re(]uire the (") No dircciion ns to costs is iicofss4iry (nntf. \>. 230). 346 APPENDIX. same (or their respective personal representatives if either of the said parties should die l^efore the making of the award) on or before the day of then next, or on or before such further day as I might from time to time appoint and signify in writing signed by me and indorsed on the said order ; and it was also ordered that the costs of the cause and the costs of the reference and award should be in my discretion. AxD WHEREAS I, the Said ar])itrator, did, by two several in-^ dorsements on the said order, enlarge the time for making my said award until the day of instant. Xow I, the said G. J. X,, having taken upon myself the burthen of the said reference, and having heard, examined, and considered the- allegations, witnesses, and evidence of both the said parties- produced before me, do make and publish this my award of and concerning the matters by the said order so referred to- me as aforesaid, in manner following, that is to say : — I find that the plaintiff had a good cause of action against the defendant in respect of the matters alleged in the statement of claim, and I assess and award the damages which the plaintiff is entitled to recover in the said action at the sum of £ . I furthp:r aavakd that the defendant do bear and pay his own and the plaintiff"'s costs of the cause, reference, and award. And I direct that judgment l)e entered for the plaintiff' for the said sum of £ and costs as aforesaid. IX WITNESS, &c. No. XXXVII. Commencement of an Award on a Reference hy an Order of Xis'i Prius made at tJte .issizes. Whereas at the assizes held at , in and for the county of , on the day of , before the Honourable Sir , knight, one of the Justices of Her Majesty's High Court of Justice, and others, justices of our lady the Queen,. appointed to take the assizes for the said county of :. on the trial of an action wherein A. B. was plaintiff, and C. 1). was defendant, it was ordered by the court, itc. [pi'oceedin// as- in the last precedent]. puecehexts and forms. :vr No. XXXVIII. C'tnnmencemeiit of an Aicaril i>n a SiihiniHuinn hi/ Oiih r of the Chaitccry Jtivisinii. WnKKKAs by an ordur of the Chancery l)ivi.sion of the Hi^'h Court of .Justice, made on the day of , l»y Mr. JiLstiee , in a certain action, in wliich A. H. and C. I), were plaintiffs, and E. F. and others were defendants, it was, by the consent of the said parties and tlieir counsel, ordered, amongst other thinirs, that, &c. [rerih'ni/ Uu ituiferial jnii Is of the order]. No. XXXIX. C'oinmemiinent ofitu Airanl on n Siibininsinit hif mutual liiiitih. Wheukas by a certain lx>nd bearing date the day of , A. H., of «S:c., became bound to C. I)., of Arc, in the penal sum of £ ; and by another bond Itearinir even date therewith, the said C. I). Ix-carae bound to the said A. B. in the like penal sum, with conditions written under the .s;iid several bonds for making the same void if the said A. li. and C. 1>. res|)eftively, and their re8i>ective heirs, executors, and administrators, should observe, perform, and keej) the award of me, &c. [^rpciling si/c/i of the proviisionx as icill justify the airanl'}. No. XL. Commencement of an Airanl under a Clause for refrrriny future Dijf'errnrt s in a linildiny Cnntract. To ALL TO WHOM. 6iv. We, K. M., of Oi-c. and (i. H.. of &c.. send greeting. Whkkkas by articles of agreement, Vx'aring date, &c., and made l>etwe<.n A. B., of itc, gentleman, of the one part, inid P. j)., of Jcc., builder, of the other part, C D.. 348 APPENDIX. in consideration of tlie sum of £ to be paid to him as hereinafter is mentioned, covenanted with A. B., that he, C. D., would at his own expense, on or before the day of , in a complete and workmanlike manner and with good and substantial materials of all sorts, make the several alterations, reparations, and improvements to a messuage situate, &c., and in such manner as therein is more particularly mentioned and set forth ; in consideration whereof A. B. covenanted with C. D., that he would pay unto C. D. the sum of .£ in manner following, that is to say, the sum of £ , part thereof, on the day of then next ensuing, and the sum of £ , residue thereof, within fourteen days next after the said messuage should be completely repaired and im- proved in manner as therein is mentioned : and it was thereby mutually agreed, that if any dispute should arise between the said parties relating to the performance of the said articles, then the same should be left to the decision of two indifferent persons as arbitrators, the one to be named by A. B. and the other by C. D., or to an umpire to be chosen by the said arbitrators. And whereas C. I), has completed the said alterations and improvements, and received the said first payment of the sum of . And whereas disputes have arisen touching the said alterations and improvements, and the same have been referred to us, the said R. M. and G. H. Xow KNOW YK, that we, the said R. M. and G. H., having taken upon ourselves the burthen of the said reference, and having viewed and inspected the several alterations and im- provements made in the said messuage by (J. I)., and having heard the allegations and evidence of both the said parties concerning the matters so referred to us as aforesaid, do make and publish this our award of and concerning the same in manner fuUowing, that is to say, &c. PRECEDENTS AND FORMS. 349 No. XLI. C<>iiimeiic<)iit)it (if ail I'iii]iirafie. To ALL TO WHOM, &('., I. X. Y., of i\:c., st-nd irreetiii'jr. "WiiKHEAS liy an ji<,'recineiit in writinir, dated the day of , and made lietween .\. B., of itc, of the . X... XLV. Aicdiil that a I'artinrshi]) Iir dissulrcd, A. 11. to rcrcirc all ('<> -part nc rail ip l>ilitx and use C D.'n Xaiiw in ail If Action; A. li. to jiai/ all Demands on tlw C. therefrom ; CD. to delirer up all Co-partnership Boohs and acirjtt a cer- tain Sum in full of all Demands. Now KNOW VK, that I, »ltc., having, \c., do make this my award of and concernimr the matter so referi'ed to me as 352 APPENDIX. aforesaid, in manner foUowinu-, that is to say : — First, I award that the said co-partnersliip shall be taken to have determined on the day of , as from which date the said A. B. shall be taken to have carried on the said business on his own account. Second! ij, I value and ascertain the assets of the said partnership business, including the leasehold business premises, and after making allowance for bad and doubtful trade debts, at £ . I find that the trade liabilities amount to £ , leaving a balance of £ divisible between the partners in equal shares. Third] ij, 1 award and direct that the said A. B. shall and may get in and receive to his own use, without the interference of the said C. D., all debts due and owing to the said co-partnership from any person whomsoever, and may use the name of the said C. D. in any action or other proceeding to be commenced for the recoveiy of any such debt or demand ; and the said A. B. shall pay and discharge all debts owing by and all claims whatsoever, against the said co-partnership. And shall in- demnify the said C. D. against all such debts and claims and any loss or damage that may be incurred or sustained by the said C. D. by reason of his name being used in any such action or other proceeding so to be commeuced as aforesaid, in pursuance of the authority hereby given to the said A. B. Fourilihj, I award and direct that the said C. 1). shall at any time or times, upon the request of the said A. B., deliver up to the said A. B. all and every the books, papers and writings which may be in the custody, power, or possession of him the said C. T). in anywise relating to or concerning the business of the said co-partnership. Fifthly, I award and direct that the said A. B. shall on the day of next, at the office of Messrs. R. & T., solicitors, at aforesaid, pay unto the said C. D. the sum of £ , which sum the said C. D. shall accept as the purchase con- sideration for and in full satislaction of his share and interest in the said partnership l)usiiiess and the assets thereof, and of all claims against the said A. B. in relation thereto, and there- upon the said C. D. shall execute to the said A. B., if required, an assignment and release of all his share and interest in the said PUECEDKNTS AND TOItMS. 353 partnership, stock-in-trade ami effects, goodwill and business premises. {^Directions as to costs.'] No. XLVI. Award on a Reference hetiieen Landlord and Truant, Jindinf) tliat certain Covenants hare been broken, and orderiufi Pai/nicnt of a Sum in respect thereof. Now KNOW VK, that I, etc., having, Sec, do inakt- this my award of and eoncTrnin'r the matters so referred to nw as aforesaid, in manner following, that is to say : First, I adjudge and award that the said A. 15. [Irssrr] has not performed and fnltilled the several covenants contained in the lease of the said farm for laying a certain quantity of lime and bone manure thereupon, for scouring and ditching, for repairing the farm buildings, hedges, and fences, and for maiu^ging certain portions of the said farm according to the four years' course of husbandry. Secondli/, I adjudge and award that the said A. B. has not performed and ful- filled the covenants in the said lease for keeping in repair a fence separating a field called the Higher Lea, part of the said farm, from the park lands of the said C. T). {lessor], in consequence whereof cattle being depastured in the said Higher Lea have strayed into the said park lands. Thirdhj, I adjudge and award that the said C. I), has sustained damages to the extent of £ by reason of the breaches hereinbefore mentioned of the several covenants contained in the said lease. {Add direction to ;w// that amonnf, and ainird as to costs.] No. XLVIL Auard under the A'jrieidtitr(d Iliddiinis Act, 1.SH3. To .\i,i, TO WHOM, &r., I. X. v., of &c., send '.^vcting. Whkkkas for some years past A. I'... of Sec, has occu|iied and farmed a certain holding known as the (J range Farm A. A A 354 APPENDIX. as tenant thereof to C. D., of &c., upon the terms of a lease dated, &c., and made between, &c. Axd whereas the said tenancy determined, and A. B. quitted his holding, on the day of . And whereas by notice in writing dated the day of , 18 — , given by A. B. to C. D., he, A. B., claimed compensation under the provisions of the Agricultural Holdings Act, 1883, in respect of the several matters specified in the first column of the first schedule hereto. And whereas by a notice in writing dated the day of , 18 — , given by C. D. to A. B., he, C. D., counter-claimed in respect of the several matters specified in the first column of the second schedule hereto. And ^"hereas A. B. and C. D. were unable to agree as to the said claim and counter-claim, and by ^^^.•itiug under their hands, dated the day of , appointed me, the said X. Y., sole referee to settle the matters in difference between them pursuant to the provisions of the said Act. Xow know ye, that 1, the said X. Y., having taken upon myself the burthen of the said reference, and having viewed the said farm, and heard and examined the allegations and evidence of the parties, do make my award of and concerning the matters referred to me as follows : — 1, I find and award that A. B. is entitled to compensation from C. I), in respect of the several improvements specified in the first column of the first schedule hereto, the several amounts, and no more, set opposite the same respectively in the third column of the same schedule, and amounting in the aggregate to £ . 2. I find that such improvements were executed at the times set opposite the same in the second column of the same schedule. 3, I have in the fourth column of the said schedule set opposite to the several improvements the several matters and things taken into account under the provisions of the said Act in reduction or augmentation of such compensation, other than the matters hereinafter mentioned. 4. I find and award that C. I), is entitled to compensation from A. B., in respect of the matters specified in the first PRECEnENTS AND FOIIMS. '.\-,r, coluiim of the socoikI sclieilule hereto, the several amounts set opposite the same in the second eohimn of the same schedule, which sums amount in the aggregate to t* . ft. I find that there is also due from A. 15. to C. D. £ for rent, and t' in respect of tithe rent- charge, making, together with the sums nieiitiimrd in clause K the sum of £ . C. After deducting the said sum of £ from the sum of £ there is a balance of t' due to A. I>. from C. I)., and I award and direct C I)., at the expiration of one calendar month after the delivery of this my award, to pay the said sum of £ to A. B. 7. 1 award and direct C. 1). at the same time to pay to A. B. his costs of and attending the reference, and also to pay the costs of this my award [or, I direct each party to hear and pay his own costs of the reference, and one half tin- costs of this my award]. Ix WITNESS, S:c. T/ie First Schedule above referred lo. Iinprovoineiit i. CoMiiM'tisatioii Awanled. Matters taken into Account \'\ Compensation. I'll- Secoxd Schei)LI-E above referred to. Subject of Claim. Compensation Awarded. aa2 356 appendix. Special Clauses in Awards. No. XL VIII. Each Paiijf to pay his own Costs of lleference and one-half the Costs of Aicard. I award that each of the said parties shall and do bear and pay his own costs of this reference ; and that the costs of this my award be paid in equal moieties between them. Xo. XLIX. Costs of lleference and Aicard to he j)aid in equal Moieties. I award that the costs and charges of this reference and the charges of making this my awai'd shall Ite paid and borne by the said A. B. and C. D. in equal moieties. No. L. Certificate fo)' Special Jury, tOc. I CERTIFY that this cause was proper to be tried Ijefore a special jury [or before a judge of the superior court, and not before a judge of an inferior court : or that the action was brought to try a I'ight other than the mere right to recover damages]. No. LI. Mutual Releases if re(piired. And I further award that upon payment of the said sum of £ to the said A. B., as aforesaid, they, the said A. B. and C. D., if required, shall respectively, at the costs and charges of the party requii'ing the same, execute, each unto the other of them, mutual general releases of all manner of actions, causes of action, claims and demands whatsoever. PRECEDENTS AND FORMS. ;{57 No. I.ll, One I'artt/ to extctiti' a liclcu.sc nn I\t_i/ineiit of Mhikij hij the oilier Partij. Am> I fiu-ilKT award and ordor that, i\\)on payment of the eiiid sum of £ to the said A. B. as afoi-esaid, the said A. B. sluill at his uwn expense i)repare and execute a proper release to the said C. 1). of all claims and demands which he the said A. B. at the date of the said submission had, or nn of the statement of i hum. I direct the defendant to pay to the plaintifT the said twci sums, makin'_' tofjether the sum of £ . I lind that the plaintill' has no cause of action in respect of the mattere mentioned in paraj^raphs 7 and H of the statement of claim. I find that as to the sum of money chiimed in paraj^raph li> of the statement of chiim the defendant is entitled to a set-ofl" as to the whole, in respect uf the matters mentioned in parat^rajih ."> of the defence. I direct judgment, &c. No. LVIII. Award ill Eject incut. I AWARD and adjudije, that the plaintiff in this action is entitled to the possession of the lands sought to be recovered in this action : [or that the plaintiff in this action is entitled to the possession of a certain parcel of the lands sought to be recovered in this action, that is to say \_desrripiion'], which said parrel is delineated and coloured pink in the map annexed to and intended to form part of this my award. And I further award and adjudge, that the plaintiff is not entitled to the possession of the residue of the said lands, consisting of \_de- scriplion'], which residue is delineated and coloured green in the said map. And I further award and adjudge that the defendant is entitled to the possession of the said residue]. No. LIX. Aaard of a Convcijuiicc of FrccJiolds. I AWARD and direct that the said C. I), shall, within one calendar month from the date hereof, execute a conveyance, in fee simple, of all, etc. [dcficrilu'n// the parrels'], unto the said A. IJ., and that the said A. H. shall, at his own cost, prepare and tender the said conveyance for execution bv the said C. D. 360 APPENDIX. No. LX. Atcayd of an Assignment of a Lease. I AAVARL) and direct that, in consideration of £ hert tofore paid by the said C. 1). to the said A. B., and of £ hereby directed to be paid by the said C. D. to the said A. 15., upon the execution of the deed of assignment hereinafter men- tioned, the said A. B. shall, on the day of , at the office of , the solicitor for the plaintiff" in the said action, situate at, &c., execute a valid deed of assignment to C. D. of all his right, title, and interest, in the unexpired residue of a term of 'Jt) years, granted by a lease, dated the day of , by one H. G. to the said A. B. of certain premises heretofore occupied by the said A. B. and T. T. as a smith's shop and wareroom, situate and being at, &c., subject, nevertheless, to the rent, covenants, and conditions by and in the said lease reserved and contained. And I farther award and direct that the said C. D. shall pay and satisfy all arrears of rent and taxes which have arisen, accrued, or become due, for or on account of the said premises, since the day of . \_Aicard costs of preparing the assignment.'] No. LXI. Aicard to deliver up a Bond to he eancclled. I AWARD that a certain bond or oljligation for the sum of dated the day of , IS — , and given by the said A. B. to the said C. J)., be delivered up by the said C. J), to the said A. U. to be cancelled, or that a proper release be given for the same in case such bond or obligatifin should appear to have been lost or mislaid. PRECEDENTS AND FOUMS. :{)')1 No. LXU. Award of (t ]l'(ill to }if huill. I AWARD that the said A. 1>. sliall, within one calendar nionth from the date hereof, at liis own exiiense, erect and make a sufficient fence or wall of brick of the thickness or breadth of nine inches at least, and of the heifjht of six feet, extending from that corner of his irarden marked with the letter A on the plan appended to and intended to form part of this my award to that corner of the stable in the occupation of the said C. 1)., which is marked with the letter C on the said plan, according to a line drawn in red ink on the said plan. No. LXIII. A (raid of a Wall to he jadlrd douii. I AWARD and determine that the wall >>{' lnick, intended to form the ^able end of a buildinu- now bein<( erected and built by the said C. I)., extends six inches beyond the jirojierty of the said C. I), on to the property of the said A. J>. And I further award and direct that the said C. I), do and shall, within one calendar nionth from the date hereof, pull or take down the said brick wall ; and that he shall and may, at any time thereafter, erect a fresh wall, in a line parallel with the said existing wall, but so that the outside thereof shall be at least six inches to the north-east of the outside of the said existinir wall. No. LXIV. Airard of Manner in nJiidi a ]]\ir is to Jir inaintidnrd in fntnrr. I AWARD and determine that the defendant is entitled to keep and maintain his said weir of the depth of fourteen inches and no more ; and for the j^urpose of defining, denoting, and 362 APPENDIX. perpetuating the limit of the said depth at which the defendant is entitled to keep and maintain his said weir as aforesaid, I have caused to be placed certain marks and erections near the said weir, and I declare that the said marks and erections correctly denote and define the depth at which the defendant is entitled to maintain the said weir. And I further award and declare that the map or plan hereunto annexed and signed by me defines and describes the depth of the said weir, and the said marks and erections so caused to be placed by me, as aforesaid, for perpetuating, denoting, and defining the same. And I do further award and order that the costs and charges incurred by placing the said marks and erections be borne by the defendant, and that they be for ever hereafter kept in repair and maintained by the defendant. No. LXV Award tliat one Party has no Interest in tlie Subject of Reference. I AWARD that the said C. D. hath not, nor at any time when- soever had, any interest, right, title, claim, or demand whatso- ever in, to, or in respect of the said ship or vessel. No. LXYI. Award that the Property in Premises is in one Party, subject to an Easement of the other Party. I AWAKD that the said passage, yard, and pump are the property of the said A. B., subject to the right of the said C. D. to the free use of water from the said pump in common with the said A. B., and of ingress and regress into and out of the said yard by and over the said stile for the purpose of fetching water therefrom, and for all other purposes, at his own free will and pleasure. And I also award that the said PRECEDENTS AND FORMS. 80?^ pump shall in futtuv \k- repaiivd at the- joint expense (if the said A. I{. ami ('. D. (Anil see UouiHe v. iJaries, .'< A. it E. 2no, for similar forms.) No. LXVir. Certificate of an Arh'itratov iclnii n VcnVut /.s tnl.ot subject to iiis Certijicatc. In the lli^li ("ourt of Justice. Queen's Bcia-Ii l)ivisiuii. A. li. r. C. I). 1 hereby (.-ertify that the verdict which lias been cnteied lor the plaintitr do stand, but that the damages ))e reduced to f . il. X. [Arbitrator]. To [Associate]. No. LXVllI. Award on a forinvr Anard tieiwj sent bach to tin- Artiitrator for his lleconsideration . To Ai,i, TO WHOM, &c. AVhereas by an order of the High Court of Justice, (^)aeen's liench Division, made the day of , it was ordered Lhat my award dated the day of should be referred back to me to reconsider and amend the same. Now I, the said A. B., having reconsidered my said award [or, where furtlicr evidence has (teen adduced, having taken upon myself the burthen of this further reference, and having heard and duly considered the allegations and evidence further made and adduced by the said parties], do hereby award and direct that the following amendments be made in my said award dated the day of , that is to say ; [stating the amendments to be made]. AxD in all other respects I contirm my said award made in the matter of this reference and dated the day of . Ix WITNESS, &c. 364 APPENDIX. [For precedent of an amendment in the name alone by indorsement on the former award, see Hoivctt v. ClcDients, 1 C. B. 128 ; Dai'ies v. Fraft, 17 C. B. 173.] No. LXIX. Summons for Leave to enforce Award under Section 12 if Arhitration Act, 1889. In the High Court of Justice. 18 — . No. — , Queen's Bench ])ivision {a). In the matter of an arbitration between A. B. and C. D. And in the matter of the Arbitration Act, 1889. Let C. D., of &c., attend the Judge [or Master] in Chambers, Central Office, Royal Courts of Justice, Strand, London, on the day of , 18 — , at o'clock in the noon, on the hearing of an application on the part of A. B., of &c., for leave to enforce the award dated the day of in the above arbitration in the same manner as a judgment or order to the same eflFect, and for an order that the said C. D. do pay the costs of this application, to be taxed. [Conclude as in No. XXIV.'] No. LXX. Notice of Motion to set aside or rojiit an Award. Ill the High Court of Justice. Division. ]ii the matter of an arbitration between A. B. and C. D. And in the matter of the Arbitration Act, isso. Taice notice that the court will be moved on day, the day of , 18 — , at o'clock in the forenoon, or so soon thereafter as counsel can be heard, by counsel on behalf of the said A. B., for an order that the award made (I.) For formal parts of a summons in the Chancery Division, see Xo. XXV. PRECE1>ENTS AND FORMS. ;U)5 between tlie parties to the al)Ovc-nientiuiif(l arKitnitidii hy X. Y., and tlateil the (hiy <>i' , IH — , may he set aside (or remitted to the arhitrator tVr his recoiisidenitinn) on the ^'rounds [shi/r the i/rou/ids s/iD/i/i/, thus — (1) That the arbitrator cxeeeded his authority in re(|uirititr the said A. ]\. to accejit delivery of tiie j,'oods with an allowance for inferior quality ; {2) that the award is bad on the face of it for un- certainty ; (;>) that the award is bad as not beinir tiiml ; (4) that the award does not deal with all the matters submitted to the arbitrator ; (.">) that the arbitrator has been iruilty of mis- conduct in makinj^his award upon the matters referred without havinof tirst fully heard the witnesses and evidence of the parties], and for an order tliat the costs of this application may be [costs in the reference]. And further take notice that in support of such motion the said A, ]?. intends to read the affidavits of and , copies of which afhdavits are served herewith. Dated the day of , IH— . (Siirned) ^\. X., of Solicitor fur X. Ij. To the above-named ('. 1). Reference to Referees. No. LXXT. SummoHH f(tr lu'firtiur to a Hrferce. In the High Court of Justice. Division. is — . X'o. — . Between Plaintiff, and Defendant. Let all parties concerned attend the .Tudirc [";• ^Master] in Chamlters on day, rhe day of , IS — , at o'clock in the noon, on the hearing of an 366 APPENDIX. For a refer- application Oil the part of [" the plaintiff [or defendant] that the ence under following- questions arising in this action, viz. [sfafe them'] may- be referred to the official referee in rotation for inquiry and report, pursuant to section 1?> of the Arbitration Act, 188!) "]. Another form. Or, "that it may be referred to , Esquire, as special referee, under section 13 of the Arbitration Act, 1889, to survey and inspect the premises of the plaintiff and defendant re- spectively, and the premises adjoining thereto respectively, and to report whether or not the plaintiff's premises are affected by noise arising or coming from the defendant's stables as ordinarily used by the defendant, and if so, then in what manner and to what extent, and how the same is caused or arises ; and also to report whether or not the plaintiff's premises are or are likely to be affected by the drainage coming from the defendant's stables as at present used, and if so, to what extent and in what manner, and how the same is caused or arises." For a trial " On the part of the that the whole of this cause may be tried before the official referee in rotation [or before , Esquire, as special referee, or before a special referee to be agreed on by the parties], pursuant to section 14 of the Arbitration Act, 1880, or that the following issues [or questions] of fact, viz. [state them short /i/'],maj be tried before, &c." Dated the day of , 1 8 — . This summons was taken out by , of , solicitor for . To . under s. 14. No. LXXII. Order of Reference under Section 13 of Arbitration Act, 1889 (a). In the High Court of Justice. Division. 18 — . No. — Master in Chambers. Between Plaintiff, and Defendant. (^0 K. 8. C. A\>\K K., No. 32. PRKCKDliNTS AND FOKMS. 367 Tpon hcarinpf and upon reading,' the attidavit i>f -, Hk'd the day of , ]s — , and It is nrdert'd that tlio fcjllowinL'- qiustidn arising in this action, namely , ho referred for in(iuiry and report to under section 1:5 of the Arbitration Act, IHH'.i, and that the costs of this application be . I )ated the day of , 1 s- No. LXXIII. Onlrr of lief ere II cc uiulcr Saiion 14 of tlic Arliitnitioii Aet, 188. . . Plaiiititr, and CD. . . Defendant. (rt) R. .>^. C. App. K.,Xo. 33a. 368 APPENDIX. I, A. B., of , in the county of . appoint the clay of next, at the hour of o'clock, at -, as the time and place at which I sliall sit to proceed with the inquiry into [or trial of] the matters referred to me as special referee by the order of Mr. Justice , made herein and dated tlie day of- — , IS — . And I require all persons concerned to attend before me accordingly. Dated the day of , 18—. A. B. No. LXXY. Tteport of Sj>reictl Referee. In the High Court of Justice. Division. Between A. B. . . Plaintiff, and CD. . . Defendant. I, A. B., of &c., to ^Yhom as special referee it was by an order made by Justice herein dated the day of , 18 — , referred to try the following issues of fact, viz. [sfafe ihem'], now I having tried the same accordingly, beg to report to the court that I find as follows : [state findinf/s']. Dated this day of , 1 8—. A. B. No. LXXYI. Notice of Motion to varii or remit lieport o)i further Consideration. Take notice that the coui't will !>(■ moved wlieu tlie further considei-ation of this cause comes on, that the report of herein may be varied l»y [sfale //o/i'l [or remitted to the said for reconsideration in the following respects, viz. : — ] PRECEDENTS AND FORMS. 809 No. LXXVTT. Xoticc of Motion to apt, i(r., llrport, irlicii fnrtlitr Coiix'i(h'rii not adjourned. [Formal imrts as in No. TiXXVTTT.] Take notice, fbat the eonrt will l)e moved on day, the day of , IH — , or so soon thereafter as counsel can be heard, by counsel on behalf of the plaintiff, that the report of , the referee appointed herein, dated the day of , 18 — , be adopted and cai-ricd into effect by an oi'dor that [^srf out order rrquirrd]. Dated the day of , 18—. No. LXXVIIT. Xotice of Motion for rcniittin the judgment sori(j]tt~\, on the groand that the judgment directed to be entered is wrong by reason that " \_state tJte ground']. Dated the day of , 18—. (Signed) of agent for solicitor for the To . ( :{71 ) PAirr STATUTES. 8 & 1) Vict. c. 1H, ss. 23—37. .1// Alt for cnnsDlidatin;! in our Act certain PrnrinioHx tisualli/ iiixt-rtcil in Acts authorizing the tahin;/ of LcukIh for rndcrtahiniis of a Pulilic Xati.i'C. i';'.. It" the cuinpcnsatioii claiincd or offered in any such case CoiniMMisation shall exceed fifty pounds, and if the party claiming cunipen- to'i'.o'sl.'tficd sation desire to have the same settled by arbitration, and signify bvurliitration such desire by notice in writing to the promoters of the under- "I,ti"',i^,f th,.'*" taking, before they have issued their waiTant to the sheriff to party i J t I JU'llSUtlOll. hereinafter contained, stating in such notice the nature of the interest in respect of which such party claims compensation, and the amount of the compensation so claimed, the same shall lie so settled accordingly ; l»ut unless the party claiming com- ]>ensjition shall as aforesaid signify his desire to have the utes ns tn therewith, authorized to be settled by two justices, to summon i ''"!},", ".'^'1'"" the other party to appear before two justices, at a time and place to be mimed in the summons, and ujuju the appcarau'-e II B 2 372 APPENDIX. Appointment of arbitrator when ques- tions are to be determined by arbitration . Vacancy of arbitrator to be supplied. of such parties, or in the absence of any of them, upon proof of due service of the summons, it shall be lawful for such justices to hear and determine such question, and for that purpose to examine such parties or any of them, and their witnesses, upon oath, and the costs of every such inquiry shall be in the- discretion of such justices, and they shall settle the amount thereof. 2."), When any question of disputed compensation by this or the special Act, or any Act incorporated therewith, authorized or required to be settled by arbitration, shall have arisen, then, unless both parties shall concur in the appointment of a sing'le- arbitrator, each party, on the request of the other party, shall nominate and appoint an arbitrator, to whom such dispute shall be referred ; and every appointment of an arbitrator shall be made on the part of the promoters of the undertaking under the hands of the said promoters or any two of them, or of their secretary or clerk, and on the part of any other party under the hand of such party, or if such party be a corporation aggregate- under the common seal of such coiporation ; and such appoint- ment shall be delivered to the arbitrator, and shall be deemed a submission to arbitration on the part of the party by whom the same shall be made ; and after any such appointment shall have been made neither party shall have power to revoke the same without the consent of the other, nor shall the death of either party operate as a revocation ; and if, for the space of fourteen days after any such dispute shall have arisen, and after a request in writing, in which shall be stated the matter so required to be referred to arbitration, shall have Iteen served by the one party on the other j^arty to appoint an arbitrator,, such last-mentioned ])arty fail to a])point such arbitrator, then upon such failure the party making the request, and having himself a])pointed an arbitrator, may appoint such arbitrator to- act on behalf of l)oth parties, and such arbitrator may proceed to hear and determine the matters which shall be in dispute, and in such case the award or determination of such single- arbitrator shall be final. 20. If, before the matters so referred shall be determined, any arbitrator appointed by either party die, or become in- STATITKS— 8 i^ !) VICT. C. IH. 373 'capablf, tlie party by whom such arbitrator was appointed may iiomiiiatf ami ajipnint in writin^j some other person to act in his ]ilace, and if, for the space (»f seven days after notice in writing from the other party for that purpose, he fail to do so, the remaining or other arbitrator may jiroceed cr jiarlr ; and every arbitrator so to l>e substituted lus aforesjiid shall have the same powers and authorities as were vested in the former arbi- trator at the time of such his death or disability as aforesaid. i'7. Where more than one arbitrator shall have been appointed Aiii.ointnieiit «uch arbitnitoi-8 shall, before they enter upon the matters re- ^ "'»P"'<^- ferred to them, nominate and appoint, by writing under their hands, an umpire to decide on any such matters on which they shall differ, or which shall be referred to him under the pro- visions of this or the special Act, and if such umpire shall die, or become incajjable to act, they shall forthwith after such death or incapacity appoint another umpire in his place, and the decision of every such umpire on the matters so referred to liim shall be final. I'H. If in either of the cases aforesaid the said arbitrators I'.oanl of shall refuse, or shall, for seven days after reipiest t»f either party ,,Q|,^!|.^.gj"j„ to such arbitration, neglect to appoint an umpire, the Hoard appoint au of Trade \_i)i (uui aise in ir/n'rh a raUwinj cvrnpanii shall be one ""Vi'.'-t of the pdrtij lo l/if arbilralion, and tiro justirea in any otiter case ] («) urbitnitoi-s, in shall, on the ajiplication of either party to such arbitration, *^"*''® °' '^'^" II I J ^ ' way coni- apj)oiiit an umpire, and the decision of such umpire on the panics, matters on which the arbitrators shall differ, or which shall Ix; referred to him under this or the special Act, shall be final. ■J'.). If, when a sinroceed ej- parte, &\n\ other to pro- {fi) The words in l>ratkets are repealed liy -lij >v i~ Viit. >. 1;', and .>ee 37 & 38 Vict. c. -10, s, 6. 374 APPENDIX. If arbitnitors fail to make their award within twenty-one claj-s. the matter to go to the umpire. Power of arbitrators to call for books, kc. Arbitrator or umpire to make a de- claration. Ccjst.s of arbi- tration how to be borne. the decision of such other arbitrator shall be as effectual as if he liad been the single arbitrator appointed by both parties. y>l. If, where more than one arbitrator shall have been appointed, and where neither of them shall refuse or neglect to act as aforesaid, such arbitrators shall fail to make their award within twenty-one days after the day on which the last of such arbitrators shall have been appointed, or within such extended time (if any) as shall have been appointed for that purpose by both such arbitrators under their hands, the matters referred to them shall l)e determined by the umpire to be appointed as aforesaid. 32. The said arbitrators or their umpire may call for the production of any documents in the possession or power of either party which they or he may think necessary for deter- mining the question in dispute, and may examine the parties or their witnesses on oath, and administer the oaths necessary for that purpose. 33. Before any arbitrator or umpire shall enter into the consideration of any matters referred to him, he shall in the presence of a justice make and subscribe the following declara- tion ; that is to say : — " I, A. B., do solemnly and sincerely declare. That I will faithfully and honestly, and to the best of my skill and ability, hear and determine the matters referred to me under the pro- visions of the Act [namin/j ihe i^pecial Act^^. " A. B. " Made and subscribed in the presence of And such declaration shall be annexed to the award when made ; and if any arbitrator or umpire having made such declaration shall wilfully act contrary thereto, he shall be guilty of a misdemeanor. 34. All the costs of any such arbitration, and incident thereto, to be settled by the arljitrators, shall be borne by the promoters of the undertaking, unless the arbitrators shall award the same or a less sum than shall have been ottered by the promoters of the undertaking, in which case each paity shall bear his own costs incident to the arbitration, and the costs of the arbitrators shall be borne by the parties in equal proportions. STATITKS — 12 A: V'\ VKT. c. 15. H75 :J."». The arbitratore shall dclivfi- their award in writiiif^ to Awnnl t<> U- the pruinoters of the uiidertakiiiL;-, and ihe said itroinotors shall [i',Vp'romoten* ivtain tlie same, and shall fnrthuith uu demand, at their own of tin- uihKt- expense, furnish a copy thereof to the other party to the '" '"*-'• arbitration, and shall at all times, on demand, produce the said award, and alldw the same to be insjiected or examined by such party or auy person appointed by him for that purpose. ;>G. The submission to any such arbitration may be made SulMnission a rule of any of the superior courts, on the application of either |"".;Y."jj,""''^'' of the parties. court. .■'»7. Xo award made with respect to any question referred to AwanI not arbitration under the provisions of this or the special Act shall l°l throii;,'li i _ * error iti form. be set aside for irregularity or error in matter of form. 12 \- IS Vict. c. 45, ss. 12—15. All Act to amend the Procedure in Courts of General and (Jnarter lSe8sio)t8 of the Peace i)i Kmjland and Wales, and for the better Advancement of Justice in Cases U'itliin the Jurisdiction (f tltose Courts. li'. " And whereas by a statute passed in the tenth year of Rofeiences to. King- William the Third, intituled 'An Act for determininjj; nrbitration. Ditlerences by Arbitration,' provision was made for reiiderini; more etlectual the awards of arbitrators in the case of con- troversies and disputes for which there is no other remedy but by personal action or by suit in equity : and whereas it is expedient in like manner to facilitate and render more effectual references to arbitration of controversies and disputes for which the remedy is by appeal to a court of general or (]uarter sessions of the peace:" be it enacted, that at any time after notice <^iven of appeal to any court of general or (juarter sessions of the peace against any order, rate, or other matter (except a summary conviction, or an order in bastardy, or any inuceedini; under or by virtue of any of the statutes relating to Ikr .Majesty's revenue of excise or customs, staiiips, taxes or 376 APPENDIX. Eeferences by order of court of sessions. post office), for which the remedy is by such appeal, it shall be lawful for the parties, by themsehes or their attorneys, and by order of a judge of Her Majesty's Court of Queen's Bench, to submit the matter or matters of such appeal to the award or umpirage of any person or persons, and to agree that such submission should be made a rule of the said Court of Queen's Bench, and to insert such agreement in their submission or the condition of the bond or promise whereby they oblige them- selves respectively to submit to the award or umpirage of such person or persons ; and thereupon such and the like proceed- ings in all respects shall and may be taken with regard to submissions under this Act, and to enforcing awards or um- pirages thereupon, and to setting aside the same, as are authorized by the said Act of King William the Third with regard to the cases therein provided for ; and every award or umpirage duly made under this Act shall be as binding and eft'ectual to all intents as if the same had been a regular judg- ment of the said court of general or quarter sessions, and shall and may, on the application of either party, be enrolled among the records of the said court of sessions. I'd. That it shall be lawful for any court of general or quarter sessions of the peace belbre which any appeal (except against a summary conviction, or an order in bastardy, or any proceeding under or by ^•irtue of any of the statutes relating to Her Majesty's revenue of excise or customs, stamps, taxes or post oilice), shall be brought, to order, with consent of the parties or their attorneys, that the matter or matters of such appeal be referred to arbitration to such person or persons and in such manner and on such terms as the said court shall think reasonable and proper, and such order may be made a rule of the Court of Queen's Bench, on the application of either party ; and the award of the arbitrator or arbitrators, or umpirage of the umpire, may, on motion by either party at the sessions next or next but one after such award or umpirage shall have been finally made and published, or after the decision of the Court of Queen's Bench on any motion for setting aside the same, be entered as the judgment of the court of general or quarter sessions in the appeal, and shall be as binding and STATrTKS — 17 iV IH VICT. c. 125. B77 «ttc'ctiuil to all iutontB as if °"'' award or umjiirage can be made, it shall be lawful for the s;iid ajtinal. •court to order the court of general or (|uarter sessions of the peace to enter continuances and hear the appeal. ].'». That the several jirovisions relating to arbitrations 3 & 4 ^Vi^. 4, contained in an Act of the fourth year of Kinir William the '"• ^'(.' V/'® •' iiKjMicablo to Fourth, intituled "An Act for the further Amendment of the ivIcrmk.os. Law and the better Advancement of Justice,'' shall be deemed and taken to be applicable to arbitrations under this Act ; and in every such arbitration the arbitrator or arbitrators, or Arbitrators umpire shall have the same powers of amendment which the "^"-^' """''"'■ court of general or quarter sessions of the peace would have had on the trial of the appeal. 17 .V lb Vict. c. 125, ss. 3—117. -1// Act fur iJir turtlirr Amiinlmritt of tJir I'tonss, I'lactivc and Mode of PlcadiiKf in and <)dav(jin(j the Juris- diction of the Superior Courts of Conumni Law at Westminster, and of ilw Superior Courts of Common Law of the Counties l'(datiue of Lancaster and JJurhain. ;!. If it be made ai)pear, at any time after the issuing of power to •the writ, to the satisfaction of the court or a judge, upon the '"'irt or judge 378 APPENDIX. to diruct arbitration belore trial. Special case ma}' he stated, ancl qiTestion of fact tried. Arbitrator may state special case. Power to judge to di- rect arbitra- tion at time of trial, when issues of fact left to his decision. application of either party, that the matter in dispute consists, wholly or in part of matters of mere account which cannot conveniently be tried in the ordinary way, it shall be lawful for such court or judge, upon such application, if they or he think fit, to decide such matter in a summary manner, or to order that such matter, either wholly or in part, be referred to an arbitrator appointed by the parties, or to an officer of the court [or, in country causes, to tlie judge of anij county court'] (a), upon such terms as to costs and otherwise, as such court or judge shall think reasonable ; and the decision or order of such court or judge, or the award or certificate of such referee, shall be enforceable by the same process as the findmg^ of a jury upon the matter referred. 4. If it shall appear to the court or a judge that the allow- ance or disallowance of any particular item or items in such account depends upon a question of law fit to be decided by the court, or upon a question of fact fit to be decided by a jury, or by a judge upon the consent of Ijoth parties as herein- before provided, it shall be lawful fur such court or judge to direct a case to be stated, or an issue or issues to be tried ; and the decision of the court upon such case and the finding of the jury or judge upon such issue or issues shall be taken and acted upon by the arbitrator as conclusive. o. It shall be lawful for the arbitrator upon any compulsory reference under this Act, or upon any reference by consent of parties where the submission is or may be made a rule or order of any of the superior courts of law or equity at West- minster, if he shall think fit, and if it is not provided to the contrary, to state his award, as to the whole or any part thereof, in the form of a special case for the opinion of the court, and when an action is referred, judgment, if so ordered^ may be entered according to the opinion of the court. 0. If upon the trial of any issue of fact by a judge under this Act it shall appear to the judge that the questions arising thereon involve matter of account which cannot conveniently be tried before him, it shall be lawful for him, at his discretion^ to order that such matter of account be referred to an arbi- («) Tlie words in brackets are ruiieaiud, 21 k 22 Vict. c. 74, s. 5. sTA'rrTKs — 17 ^- IH vrt. c. ]'!'). 879 trator appointed liy tlu- parties, or t<» an ufticer of the court [or, in ruiinlri/ raiists, to a jiiihjr of ain/ cnititij rourt] (n), upon such terms iis to costs, and otherwise, as such judi;f shall think reasonable ; and the award or certiticate of such referee shall have the same effect as hcreinliefore provided as to the award or certificate <>f a referee before trial : and it shall be com- petent for the jud^e to proceed to try and dispose of any other matters in question, not referred in like manner, as if no reference had been made. 7. The proceedings upon any sucii arbitration as aforesaid I'roceetUn^'s shall, except otherwise directed hereby or by the submission ,|^w<'-^ of'such or document authorizinj; the reference, be conducted in like arbitrator, manner, and subject to the same rules and enactments, as to the power of the arbitrator and of the court, the attendance (if witnesses, the production of documents, enforciufic or settins; aside the award, and otherwise, as upon a reference made by consent under a rule of court or judi;e's order. N. In any case where reference shall be made to arbitration Power to send as aforesaid the court or a jud^e shall have power at any time, ^^^^q^*^ "'^' and from time to time, to remit the matters referred, or any or either of them, to the re-consideration and re-determination of the said arbitrator, upon such terms, as to costs and other- wise, as to the said court or judge may seem projjcr. 0. All applications to set aside any award made on a com- Ai>i.liiatioii to l)ulsory reference under this Act shall and may be made within set uside the tile first seven days of the term next following the publication of the award to the parties, whether made in vacation or term ; and if no such application is made, or if no rule is granted thereon, or if any rule granted thereon is afterwards dischargetl, such award shall lie final between the parties. 10. Any award made on a compulsory reference under this Enioning of Act may, by authority of a judge, on such terms as to him ^J,"^|'*,-^V^'"" may seem reasonable, be enforced at any time after seven st-ttiug them days from the time of publication, notwithstandiiiLT that the '^*"*•'• time for moving to set it aside has not elapsed. 11. Whenever the parties to any deed or instrnmeni in li :m u.n . om- 11. 1 J <••! I II Iiuiictd hviilio writmg to be hereatter nuule or executed, or any ol tliein, sUall ^^,,^ ,,,,;, _,ii («) The words in braikets are rei'eakil, \1\ K ".'J Vict. o. 74, s. ;'. 380 APPENDIX. liave agreed to arbitration, L-ourt or judge may stay pro- Leediiiss. On failure of parties or ar- bitrators, judge may appoint single arbitrator or umpire. agree that auy then existing or future differences between them or any of them shall be referred to arbitration, and any one or more of the parties so agreeing, or any person or persons claiming through or under him or them, shall nevertheless commence any action at law or suit in erjuity against the other jDarty or parties, or any of them, or against any person or persons claiming through or under him or them in respect of the matters so agreed to be referred, or any of them, it shall be lawful for the court in which action or suit is brought, or a judge thereof, on application by the defendant or defen- dants or any of them, after appearance and before plea or answer, upon being satisfied that no sufficient reason exists why such matters cannot be or ought not to be referred to arbitration according to such agreement as aforesaid, and that the defendant was at the time of the bringing of such action or suit and still is ready and willing to join and concur in all acts necessary and proper for causing such matters so to be decided by arbitration, to make a rule or order staying all proceedings in such action or suit, on such terms as to costs and otherwise as to such court or judge may seem fit: provided always, that any such rule or order may at auy time after wai'ds be discharged or varied as justice may require. 12. If in any case of arbitration the document authorizing the reference provide that the reference shall be to a single arbitrator, and all the parties do not, after differences have arisen, concur in the appointment of an arbitrator ; or if any appointed arbitrator refuse to act, or become incapable of acting, or die, and the terms of such document do not show that it was intended that such vacancy should not be supiilied, and the parties do not concur in appointing a new one ; or if, where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator, such parties or arbitrators do not appoint an umpire or third arbitrator ; or if any appointed umpire or third arljitrator refuse to act, or become incapable of acting, or die, and the terms of the document authorizing the reference do not show that it Avas intended that such a vacancy should not be supplied, and the parties or arbitrators respectively do not appoint a new one ; then in every such STATITKS — 17 iV IS VUT. C. 125. 881 iiishiiice any ]'iirty nuiy sitvu the rcmaiiiiii!,' parties or the arbitnitoi-s, as the c-ase may \)v, with a written notice to appoint an arbitrator, umpire, or third arbitrator respectively ; and if within seven clear days after such notice shall have l)een served no arbitrator, umpire, or third arbitrator be appointed, it shall be lawful for any jud<^e of any of the suixirior courts of law or equity at AVestminster, upon summons to be taken out by the party havino; served such notice as aforesaid, to appoint an arbitrator, umpire, or third arbitrator, as the case may be, and such arbitrator, umpire, and third arbitrator respectively shall liave the like power to act in the reference and make an award as if he had been appointed by consent of all ]>artics. l;). When the reference is or is intended to be to two arbi- When irfcr- trators, one appointed by eacii party, it shall be lawful for either !j"f7. '■''/° ^^'^ ])arty, in the ease of the death, refusal to act, or in(a]>aeity of hihI one pinty any arbitrator appointed by him, to substitute a new arliitrator, '"'. *:" "'',' •' I 1 .' » » ]ioiiit, otlier unless the document autht»riziup^ the reference show that it was |.;MLy may intended that the vacancy should not be su))plied ; and if on '''!'l'"'"i '^'''i- •' ' ' tiator to act such a reference one i)arty fail to appoint an arbitrator, either aloup. orifjinally, oi- by way of substitution as aforesaid, for seven clear days alter the other party shall have appointed an arbitrator, and shall have served the party so failini^ to appoint with notice in wiiLinij to make the appointment, the party who has appointed an arbitrator may appoint such arbitrator to act as sole ar])itrator in the reference, and an award made l)y him shall be bindinjj: on both parties as if the appointment had been Iiy consent ; pntvided, however, that the court or a jud^e may revoke such appointment, on such terms as shall seem just. 14. AVhen the reference is to two arbitrators, and the terms Two nriiiiia> of the document authorizing it do not show that it was intended ^"'^•Jl"''' that tliere should not be an umpire, or ])rovide otherwise for nmi.ivc. the appointment of an umpire, the tw(» arbitrators may ajtpoint an umpire at any time within the period dnrini: which they have power to make an award, unless they be called upon by notice as aforesaid to make the appointment sooner. l.'t. The arbitrator aetimr under any sueh document or com- Award to W Hindi- in three 382 APPENDIX. months, unless ))aities or court enlarge time. Piule to de- liver posses- sion of land pursuant to award to be enforced as a judgment in ejectment. pulsory order of reference as aforesaid, or under any order referrino; the award back, shall make his award under his hand, and (unless such document or order respectively shall contain a different limit of time) within three months after he shall have been appointed and shall have entered on the reference, or shall have been called upon to act by a notice in writing from any party, but the parties may by consent in writing enlarge the term for making the award : and it shall be lawful for the superior court of which such submission, document, or order is or may be made a rule or order, or for any judge thereof, for good cause to be stated in the rule or order for enlargement, from time to time to enlarge the term for making the award ; and if no period be stated for the enlargement in such consent or order for enlargement, it shall be deemed to be an enlargement for one month ; and in any case where an umpire shall have been appointed, it shall be lawful for him to enter on the reference in lieu of the arbitrators, if the latter shall have allowed their time or their extended time to expire without making an award, or shall have delivered to any party or to the umpire a notice in writing stating that they cannot agree. 1(». When any award made on any such submission, docu- ment, or order of reference as aforesaid directs that possession of any lands or tenements capable of being the subject of an action of ejectment shall be delivered to any party, either forth- with or at any future time, or that any such party is entitled to the possession of any such lands or tenements, it shall be lawful for the court of which the document authorizing the reference is or is made a rule or order to order any party to the reference who shall be in possession of any such lands or tene- ments, or any person in possession of the same claiming under or put in iKjssession by him since the making of the document authorizing the reference, to deliver possession of the same to the party entitled thereto, pursuant to the award ; and such rule or order to deliver possession shall have the effect of a judgment in ejectment against every such party or person named in it, and execution may issue, and possession shall be ■delivered by the sheriff" as on a judgment in ejectment. STATl'TKS^ — 'I'l \ '2'.\ VKT. ('. HO. ggg 17. Every ni' mu.l.- ruk- e(|uitv nt "Westminster, on tbe apub'cation of any party tlierctt), "'^ '■""'*• • • _' ' _ J t J > unless a cnii- nnless sui-h airreement or submission contain words ])ur|tortin. 38.') (liiys after beinp: thi.Tcunto reqiiestod in wrihiii: l»y the (iiIrt l.y I5.mr.l of cuuipany, <»r by the other cuin])aiiie.s or any of them, then, '''■"''•'• on the application of the companies or any of them, the Hoard of Trade, instead of the company so failin<^ to appoint an arbi- trator, may aj>point an arbitrator ; and the arbitrator so appointed shall for the purposes of this Act be deemed to be appointed by tlie company so failing;:. !•. "When the reference is made to twoor moi-e arI)itratoi*s, if Ain^ointment before the matters referred to them are determined any arbi- "'"''""■»*«" -^ IiV aMie.s trator dies, or becomes incapable or unfit, or for seven consecu- t.'. Mi].piy tive days fails to act as arbitrator, the cctinpany by which he ^■^'^'•"'^'"■'^• was appointed shall by writing under their common seal appoint an arbitrator in his place. 10. Where the company by which an arbitrator ought to be A|'|.ointnient apiiointed in the place of the arbitrator so deceased, incapable, ?' •"" "^•'ators ' ' r ' I ' l,v ]!o;irii of unfit, or failing to act, fail to make the appointment within Trade to fourteen days after being thereuuto requested in writing bv the ''"I'P'y. Other company, or by the other companies or any of them, then, on the application of the companies or any of them, the Hoard of Trade may ai>point an arbitrator ; and the arbitrator so appointed by the Board of Trade shall, for the purposes of this Act, be deemed to l)e appointed by the company so failing. 11. When any aiipointment of an arbitrator is made, the Api'ointmcnt company making the appointment shall have no power to not revocable, revoke the appointment, without the previous consent in writing of the other company or every other company in writing under their common seal. 12. Where two or moR' arbitrators are appointed, they shall, Appoiiitjm'nt beforc entering on the l)Usiness of the reference, aiijioint by ari'ilra'tors ' writing under their hands an impartial and (jualitit'd jierson t(» be their umpire. ];;. If the arbitrators do not appoint an umpire within Apj>ointraent seven days after the reference is made to the arbitrators, then, 'i'j„.,r,i of*^ on the application of the companies, or any of them, the Hoard Tnule. of Trade may a]>[K)int an umpire ; and the umpire so appointed shall, for the purposes of this Act, be deemed to be ap})ointed by the arbitrators. 1 4. Where two or more arbitrators are appointed, if before the Api>ointmeiit of unii'iro by A. C C ' •' 386 APPENDIX. arbitrators to supply Appointiiieiit ot umpire by F.oard of Trr inturmalitv. ^". , f^' J r^ ' • nsiUf lor 27k Except only so far as the companies bound by any informality, award in accordance with this Act from time to time otherwise AwnnU to agree, all things by every award in accorilance with this Act lawfully required to be done, omitted, or suffered, shall 1k> done, omitted, or sullered accordingly. c c2 388 APPENDIX. Agreements, arbitrations and awards to have eft'ect. Costs of arbi- tration and award. Pa)Tnent of costs. Submission to arbitration to be made a rule of court. 2(5. Full effect shall be given by all the superioi- courts of law aud ef|nity in the United Kingdom , according to their respective jurisdiction, and by the companies respectively and otherwise, to all agreements, references, arbitrations and awards in accordance with this Act ; and the j^erformance or observance thereof may, where the courts think fit, be compelled by distress infinite on the property of the companies respectively, or by any other process against the companies respectively or their respective property, that the courts or any judge thereof shall direct [and where rcquisiie frame for the purposey(a). 27. Except where and as the companies otherwise agree, the costs of and attending the arbitration and the award shall be in the discretion of the arbitrator, and the ai-ltitrators, and the umpire respectively. 2>^. Except where and as the companies otherwise agree, and if and so far as the award does not otherwise determine, the costs of and attending the arbitration and the award shall be borne and paid by the companies in equal shares, and in other respects the companies shall bear their own respective costs. 2'.). The submission to any arbitration in accordance with this Act may at any time be made a rule of any of her Majesty's Superior Courts of Record at Westminster, or, as the case may be, at Dublin, on the application of any party interested ; and the court may remit the matter to the arbitrator, or to the arbitrators, or to the umpire, with any directions the court think fit. Jlodft of reference to arbitration. 38 & 39 YiCT. c. 55, ss. 179—181. The Puhlir TTcalth Act, 1875. 1 7!). In case of dispute as to the amount of any compensation to be made under the provisions of this Act (except where the mode of determining the same is specially provided for), and in case of any matter which by this Act is authorized or directed to be settled by arbitration, then, unless both parties concur in {a) Tlie wonls in brackets are repealed by 44 & 45 ^'ict. c. r.9. STATUTES— 38 I't :J!) VICT. C. OO, 8S. 17'J— IHl. 389 tlif appointment of a sin;;Ic' arliitratnr, cadi party shall appdiiit an arbitrator to whom the matter shall be referred. IHo. With respect to arbitrations undui- this Act, the folluwini: Kf^rulntionu re.) If before the determination of any matter so refeiTed any arbitrator dies or refuses or becomes incapable to act, the party by whom such arbitrator was appointed may ajtpoint in writing another jjerson in his stead ; and if such party fails so to do for the sj»ace of seven days after notice in writing from the other party in that behalf, the remaining arbitrator may proceed ex parte ; and every arbitrator so appointed shall have the same powers and authorities as were vested in the arbitrator in whose stead the appointment is made : (. A sulnnission, unless a contrary intention is expressed rrovisions therein, shall be deemed to include the provisions set fortii in ",',V,',ni8!>ions. 392 APPENDIX. Reference to official referee. Power to stay proceedings where there is a submission. Power for the court in certain cases to appoint an ar>titrator, umpire, or third arbi- trator. the First Schedule to this Act, so far as they are applicable to the reference under the submission. 3. "Where a submission provides that the reference shall be to an official referee, any official referee to whom application is made shall, subject to any order of the court or a judge as to transfer or otherwise, hear and determine the matters agreed to be referred. 4. If any party to a submission, or any person claiming through or under him, commences any legal proceedings in any court against any other party to the submission, or any person claiming through or under him, in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance, and before delivering any pleadings or taking any other steps in the proceedings, apply to that court to stay the proceedings, and that court or a judge thereof if satisfied that there is no sufficient reason why the matter should not be referred in accordance with the submission, and that the applicant was, at the time when the proceedings were commenced, and still remains, ready and willing to do all things necessary to the proper conduct of the arbitration, may make an order staying the proceedings. 5. In any of the following cases : — («.) Where a submission provides that the reference shall l)e to a single arbitrator, and all the parties do not after differences have arisen concur in the appointment of an arbitrator : (h.) If an appointed arbitrator refuses to act, or is incai)al)le of acting, or dies, and the submission does not show that it was intended that the vacancy should not be supplied, and the parties do not supply the vacancy : (c.) Where the parties or two arbitrators are at liberty to appoint an umpire or third arbitrator and do not appoint him : ('2 iV- nii VliT. t. 1!». 898 any \mvty iimy Kcrve the t)tlK'r parties or the iirliitrators, as the case may be, with a written notiee to appoint an arbitrator, umpire, or third arbitrator. If the apj>ointment is not uv.uh witliin seven ek-ar days after the service of the notice, the eonrt or a jnd;j;e may, on appHca- ti(Mi by the party who » : or, (c.) If the question in dispute consists wholly or in purl of matter of account ; the court or a jnd<,'e may :it any time order the whole cause or matt'jr, or any question or issue of fact arising therein, to i)e tried before a special referee or arbitrator respectively a<;reed on by the parties, or before an official referee or officer of the court. 1.'). — (1.) In all cases of reference to an official or special Powers ami referee or arbitrator under an order of the court or a ind«re in anv re;"'»»«™tion •' "■ of iiMerees and cause or matter, the (tfficial or special referee or arbitrator shall arl.itrators. 1^ deemed to be an officer of the couit, and shall have such authority, and shall conduct the reference in such manner, as nniy be prescribed by Rules of Court, and subject thereto as the court or a judge may direct. {'J.) The report or award of any official or si)ecial referee or arbitiator on any such reference shall, unless set aside by the court or a judge, be equivalent to the verdict of a jury. (;5.) The remuneration to be paid to any special referee or arbitrator to whom any matter is referred under order of the court or a judge shall be determined by the court or a judge. J 6. The court or a judge shall, as to references under order Court to have of the court or a judge, have all the powers which are bv this P°^^'^'-"* ^"* '" JO' I . rufereiKH's by Act conferred on the court or a judge as to references by consent, consent out of court. 17. Her Majesty's Court of Appeal shall have all the powere Court of Ap- conferred bv this Act on the court or a iud-'e thereof under the !"■'"' '° ''f""' •■ '^ powere of provisions relating to references under order of the court. court. l^<. — {\.) The court or a judge may order that u writ of I'ower to coui- subpa-na ad testificandum or of subpicna duces tecum, shall ^'f atten.iancr ^ 1^ ' of witnf.ss in issue to compel the attendance l>efore an official or sjK'cial nnyi'artofth.- referee, or before any ari)itrator or umitire. of a witness wherever , "'^'" ,"'^' ■' '^ di»ni, anti to he may be within the United Kingdom. onli-r haUcas (2.) The court or a judize may also order that a writ of I'^"!'"'*^" habeas corpus ad testilicandum shall issue to brim; up a 396 APPENDIX. Statement of case pending arbitration. Costs. Exercise of ] lowers by masters aud other officers. Penalty for perjury. Crown to be bound. Application of Act to re- ferences under statutory powers. Saving for pending arbitrations. prisoner for examination before an official or special referee, or before any arbitrator or umpire. 10. Any referee, arbitrator, or umpire may at any stage of the proceedings under a reference, and shall, if so directed by the court or a judge, state in the form of a special case for the opinion of the court any question of law arising in the course of the reference. 2<). Any order made under this Act may be made on such terms as to costs, or otherwise, as the authority making the order thinks just. 21. Provision may from time to time be made by Rules of Court for conferring on any master, or other officer of the Supreme Court, all or any of the jurisdiction conferred by this Act on the court or a judge. 22. Any person who wilfully and corruptly gives false evi- dence before any referee, arbitrator, or umpire shall be guilty of perjury, as if the evidence had been given in open court, and may be dealt with, prosecuted, and punished accordingly. 2o. This Act shall, except as in this Act expressly mentioned, apply to any arbitration to which Her ]\Iajesty the Queen, either in right of the Crown, or of the Duchy of Lancaster or otherwise, or the Duke of Cornwall, is a party, but nothing in this Act shall empower the court or a judge to order any pro- ceedings to which Her Majesty or the Duke of Cornwall is a party, or any question or issue in any such proceedings, to be tried before any referee, arbitrator, or officer without the consent of Her jMajesty or the Duke of Cornwall, as the case may be, or shall affect the law as to costs payable by the Crown. 24. This Act shall apply to every arbitration under any Act passed before or after the commencement of this Act as if the arbitration were pursuant to a submission, except in so far as this Act is inconsistent with the Act regulating the arbitration or with any rules or procedure authorized or recognized by that Act. 2"). This Act shall not afllect any arbitration pending at the commencement of this Act, but shall apjily to any arbitration commenced after the commencement of this Act under any sTATiTKs — r)*2 A: r)3 VICT. c. V.K 397 iiLrrcenient uv crder mude Ijelbie the commencement (if this Act. L'C. — (1.) The enactments descriijL'tl in the Second Schedule H.'iKal. to this Act are hereby repealed to the extent therein mentioned, but this repeal shall not affect anything'- done or suffered, or any ri^dit accpiiri'd or duty imposed or liability incurred, before the commencement of this Act, or the institution or prosecution to its termination of any legal proceeding; or other remedy for ascertaining or enforcing any such liability. {'2.) Any enactment or instrument referring to any enact- ment repealed by this Act shall be construed as referring to this Act. 'J~. In this Act, unless the contrary intention ajip'-ars, — Dcfiuitioiis. " Submission " means a written agreement to submit present or future differences to arbitration, whetlier an arbitrator is named therein or not. "Court " means Her Majesty's Iligli Court of Justice. " Judge " means a judge of Her Majesty'.s High Court of Justice. "Rules of Court" means the Ilules of the Supreme Court made by the proper authority under the Judicature Acts. 2H. This Act shall not extend to Scotland or Ireland. Extent. 21). This Act shall commence and come into oix;ration on Conmicnce- the first day of January one thousand eight hundred and '"*^"*- ninety. ?)<». This Act may be cited as the Arbitraiion Art., iss'.i. Short title. SCHEDULES. THE FIRST SCHEDULE. Provisions to i;i-: imiliki' in Submissions. (*. If no other mode of reference is ])ri>vitltMl. tin- reference fliall be to a single arbitrator. b. If the reference is to two arbitrators, the two arbitrators may appoint an iinipire at any time within tlie jnriud durin;; which they have power to luuke an award. 398 APPENDIX. r. The arbitrators shall make their award in \n-iting wdthin three months after entering on the I'eference, or after having been called on to act by notice in writing from any partj' to the submission, or on or before any later day to which the arbitrators, by any writing signed by them, may from time to time enlarge the time for making the award. d. If the arbitrators have allowe 1 their time or extended time to expire without making an award, or have delivered to any party to the submission, or to the umpire a notice in writing, stating that they cannot agree, the umpire may forthwith enter on the reference in lieu of the arbitrators. e. The umpire shall make his award within one month after the original or extended time appointed for making the award of the ai'l)itrators has expired, or on or before any later day to which the umpire by any writing signed by him may from time to time enlarge the time for making his award. /. The parties to the reference, and all persons claiming through them respectively, shall, subject to any legal objection, submit to be examined by the arbiti'ators or umpire, on oath or affirmation, in relation to the matters in dispute, and shall, subject as aforesaid, produce before the arbitrators or umpire, all books, deeds, papers, accounts, writings, and documents within their possession or i:)ower respectively which may be required or called for, and do all other things which during the jn-oceedings on the reference the arbitrators or umpire may require. I/. The witnesses on the reference shall, if the arbitrators or umpire think fit, be examined on oath or affinnation. h. The award to be made by the aibitratoi's or umpire shall be final and Innding on the parties and the persons claiming under them respectively. /. The costs of the reference and award shall l)e in the discretion of the arbitrators or umpire, who may dii-ect to and by whom and in what manner those costs or any part thereof shall be paid, and may tax or settle the amount of costs to be so paid, or any part thereof, and may award costs to be paid as between solicitor and client. 6TATUTKS — 52 ifc TiS MCT. C. 49. 399 THE SECOND SCIIEDl'LE. EVACrMFNTS RI'PEAI.Kn. SfSHion niinl. V Will. 3, C. 15 . An Act for dctermin- ine: diffrrenccs by arbitration. The whole Act. :^ A: 4 Will. 4. v. 42 . An Act for the further amendment of the law and the better ailvanccmont of jus- tice. Sections thirty-nine to forty-one, Ixith in- elusive. 17 & 18 Vict. 0. 12o . The Common Law Pro- cedure Act, ls.')4. Sections three to seven- teen, both inclusive. :M) k 37 Vict. c. C.C, . The Supreme Court of Judicature Act. 1873. Section tifty-si.\, from " Subject to any '•■ Rules of Court '" down to •• a.s a judjr- " mcnt by the Cnurt." botli inclu^iivc, and the woi-ds '■ special " referees or." Sec- tions tifty-seven to tifty-nine. l>oth inclu- 6ive. 47 .V 48 Vict. c. C.l . The Supreme Court of .Tudiontiirc A'-t. H>loying, 149. ACgriE.SCKNCE. J,ul sec Waivek. in award, may bind stranger, 251. may prevent party from moving to set it aside, 273. ACTION, rrfcrnicr of, by consent, may be at any stage, 21, 63. inchides counter-chiim, 200. court or judge may order, 63. on "usual terms," 64. stranger nnule part)' to, 21, 64. and directed to pay costs, 226. amending order of, 82. refcreni'e of, is of the cause as it stands, 76. jileadings in, need not be set out in award, 20'>. awarding on, in words of the issue, 2u0. finding on eacli issue, when costj* abide the event, 2ol. si>ecitic finding when not necessar}', 202. not if arbitrator is to tax costs, 204. or if costs ib> not abide the event, 2^5. or if issues have not been joined, 2o5. 406 INDEX. ACTION — continued. reference of, by consent — continued. awarding; a general verdict, '204. awarding entry of a verdict, 205. award .should assess damages 2C6. unless a plea found for defendant answers the whole claim, 207. damages awarded in, not to exceed verdict taken on reference, 207. nor amount claimed in plaintiff's particulars, 208. damages not limited when all matters in difference referred, 208. when plaintiti' may be ordered to pay a sum of money, 209. awarding a stet processus, 196, 201, 209. a nonsuit, 209. an entry of judgment, 209. costs of, 218. And see Costs. compulsory reference of. See Compulsory Reference. discretion of judge in ordering, 304. in what cases, 66. at what stage, 67, 304. when part only "matter of account," 317. when questions of fraud involved, 317. whether of whole, allowed, 317. for breach of agreement to refer, 49. submission no bar to, for same matter, 48. stayed, after agreement to refer, 48, 53. And see Staying Pro- ceedings. for revocation of sulmiission, 101. against arbitrator, 128. when an award a defence to, 254, 256. entering judgment in, in pursuance of award, 294. on an award for a, money claim, when it will lie, 295. when the only remedj', 26, 295. for interest on sum awarded, 254, 296. for costs awarded, 296. is upon the contract in submission, 296. indorsement of writ in, 297. statement of claim, 297. defence to, 297. as to part, 299. set-cti' and counter-claim to, 299. for specific 'performance, of agi'eemeut to refer, 48. of contract when terms conditional on reference, 49. after part performance, 50. of award, 299. defences to, 301. ADMIXISTRATOK. See Executor. ADMISSION, by party before arbitrator, wlien evidence, 129. of mistake by arbitrator, award remitted back on, 243. but not set aside on, 263. AFFIDAVIT, not receivable by arbitrator, 139. of mistake by arbitrator, 243, 263. INDEX. I(l( A r !■■ 1 1 ) A \ IT— rox/num/. oil inntion to set aside an awnnl, 274. to enforce nwanl, "278, 292. how entitled, 277, 292. AFFIKMATIOX, instead ol uatli, 138. AliKNT, duly anthorixed, may refer, 17. wlieii, and not i)rineii)al lioiind liy .suimii^sion, 17. authority to, to refer arising out of employment, 18. of the parties, arhitrators not to act as, 110. award of payment of money to, 1(56. demand hy, of performance of awanl, 290. may not be appointed arhitnitor, 97, 10.">. AUKKKMEXT. Sec Srit.Missiox, Si'KtiFic 1'ki;kulimission, means written, 2. reference by, 45. to refer, by what law governed, Q. no bar to action, 48, 55. action for breach of, 49. -spi-cilic performance of, 48, 50. makiiii,' award condition preceilent to aclion, .',1. future dill'erenies, 50. Hec FuTVKK DlKKKUKNCKS, Stayiso I'KUi KlCDISiJS. wlien it ousts the jurisdiction of the court, 34, 35, t)2. conditional, on an awanl, 49. AGRICri/riKAL il()LI)lX<;S ACT, 1883, reference under, 1, 35, 102. ap[>ointnient of referee a submission, 1. suiimission under, irrevocable, 102. "ALL MATTERS IX DIFFEREXCE," by what words referred, 73. referretl, arbitrator must decide, 174. do not include a matter existing but not in ditfcrence, 76, 252. stamp on submission of, 47. ALLOT.MEXT.> ACT, 1887, reference under, 30. ALLtiTMKXTS (( ).Mri:NSATI( >N FOR CKUl'.^ ACT, 1887, refereiK-c under, 3i). ALTERATIOX, of submission, 81 — 85. by consent of parties, 81. amounts to a new .subnussion, 47, 81. by an instrument of as high a nature as submission, 81. arlntrator no power to make, 82. of orders of reference, when court can make, 82. of an award, when can be made, 38, 157, 211. AMEND.MEXT. .SV. Aiiekatiox. 408 INDEX. APPEAL, at quarter sessions, reference of, 23, 232. Sec Quakteii Sessions. from an award, 249. on a compulsory reference, 247, 260. from judgment on special case, 160. against compulsory order of reference, 305. against report of a referee, 320. APPOIXT.MEXT, of arbitrator under an agreement to refer, 103, 110, 112, 114. by court, 113. third arbitrator, no power of court as to, 2, 118. meetings in a reference, 132. umpire or third arbitrator, 116 — 119. by court, 118. to proceed before referees, 306. ARBITRATION, defined, 1. and valuation, distinguished, 3. compulsory reference not an, 3wcr to examine parties, '.K ohlif^atioii to jiroduce documents, 9. ]iower to e.xftmine witiie.s.ses, 9. finality of awanl, 9. jiower over costs, 9. dispenses with rules of court, 37. simplitics applications to court, 37. jirovides lor .subpiena lor witnesses, 38. enables arliitrator to correct slip in award, 38. powers of court under, exercised l>y master, 37. gives court jiower over costs of all orders, 276, 396. ARBITRATOR. ^<-<- Rkkkkkk. di-tiiiition of term, 1. mere valuei' not an, 3. jierson settlin;.; accounts not, 5. en;,'ineer or architect under a contract for works not, 5. a judge may be in jiosition of, 45. when oilicial referee an, 309. Jluctuating body may be, 103. horse steward not an, 6, 107. referee of boat race an, 6. more than one, disadvantage of, 10, 109. reference to single, implied in A. A., 1889, 8, 112. who maybe chosen, 9, 103. who should be ihosen, 103. <|Ualities re(|uisite in, 108. when in position of a. judge, 104, 108. when not appointed as indillVrcnt. l]iointnieiit of, under agieement to refer, 112 — 114. notice ofaiipointnient must lie given to, 108. and to the other side, llo. objections to, waived, 107. mistake of. Sec Mistakk. misconduct of, effect of, lOS. Sitiat. rfl'iiMil, lutioii ;i;,';iiiist, \'2x. luit ili.M|ualitir(l liy iiitfiL'st. liDi. cc'ititicato of, i-oiulitioii to imyiiifiit, 51. AHKKST, liiivilfj^f of \^•itIK•.^st'.s attt'Uilinj; rrfeiviicc- from, 110. ARTIZ.VXS AND LAHOl'KKH."^ DWKLLINGS ACTS. coiisolitlatfil in Housing of Workiiii^ (.'lass«*s Ai't, lb9t», 'M. ASSETS, refurenci' wluii an ailniis.sion of. .sVi KxKirrni;. ASS I OX KE, of ilel>t or contiiK.'t, may lufcr, 18. ATTACHMENT, fnfoivin;^ an award by, 'J81 — 29i. now .seldom resorted to, ^f^'i. granting, discretionary with coiirtis, 284. in wliHt ca.se.s granted, 283. only win n award is distinctly imporative, 2S4. no, when award l>ad or doiilitful, 28.1. not jiending contemporaneous jiroii-cdings, 28."'. no, for interest on sum awariied, 284. at whose instance granted, 286. who not liahlu to, 286. granted pemling a foreign attachment, 286. personal service of award ami other dooiments necessary, 288. when personal service dispensed with, 288. oral ilcmand of perlormance of award, 289. demand l>y agent or attorney, 290. demand must he of precise thing awarded, 2H1. apjilied for, lieforc time for setting asiile has elapsed, 277. application for, mode of, 291. nllidavit on application for, how entitled, 292. nature of the atlidavit, 292. when the award is lost, 293. w hat may he shown in opposition to motion for, 29.1. second application for, '2\>'-i. imprisonment under, no satisfaction of award, 286. referee no power of, 307. ATTORNEY. ,SV-j r(nvi:i; ok ATTuiiSKv, Suin rroi!. AUTHOiaTV. S'c AitiiiTKATui:. AWARD. .SVr A.iiuN. Uki'..kt. definition of term, 1. suhniission and, constitute a contract, 46, 296. condition precedent to riglit to .sue, 51. witliin what time to he made, 86. 152. arbitrator not bound to make, 152. but refusal to make ground for levokiiig .submission, 9t>. no tcciiuical furm ii'-cfs.s;irv. 153. 412 INDEX. AWARD — continued. formal requisites of, 154. attesting witness to, 155. when required to be in writing, 155. parol, not enforced hy attachment, 282. in form of a special case, 159. And sec Special Case. in form of a certificate, 163. And «>c Cektificate. must be one entire instrument, 186. of several arbitrators, nuist be executed by all at same time aud place, 111, 155. by majority of arbitrators, when good, 111. when luupire must join in, 156, 285. recitals in, 154. And see Rkcital. other writings, &c. incorporated with, by reference, 154. publishing the, 156, 270. delivery of, 156. executed, cannot be altered, 157. clerical error in, corrected, 38, 158. stamps on, 159. fee of arbitrator should not be stated in, 125, 211, 217. exceeding the submission, 163. evidence of arbitrator admissible to show, 130. bad 2'i'o tunto, 163. under common mistake as to matters referred, 165. binding, if against good faith to treat it as void, 250. by acting before jurisdiction to award attached, 165. examples of, 164. in directing acts to be done by or upon property of strangers, 164. in favour of a stranger, when bad, 165. on matters arising afterdate of submission, 76, 166. in giving directions, 166, 169. on a imrtnership i-eference, 167. of releases and conveyances, 168, 190. supported if good faith require it, 250. should direct payment of sum awarded, 170. may direct mode of payment, 171. of an indemnity, 171. is only conclusive as to matters actually referred, 253. must e.rtead to all matters referred, 171, 187. when silence in, presumeil a decision, 172. sliould specifically determine each matter particularized in the submission, 174. should extend to all matters of wliich arbitrator had notice, when reference is general, 174. evidence of arl)itrator to show matters not included in, 130. is conclusive as to all matters within the suV)mission, tliough not specifically decided, 251. not bad for omitting matters over which arbitrator had a power only to decide, 176. if void, will not be saved liy misappn-hension of arliitrator, 176. must decide between all the parties, 176. must be certain, 176. courts j)resume, certain, 177. what certainty requisite, 177. certain as to all matters about which a question exists. 178. leaving in doultt what or how it decides, bad, 181. good, if it can be rendered certain, 179. INDEX. u;i AWAh'D— C'/j/i/ucfv/. iiiiiMt he i-fiiiitii — onitiiiiiri/. Iimliii<{ facts with certainty, to rniso a \»)'uit uf liw, IS.'. ill the iiltenifitive or coutlitionnl, 18;i. Hpecilically ilefinin>( acts nwurJed, 183. inu.it f»- fiiuil, lAi,. wliat is sulliciciitly fiiiiil, 186. in two parls, bad, 18ti. of n voluntary iicrforniance. 188. containing,' a i>rovis() fur avoiding,' it, 188. to be altered by sub.secjiKMit events, ISO. dele<,'ation or reservation of authority in, ISO, 197. bad, il impossible, 191. unreasonable, 1!»1. contradictiirv, im. illej,'al, l'.»:j/ mutuality m, ll':J. bwi in p'lr/, l!)"?. is good if residue is sejiarablft and deciile all matters, 193. if l)ail part inseparable, whole void. 194. separable where whole to be performed by one party, 194. mutual i)orformances not inter-dependent, 195. excess apportionalile, 19.'i. as to costs, lit,'). as to matters not nei-(!.s.s;uy to decide, 196. follows a complete decision, 196. not separable wlierc good and bad not k. enforcing. .?»<• Action, .\Tr.viHMKNT, ENKOUtlNr. Aw \i;p, K\k- CITION. performance of, 257. 414 INDEX. BANKRUPT, fanuot refer sc ius to biiul liis estate, 17. trustee of, may refer, 1 7. submission by, binds himself, 17. trustee of, attending reference bound b}' award, 251. not bound to adopt a reference, 101. recent appointment of trustee, no ground for not moving in time to set aside award, 270. proceedings by trustee of, contrary to agreement to refer, not stayed, 56. BAXKRUPTCY, no revocation of submission, KH. giound for revocation by other party, 9(3, 101. sum awarded, good petitioning cn-ditor's debt in, 254. execution upon an award, a civil proceeding within B. A., 1890, 281. BARRISTER. Sec Counsel. BOXD, submission by. 45. BUILDIXG SOCIETIES ACTS, reference under, -32. ousts jurisdiction of courts, 34. partially excludes A. A., 1889, 40. ai-bitrator under, may state case, 35. •CASE, SPECIAL. Sec Si-ecial Ca.se. CAUSE. See Action. CERTAINTY, in an award, required, 176. See Award. CERTIFICATE. ,S'fc Architect. E.v<;ineei:. arbitrator to make, instead of an award. 163. does not reipiire a stamp, 163. set aside for same reasons as an award, 260. entering verdict pursuant to, 294. CERTIFYING FOR COSTS, l)Ower of, .should he given to arliitrator, 65. in what manner power of, exercised, 225. award referred back, for omission in, 240. CHAXCKRY DIVISION, actions in, referred, 63. staying proceedings notwithstanding claim ior injunction or receiver, 60. reserves liberty to ai)ply, 62. CHARGES. Sre Fees. CHARITY ACTIOX, submission of, by consent of Attonicy-Geiieral, 21. iNiiK\. -H'* niit triin>riTi;iI l)y an iiwanl, '2'>'i. COAL MINKS i;K(tL'LATION ACT, 1SS7. loferi'iice iiiidcr, 30. COMMITTAL, ri'l'i'ii-c no powiT of, ;jn7. COM PAX IKS ACT, IStjJ. it'foreiiie uinKr, '17. vactiiu-y ill ailutratur su]i]ili)ack, arlntrator's power over, 247. of a motion for .setting aside an award, 276. action for, 296. COUNSEL, power to consent to reference of a cause, 19. 1NI>KX. 417 COUNSEL— con, Evidence. ENFORCING A REPORT, power of court as to, 318. INDEX. fl9 ENFORCING AWARD, by suiniiwiis itiukr A. -7., 1889, as a jiuljjiiietit, 277. In'fore time to set asiilo expired, "277. fi>r reoovcry of laml, 277. originating; summons, 277. liow intituleil, ■_'77. eviilencf in suiiport, 278. service of, 278. eviileniv in opposition to, 278. order drawn up, 280. effect of jud^'ment, 280. e.xecution umlir, 230. basis tor bankruptcy proceedings, 281. former pnu-tice, 278. not if validity of award doubtful, 279. applicant pursuing otiier remedies, 279. if there is a set-olf, 270. under L. C. C. Act, 184."i, 281. where no direction to pay. 280. blf (llttichiiicnt. Sec AlTACH.MKNT. application for, preliminary step.s, 288. mode of, 291. evidence in supjiort, 292. what relied on in opposition to motion, 293. seconil ajiplication for, 293. Inj f.ccculi')ii ill ((dioH, after judgment entered, 294. n-quirements for entering, 294. when verdict taken, 294. writ of, forthwith, 29.".. includes tlebt and interest, 295. no service of documents or demand of performance necessar}*, 294. by ftdion/iir laniiiy claim. Sec Action. when, 295. when only moile of, 295. for interest and costs, 296. defence to, 297. by acdoii/or specific pcrformaMc. Sec Specific Peukoiimasce. when, 299. ENGINEER, to certify for payment, not arbitrator, 5. not disqualified by interest, 106. of one party, not expected to be indifferent, 106. certificate of, condition to payment, 51. enlargemp:nt of time, by arhitr'itor, 86. must be made within time previously fixed, 87. from time to time, 86. should not lie by two before appointment of third, 87, 117. after death of one party, 88. how ma(b', 88. by umpire, 87, 123. before entering on umpirage, 88. E E 2 420 INDEX. EXLARGEMENT OF TniE— continued. by tlvi parties, 73. how made, 73. waiver of informalities in, 89, 90. hy the courts, 90. under A. A., 1889, 90. for one month, 9 0. in what cases, 91. notwithstanding submission forbid, 92. after award made, 92. application for, 91. evidence in support of, 91. in statutory references, 91. ERROR, in award, power of arbitrator to correct, 38, 158, 241. ESTOPPEL, award, when no, 250. EVENT OF THE AWARD. Sec Actiox, Costs. what is, 219. costs abiding, 201, 213, 219. EVIDENCE, power of arbitrator to decide questions of, 140. admission of doubtful, 97. rejection of, invalidating award, 141, 262. ground for revoking submission, 97, 141. duty of arbitrator to take, before deciding, 124, 142, 265. when dispensed with, 142. must 1)6 taken in [>resence of all parties, 96, 143, 265. unless all excluded, 133. irregulai'ities in reception of, waived, 145. on matters not within the submission, when received, 146. giving time for production of, 146. notes of, to be taken by arbitrator, 147. arbitrator's notes of, umpire using, 124. courts no power over, 131. of skilled persons, 147. further, production of, after case closed, 151. additional, taken on reference back, 246. umjiire to rehear, 124. of arbitrator adnussible, 129 — 131. to show excess of jurisdiction, 130. to ])rove matters were not before him, 131. that he was not requested to find on issues, 131. given before arbitrator when receivable in other proceedings, 1 29. taking ujton trial before referee, 306. award, effect of, as, 256. not, of an account stated, 257. not, in the nature of reputation, 256. not, in a criminal case, 257. contrary to, not set aside, 261. EXECUTION. Sec Enforcing Aavahd. of award. See Ai;ditiiator, Award. INDEX. 421 EX ECUTKJX— c«/j^«H«/. under summons to eiifoirc iiwiinl, 280. under awiird to dtlivcr land, '277. ill aiitm- irjcrrnl, "JiM — 2'.'J. may issue alter jud^'nu-nt entered up, 2yr>. .S'tr Jrii<;MENr. issuing before day fixed for jjayment, 2!t.'t. will issue for interest on sum awarded, 290. upon report of referee, 318. EXECUTOR, reference by, Iti. when an admission of assets, 16. general submission embnues claims as, 73. when bound by submission of testator, 100. award a;.;ainst, certain without findinj,' a.ssets, 17!^. when he may have attachment to enforce award, 286. attachment a;^ainst, 286. EX I'ARTE, no jirovision as to proceeding in A. .\., 1889, 9. arbitrator may proceed, after notice, 149. unless proceedin;,', must take no step in absence of a party, 143, 26r>. referee juay jiroceed, 306. EXPLANATION, by referee, court may reijuire, 30S. not given on oath, 308. of ca.se stated for opinion, 161. FACTS, finding, to raise iiuestion of law, 185. FEES, of arbitrator, award retained until paid, 126, l.'j7, 218. excessive, how recovered, 127. whether ground for setting aside awanl, 211, 266. shouhl not be stated in award, 12.'>, 211, 217. when reviewed on ta.xation, 211, 23.'). to be taken by oflicial referees, 308. collected by stamps, 309. of special referee, 309. FEME COVERT. S'c Mai:kif.I) Woman. FEME SOLE, marriage of, does not revoke submission, 101. FINAL, award must be, 185. Sec AwAi:n. FORM, technical, not rei|uired for an award, l.'i3. FRAl'D, of parties, submission set aside for, 85, 267. award .set aside for, 266. 422 INDEX. FRAUD — continued. action charging, stayed, 61. referred notwithstanding issues of, 317. FRIENDLY SOCIETIES ACT, 1896, reference under, 35. FURTHER CONSIDERATION, referee's report on inquiry dealt with ujion, 313. FUTURE DIFFERENCES. See Stayinc; 1'kocee]iin(;s. parties may agree to refer, 22. agreement to refer, effect of, 50. reference of, made condition precedent to action, 51. GUARDIAN, may be bound for an infant, 12. HIGHWAY ACT, 1864, compulsory reference of a])peal under, 67. HORSE STEWARDS, not arbitrators, 6, 107. HOUSING OF WORKING CLASSES ACT, 1890, arbitration under, 32. HUSBAND AND AVIFE. See Makiued Woman. submission by, binds wife's real estate, 14. ])y liu.sband of wife's chattels, 13. other chattels as executrix, 13. of all demands, includes demands in right of wife, 73. of actions, not including actions to which wife is a party, 78. of terms of separation, 21. attachment against, refused, 287. ILLEGAL, submission of matters, 23, 80. acts, award of, 193. award, bad^^J'o tanto, 193. no specific performance of, 302. IMPOSSIBLE, award bad, 191. INDEMNITY. power to award, 171. INFANT, submission by, void, 11. party bound for, 12. person .submitting jointly with, bound, 12. the court will not decree an award to Innd, 12. not bound by reference by solicitor, 19. directed to pay costs, 12,' 226. Sec Cus'is. INDEX. i2:j INFKRIOR COUKT, costs of cause in, must In' asufrtuiiuil in iiwmiiI, •22'". INJUNCTION, to iTstmin iiibitratur U>i- unlitncvs, 107. iVoni acting ultra rins, 7S. on sujtfjcstion that contract illegal, 80. action .slayeil notwithstamling it claims an, tiO. INQUIRY AND RKrURT. ,SV< Ri:kki:kxi, 2li.'">. action, 2.'. 4, 29G. known in arbitrator no disy, 17. MANDAMUS, a^'iiinst a corporation to enforce an award, 2S7. MARKET UARDKNKHS COMI'KNSATIUN ACT, 189.''., reference under, 30. MARKLVGE. of female party does not revoke submission, 101. MARRIED WOMAN. -S-r HrsnAND and Wife. may refer tiuestions as to her scpiirate estate, 13. terms of scjiaratioii, H, 21. person submitting.; jointly witli, is biuuid though shf is not, 14. attacliment in favour of, '2S7. MARRIED -WOMEN'S PROrKllTV A(T, 1S32, capacitj- of women to refer uiiclcr, \'-i. M.VTTEKS IN DIFFERENCE, what, 7f», 252. M.\TTERS OF ACCOUNT, ti7, 316. .sV. Comimi.sokv Rkff.kexower to conect. LIS, 241. must ajipear in tlic award, 261. gross, amounting to misconduct, 263. referring back an award for, 241. not allowed to )k> made out on alfidavits 243. 426 INDEX. MISTAKE — mntinued. when award void for, 259. admission of. by arbitrator, 242, 243, 263. in favour of a }K\rtv. not ground for Ms moving to set aside award, 272. " MO^'TH," compatatioQ of time by lunar, not calendar, 152. xoxsriT, award of, 209. NOTES OF EVIDEXCE. .SVe Evidexce. NOTICE. of meetings, 1-32, 264. of revocation of submission, 9S. of employment of eoimsel, 133. to proceet.! nx paii^, 149. of a^-ard made, 12d, 157, 21S. of report of referee, 313. OATH, parties to submit to be examined on, 9, 136. power of arbitrator to administer, 1-3S. when evidence taken on, 13S. form of, 1-39. OFFICIAL REFEREES. .S-?.^ Referee. permanenr officers of couit, 303. fees to be taken by, 30S. references to, distributed in rotation, 305. order of reference to, to be indorsed with the uame iu rotation, 305. reference may be to one in particular of, 46, 30d. then referee an arbitrator, 309. hours of sittings of, 307. OPINION, of counsel or skilled person, arbitrator may adopt, 115, 147, 145. award in form of, 153. PARLIAMENT, MEMBER OF, no attachment ajrainst, 2>r). PAROL, matters referred by, 45. submission, disadvantages of, 46. when arbitrators so appointetl, 43. awanl made under, not enforced by attachment, ■.:.':: award, when good, 155. PART, award bad only in. Sie Aw.\Kr>. PART PERFORMANCE, of awanl, effect of, 300. of agreement, some terms left to arbitrati ■! , ." » INDKX. 127 r.VKTIES TO A KKFEKKXCE, who shuuM Ih' iniulf. 7. who niuy 'x?, 11 — "JO. .sfVi'iiil, when jointly Imund, l.l. may '><• fxaniini-il a» witnenses, y, I'M. I'XuluiUtl froMJ the liearin;;, 133. awaretween, to refer future disputes, 50, 55. reference between, what may bi- awarded, 59, 75, 167. award bad for omitting to decide wlietlier iK.'n*ons are, 174. TAYMKNT, arbitrator should diivct, of sum awarded, 171'. no attachment witliout, 171, 280. unauthorized award of entry of a verdict does not amount to an order for, 205, 284. time, place, and moQ—continwd. arliitrntors iiiiiy make .sevt-ral awanls, Is", costs of rffert-nce, 231. RAILWAYS CLAUSI-:S ACT, 1845, matters n-fiiiililr \iiukT, 26. iiiwle of subinission, 71. .subniission not ri'vocable, 102. appointment of arbitrator by court, 114. new arbitrator, lir> umpire, 110. costs of reference, 231. READY FOR DKLIVKRY, an award, when, loti. RECEIVER, action sta5-ed notwithstandinj» claim for, 60. arbitrator cannot appoint, 16s. RECITAL, in submission, effect of, 74. in award, effect of, 153, 154. erroneous, will not vitiate award, 154, 163, 247. REFKHEE. S>c Okkici.m. Rkfkuke, Rkkekence, .SrEci.\^i. Rekekee. either official or special, 3o3. ofticial and special have same powers, &c., 303. sitting as arbitmtor, ceases to be, 309. trial Vieforc, where held, 306. how conducted, 306. must jiroceed with trial continuously, 306. attendance of witnesses before, how enforced, 3i'6. jHJwers of, in course of reference, 3o7. control of court over, 309. must report, not award, 312. (Sfc-REi'oRT. may state a case, 161, 307. when power to order entry of judgment, 318. explanation may be required from, 308. REFKKENCE. Sec Action, CoMriusoiiv Kefekesce, SrBMis,sioN. t)i action, /or iiiqiiin/ and rejxyrt : A. A., 1SS9, .«. 13. compulsory, 67, 3o3. order for, how and when made, 67. not rtJi arbitration, 303. aj>plication for order, 305. apiK»al from order, 305. "inquiry," meaning of, 310. "any question ari.sing," meaning of, 310. class of questions refen-ed, 310. as to damages, 311. accounts, 311. survey ami insjtection. 312. rejiort under, 312. 8, \fiO. liiii of, for costs oil .sum iiwanlfil, 229, 280. lifiiiiiml by, of pcTloimaiico of award, 290. SPKCIAL CASK, arliitiator may .state, 72, ir>9. not boiiinl to state untlor liiiililinc,' Societies Acts, 3.''i, 40. Kiiciiillv Socii-tirs Act, •10.' rofusiii;,' to state, award not rcf.iieil Lack, 213 Hut sec 1(52. award in form of, IGO. cxliausts arbitratoi's powers, IGO. juilyiiicnl on, ItiO. apiical liom, IGO. final or interlocutory, 100. costs of, IGO. under I,. C. C. Act, ISifi, 160. costs of appeal, 100. pending awanl, 161. for o])inian of court, 161. voluntarily, 101. compulsorily, 161. ai)plication lor order, 162. award jK'niling, 1C2. on question of law only, 162. no ai)peal from opinion of court, 102. costs of, 1 62. explanation, court may require, 161. not on oatb, 308. juooedurc on, 162. referee nniy state, 307. SrECIAL REFEREK. .S'-MIkkekkk. •nction referred to, costs of reference, 217. by whom appointed, 303. same powers as ollicial referee, 303, an cllicer of court, 303. remuneration of, 309, SrEClfIC PEKFORMANCE. no, of agreement to refer, 48. unless part iierfornied, ^)0. of a contract, part of which is left to be decided bv abortive reference, ^9. of an award, when enforced, 299. upon same grounds as an ordinary agreement, 299, 300. for )>ayiuent of money, no, 300. after i)ait ] performance, 30il. atfcctctl by reasonableness <»( awanl, 301. not after attemjits to set it a.si«le, 301. not if ille;;al, 302. after long delay, 302. STAMPS. Sec UxsTAMrKi) Doci'.ment3. on submissions, 47. A. F F 434 INDEX. STAli?S—co7itinucd. on alteration of submission, 47. not necessary on appointment of umpire, 122. on awards, 159. want of, effect on awards, 158. not required on certificate, 163. STATUTE OF FRAUDS, reference by parol affected by, 47. STAYING PROCEEDINGS, order for, under sect. 4 of A. A., 1889, 53. commenced contrary to agreement to refer, 48, 53. by counterclaim, 54. same effect as specific performance, 49, 55. when submission and cause of action not in same document, 55. agreement must be subsisting, 55. dealings under a spent, 55. for reference to foreign tribunal, 56. application for, 56. made before "step in proceedings," 56. by whom, 56. summons, 57. not by or against trustee in bankruptcy, 57. evidence in support of, 57. if "matter agreed to be referred," 57. who decides, 57. discretionary with court, 58. in what sense, 58. made when ' ' no suflicient reason " against reference, 58. mere suggestion of bias of arbitrator, 58. question of law in dispute, 59. action for dissolution of partnership, 59. wrongful dismissal, 60. claims injunction or receiver, 60. involves a charge of fraud, 61. refused in what cases, 60. if application only for delay or not bond fide, 60. part only of disputes within agreement, 61. applicant not willing to refer before action, 61. arbitrator could not deal with whole case, 61. reference not adapted to sj)ecial dispute, 61. lor want of parties, reference contrary to intention, 61. when ])erson cliarged with fraud objects, 62. what are "difi'erences " witliiu section, 62. action remains in court notwithstanding, 62. STET PROCESSUS, award of, 197, 201, 209. luiauthori/ed award of, 196. STRANG KR, to a cause made party to a reference, 21, 64. directed to ])ay costs, 226. award of ati act to lie done by, 164. a fleeting ]iroperty of, 164. of payment of money to, 165. INDKX. 1U5 ST 1! A NC EK— ro)i//;( iml. eH'i-ct uf award on rights of, 'jril. HWiiril not I'viileiice against, •J.'iO. SUIUKCT-MATTKK OF KKFKUKN'CK, livil (lis|iutis, 'Jl. muslions <»f law or fact, 22. future dilfirL-nces, 22. (.•onstnu'tiiiu of wills, 22. niattiTs iili-^'ul ami triniinnl, 23. matters rcffialili- liy statuti', 215 3(5. what iilcrnMl liy i>artiiular jtlira.si's, 73. cvidfUCf of ail'itrattir tn sli./w what was, 131. SUI5MISSI0N, lU'lini-.l, 1. UMiier A. A., 1889, 2. '* writtiMi a;,'ri'('nient," 2. iiiil>liid tiTuis of, ^. in ca.sc of three arbitrators, 2. reference which is not a, 2. valuation, 3. to settle accounts, 5. to certify under contract, 5. to steward of a race, C. reference which is a, incidents of, given by contract, G. by what law governed. G. matters to lie observed in framing, 7. should distinctly detine snbjectonatler, 7. and award together constitute a contract, 46, 2W. ditfercnt modes of, 45. parol, disadvantages of, 46. when it should be by deed, 47. stHuijis on, 47. no bar to action for matters referretl, 48. but jiroceedings stayed, 48, 49, 53. .SV-' SrAYINc ri;urKi:i>lNc:s. refusal to observe, ground of action, 49. cannot l)e specifically enforced, 48. of future differences. iVrFrriiiK I)lKKKitKNCE.s. of an action. 6Vc Action, Co.Mrn.snuY Rekkukni k. in county court, 65. under jiarticular statutes, 1, 68. what matters included in, 73—80. of all matters in difference, includes all civil disputes, 73. general, not controlled by sjiecific n-eital, 71. what are "matters in difference," 75. matters arising subseinient to, not inchided in, 77, 166. may be made to include such matters, 77. including joint and several disputes, 78. alteration and amendment of. Sec Ai.TEUATlox. "lien set aside, S.'>, 2')7. duration of authority under. See Akiutiutoi:, Em.aiujkment ok Time. revocation of. Sir Kevoiation. new, api>ointment of fresh arbitrator aniount« to, 81, 112. so docs an alteration or amendment, 81. Y F '1 436 INDEX. SUBPCENA, for witnesses, 38, 136. SURVIVORS, of several parties, death no revocation as to, 99. TAXATION OF COSTS. Sec Costs. THREATS, submission by person acting under, wlien void, 14. TIME FOR MAKING AWARD, computation of by lunar months, 152. when none fixed, three months allowed, 8, 86. from when it begins to run, 87. by umpire, 8, 87. TRAMWAYS ACT, 1870. reference under, 28. TRUSTEE, reference by, 16. of bankrupt, reference by, 17. Sec Bankhui'T. UMPIRE, definition of term, 1. distinguished from third arbitrator, 117. jiower to enlarge time for making his award, 88, 123. time for making award, 8, 87. court may enlarge time, 123. in what cases appointed, 8, 116. at what time appointed, 118, 119. when court may appoint, 118. must not be chosen by lot, 96, 120, 266. if he refu.se to act, another may be chosen, 121. mode of appointment, 121. no stamp necessary on ajipointment, 122. commencement of his authority, 8, 122. duration of his authority, 123. nature of his duties, 123. when acting, must decide all and not particular matters, 122. niTist rehear case, 124. effect of arbitrator joining with, in his umpinigc, 125. costs of, include arbitrators' fees, 127. are costs of reference, 217. when he must join with the arbitrators in their awanl, 156. UNREASONABLE, award, must not be, 191, specifically enforced. 300, 301. UNSTAMPED DOCUMENTS, inadmissible before arbitrator, 142. INDEX. l;{7 "USUAL TKHMS," wimt nil', (Jl, 213. VALUATION, not an iul>itrution, 3, 1, lit. iHiiy liavL- inridt'uts of .siiliniissioM ilho a^jrtTtl, 6. uo revocation of submission in cuso of, y4, 99, VKRDICT, excess of iiuthority in awanlinj;, the effect of, IOC. unantliini/i(l award of i-ntrv of, bail, 205. not ea)-, 205, 281. direction to cuter, if separable and .suri)lii.sa''p, awaid not set a.side for, U»G. ;rison, 137. county court judge may compel attendance of, 137. excluded until examined, 138. parties examined .ns, 9, 136. examination of, on oath, 138. l)rivilegcd from arrest, 14(t. punishable for p(MJury, 140. persons of skill examined as, 148. comjietency of, ipiestion for arbitrator, 140. arbitrator refusing to hear, effect of, 141, 143. admitting incompetent, no ground for setting a.sid< .iwanl, 20: should be examined in presence of both parties, 131, 144. when to be cxamiiud by umpire, 124. 438 INDEX. WIT'SESSES— continued. costs of, 233. of qualify iiif?, 234. arbitrator wlieii called as. 129. 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